Director of Military Prosecutions Annual Report 2013-2014

Training and Policy Development

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 an officer’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 CAF. During the reporting period, military prosecutors participated in conferences and continuing legal education programs organized by the Federal/Provincial/Territorial Heads of Prosecutions Committee, 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 CAF 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 held an annual workshop in October for its Regular Force and Reserve Force military prosecutors. This one-day workshop takes place annually in the fall in conjunction with the annual JAG Continuing Legal Education workshop.

Military prosecutors also took part in a variety of professional development activities, including the legal officer intermediate training 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 CAF entities. During the 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 military justice briefings to JAG legal officers, criminal law/military justice training to members of the CFNIS, and served as supervisors for law graduates articling with the Office of the JAG. Finally they contributed to the Canadian Bar Association’s Military Law section annual conference.

Annex B provides additional information regarding the legal training received by the members of the CMPS.

Policy Development

DMP publishes all policy directives governing prosecutions, or other proceedings (such as custody review hearings) conducted by the CMPS. The Policy position within CMPS, which had been vacant for a number of years, was filled during the reporting period. This will fuel renewed efforts to review existing policies and should assist in ensuring that DMP’s guidance in prosecution-related matters is translated into new policies or other written instruments.

Military prosecutors also play a role in the development of Canadian military justice and criminal justice policy. The DMP contributes to such efforts in part through his participation on the Federal/Provincial/Territorial Heads of Prosecutions Committee.

Outreach

F/P/T Heads of Prosecutions Committee

The DMP is a member of the Federal/Provincial/Territorial Heads of Prosecutions Committee, which brings together the leaders of Canada’s prosecution services to promote assistance and cooperation on operational issues. The Committee held two meetings in 2013. The first, in May 2013, was organized jointly with the Alberta Prosecution Service and the Public Prosecution Service of Canada (as permanent co-chair). The second, in October 2013, was organized jointly with the New Brunswick prosecution service and featured the National Prosecution Awards Ceremony. DMP is scheduled to co-host the next F/P/T Heads of Prosecutions Committee meeting in May 2014.

International Association of Prosecutors

The International Association of Prosecutors (IAP) is a non-governmental and non-political organization. It promotes the effective, fair, impartial, and efficient prosecution of criminal offences through high standards and principles, including procedures to prevent or address miscarriages of justice. It assists prosecutors internationally in the fight against organized or other serious crime, and fosters measures for the elimination of corruption in public administration. The DMP participated in the Eighteenth Annual Conference and General Meeting of the IAP in Moscow in September 2013.

Information Management and Technology

JAGNet continues to be used as the main filing tool for electronic records in CMPS offices. It is a tool that allows users to manage sensitive legal information securely. The goal of the JAGNet project is to introduce a suite of information management and information technology capabilities to enable the organization to properly manage legal cases and recorded information and to efficiently search, find, share and use legal information and knowledge, subject to such access restrictions as are necessary.

Efforts will be made in the coming year to better harness JAGNet’s full capability as a knowledge management tool. Also, the DMP is working with other stakeholders in the military justice system to develop a database that will track disciplinary files from the initial request for legal advice to final disposition before a service tribunal. It is anticipated that such tracking will enhance information sharing about the progression of discipline files among unit legal advisors, the Office of the JAG’s Military Justice Division, and the CMPS. This could, in turn, contribute to addressing concerns about delay and facilitate the production of military justice statistics.

Resourcing and Performance Measurement

As part of the Government of Canada, DMP is accountable for maximizing efficiencies within available resources and reporting on CMPS’s performance. The availability of reliable performance information is essential for planning and decision-making. DMP relies upon data drawn from the Performance Measurement Decision Support System (PMDSS) for planning and reporting purposes. A selection of PMDSS data for CMPS personnel during the reporting period is provided in Table 1.

Table 1: Selected PMDSS Data

Financial Information

Operating Budget

DMP’s budget is allocated primarily to operations: that is, to providing prosecution services.

In the current reporting period, DMP’s budget was $837,914. At year-end, DMP returned approximately $163,000 in light of prosecution-related expenditures that were lower than budgeted.

