Chapter 6: Pre-Trial Matters

CONTACT WITH CLIENT

When DDCS advises a CO of the appointment of a DDCS lawyer to represent an accused at court martial, the DDCS response will include the advice that the accused should contact the DDCS lawyer appointed. The initial consultation with the client is typically little more than an exchange of general information; however, it is of paramount importance that, during this initial consultation with the client, counsel ensure the client is aware of the following:

• the necessity of private communications between the two;
• the meaning, scope and importance of solicitor-client privilege; and
• the requirement for the client to provide counsel, as soon as possible, with the names of likely witnesses for both the trial proper and, should the case advance that far, sentencing.

After having received the prosecution's disclosure documents and having consulted with the client, counsel will be knowledgeable of many, if not most, of the legal and factual issues requiring research. Often, it will not be necessary for counsel to travel to the client's location more than a few days prior to the commencement of trial since a great deal of preparation can be accomplished in Ottawa – where all regular force DDCS counsel are posted – or in the city of residence of the reserve force DDCS counsel.

DISCLOSURE¹

The CO is to ensure that the accused is provided with a copy of, or given access to, any information that either is to be relied on as evidence at the summary trial² or tends to show that the accused did not commit the offence charged.³ This information must be provided in sufficient time for the accused to consider it in making an election to be tried by court martial or summary trial.⁴

This minimum disclosure, however, falls short of the disclosure requirements for courts martial. The Supreme Court of Canada has effectively elevated disclosure to a constitutional right.⁵

Modern disclosure law originates with the case of R. v. Stinchcombe,⁶ and may be summarized as follows:

• The fruits of an investigation that are in the possession of the prosecution are not the property of the prosecution for use in securing a conviction; rather they are the property of the public to ensure that justice is done.
• The general principle is that all relevant information must be disclosed, whether or not the prosecution intends to introduce it in evidence. The prosecution must disclose all relevant information – whether it is inculpatory or exculpatory – and must produce information that may assist the accused. If the information is of no use then it is irrelevant and will be excluded by counsel for the prosecution in the exercise of discretion, which is reviewable by the trial judge.
• The overriding concern is that failure to disclose impedes the accused's ability to make full answer and defence.
• Information should not be withheld if there is a reasonable possibility that its being withheld will impair the accused's right to make full answer and defence. The withholding of evidence relevant to the defence may only be justified on the basis of the existence of a legal privilege or other exception.
• All statements obtained from persons who have provided relevant information to the authorities should be produced even though the prosecution does not propose to call them. When statements are not in existence, other information, such as investigator's notes, must be produced; if there are no notes, then, in addition to the name, address and occupation of the witness, all information in the possession of the prosecution relating to any relevant evidence that the person could give should be disclosed.
• The prosecution's obligation to disclose is a continuing one, and disclosure must be made with respect to additional information when it is received.

The guiding principle is always full disclosure of the prosecution's case-in-chief as well as all other evidence relevant to the guilt or innocence of the accused. However, in this respect, Stinchcombe and the subsequent authorities speak more broadly than merely in terms of "evidence". They also speak of "information" and "material" that may be of use to the accused and that may affect the accused's ability to exercise his or her rights.⁷ As a result, disclosure rules apply not only to matters touching directly or indirectly on the issue of the guilt or innocence of the accused but also to all matters touching on the rights of the accused that may be asserted at trial.

Defence counsel can expect to receive the following as disclosure from the prosecution:

• the names of witnesses the prosecutor proposes to call at the trial, the purpose of calling them and the nature of their proposed evidence;⁸
• any other material that must be disclosed in accordance with common law, applicable legislation, QR&Os or DAODs;
• all relevant military and civilian police reports, including copies of the investigator's notes;
• the text of all utterances concerning the offence that have been made by a person with relevant evidence to an investigator, including
  • a copy or transcription of any notes that were taken by investigators when interviewing the witness; or
  • if there are no notes, a summary of the anticipated evidence of the witness;
• a copy of any written statements of a witness to a person in authority;
• where an accused makes any utterance to a person in authority concerning the offence alleged and
  • the utterance is a written statement, a copy of the statement and a copy of any notes taken by investigators pertaining to the taking of the statement;
  • the utterance is recorded by audio or video equipment, a copy of the recording and access to the original recording; and
  • the utterance is not a written statement and is not recorded by audio or video equipment, a verbatim account, any notes of the statement taken by investigators during the interview and an account or description of the circumstances in which the utterance was heard;
• with respect to audio or video recordings of statements of witnesses (other than the accused) that the prosecutor
  • does intend to introduce as substantive evidence, a copy of the recording and access to the original recording; and
  • does not intend to introduce as substantive evidence, a summary of the contents of the recording and access to the original recording;
• a copy of all expert witness reports relating to the offence, except to the extent that they may contain privileged information;
• copies of all documents and photographs that the prosecution intends to introduce into evidence during the case-in-chief for the prosecution as well as an appropriate opportunity to inspect any case exhibits – whether the prosecution intends to introduce them or not;
• subject to an order prohibiting access or disclosure, any search warrant relied on by the prosecution and, if intercepted private communications will be tendered, a copy of the judicial authorization or written consent under which the private communications were intercepted;
• particulars of similar fact evidence that the prosecution intends to rely on at trial;
• particulars of any procedure(s) used outside court to identify the accused;
• particulars of any other evidence on which the prosecution intends to rely at trial and any information known to the prosecution that the defence may use to impeach the credibility of a prosecution witness in respect of the facts in issue in the case; and
• any information relating to the character of the accused.

The prosecution may consider certain material to be disclosed to be sensitive and may seek some restriction(s) on its provision and use. Courts have permitted restrictions to be put on disclosed material provided they are justified by the unique circumstances of the case.⁹ In this regard, the prosecution may seek an undertaking from defence counsel. DDCS counsel are to always remain mindful not to do anything that might compromise or otherwise detract from their duty to provide the best representation of their client. Counsel should bring before the court martial as a pre-trial application¹⁰ any matter of a proposed restriction on material to be disclosed not resolved to counsel's satisfaction.

DDCS Directive 8

DDCS counsel shall refrain from doing anything that may detract from providing the best representation for the client. DDCS counsel shall consult with the Director before agreeing to any undertaking requested by the prosecution respecting restrictions on material to be disclosed.

PREPARATION FOR TRIAL

Trial preparation requires a great deal of work in a variety of areas. The following are among the more important areas:

• Identification of legal and factual issues – Counsel must
  • examine the charges to determine if they comply with legal requirements such as disclosing a service offence,¹¹ sufficiency of particulars and duplicity or multiplicity;
  • examine the documents respecting the convening of the court martial, along with the facts respecting the convening process, to determine if the court martial has jurisdiction¹² (i.e., to determine if there has been compliance with the relevant regulations for the convening of courts martial and, where applicable, for the appointment of court martial members);¹³
  • examine the totality of the evidence with a view to determining
    • whether there is a factual foundation for the prosecution's case, and
    • the legal issues arising from the evidence; and
  • study and learn in detail the totality of the evidence – in order to do the job of advocate properly, particularly during the cross-examination of witnesses, counsel must be a "master of the facts".
• Identification and gathering of additional necessary information and evidence – Having identified the weaknesses in both the prosecution and defence cases, counsel must identify and gather the needed information, material and evidence as well as locate the required witnesses. This will include determining if expert evidence will be required and, if so, identifying and locating the appropriate expert witnesses.
• Preparation of the case for sentencing – Since sentencing follows immediately after the handing down of a guilty finding,¹⁴ preparation of the case to be advanced in the sentencing phase of the court martial is a standard part of pretrial preparation. This includes extracting relevant material from the client's personnel file¹⁵ such as Personnel Evaluation Reports, Course Reports and other favourable documentation, and identifying witnesses who can give positive evidence in mitigation of punishment.
• Preparation of witnesses – In most instances witnesses likely will have had no experience in testifying in court – especially in a military court – and will likely be apprehensive. Counsel should take the necessary time to ensure that witnesses are familiar with court martial procedure in respect of their role in the proceedings. This will include where they go upon entering the courtroom; paying respects to the court; taking the oath or solemn affirmation; where to sit while giving evidence; how to respond to both examination-in-chief and cross-examination; and what to do when their testimony is finished. Counsel should go over the witness's testimony with a view to advising how it can be most persuasive; however, counsel must refrain from "coaching" witnesses. In some instances it may be beneficial for counsel to conduct a mock examination-in-chief and cross-examination of a witness. If practical, counsel should accompany the witnesses to the courtroom before trial to enable them to get a feel for and become more comfortable with the military courtroom and its surroundings.

