Chapter 4: Advisory Services

GENERAL

DDCS is mandated to provide legal advice on a broad range of matters¹ to persons subject to the Code of Service Discipline.² DDCS does not, however, provide legal advice or services respecting matters not likely to be tried under the Code of Service Discipline. In such instances, the services of civilian counsel must be obtained and privately paid for. It also should be noted that DDCS services are not provided when civilian counsel has also been retained.³ This practice conforms to rules of professional conduct prohibiting the provision of advice and services to another lawyer's client without the other lawyer's knowledge and consent.⁴

DDCS provides a 24-hours-a-day, bilingual duty counsel service for persons⁵ subject to the Code of Service Discipline who require legal advice respecting allegations of the commission of a service offence.⁶ While the subsequent conversation invokes the doctrine of solicitor-client privilege,⁷ the DDCS lawyer providing advice in a particular situation may not be the lawyer appointed to defend at a court martial, should the matter advance that far.

ADVICE ON ARREST OR DETENTION

Section 10 of the Charter provides that:

The matter of arrest is fairly straightforward.⁸ More problematic is the interpretation of "detention". In this respect, the leading cases of R. v. Therens⁹ and R. v. Thomsen¹⁰ established the following¹¹:

• "detention", as used in section 10 of the Charter, is a restraint of liberty, other than arrest, in which a person may reasonably require the assistance of counsel but may be prevented or impeded from retaining and instructing counsel without delay but for the constitutional guarantee;
• there is a detention within section 10 of the Charter when a person in authority assumes control over the movement of another person¹² by a demand or direction that may have significant legal consequence and that prevents or impedes access to counsel;
• the necessary element of compulsion or coercion to constitute a detention may arise from criminal liability for refusal to comply with a demand or direction, or from a reasonable belief that there is no choice but to comply;¹³ and
• section 10 applies to a great variety of detentions¹⁴ of varying duration and is not confined to those of such duration as to make the effective use of habeas corpus possible.¹⁵

The existence of a detention within the meaning of section 10 turns on the particular facts of each case. However, the following are some of the factors to be considered:¹⁶

• the precise language used by the person or persons in authority in seeking to question the accused;
• the choice or choices, if any, offered to the accused;
• whether the accused was under escort or acting voluntarily;
• whether the accused left at the end of the interview or was arrested;
• the stage of the investigation (i.e., whether the questioning of the accused was part of the general investigation of an offence or possible offence or for the purpose of obtaining self-incriminating statements);
• whether there existed reasonable and probable grounds to believe that the accused had committed or was involved in the offence being investigated;
• the nature of the questions (i.e., were the questions of a general nature designed to obtain general information or was the accused confronted with evidence pointing to his or her guilt); and
• the accused's personal circumstances (e.g., intelligence, emotional balance, youth, experience, sophistication).

In brief, "detention", as used in section 10 of the Charter, is a physical or psychological restraint of liberty. Its existence is determined by examining the overall situation, taking into consideration what is said and done by all the relevant actors and in what manner.¹⁷

In order to make it effective, the Supreme Court of Canada has held that the substantive constitutional right to retain and instruct counsel without delay¹⁸ includes the right to

• have a reasonable opportunity to exercise the right to counsel;¹⁹
• have questioning and other aspects of the search for self-incriminatory evidence curtailed until the reasonable opportunity has been exercised;²⁰ and
• be informed about legal aid, duty counsel and other services²¹ in existence and available²² to provide free, preliminary legal advice.

In addressing the issue of detention within the meaning of section 10 of the Charter, DDCS lawyers must be aware of and alert to as well as consider very carefully the dimension added by unique military factors such as the following:

• subordinates are statutorily obliged to follow the orders, unless manifestly unlawful,²³ of their superiors in rank,²⁴ and must generally endeavour to comply with the requests of their superiors in rank; and
• the unique circumstances arising from and connected with deployment on operations.

FACTORS AFFECTING ELECTION AS TO MODE OF TRIAL²⁵

Except in the circumstances²⁶ described at QR&O article 108.17(1)(a) and (b), an accused charged with a service offence has the right to elect trial by court martial. Both the person charged with a service offence and the assisting officer may seek legal advice in this regard from DDCS.²⁷

The following are some of the important factors to be considered in making this decision.

