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III. Service Offences and Punishments

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  1. Coherence of the Body of Service Offences
    1. Parties to Offences, Attempts and Conspiracies
    2. Section 129 of the National Defence Act
  2. Adequacy of Other Service Offences
  3. Punishments
    1. Range of Available Punishments
    2. Meaning and Effect of Certain Military Punishments
  1. Division 2 of Part III of the National Defence ActFootnote 264 (“NDA”) details the service offences which persons subject to the Code of Service Discipline (“CSD”) can be charged or dealt with and tried in the military justice system.
  2. Several service offences are specific to the military context (“purely military offences”)Footnote 265. Disobedience of a lawful commandFootnote 266, absence without leave,Footnote 267 desertionFootnote 268, and drunkennessFootnote 269 are offences of this type. However, acts or omissions of persons subject to the CSD punishable under the federal laws of CanadaFootnote 270 (“civil offences”) or under the laws applicable in any place outside Canada where they have been committedFootnote 271 (“foreign offences”) also constitute service offences.
  3. The NDA also prescribes the punishments which may be imposed for all service offences. Some punishments, like imprisonment and fines, are equivalent to those available for criminal offences in the civilian justice system. Others are specific to the Canadian Armed Forces (“CAF”), although similar to sanctions available in other disciplinary regimes (“military punishments”). The military punishments include dismissal from Her Majesty’s service (with or without disgrace), detentionFootnote 272, reduction in rank, forfeiture of seniority, severe reprimands, reprimands, confinement to ship or barracks, extra work and drill and stoppage of leave.Footnote 273
  4. I have some concerns about the current body of service offences which, in my view, is incoherent in many ways. A coherent structure is important to ensure the predictability of the law. A particular conduct should entail identifiable consequences with a fair degree of certainty. For example, the nature of the service offence which an accused is charged with determines (a) whether a summary trial may be held and the possibility for the accused to elect trial by court martial;Footnote 274 (b) the criteria for pre-trial custody;Footnote 275 (c) the applicability of certain processes, such as those which allow forensic DNA analysis and the identification, by fingerprints or otherwise, of accused persons and offenders;Footnote 276 and (d) the punishments available on conviction, including the particulars orders that may be made, such as orders to comply with the Sex Offender Information Registration ActFootnote 277. As well, the possibility that discretionary decisions by particular actors in the system can make the consequences of a particular conduct more or less serious should be minimized.
  5. I make certain recommendations to improve the coherence of service offences in the NDA. However, my recommendations are not a substitute for a thorough review by military justice experts of the general adequacy of the current body of service offences.
  6. I also have concerns about the meaning and effect of certain military punishments, which do not appear to be well understood, even by the military justice actors who deal with them on a daily basis.
    1. Coherence of the Body of Service Offences
      1. Parties to Offences, Attempts and Conspiracies
        1. Sections 72, 128 and 129(3) of the NDA identify who may be parties to service offences as well as attempts and conspiracies to commit service offences. They differ in many ways from the equivalent civilian rules, contained in sections 21 to 24 and 463 to 465 of the Criminal Code.Footnote 278 Three examples suffice to illustrate the problems which may arise as a result of these differences.
        2. The first example is in relation to attempts. In the military justice system, an attempt to commit a purely military offence is an “act, conduct, disorder or neglect to the prejudice of good order and discipline”.Footnote 279 Those are punishable by dismissal with disgrace from Her Majesty’s service or less punishment, which includes imprisonment for less than two years.Footnote 280 The Canadian Military Prosecution Service (“CMPS”) rightly pointed out “the bizarre result that, in a significant number of cases, the maximum punishment available for an attempt [is] greater than for the actual offence”.Footnote 281 For example, a person who absents himself or herself without leave is liable to imprisonment for less than two years or to less punishment,Footnote 282 but a person who unsuccessfully attempts to do so is, in addition, liable to dismissal with disgrace from Her Majesty’s service.
        3. The second example concerns conspiracies. Under section 128 of the NDA, a conspiracy to commit “any offence under the Code of Service Discipline” is an offence subject to a maximum punishment of imprisonment for seven years. Here also, the maximum punishment for the conspiracy often significantly exceeds the maximum punishment for the actual commission of a service offence.
