ARCHIVED - Director of Military Prosecutions Annual Report 2010-11
Table of Content
- Main Report
- Appendix A - Courts Martial Statistics
- Appendix B - CMAC Appeals 2010-11
- Appendix C - SCC Appeals 2010-11
This report, covering the period of 1 April 2010 to 31 March 2011, is prepared in accordance with article 110.11 of the Queen's Regulations and Orders for the Canadian Forces (QR&O), which requires the Director of Military Prosecutions1 (DMP) to report annually to the Judge Advocate General (JAG) on the execution of his duties and functions.2 This report is organized into sections that will discuss the following:
To provide competent, fair, swift and deployable prosecution services to the Canadian Forces in Canada and overseas.
“ORDO PER JUSTITIA” or “DISCIPLINE THROUGH JUSTICE”. The Director of Military Prosecutions is a key player in the Canadian military justice system helping to promote discipline, good order, high morale, esprit de corps, group cohesion and operational efficiency and capability.
The Director of Military Prosecutions is appointed by the Minister of National Defence. Although the DMP acts under the general supervision of the Judge Advocate General, he exercises his duties and functions independently. Those duties and functions, which are set out in the National Defence Act (NDA), the Queen's Regulations and Orders for the Canadian Forces, ministerial orders and other agreements, include:
- Reviewing all Code of Service Discipline charges referred to him through the Canadian Forces chain of command and determining whether:
- The charges or other charges founded on the evidence should be tried by court martial; or
- The charges should be dealt with by an officer who has jurisdiction to try the accused by summary trial.
- Conducting – within Canada or at deployed locations overseas – the prosecution of all charges tried by court martial.
- Acting as appellate counsel for the Minister of National Defence on all appeals from courts martial.
- Acting as the representative of the Canadian Forces at all custody review hearings conducted before a military judge.
- Acting as the representative of the Canadian Forces before other boards and tribunals whose jurisdiction touches upon matters relevant to the military justice system.
- Providing legal advice to military police personnel assigned to the Canadian Forces National Investigation Service (CFNIS).
The DMP is assisted in his duties and functions by regular and reserve force legal officers appointed to act as military prosecutors, along with civilian paralegals and support staff. DMP is organized regionally, and consists of:
- DMP headquarters at National Defence Headquarters in Ottawa consisting of the DMP, the Assistant Director of Military Prosecutions (ADMP), two Deputy Directors of Military Prosecutions (DDMP (East) and DDMP (West)), an appellate counsel, a military prosecutor responsible for communications, training and policy development and a legal advisor working directly with the CFNIS;
- Regional Military Prosecutors' (RMP) offices, each with an establishment of two regular force military prosecutors, located at:
- Halifax, Nova Scotia (Atlantic Region),
- Valcartier, Quebec (Eastern Region),
- Ottawa, Ontario (Central Region),
- Edmonton, Alberta (Western Region);
- Reserve force military prosecutors located individually across Canada.
During this reporting period, DMP experienced a number of personnel and position changes at DMP headquarters. A position of ADMP was created. For the third consecutive year, the position of military prosecutor responsible for communications, training and policy development remained vacant, creating a void in an important position within the organization. We benefitted from the full time employment of a reserve force military prosecutor on secondment from the Ontario Attorney General. This experienced civilian Regional Crown attorney was assigned as co-counsel in the high profile court martial in R. v. Semrau.3
The Regional Military Prosecutions offices were also affected by significant personnel changes as four experienced military prosecutors left the DMP for other postings within the Office of the JAG. The arrival of new military prosecutors required training, mentoring and supervision. In addition, a military prosecutor from the Western Region was deployed on a ten month secondment to the Public Prosecution Service of Canada, in Edmonton.
