ARCHIVED - Director of Military Prosecutions Annual Report 2011-12
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Director of Military Prosecutions' Perspective
I am pleased to present the Director of Military Prosecutions' (DMP) Annual Report for 2011-2012. Throughout this challenging year, the prosecutors and supporting staff of the Canadian Military Prosecution Service (CMPS), from across Canada, have performed extremely well in the fulfilment of the DMP’s mandate. On behalf of this entire team, I detail our accomplishments and preview the way ahead for the organization.
Throughout the last year, the CMPS has undertaken the prosecution of all courts martial and represented the Canadian Forces (CF) for all custody review hearings. The CMPS also conducted appeals in the Court Martial Appeal Court (CMAC) and provided advice and training to the Canadian Forces National Investigation Service (CFNIS). Both Regular Force and Reserve Force prosecutors have conducted sensitive and high profile prosecutions in different parts of the country. Two senior prosecutors deployed overseas assisted in the Office of the Judge Advocate General’s mission to support CF military operations. While the impact on the organization with the loss of two key players was not insignificant, the members of the CMPS through hard work and dedication, continued to perform admirably.
The concern highlighted in the previous report regarding the timelines from charge laying to referral to DMP remains a concern. The trial scheduling process is also less than optimal. We will continue to strive to improve the situation on both of these fronts. We have achieved positive results in the training and general development of our prosecutors but this is an ongoing task as we still have a relatively junior core of officers.
The CMPS has adapted well to its minor leadership reorganization that took place during the previous reporting period. I believe that in the medium term, this reorganization will improve the supervision of and support to prosecutors, resulting in higher quality prosecution services. I am hopeful that we will be able to establish a new Regional Military Prosecutor’s office in Esquimalt, British Columbia, in the next fiscal year to better address prosecutorial needs in the Pacific region.
This has once again been a busy and productive year and I wish to thank all military and civilian staff for their hard work and constant dedication.
Colonel J.A.M. Léveillée, CD
Director of Military Prosecutions
This report, covering the period of 1 April 2011 to 31 March 2012, is prepared in accordance with article 110.11 of the Queen's Regulations and Orders for the Canadian Forces (QR&O), which requires the DMP1 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:
Our Mission
To provide competent, fair, swift and deployable prosecution services to the Canadian Forces in Canada and overseas.
Our Vision
“ORDO PER JUSTITIA” or “DISCIPLINE THROUGH JUSTICE”. The DMP is a key player in the Canadian military justice system helping to promote respect for the law, as well as discipline, good order, high morale, esprit de corps, group cohesion and operational efficiency and capability.
Duties and Functions of the DMP
The DMP is appointed by the Minister of National Defence. Although the DMP acts under the general supervision of the JAG, he exercises his duties and functions independently. Those duties and functions, which are set out in the National Defence Act (NDA), the QR&O, ministerial orders and other agreements, include:
- Reviewing all Code of Service Discipline charges referred to him through the CF 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 CF at all custody review hearings conducted before a military judge.
- Acting as the representative of the CF 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 CFNIS.
Organizational Structure
The DMP is assisted in his duties and functions by Regular Force and Reserve Force legal officers appointed to act as military prosecutors, along with civilian paralegals and support staff. This organization is known as the CMPS. It 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), and
- Edmonton, Alberta (Western Region); and
- Reserve force military prosecutors located individually across Canada.
CMPS Personnel
During this reporting period, CMPS experienced a lower number of personnel and position changes at DMP headquarters than in previous years. For the fourth consecutive year, however, the position of military prosecutor responsible for communications, training and policy development remained vacant, creating a void in an important position within the organization. The office provided two experienced members for overseas deployments. The DDMP (West) was deployed to the Democratic Republic of Congo from April to October 2011. The appellate counsel was deployed to Israel from August 2011 to February 2012.
The Regional Military Prosecution office for the Western region in Edmonton was affected by significant personnel changes as two experienced military prosecutors left the CMPS, one for another posting within the Office of the JAG, and one for a new career with the Public Prosecution Service of Canada. These two prosecutors were replaced by a new military prosecutor, inherently requiring training, mentoring and supervision.
A new, additional prosecutor joined the Regional Military Prosecution office for the Central region in Ottawa as of January 2012.
During the period, significant progress was made for the establishment of a new Regional Military Prosecution office for the Pacific region. This office will be located in Esquimalt, British Columbia.
Training
Regular force military prosecutors, not unlike other 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 CMPS 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 the CMPS, much of the required training is provided by organizations external to the CF. 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 CF 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.
CMPS 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.
CMPS also provides support to the training activities of other CF 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 JAG, who completed a portion of their "on the job training" program by assisting in prosecutions 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.