        4. This section also makes it a service offence to conspire in the commission of civil and foreign offences. Let us consider, for example, the case of a person subject to the CSD conspiring to commit the Criminal Code offence of public incitement of hatred. If the charge in the military justice system is for the Criminal Code offence of conspiracy for public incitement of hatred, the person will be liable to imprisonment for two years or less.Footnote 283 But if the charge is for the service offence of conspiracy for public incitement of hatred, the person will instead be liable to imprisonment for seven years or less.Footnote 284
        5. The solution adopted in the civilian justice system is more tailored to the circumstances. With limited exceptions, attempts to commit indictable offences are punishable by a lesser punishment than the actual commission of the offence, most often “one-half of the longest term to which a person who is guilty of [the] offence is liable”.Footnote 285 For conspiracies for indictable offences, they are generally punishable by “the same punishment as that to which an accused who is guilty of that offence would, on conviction, be liable”.Footnote 286
        6. The third and final example relates to the act of counselling or procuring offences. In the military justice system, a person who “counsels or procures any person to commit” a service offence is a party to that offence.Footnote 287 The person who counselled is not guilty of the offence counselled unless it is actually committed. If it is not, the counsellor may nonetheless be charged under subsection 129(1) of the NDA for having engaged in conduct prejudicial to good order and discipline.Footnote 288 That distinct service offence, as mentioned above, is always punishable by dismissal with disgrace from Her Majesty’s service or by less punishment, including imprisonment for less than two years.Footnote 289
        7. The solution in the Criminal Code is preferable. First, the Criminal Code makes the person who counselled a party to (a) the offence counselled, “notwithstanding that the offence was committed in a way different from that which was counselled”;Footnote 290 or (b)“every offence that the other commits in consequence of the counselling that the person who counselled knew or ought to have known was likely to be committed in consequence of the counselling”.Footnote 291 Second, if the indictable offence counselled is not committed, the person is liable to the punishment which could be imposed for an attempt.Footnote 292
        8. I recommend that the rules contained in sections 21 to 24 and 463 to 465 of the Criminal Code be reproduced, as appropriate, in the NDA. The rules of the NDA, as modified, should not apply to civil or foreign offences incorporated as service offences under subsections 130(1) or 132(1). For those, the civil or foreign rules governing the offences at issue can already be relied upon, and duplication could create risks of divergent outcomes for the same conduct based on discretionary decisions of the persons authorized to lay charges.
          • Recommendation #23. Sections 72 and 128 of the National Defence Act should be amended to mirror, as appropriate, sections 21 to 24 and 463 to 465 of the Criminal Code. Subsection 129(3) and the reference to section 72 in subsection 129(2) of the National Defence Act should be repealed. The rules of the National Defence Act on the identification of parties to offences as well as attempts and conspiracies to commit offences should not apply to service offences under subsections 130(1) or 132(1) of the National Defence Act.
      2. Section 129 of the National Defence Act
        1. Subsection 129(1) of the NDA provides that “[a]ny act, conduct, disorder or neglect to the prejudice of good order and discipline” constitutes a service offence. Pursuant to subsection 129(2), this prohibition extends to any contravention of the NDA, of “regulations, orders or instructions published for the general information and guidance of the Canadian Forces or any part thereof”, or of “any general, garrison, unit, station, standing, local or other orders”. But it is not limited to those situations.Footnote 293
        2. Subsection 129(1) of the NDA punishes conduct going against “the standards of the day” in military conduct and ethics.Footnote 294 The accused may, in several cases, be convicted of conduct which is not specifically prohibited anywhere.
        3. The Court Martial Appeal Court of Canada (“CMAC”) confirmed on two occasions that subsection 129(1) of the NDA is not so vague as to be unconstitutional, provided that the required particulars are properly provided to a person charged under that section.Footnote 295 Nonetheless, the prohibition remains extremely vague.Footnote 296 Its vagueness is compounded by differences in the French and English versionsFootnote 297 and by the judicial interpretation which has been made of it.