During the previous reporting period, the members of DMP received web-based and classroom conducted JAGNet training in preparation for the roll-out of JAGNet in the current period. JAGNet is now being used on a daily basis by the members of the office. Although JAGNet has improved some aspects of electronic document organization, it does not provide prosecution case management software. Such case management capacity would improve the efficiency of the office of the DMP, facilitate the sharing of information between the regional offices and DMP and would standardize case management.
Regular force military prosecutors, not unlike legal officers, are posted to their positions for a limited period of time – usually three to five years. As such, the training that they receive must support both their current employment as military prosecutors as well as their professional development as officers and military lawyers. The relative brevity of a military prosecutor's posting with the DMP requires a significant and ongoing organizational commitment to provide him or her with the formal training and practical experience necessary to develop the skills, knowledge and judgment essential in an effective military prosecutor.
Given the small size of DMP, much of the required training is provided by organizations external to the Canadian Forces. During the present reporting period, military prosecutors participated in conferences and continuing legal education programs organized by federal, provincial and territorial Heads of Prosecution, the Canadian Bar Association and its provincial affiliates, the Federation of Law Societies of Canada, the Ontario Crown Attorneys Association and various provincial law societies. These programs benefited the Canadian Forces not only through the knowledge imparted and skills developed but also through the professional bonds forged by individual military prosecutors with their colleagues from the provincial and federal prosecution services.
DMP holds an annual workshop for its regular and reserve force military prosecutors. The one day workshop, held in the fall, is part of the annual JAG Continuing Legal Education workshop.
Military prosecutors also took part in a variety of professional development activities, including the legal officer intermediate and advanced training programs, and the officer professional military education program. Finally, in order to maintain their readiness to deploy into a theatre of operations in support of DMP’s mandate, military prosecutors conducted individual military skills training such as weapons familiarization and first aid training.
DMP also provides support to the training activities of other Canadian Forces entities. During the present reporting period, this support included the mentoring and supervision by military prosecutors of a number of junior military lawyers from the Office of the Judge Advocate General, who completed a portion of their "on the job training" program by assisting in the prosecution at courts martial. Military prosecutors also provided presentations to JAG legal officers, military justice training to members of the CFNIS, and served as supervisors for law students articling with the Office of the JAG.
DMP publishes all of its policies. These policies are reviewed regularly. This has been a challenge during this reporting period as the position of the officer assigned to this task remained vacant.
Finally, military prosecutors also play a role in the development of Canadian military justice and criminal justice policy. The DMP continues to play a role in such efforts through his participation on a committee made up of the heads of all federal, provincial and territorial prosecution services.
The nature of the operational tasks entrusted to the Canadian Forces requires the maintenance of a high degree of discipline among Canadian Forces members. Parliament and the courts have long recognized the importance of a separate military Code of Service Discipline to govern the conduct of individual soldiers, sailors and air force personnel and prescribe punishment for disciplinary breaches.
The Code of Service Discipline is designed to assist commanders in the promotion and maintenance of good order, high morale, efficiency, discipline and operational effectiveness. To these ends, the National Defence Act creates a structure of military tribunals as the ultimate means of enforcing discipline. Among these tribunals are the courts martial and the Court Martial Appeal Court of Canada (CMAC).
During the present reporting period, military prosecutors represented the interests of the Canadian Forces and the general public in a number of different types of judicial proceedings related to the military justice system. These proceedings included courts martial, appeals from courts martial and reviews of pre-trial custody.
During the reporting period, the DMP received 119 applications for disposal of a charge or charges from referral authorities. When an application for disposal is received, a military prosecutor is designated to perform a review of the case. Following this review, charges are preferred to court martial. A decision not to prefer any charges to court martial was made in respect of 16 applications.
For the period, 67 members of the Canadian Forces faced a total of 210 charges. Sixty-nine courts martial were held.
Out of the 69 courts martial held, 66 trials were held before a Standing Court Martial (SCM), composed of a military judge sitting alone. In addition, there were three trials held before a General Court Martial (GCM), composed of five Canadian Forces members as triers of fact and a military judge as the trier of law. One GCM was partially conducted in Afghanistan.
