Chapter 14 – Punishments, Sanctions and Sentencing laws

14.1 Introduction

As discussed in Chapter 7, there are several aspects of the current system governing punishments, sanctions, and sentences that detract from the overall effectiveness and legitimacy of the court martial system overall. For example, on effectiveness, while it is accepted that the current system achieves a measure of protection of the public from military personnel who engage in misconduct, the CMCRT noted perceptions among those consulted that the current system may not adequately express community condemnation of misconduct by military personnel, and may often not have value in rehabilitating military personnel who engage in misconduct. In terms of legitimacy, the CMCRT noted perceptions that the current system’s lack of parity of sentencing options when compared with the civilian system can appear to be not fair, and that the results of sentencing decisions that are gen

erated in the absence of sentencing guidelines, recommendations from the chain of command, and (usually) mandatory minimum punishments can challenge both transparency and the system’s ability to produce accurate / correct sentencing outcomes.

This chapter will describe three representative options to potentially change the punishments that a court martial has jurisdiction to impose.

As a preliminary consideration, the CMCRT notes that several changes could be made to the current system independently of any of the larger options that are discussed in more detail, below.

First, to increase the military expertise within the sentencing process, all options could provide for a mechanism requiring judicial consideration of military impact statements submitted by the chain of command of the accused person.¹ Such a change would promote the generation of accurate / correct outcomes that are informed by CAF perspectives.

Second, all options could provide for judicially adopted sentencing guidelines made in consultation with CAF leaders² to ensure more transparency in sentencing and to facilitate the generation of accurate and correct sentencing outcomes. These guidelines could indicate the relevant “starting point” for sentencing in various classes of offences, and highlight the types of considerations that should tend to increase or decrease the appropriate sentence.³

Third, all options could abolish the scale of punishments⁴ and replace it with a menu-approach to selecting punishments. Abolishing the scale of punishments in the current court martial system would likely provide more flexibility to judges – possibly leading to punishments that are (and are perceived to be) consistent with purposes and principles of sentencing – thereby likely generating more accurate sentencing outcomes, that are more comprehensible and, therefore, more intelligible.

The current hierarchy has proven somewhat limiting in certain cases. For instance, in R v Balint,⁵ the most appropriate punishment that was agreed upon in a joint submission by counsel for the prosecution and the accused person caused difficulty for the presiding judge. The judge ultimately acknowledged that the recommended sentence – a minor punishment of 12 days confinement to barracks – was “genuinely crafted to fit the offence and the particular circumstances of the offender. It will promote the objectives of denunciation, specific deterrence, and rehabilitation sought by counsel.”⁶ However, the judge only arrived at this conclusion after calling a witness on the court martial’s own motion to hear additional evidence that satisfied the judge that this sentence was appropriate for the offending Officer Cadet, when a lower-ranking non-commissioned member had received a small fine (which was higher on the NDA’s scale of punishments) for a similar offence. Abolishing the hierarchy of punishments would likely eliminate judicial concerns such as this one, by permitting sentencing judges the latitude to impose the most appropriate punishment in each case.

Fourth, with respect to intermittent sentences, all options could provide for intermittent sentences in a way that would mirror the existing Criminal Code regime and make this kind of sentence available if its length does not exceed 90 days.⁷ Such a change that parallels the civilian law would likely make the sentencing regime within the court martial system more familiar, and therefore more intelligible. It would also support the generation of accurate and correct outcomes by allowing sentencing judges to determine in case-specific ways how a sentence of incarceration ought to be served to achieve the purposes and principles of sentencing.