OPINION EVIDENCE

It is a general rule of the law of evidence that mere personal belief or opinion is not considered evidence and will not be admissible as such¹⁶ because such opinion usurps the function of the trier of fact. However, there often arise at trial instances where the trier of fact can receive legitimate assistance from opinion evidence without encroaching on the fact-finding function. This occurs respecting matters in issue where the witness is in a position to assist the trier of fact in appreciating and understanding a certain matter.

The first such instance is an exception to the general rule for the non-expert or ordinary witness to give an opinion if he or she is able to accurately express the facts observed and if the opinion has probative value that is not outweighed by such policy considerations as surprising the opposite party, usurping the function of the trier of fact or confusing the issues.¹⁷ For example, with a properly established evidentiary foundation,¹⁸ an ordinary witness may give an opinion regarding the speed of a vehicle,¹⁹ the mental or physical condition of a person,²⁰ the age of a person,²¹ or voice identification.²² However, the facts "observed or experienced" by the non-expert witness must be within the res gestae of the offence charged and must not be based on what the witness has experienced or observed in unrelated circumstances.²³

The second instance occurs when only persons qualified by some special skill, training or expertise – expert witnesses – can provide the requisite assistance – expert evidence – to the trier of fact respecting a matter in issue. The expert witness's opinion is admissible

In this respect, MRE Rule 81 provides that

There are five criteria for the admission of expert evidence:²⁵

• relevance;
• reliability;²⁶
• necessity in assisting the trier of fact;
• the absence of any exclusionary rule; and
• a properly qualified expert.

In determining whether the defence case will require an expert witness to assist the trier of fact, counsel must first address whether an ordinary witness under MRE Rule 64 could provide the necessary and appropriate assistance. Should counsel conclude that an expert witness is required, counsel must address the practical aspects involved – the cost versus the impact of the evidence.

While the effective representation and defence of the client is foremost, since DDCS does not have an inexhaustible budget at its disposal, counsel cannot ignore the expenses of expert witness fees as well as travel and accommodation costs. In this respect, it is wise to remember that a great deal of expertise in a myriad of areas and disciplines exists within the CF, DND and other federal government departments.²⁷

DDCS Directive 9

When requiring an expert witness, DDCS counsel shall determine if the requisite and appropriate expertise is available, firstly, in the CF and, secondly, in DND or elsewhere in the Government of Canada.

In instances where the requisite and appropriate expert witness is not available from within the CF, DND or elsewhere in the Government of Canada, counsel is required to locate the expertise from the civilian sector. In this respect, payment of expert witness fees will be borne by DDCS.

DDCS Directive 10

DDCS counsel shall obtain the approval of the Director prior to retaining an expert witness whenever the travel costs and expert witness fee together exceed $2,000.

Before an expert witness is allowed to voice an opinion on a matter the court must be satisfied that the matter is within the special knowledge of that witness.²⁸ Accordingly, counsel must ensure that the proposed expert witness possesses the necessary qualifications.²⁹ Factors that are considered in determining a witness's status as an expert include the following:

• formal education;
• academic qualifications;
• specialized training;
• membership in professional societies;
• publication of articles or authoritative reports about the area of expertise;
• professional or special awards relating to the area of expertise;
• length and quality of experience in the area of expertise; and
• previous experience as a qualified expert witness in the area of expertise.

As with all witnesses, preparation of the expert witness is important. The effectiveness and value of even the best of experts can be greatly diminished if the expert witness does not appear when testifying to be knowledgeable, thorough and persuasive. The goal is to have the expert witness present his or her testimony in such a manner as to render weak by comparison any conclusions reached by any comparable prosecution expert witness. The following will assist counsel in achieving this goal:

• Become generally acquainted with and knowledgeable about the subject matter before meeting with the expert witness. – This will enable counsel to become aware of what questions are required to be asked, what areas of the case are weak and what areas should be highlighted. While the expert witness can assist in this regard, it will be more effective for counsel to do this prior to meeting with the expert witness.
• Prepare the expert witness to give testimony by explaining the process and going over the anticipated evidence very carefully. – In order that the expert witness may be able to maximize his or her contribution to the case, counsel must ensure that the expert witness knows the weaknesses of the case and what points of evidence are important and are to be emphasized.
• Prepare the expert witness for cross-examination. – Counsel must ensure that the expert witness understands the importance of answering only the question asked and of not volunteering information that is not asked for. Counsel should also remind the expert witness to state his or her views firmly and calmly, to not appear rigid and unreasonable, to not argue with the prosecutor, and that it is not detrimental to agree with reasonable propositions advanced by the prosecutor.

