Chapter 7: The Court Martial

GENERAL – THE COURT MARTIAL¹

A court martial not only has the formality, decorum and dignity of a civilian superior court of criminal jurisdiction but also the flavour and decorum traditionally associated with formal military proceedings. Courts martial are generally conducted at the military establishment of or near the place of commission of the alleged offence(s). The accused's unit is responsible for providing the necessary administrative support “to the extent required to ensure that the court martial is conducted in a dignified and military manner.” ²

For all practical purposes, a court martial has four stages:

• preliminary proceedings;
• the trial proper;
• if there is a finding of guilty, the sentencing; and
• if there is a sentence of detention or imprisonment and if the offender applies, the release pending appeal.

COURT MARTIAL PROCEDURE

The procedure followed at a court martial is not unlike that at a civilian criminal court. The burden of persuasion incumbent on the prosecution is proof beyond a reasonable doubt.³ One notable difference is that the admission of evidence is governed by the MRE,⁴ which are merely a codification of the common law of evidence, albeit not completely up-to-date with the latest developments in common law.

In brief, the procedure⁵ at a court martial is as follows:

1. witnesses are not admitted to the proceedings except when testifying or by leave of the court;⁶
2. the prosecution may make an opening address,⁷ after which it adduces its evidence;⁸
3. at the completion of the prosecution case, the defence may make an opening address,⁹ after which it adduces its evidence, if any;
4. prosecution rebuttal witnesses, if any, testify;¹⁰
5. the prosecution and defence, respectively, make closing arguments;¹¹
6. the finding is pronounced;¹²
7. if a finding of guilty is made, the military judge conducts a sentencing hearing and pronounces sentence;¹³ and
8. if the judge imposes a sentence of detention or imprisonment, and if the offender applies, the court conducts a hearing to determine if the offender should be released from custody pending an appeal to the Court Martial Appeal Court.¹⁴

This procedure applies – with the necessary changes or variations – to all proceedings conducted as part of a court martial. The nature of the particular proceeding and the party having the burden of persuasion determines what changes or variations, if any, may be required. For example, when the defence makes an application or motion it has the burden of persuasion and must address the court and call evidence first. In this respect, the defence may be afforded some latitude from strict application of the rules governing examination-in-chief, which is “necessary to enable the accused to make full answer and defence.” ¹⁵ As well, the defence has the opportunity to call rebuttal evidence and to reply to the prosecution's address on the matter.

PRELIMINARY PROCEEDINGS

Prior to a plea being entered to the charge(s), the military judge assigned to preside at the court martial may conduct hearings on any question, matter or objection¹⁶ provided that counsel requesting the hearing gives “reasonable notice in writing to the military judge and to the opposing party.” ¹⁷ Typical preliminary proceedings include the following:

1. applications for a plea in bar of trial;¹⁸
2. applications for exclusion of evidence or other appropriate relief respecting a violation of the accused's rights under the Canadian Charter of Rights and Freedoms; and
3. motions respecting the admissibility of evidence (e.g., MRE Rule 42 – voluntariness of a statement by an accused to a person in authority or Military MRE Rule 22 – similar fact evidence).

In Disciplinary and General Courts Martial, preliminary proceedings are generally conducted before the court martial panel assembles,¹⁹ except for an application challenging a panel member.²⁰ In Standing and Special General Courts Martial, matters that would otherwise be the subject of preliminary proceedings are heard at the discretion of the military judge²¹ either before or after the accused's plea to the charge(s).

Preliminary proceedings may, with the agreement of the prosecutor and the accused and with the approval of the judge, be conducted by any means that allow all of the parties to engage in simultaneous visual and oral communication.²²

THE TRIAL PROPER

After the completion of any preliminary proceedings and other preliminary matters,²³ including objections to the military judge and pleas in bar of trial, the accused pleads to the charge(s).²⁴ In General and Disciplinary Courts Martial, when the accused has pleaded not guilty to the charge(s), the panel assembles and objections to members of the panel,²⁵ if any, are heard. Following this, members of the panel take their oaths.²⁶ The remainder of the trial is then conducted as previously described.

