II. Military Jurisdiction over Civil Offences

    1. Many acts or omissions are not prohibited by law in the civilian world, but nevertheless constitute service offences when committed by persons subject to the Code of Service Discipline (“CSD”), notably members of the Canadian Armed Forces (“CAF”).Footnote 184 Disobedience of a lawful command,Footnote 185 absence without leave,Footnote 186 desertion,Footnote 187 and drunkennessFootnote 188 are offences of this sort. They can only be prosecuted before military courts and tribunals. Accordingly, neither the military police nor prosecutors need to determine in which system to proceed.
    2. A vast array of other offences (“civil offences”) are, however, subject to the concurrent jurisdiction of the civilian and military justice systems. Subject to considerations I will explain later, the military police and prosecutors may in those cases decide in which system to proceed.
    3. Subsection 130(1) of the NDA incorporates as a service offence any “act or omission […] punishable under Part VII, the Criminal Code or any other Act of Parliament”. It does not matter whether the prohibited act or omission occurred in CanadaFootnote 189 or abroad, provided that it would have been punishable if it had occurred in Canada.Footnote 190 Provincial penal offences are not subject to subsection 130(1) and cannot be tried by service tribunals.
    4. The service offences incorporated by subsection 130(1) and the underlying civil offences have the same essential elements,Footnote 191 but the civilian justice system has jurisdictionFootnote 192 over the latter and the military justice system has jurisdiction over the former. Any civil offence incorporated as a service offence may be tried by court martial, except that murder, manslaughter and child abduction, if committed in Canada, must be tried by civilian courts.Footnote 193 Only a handful of civil offences may be tried by summary trialFootnote 194 and the accused even then can elect trial by court martial.Footnote 195 In recent years, summary trials for civil offences have been exceedingly rare.Footnote 196
    5. Concurrent jurisdiction means that the same offence can be tried before a military or a civilian tribunal. But it cannot be tried by both. An accused who is tried and acquitted of an offence in either system, or convicted and punished or discharged, cannot be tried again in the other system for the same offence or for any other substantially similar offence arising out of the same facts.Footnote 197
  1. Military Jurisdiction over Civil Offences Committed Abroad
    1. No one I consulted opposed the extension of military jurisdiction to civil offences committed abroad by persons subject to the CSD, and with good reason. When Canada deploys military members and civilians abroad, it does so with the consent of the host country. A Status of Forces Agreement normally determines whether Canada or the host state will exercise primary jurisdiction over offences committed by the deployed Canadian nationals. The availability of military jurisdiction enables Canada, in its negotiations with foreign states, to secure primary jurisdiction over its deployed nationals, thereby ensuring that they will be treated fairly and in accordance with Canadian law. And it ensures that effective control will be exercised over persons whose conduct could engage Canada’s responsibility under international law.
    2. While the civilian justice system also has jurisdiction over offences committed abroad by persons subject to the CSD, practical impediments will often hinder the exercise of that jurisdiction.Footnote 198
  2. Military Jurisdiction over Civil Offences Committed in Canada
    1. A more contentious issue between the people I consulted is the extension, under paragraph 130(1)(a) of the NDA, of military jurisdiction over civil offences committed in Canada by persons subject to the CSD. As explained below, some take issue with the very existence of military jurisdiction over civil offences. Others take issue with its breadth. Indeed, paragraph 130(1)(a) currently knows no contextual limitations. It is a service offence for anyone subject to the CSD to commit a civil offence, even in circumstances entirely unrelated to military duties or military service. A member of the Regular Force who steals a book from a bookshop off-base, while on leave and in civilian clothes, can still be court-martialled or summarily tried by his or her commanding officer for that offence.
    2. The constitutionality of paragraph 130(1)(a), as it applies to members of the CAF, is now beyond dispute. It has twice in recent years been upheld by the Supreme Court of Canada. In 2015, the Court decided unanimously in MoriarityFootnote 199 that paragraph 130(1)(a) was not constitutionally overbroad. It found that prosecution in the military justice system of members of the CAF charged with civil offences remained “rationally connected” to the purpose of maintaining the discipline, efficiency and morale of the military in all circumstances. “Criminal or fraudulent conduct”, Justice Cromwell stated, “even when committed in circumstances that are not directly related to military duties, may have an impact on the standard of discipline, efficiency and morale”.Footnote 200 Subsequently, in 2019, the majority of the Supreme Court held in Stillman that service offences under paragraph 130(1)(a) are proper “offence[s] under military law” for which no constitutional right to trial by jury is guaranteed by the Canadian Charter of Rights and Freedoms (“Charter”),Footnote 201 even when the accused’s military status is the only connection between the commission of the offence and the CAF.