Table 2: Planned Spending

Advancing DMP's Relationships with Investigative Agencies

DMP recognizes the importance of maintaining collaborative relationships with investigative agencies, while respecting the independence of each organization. Good relationships with investigative agencies ensure that both the DMP and the agencies exercise their respective roles independently, but co-operatively, and help to maximize CMPS’ effectiveness and efficiency as a prosecution service.

RMPs provide investigation-related legal advice to CFNIS detachments across Canada. In addition, RMPs provide training to CFNIS investigators on military justice and developments in criminal law. At the headquarters level, DMP has assigned a military prosecutor as legal advisor to the CFNIS command team in Ottawa. On 30 September 2013, DMP and the CAF Provost Marshal signed an amended letter of agreement defining the provision of legal services by the military prosecutor assigned as CFNIS Legal Advisor.

Military Justice Proceedings

The nature of the operational missions entrusted to the CAF requires the maintenance of a high degree of discipline among CAF members. Parliament and the Supreme Court of Canada have long recognized the importance of a separate military CSD to govern the conduct of individual soldiers, sailors and air force personnel, and to prescribe punishment for disciplinary breaches.

The CSD is designed to assist commanders in promoting the operational effectiveness of the CAF by contributing to the maintenance of discipline, efficiency and morale and by contributing to respect for the law and the maintenance of a just, peaceful and safe society. Service tribunals serve the purpose of the ordinary criminal courts, that is, punishing wrongful conduct, in circumstances where the offence is committed by a member of the military or other person subject to the CSD.⁴ To these ends, the NDA creates a structure of military tribunals as the ultimate means of enforcing discipline. Among these tribunals are courts martial. Court martial decisions may be appealed to the CMAC, which is a civilian court.

During the present reporting period, military prosecutors represented the Crown in several different types of judicial proceedings related to the military justice system. These proceedings included reviews of pre-trial custody, courts martial, and appeals from courts martial.⁵

Courts Martial

During the reporting period, the DMP received 119 applications for disposal of a charge or charges from referral authorities, and the CMAC ordered a new trial in one case. 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, if warranted. During the period, a decision not to prefer any charges to court martial was made in respect of 31 applications.⁶

Thirty-nine applications for disposal of a charge had more than 90 days delay between the date the charge was laid and the application being received by the DMP. As mentioned above, the fact that a significant number of cases have required more than three months, from charge-laying to referral to DMP, is cause for concern. Annex C provides additional information regarding the cases involving significant delay.

During the reporting period, 67 individuals faced a total of 216 charges before courts martial held, in Canada.

Of the 67 courts martial held, 60 trials were before a Standing Court Martial (SCM), composed of a military judge sitting alone. Seven trials were held before a General Court Martial (GCM), composed of five CAF members as triers of fact and a military judge as the trier of law. In 54 of the trials, the trier of fact made a finding of guilty in respect of at least one charge. The remaining 13 trials had not guilty findings on all charges. There were no instances where there was either a stay or a withdrawal of all charges. Annex D provides additional information regarding the charges tried and the results of each court martial.

While only one sentence may be passed on an offender at a court martial, a sentence may involve more than one punishment. The 54 sentences pronounced by courts martial during the reporting period involved 88 punishments. A fine was the most common punishment, with 37 fines being imposed. Eleven punishments of imprisonment and four punishments of detention were also imposed by the courts. Of those 15, three were suspended sentences. This means, in the context of the CSD, that the offender does not have to serve out the sentence of imprisonment or detention as long as he or she remains of good behaviour during the period of the sentence.

CMPS counsel prosecute offences contrary to the NDA, including offences under section 130 of the NDA, which are based on federal statutes such as the Criminal Code and the Controlled Drugs and Substances Act.⁷

We would like to highlight a selection of courts martial in the following four broad areas:

• Drug Offences;
• Sexual Assault and Other Offences Against the Person;
• Fraud and Other Offences Against Property; and
• Offences Relating to Conduct.