FINDINGS

Findings in Standing and Special General Courts Martial are made by the military judge, while findings in General and Disciplinary Courts Martial are determined by the vote of a majority of the members²⁷ and, after the judge has verified their legality,²⁸ are pronounced in open court by the senior member.²⁹ In all four courts martial, the burden of proof incumbent on the prosecution is beyond a reasonable doubt.³⁰

In certain circumstances it may be that the

• facts proved differ materially from the allegations in the charge but are sufficient to establish the commission of the offence(s) charged; and
• difference between the facts proved and the facts alleged was not prejudicial to the accused's defence.

In such instances, it is open to the court martial to pronounce a special finding³¹ of guilty rather than pronounce a finding of not guilty. In pronouncing such a special finding the court martial must state the differences between the facts it has found and the facts charged. For example, the court would state that it finds the accused guilty of stealing a sum of one hundred dollars versus the one thousand dollars as alleged.

SENTENCING

The sentence pronounced by a service tribunal may comprise one or more punishments.³² As noted above, at a court martial the sentencing phase of the trial takes place immediately after the pronouncement of a guilty finding and is conducted by the military judge.³³ Unlike a civilian criminal trial, where defence counsel generally submit sentencing reports and speak to sentence in lieu of calling witnesses, in a court martial the testimony of witnesses is expected in support of such submissions. Otherwise, the procedure³⁴ is the same as for the trial proper:

• the MRE apply;³⁵
• the prosecution and defence, respectively, call their evidence;
• the prosecution calls rebuttal evidence, if any, and if authorized by the military judge; and
• the prosecution and the defence, respectively, address the military judge.

In determining the appropriate sentence the military judge follows the principles of sentencing³⁶ applied by civilian criminal courts.³⁷

The judge may take into consideration in determining sentence any previous service offence(s) similar in character to the offence(s) that are the subject of sentencing, provided the offender requests such and admits to having committed them.³⁸ The impact of such an admission by the offender is to preclude another court from passing a sentence in respect of such previous service offence(s).

THE GUILTY PLEA

When an accused pleads guilty to a charge at a court martial, the court embarks on a detailed procedure³⁹ designed to ensure that the accused has made an informed decision respecting the guilty plea. The military judge is required to

• explain the offence(s) to which the accused has pleaded guilty;
• inform the accused of the maximum punishment that can be imposed;
• ask the accused if the particulars alleged in the charge(s) are accurate; and
• explain the difference in procedure if the guilty plea is accepted.⁴⁰

The prosecution then informs the court of its position respecting acceptance of the plea⁴¹ if the accused is pleading guilty to

• a less serious alternative charge;⁴²
• a related or less serious offence prescribed in NDA sections 133-136;
• an attempt to commit the offence charged;⁴³ or
• facts that differ materially from the facts alleged in the charge but that are still sufficient to establish the offence.

If the prosecution concurs in the acceptance of the guilty plea,⁴⁴ and if the court is satisfied that the accused is making an informed plea,⁴⁵ the court may accept and record that plea. Otherwise, the court martial proceeds as if the accused had initially pleaded not guilty.⁴⁶

A guilty plea is usually the result of plea and sentence negotiations between the prosecution and the defence. Such negotiations are an important and necessary part of the Canadian criminal justice system.⁴⁷ Guilty pleas help to accelerate the criminal trial plea of guilty to an offence is a legitimate factor to be considered by the sentencing judge in the accused's benefit.

As a general rule, when a court martial accepts a guilty plea no evidence is called respecting the offence(s) in question. Instead, the prosecutor informs the court of the circumstances of the offence(s) to which the accused has pleaded guilty.⁴⁸ This statement of circumstances is comprised of those facts that could have been proved by admissible evidence at trial and is, often, prepared with input from the defence.

There may be cases where the accused wishes to plead guilty to the charge(s) but is not in agreement with the statement of circumstances proposed by the prosecution. If the prosecution concurs in the acceptance of the guilty plea, or the prosecution's concurrence is not required, the military judge may accept the guilty plea and conduct a hearing to determine the precise circumstances of the offence.⁴⁹

Defence counsel will naturally endeavour to achieve a statement of circumstances that places the accused in the best light. However, in instances where the accused testifies in mitigation of punishment, defence counsel must ensure that any of the accused's testimony that may bear on an essential ingredient of the charge(s) in question is in consonance with the statement of particulars of the charge(s) and the statement of circumstances. Should there be an irreconcilable contradiction, the court martial may have no other choice but to direct that the guilty plea be altered to a not guilty plea and that a full trial be conducted with respect to the charge(s) in question.⁵⁰ In such circumstances the result may not be in the accused's best interests.