    3. I again emphasize here that the constitutionality of a statutory provision establishes its legality but not its desirability. Constitutionality is in this context an essential but minimum requirement. It is not determinative of the provision’s fairness, soundness or policy wisdom, which are my concerns on this review.
    4. The decision to try a civil offence by court martial has important repercussions for the accused. A few examples will illustrate the point. The accused will be deprived of the benefits of a preliminary inquiry and a trial by judge and jury, which the accused normally enjoys in the civilian justice system. Juries are widely perceived as bulwarks of due process. In a court martial, the accused will instead be judged either by a military judge alone, or by a military judge and a panel of five members of the CAF. As the Supreme Court of Canada stated in Stillman, “a panel is not a jury”.Footnote 202 It is not an equivalent constitutional safeguard. Nor does it provide functionally equivalent protection:
      • Important differences distinguish one from the other. For example, while a jury consists of 12 individuals, a panel consists of only five, thereby lowering the threshold for a finding of guilt. And, while jurors are drawn from the community at large, panel members are drawn from the military community only. Thus, the community embodied by a panel is a particular one. Further, and while juries are not designed to reflect any sort of hierarchy between the accused and the jurors, the composition of panels varies with the rank of the accused, and the system is designed to include a certain number of the accused’s superiors. In this way, panel members are not all “peers” of the accused in the sense of being of equal rank. Finally, panel members are broadly permitted to take judicial notice of “all matters of general service knowledge”, whereas jurors enjoy no such broad authorization.Footnote 203
    5. In a court martial, the accused will also be subject to trial and sentencing procedures which differ in many respects from the procedures of a civilian criminal court. If convicted, the accused is subject to a narrower and less flexible range of sanctions.Footnote 204 Military tribunals can impose sanctions that have no civilian counterparts, including dismissal with disgrace from Her Majesty’s service, reduction in rank and reprimands. If convicted, the accused has narrower rights of appeal than in the civilian system; if acquitted, the accused is subject to broader rights of appeal by the Minister of National Defence (“Minister”) – rights of appeal unavailable to the Crown in the civilian system of justice.Footnote 205
    6. A decision to try a civil offence as a service offence also has important consequences for the community at large and for victims of the offence. The community is deprived “of the chance to participate in the prosecution of serious criminal offences”.Footnote 206 More importantly, victims are deprived of rights guaranteed to them since 2015 by the Canadian Victims Bill of Rights, which does not apply to service offences investigated or prosecuted under the NDA.Footnote 207 A corresponding Declaration of Victims Rights for the military justice system was included in Bill C-77,Footnote 208 adopted by Parliament on June 21, 2019. But I have been advised that it may not be implemented for at least several years and I have been given no firm or even target date for its implementation. Even if Bill C-77 was to fully come into force sooner, it would fail to provide victims with rights and protections available to them in the civilian justice system.Footnote 209 In this regard as in others, the military justice system has failed to keep up with ongoing improvements to the civilian justice system.Footnote 210
      1. Proposed Removal of Military Jurisdiction
        1. Some commentators argue that paragraph 130(1)(a) of the NDA should be repealed in light of the above concerns and the permanent availability of a civilian justice system in Canada. Several European and Scandinavian states, including important NATO allies of Canada, try all civil offences committed by their military personnel in peacetime in their civilian justice system, with or without particular rules or procedures to account for the accused’s military status.Footnote 211
          1. Legitimacy Concerns
            1. Proponents of this view usually question the legitimacy of trying civil offences in the military justice system. This stems, understandably, from a belief that everyone who commits a civil offence should be treated equally by the law, regardless of status or occupation. It also stems from a concern that service tribunals may not offer the same quality of justice to those tried before them. In this regard, I can do no better than cite the dissent of former Chief Justice Laskin in MacKay:
              • In my opinion, it is fundamental that when a person, any person, whatever his or her status or occupation, is charged with an offence under the ordinary criminal law and is to be tried under that law and in accordance with its prescriptions, he or she is entitled to be tried before a court of justice, separate from the prosecution and free from any suspicion of influence of or dependency on others. There is nothing in such a case, where the person charged is in the armed forces, that calls for any special knowledge or special skill of a superior officer, as would be the case if a strictly service or discipline offence, relating to military activity, was involved.Footnote 212
            2. I share the values and concerns that underlie this view. If the current military justice system remained as it was in 1980, when MacKay was decided, I might well have recommended that the military jurisdiction over civil offences committed in Canada by persons subject to the CSD be entirely removed.
