Chapter 16 – Appeals - Court Martial Comprehensive Review – Interim Report
16.1 Introduction
As discussed in Chapter 7, the appeal mechanisms and system within the court martial system is, and is generally perceived to be, efficient, mostly effective, and mostly legitimate. However, as noted in that chapter, some aspects of the current system might nonetheless benefit from considerations for improvement.
This chapter will discuss several possible changes that could improve various features of the court martial appeals system related to appeals in terms of effectiveness, efficiency and legitimacy. The representative options described below would focus particularly on the features of generating accurate / correct outcomes, timely outcomes, and intelligibility.
As a preliminary consideration, there are several changes that could be made to how appeals are dealt with in the court martial system that would be common to both of the options discussed below.
First, a coordinated approach to facilitate familiarization training and exposure to the CAF could be provided for appellate judges.1 Such training and exposure could promote military knowledge of civilian judges who may have no military training or experience, and would likely increase the generation of accurate / correct outcomes in the court martial system.
Second, the scope of the Minister’s rights of appeal (exercised through the military prosecution service) could be modified to mirror the rights of appeal that civilian prosecutors have within the civilian criminal justice system.2 Currently, the Minister can appeal a finding of not guilty on a question of law alone or of mixed law and fact,3 whereas civilian prosecution services can only appeal a finding of not guilty on a question of law alone.4 Aligning the Minister’s right of appeal with that of civilian prosecution services would likely increase the intelligibility of the court martial system.
Similarly, the scope of an offender’s right of appeal could be modified to align the appeals of a finding of guilty on a question of fact and to mirror an offender’s rights of appeal in the civilian justice system.5 This change could likely increase the intelligibility of the court martial system.
16.2 Option 1: Incremental change – Minor changes to existing court and appeal structures
Under this option, the existing appeal court and structures would remain intact and the Court Martial Appeal Court of Canada (CMAC) would continue to have jurisdiction to hear appeals of decisions from courts martial.6 This option would provide that the judges of the CMAC would be cross-appointed solely from the provincial Superior Courts and Courts of Appeal. This option would provide that a Federal Court / Federal Court of Appeal judge would serve as Chief Justice of the CMAC.
The judges of the CMAC (including the Chief Justice) would continue to be designated by Governor in Council and there would be no set limit on the number of judges who could be appointed to the CMAC.
16.2.1 Assessment of Option 1
It is assessed that this option may promote more timely outcomes and an increase in the generation of accurate / correct outcomes, since it would ensure that all CMAC judges have criminal law and appellate expertise.7 Both Superior Court judges and judges of the provincial Courts of Appeal preside over criminal appeals – the former as Summary Conviction Appeal Courts hearing appeals in criminal matters from inferior provincial courts in respect of summary conviction offences, and the latter hearing criminal appeals in respect of indictable offences.
It is assessed that this option might also increase the intelligibility of the court martial system by ensuring that appellate judges, who regularly preside over criminal appeals, would preside over court martial appeals, instead of federal court judges who do not necessarily have equivalent criminal appeal expertise.
16.3 Option 2: Abolish the CMAC – Appeals from courts martial are made to the provincial Courts of Appeal
Under this option, the existing court and appeal structures would be abolished. This option would provide for any appeals from courts martial to be made to the Court of Appeal of the province in which the court martial occurred.8
16.3.1 Assessment of Option 2
It is assessed that, under this option, there could be an increase in timely outcomes and in the generation of accurate / correct outcomes as it would ensure that the appellate judges would have significant criminal and appellate expertise. However, under this option, it is also possible that – as military appeals would become part of the broader civilian justice system – there would be a decrease in timely outcomes9 as any court martial appeal would be heard in the ordinary course of appeals within the civilian justice system instead of as a matter of priority.
It is assessed that, under this option, there would be a decrease in the scalability of the court martial system as this option would not have a mechanism within the court martial system that permits the system to rapidly adapt to large changes in the volume of cases that may proceed within the system. As the number of provincial appellate judges is fixed in statutes, it would be difficult for there to be an augmentation of appellate judges, should the need arise. However, it should be noted that there was an average of 5.6 appellate decisions each year at the CMAC in the last 5 years.
It is assessed that, under this option, there may be an increase in the intelligibility of the court martial system as all appeals related to offences committed by military personnel would be dealt with by the civilian justice system which may be more familiar and comprehensible to the CAF and broader public. While the details regarding appellate structures and processes in both the current court martial system and the civilian justice system are perhaps not well understood by the general public, this option could be explained very simply as providing identical treatment to military personnel as any civilian in the same circumstances in that province would receive.
Footnotes
1 For instance, through the National Judicial Institute. See also above, Chapter 4 (Consultation) at section 4.4.5 (LCol (Ret’d) Perron).
2 This was recommended by Michel W Drapeau & Gilles Létourneau, Behind the times: Modernization of Canadian Military Criminal Justice, (2017), at 63-64 [Drapeau & Létourneau] :
Under section230.1 of the NDA the prosecution can appeal to the CMAC against the legality of a finding of not guilty…. The prosecution in military trials can appeal on a question of mixed law and fact. In a criminal trial before a civilian tribunal no such power exists for the prosecution. The prosecution’s appeal is limited to a pure question of law…. Thus the military prosecution possesses a broader right of appeal which puts an accused at greater jeopardy than that of a civilian facing criminal prosecution before a civilian tribunal.
3 National Defence Act, RSC 1985, c N-5, s 230.1(b) [NDA].
4 Criminal Code, RSC 1985, c C-46, s 676(1)(a).
5 This was recommended by Létourneau & Drapeau, supra note 2 at 64 :
Also, an accused’s right of appeal against a military finding of guilt is narrower than an accused’s right against a similar finding made by a civilian criminal court. As a matter of fact subparagraph 675(1)(a)(ii) of the Criminal Code allows a person convicted by a civilian criminal court to appeal against the finding of guilt on a question of fact with leave of the Court of Appeal or a certificate of the trial judge that the case is a proper case for appeal. An accused tried by a military tribunal is not given that right by the NDA.
See also above, Chapter 4 (Consultation), at section 4.5.4.1.1 (2 Can Div Pers Svcs – CO): “Lastly, the CO suggested that offenders and the prosecution service in the court martial system should have the same rights of appeal as exist in the Canadian criminal justice system.”
6 NDA, supra note 3, s 234(1).
7 For instance, in Ontario, on average, half of the cases that the Court of Appeal hears are criminal matters. See online: <http://www.ontariocourts.ca/coa/en/ps/annualreport/2013.htm#stat>. In British Columbia, on average a third of the cases that the Court of Appeal hears are criminal matters. See online: <http://www.courts.gov.bc.ca/Court_of_Appeal/about_the_court_of_appeal/annual_report/2016_CA_Annual_Report.pdf>.
8 This option would effectively implement the model that is currently used in Ireland, where the Irish Court of Appeal is the court that hears appeals from court martial decisions. See above, Chapter 5 (Comparative), at section 5.2.4 (Ireland).
9 For instance, in Ontario and British Columbia, it takes more than a year from the date of the filing of the appeal to the date of the hearing. See supra, note 7.