Chapter 11 – Status and Institutional Structure of a Prosecution Service

11.1 Introduction

As discussed in Chapter 7, there are several aspects of the current system of prosecution of service offences that detract from the overall effectiveness, efficiency, and legitimacy of the court martial system overall. For example, on efficiency and effectiveness, the prosecution system’s ability to achieve proportionate financial and human resource costs, and to contribute to the generation of accurate / correct and timely outcomes appear to leave room for improvements. Additionally, from a legitimacy perspective the prosecution service faces challenges relating to perceptions fairness, transparency, and intelligibility.

This chapter discusses a number of aspects of the prosecution service that could be changed such as modifying the current military model of prosecutions, the creation of a specialized civilian prosecution service, and the assignment of military prosecutions to civilian prosecutors within the Public Prosecution Service of Canada (PPSC).

Prior to describing these representative options in detail, as a preliminary consideration, given both the recommendations of the Bronson Report (DMP) and the LeSage Report, all of the options discussed in this chapter could also include provisions requiring a CO to provide, and the relevant Director of Prosecutions to consider, input to the prosecutors relevant to their decision to prosecute, and relevant to the appropriate sentence in the event the accused person is found guilty.¹ The CMCRT notes that QR&O Chapter 109 already permits but does not require COs and referral authorities to provide recommendations to the DMP, but the DMP is not obligated to consider these recommendations. It is estimated that adopting this approach would assist the prosecution service in contributing to the generation of accurate / correct outcomes and in appropriately contributing to the expression of community condemnation of misconduct by military personnel.

Furthermore, given Assumption #1, all of the options could be adapted to provide that the responsibility for laying charges for criminal misconduct would be assumed by prosecutors instead of Commanding Officers or military police personnel from the National Investigation Service.² Within the current court martial system, once a charge has been laid, it is referred to a Regional Military Prosecutor, who determines in consideration of a number of factors whether to prefer (i.e.: proceed with) a charge. This process not only causes delay but can have a detrimental effect on discipline in cases where the prosecutor decides not to prefer a charge that a CO has laid, since the prosecutor’s decision can appear to undermine the CO’s decision.³ Shifting the authority to lay charges to prosecutors would likely result in significant gains in achieving timely outcomes (since less decision-makers would be involved in the process of determining whether a charge should proceed to court martial), transparency (since published prosecution service policies generally lay out a uniform test for laying a charge, and often permit or require prosecutors to explain their decisions to affected stakeholders), and intelligibility (since this change would put charge-laying decisions into the hands of justice system professionals, as within the civilian criminal justice system), thereby promoting efficiency and in the legitimacy of the system.⁴ All options discussed below could incorporate provisions for prosecutors to become charge-layers.⁵

An associated option could also include providing for better communication mechanisms between the prosecution service and members of the military chain of command, in order to promote mutual understanding of the roles and concerns of each group. The CMCRT notes that the current DMP is making extensive efforts to foster communication with senior CAF leaders, but also notes that some of the CAF leaders who were consulted as part of the current review continue to feel that reasons for decisions within the prosecution service could be provided more explicitly and clearly in many cases.

In each of the options described below, it would be possible to structure the relevant prosecution on either a regionalized or a centralized basis. On the one hand, regionalization may offer benefits in terms of reducing travel costs of prosecutors that would contribute to the achievement of proportionate financial and human resource costs. On the other hand, however, the extra administrative support overhead costs that might be associated with regionalization (such as maintaining multiple office sites across Canada, and some staff to support prosecutors at each site) may exceed the costs of travel that would otherwise be incurred in a centralized model. It is not immediately apparent whether a regionalized or a centralized prosecution service would be more capable of promoting proportionate financial and human resource costs, so each option below could be adapted into both regionalized and centralized variants.

Finally, as a preliminary consideration, the CMCRT notes that significant progress toward producing more timely outcomes could potentially be made by expediting the referral of charges to the prosecution service. If, for instance, a charge were to be sent immediately to the prosecution service after it is laid, then approximately 100 days of delay that currently exists between the time a charge is laid and the time the charge is referred to the DMP could be eliminated.⁶ Upon receiving a charge, the prosecution service could then immediately begin assessing whether to proceed with the charge at a court martial (by considering the sufficiency of the evidence), while concurrently seeking input from relevant military authorities at the unit, formation, or higher level, about the CAF’s interest in a prosecution at a court martial.⁷ The CMCRT notes that – while not directly related to the current prosecution system – this option for reducing delay would be highly beneficial, and would still permit prosecutors to acquire information about the military interest in a case that they need, albeit in a more expeditious manner.

The below sections will examine three representative options related to how the prosecution services could be structured to improve upon various features of the current court martial system and have a positive impact on the effectiveness, efficiency and legitimacy of the court martial system overall.

11.2 Common Elements of Options 1 and 2

There are certain elements that are shared by Options 1 and 2 that could increase transparency and intelligibility. First, both of these options would continue to maintain a separate prosecution service for the prosecution of service offences, distinct from the civilian prosecution service in the civilian criminal justice system. The head of the separate prosecution service would need to be a lawyer with at least ten years good standing at the bar of a province and would serve for a term and tenure similar to that of the civilian federal Director of Public Prosecutions (DPP).⁸ Also similar to the DPP model, these options could provide for a selection committee that would assess candidates for the position and make recommendations to the Minister.⁹ The head of prosecutions would be appointed by the Governor in Council, on the recommendation of the Minister of National Defence and would be appointed for a term of not more than seven years.¹⁰ The head of prosecutions would not be eligible to be reappointed for a further term of office.¹¹ This mirroring of the DPP scheme may be a more familiar and comprehensible structure and may increase the intelligibility of the system.