            3. Fortunately, the military justice system has evolved substantially since 1980. Canada could have chosen to maintain its traditionally command-centric military justice system and to restrict its jurisdiction. Instead, it chose to improve its military justice system by increasing the independence of key actors and by adopting procedural safeguards present in the civilian justice system. Other jurisdictions, including the United Kingdom, New Zealand and Australia, enacted similar reforms.
            4. While the Canadian military justice system has evolved notably since 1980, deficiencies remain. As discussed earlier in this Report, the independence of its key actors – military judges, prosecutors, defence counsel and members of the military police – needs to be further strengthened.Footnote 213 Other flaws, also identified in this Report, need to be remedied. My interviews with senior officials in the Department of National Defence (“DND”), with the CAF leadership and with the JAG have persuaded me that they recognize the need to strengthen the military justice system and are genuinely committed to pursuing that goal. My recommendations aim to show the way. I am confident they will be seriously considered and implemented where appropriate.
            5. I am therefore not prepared to recommend the removal of military jurisdiction over civil offences committed in Canada on the basis of illegitimacy.
          2. Efficiency Concerns
            1. Another argument against removal of military jurisdiction over civil offences is that it could, at least in theory, impair the military justice system’s ability to meet the disciplinary needs of the CAF. The purpose of the military justice system is not merely to supplement the civilian justice system where the latter cannot exercise its jurisdiction practically and effectively. Its distinct purpose is “to deal with matters that pertain directly to the discipline, efficiency and morale of the military”.Footnote 214 Such matters arise constantly, both in Canada and abroad. They sometimes involve the commission in Canada of civil offences by persons subject to the CSD. Those offences may often need to be “punished more severely than would be the case if a civilian engaged in such conductFootnote 215 and, for that reason alone, “[r]ecourse to the ordinary criminal courts would, as a general rule, be inadequate to serve the particular needs of the military”.Footnote 216
            2. But it is hardly evident that the military justice system, in its present form, is in fact achieving its disciplinary objectives. I have been presented with no convincing evidence that civil offences constituting breaches of military discipline are dealt with more speedily than they would be in the civilian justice system, beset as it is with its own delays.Footnote 217 Nor have I been presented with convincing evidence that serious civil offences subject to prosecution in either system will be punished more severely in the military justice system.
            3. If this is indeed so, efficiency concerns alone could therefore justify the removal of military jurisdiction over civil offences committed in Canada. There is preliminary data tending to show that the cost of a court martial may significantly exceed the cost of a criminal trial in the civilian justice system.Footnote 218 If so, and if the military and civilian justice systems are “both capable of achieving substantially similar and acceptable public order and welfare purposes”, it may be argued, as the authors of the Court Martial Comprehensive Review Report did, that “the current body of service offences is inefficient because it permits ordinary civilian offences to be tried in a system that is […] more costly than a suitable alternative”.Footnote 219 But they added this caveat:
              • That being said, if a disciplinary effect were being achieved through the prosecution of ordinary civilian offences (as, for instance, in the cases of military members stealing from or assaulting other military members) within the court martial system, and this effect could not be achieved through prosecutions in the civilian criminal justice system, then this efficiency analysis would need to change to account for the added disciplinary benefit that could – in theory – justice the extra costs of a court martial prosecution. […]Footnote 220
            4. Several of my recommendations are designed to enable the military justice system to meet its disciplinary objectives, while continuing to guarantee due process to everyone tried by service tribunals. As mentioned earlier, I am confident that my recommendations will be seriously considered and implemented if accepted. I am not prepared to recommend the removal of military jurisdiction over civil offences committed in Canada on inefficiency grounds. I will, however, recommend that military prosecutors and members of the military police collect, retain and centralize data on the civil offences committed by persons subject to the CSD charged in either the military or civilian justice systems.Footnote 221 This will enable future reviewers of the military justice system to conduct more thorough assessments of how well the military justice system is meeting its disciplinary objectives.
            5. I am also of the view that the removal of military jurisdiction over civil offences committed in Canada could risk creating an unwarranted void or “impunity gap”. Several CAF officials, including the JAG, the Director of Military Prosecutions (“DMP”), Colonel Bruce MacGregor, and the commanding officer of the Canadian Forces National Investigation Service (“CFNIS”), have advised me that the civil offences tried in the military justice system are often less serious than similar offences tried in the civilian justice system. They indicated that many civil offences tried in the military justice system would not lead to prosecution in the civilian justice system. In addition, the DMP informed me that civilian prosecution services are usually content not to have to deal with civil offences committed by members of the CAF given their own case loads and the high cost of calling witnesses, including members of the military police who, as a result of their successive postings, may be spread across Canada or deployed abroad by the time of trial. The DMP provided me with anecdotal evidence to support his assertions.