Drug Offences

Like all Canadians, persons subject to the CSD are liable to prosecution for drug-related offences as provided in the Controlled Drugs and Substances Act. Unlike the civilian population, however, persons subject to the CSD are also liable to prosecution for drug use.⁸

R. v. Private M.B.A. Hannah⁹

While undergoing training, the accused sold for $400 an amount of methyltestosterone (an anabolic steroid) and an amount of clenbuterol (a substance regulated under the Food and Drugs Act) to another CAF member. The transaction took place in military barracks. The DMP preferred two charges against Private Hannah under section 130 of the NDA, for trafficking a substance contrary to the Controlled Drugs and Substances Act; and under section 130 of the NDA, for selling a substance contrary to the regulations made under the Food and Drugs Act. At court martial, the military judge dismissed the accused’s application that NDA section 130 was "overbroad", and found him guilty of both charges. He was sentenced to a reprimand and a fine in the amount of $2,000. The offender appealed his conviction to the CMAC on the basis that the military judge erred in dismissing the overbreadth application. This appeal is discussed in greater detail later in this report.

R. v. Private A.L. Vezina¹⁰

Private Vezina was posted to Canadian Forces Base Borden, awaiting a trade course. Between November 2011 and April 2012, the military police were informed about an allegation that members of Private Vezina’s platoon, including Private Vezina, were using cocaine. In April 2012, an undercover operation was commenced by the CFNIS. On two occasions, Private Vezina sold cocaine to the undercover operator. The DMP preferred two charges against Private Vezina under section 130 of the NDA, for trafficking in cocaine contrary to subsection 5(1) of the Controlled Drugs and Substances Act; and two alternative charges, under section 130 of the NDA, for trafficking in a substance held out to be cocaine on two occasions, also contrary to subsection 5(1) of the Controlled Drugs and Substances Act. Private Vezina was found guilty by an SCM of both trafficking charges. The alternate charges were stayed. The SCM sentenced Private Vezina to imprisonment for a term of six months. The SCM also issued a weapons prohibition order pursuant to section 147.1 of the NDA for a period of 10 years.

Private Vezina appealed this decision to the CMAC on the basis that the military judge had erred by not characterizing the undercover operator’s actions as entrapment. Private Vezina also challenged the constitutionality of paragraph 130(1)(a) of the NDA. That appeal is discussed later in the report.

Sexual Assault and Other Offences against the Person

R. v Petty Officer 2^nd Class J.K. Wilks¹¹

The accused was a medical technician who served in Thunder Bay and London, Ontario from December 2003 to October 2009. In the course of enrolment medical and periodic health assessments, the accused performed visual breast inspections and manual breast examinations that were not required and that he was not qualified to perform.

An SCM found Petty Officer 2^nd Class Wilks guilty of 25 charges, comprised of 10 charges of sexual assault contrary to section 130 of the NDA, pursuant to section 271 of the Criminal Code; and 15 charges of breach of trust by a public officer contrary to section 130 of the NDA, pursuant to section 122 of the Criminal Code.

The accused is scheduled to be sentenced for the above convictions in the next reporting period (as such, this case is not included in the court martial statistics found at annex D).

R. v. Private J.C. Déry¹²

Private Déry and the complainant were participants in a military exercise that took place in the fall of 2011 at Canadian Forces Base Wainwright. During the exercise, Private Déry and the complainant stayed in a camp that was located in the training area. It consisted of modular tents where the unit’s members slept. One night, the complainant was awoken by Private Déry’s hand in her underwear.

An SCM found Private Déry guilty of one charge under section 130 of the NDA, that is to say sexual assault contrary to section 271 of the Criminal Code, and sentenced him to imprisonment for a period of 30 days. The SCM also ordered the taking of samples of bodily substances for forensic DNA analysis in accordance with section 196.14 of the NDA and ordered Private Déry to comply with the Sex Offender Information Registration Act for a period of 20 years, in accordance with paragraph 227.02(2)(b) of the NDA. The offender appealed his conviction to the CMAC on the basis that section 130 of the NDA is unconstitutional.

R. v. Master Corporal D.D. Royes¹³

The accused and the complainant were employed at the same unit. After a night during which she consumed a significant quantity of alcohol, the vehicle carrying the complainant was stopped by the military police at Canadian Forces Base Wainwright where it was observed that the complainant appeared to be extremely intoxicated. Upon arrival at the barracks where the accused and one other passenger lived, the three men in the car were unable to receive any intelligible response from the complainant as to the specific location of her quarters. The accused assisted the complainant to his room, and stated to the others that he would look after her. The complainant awoke naked in the accused’s bed with him engaged in sexual intercourse with her. She lost consciousness again and awoke to feel the accused fondling her and attempting intercourse. She told him to stop and returned to her own quarters. Later that day, she sought medical attention and reported the assault to the military police.