        4. Indeed, the CMAC recently decided that no evidence of actual prejudicial effects on good order and discipline needs to be introduced by the prosecution. “If the conduct tends to or is likely to adversely affect discipline, then it is prejudicial to good order and discipline”.Footnote 298 And the triers of facts can infer prejudice from the circumstances by applying their military experience and general service knowledge. They err by failing to use such inferential reasoning in circumstances where it is possible to do so.Footnote 299
        5. Some commentators have called for the repeal of subsection 129(1). I disagree with their view. I believe that the necessity to maintain the discipline, efficiency and morale of the CAF justifies the existence, in the military justice system, of a power to sanction conduct shown to be prejudicial to good order and discipline, even if such conduct is not otherwise prohibited by the NDA.Footnote 300
        6. But I agree that there is something wrong with the current use of that power. In order to make the law clear and predictable, subsection 129(1) should only be a residual power, used when no other service offence exists to prohibit a specific behaviour. But year after year, it is among the two service offences most commonly adjudicated by service tribunals.Footnote 301 This is hardly reconcilable with the notion of a residual power. I therefore recommend that new service offences be created, and that the scope of section 129 be limited.
          1. Creation of New Service Offences
            1. Sexual misconduct is currently prohibited under subsection 129(1). Indeed, where it does not amount to sexual assault under the Criminal Code, sexual misconduct is not directly prohibited by the NDA. Rather, the prohibition is contained in a Defence Administrative Order and Directive (“DAOD”).Footnote 302 Sexual misconduct can form the basis of a service offence because contravening a DAOD is deemed by subsection 129(2) to constitute conduct prejudicial to good order and discipline. The same logic applies to hateful conduct, prohibited by another DAOD.Footnote 303
            2. Therefore, the same offence currently punishes serious misconduct such as sexual misconduct and hateful conduct on the one hand, and minor misdemeanours such as failure to have properly shaved or made one’s bed on the other hand. This obviously trivializes the serious misconduct. Concluding otherwise disregards the “social legibility and the expressive and norm setting function that a legal system is intended to serve”.Footnote 304
            3. From the perspective of CAF members’ ability to adapt their behaviour to the applicable rules, a clear statutory prohibition is also preferable to a prohibition contained in a massive and constantly-changing body of regulatory and administrative measures.
            4. In my view, new service offences should be enacted whenever it is necessary to clearly denounce specific conduct as unacceptable. In addition to providing transparency and setting clear norms for acceptable behavior, this solution would allow Parliament to tailor the application of military justice processes and the punishments deemed appropriate to the specific offences enacted.
            5. Sexual misconduct and hateful conduct should certainly be enacted as distinct service offences at this time. But the CAF should also review the charges brought under subsection 129(1) on an ongoing basis, paying attention to emerging trends in order to be able to request the enactment of new service offences as appropriate.
            6. The Directorate of Defence Counsel Services (“Directorate of DCS”) suggested that subsection 129(2) should be re-enacted as a self-standing service offence.Footnote 305 The military prosecutors who briefed my team were also in agreement with this recommendation.
              • Recommendation #24. The National Defence Act should be amended to add distinct service offences for sexual misconduct and hateful conduct.
              • Paragraph 129(2)(a) of the National Defence Act should be amended by excluding provisions creating service offences from its operation. Subsection 129(2) of the National Defence Act should then be re-enacted as a distinct, self-standing service offence. The new service offence should not describe a prohibited contravention as “an act, conduct, disorder or neglect to the prejudice of good order and discipline”.
            7. The Directorate of DCS also suggested a service offence for mistreatment of detainees. Chief Justice LeSage, for his part, suggested distinct service offences for negligent discharge of a firearm.Footnote 306 There may be other examples. I have not identified all types of conduct that warrant the creation of new service offences. As I will discuss below, this endeavour needs to be completed elsewhere.
          2. Scope of Subsection 129(1) of the National Defence Act
            1. The creation of new service offences will have a limited impact if charges under subsection 129(1) of the NDA can be laid for conduct specifically prohibited by other service offences.