            6. For these reasons, I believe that recommending the removal of military jurisdiction over civil offences committed in Canada by persons subject to the CSD would, in the present context, go too far. The judgment of the Supreme Court in Stillman nevertheless includes a clear recognition that despite the existence of military jurisdiction, it may be inappropriate to exercise military jurisdiction in certain cases.Footnote 222 It is manifestly essential to ensure, in so far as one can, that military jurisdiction be exercised only in appropriate cases.

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      2. Proposed Exclusion of Other Civil Offences from Military Jurisdiction
        1. As noted above, the offences of murder, manslaughter and child abduction, if committed in Canada, can only be tried by civilian courts.Footnote 223 Some commentators have suggested that other civil offences should be added to that list. In particular, many people I consulted, including members of the CAF who attended town hall meetings with me, suggested that sexual assault should in no circumstances be tried in the military justice system.Footnote 224 It was also recommended that any offence committed in Canada and punishable by imprisonment for five years or more, for which an accused would be guaranteed the right to trial by jury in the civilian justice system, should be excluded from military jurisdiction.
        2. In my view, however, the past and anticipated bolstering of the military justice system, the disciplinary needs of the CAF and the risk of creating an “impunity gap” all militate against a recommendation that additional civil offences be excluded from military jurisdiction.
  3. Exercise of Military Jurisdiction in Appropriate Cases
    1. The Current State of Affairs
      1. The exercise of military jurisdiction over civil offences committed in Canada is currently governed by group orders and directives that guide the exercise of discretion by members of the military police and military prosecutors. In appropriate cases, they exercise that discretion in cooperation with the local civilian authorities.
      2. The Military Police Group Orders provide an extensive list of factors to be considered by members of the military police when deciding whether to investigate or to continue to investigate a complaint. These factors relate to the mandate of the military police, the resources needed to investigate the complaint, expediency and “solvability”Footnote 225 concerns and to CAF-specific issues, such as “impact on unit morale and cohesion”, “whether the rank or position of subject makes it important to pursue”, “military exigency” and “prejudice to good order or discipline”.Footnote 226
      3. These factors will in some cases lead to the conclusion that the civilian police authorities are better placed to investigate a complaint. For example, the commanding officer of the CFNIS has informed me that a complaint of a sexual assault committed off-base by a member of the CAF against a civilian victim would typically be referred to the civilian police authorities for investigation.Footnote 227
      4. If a military police investigation leads to a decision to lay charges or to recommend that charges be laid, the Military Police Group Orders provide that “the military justice system shall be considered as having primacy when choosing to proceed through either the civilian court system or the military justice system”.Footnote 228 If the investigation is conducted by the CFNIS,Footnote 229 a standard operating procedure states that investigators may be authorized by the commanding officer of the CFNIS to lay charges in the civilian justice system in “exceptional situations”.Footnote 230
      5. As an exception to such general primacy of the military justice system, the Military Police Group Orders provide that domestic violence, child assault and impaired driving offences committed in Canada “will normally proceed within the civil justice system”.Footnote 231 I am informed by the commander of the CFNIS that these exceptions are motivated by the existence in the civilian justice system of specialized resources for dealing with those matters.
      6. A person with the authority to lay charges who wishes to lay a charge for an alleged offence under paragraph 130(1)(a) must obtain pre-charge legal advice.Footnote 232 This advice is provided by military prosecutors “respecting all charges proposed by the CFNIS” and for “charges proposed by unit charge layers that must exclusively be tried by court martial”.Footnote 233
      7. A directive issued by the DMP highlights the process which military prosecutors giving pre-charge legal advice must follow, and the factors they must consider, to determine if the charges should proceed in the military or civilian justice system. The military prosecutor is instructed to carefully consider all relevant factors, including:
        • the degree of military interest in the case, as reflected by factors such as the place where the offence was alleged to occur, or whether the accused was on duty at the time of the alleged offence;
        • the degree of civilian community interest in the case;
        • the views of the victim;
        • whether the accused, the victim, or both are members of the CAF;
        • whether the matter was investigated by military or civilian personnel;
        • the views of the investigative agency;
        • geographic considerations such as the current location of necessary witnesses;
        • jurisdictional considerations where, for example, the offence was allegedly committed abroad;
        • post-conviction consequences; and
        • the views of the Commanding Officer, as expressed through the unit legal advisor, with respect to unit disciplinary interests.Footnote 234
      8. To make this determination, the assigned military prosecutor “may communicate directly with civilian authorities having concurrent jurisdiction, either before or after a charge is laid”, but always after consulting the appropriate Deputy Director of Military Prosecutions (“DDMP”).Footnote 235Where consensus is not achieved by consultation between the Prosecutor, civilian authorities and unit legal advisor”, it is up to the appropriate DDMP to “continue the consultation process to resolve the matter”.Footnote 236 No further conflict resolution mechanism is prescribed.