• The nature and gravity of the offence(s) – Summary trials are meant to deal only with minor service offences.²⁸
• The technical nature of the offence(s) and/or of the available defence(s) – Neither assisting officers nor presiding officers are legally trained. Offences or defences involving technical legal aspects, such as colour of right or induced error of law, are likely to be better understood by lawyers and judges than by lay persons.
• Powers of punishment – The maximum powers of punishment of a summary trial presiding officer are considerably less than those of a military judge at a court martial.
• Right to representation – An accused has a right to legal counsel at a court martial and is entitled to be provided with such by DDCS. There is no right to legal representation at a summary trial.²⁹
• Reception of evidence – The Military Rules of Evidence do not apply at a summary trial. Consequently, certain evidence that may be inadmissible at a court martial may be considered at a summary trial.
• Right to appeal – The finding and sentence of a court martial is amenable to formal appeal to the Court Martial Appeal Court. Persons convicted and sentenced by summary trial may only request a review³⁰ of the finding or punishment by a "review authority".³¹
• The nature of the process – A summary trial is an informal process meant to deal expeditiously with minor service offences. A court martial is a lengthier, formal legal proceeding that affords the accused full constitutional and legal rights.
• Prosecutorial discretion – At a summary trial, the presiding officer proceeds with all charges in the Record of Disciplinary proceedings. In court martial proceedings, the Director of Military Prosecutions determines the charges by an exercise of discretion in accordance with a charge screening policy.
• Attendance of civilian witnesses – A summary trial has no legal means to compel the attendance of civilian witnesses. Civilians may, by summons, be compelled to attend as witnesses at a court martial.³²
• Release pending appeal review – A person sentenced to a punishment of imprisonment or detention imposed by a court martial may apply to that court martial to be released from custody pending an appeal of the findings and/or sentence.³³ A similar right exists for members sentenced to detention at a summary trial. Where an accused delivers a request for review of the finding or sentence, the review authority shall suspend the carrying into effect of the punishment of detention pending completion of the review.³⁴

ASSISTING OFFICERS AND SUMMARY TRIALS³⁵

An assisting officer is an officer or non-commissioned member who has been appointed, pursuant to QR&O article 108.14(1),³⁶ as soon as possible after a charge has been laid to assist the accused. It is the assisting officer's duty to

• ensure, before the accused makes a decision to be tried by summary trial or court martial, that the accused is aware of
  • the nature and gravity of the offence(s) charged; and
  • the differences between summary trial and court martial;³⁷
• assist in the preparation of the accused's case, to the extent desired by the accused;
• advise the accused regarding witnesses, evidence and any other matter relating to the charge(s) or trial; and
• assist and speak for the accused during the trial,³⁸ to the extent desired by the accused.

The right of an accused to make full answer and defence, regardless of the mode of trial, is fundamental to Canadian criminal justice and, accordingly, applies to summary trials. Included in this right is the right of the accused to disclosure of the case to be made against him or her.³⁹ At a summary trial, the accused and the assisting officer must, in sufficient time to allow for consideration respecting selection of mode of trial and to properly prepare the case prior to summary trial,⁴⁰ be provided with a copy of, or given access to, any information⁴¹ that

• is to be relied on at trial; and
• tends to show that the accused did not commit the offence(s) charged.⁴²

In view of the legal ramifications of their duties and responsibilities, assisting officers are able and encouraged to seek legal advice from DDCS.⁴³ Assisting officers are not lawyers; therefore, protections afforded to lawyers – including solicitor-client privilege – do not apply to them.⁴⁴ Nonetheless, assisting officers should not divulge to anyone any communications with or information obtained from an accused without first seeking legal advice from DDCS.

SUMMARY INVESTIGATIONS OR BOARDS OF INQUIRY⁴⁵

Another group of persons subject to the Code of Service Discipline eligible to seek legal advice from DDCS are those who are under investigation by a summary investigation or a board of inquiry.⁴⁶ Summary investigations and boards of inquiry are the two mandated means of formally inquiring into and investigating any matter connected with the

While they may discover evidence and information respecting the commission of service offences, summary investigations and boards of inquiry neither supplant nor supplement a police investigation. Indeed, they may not be conducted for a primarily criminal or disciplinary purpose.⁴⁸

The goal of both a summary investigation and board of inquiry is to determine the facts of a particular situation and, with a view to the future well-being, efficiency and smooth running of the CF, to make recommendations respecting the facts determined.