JAGNet
JAGNet continues to be used as the main electronic filing tool for electronic records of the office. JAGNet does not provide prosecution case management software. Such software would improve the capabilities of the CMPS for efficient and standardized case management.
Policy Development
DMP publishes all policy directives governing prosecutions by the CMPS. 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.
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.
Military Justice Proceedings
The nature of the operational tasks entrusted to the CF requires the maintenance of a high degree of discipline among CF 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 NDA creates a structure of military tribunals as the ultimate means of enforcing discipline. Among these tribunals are courts martial and the CMAC.
During the present reporting period, military prosecutors represented the interests of the CF 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.
Courts Martial
During the reporting period, the DMP received 111 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. During the period, a decision not to prefer any charges to court martial was made in respect of 42 applications.
For the period, 62 members of the CF faced a total of 206 charges. Sixty-two courts martial were held. All courts martial were held in Canada.
Out of the 62 courts martial held, 55 trials were held before a Standing Court Martial (SCM), composed of a military judge sitting alone. In addition, there were seven trials held before a General Court Martial, composed of five CF members as triers of fact and a military judge as the trier of law.
At the conclusion of 56 of the trials, the trier of fact made a finding of guilty in respect of at least one charge. The remaining six 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 56 sentences pronounced by courts martial during the reporting period involved 88 punishments. A fine was the most common punishment, with 45 fines being imposed. Eleven punishments of imprisonment and four punishments of detention were also imposed by the courts. Of those 15, four were suspended sentences, which means, in the context of the Code of Service Discipline, that the sentence is suspended and that the offender does not have to serve out the sentence of imprisonment or detention.
We would like to highlight the following courts martial:
R. v. Corporal Wilcox3
In March 2007, Corporal Wilcox and Corporal Megeney were working with other members of their section on opposite shifts at Entry Control Point 3 in Kandahar, Afghanistan. At the end of their shift, they were transported to their tent. Shortly after being dropped off, a shot was heard and a number of personnel nearby heard screaming and attended at the tent. On arrival, members of the platoon saw or smelled gun smoke in the tent. Corporal Wilcox was seen lowering Corporal Megeney to the ground. Members began first aid on Corporal Megeney and had Corporal Wilcox wait outside. Witnesses speaking with Corporal Wilcox shortly after arriving on scene stated he had made various utterances and statements to them. He stated/implied he had shot Corporal Megeney when they were playing quick draw. Corporal Megeney succumbed to the single gunshot wound to the chest.
A charge under section 130 of the NDA for criminal negligence causing death by using a firearm contrary to subsection 220(a) of the Criminal Code and a charge for negligently performing a military duty contrary to section 124 of the NDA were preferred by the DMP against Corporal Wilcox.
On 16 November 2011, at an SCM, Corporal Wilcox was found guilty of both charges. On 18 November 2011, he was sentenced to imprisonment for a period of three years and two hundred and eighty-nine days.
R. v. Brigadier-General (Ret’d) Ménard4
Brigadier-General Ménard was the Commander of Joint Task Force Afghanistan. He was deployed to Kandahar Airfield (KAF) between 5 November 2009 and 27 April 2010. During his deployment, he maintained an inappropriate personal relationship with a subordinate of the rank of Master Corporal. In theatre, this relationship was contrary to Standing Orders.
Two charges of conduct to the prejudice of good order and discipline pursuant to section 129 of the NDA were preferred by the DMP against Brigadier-General Ménard.
On 21 July 2011, at a SCM, Brigadier-General Ménard pleaded guilty to the charges. He was sentenced to a reduction in rank to Colonel and a fine in the amount of $7000.00.
R. v. Petty Officer 2nd Class Wilks5
Petty Officer 2nd Class Wilks was a medical technician. At the time of the offences, he had to conduct enrolment medical examinations as part of his duties. He conducted examinations in a manner contrary to the CF policy in that he had patients remove clothing, performed breast exams, and performed exams of females without a chaperone.
Two charges of sexual assault and four charges of breach of trust by a public officer, all pursuant to section 130 of the NDA, were preferred by the DMP against Petty Officer 2nd Class Wilks.
On 17 October 2011, at an SCM, Petty Officer 2nd Class Wilks was found guilty of one count of sexual assault and four counts of breach of trust by a public officer. On 12 December 2011 he was sentenced to imprisonment for a period of nine months.
R. v. Corporal Lough6
Corporal Lough was an aviation technician with 1 Air Maintenance Squadron at Canadian Forces Base Cold Lake. In the early morning hours of 1 August 2010, he entered the cadet quarters on base where cadets were sleeping. He got into one bed and straddled a female cadet who struggled with him. He then entered a second room and gripped the throat of a second female cadet. He fled when another occupant of the room awoke. He entered a third room and threatened to harm other cadets unless the lone female present did not comply with his demands. He began to sexually assault her.