Second, under Options 1 and 2, the head of military prosecutions would clearly act under the supervision, and on behalf, of the Minister of National Defence, instead of the JAG. This change could reduce perceptions expressed by some stakeholders that the current governance structure for the military prosecution service is challenged in terms of fairness and intelligibility.¹² Further, under this option, the head of prosecutions would have his/her own budget as a separate line item within the Department of National Defence budget. This budget would include funds for the administrative costs of the Office, payment of the costs of witnesses for the prosecution, and any other costs associated with the prosecution of cases.¹³ Additionally, the administrative independence that these options would provide would permit the head of the prosecution service to more directly control the selection or hiring of prosecutors, and the specialized prosecutorial career progression of these prosecutors when compared to extent of the DMP’s control over these matters within the current system – all of which could assist the prosecution service in contributing to the generation of accurate / correct outcomes through expertise and to timely outcomes and proportionate human resource costs as the prosecutors will be able to fulfill their roles more efficiently due to a greater level of experience. Under these options, the head of prosecutions would be accountable to the Minister for the time and expenses expended under this budget.¹⁴

Third, under both of these options, there could be a reduction in the number of full-time prosecutors. As discussed in Chapter 7, there are currently approximately 17 full-time prosecutors¹⁵ who in 2016-2017 handled a total of 300 file (the highest number in the last 4 years).¹⁶ This results in approximately 17.6 files per military prosecutor for the year.¹⁷ By way of contrast, the federal prosecution service employs, or otherwise contracts out, prosecution services to 945 lawyers and handles 72,358 files.¹⁸ This results in approximately 76 files per civilian prosecutor per year. Even acknowledging that there may be differences in the complexity of the files considered, the quality of investigations, the extent of travel required, and the processes by which files are referred to the respective prosecution services, these numbers seem to suggest that a significant reduction in the number of full-time equivalent prosecutors should be possible.¹⁹ In order to implement modest change incrementally and to account for the civilian work placements of prosecutors (discussed in the Option 1 below), the travel time required to appear at courts martial, and to provide for unforeseen circumstances (such as prolonged periods of illness or maternity / paternity leave), these options would reduce the number of prosecutors in the prosecution service to an initial level of approximately half the size of the current staffing levels. This change could increase the proportionality of financial and human resource costs of the prosecution service, as discussed separately in the options below.

Fourth, under both of these options, there would be a requirement for the prosecutors to complete work placements with other prosecution services for at least six to twelve months upon being assigned to the prosecution service and for at least three continuous months after that in order to increase their criminal law expertise. ²⁰ It is estimated that this would increase the generation of accurate / correct outcomes.

11.3 Option 1: Military Model – Military officer as Director of Military Prosecutions and Military prosecutors

Under Option 1, there would continue to be a military prosecution service led by a military legal officer appointed as Director of Military Prosecutions (the DMP).

Under this option, the DMP would continue to be assisted by military prosecutors.²¹ This option would create a sub-occupation of “Military Prosecutor” within the “Legal Officer” occupation, and the functional/managing authority for this sub-occupation would be the DMP. The DMP would have the sole authority to select military prosecutors – ideally from among those who are interested and have shown proficiency in criminal law. Under this option, a career litigation track for military prosecutors would be intended,²² with some possibility for military prosecutors to return from this career track at their request.²³ Further, military prosecutors would be required to work in placements with civilian prosecution services for at least six to twelve months upon being selected into the “Military Prosecutor” sub-occupation, and at least three continuous months per year after that.²⁴

Under this option, the DMP and military prosecutors would – as a matter of policy, and in a manner similar to investigators from the National Investigation Service – wear civilian clothing as their day-to-day dress.²⁵ Additionally, rather than wearing a uniform for trial, military prosecutors would robe in the same way that counsel robe for appearance in Superior Court within Canada’s civilian justice system.²⁶

Lastly, under this option, (and in addition to the current possibility for the DMP to rely upon reserve force members and the appointment of “special prosecutors”²⁷) there would be provision for the appointment of civilian prosecutors in specific cases, to provide the DMP with flexibility to use civilian counsel as agents acting on the DMP’s behalf when required.²⁸

11.3.1 Assessment of Option 1

It is assessed that relative to the current court martial system, this option could significantly increase the efficiency and effectiveness of the current court martial system based on a potential increase in proportionate financial and human resources costs, timely outcomes, and in the generation of accurate / correct outcomes.

First, this option would provide for a reduction in the number of military prosecutors of approximately one half (as a maximum initial level of staffing). This should represent a significant decrease in the expenditures of the current military prosecution service, down from approximately $3 million²⁹ to an estimated $2 million – assuming that a reduction in the number of prosecutors would also lead to some reduction in civilian support staff and operating and maintenance costs of the prosecution service, but not necessarily a reduction in travel costs). As a result of this decrease, there would be a corresponding decrease in the cost of prosecution services per court martial from approximately $48,000 to $32,000, assuming the same number of court martial trials.³⁰ These decreases represent the potential for significant savings and a decrease in the financial costs of the system.

Additionally, as this option would create a military prosecutor sub-occupation and a “career litigation” track, allowing for essentially indefinite periods of employment as a military prosecutor and a lower turnover rate within the military prosecution service, if desired by the DMP and the military prosecutor,³¹ and the requirement for work placements, the level of criminal law expertise should correspondingly increase, thereby increasing the military prosecution service’s ability to achieve more accurate / correct and timely outcomes. ³² This is primarily due to the fact that with more specialization among the military prosecutors, less time should be required per file, which should allow military prosecutors to take on more files per prosecutor. It should be noted that, from a human resources perspective, the creation of a sub-occupation within the legal officer occupation and a “career litigation” track could be perceived as career-limiting for those legal officers interested in a broader career with the Office of the JAG, which could limit the number of legal officers interested in military prosecutions.³³ However, as the “career litigation” track would be solely managed by the DMP, the various career opportunities within the military prosecution service could be of specific interest to those legal officers with a special interest in litigation work. Additionally, the sub-occupation of military prosecutions within the broader legal officer occupation would still permit (but not guarantee) transitions out of the military prosecution service back into the Office of the JAG under defined circumstances (through a sub-occupation transfer back to legal officer), so there would be some possibility for military prosecutors who wish to be involved in the broader work of the Office of the JAG to transfer back to such work. It should be noted, however, that the creation of “career litigation” track may contribute to a decrease in accurate / correct outcomes as there may be a decrease in the military expertise of the prosecution service.