      9. Any charge laid in the military justice system which is to be tried by court martial will be referred to the DMP. The DMP then assigns a military prosecutor to conduct a post-charge review and to determine whether to “prefer” the charge. No accused may be tried by court martial unless the charges against him or her have been preferred.Footnote 237
      10. The DMP has issued another directive to guide this post-charge legal advice process. This directive is nearly identical to the pre-charge screening directive for the determination of whether charges should proceed in the military or civilian justice system. Both directives refer to the same factors.Footnote 238
      11. The majority of the Supreme Court of Canada stated in Stillman that “Crown counsel advised the Court during oral argument that, to his knowledge, there has not been a single instance in which military prosecutors and civilian prosecutors could not agree on which system should handle a particular matter. This speaks to the cooperation and mutual respect between prosecutorial authorities in these two systems”.Footnote 239
      12. This fact was reiterated by the DMP during my meeting with him. I was also informed that the DMP is a member of the Federal/Provincial/Territorial Heads of Prosecutions Committee, which meets at least twice each year. I understand that the DMP’s membership in this committee allows for the development of cooperative working relationships with the civilian heads of prosecutions. The DMP advised me that, in practice, the military and civilian prosecution services are not engaged in a continuous struggle to secure jurisdiction over matters. Informal phone calls suffice to resolve the very rare issues that may arise.
      13. To better understand the practical results of the current policy, I asked the Office of the JAG (“OJAG”) for a breakdown of the civil offences tried by courts martial and by summary trials over the past few years. I also asked whether, in its view, such offences had a military connection other than the status of the accused. Unfortunately, the OJAG advised me that “[p]ractically, there is [no] extant information that directly answers this query. The information that could bear on any inquiry as to nexus is widely dispersed in unit disciplinary registries in defence establishments across the country, and abroad and in military police reports”.Footnote 240 It nevertheless provided me with information taken from the records of disciplinary proceedings or statements of particulars of the offences tried by summary trial or by court martial from 2016 to 2020.
      14. According to the information provided, most of the civil offences tried by the military justice system during this period had a military connection beyond the status of the accused. For example, in some cases the offence was committed abroad, on a defence establishment or in military housing, or involved military victims or CAF property. For the remainder of the civil offences, the information provided was ultimately too skeletal to lend itself to informed analysis. In addition, it is likely that a substantial portion of the offences tried from 2016 to 2020 were investigated and charged in the midst of the uncertainty surrounding the outcome of the Stillman case. Therefore, it is not clear that past determinations of whether to proceed in the civilian or military justice systems would accurately predict the future approach to this issue.
      15. To allow subsequent reviewers to properly assess how the existing criteria for determining jurisdiction are being applied, I recommend that military prosecutors and members of the military police collect, retain and centralize data on the civil offences committed by persons subject to the CSD charged in either the military or civilian justice systems (subject, in the latter case, to the CAF being informed).
        • Recommendation #17. The Canadian Forces Military Police Group and Canadian Military Prosecution Service should collect, retain and centralize data on the civil offences committed by persons subject to the Code of Service Discipline charged in either the military or civilian justice systems. The data should, at a minimum, include the number of civil offences allegedly committed by persons subject to the Code of Service Discipline which formed the basis of charges, the nature of such offences, the rationale for the determination of which system the charges were proceeded in, the time elapsed between the complaint and the completion of the trial and the outcomes of the charges, including the punishments imposed if any.
      16. Although I have been told the current processes seem to have operated smoothly to date, I still have some concerns, even without the data described above.

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    2. Criticisms of the Current State of Affairs
      1. Insufficient Independence of Decision-Makers
        1. First, as noted by the dissent in Stillman, the decision to determine whether to proceed in the military or civilian justice system is currently exercised by members of the military police and military prosecutors who do not enjoy the same guarantees of independence as their civilian counterparts.Footnote 241 This may lead to an uneven and/or biased application of the criteria in the Military Police Group Orders and directives issued by the DMP.