At the conclusion of 61 of the trials, the trier of fact made a finding of guilty in respect of at least one charge. The remaining eight trials had not guilty findings on all charges. There were no instances where there was either a stay or a withdrawal of all charges.
While only one sentence may be passed on an offender at a court martial, a sentence may involve more than one punishment. The 61 sentences pronounced by courts martial during the reporting period involved 101 punishments. A fine was the most common punishment, with 49 fines being imposed. Seven punishments of imprisonment and six punishments of detention were also imposed by the courts. Of those 13; five were suspended sentences, which means, in the context of the Code of Service Discipline, that that the offender does not have to serve out the sentence of imprisonment or detention.
The following court martial cases were of interest:
R. v. Capt Semrau4
Capt Semrau was a member of the Operational Mentoring and Liaison Team assigned to the 2nd Kandak (Battalion) of the Afghan National Army. In October 2008, during a patrol in Helmand Province, Capt Semrau fired his rifle into the body of a severely wounded suspected Taliban insurgent. Capt Semrau was tried by a General Court Martial on four charges: second degree murder, attempt to commit murder with a firearm, behaving in a disgraceful manner, and conduct to the prejudice of good order and discipline. As part of the proceedings, the court martial was partially held on location in Afghanistan. Capt Semrau was convicted on the charge of behaving in a disgraceful manner and sentenced to dismissal from Her Majesty's service and a reduction in rank to Second Lieutenant.
R. v. BGen Ménard5
Brigadier-General (BGen) Ménard was the Commander of Task Force Kandahar. In March 2010 at Kandahar Airfield (KAF), BGen Ménard negligently fired two rounds from his rifle while readying the weapon prior to departing KAF. A Standing Court Martial was convened and BGen Ménard pleaded guilty to a charge of neglect to the prejudice of good order and discipline pursuant to section 129 of the NDA. He was sentenced to a fine in the amount of $3500.00.
During the reporting period the Court Martial Appeal Court of Canada rendered a decision on seven appeals. Five appeals had been initiated by members of the Canadian Forces who had been convicted and sentenced by court martial; two were initiated by the Crown.
The following appeals cases are of particular interest:
Ex-OS Ellis v. R.6
Ex-OS Ellis faced, before a Standing Court Martial, two charges of trafficking in cocaine and two charges of conduct to the prejudice of good order and discipline for using cocaine. Ex-OS Ellis brought a motion to challenge the constitutionality of the scale of punishments under s.139 of the NDA. Section 139 enumerates the kind and range of punishments that a military court can impose for a service offence. The military judge found Ex-OS Ellis guilty on all charges, dismissed the constitutional challenge and sentenced him to nine months imprisonment.
Ex-OS Ellis filed an appeal with the CMAC with respect to the legality of the sentence and an application for leave to appeal the fitness of his sentence. At the CMAC, the appellant argued that s. 139 of the NDA and the sentencing regime in place violated the right to life, liberty and security of the person (section 7) as well as the presumption of innocence (paragraph 11(d)) and subjected then accused to cruel and unusual treatment or punishment (section 12). The CMAC dismissed the appeal. The court concluded that the particular facts did not support the constitutional challenge as the punishment of imprisonment imposed was appropriate.
Cpl Liwyj v. R.7
Cpl Liwyj was tried by Standing Court Martial on three counts of disobedience of a lawful command under s.83 of the NDA. At trial, Cpl Liwyj argued that the orders that had been given to him to adjust brakes in a specific manner were not lawful being himself of the opinion that the method recommended was unsafe. Alternatively, he argued that he did not have the necessary blameworthy state of mind when he disobeyed the orders. The SCM found Cpl Liwyj guilty all three counts, and he was sentenced to a reprimand and a fine of $750.
