Procedure for appointment of members to a court martial panel - General Court Martial

Context

1. As per references A and B, the Court Martial Administrator (CMA) shall select, using random methodology, sufficient eligible officers and, where applicable, non-commissioned members capable of performing the duties of members and alternate members for the General Court Martial (GCM) in the language of trial chosen by the accused person.

Purpose

2. This policy sets out a transparent random selection process for the appointment of panel members that complies with reference B, and which incorporates the majority of the recommendations relevant to this process provided at reference C.

Procedure

3. In March and September of each year, the CMA completes an Ad Hoc Report Request Form on the Director Human Resources Information Management/Human Resources Information Centre (DHRIM/DHRIC) website to obtain a list of all eligible Canadian Armed Forces (CAF) members (including members of the four sub-components of the reserve force as described at reference D) capable of performing the duties of members and alternate members in prevision of upcoming GCMs. In compliance with the requirements of references E through I, the request contains the following details: all regular force personnel and all reserve force personnel. Targeted population: all officers in the ranks of Lt(N)/Capt and above and all non-commissioned members (NCMs) of the ranks of PO2/Sgt and above.

4. In accordance with section 168 of the National Defence Act (NDA), the following members are namely ineligible to serve as a member of a court martial panel: Legal Officers and Military Police Officers (in MOSID 00204, 00175, 00214), members of the Military Police (in MOSID 00019 and 00161) and members who have been convicted of an offence under the Code of Service Discipline, unless a clemency measure is in effect in respect of that offence. These members are therefore excluded from the lists.

5. The Office of the Chief Military Judge then receives from DHRIM/DHRIC a list of eligible members in an Excel spreadsheet. The content of the ad hoc report is separated into three lists forming three categories of members in accordance with section 167 of the NDA: one list contains the names of CAF members who hold the rank of Cdr/LCol and above; one list contains the names of CAF members of the rank of Lt(N)/Capt to LCdr/Maj and another list contains the names of NCMs of the rank of PO2/Sgt and above.

6. Each member is assigned a randomly generated number using Excel’s built-in RAND function. Using an Excel function, the names of eligible members are sorted numerically based on the member’s assigned number. Names are selected in chronologic order by pool, in accordance with the requirements for the court martial. The use of the random methodology ensures integrity and compliance with the process.

Requirement to complete the prescribed questionnaire and duty to sit as member of a GCM

7. Subsequently, the CMA sends by e-mail the questionnaire to the randomly selected persons the sample shown at Annex A with the objective of determining their eligibility and availability. As paragraph 11f) of the Canadian Charter of Rights and Freedoms authorizes the constitution of court martial panels, the NDA and the QR&O prescribe that all service members selected and appointed have the obligation and duty to participate as members of a court martial panel, all members must also personally and carefully complete the questionnaire prescribed at Annex B and return it to the CMA with any relevant information or documents in support of the statements and entries made. Those members who fail to respond to the CMA will receive a reminder. The local Assistant Judge Advocate General (AJAG) or Deputy Judge Advocate (DJA) may be cc’d on any reminder, for their information/action as appropriate. In order to avoid any conflict of interests with the CMA’s duties, functions and responsibilities, the AJAG and the DJA must personally remind CAF service members to accurately complete the questionnaire and to fulfill their duties as members or alternate members of a court martial panel, if they are selected and appointed for that purpose.

Exclusions and excuses – Court Martial Administrator

8. The questionnaires are carefully reviewed by the CMA. In consultation with the Court Martial Administration Legal Advisor, the CMA excludes or excuses those members who meet one of the situations specified in QR&O paragraphs 111.03 (3) and (4). Should there be insufficient names left for appointments as a result of the number of members determined ineligible or unavailable, the CMA will randomly draw other names from the pool and repeat the process. Furthermore, in accordance with QR&O paragraphs 111.03(7) and (8), the CMA must maintain a record of the information and decisions made and the record is open to examination by the accused person and the prosecutor acting in a court martial.

Appointment

9. Respecting the order of the random selection for the 25 members of each list who received the questionnaire and who were not excluded or excused, starting at the top of the list, the CMA will appoint the required five members, and alternate members. The name of any member who is not appointed, regardless of a decision to exclude or excuse the member, will remain in the pool for a period of six months.

Convening Order and Order to Assemble

10. In accordance with QR&O article 111.02 (Convening of Courts Martial), the CMA will issue a Convening Order. Pursuant to QR&O paragraph 111.02(2.1), the CMA may issue, separate from the Convening Order, an Order to Assemble that identifies the members and alternate members of their appointments and the date, time and location where they must assemble as it is stated in the Convening Order.

Alternate members

11. When an appointed member named on the Order to Assemble no longer meets the requirements of QR&O paragraphs 111.03(3) and (4) (Procedure for Appointment of Court Martial Members) is excluded or excused from performing court martial duties by the CMA before the court martial panel is sworn in (see QR&O article 112.17), the CMA will appoint an alternate to replace the excluded or excused member. If an alternate member is further required in accordance with QR&O article 111.04 (Appointment of Alternate Members), the alternate member will be appointed sequentially from the record. The CMA will also note on the record the reasons for excluding or excusing a member and inform the accused person, through legal counsel if applicable, and the  prosecutor.

New Order to Assemble

12. Once a new member or alternate member is appointed, the CMA will issue an Order to Assemble that will inform the appointee. The CMA will provide a copy of the Order to Assemble to the military judge assigned to preside at the court martial, the members of the court martial panel, the accused person, through legal counsel if applicable, and the prosecutor.

B. Noury, CD
Court Martial Administrator

References

A. NDA section 165.19
B. QR&O article 111.03
C. Report of the Second Independent Review Authority, by the Honourable Patrick J. LeSage, December 2011
D. QR&O article 2.034
E. NDA paragraphs 168 (a) and (d)
F. NDA section 167
G. NDA paragraph 168 (e)
H. NDA paragraph 168 (g)
I. QR&O subparagraph 111.03 (3)(e)