An SCM found Master Corporal Royes guilty of one charge under section 130 of the NDA, that is to say sexual assault contrary to section 271 of the Criminal Code, and sentenced him to imprisonment for a period of 36 months. Master Corporal Royes filed a notice of appeal to the CMAC and the military judge released him from custody pending the outcome of that appeal.

R. v. Master Corporal C.J. Stillman¹⁴

One evening at Canadian Forces Base Shilo, Manitoba, the accused went to the Junior Ranks Club where he socialized with several soldiers, including the victim and his housemate. When the Junior Ranks Club closed for the night, the victim and his housemate invited several people, including the accused, to go to their house to continue drinking. Later that night, the victim became upset with the accused. The victim told the accused several times to leave the house, but the accused did not. The victim and the accused then had a fight, after which the accused left the house. The accused later returned to the house where he fired one round from a pistol at the victim, at close range. That round hit the victim in his left thigh and calf, causing an entry and an exit wound and significant bleeding. After he shot the victim, the accused left the house. A few moments later, the accused turned toward the victim’s housemate and fired another round from his pistol. That bullet narrowly missed the housemate.

The accused’s pistol was a handgun, and a restricted firearm, as defined in section 84(1) of the Criminal Code. The accused was the registered owner of the pistol, and possessed a Firearm Registration Certificate and a Possession and Acquisition Licence (PAL) for it. The accused also had an Authorization to Transport (ATT), which permitted him to legally transport his pistol to approved ranges, licensed gunsmiths and border crossings in Alberta. He had no lawful authorization to transport his pistol outside Alberta. The accused did not possess an Authorization to Carry (ATC) pursuant to the Firearms Act. The accused had no lawful authorization or licence to carry the pistol concealed, or to carry it loaded with ammunition, as he did on the date of the offence.

An SCM found Master Corporal Stillman guilty five charges under section 130 of the NDA, that is to say discharging a firearm with intent contrary to section 244 of the Criminal Code; discharging a firearm recklessly contrary to s. 244.2 of the Criminal Code; aggravated assault contrary to section 268 of the Criminal Code; using a firearm in the commission of an offence contrary to section 85(1) of the Criminal Code; possession of a loaded restricted firearm contrary to section 95 of the Criminal Code. The court martial sentenced him to imprisonment for a period of six years and dismissal from Her Majesty’s service. Master Corporal Stillman filed a notice of appeal to the CMAC and the military judge released him from custody pending the outcome of that appeal.

Fraud and Other Offences against Property

R. v. Warrant Officer P.D. Arsenault¹⁵

Warrant Officer Arsenault was found guilty by an SCM of one charge under section 130 of the NDA, that is to say fraud contrary to section 380(1) of the Criminal Code; and one charge under subsection 125(a) of the NDA, namely, having wilfully made a false statement in an official document signed by him. He had fraudulently obtained Separation Expense and Post Living Differential benefits for almost two years. The offender was sentenced to a detention for a period of 30 days and a reduction in rank to Sergeant. The offender has appealed his conviction to the CMAC primarily on the basis that section 130 of the NDA is unconstitutional.

R. v. Master Corporal N.S. Edmunds¹⁶

At the time of the offence, Master Corporal Edmunds was working in the brigade pharmacy at Canadian Forces Base Petawawa. His duties included receiving goods ordered for the pharmacy and certifying them as having been received. Before an SCM, Master Corporal Edmunds pleaded guilty to one charge under section 130 of the NDA, that is to say fraud contrary to section 380(1) of the Criminal Code for an amount totalling $8,515. The SCM sentenced Master Corporal Edmunds to imprisonment for a period of 30 days.

