Court Martial Scheduling

DMP Policy Directive
Directive #: 017/18
Date: 1 September 2018
Cross Reference: Post-Charge Review

Subject: Court Martial Scheduling

Application of Policy

1. This policy applies to all Prosecutors for the scheduling of courts martial once disclosure has been provided to defence counsel.¹

Introduction

2. As stated by the Supreme Court of Canada in the case of R. v. Jordan²:

[2] [T]he Canadian public expects their criminal justice system to bring accused persons to trial expeditiously. As the months following a criminal charge become years, everyone suffers. Accused persons remain in a state of uncertainty, often in pre-trial detention. Victims and their families who, in many cases, have suffered tragic losses cannot move forward with their lives. And the public, whose interest is served by promptly bringing those charged with criminal offences to trial, is justifiably frustrated by watching years pass before a trial occurs.

[3] An efficient criminal justice system is therefore of utmost importance. The ability to provide fair trials within a reasonable time is an indicator of the health and proper functioning of the system itself. The stakes are indisputably high.

3. Although these comments in Jordan were made in the context of the civilian criminal justice system, they are as equally applicable to the military justice system. Those individuals charged with committing a service offence and tried through the military justice system may also suffer when they are not tried within a reasonable time. Victims are denied closure and uncertainty within the unit persists affecting its ability to achieve operational success.

4. In order for delay to be minimized, all military justice participants including investigators, prosecutors, defence counsel and military judges must coordinate their efforts and take positive steps to move a matter through the system in a more timely and efficient manner. Delay in any one file is rarely the result of the actions of any one particular participant. As such, all military justice participants bear a responsibility in the timely prosecution of files and so must ensure the necessary cooperation in moving matters through the system in order to ensure the effectiveness and efficiency of the military justice system.

Statement of Policy

5. Prosecutors shall take all best efforts to ensure that they schedule all courts martial, including pre-trial applications, in a timely manner.

Practice/Procedure

6. When a file is assigned to a Prosecutor, he or she shall ensure that disclosure is provided to defence counsel in accordance with the direction set out in DMP Policy Directive 003 (Post-Charge Review).

7. Once disclosure has been sent to defence counsel, Prosecutors shall inform the accused of any witness who he or she proposes to call in accordance with Queen’s Regulations and Orders article 111.11 as soon as practicable and, except in exceptional circumstances, no later than 15 days after providing disclosure.

8. Once disclosure and the list of witnesses have been sent to the accused, Prosecutors shall make best efforts to engage defence counsel within 30 days to discuss possible dates for court martial.

9. All efforts to engage defence counsel to discuss possible trial dates shall be documented and shall be placed in the Prosecution Case File. When documenting the content of the conversations with defence counsel, Prosecutors shall, where applicable, confirm that defence counsel was unprepared to schedule court martial dates and set out the reasons why defence counsel was unwilling to do so.

10. Where the Prosecutor was unsuccessful in setting a court martial date with defence counsel, to the extent possible, he or she shall provide defence counsel with a date as to when he or she will engage defence counsel in the future to discuss possible trial dates.

Scheduling Application

11. Despite the best efforts of the Prosecutor to try to set a date for court martial with defence counsel, it may be that he or she has been unsuccessful in setting a date. In such cases it may be necessary that the Prosecutor bring a scheduling application to request that a military judge order that a court martial be convened as soon as possible.

12. When determining whether to bring a scheduling application a Prosecutor shall, at a minimum, consider the following factors:

1. Whether the Prosecutor has made reasonable efforts to schedule a court martial with defence counsel or an unrepresented accused;
2. Whether the Prosecutor is of the opinion that there is no valid reason to justify why a court martial should not be scheduled; and
3. Whether the Prosecutor is of the opinion that the only way for a court martial to be scheduled in a timely manner is to make a scheduling application.

13. In those cases where the Prosecutor does not have final disposition authority in the matter, he or she shall make a written recommendation to the applicable authority setting out the factors which have been taken into consideration and requesting permission to make a scheduling application.

14. Where the Prosecutor does not have final disposition authority and has made a request to make a scheduling application, the applicable authority shall communicate his or her decision to the Prosecutor in writing.

Availability of This Policy Statement

15. This policy statement is a public document and is available to members of the CAF and to the public.

Footnotes

¹ Any reference in this policy to "Prosecutor" or "Prosecutors" refers to those officers who have been appointed to assist and represent the Director of Military Prosecutions (DMP) in the exercise of the powers given to the DMP by sections 165.11 to 165.13 of the National Defence Act and subject to any limitations as set out in the Canadian Military Prosecution Service Policy Manual.

² [2016] 1 S.C.R. 631.