It is estimated that, under this option the court martial system would likely be perceived as more fair, transparent, and intelligible than at present. First, as this option (combined with the common elements shared with Option 2 discussed above) would make the DMP responsible to the Minister of National Defence, a civilian political authority, and not the JAG, a senior military officer, there could be an increase in perceived transparency because it might alleviate any perceptions that the JAG or any other senior military authority to might inappropriately influence the DMP. Further, as the DMP would have management of his or her own budget and management of the military prosecutors’ careers, this could also increase transparency in respect of posting, promotion, honours and awards, and all other manner of decisions regarding the careers of military prosecutors that are currently influenced by legal officers from outside of the office of the military prosecution service. However, the DMP and the prosecution service could still be perceived by some individuals (both from the broader public and the CAF) as being less fair because there would continue to be a separate office of military prosecutions, composed of military officers and there are some who believe that it is impossible for someone in uniform to make decisions objectively and without bias about a fellow member of the profession of arms. It is also possible that this military presence within the prosecution service would result in a perceived lack of independence, regardless of whether the Director of Military Prosecution reports directly to the Minister of National Defence.³⁴

11.4 Option 2: Civilian DND Model – DND Civilian Director of Service Prosecutions and DND civilian prosecutors

Under option 2, there would continue to be a prosecution service, separate from the civilian prosecution authorities, to handle the prosecution of service offences. This service could be called the Service Prosecutions Office (SPO). Under this option, a civilian lawyer would be the Director of Service Prosecutions (the DSP).

Under this option, the DSP would be assisted by approximately 6 civilian service prosecutors³⁵ within the Service Prosecutions Office (SPO). These civilian service prosecutors would only handle and prosecute service prosecutions of military personnel under the Code of Service Discipline. Under this option, the civilian service prosecutors could not be currently enrolled in the CAF and the criteria for selecting civilian service prosecutors would include criminal and military law expertise, litigation and advocacy skills and experience as well as an interest in litigation work. Upon joining the SPO, civilian service prosecutors would be provided with training and familiarization in relation to the CAF. ³⁶ Further, under this option, the DSP would be authorized to hire contract lawyers or agents as prosecutors, in specific cases.

Although the civilian service prosecutors would be a part of DND, their conditions of employment would include the requirement to deploy if and when needed. The service prosecutors would be paid at the same rate as has been negotiated by federal prosecutors within the Public Prosecution Service of Canada.³⁷

Under this option, the civilian service prosecutors would need to take into account CAF-specific considerations when deciding to proceed with a charge,³⁸ including:

• the effect of a particular offence on the maintenance of the CAF’s operational readiness; and,
• the prevalence of the alleged offence in the unit or military community at large and the need for general and specific deterrence.

Prosecutors would be required to provide written reasons to charge-layers in any case where they decide not to proceed with a charge on the sole basis that the matter is too trivial, if military authorities have recommended that a prosecution proceed.³⁹

In order to ensure that civilian service prosecutors have access to military expertise to inform their decisions, Option 2 would also provide for the embedding of military experts within the office in a manner that is similar to the Dutch “Centre of Military Legal Expertise”. This Centre would be staffed with a civilian lawyer, a CAF member from the National Investigation Service who is a senior investigator as the Police Liaison Officer, and a currently serving military officer at the rank of Major to act as the CAF Liaison Officer between the CAF and the SPO. The hiring criteria for the civilian lawyer in the Centre would include a requirement for recent experience, expertise and interest in, and sensitivity to, military law.⁴⁰ The CAF and NIS Liaison Officers would assist the civilian service prosecutors on matters of military organisation, operating procedures and the specific military rules and regulations that may be directly relevant to the civilian service prosecutors.⁴¹ The Centre would be co-located in the National Capital Region with the DSP, ideally in National Defence Headquarters, and would leverage the DSP’s administrative support resources.

11.4.1 Assessment of Option 2

It is assessed that relative to the current prosecution system, implementation of this option would significantly increase the efficiency and effectiveness of the current court martial system based on a likely increase in timely outcomes, and in the generation of accurate / correct outcomes. Implementation of this option could also increase the legitimacy of the court martial system based on a slight increase transparency, fairness, and intelligibility.

It is assessed that Option 2 would significantly improve the proportionality of financial and human resources costs of the current court martial system.

Similar to Option 1, on financial costs, this option would provide for a reduction in the number of service prosecutors by approximately one half (as a maximum level of staffing). This should represent a significant decrease in the expenditures of the current military prosecution service, down from approximately $3 million⁴² to an estimated $2 million – assuming that a reduction in the number of prosecutors would also lead to some reduction in civilian support staff and operating and maintenance costs of the prosecution service, but not necessarily a reduction in travel costs). As a result of this decrease, there would be a corresponding decrease in the cost of prosecution services per court martial from approximately $48,000 to $32,000, assuming the same number of court martial trials.⁴³ These decreases represent the potential for significant savings and a decrease in the financial costs of the system.