R. v. Corporal V. Salera¹⁷

Corporal Salera was posted to the Vice-Chief of the Defence Staff’s Coordination/Military Foreign Service section, responsible for providing administrative support to CAF members posted outside Canada (known as OUTCAN) since September 2009. Corporal Salera pleaded guilty to one charge under section 130 of the NDA for fraud, contrary to section 380 of the Criminal Code for an amount totalling $42,975. He was sentenced by an SCM to imprisonment for a period of 60 days.

R. v. Commander D.J. Martin¹⁸

While posted to Colorado Springs, USA, in 2009, Commander Martin submitted information for claiming Foreign Service Premium for which he had no entitlement, depriving Her Majesty in Right of Canada of $14,938. Before an SCM, Commander Martin pleaded guilty to one charge under paragraph 117(f) of the NDA for an act of a fraudulent nature not particularly specified in sections 73 to 128 of the NDA. One mitigating factor acknowledged by the SCM was that the accused had started reimbursing the amount he had defrauded and would continue to do so until the full amount was reimbursed. Commander Martin was sentenced by the SCM to a severe reprimand and a fine in the amount of $10,000.

Offences Relating to Conduct

R. v. Captain B.M. Castle¹⁹

At the time of the offences Captain Castle was employed at the Regional Cadet Instructor School (RCIS) Pacific as an instructor. In May 2012, he attended a course graduation mess dinner for a Basic Officer Training Course. During the course of the mess dinner and the subsequent reception, Captain Castle consumed a significant amount of alcohol. He became increasingly loud and disorderly as the evening progressed. During the evening, in the presence of other RCIS staff officers and course candidates, he used profanity when directing candidates to go to the mess and shouted at them to encourage them to dance. He also swore at the course duty driver at the end of the evening. After the mess dinner, Captain Castle slid his hand under the complainant’s tunic and into her skirt, grabbing her buttocks. Captain Castle pleaded guilty to two charges under the NDA, one charge under section 93 (Behaved in a Disgraceful Manner) and one charge under section 97 (Drunkenness). He was sentenced to a reduction in rank to the rank of Lieutenant and a fine in the amount of $5,000.

R. v. Warrant Officer J.C. Hanson²⁰

Warrant Officer Hanson was participating in training with a unit of the Reserve Force. He completed his shift around midnight, after which he stayed at the unit in uniform. He had been drinking for awhile when, in the early morning hours, he asked a Corporal “Have you ever had a knife put to your throat?” Warrant Officer Hanson then pulled a knife from his pocket, opened the blade and pressed it against the Corporal’s neck. Before an SCM, Warrant Officer Hanson pleaded guilty to two charges under the NDA: one charge under section 95 (Ill-treated a Subordinate) and one charge under section 97 (Drunkenness). The offender was sentenced to a severe reprimand and a fine in the amount of $4,000.

R. v. Sergeant S. Matte²¹

In October 2012, Sergeant Matte participated in a live fire exercise. The exercise consisted of two ranges, a live fire range and an area for dry/blank practice exercises (the blank range). After the live range, he did not properly unload his weapon and at the blank range Sergeant Matte struck a fellow soldier in the left femur when he fired his weapon. Before an SCM, Sergeant Matte pleaded guilty to one charge under section 124 (Negligent Performance of a Military Duty) of the NDA. The SCM accepted the joint submission of the parties and sentenced the offender to detention for a period of 10 days and a fine in the amount of $5,000.

Appeals to the Court Martial Appeal Court

During the reporting period, the CMAC rendered a decision on six appeals and two release pending appeal applications. One appeal was abandoned by the appellant. For appeals, DDCS provides legal representation, at no cost to CAF members, when authorized to do so by the Appeal Committee.²² During the reporting period, 10 new applications to appeal were filed with the CMAC. Out of the 10, eight appeals were initiated by DDCS counsel on behalf of CAF members convicted and sentenced by court martial; two appeals were initiated by the DMP on behalf of the Crown.