        2. This is not a purely hypothetical concern. Members of the military police who participated in a town hall meeting with me shared anecdotal evidence that domestic violence offences committed between members of the CAF (which should generally be referred to the civilian justice system in accordance with the Military Police Group Orders) had sometimes been minimized as quarrels and disturbances.Footnote 242 In the result, they were classified as offences over which the military justice system enjoys exclusive jurisdiction.
        3. Certain commentators have suggested that the criteria to determine whether a civil offence will be tried in the military justice system should be listed in the NDA or enforced by the courts. I am not convinced that this would be appropriate in the context of a court martial system which is already criticized for its delays. I agree that an enforceable “military nexus” test would risk becoming the subject of pre-trial jurisdictional applications in an important number of cases, thereby “causing military courts to engage in an unwieldy and unhelpful threshold inquiry that distracts from the merits”.Footnote 243
        4. In my view, the solution to this concern is to bolster the independence of members of the military police and military prosecutors. I am not concerned about giving discretion to decision-makers who are sufficiently independent from the chain of command. Several recommendations contained in this Report are aimed at achieving this objective.Footnote 244 However, I am not prepared to recommend, in addition, that the discretion to determine the appropriate jurisdiction in which to pursue a civil offence committed by persons subject to the CSD be controlled by the courts.
      2. Substance and Transparency of the Policy Criteria
        1. My main concern with the factors specified in the Military Police Group Orders and directives issued by the DMP is that they are extremely broad and offer little clarity about the proper outcome in any given case. They also lack transparency given that (a) the factors to be considered by members of the military police and military prosecutors do not require them to work in a coordinated way; and (b) the Military Police Group Orders are not easily accessible to the public, unlike the directives issued by the DMP. This lack of transparency can easily be remedied.
          • Recommendation #18. The Canadian Forces Provost Marshal and Director of Military Prosecutions should coordinate the approaches of military prosecutors and members of the military police to the exercise of military jurisdiction over civil offences committed by persons subject to the Code of Service Discipline. The Canadian Forces Provost Marshal should also make the portions of the Military Police Group Orders on the exercise of military or civilian jurisdiction over such offences easily accessible to the public.
        2. As to the substance of the policy criteria themselves, I believe that a simple list of factors is insufficient guidance in light of the important consequences which the exercise of military jurisdiction entails.Footnote 245 I recommend that the members of the military police and military prosecutors commit to clear principles and presumptions. Such principles and presumptions would certainly remain general and be subject to exceptions. Courts should not have the power to review how authorities made their decision on where to proceed with charges. However, I believe such principles and presumptions would increase consistency and predictability in choices of jurisdiction and make them less dependent on the particular personalities of members of the military police or military prosecutors. Consistency and predictability are particularly desirable in light of the high turnover rates which, due to the nature of military postings, characterize occupations in the CAF.
        3. The United Kingdom offers a useful comparative example. A protocol on the exercise of jurisdiction over alleged civil offences committed by a person subject to service law in England and Wales, entered into by the Director of Service Prosecutions, the Director of Public Prosecutions and the Ministry of Defence, contains clear principles and presumptions on the exercise of their concurrent jurisdiction. This protocol states that “[t]he overriding principle is the requirement of fair and efficient justice”,Footnote 246 which is to be determined on the basis of factors such as the existence of linked cases, the availability of witnesses, the presence of a strong service disciplinary context, the need to have regard to the maintenance of discipline as one of the statutory purposes of sentencing and the appropriateness of the sentencing powers available in the civilian and military justice systems.Footnote 247 Importantly, the England and Wales Prosecution Protocol clearly indicates that offences alleged against members of the military should normally be dealt with in the civilian justice system if they “affect the person or property of civilians” or involve civilian co-accused, but should normally be dealt with in the military justice system in other situations.Footnote 248
        4. In the Canadian context, I believe the optimal solution would be for the DMP, the Director of Public Prosecutions and the provincial and territorial heads of prosecutions to reach a common understanding of the criteria to guide the determination of whether to pursue civil offences committed by persons subject to the CSD in the military or civilian justice systems. To the greatest extent possible, the military police and other Canadian police forces should also be involved in this endeavour.Footnote 249 I recognize, however, that this solution may pose practical challenges due to the sheer number of parties which would need to be involved. Even if no multilateral understanding is attempted or reached, however, nothing stops the DMP and Canadian Forces Provost Marshal from unilaterally defining, in clear language, the principles and presumptions described above.
