Director of Defence Counsel Services Annual Report 2013-14

Table of Content

• Main Report
• Appendix: Synopsis of Appeals

Introduction

1. This annual report covers the period from 1 April 2013 to 31 March 2014. It is prepared in accordance with article 101.11 of the Queens’ Regulations and Orders for the Canadian Forces (QR&O) which sets out the legal services which are prescribed to be performed by the Director of Defence Counsel Services (DDCS) and requires the DDCS to report annually to the Judge Advocate General (JAG) on the provision of these legal services and the performance of other duties undertaken in the furtherance of the DDCS mandate. The Director during this period was Colonel D.K. Fullerton.

Role of DDCS and the Organization and Personnel of DCS

Role of the DDCS

2. The DDCS is appointed by the Minister of National Defence under section 249.18 of the National Defence Act (NDA). Although he acts under the general supervision of the JAG, he exercises his duties and functions in a manner which is consistent with his responsibility to look to the individual interests of those who seek advice and representation from or through Defence Counsel Services. The DDCS provides, supervises and directs the provision of the following legal services, as set out in QR&O article 101.11:

• legal advice to arrested or detained persons;
• legal counsel to an accused person where there are reasonable grounds to believe the accused person is unfit to stand trial;
• legal advice of a general nature to an assisting officer or an accused person on matters relating to summary trials;
• legal advice with respect to the making of an election to be tried by court martial;
• legal counsel for a hearing addressing pre-trial custody under subsection 159(1) of the NDA;
• legal counsel to an accused person in respect of whom an application to refer charges to court martial has been made;
• legal counsel to the respondent where the Minister appeals a finding or sentence or the severity of a sentence awarded by court martial;
• legal counsel to an appellant with the approval of the Appeal Committee established under QR&O article 101.19; and
• legal advice to a person who is the subject of an investigation under the Code of Service Discipline, a summary investigation or a board of inquiry.

Organization and Personnel of DCS

3. During this reporting period the Office of DCS consisted of the Director, the assistant director and six Regular Force legal officers working out of the Asticou Centre in Gatineau, Québec as well as five Reserve Force legal officers in practice at various locations in Canada, one of whom has left DDCS to join as a Regular Force officer posted to another part of the Office of the JAG (OJAG).

4. Administrative support is provided by two clerical personnel occupying positions classified at the level of CR3 and CR5, as well as a paralegal who provides legal research services and administrative support for courts martial and appeals. Our CR5 position is presently under review for higher reclassification consistent with other divisions of the OJAG.

5. Pursuant to section 249.2 of the NDA the Director of Defence Counsel Services acts under the general supervision of the JAG, who may issue general instructions or guidelines in writing in respect of Defence Counsel Services. During this reporting period no such general instructions or guidelines in writing were issued.

Services and Activities

Professional Development

6. The National Criminal Law Program remains the primary source of training in criminal law for defence counsel with DCS. In July 2013 seven Regular Force lawyers and three Reservists attended this program. Additionally, counsel attended an annual one-day DCS in-house training program which dealt with a variety of issues including developments in criminal law and decisions of the Court Martial Appeal Court (CMAC). Certain specific other courses were attended to meet the professional needs of individual counsel.

Duty Counsel Services

7. Bilingual service is available 24/7 to CF members, as well as to others who are subject to the Code of Service Discipline while serving abroad. DCS counsel provide advice through a toll-free number that is distributed throughout the CF. The services provided are generally as follows:

• 1-800 access line to ensure availability of legal advice upon arrest or detention with the number provided to military police and other CF authorities likely to be involved in investigations of a disciplinary or criminal nature as well as being available on our website.
• Standard direct telephone access, available to accused persons subject to the Code of Service Discipline, for advice in relation to an election between court martial and summary trial, questions on other disciplinary matters, or all other matters authorized under the QR&O.
• Clients occasionally use email to initiate contact with DCS.

During the reporting period, DCS counsel recorded 1586 calls on the duty counsel line. The calls ranged in duration but, on average, were just over 22 minutes.

Court Martial Services

8. When facing a court martial, an accused person has the right to be represented by DCS counsel at public expense, may retain legal counsel at his or her own expense or may choose not to be represented.

9. Our records indicate that 64 people were represented at their courts martial by DCS officers during this reporting period. Pursuant to the authority granted under ss. 249.21(2) of the NDA, the DDCS may hire civilian counsel at public expense in cases where, having received a request for representation by DCS counsel, no member of the DCS office can represent the particular accused. This may be because of a conflict of interest or because no suitable DCS officer is available. During this reporting period, two accused were represented at their courts martial by civilian counsel hired by DCS.

Appellate Services

10. Seventeen appeals were touched on by DCS at various points during this reporting period. Four of these appeals to the CMAC were generated by the prosecution. In thirteen cases, the appeal was filed by or on behalf of the member of the Canadian Forces. Two of these cases were joined together by the CMAC and an application was filed for leave to appeal to the Supreme Court of Canada. In two cases the accused were represented by civilian counsel at public expense on their appeals. In one case the accused hired civilian counsel at his own expense.

11. In those cases in which an appeal or a cross-appeal was entered by DMP, the accused was automatically entitled to representation by DCS counsel. During this period, the accused submitted to the Appeal Committee, pursuant to article QR&O 101.20(2)(h), twelve requests for representation by DCS. Of these twelve requests, ten were approved by the Appeal Committee, and two were denied.

Some sense of the issues and tenor of the appeals during this period is provided in the cases summarized in the appendix.

Ongoing Issues and Concerns

12. It has been traditional in the annual report to discuss events or concerns that have arisen during the reporting period and have add an impact on the operation of this office.

DCS personnel and administrative support

13. The administrative assistant (CR-5) position was submitted during the last reporting period for re-evaluation and potential upgrading to an AS-1 position. This was done to reflect the nature of the work performed and to ensure a level of parity between this position and those doing similar work within other parts of the OJAG and the Canadian Forces. We understand that this process can take up to two years for consideration. If successful this upgrade should support continuity of staffing within DCS and eliminate a bar to retaining experienced personnel.

14. We currently have reserve counsel in British Columbia, Québec, and Ontario. The DCS reserve bar is an important resource which, during this reporting period, continued to make a significant contribution to the realization of our mandate.

15. During this reporting period, I was required to undergo, in stages, fourteen weeks of full-time second language training. This enhanced linguistic requirement was indicated to be a precondition to remaining in the Canadian Forces. During these periods of training the duties of director were largely performed on Sundays, by Blackberry and by relying on a capable assistant director to act in my stead. While the linguistic requirement was successfully achieved, these events did have a substantial impact on the overall operation and resources of this office and highlight a strain that can exist between the statutory role and mandate of DDCS and the general obligations of military life.

Conclusion

16. Again this has been a challenging and interesting period for defence counsel within DCS. As I write this report, we stand at the door of the Supreme Court of Canada which has granted leave on some important issues that may delineate the parameters of our system of military justice. As in years past, our first priority has been to work with, and on behalf of, members of the Canadian Forces who are charged with service offences. It is a privilege to work for members and to assist them as they go through what is often an extremely difficult time in their careers and in their lives. Some go on to have full military careers and to be solid members of the military community. Others rejoin civilian life and, what we hope is, an opportunity to retake their place as productive members of Canadian civilian society.

D. K. Fullerton
Colonel
Director Defence Counsel Services
8 August 2014