Fifth, all options could also incorporate two other sentencing options currently available in the civilian criminal justice system: prohibition orders⁸ and pre-sentence reports.⁹ Prohibition orders could be provided for in a scheme that mirrors the scheme provided for in the Criminal Code.¹⁰ Similarly, under this option, pre-sentence reports could be provided for in a scheme that mirrors the Criminal Code provisions.¹¹ CAF social work officers could be trained to draft pre-sentence reports, or the existing resources within the civilian criminal justice system could be leveraged to implement pre-sentencing reports in the court martial system. Implementing these aspects of the civilian sentencing regime into the court martial system would likely, in the case of prohibition orders, more effectively protect the public from military personnel who engage in dangerous misconduct, and in the case of pre-sentence reports, would likely assist in the generation of accurate / correct outcomes.¹² The time that would be needed to prepare pre-sentence reports would, however, likely lead to a small decrease in the system’s ability to produce timely outcomes.

Sixth, all options could provide for the use of VTC during sentencing submissions in order to resolve matters as quickly as possible.¹³ Such a change should contribute to the production of timely outcomes, and more proportionate financial and human resource costs (by eliminating travel associated with some sentencing matters).

14.2 Option 1: Abolition of leadership-related punishments

Under this option, all leadership-related punishments from the scale of punishments available at courts martial would be abolished.

For the purposes of this option, the CMCRT would define “leadership-related punishments” to mean those punishments that have close conceptual parallels within the domain of military administrative law where they are imposed non-judicially as a function of CAF leadership and administration, as opposed to punitively by a tribunal as a matter of public order and welfare. These punishments include the following:

• dismissal with disgrace and dismissal (analogous to release for misconduct under item 1 of the Table to QR&O 15.01);
• reduction in rank (analogous to reversion upon conviction by a civil authority under QR&O 11.11),
• forfeiture of seniority (analogous to adjustments to seniority following reversions in rank under QR&O 3.09);
• severe reprimand and reprimand (analogous to remedial measures of counselling and probation and recorded warning, under Defence Administrative Order and Directive (DAOD) 5019-4); and,
• minor punishments of stoppage of leave under QR&O 104.13(2)(c) (analogous to a leave approval authority’s power to withhold leave when there is a military requirement under QR&O 16.01(1)) and caution (analogous to a commander’s prerogative to communicate dissatisfaction with a subordinate’s performance or conduct to that subordinate).

The remaining court martial system punishments that are provided for at section 139 of the NDA and in QR&O chapter 104 would remain in effect.

14.2.1 Assessment of Option 1

It is assessed that Option 1 would have a positive impact on features that support effectiveness and legitimacy.

Under this option, the generation of accurate / correct outcomes would likely be supported by ensuring that appropriate punishments are available to the tribunal, without creating any disciplinary role confusion or permitting any perceptions that the leadership functions of the offender’s chain of command could be undermined (where a tribunal determines not to impose a leadership-related punishment that the chain of command feels should be imposed).¹⁴

Under this option, it is assessed that the court martial system could be perceived as more intelligible, as the removal of leadership-related punishments would render the sentencing regime more comprehensible and familiar (particularly because no such leadership-related punishments exist within the civilian criminal justice system). It is also assessed that, under this option, the court martial system may be perceived as more fair by both the CAF and the broader public, since any leadership-related measures taken in respect of a CAF member who is alleged to have committed, or who is found to have committed, a service offence could only be taken by non-judicial military authorities exercising their leadership and administrative roles, rather than by judicial tribunals who are arguably less well-situated to make decisions in respect of CAF leadership and administrative matters.

14.3 Option 2: Mirror the sentencing options available in the civilian criminal justice system

Like Option 1, this option would also abolish leadership-related punishments. This option would also provide that all the relevant sentencing options that are available in the civilian criminal justice system be available in the court martial system.¹⁵ Specifically, this option would provide for the following sentencing options at court martial: conditional sentences,¹⁶ probation,¹⁷ and conditional discharges.¹⁸

Under this option, a similar scheme to the one that exists under the Criminal Code for conditional sentences of imprisonment would be mirrored in the court martial system.¹⁹ It would provide that if a person is convicted of an offence and the court imposes a sentence of imprisonment of less than two years, the court may, for the purpose of supervising the offender’s behaviour in the community, order that the offender serve the sentence in the community, subject to certain conditions.²⁰ Under this option, the chain of command of the offender would be responsible for supervising the application of the conditional sentence.