We would like to highlight the following appeal cases:

Second-Lieutenant Moriarity v. R. and Private M.B.A. Hannah v. R.²³

Second Lieutenant Moriarity was a Cadet Instructor Cadre (CIC) officer on duty in Victoria and Vernon, British Columbia at the Cadet Organization Administration and Training Service (COATS). While in a position of trust and authority with respect to cadets with whom he interacted, he engaged in inappropriate sexual relationships with two cadets. An SCM convicted Second-Lieutenant Moriarity of four Criminal Code offences punishable under paragraph 130(1)(a) of the NDA: two counts of sexual exploitation; one count of sexual assault; and one count of invitation to sexual touching. The SCM sentenced Second-Lieutenant Moriarity to imprisonment for a period of 12 months, dismissal from Her Majesty’s service, and reduction in rank to the rank of second-lieutenant (he had been a Captain).²⁴ The facts surrounding the case of Private Hannah have been provided in the preceding section of this report. In both cases before the CMAC, the facts were not in dispute.

Second-Lieutenant Moriarity and Private Hannah, represented by DDCS counsel, appealed from the decisions of the two SCMs dismissing their Charter applications and convicting the appellants of a variety of offences under paragraph 130(1)(a) of the NDA. The appellants argued that by incorporating civil offences unrelated to military service in the CSD, paragraph 130(1)(a) employs unconstitutionally broad means to achieve its purpose: enforcing discipline, efficiency, and morale in the military. They sought from the CMAC a declaration that paragraph 130(1)(a) is unconstitutional and of no force or effect pursuant to s. 52 of the Constitution Act, 1982 and a dismissal of all charges against them, as their convictions were based on an unconstitutional law. In particular, the appellants contended that paragraph 130(1)(a) violated their liberty rights under s. 7 of the Charter in a manner that cannot be saved by s. 1; and that the provision also violated subsection 11(f) of the Charter and the right to not be arbitrarily tried by a military tribunal since non-military crimes may be tried by a service tribunal with no right to a jury.

The CMAC found that, properly interpreted, paragraph 130(1)(a) of the NDA is not unconstitutionally overbroad as its scope is restricted by the requirement of a so-called "military nexus" (as applied by the CMAC in a number of cases from 1983 to 1996). Since neither Appellant challenged the presence of a military nexus for any of the offences for which they were charged, or otherwise challenged their convictions, the appeals were dismissed.

Private Alexandra Vezina v. R.²⁵

The appellant appealed from her convictions at trial of service offences punishable under section 130 of the NDA for trafficking in cocaine, contrary to subsection 5(1) of the Controlled Drugs and Substances Act. Immediately after her conviction, the appellant applied for stay of proceedings on the basis that she was entrapped into committing these offences by the military police. The military judge dismissed the application. In her appeal to CMAC, the appellant argued that she was entrapped and the proceedings should have been stayed.

The CMAC ruled that the military judge’s characterization of the undercover operator’s question ( “Can you get me some coke?” ) as just an investigative step was supported by the evidence and was consistent with the applicable jurisprudence. The CMAC disagreed with the military judge, and held that there were also two alternative bases for rejecting the defence of entrapment in this case. First, when the investigator asked the appellant whether she could sell her some coke, the military police did have objectively discernible facts supporting a reasonable suspicion that the appellant was implicated in trafficking. Second, the investigator’s question to the appellant arose during a bona fide inquiry within the meaning of R. v. Mack²⁶ and R. v. Barnes²⁷. The CMAC thus declined to interfere with the military judge’s conclusions in this regard.

Private Vezina also challenged the constitutionality of paragraph 130(1)(a) of the NDA. The CMAC noted that in Moriarity v. Canada, the CMAC dismissed an identical challenge. The panel in Vezina v. Canada considered itself bound to follow Moriarity v. Canada because the appellant had failed to establish that the CMAC panel in that case had committed manifest error. The CMAC also found that the question of exactly what constitutes a military nexus sufficient to avoid unconstitutional overbreadth is a matter to be worked out on the facts of future specific cases. Here again, the CMAC found no manifest error.

The CMAC therefore dismissed the appeal.

R. v. Corporal J.H. Courneyea²⁸

At trial by SCM²⁹, the respondent was found not guilty of all charges. The Minister appealed with respect to the verdict on the first charge (an offence punishable under section 130 of the NDA, that is to say, assault with weapon contrary to section 267(a) of the Criminal Code) and the third charge (an offence punishable under section 130 of the NDA, that is to say, uttering threats contrary to section 264.1(1)(a) of the Criminal Code) only. The appellant argued that the military judge erred in law in determining that the respondent had discharged the evidentiary burden of putting the defence of automatism in play; by finding the respondent not responsible on account of mental disorder with respect to the first charge of assault with a weapon; and in acquitting the respondent on the third charge of threatening to shoot.