As part of this option would include the creation of the Centre for Military Legal Expertise, there would be a cost associated with the salary of the civilian lawyer hired for this Centre. The salaries of the CAF liaison officer and the NIS senior investigator would not be a part of the DSP’s budget. Additionally, the provision for a CAF liaison officer and an NIS senior investigator contribute to lowering the human resource costs of the current court martial system as the military expertise would be resident in the Centre and accessible as required by the civilian service prosecutors.

It is possible that, under this option, there may be a high rate of turnover if the civilian service prosecutors do not see any possibility for future career advancement given the lack of internal hierarchy in which to advance,⁴⁴ which could pose a human resources challenge.

It is estimated that Option 2 would increase the generation of accurate / correct outcomes through the increase in expertise of the prosecutors and with the creation of the Centre of Military Legal Expertise, Option 2 would continue to preserve the military expertise of the prosecution service.

It is assessed that, under this option, the court martial system would likely be perceived as more fair⁴⁵ as the Director and the prosecutors would be civilian. It is estimated that placing civilians in these roles would likely be perceived as more fair by both the broader public and the CAF as civilians could be perceived as being more objective when making decisions about CAF members than other CAF members making those decisions would be under the same circumstances.

It is assessed that, under Option 2, transparency of the court martial system would be improved. First, as Option 2 would make the DSP responsible to the Minister of National Defence, a civilian political authority, and not the JAG, a senior military officer, there could be an increase in transparency since it would be less possible for military authorities to improperly exert influence on the civilian DSP.

Additionally, this option may result in the system being perceived as more intelligible as, under this option, it would be prosecutors from outside of the CAF organization making decisions about whether to prosecute, which is familiar and defensible when compared with what is done in many civilian jurisdictions, where outside prosecutors are often relied upon when an accused person comes from within the same Ministry or Department as the normal prosecutors.

11.5 Option 3: Specialized PPSC Prosecutions – PPSC Deputy Director of Service Prosecutions, and specialized PPSC prosecutors

Under Option 3, there would no longer be a separate prosecution service outside of the civilian federal prosecution service. Instead, under this option, a position for a specialized Deputy Director of Public Prosecutions – Service Prosecutions (DDP SP) would be created within the Public Prosecution Service of Canada (PPSC). The DDP SP would report to the Director of Public Prosecutions. The DDP SP would be required to be a lawyer with at least ten years in good standing at the bar, and could not currently be enrolled in the CAF (even in the reserve force). Ideally, the competition for this position would seek an individual with experience, expertise and interest in, and sensitivity to, military law.⁴⁶

Under this option, the DDP SP would be supported by a specialized cadre of civilian service prosecutors, the minimum number for which could be established in statute. Under this option, these specialized PPSC prosecutors could be identified from PPSC offices across Canada,⁴⁷ or centralized in the National Capital Region, and they would deal with military cases as needed, in addition to dealing with civilian cases at all other times. Under this option, there would be statutory requirement for military cases to be dealt with as a matter of priority by the specialized PPSC prosecutors. The specialized PPSC prosecutors could not be currently enrolled in the CAF. Under this option, one of the conditions of employment within this specialized section of PPSC prosecutors would be the requirement to deploy, if and when needed. Further, the DDP SP would have authority to use or appoint contractors or agents to act as specialized prosecutors in specific cases.

Under this option, the civilian service prosecutors would need to take into account CAF-specific considerations when deciding to proceed with a charge,⁴⁸ including:

• the effect of a particular offence on the maintenance of the CAF’s operational readiness; and,
• the prevalence of the alleged offence in the unit or military community at large and the need for general and specific deterrence.

Prosecutors would be required to provide written reasons to charge-layers in any case where they decide not to proceed with a charge on the sole basis that the matter is too trivial, if military authorities have recommended that a prosecution proceed.

In order to ensure that the specialized PPSC prosecutors have access to military expertise for the purposes of informing their decisions, Option 3 would also establish a Centre of Military Legal Expertise within the DDP SP’s office. This Centre would be staffed with a civilian expert in military law, a CAF member from the National Investigation Service who is a senior investigator as the Police Liaison Officer, and a currently serving military officer at the rank of Major to act as the CAF Liaison Officer between the CAF and the DDP SP. The hiring criteria for the civilian expert in military law in the Centre would include a requirement for recent experience, expertise and interest in, and sensitivity to, military law. The CAF and NIS Liaison Officers would assist the civilian service prosecutors on matters of military organisation, operating procedures and the specific military rules and regulations that may be directly relevant to the civilian service prosecutors.⁴⁹ The CAF Liaison Officer would also facilitate training about and exposure to CAF matters for the select PPSC specialized prosecutors that would be located across Canada. The Centre would be co-located in the National Capital Region with the DDP SP, and would leverage his or her administrative support.

11.5.1 Assessment of Option 3

The CMCRT assesses that relative to the current court martial system, this option could significantly increase the efficiency and effectiveness of the court martial system based on a likely increase in the proportionality of financial and human resources costs, and timely outcomes. This option could increase the system’s ability to generate accurate / correct outcomes, but it would involve a loss of military expertise relative to the status quo, which could be problematic. This option may slightly increase the legitimacy of the court martial system based on increases in fairness, transparency, and intelligibility.

In the paragraphs that follow, an assessment of Option 3’s anticipated impact on each relevant feature that a court martial system needs (in order to support the three core principles of effectiveness, efficiency and legitimacy) is provided. Only those features that would likely be affected by Option 3 are discussed.