            2. In theory, subsection 129(5) of the NDA already prohibits this practice by stating that “[n]o person may be charged under this section with any offence for which special provision is made in sections 73 to 128 […]”. However, this provision has serious flaws. It immediately counteracts the prohibition by adding that “[…] the conviction of a person so charged is not invalid by reason only of the charge being in contravention of this subsection unless it appears that an injustice has been done to the person charged by reason of the contravention”.Footnote 307 Moreover, the prohibition in subsection 129(5) does not extend to civil offences and foreign offences incorporated as service offences by subsections 130(1) and 132(1).Footnote 308
            3. I have been informed by both the Directorate of DCS and the CMPS that charges under subsection 129(1) are frequently laid as alternative charges. In my view, this is partly a result of the restrictive provisions of the NDA as to “cognate” offences.Footnote 309 When there is doubt that any other service offence charged has been committed, principal or alternative charges under subsection 129(1) are currently the only way to preserve the possibility of conviction for conduct prejudicial to good order and discipline.Footnote 310
            4. I understand that alternative charges under subsection 129(1) often result in plea deals where the accused pleads guilty to the charge under subsection 129(1) and the other charges, sometimes laid under the Criminal Code, are withdrawn or stayed by the prosecution.Footnote 311
            5. In my view, more can be done to ensure that charges under subsection 129(1) are only laid in circumstances where no other charges can be laid. I recommend that subsection 129(5) be amended to address the shortcomings identified above. I also recommend that conduct prejudicial to good order and discipline be recognized as a cognate offence in respect of any of the purely military offences, but not in respect of civil or foreign offences.
              • Recommendation #25. Subsection 129(5) of the National Defence Act should be amended to provide that “[n]o person may be charged under this section with any offence for which special provision is made in sections 73 to 128, 130 or 132”, without further caveat. Subsection 129(6) of the National Defence Act should accordingly be repealed.
              • A subsection should be added to section 137 of the National Defence Act. It should provide that a person charged with a service offence other than an offence under subsections 130(1) or 132(1) may, if neither the complete commission of the offence nor an attempt to commit the offence are proved, be found guilty of an offence under subsection 129(1) provided that the evidence establish an act, conduct, disorder or neglect to the prejudice of good order and discipline.
            6. In practice, if my recommendations are implemented, military judges or presiding officers will, at trial, need to be satisfied on the basis of the evidence and submissions that an accused cannot be convicted under other service offences prior to entering a verdict of guilty under subsection 129(1) of the NDA. For their part, military prosecutors will need to give serious consideration to whether other service offences are disclosed by the evidence before agreeing to a plea of guilty under subsection 129(1).
            7. The availability of subsection 129(1) as a cognate offence will hopefully avoid frequent reliance on charges under this provision. If so, it will allow future reviewers to have a clear view of the conduct which truly falls within the residual scope of subsection 129(1) and to make recommendations accordingly.
    2. Adequacy of Other Service Offences
      1. A number of other concerns were brought to my attention in relation to service offences. For example, I was told by the Directorate of DCS that many of them use terminology which is now obsolete in light of the evolution of the international law of war.
      2. There was also a concern that conduct prohibited by the Criminal Code may be either “undercharged” or “overcharged” as purely military offences. I have attempted to address this concern in respect of subsection 129(1), but it exists more generally. For example, Professor Elaine Craig has noted that sexual assault at times results in convictions for cruel or disgraceful conduct,Footnote 312 a purely military offence punishable by a maximum of five years of imprisonment.Footnote 313 Conversely, Colonel (retired) Michel Drapeau noted that some purely military offences appear duplicative of Criminal Code offences, but establish higher maximum punishments.Footnote 314
      3. Some submissions were made by the Office of the Judge Advocate General (“OJAG”) about the service offence of maiming or injuring oneself enacted in paragraph 98(c) of the NDA.Footnote 315 The repeal of this paragraph is currently proposed by a private member’s bill in the House of Commons.Footnote 316 The OJAG recommends that the service offence be kept, but that the notes to section 103.31 of the QR&O be amended to “confirm that self-injurious conduct related to mental illness is excluded from the scope of intent and application of the provision”.Footnote 317
      4. These recommendations require expertise in the international law of war, an extensive comparison of the current body of purely military offences and the Criminal Code, and an in-depth understanding of the context in which service offences considered as problematic could be committed. Recommendations of this sort are best left to the military justice actors whose experience would allow them to make informed decisions in this regard.
        • Recommendation #26. In the performance of her superintendence of the administration of military justice in the Canadian Armed Forces, the Judge Advocate General should collaborate with the Canadian Military Prosecution Service and the Directorate of Defence Counsel Services to conduct regular reviews of the service offences contained in the National Defence Act.