        5. I will not attempt to exhaustively define such principles and presumptions. Due consideration should, of course, be given to the example provided by the England and Wales Prosecution Protocol. Another important principle for pursuing the case in the military justice system could be whether the offence has sufficient connection to the discipline, efficiency and morale of the CAF to justify the important repercussions on the accused, the victims and on the community at large. Presumptions could be drawn based on the military or civilian status of the victims or of the property involved in an offence, as in England and Wales. They could also be based on the nature of the offences and circumstances of their commission, taking into account the respective expertise and resources of the military and civilian justice systems, as well as the greater public confidence which may be enjoyed by the civilian justice system for dealing with particular offences.
        6. I wish to stress, however, that it is important to avoid the conclusion that any civil offence committed by a member of the CAF will have sufficient disciplinary aspects to justify proceeding in the military justice system. When Bill C-77 is fully implemented, section 55(2) of the NDA will provide that “the behaviour of persons who are subject to the Code of Service Discipline relates to the discipline, efficiency and morale of the Canadian Forces even when those persons are not on duty, in uniform or on a defence establishment”. However, the relevant question for determining where to proceed ought not to be the simple existence of a relationship to the discipline, efficiency and morale of the CAF. Rather, it must consider the intensity of that relationship, and the proportionality of the consequences that will flow from the determination of jurisdiction.
        7. It is also important to recognize that the civilian justice system is not entirely unable to assist in upholding the discipline, efficiency and morale of the CAF. Civilian courts are not prohibited from considering an accused’s military status in determining an appropriate sentence. Moreover, the decisions reached by a civilian court are public and may be publicized in an accused’s unit to achieve a deterrent effect on other members.
          • Recommendation #19. The Director of Military Prosecutions and Canadian Forces Provost Marshal should commit the Canadian Military Prosecution Service and the Canadian Forces Military Police Group to clear principles and presumptions to determine whether civil offences committed by persons subject to the Code of Service Discipline will be investigated and prosecuted in the civilian justice system or in the military justice system. Preferably, appropriate criteria would emerge from a multilateral understanding reached between the Director of Military Prosecutions, the Director of Public Prosecutions and the provincial and territorial heads of prosecutions, in consultation with the Canadian Forces Military Police Group and civilian police forces. However, the failure to attempt or to reach a multilateral understanding should not prevent the Director of Military Prosecutions and the Canadian Forces Provost Marshal from unilaterally refining the current criteria.

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    3. Lack of a Conflict Resolution Mechanism
      1. Another concern I have with the factors in the Military Police Group Orders and directives issued by the DMP is that they provide no satisfactory mechanism to resolve a jurisdictional conflict between the military and civilian authorities. The current solution if no consensus is reached is to continue consultations until it is.
      2. As discussed above, I have been told that no disagreements have arisen in the past. I do not expect recurring jurisdictional conflicts to emerge in the future if clear principles and presumptions are implemented. This does not, however, preclude the need for a conflict resolution mechanism in the unlikely event of a jurisdictional conflict.
      3. In England and Wales, in case of a disagreement on the exercise of jurisdiction, the Director of Public Prosecutions has the final decision, in keeping with the “established principle that where there are overlapping civilian and Service jurisdictions and authorities […], the civilian jurisdictions and authorities have precedence”.Footnote 250
      4. The principle of civilian jurisdictions taking precedence over military jurisdictions is not unknown to Canadian law. During the consideration of the National Defence Act by the House of Commons in 1950, the Honourable Brooke Claxton, then Minister of National Defence, explained that the domestic military jurisdiction over civil offences was required “to take care of the case where the civil court does not act or cannot act”.Footnote 251 Minister Claxton further explained that the civil authorities would enjoy supremacy over the military authorities in all cases where the civil authorities could act and were willing to act. As he explained, “[t]he civil authority is always supreme”.Footnote 252
      5. In my view, the same principle continues to prevail. In fact, it is evident in several aspects of the modern Canadian military. The Chief of the Defence Staff acts “under the direction of the MinisterFootnote 253and must issue or have issued “all orders and instructions to the Canadian Forces that are required to give effect to the decisions and to carry out the directions of the Government of Canada or the Minister”.Footnote 254 The CAF are “organized by or under the authority of the Minister”.Footnote 255 The outcomes of summary trials can be judicially reviewed by civilian courts. The verdicts and sentences imposed at courts martial can be appealed to the Court Martial Appeal Court of Canada (“CMAC”) and to the Supreme Court of Canada, both civilian courts. Any administrative or operational decision taken by the CAF is ultimately subject to the control of civilian authorities through the adoption of statutes, ministerial accountability or judicial review.