Under this option, a similar scheme to the one that exists under the Criminal Code for probation orders would be enacted in the court martial system.²¹ Under this scheme, a court could either order that a sentence be suspended and the offender be placed on a period of probation, or, direct that, in addition to a fine or a sentence of imprisonment for a term not exceeding two years, an offender comply with the conditions prescribed in a probation order.²² Under this option, the chain of command of the offender would be responsible for supervising the application of the probation order.

Under this option, a similar scheme to the one that exists under the Criminal Code for conditional discharges would be provided for in the court martial system.²³ Under this scheme, instead of convicting an accused person after making a finding of guilt, a court could direct that the accused be discharged on the conditions prescribed in the relevant order. Under this option, the chain of command of the offender would be responsible for supervising the application of the conditions of the discharge.

Under this option, in exceptional circumstances and for operational reasons only, the CDS could lift the application of a probation order, a conditional sentence or a conditional discharge.²⁴

Under this option, if a member who is subject to any conditions in one of the orders described above is released from the CAF, then responsibility for supervising the application of the order would be transferred to the relevant civilian authorities in the jurisdiction where the member is located upon release.²⁵

14.3.1 Assessment of Option 2

It is assessed that Option 2 would likely result in an increase in the features that support effectiveness and legitimacy in all the same ways as for Option 1, but would also likely result in some additional gains in respect of these two principles.

Under this option, with the inclusion of conditional discharges, conditional sentences, and probation orders, it is assessed that there would be an increase in the generation of accurate / correct sentencing outcomes and in the system’s ability to protect the public from military personnel who engage in misconduct,²⁶ since more case-specific options would be available to the tribunal in situations where forms of incarceration would be excessive, but where some control over an offender or a person who has been found guilty is nonetheless necessary. In this sense, this option would provide sentencing tools that could permit tribunals to more precisely tailor a sentence depending on the extent of state control that should be exercised over a person as a result of a tribunal’s determination that the person committed an offence.

It is assessed that, under this option, the provision for probation orders and conditional sentences would likely increase the system’s ability to rehabilitate military personnel who engage in misconduct.²⁷

Under this option, it is assessed that the court martial system would be perceived as more intelligible and fair, since all offenders would be liable to the same types of punishments regardless of whether they are dealt within the civilian justice system or the court martial system.²⁸

Footnotes

¹ This appears to have been intended within Bill C-71, The Victims Rights in the Military Justice System Act, 2nd Sess, 41th Parl, 2015 (died on the order of paper), where the proposed legislation would allow for the submission of military impact statements by the Chain of command of the accused.

² Such a change would be similar to the UK model, wherein the Court Martial judiciary have promulgated publicly-available sentencing guidelines. See United Kingdom, Guidance on Sentencing in the Court Martial, vers 4 (London: Judge Advocate General, 2013), online: <https://www.judiciary.gov.uk/wp-content/uploads/2015/05/guidance-sentencing-court-martial.pdf>. This change would also be similar to the New Zealand model, where sentencing guidelines are developed and published jointly by the Defence Force’s senior military officer and senior judge (see above, Chapter 5 (Comparative), at section 5.2.3 (New Zealand).

³ For an explanation of how such “starting point sentencing” could work in Canada, see Paul Moreau, “In Defence of Starting Point Sentencing” (2016) 63 Crim L Q 346.

⁴ National Defence Act, RSC 1985, c N-5, s 139 [NDA]: “each of those punishments is a punishment less than every punishment preceding it.” In support of this idea, see above at section 4.5.4.1.1.

⁵ R v Balint, 2011 CM 1012.

⁶ Ibid at para 22.

⁷ Criminal Code, RSC 1985, c C-46, s 723 [Criminal Code]; NDA, supra note 4, s 148. See also Michel W Drapeau, Restorative justice for CAF members. An absolute and urgent necessity, online: <http://mdlo.ca/news/restorative-justice-for-cf-members-an-absolute-necessity/> [Drapeau].