FINANCIAL MATTERS

The DDCS has been entrusted with the administration of a budget for all DDCS-related activities. Except for the temporary duty expenses of the accused to attend the court martial and associated proceedings, which are borne by prosecutorial authorities, all expenses related to the conduct of the defence are borne by DDCS. This includes temporary duty expenses³⁰ for DDCS counsel and military defence witnesses; temporary duty expenses for the accused when he or she is required to travel at the instance of DDCS counsel; fees and travel allowances for civilian defence witnesses;³¹ and expert witness fees. Expenses, allowances and fees relating to witnesses are also borne by DDCS when civilian counsel is representing the accused at court martial, except for expert witness professional fees both for preparation and attendance at court, which remain the responsibility of the accused.

SCHEDULING COURTS MARTIAL

The Court Martial Administrator is responsible for determining the date and venue for a court martial.³² Generally this is done in consultation with the Chief Military Judge, the Director of Military Prosecutions and counsel for the accused. Defence counsel deals with scheduling with a view to being prepared to proceed when the trial is scheduled. Factors from a defence perspective that may influence either the date or the venue of the court martial are immediately brought to the attention of the Director of Military Prosecutions and the Court Martial Administrator.

Footnotes

¹ DDCS counsel should also familiarize themselves with the Director of Military Prosecutions Policy on disclosure.

² QR&O art. 108.15(1)(a).

³ QR&O art. 108.15(1)(b).

⁴ QR&O art. 108.15(2)(a).

⁵ See R. v. Carosella, [1997] 1 SCR 80 and R. v. La, [1997] 2 SCR 680.

⁶ [1991] 3 SCR 326.

⁷ See, for example, R. v. Morra (1991), 5 OR (3d) 255 (OCJ Gen Div); R. v. Gray (1993), 79 CCC (3d) 332 (BCCA); R. Hutter (1993), 16 OR (3d) 145 (Ont CA); and R. v. Egger, [1993] 2 SCR 451.

⁸ QR&O art. 111.11(1).

⁹ See, for example, R. v. Petten (1993), 21 CR (4th) 81 (Nfld SC, App Div).

¹⁰ See QR&O arts. 112.03(2) and 112.05(5)(e).

¹¹ Failure of a charge to disclose a service offence is a ground to plead in bar of trial. QR&O art. 112.24(e).

¹² Absence of jurisdiction is a ground to plead in bar of trial. QR&O art. 112.24(a).

¹³ QR&O art. 111.03 sets out the procedure for the appointment of members of a court martial panel.

¹⁴ QR&O art. 112.05(21).

¹⁵ Subs. 8(1) of the Privacy Act requires the client's written consent in order for counsel to access the client's personnel file.

¹⁶ MRE R. 61.

¹⁷ MRE R. 64, and Graat v. The Queen, [1982] 2 SCR 819.

¹⁸ MRE R. 64(1).

¹⁹ Graat, supra.

²⁰ Ibid.

²¹ R. v. Spera (1915), 25 CCC 180 (Ont. SC App Div).

²² R. v. Rowbotham (1988), 41 CCC (3d) 1 (Ont. CA).

²³ Ferguson v. The Queen, 4 CMAR, at 499.

²⁴ R. v. Abbey (1982), 68 CCC (2d) 394 (SCC), 409.

²⁵ R. v. Mohan, [1994] 2 SCR 9 and MRE R. 3.

²⁶ Mohan did not set out reliability as a separate criterion; however, it was clearly considered as part of the relevancy criterion. Other cases consider reliability as part of the criterion for a properly qualified expert (e.g., see R. v. McIntosh (1997), 117 CCC (3d) 385 (Ont. CA)).

²⁷ CF and DND personnel do not require the payment of expert witness fees. Expert witness fees will generally not be required to be paid to personnel of other federal government departments; however, other federal government departments may seek recompense for the cost of the time of the expert witness.

²⁸ MRE R. 63(1).

²⁹ MRE R. 81(b).

³⁰ QR&O art. 111.16 prescribes that “…legal counsel for the accused…shall not stay in quarters, notwithstanding that quarters may be available, unless it is impractical having regard to the location of the court martial and the constraints of military operations.”

³¹ Pursuant to NDA s. 251.2, these fees and allowances are paid at the scale set for proceeding in the Federal Court of Canada.

³² QR&O art. 111.02(2)(b).