It is estimated that by eliminating the military prosecution service and transferring its work to a section within PPSC, substantial financial and human resource costs savings could be achieved. First, approximately $3 million⁵⁰ in savings for the CAF would be achieved within the current court martial system. As court martial files would be distributed amongst specialized PPSC lawyers already within that prosecution service, it is likely that only a small portion of this $3 million savings would need to be transferred to the PPSC. Given the typical PPSC caseload, approximately two full-time equivalent PPSC prosecutors would likely be needed to handle the typical volume of cases within the court martial system, so this option would likely need to provide for a 2-prosecutor increase to PPSC’s national complement of prosecutors in order to offset the increase in (military) cases for which PPSC would be responsible. Funds would also be needed to create a new section within PPSC, and the position of Deputy Director of Prosecutions – Service Prosecutions. Funding would also be needed to establish the Centre for Military Expertise, as with Option 2. The CAF and NIS Liaison Officer positions could be established from within existing CAF resources.

As this discussion suggests, Option 3 is quite similar to Option 2 in many ways, except for three main differences. First, under Option 3, PPSC would bear the costs of prosecuting military cases instead of the CAF bearing this cost. Second, less civilian prosecutorial resources would be needed under Option 3 because so much existing PPSC expertise and infrastructure could be used under this option. For instance, there is already a regionalized structure for PPSC offices that could be leveraged by the DDP SP, and the workload resulting from the approximately 157 files⁵¹ in the current court martial system would be shared among the offices. Additional significant gains would be made, under this option, given the significant criminal law expertise of the specialized PPSC prosecutors who would continue to maintain a similar criminal law caseload in addition to their military files. This will have a correspondingly positive impact on efficiency, because with greater specialization in criminal and over time in military matters, the more efficiently the PPSC prosecutors would be able to complete file reviews and court preparations.⁵² And, third, prosecutions would be conducted on behalf of the Attorney General, rather than the Minister of National Defence.⁵³

Overall, it is assessed that Option 3 has a very high possibility of achieving proportionate financial and human resources costs.

It is estimated that Option 3 would likely result in more accurate / correct and timely outcomes due to the high degree of criminal law expertise and criminal trial experience of the specialized PPSC prosecutors. It is assessed that, from a prosecution perspective, this option would provide for throughput that is at least as fast as within the civilian criminal justice system, and likely a small amount faster because of a statutory requirement to deal with military cases as a matter of priority. Indications from both the Bronson Report – Prosecutions and the DPP’s most recent annual report suggest that this option could therefore reduce the extent of prosecutorial time spent on any given file from several weeks or months, down to a matter of days or even hours.⁵⁴ The creation of a Centre of Military Legal Expertise and CAF familiarization training and exposure would continue to ensure that military expertise is available to the specialized PPSC prosecutors.

Additionally, as this option would continue the regionalization of the prosecution offices, specialized PPSC prosecutors would remain located in the jurisdiction where offences are committed and would continue to be aware of local conditions and problems, thereby enabling civilian service prosecutors to incorporate these factors into their analysis and carriage of any given case.⁵⁵

It is estimated that, under Option 3, the court martial system would likely be perceived as more fair,⁵⁶ transparent, and intelligible because the court martial system would be brought to parity with the civilian justice system by using essentially identical resources and expertise as that which is used within the civilian justice system. Additionally, as under this option, the DDP SP would be responsible to the DPP (and through her to the Attorney General), a civilian authority, and not to the JAG, a senior military officer, there would be an increase in transparency since it would be less possible for anyone to perceive that military authorities may improperly exert influence on the civilian DDP SP. The creation of a specialized section of PPSC prosecutors is a model that is familiar, comprehensible and defensible to the broader and CAF public.

Footnotes

¹ Regarding sentencing, this was recommended in Andrejs Berzins, Q.C., and Malcolm Lindsay, Q.C., External Review of the Canadian Military Prosecution Service, (Ottawa: Bronson Consulting Group, 2008), Recommendation 5.4, at 35 [Bronson Report (DMP)]: “We recommend that, when referring cases to DMP for prosecution, the Commanding Officers indicate their views on the appropriate sentence that should be imposed for the offence if the accused pleads guilty of if adjudged guilty after a Court Martial trial. Those opinions should be taken into consideration by the RMP’s, but would not be binding on them.” This is what was also recommended in Canada, Department of National Defence, Report of the Second Independent Review Authority to The Honourable Peter G. MacKay, Minister of National Defence, by The Honourable Patrick J. LeSage (Ottawa: Department of National Defence, 2011), Recommendation No 20, at 37 [LeSage Report]: “Commanding Officers should communicate their views on sentencing to the prosecutor, who would take them into consideration, but not be bound by them”; see also above, Chapter 5 (Comparative) at sections 5.2.2 (Australia), 5.2.3 (New Zealand) and 5.2.9 (France).

² Currently, Queen’s Regulations and Orders for the Canadian Forces 107.02 provides that a commanding officer, an officer or non-commissioned member authorized by a commanding officer to lay charges; and a member of the military police assigned to investigative duties with the Canadian Forces National Investigation Service may lay charges under the Code of Service Discipline.

³ See above, Chapter 4 (Consultation), at sections 4.5.3 (CANSOFCOM), 4.5.4.1.3 (5 RGC), 4.5.4.2.1 (4 CDSG & 2 CMBG), 4.5.7.1 (1 Health Service Group) and 4.6 (Key Observations). See also above, Chapter 7 (Assessment) at section 7.3.2 (Status and Institutional Structure of the Prosecution Service).

⁴ Similar models of charge pre-screening have been adopted in three provinces (British Columbia, New Brunswick, and Quebec) and the practice has been found to increase the efficiency of the system, particularly in terms of preventing overcharging. See Toronto Police Accountability Coalition, Pre-charge Screening: A report (11 June 2017) online: <http://tpac.ca/show_issues.cfm?id=209>.

⁵ As is the case in British Columbia.

⁶ See Annex Z, Submission of the Director of Military Prosecutions to ADM(RS), 23 January 2017, at 11.

⁷ A similar model for dealing with charges is used within the Australian court martial system. See above, Chapter 5 (Comparative) at section 5.2.2 (Australia).