⁸ This was 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), at 46-47 [LeSage Report].

⁹ 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) at 66 [Bronson Report (DMP)]. In R v Larouche, 2012 CM 302, Military Judge d’Auteuil lamented the fact that he could not obtain pre-sentencing reports (paras 46-47).

¹⁰ Judges can currently issue prohibition orders in very limited circumstances under the NDA (s 147.1); see also sections 109ff of the Criminal Code, supra note 7, for prohibition orders.

¹¹ See Criminal Code, supra note 7, s 721 for pre-sentencing.

¹² Canada, Department of National Defence, The First Independent Review by the Right Honourable Antonio Lamer P.C., C.C., C.D. of the provisions and operation of Bill C-25 An Act to amend the National Defence Act and to make consequential amendments to other Acts, as required under section 96 of Statutes of Canada 1998, c.35 (Ottawa: Department of National Defence, 2003), at 66 [Lamer Report]: “the sentencing provisions under the NDA require extensive reform. The current powers of punishment are not adequate.” See also Senate, Standing Senate Committee on Legal and Constitutional Affairs, Special Study on the provisions and operation of An Act to amend the National Defence Act (Court Martial) and to make a consequential amendment to another Act, SC 2008, c 29, 25-27 (May 2009) at 25-27 (Chair: The Honourable Joan Fraser), [Senate Report 2009] online: <http://publications.gc.ca/collections/collection_2011/sen/yc24-0/YC24-0-402-5-eng.pdf>:

The Committee is concerned with the current lack of flexibility in the range of punishments and sanctions for accused under the Code of Service Discipline … However, we are of the view that adding some of the sentencing options available in the Criminal Code to the NDA would improve the military justice system… the Committee endorses the Lamer Report’s finding that because the military justice system has jurisdiction over members of the regular force, the reserve force and in certain cases, civilians, the range of punishments and sentences must be appropriate for all of these groups.

See also R v Larouche, 2012 CM 3023, paras 46-47: “I can but regret that the Court Martial does not have the authority to ask a probation officer to make a written report relating to the accused for the purpose of assisting the court in imposing a sentence, as provided by section 721 of the Criminal Code…The lack of such a tool limits the evidence that can be obtained to assist the military judge in determining a fair and appropriate sentence, particularly in the exercise of concurrent criminal jurisdiction.”

¹³ See Senate, Standing Senate Committee on Legal and Constitutional Affairs, Delaying Justice is Denying Justice: An Urgent Need to Address Lengthy Court Delays in Canada (Final Report) (June 2017) at 7 (Chair: The Honourable Bob Runciman), online: <https://sencanada.ca/content/sen/committee/421/LCJC/Reports/Court_Delays_Final_Report_e.pdf>. The Final report of the Standing Senate Committee on Legal and Constitutional Affairs (Senate Report 2017) recommended better use of technology in the civilian criminal justice system at 7:

The committee finds that many common practices in the criminal justice system are inefficient and should be replaced by those based on technological solutions. Most procedural matters are still dealt with in front of a judge, such as the setting of dates and rescheduling of court appearances ... Similar efficiencies could be achieved by making videoconferencing technology available to avoid unnecessary in-person appearances and to facilitate communications among various participants in the justice system.

See also Queen’s Regulations and Orders for the Canadian Forces, art 112.64; 112.65; See also above, Chapter 4 (Consultation) at section 4.4.5 (LCol (Ret’d) Perron): “He did agree that technology such a VTC could be used in more simple matters, such as guilty pleas with joint sentencing submissions, to resolve matters without any need for travel, but in more complex cases, he felt that an in-person trial was more appropriate.”; This was recommended in the Bronson Report (DMP), supra note 9 at 17 : “We feel that more efficient use, aided by technology, could be made of the Gatineau facility where all of the Judges are located.”