Cpl Liwyj filed a notice of appeal and an application for leave to appeal the severity of the sentence with the CMAC. At the CMAC, the appellant argued that the judge erred in finding that the orders given to him by his superiors were lawful. The appellant also argued that the judge erred in deciding that his defence of mistake of fact had no “air of reality”. The CMAC dismissed both grounds of appeal. The court did not interfere with the military judge finding of fact that the safety issue was not obvious. The court restated that an unlawful order is an order that meet the high threshold of being manifestly illegal; an order that offend the conscience of every reasonable, right-thinking person, and an order that is obviously and flagrantly wrong. A mere disagreement between fair-minded persons as to the method best suited to get a job done in a particular set of circumstances would not reach that threshold. The court stated as well that the reasonable belief of the appellant that he could disobey a lawful order simply because he personally considered it to be unsafe would constitute a mistake of law. Mistake of law is not a defence when it relates to obeying a manifestly unlawful command and it should not be when it relates to disobedience of a lawful command
The CMAC however varied the sentence imposed by removing the reprimand, leaving the fine of $750.
Cpl Wilcox v. R.
Cpl Wilcox was charged with manslaughter, criminal negligence causing death, and negligent performance of a military duty, all arising from an incident in Afghanistan in March 2007. Cpl Wilcox was convicted of criminal negligence causing death and of negligent performance of a military duty. The GCM panel stayed the manslaughter charge. Cpl Wilcox was sentenced to four years imprisonment and dismissal from Her Majesty’s Service.
Corporal Wilcox appealed the legality of the findings of the GCM and the severity of the sentence imposed by the judge. Among the grounds of appeal, Cpl Wilcox argued that the panel that tried him was not properly constituted. At the beginning of the GCM, the military judge had excluded a panel member and refused to replace him with an alternate on the ground that the law did not allow him to do so.
The DMP conceded this ground of appeal. As a result, the Court ordered that the charges be retried at a new court martial.
Capt Winters v. R.8
The charge at the origin of this case was brought under section 129 of the NDA for an act prejudicial to good order and discipline. Capt Winters had connected an unauthorized electronic device to the Defence network contrary to the intranet security directives and caused the introduction of a virus in the computer network. At a Standing Court Martial, Capt Winters initially entered a guilty plea which was accepted by the military judge. During the sentencing phase the judge held that the alleged contravention was not to a regulation, as specified in the particulars of the charge, but to a directive. The judge decided it was not in the interest of justice for the Court to accept the guilty plea. Having refused the requests of the military prosecutor for an amendment to the charge sheet or an adjournment to summon witnesses, the Court pronounced a not guilty verdict. The DMP filed an appeal to the CMAC. In its decision, the CMAC held that s. 129 NDA does not create two distinct offences. Subsection 129 (2) of the NDA only creates a presumption of prejudice to good order and discipline as well as the existence of a causal relationship between the act and the prejudice. The prosecution's loss of the benefit of the presumption does not put an end to the prosecution and to the possibility of the accused pleading guilty. The court also held that the military judge erred in his reasoning when he concluded that he could not amend the charge sheet as requested by the prosecution and when refusing an adjournment. The CMAC restored the guilty plea and returned the case to court martial for sentencing.
R. v. Szczerbaniwicz
The Supreme Court of Canada (SCC) rendered a decision in the appeal of LCol Szczerbaniwicz that had been argued in the previous reporting period.9 In that case, the appeal had been initiated by LCol Szczerbaniwicz whose appeal had been denied at the CMAC. The SCC ultimately upheld the military judge’s original finding.
LCol Szczerbaniwicz was found guilty by a Standing Court Martial of one charge of assault contrary to section 266 of the Criminal Code. At trial, the military judge rejected the statutory defence of property pursuant to s. 39 of the Cr. C. concluding that the accused used excessive force. LCol Szczerbaniwicz appealed the verdict of guilty to the CMAC. In its decision, the majority of the CMAC rejected the appeal.10 However, one of the appellate judges delivered a dissenting judgment indicating that he would have granted the appeal.