⁸ Director of Public Prosecutions Act, SC 2006, c 9, s 121, s 5 [DPP Act] : The DPP holds office, during good behavior, for the duration of his/her term, but may be removed by the Governor in Council at any time at any time for cause with the support of a resolution of the House of Commons to that effect.

⁹ Adopt similar language to the DPP Act, ibid, s 4.

¹⁰ The DPP is appointed for seven years: ibid, s 5.

¹¹ Ibid, s 5.

¹² See above, Chapter 4 (Consultation), at sections 4.4.5 (LCol (Ret’d) Perron) and 4.4.6 (LCdr (Ret’d) Lévesque.

¹³ Canada, Department of National Defence, Provision of Defence Counsel Services in the Canadian Forces, Report of the Defence Counsel Study Team (Ottawa: Office of the Judge Advocate General, 1997), at 54 [DDCS Report 1997] (regarding the Director of Defence Counsel Services).

¹⁴ Similarly to what was recommended for defence counsels. See Andrejs Berzins, Q.C., and Malcolm Lindsay, Q.C., External Review of Defence Counsel Services, (Ottawa: Bronson Consulting Group, 2009), at 32 [Bronson Report (DDCS)]: “While independence is absolutely required in order for Canadian Forces members to be properly represented, in our opinion, it has led to a lack of accountability in the offices of the DCS.” See also, at 30: “We recommend that the DCS purchase and employ time management software such as Amicus in order to appropriately track their time on a file.”

¹⁵ See Annex CC, ADM(RS) – Prosecutions. The data for 2015/2016 indicates that there were 17.2 full-time-equivalent military prosecutors.

¹⁶ See Canada, Department of National Defence, Director of Military Prosecutions Annual Report 2016-17 (Ottawa: Office of the Judge Advocate General, 2017), at 11 [DMP Annual Report 2016-2017].

¹⁷ “Files” included all pre- and post-charge files from all sources that were handled by prosecutors during the year.

¹⁸ See Public Prosecution Service of Canada Annual Report, 2015-2016, [PPSC Annual Report 2015-2016] online: <http://www.ppsc-sppc.gc.ca/eng/pub/ar-ra/2015_2016/index.html>. The report states that there were 536 staff lawyers and 408 standing agents from private law firms resulting in 944 lawyers.

¹⁹ See above, Chapter 4 (Consultation) at section 4.5.4.2.2 (RHFC). The CO, who is also the civilian Crown Attorney for Waterloo region, stated the following in the context of commenting on the appropriate skills and experience required for military judicial appointments: “The level of experience necessary to execute this function is difficult to achieve if the military judicial appointments are largely drawn from a prosecution/defence service that conduct in the neighbourhood of only +/- 70 matters per year. This is, frankly, similar to the case load of a single lawyer (or at maximum two lawyers) within the civilian justice system.”

²⁰ This is what was recommended in the Bronson Report (DMP), supra note 1 at 70:

Unlike their civilian counterparts, new military prosecutors do not get much experience by handling large volume of cases. Although they have some access to experienced Reservists, and may also consult with each other, RMP’s are not exposed, on a daily basis, to the same mix of prosecutors with varying experience as in the civilian system. We believe, therefore, that it would be very beneficial for new military prosecutors to be seconded for at least six to twelve months to an active civilian prosecution service. […] A similar opportunity should be repeated after several years of experience for military prosecutors to be seconded to a civilian prosecution office for a period of time that can be negotiated. An example would be that an experienced military prosecutor could have an opportunity to “junior” to a civilian prosecutor on a serious case, such as a homicide.

According to DMP, some steps have been taken to implement a secondment-type arrangement with Quebec’s civilian prosecution service (see Annex Z, Submission of the Director of Military Prosecutions to ADM(RS), 23 January 2017, at 33)

²¹ National Defence Act, RSC 1985, c N-5, s 165.1 [NDA].

²² This is what was recommended in the Bronson Report (DMP), supra note 1 at 13: “There is a need to recognize that prosecution is a speciality in the legal profession and it is not reasonable to expect that the work can be done effectively and efficiently my military lawyers who are ‘generalists’; The development of a corps of highly experience military lawyers who specialize in litigation, whether as prosecutors or defence counsel should be encouraged;”

See also, Bronson Report (DMP), ibid at 21:

the military legal officer was expected, if not encouraged, to be a “generalist” in several aspects of military law. […] This is quite foreign to a civilian prosecution service where the prosecutor is expected to become a courtroom specialist, as is borne out by our examination of the Prosecutions Offices in New Brunswick, Nunavut and Ontario. In our experience, the prosecutor must become a specialist and must be viewed as such because of the amount of knowledge that they must acquire with respect to criminal legislation, case law, legal texts and advocacy skills. The fact that RMP may not be regarded as having to be a specialist may have the effect on the skill-sets that they are able to achieve in prosecutions, with an indirect impact on the increasing delay because of their lack of experience.

It appears this is what the American Military Justice System is heading towards to as well. The United States are considering requiring the Army and Air Force JAG Corps to establish career litigation tracks for uniformed attorneys. For now, they have required the services to conduct a five-year “pilot” program to ensure that trial counsel and defense counsel have sufficient experience and knowledge and to issue a report at the end of those five years on their “findings.” See online: <http://dailysignal.com/2017/02/21/latest-case-of-jag-malpractice-shows-pressing-need-for-reform/> <http://dailysignal.com/2016/05/12/a-career-litigation-track-is-necessary-for-army-and-air-force-jags/>.

²³ Bronson Report (DMP), supra note 1 at 12-13: “Most RMP’s have not been in their positions for very long and particularly lack the court experience that makes it easy for seasoned prosecutor to quickly assess a file […] The initial appointment to the position of RMP should be for a minimum of 5 years. After that, RMP’s should be permitted to remain in the position as long as they wish if their performance is satisfactory.”