¹⁴ See above, Chapter 4 (Consultation), at sections 4.5.3 (CANSOFCOM) and 4.5.4.2.1 (4 CDSG & 2 CMBG), for different perspectives on how such situations can occur within the current system. See also one of the key observations from consultation relating to this point, above Chapter 4 (Consultation) at section 4.6.

¹⁵ This option assumes that the new sentencing options provided for under Bill C-15, Strengthening Military Justice in the Defence of Canada Act, SC 2013, c 24, will enter into force. See Legislative Summary of Bill C-15: Canada, Department of National Defence, Legislative Summary of Bill C-15: An Act to amend the National Defence Act and to make consequential amendments to other Acts (Ottawa: Department of National Defence, 2013), online : <https://lop.parl.ca/About/Parliament/LegislativeSummaries/bills_ls.asp?ls=c15&Parl=41&Ses=1&Language=E#a38>.

See also the Lamer Report, supra note 12 at 66: “It is clear that there is a need for more flexible sentencing powers in the military justice system, including some of the sentencing options that are available in the civilian criminal justice system”; see also See also, Lamer Report, ibid at 65: “As was made clear in my discussions with various members of the Canadian Forces, including the court martial judges and presiding officers, and as highlighted in the CBA Submission and the JAG Report, the sentencing provisions under the NDA require extensive reform. The current powers of punishment are not adequate.”

¹⁶ This was recommended in the Lamer Report, ibid at 65-66.

¹⁷ This was recommended in the Lesage Report, supra note 8 at 46 and the Senate Report 2009, supra note 12 at 29-30.

¹⁸ This was recommended in the Senate Report 2009, supra note 12 at 29-30 and by Drapeau, supra note 7.

¹⁹ Criminal Code, supra note 7, ss 742-742.7.

²⁰ Ibid, s 742.1.

²¹ Ibid, s 731-733.1.

²² Ibid, s 731.

²³ Ibid, s 730.

²⁴ Similar to s 227 of the NDA regarding orders to comply with the Sex Offender Information Registration Act, SC 2004, c 10.

²⁵ The concept of transferring responsibility over an offender to civilian authorities already exists under the NDA with respect to persons found unfit to stand trial or not criminally responsible (who then fall within the jurisdiction of provincially-constituted civilian Review Boards under Part III, Division 7 of the NDA). This concept also appears to exist within the UK’s court martial system, where service community orders can be imposed at the Court Martial, but only apply once a sentenced offender is dismissed from military service – at which point the person would be supervised by civilian authorities: see above, Chapter 5 (Comparative) at section 5.2.5 (United Kingdom).

²⁶ Lamer Report, supra note 12 at 66: “the sentencing provisions under the NDA require extensive reform. The current powers of punishment are not adequate.” See also Senate Report 2009, supra note 12 at 25-27:

The Committee is concerned with the current lack of flexibility in the range of punishments and sanctions for accused under the Code of Service Discipline … However, we are of the view that adding some of the sentencing options available in the Criminal Code to the NDA would improve the military justice system… the Committee endorses the Lamer Report’s finding that because the military justice system has jurisdiction over members of the regular force, the reserve force and in certain cases, civilians, the range of punishments and sentences must be appropriate for all of these groups.

²⁷ R v Proulx, [2000] 1 SCR 61, para 23: “While a suspended sentence with probation is primarily a rehabilitative sentencing tool, the evidence suggests that Parliament intended a conditional sentence to address both punitive and rehabilitative objectives.” See also paras 22-37.

²⁸ See Drapeau, supra note 7:

Fourth, persons prosecuted before military tribunals do not benefit from the wide range of sentencing options available to those convicted by a civilian court. They are not entitled to a suspended sentence, a conditional discharge, a probationary order and a sentence of imprisonment to be served in the community or within their unit. Nor are they given equality of treatment with respect to intermittent sentences. While section 732 of the Criminal Code fixes at 90 days the maximum length of imprisonment for the availability of an intermittent sentence, the 2013 amendments to the NDA makes this kind of sentence available only if its length does not exceed 14 days.