        • Such reviews should aim to (a) identify obsolete or duplicative service offences; (b) assess the desirability of enacting new service offences; and (c) consider the amendments which would be necessary or desirable. The results of these reviews should be used to request the enactment by Parliament of appropriate amendments to the National Defence Act.
    3. Punishments
      1. Range of Available Punishments
        1. Chief Justice Lamer recommended “a comprehensive review of the sentencing provisions of the National Defence Act with a view to providing for a more flexible range of punishments and sanctions, as is available under the civilian criminal justice system”.Footnote 318 Chief Justice LeSage made the same recommendation.Footnote 319
        2. Their recommendations were implemented. Among other things, Bill C-15Footnote 320 introduced intermittent sentences,Footnote 321 absolute dischargesFootnote 322, restitution ordersFootnote 323 and suspended imprisonment or detentionFootnote 324 in the NDA. However, some commentators took issue with the fact that probation, conditional discharges and conditional sentences of imprisonment were not, at the same time, made available in the military justice system.
        3. As a general principle, I agree that the punishments that judges may impose in civilian courts should be available in the military justice system as well. Some have noted that there are currently no probation officers in the CAF to enforce the conditions of probation orders, discharges or custodial sentences. I do not believe this to be a valid objection. As I was told by Commander Mike Madden, a former legal officer of the CAF and one of the authors of the Court Martial Comprehensive Review Report,Footnote 325 the control of the CAF over its members is already all-encompassing.
          • Recommendation #27. In the performance of her superintendence of the administration of military justice in the Canadian Armed Forces, the Judge Advocate General should give consideration to making probation, conditional discharges and conditional sentences of imprisonment available options in the military justice system.
      2. Meaning and Effect of Certain Military Punishments
        1. My most serious concern about the available punishments relates to the meaning and effect of the military punishments of forfeiture of seniority, severe reprimand and reprimand. Both the CMPS and Colonel DrapeauFootnote 326 told me that those punishments had no practical consequences. In particular, the CMPS made the following submission:
          • Some punishments have lost their meaning and no longer have any identifiable effect beyond the fact that they hold a place in the scale of punishments. For example, while there may have been a time where forfeiture of seniority had a financial and career impact, this is no longer true. It has no known tangible effect. Severe reprimand and reprimand appear to only be symbolic, and without any real distinction. A review should be conducted in order to either attach tangible effects to each of these punishments or they should simply be abolished.Footnote 327
        2. The issue is not novel. Chief Justice Lamer reported that, in the course of his review, “many members [had] raised the issue as to whether a real distinction exists between the punishments of reprimand and severe reprimand and whether these punishments should be retained”.Footnote 328 He recommended that additional guidance on their use be provided.
        3. His recommendation was not implemented. I was informed that “a working group was created in the autumn of 2018 by the [Canadian Armed Forces Chief Warrant Officer] with the help of the [Judge Advocate General Chief Warrant Officer] to define reprimand and severe reprimand”.Footnote 329 While some preliminary work was done, the task subsequently fell down in the priority list and was not pursued.
        4. It has been almost twenty years since Chief Justice Lamer made this recommendation. It has obviously not been given the priority it deserves. It is important that the meaning and effect of severe reprimand and reprimand be clarified in the QR&O. This is especially true given that these sanctions will be available both in courts martial for service offences and in summary hearings for service infractions once Bill C-77 comes into force.Footnote 330
        5. It does not appear complicated to describe the practical consequences of severe reprimands and reprimands. I understand that the officers of the CAF who participated in two summary trial working groups in 2016 “ultimately reached near consensus that severe reprimands and reprimands should have essentially two effects: they should prolong the period before which a person can be considered for promotion, and they should prolong the period before which a person is eligible to receive a Canadian Forces Decoration (CD) and other distinguished service honours”.Footnote 331
          • Recommendation #28. The Queen’s Regulations and Orders for the Canadian Forces should, prior to the entry into force of An Act to amend the National Defence Act and to make related and consequential amendments to other Acts, SC 2019, c 15, be amended to clarify and distinguish the practical effects of severe reprimands and reprimands.
          • If practical effects can be attached to the punishment of forfeiture of seniority, they should be clarified in the Queen’s Regulations and Orders for the Canadian Forces. If not, this punishment should be abolished.

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