Three charges of breaking, entering and committing, two charges of sexual assault and one charge of sexual assault with threat to third party, all pursuant to section 130 of the NDA, were preferred by the DMP against Corporal Lough.
In October 2011, at an SCM, Corporal Lough pleaded guilty to one count of breaking, entering and committing, to a lesser count of assault, and to the charge of sexual assault with threat to third party. On 25 November 2011, he was sentenced to imprisonment for a period of 34 months.
Appeals to the Court Martial Appeal Court
During the reporting period the CMAC rendered a decision on four appeals. One appeal was abandoned by the appellant. Out of these five appeals, three appeals had been initiated by members of the CF who had been convicted and sentenced by court martial; two were initiated by the Crown.
The following appeal case is of particular interest:
Corporal Leblanc v. R.7
From 1 to 5 February 2010, Corporal Leblanc was tried by SCM on one count of negligently performing a military duty contrary to section 124 of the NDA.
In a pre-trial application, Corporal Leblanc unsuccessfully challenged the competence of the SCM, alleging that it was not an independent and impartial tribunal within the meaning of subsection 11(d) of the Canadian Charter of Rights and Freedoms. Corporal Leblanc appealed the legality of his conviction to the CMAC on this and other grounds.
The CMAC allowed the appeal in part. The CMAC found that Military Judges exercise similar functions and have essentially the same powers as judges of superior and provincial courts of criminal jurisdiction and should not be subject to the uncertainty and anxiety of having their positions come up for renewal every five years. The Court also took the view that the age of retirement should be the same for all military judges, regardless of their rank. The Court declared subsections 165.21 (2), (3) and (4) of the NDA and articles 111.15, 111.16 and 111.17 of the QR&O, pertaining to the appointment of military judges, constitutionally invalid and inoperative.
After noting that the government had already shown that it is sensitive to the need to provide better guarantees of security of tenure for Military Judges, the Court suspended the declaration of constitutional invalidity for a period of six months to allow for the necessary legislative amendments to be made. Those amendments were made in Bill C-16, which received Royal Assent on 29 November 2011.8
Annex B provides additional information regarding the appeals to the CMAC.
Appeal to the Supreme Court of Canada
The Supreme Court of Canada (SCC) rendered a decision in the appeal of Private St-Onge that had been argued in the previous reporting period.9 In that case, the decision of the CMAC in R. v. St-Onge10 was appealed to the SCC.
On 26 May 2008, Private St-Onge pleaded guilty at an SCM 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.
Private St-Onge appealed to the CMAC on two grounds: first, that he should not have been found guilty of one charge of possession of cannabis as the infraction was time-barred and, second, that the military judge erred in imposing a sentence of imprisonment for 30 days. In its decision the CMAC unanimously rejected the first ground of appeal. However, the majority granted the appeal on the severity of sentence and reduced it to a fine of $3000.00. The majority ruled that that the military judge had not established that a term of imprisonment was the most appropriate and least restrictive sanction, having regard to the fact that the appellant had previously been administratively released from the CF. 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 SCC heard the appeal on 24 March 2011 and rendered its decision on 1 April 2011. Justice Fish, for a unanimous seven member bench of the SCC, granted the Crown appeal for the reasons expressed by the dissenting judge at the CMAC, essentially that the military judge made no errors that would allow the review of the sentence imposed. Consequently, the sentence of imprisonment was restored.
Appendix C provides information regarding appeals to the SCC.
Custody Reviews
Military Judges are, in certain circumstances, required to review orders made to retain a CF member in service custody. DMP has been representing the CF at such hearings. During the reporting period, military prosecutors appeared at two pre-trial custody review hearings, one of which was held for three CF members.
Footnotes
1 The DMP at the start of the reporting period was Captain(N) J.C. Maguire, who was appointed to a four year term on 19 September 2009. Captain(N) Maguire resigned his appointment effective 7 February 2012. He was immediately replaced on an interim basis by Colonel J.A.M. Léveillée who was then appointed by the Minister of National Defence on 7 March 2012 to be the DMP for a four year term.
2 Previous DMP Annual Reports, along with copies of DMP Policy Directives and other information can be found at the DMP website.
3 R v Wilcox, 2011 CM 3012.
4 R. v. Ménard, 2011 CM 3007.
5 R. v. Wilks, 2011 CM 4029.
6 R. v. Lough, 2011 CM 2022.
7 Leblanc v. R., 2011 CMAC 2.
8 An Act to amend the National Defence Act (military judges), S.C. 2011, c. 22.
9 R. v. St-Onge, [2011] 1 S.C.R. 625.
10 2010 CMAC 7.
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