Bronson Report (DMP), ibid at 69: “Based on our experience in the civilian prosecution service, we have found that it takes the average lawyer three to four years of regular courtroom experience dealing with progressively more complex and serious cases to become fully competent as a prosecutor. We believe that, because of the relatively small volume of cases that RMP’s deal with at the trial level, the number of years required for them to become fully proficient as prosecutors will be even greater.”

According to DMP,

the current practice of the Office of the JAG (OJAG) usually aligns with the recommendation that the Bronson Report made that the “initial appointment to the position of (regional military prosecutor) should be for a minimum of five years.” My experience confirms the wisdom of this approach, which in my view should be formalized. I also see the wisdom of the Bronson Report recommendation that “the military prosecutors be encouraged to stay as long as possible in the RMP position. They should be permitted to spend their career as military prosecutors if they so wish. (see Annex Z, Submission of the Director of Military Prosecutions to ADM(RS), 23 January 2017, at 31-32)

See also DMP Annual Report 2016-2017, supra note 16 at 32-33 :

Moreover, CMPS welcomed 5 new captains just prior to or during the reporting period. Given their lack of experience, they take more time to adequately review files of equal complexity than a more experienced prosecutor would take. They are initially assigned files of lesser complexity, generally requiring less time. They require supervision and assistance from more senior prosecutors, which takes away from the time the latter can devote to their files. The more senior prosecutors end up with a greater proportion of the more complex cases requiring more time, with less time to devote to them than if there was a greater number of senior prosecutors on the team.

See also above, Chapter 5 (Comparative) at section 5.2.2 (Australia).

²⁴ This is what was recommended in the Bronson Report (DMP), supra note 1 at 70:

Unlike their civilian counterparts, new military prosecutors do not get much experience by handling large volume of cases. Although they have some access to experienced Reservists, and may also consult with each other, RMP’s are not exposed, on a daily basis, to the same mix of prosecutors with varying experience as in the civilian system. We believe, therefore, that it would be very beneficial for new military prosecutors to be seconded for at least six to twelve months to an active civilian prosecution service […] A similar opportunity should be repeated after several years of experience for military prosecutors to be seconded to a civilian prosecution office for a period of time that can be negotiated. An example would be that an experienced military prosecutor could have an opportunity to “junior” to a civilian prosecutor on a serious case, such as a homicide.

According to DMP,

in FY 2016/17, DMP obtained the concurrence of the Public Prosecution Service of Canada, of the Ontario’s Criminal Law Division, and of the Directeur des Poursuites Criminelles et Pénales du Quebec to have military prosecutors temporarily employed as a crown prosecutors with these civilian prosecution services, for the purpose of maintaining and enhancing legal skills as prosecutors, including in areas such as sexual offences. The required paperwork is currently being generated with a view of having a number of military prosecutors working on civilian cases starting in the upcoming months. DMP plans on subsequently expanding such cooperation with other provincial prosecution services. DMP will be careful that the number of prosecutors who will undertake responsibilities with civilian prosecution services at any given time, as well as the amount of time spent on those tasks, do not unduly affect the conduct of military prosecutions. (see Annex Z, Submission of the Director of Military Prosecutions to ADM(RS), 23 January 2017, at 33)

²⁵ See above, Chapter 5 (Comparative) at section 5.2.7 (Denmark).

²⁶ This is what was recommended for defence counsels in the DDCS Report 1997, supra note 13 at 41.

²⁷ See Director of Military Prosecutions, “DMP Policy Directive 016/17 Appointment of Special Prosecutors” (12 April 2017), online: <http://www.forces.gc.ca/en/about-policies-standards-legal/special-prosecutors-appointment.page>.

²⁸ Similar to section 249.21(1) of the NDA regarding defence counsel services: “The Director of Defence Counsel Services may be assisted by persons who are barristers or advocates with standing at the bar of a province.”

²⁹ See Annex EE, ADM (RS) – Overall Comparison. The average expenditure for DMP is $3,038,107.10. Half of this cost is $1,519.053.55.

³⁰ Ibid. The average cost of DMP per CM is $48,966.42. Half of this cost is $24,035.66.

³¹ Refer to DMP Annual Report 2016-2017, supra note 16 at 32-33; 58 :

Regular Force military prosecutors, not unlike other legal officers, are posted from within the Office of the JAG to their prosecution position for a limited period of time, usually three to five years. As such, the training that they receive must support both their current employment as military prosecutors as well as their professional development as officers and military lawyers. The relative brevity of an officer’s posting with the CMPS requires a significant and ongoing organizational commitment to provide him or her with the formal training and practical experience necessary to develop the skills, knowledge and judgment essential in an effective military prosecutor.

See also DDCS Report 1997, supra note 13 at 61-62 (discussing CF Legal Aid Service Using Staff Lawyers): “Defence counsel may see this as a learning position only or as a dead end job considering the small size of the organization and the very limited possibility of advancement. This may well result in a high turnover rate with the accompanying reduction in counsel experience.”

³² Bronson Report (DMP), supra note 1 at 75: “We believe that, generally, the problem in the CMPS that contributes to delay is the lack of senior experienced litigators as opposed to overall shortage of prosecutors. In fact, we consider that the total complement of prosecutors is sufficient, given the relatively small caseload.”

³³ See Annex Z, Submission of the Director of Military Prosecutions to ADM(RS), 23 January 2017, at 31:

I also recognize, however, the challenges that this recommendation presents. For instance, given its small size, career progression opportunities uniquely within the CMPS would be more limited than within the broader OJAG from whence prosecutors come. This could act as an obstacle to attracting interesting and interested candidates. Also, being exposed, as legal advisor, to various facets of the CAF’s “business” enhances the quality of military prosecutors.