Personnel involved as witnesses in summary investigations or boards of inquiry are often unfamiliar with the respective processes and procedures. The situation is likely somewhat more troublesome for the witness who also is, or who is likely to be, the subject of a police investigation. Such persons will likely require legal advice respecting their situation vis-à-vis the summary investigation or board of inquiry before which they are to be witnesses. DDCS provides advice to all persons subject to the Code of Service Discipline who are, or who are likely to be, witnesses before a summary investigation or board of inquiry.

The summary investigation is the less formal and more expeditious of the two types of investigation. It is normally composed of one investigating officer and, sometimes, an adviser. The investigating officer may compel the attendance and the disclosure of evidence of military personnel, but has no jurisdiction or authority over civilians. The less formal nature of the summary investigation is demonstrated by the absence of formal requirements governing its nature and conduct (e.g., the investigating officer lacks the authority to receive sworn testimony). Telephone interviews or hearsay may, in a particular instance, be considered as adequate evidence.

A board of inquiry is a formal investigative body that finds its legal basis in subsection 45(1) of the NDA. It is composed of two or more officers or two or more officers together with one or more non-commissioned members above the rank of sergeant,⁴⁹ and may include an adviser.

Unlike a summary investigation, a board of inquiry may compel the attendance of civilians.⁵⁰ Evidence taken by a board of inquiry must be on oath or solemn affirmation,⁵¹ and all witnesses are obliged to answer the questions put to them.⁵² Furthermore, witnesses before a board of inquiry are subject to penal sanction for various actions amounting to contempt⁵³ and for giving false evidence.⁵⁴

A witness before a board of inquiry may be compelled to give self-incriminating testimony.⁵⁵ However, such testimony may not be used against the witness in subsequent proceedings,⁵⁶ with the exception of charges of giving false or contradictory evidence or of perjury.⁵⁷ Finally, neither the report of a summary investigation nor the minutes of a board of inquiry are receivable in evidence at either a summary trial⁵⁸ or a court martial.⁵⁹

Footnotes

¹ See QR&O art. 101.20(2) and Chapter 1 of this Manual.

² See NDA s. 60 for the persons subject to the Code of Service Discipline.

³ QR&O art. 101.20(6).

⁴ Canadian Bar Association, Code of Professional Conduct, c. XVI, commentary 8.

⁵ QR&O art. 105.08(1) requires that “…a person who is arrested or detained, shall, without delay, be informed: …(d) that the person has the right to have access to free and immediate advice from duty counsel provided by the Director of Defence Counsel Services or other duty counsel in the jurisdiction where the person is arrested or detained, and how duty counsel may be contacted.”

⁶ See footnote 9 in Chapter 1 of this Manual.

⁷ Tapper, Cross and Tapper on Evidence, 8^th ed. (London: Butterworth's, 1995), 477-78.

⁸ See QR&O Chapter 105 respecting arrest under the Code of Service Discipline.

⁹ [1985] 1 SCR 613.

¹⁰ [1988] 1 SCR 640, at 649.

¹¹ See also R. v. Grant 2009 SCC 32 (not every interaction between an individual and a police officer is detention), and R. v. Suberu 2009 SCC 33 (psychological detention).

¹² See, for example, R. v. Harder (1988), 49 CCC (3d) 565 (BCCA).

¹³ See, for example, R. v. Johns (1998), 123 CCC (3d) 190 (Ont. CA).

¹⁴ See, for example, Harder, Johns and Thomsen, supra; R. v. Mickey (1988), 46 CCC (3d) 278 (BCCA); and R. v. Moran (1987), 36 CCC (3d) 225 (Ont. CA).

¹⁵ See, for example, R v. Schrenk 2010 MBCA 38 (as to whether detention occurred after a valid roadside traffic stop, made pursuant to provincial legislation and justified by s. 1 of the Charter).