JOINT SUBMISSIONS ON SENTENCE

It is not unusual for plea, trial and sentence negotiations to culminate in a prosecution and defence agreement on sentence or on a sentencing range. While the regulations respecting court martial procedure nowhere specifically address this matter, it is becoming increasingly customary in courts martial that the prosecution and defence make a joint submission on sentence.

Joint submissions on sentence are not binding on a sentencing judge. However, it is established that a sentencing judge should observe the joint submission unless the proposed sentence would either bring the administration of justice into disrepute or would otherwise not be in the public interest.⁵¹

DDCS Directive 11

In instances where a joint recommendation respecting sentence is to be made by the prosecution and the defence, DDCS counsel shall ensure that the client is aware that such is not binding on the military judge.

RELEASE PENDING APPEAL⁵²

An offender who has been tried and sentenced by court martial has the right to appeal the legality of the finding(s) as well as the legality and severity of the sentence to the Court Martial Appeal Court.⁵³ When a court martial imposes a punishment of detention or imprisonment the offender may, within 24 hours of being sentenced, apply to the court martial⁵⁴ to be released from incarceration pending his or her appeal.⁵⁵

To initiate the release pending appeal process the offender must, within 24 hours of the imposition of the custodial sentence, deliver either to the judge presiding at the court martial or to the person having custody of him or her a signed application⁵⁶ to be released pending appeal. The hearing for the application will be conducted at the earliest practical time after receipt of the application by the judge.⁵⁷

The applicant has the burden at the application hearing to establish on a balance of probabilities that⁵⁸

• he or she intends to appeal;
• if the appeal is against sentence only, it would cause unnecessary hardship if he or she were to remain in custody;
• he or she will surrender himself or herself into custody when directed to do so; and
• the custodial sentence is not necessary in the interest of the public or the CF.

The procedure governing the conduct of this hearing⁵⁹ is quite similar to that governing the conduct of the court martial. In brief

• the applicant and prosecution, respectively, may make an opening statement;
• the applicant and the prosecution, respectively, adduce their evidence;
• the applicant and the prosecution, respectively, may make a closing address to the court; the applicant has a right to reply to any closing address by the prosecution; and
• the court determines whether the applicant has met the necessary burden and announces its decision.

The court may grant the application if the applicant has established his or her case on a balance of probabilities and gives a signed undertaking⁶⁰ to

• remain under military authority;
• surrender into custody when directed to do so; and
• comply with any other reasonable conditions the court may stipulate.⁶¹

Offenders who are sentenced to a custodial term by a court martial and who appeal the findings or sentence may, if they have not brought an application for release pending appeal at court martial, bring the application to the Court Martial Appeal Court.⁶² In such instances, the offender may be represented by DDCS counsel.⁶³

Footnotes

¹ QR&O Chapter 112 sets out courts martial procedure.

² QR&O art. 111.12.

³ QR&O art. 112.40(1).

⁴ MRE R. 3 provides that the Rules apply to all court martial proceedings wherever they are conducted.

⁵ The sequence of events in the procedure set out at QR&O art. 112.05 is not absolute and, at the discretion of the judge, may be varied to suit the ends of justice.

⁶ NDA subs. 180(3).

⁷ QR&O 112.05(10) and QR&O art. 112.28.

⁸ See QR&O art. 112.31 respecting the examination of witnesses.

⁹ QR&O art. 112.05(14) and QR&O art. 112.29.

¹⁰ QR&O art. 112.05(18).

¹¹ QR&O art. 112.05(19)(a) and (b), respectively. This is quite different from the procedure in a civilian criminal court where the defence makes the first closing argument if evidence has been called.

¹² QR&O art. 112.05(19)(f). See QR&O art. 112.40 for directions respecting findings.

¹³ QR&O arts. 112.05(21) and 112.47 and QR&O arts. 112.48-112.55.

¹⁴ QR&O Chapter 118.

¹⁵ R. v. Garofoli, [1990] 2 SCR 1421, per Sopinka J., at 1465. This addresses the situation where the defence must, as part of its application, call a witness who in all other respects is a prosecution witness – for example, in support of an application under subs. 10(b) of the Charter, the arresting police officer or the person in authority who took the accused's statement.

¹⁶ QR&O art. 112.03.

¹⁷ QR&O art. 112.04(1).

¹⁸ QR&O art. 112.24(1) lists the five grounds on which an accused may plead in bar of trial. QR&O art. 112.24(2) – (10) sets out the procedure to be followed.