LCol Szczerbaniwicz appealed to the SCC. On 6 May 2010, the SCC dismissed the appeal. The majority found that there was nothing in the trial judge’s decision to suggest that he had misapplied the proper legal test set out in R. v. D.(W.) as it pertained to his assessment of the conflicting evidence and the concept of ‘reasonable doubt’. The majority also concluded that, to be able to rely on the defence of property, an accused must establish that the force used was reasonable in the circumstances.
R. v. St-Onge
The DMP appealed to the SCC the decision of the CMAC in R. v. St-Onge11. Ex-Pte St-Onge pleaded guilty at a Standing Court Martial to five charges including possession of cannabis, use of cannabis, use of methamphetamines, possession of military munitions and verbal threats to a superior. The military judge imposed a sentence of imprisonment for a period of 30 days. Ex-Pte St-Onge appealed to the CMAC. In its decision the majority granted the appeal on the severity of sentence and reduced it to a fine of $3000.00. The dissenting judge would have dismissed the appeal as to sentence on the grounds that the applicable standard of review did not allow a court of appeal to intervene. The DMP filed a notice of appeal to the SCC. On 24 March 2011, the SCC held an oral hearing in the case. The SCC decision in R. v. St-Onge had not been released by the end of the reporting period.12
R. v. Savaria
During the reporting period, an application for leave to appeal was filed with the SCC by a convicted member whose appeal was denied at the CMAC.13 On 19 August 2010, the SCC dismissed the application for leave to appeal.
Military judges are, in certain circumstances, required to review orders made to retain a Canadian Forces member in service custody. DMP represents the interest of the Canadian Forces at such hearings. During the reporting period, military prosecutors appeared at three pre-trial custody review hearing.
Throughout this year, the officers and supporting staff of the DMP from across Canada have continued to deliver positive results. We have consolidated the gains in terms of timelines from referral to preferral. There is still however some residual concern on the timelines from charge laying to referral to DMP. Recent efforts on means to accelerate trial scheduling processes have not completely resolve the issue of delay. It is also the intention of DMP to persist in pressing the previous initiatives to reduce court martial delays that were identified in prior DMP Annual Reports. As we must deal with cases coast to coast we will seek to establish new regional offices. I intend to make submissions for the establishment of two additional regional offices in Borden, Ontario and in Esquimalt, British-Columbia.
Military prosecutors’ skills development through targeted professional initiatives, secondments, deployments and direct mentoring continues to be a priority. This is particularly important for the many new prosecutors who have joined our service this year. This should help build the core competencies of our prosecutors and assist this relatively new organization to grow in maturity as it enters its second decade of existence, in a way that will better serve the interests of military justice and promote fair trial outcomes.
I am pleased with the achievements during the reporting period. I continue to be very proud of our small yet remarkable team of civilian employees and military members. Our efforts, in the years ahead, will continue to focus on enhancing the professional development of our officers and ensuring that matters referred to DMP are dealt with without unreasonable delay.
1 The DMP for the reporting period was Captain (Navy) J.C. Maguire, who was appointed to a four year term on 19 September 2009.
3 For more details about the court martial in R. v. Semrau see section Military Justice Proceedings below.
4 R. v. Semrau 2010 CM 4010.
5 R. v. Ménard 2010 CM 1012.
6 Ellis v. R. 2010 CMAC 3.
7 Liwyj v. R. 2010 CMAC 6.
8 Winters v. R. 2011 CMAC 1.
9 R. v. Szczerbaniwicz  1 S.C.R. 455.
10 Szczerbaniwicz v. R. 2009 CMAC 4.
11 2010 CMAC 7.
12 The judgment of the Supreme Court of Canada in R. v. St-Onge,  1 S.C.R. 625, was delivered on 1 April 2011.
13 Savaria v. R. 2010 CMAC 1.
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