      6. The same principle of the civilian system taking precedence over the military system should apply when there are jurisdictional conflicts. This is entirely consistent with the military justice system’s status as an exceptional system of justice. None of this detracts from the qualification of the military justice system as a “full partner in administering justice alongside the civilian justice system”.Footnote 256
        • Recommendation #20. In the unlikely event of a conflict between civilian authorities and military authorities over the exercise of jurisdiction over civil offences committed by persons subject to the Code of Service Discipline, the civilian jurisdiction and authorities should have precedence.
  4. Exercise of Military Jurisdiction against Civilians, Former Members and Young Offenders
    1. Certain commentators consulted during my review have taken issue with (a) the existence of military jurisdiction over civil offences committed by civilians in certain circumstances;Footnote 257 (b) the continued existence of military jurisdiction over persons who have since the alleged service offence ceased to be subject to the CSD;Footnote 258 and (c) the possibility of exercising military jurisdiction over young offenders who would, in the civilian justice system, benefit from the protections of the Youth Criminal Justice Act.Footnote 259
    2. I have not received sufficient submissions to properly assess the prevalence of these situations and the potential consequences of these proposed reforms. At a minimum, further thought should be given to these issues and clear principles and presumptions should be formulated to deal with them. Guidance could, for example, be taken from the Wehmeier decision in which the CMAC terminated court martial proceedings against an accompanying civilian on finding, under section 7 of the Charter, that “the prosecution of the respondent in the military justice system [was] arbitrary because it [lacked] any connection with the objectives sought to be achieved by making accompanying civilians subject to the CSD”.Footnote 260 The CMAC stressed that the issue to be resolved in each case was “not whether the respondent should be prosecuted at all but whether the interest in having him tried in the military justice system is proportional to his loss of rights when tried in that system”.Footnote 261
    3. In making the following minimal recommendation, I should not be taken to disagree with proposed reforms which would be more substantial if a more thorough review determines they are desirable.
      • Recommendation #21. A working group should be established to conduct a review of the exercise of military jurisdiction over civil offences committed by young offenders and by civilians subject to the Code of Service Discipline and of the exercise of continuing military jurisdiction. The working group should consider the need for reform of the current jurisdictional rules and, if such need exists, make recommendations on the means of reform. The working group should include an independent authority, representatives from the Department of Justice Canada and representatives from the military justice system.
      • In the interim, clear principles and presumptions should be formulated for such exercises of military jurisdiction.
    4. Another issue is in pressing need of further consideration by the CAF. It has to do with the military justice system’s ability to discipline members of the Reserve Force. Currently, the members of the Reserve Force are subject to the CSD in limited circumstances only, such as when they are undergoing drill or training, in uniform, on duty or on active service.Footnote 262 As a result, I understand that there are important obstacles to holding some reservists accountable for conduct which is contrary to the values and ethics of the CAF and which reflects very badly on the institution, but in which such reservists engage in their own time.
    5. The issue is particularly acute when reservists engage in sexual misconduct or hateful conduct. Such behaviours cannot be prosecuted in the civilian justice system unless they reach the high thresholds of the criminal offences of sexual assault and hate speech, which they often do not. They can only be prosecuted in the military justice system if they are committed by a person subject to the CSD. Administrative remedial measures may to a certain extent be available against reservists who engage in such conduct. However, such measures are poor substitutes for disciplinary action.Footnote 263
    6. This issue has been brought to my attention by several CAF officials who I met during my review, including the commanders of the Canadian Army, Royal Canadian Navy and Royal Canadian Air Force, the Chief Reserves and Employer Support and commanding officers who attending town hall meetings with me. All agree that the CAF needs to be able to hold the members of its Reserve Force to at least certain key standards of conduct at all times.
    7. No simple solution was offered. On the one hand, there are valid reasons not to extend the applicability of the whole set of service offences to members of the Reserve Force at all times. Some service offences could unduly interfere with the personal freedom or other professional occupations of members of the Reserve Force. On the other hand, I am wary of devising alternative solutions which could have important policy repercussions without the benefit of submissions and information. I therefore recommend that this concern be the subject of a separate review.
      • Recommendation #22. A working group should be established to conduct a review of the challenges created by the limited application of the Code of Service Discipline to members of the Reserve Force. The working group should consider the necessity for the Canadian Armed Forces of being able to hold the members of its Reserve Force to its key standards of conduct at all times, especially for sexual misconduct and hateful conduct. The working group should make recommendations on means of reform to achieve this objective.

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