¹⁹ NDA subs. 187(a).

²⁰ NDA subs. 186(1). See QR&O art. 112.14 respecting objections to the constitution of the court martial.

²¹ QR&O art. 112.03(2).

²² QR&O art. 112.64.

²³ QR&O art. 112.05(3) – (5).

²⁴ QR&O art. 112.05(6). The procedure respecting the acceptance of guilty pleas is set out in QR&O art. 112.25. (See also Acceptance of Guilty Pleas, infra).

²⁵ QR&O art. 112.05(9)(b) and NDA subs. 186(1). There are no peremptory challenges to members of the court martial panel. The procedure respecting challenges to members of the court martial panel is set out in QR&O art. 112.14.

²⁶ QR&O art. 112.05(9)(c). See QR&O art. 112.17 for the form of oath.

²⁷ See NDA subs.192(2) and QR&O art. 112.41 for the procedure respecting voting on findings.

²⁸ QR&O arts. 112.05(19)(e) and 112.43.

²⁹ QR&O art. 112.05(19)(f).

³⁰ QR&O art. 112.40(1).

³¹ NDA s.138.

³² See NDA subs. 139(1) for the scale of punishments. QR&O Chapter 104 elaborates on each punishment.

³³ NDA ss. 174-175, 176-177 and 193.

³⁴ See QR&O art. 112.51 for sentencing procedure at a court martial.

³⁵ As a matter of practice in the sentencing phase of a court martial, military judges generally afford some latitude from the strict application of the MRE, except in the circumstances in QR&O art. 112.52 respecting disputed facts and QR&O art. 112.53 respecting aggravating facts.

³⁶ The accepted principles of sentencing are the protection of the public (which includes the CF); the punishment of the offender; specific and general deterrence; and reformation and rehabilitation of the offender.

³⁷ In addition, QR&O art. 112.48(2) specifically requires the judge to take into consideration any indirect consequence of the finding or of the sentence, and to impose a sentence commensurate with both the gravity of the offence(s) and the previous character of the offender – i.e., to impose a sentence that is “as low as is reasonably possible without minimizing the seriousness of the offence of which the [offender] has been convicted” (unreported reasons for judgement in Captain Luc Paquette and Her Majesty The Queen, CMAC # 418 dated 19 October, 1998, per Weiler JA, at 8).

³⁸ NDA subs. 194(1).

³⁹ See QR&O art. 112.25.

⁴⁰ QR&O art. 112.25(1).

⁴¹ QR&O art. 112.25(2).

⁴² See QR&O art. 107.05 respecting alternative charges.

⁴³ NDA s. 137.

⁴⁴ QR&O art. 112.25(3).

⁴⁵ QR&O art. 112.25(5).

⁴⁶ QR&O art. 112.25(6).

⁴⁷ See, for example, R. v. S.K. (1995), 99 CCC (3^rd) 376 (Ont. CA), at 382, and R. v. Closs (1988), 105 OAC 392 (CA).

⁴⁸ QR&O art. 112.51(3).

⁴⁹ QR&O arts. 112.52 and 112.53.

⁵⁰ QR&O art. 112.26(1).

⁵¹ R. v. Taylor, 2008 CMAC 1 (CMAC 497).

⁵² See QR&O Chapter 118.

⁵³ NDA s. 230.

⁵⁴ NDA s. 248.1. (QR&O art. 118.02.).

⁵⁵ QR&O art. 118.01 defines "release pending appeal" as “release from detention or imprisonment (a) until the expiration or the time to appeal referred to in…the [NDA] and (b) if there is an appeal…until determination of that appeal.”

⁵⁶ QR&O art. 118.03(1).

⁵⁷ QR&O art. 118.03(4)(a).

⁵⁸ NDA s. 248.3. See also R. v. Wilcox, 2009 CMAC 7 (CMAC-536).

⁵⁹ QR&O art. 118.04 sets out the procedure to be followed at the hearing.

⁶⁰ NDA s. 248.5. The form of the undertaking is at QR&O art. 118.08(2).

⁶¹ Such "other reasonable conditions" may be the applicant's surrendering his or her passport, or undertaking to be of good behaviour, or to refrain from consuming alcoholic beverages or from attending certain establishments, etc.

⁶² NDA s. 248.2.

⁶³ QR&O art. 101.20(3)(b).