¹⁶ Moran, supra, 258 – 59.

¹⁷ R. v. Keats (1987), 60 CR (3d) 250 (Nfld. CA).

¹⁸ See Suberu, supra.

¹⁹ R. v. Manninen, [1987] 1 SCR 1233; R . v. Brydges, [1990] 1 SCR 190; and R. v. Bartle, [1994] 3 SCR 173.

²⁰ Ibid.

²¹ Brydges, supra; Bartle, supra.

²² In R. v. Prosper, [1994] 3 SCR 236, the Supreme Court of Canada held that there is no requirement to provide this information should no such services be available.

²³ QR&O art. 19.015, Note B.

²⁴ See NDA s. 83 and QR&O art. 19.015.

²⁵ For a more thorough discussion, see DND publication A-LG-050-000/AF-001 – The Election to Be Tried by Summary Trial or Court Martial.

²⁶ See pages 2-6 – 2-7 of this Manual.

²⁷ QR&O art. 101.20(2)(d).

²⁸ QR&O art. 108.02.

²⁹ Participation of a lawyer at a summary trial is at the discretion of the presiding officer (See Note B to QR&O 108.14). DDCS lawyers are not available to provide representational services at summary trials.

³⁰ QR&O art. 108.45.

³¹ The "review authority" is the next officer to whom the presiding officer is responsible in matters of discipline (QR&O art. 108.45(2)).

³² NDA subs. 249.22(1).

³³ NDA s. 248.1. See also QR&O Chapter 118.

³⁴ QR&O art. 108.45(17).

³⁵ For a more complete discussion on assisting officers, see DND publication A-LG-050-000/AF-001 – The Election to Be Tried by Summary Trial or Court Martial and the JAG publication Military Justice at the Summary Trial Level. Assisting officers should be quite knowledgeable of both publications.

³⁶ QR&O art. 108.03.

³⁷ QR&O art. 108.14(5).

³⁸ QR&O art. 108.14(4).

³⁹ R. v. Stinchcombe, [1991] 3 SCR 326.

⁴⁰ QR&O art. 108.15(2).

⁴¹ See Note B to QR&O art. 108.15.

⁴² QR&O art. 108.15(1).

⁴³ QR&O arts. 101.20(2)(c) and (d). Note that the legal advice is typically of a general nature only.

⁴⁴ This reflects the current state of the law. However, because of the potential grave adverse effect on the integrity and effectiveness of the assisting officer's role and, therefore, on the summary trial process, in the military context, justice is better served if communications between the assisting officer and the accused are accorded confidentiality. See Military Justice at the Summary Trial Level, Chapter 9, Section 3.

⁴⁵ See QR&O Chapter 21, DAOD 7002 Series, and CANFORGEN Message 105/11 CRS 091228Z June 2011.

⁴⁶ QR&O art. 101.20(2)(i).

⁴⁷ DAOD 7002-0 (BOI and SI). Matters typically the subject of a summary investigation would be injuries to personnel, minor damage to materiel or property, and sub-standard performance of equipment, personnel or military organizations (DAOD 7002-2). A board of inquiry, on the other hand, is typically convened to investigate matters considered to be much more serious or complex or to be of significant consequence to the CF (e.g., death of a CF member while on non-combat duty; loss, theft or misuse of or significant damage to major materiel). See DAOD 7002-1. See also Military Justice at the Summary Trial Level, Annex D.

⁴⁸ See DAOD 7002-1 for BOI, and DAOD 7002-2 for SI.

⁴⁹ QR&O art. 21.08(1).

⁵⁰ NDA subs. 45(2)(a).

⁵¹ QR&O art. 21.10(3).

⁵² NDA subs. 45(2)(a).

⁵³ NDA s. 302.

⁵⁴ NDA s. 119; Criminal Code ss. 131 and 136–139.

⁵⁵ NDA subs. 45.1(1).

⁵⁶ NDA subs. 45.1(2); Charter of Rights and Freedoms s.13; Canada Evidence Act, RSC 1985, Chapter C-5, subs. 5(2).

⁵⁷ Ibid.

⁵⁸ QR&O art. 21.16(2).

⁵⁹ QR&O art. 21.16(1).