³⁴ See above, Chapter 5 (Comparative) at sections 5.2.2 (Australia), 5.2.5 (United Kingdom), 5.2.6 (Norway), 5.2.7 (Denmark) and 5.2.10 (The Netherlands). See also Major Bas van Hoek, “Military Criminal Justice in the Netherlands: The ‘Civil Swing’ of the Military Judicial Order” in Alison Duxbury and Matthew Groves, eds, Military Justice in the Modern Age (Cambridge: Cambridge UP, 2016) at 218-237 (regarding The Netherlands): “the Committee opined that the appointment of a service member on active duty as public prosecutor would contravene the requirement of independence.”

³⁵ See assessment of the appropriate number of prosecutors in a separate prosecution service under Common Elements of Options 1 and 2 of this Chapter. It is estimated that one less civilian prosecutor would be required under Option 2 as there would be no requirement for civilian service prosecutors to complete military training, contrary to military prosecutors in Option 1.

³⁶ See above, Chapter 5 (Comparative) at sections 5.2.8 (Finland) and 5.2.9 (France).

³⁷ The civilian service prosecutors would be paid the core rate of PPSC pay (i.e. not the Toronto rate).

³⁸ See above, Chapter 5 (Comparative) at section 5.2.8 (Finland).

³⁹ Ibid.

⁴⁰ See, for instance, Canadian Human Rights Act, RSC 1985, c H-6, s 48.1(2) [CHRA]: “Persons appointed as members of the Tribunal must have experience, expertise and interest in, and sensitivity to, human rights.”

⁴¹ See above, Chapter 5 (Comparative) at section 5.2.10 (The Netherlands).

⁴² Annex EE, ADM (RS) – Overall Comparison. The average expenditure for DMP is $3,038,107.10. Half of this cost is $1,519.053.55.

⁴³ Ibid. The average cost of DMP per CM is $48,966.42. Half of this cost is $24,035.66.

⁴⁴ See DDCS Report 1997, supra note 13, at 61-62 regarding defence counsel: “Defence counsel may see this as a learning position only or as a dead end job considering the small size of the organization and the very limited possibility of advancement. This may well result in a high turnover rate with the accompanying reduction in counsel experience.”

⁴⁵ See above, Chapter 4 (Consultation) at sections 4.4.5 (LCol (ret’d) Perron), 4.4.6 (LCdr (ret’d) Levesque), 4.4.7 (President of the ISMLLW) and Chapter 5 (Comparative) at sections 5.2.5 (United Kingdom), 5.2.6 (Norway), 5.2.7 (Denmark) and 5.2.8 (Finland). See also, Annex C, Discussion Board of the CMCR’s Public Consultation. In particular, see submission from Martin Gagnon, 26 October 2016.

⁴⁶ See, for instance, CHRA, supra note 40, s 48.1(2): “Persons appointed as members of the Tribunal must have experience, expertise and interest in, and sensitivity to, human rights.”

⁴⁷ This is what was recommended in the Bronson Report (DMP), supra note 1 at 73-74.

⁴⁸ See above, Chapter 5 (Comparative) at section 5.2.8 (Finland).

⁴⁹ See above, Chapter 5 (Comparative) at section 5.2.10 (The Netherlands).

⁵⁰ Annex EE, ADM (RS) – Overall Comparison. The average expenditure for DMP is $3,038,107.10.

⁵¹ Canada, Department of National Defence, Director of Military Prosecutions Annual Report 2015-2016 (Ottawa: Office of the Judge Advocate General, 2016).

⁵² See also, Bronson Report (DMP), supra note 1 at 25: “in New Brunswick, Ontario and Nunavut, civilian prosecutors have much greater case loads than do their RMP counterparts. They do not have the time to conduct lengthy pre and post-charges reviews.”

⁵³ It would appear that this change would not have a significant impact on the ability of the Minister of National Defence to communicate his views in respect of a particular matter, although further study could be required.

⁵⁴ Bronson Report (DMP), supra note 1 at 45:

In Ontario and Nunavut, the post-charge reviews are done by prosecutors based on briefs submitted by the police. For most cases, the reviews take a matter of minutes to complete. Often, one prosecutor will be assigned the responsibility of doing post-charge reviews of a large number of cases, sometimes as many as 20 a day. The prosecutors rely on the summary of the facts provided by the police, a summary of the statements of the witnesses and a copy of the Information containing the charges that have been laid by the police. It would be unusual for prosecutors to view video-tapes of witness statements.

PPSC Annual Report 2015-2016, supra note 18:

Each file handled by the PPSC is assigned a complexity rating. Low-complexity files are generally defined as routine cases involving the application of well-established legal principles to relatively straightforward facts. Medium-complexity files generally involve more complex factual situations or legal issues. High-complexity files are comprised of cases involving highly complex factual elements; cases involving complex or multiple legal issues requiring significant preparation time; or cases raising complex or multiple policy issues requiring significant preparation time, including cases where the law is new or not clearly established. A high-complexity rating can only be assigned in consultation with a PPSC manager or their delegate.

⁵⁵ Bronson Report (DMP), supra note 1 at 73:

There are, however, advantages to regionalization. The RMP’s are located in the jurisdiction where the offence was committed. The RMP is aware of the local conditions and problems. The RMP is closer to the Military Police or NIS office to be able to give advice. The Court Martial will likely be held in the region where the offence was committed. The RMPs may have to travel less frequently. Of all those interviewed for the preparation of this report, only one RMP recommended that the RMP’s be centralized.

⁵⁶ See above, Chapter 4 (Consultation), at sections 4.3.1 (Summary of results) and 4.5.5.2 (HMCS OTTAWA Crew).