The CMAC noted that a psychiatrist had provided evidence at trial to the effect that it was unlikely that the respondent had a dissociative episode at the time of allegedly uttering threats; that it was more likely that the respondent had a dissociative episode in readying his weapon and posture than in making threatening comments, and that “it is most plausible that the alleged offences were the product of the combined effects of exhaustion, persistent hyper-arousal symptoms of PTSD, and possible dissociation with exaggerated and inappropriate threat response including assuming the ready position”.³⁰ In light of the overall circumstances of the case, the CMAC declined to interfere with the military judge’s decision to put into play the defence of automatism.

The CMAC further held that the military judge’s conclusion that the respondent was not responsible on account of mental disorder with respect to the first charge was based on his assessment of the facts and that the appellant had failed to establish that the military judge committed a reviewable error in his findings with respect to that defence.

With respect to the third charge, the CMAC held that the military judge had essentially made a finding of fact. The Court held that there was ample evidence on which the military judge could base this finding. The Court held that the appellant had failed to establish that there was a ground on which the Court should intervene and overturn the acquittal on the third charge. As a result, the CMAC dismissed the appeal.

Sub-Lieutenant J. Thibeault v. R.³¹

The appellant was convicted of sexual assault by an SCM.³² He appealed his conviction on the basis that he did not receive the effective assistance of counsel at his trial. He requested that the CMAC consider fresh evidence in support of his position. The fresh evidence consisted of affidavits sworn by the appellant and his defence counsel, and the transcripts of cross-examinations on those affidavits. The appellant argued that he believed that the complainant consented to their sexual activity but, on the advice of his lawyer, he did not take the witness stand to provide evidence to support the defence of honest but mistaken belief in consent. He argued that the CMAC should find that a miscarriage of justice occurred, to overturn his conviction, and to order a new trial.

The CMAC held that the appellant’s version of events was relevant. It related to the question of whether the appellant intentionally engaged in sexual contact with the complainant without her consent. His testimony was clearly relevant to one of the essential elements that the prosecution had to prove beyond a reasonable doubt. The Court found that the appellant’s evidence was reasonably capable of belief, was not implausible in the circumstances and could reasonably have affected the outcome of the trial by creating a reasonable doubt about the required mental element. The Court therefore concluded that that a miscarriage of justice had occurred.

On the issue of ineffective assistance of counsel, the Court noted that defence counsel left it to the appellant to decide whether to testify but did not provide specific advice about the connection between the appellant’s testimony and the defence of mistaken belief in consent. By failing to provide that advice, counsel did not allow the appellant to make an informed choice as to whether or not he should testify. The CMAC was satisfied that the appellant had demonstrated that his counsel’s advice was unreasonable. The Court therefore concluded that appellant did not receive the effective assistance of counsel at trial and, as a consequence, his conviction for sexual assault was unreliable. As a result, the CMAC held that the fresh evidence should be admitted, allowed the appeal, set aside the conviction, and ordered a new trial.

R. v. Captain J.T. Wright³³

The respondent was acquitted by an SCM of all four charges he faced for offences under the NDA, all of which related to an allegation that he had obstructed justice by submitting fabricated evidence in an earlier proceeding. At the opening of his trial, the respondent made an application to exclude certain evidence (six pieces of email correspondence) on the basis that it had been obtained (pursuant to a production order) in violation of his right to be secure against unreasonable search or seizure under section 8 of the Charter. The military judge allowed the application³⁴, found that there had been a serious breach of his section 8 Charter rights, and ordered that the impugned evidence be excluded because its admission would bring the administration of justice into disrepute. The prosecution announced that in light of the military judge’s decision, the prosecution would not be calling any evidence. The defence then moved for dismissal on the basis that there was no evidence to support a prima facie case against the respondent. The motion was granted and the respondent was found not guilty of all four charges.

The Minister appealed the respondent’s acquittal alleging three errors on the part of the presiding military judge: first, in concluding that the production order was invalid; second, in deciding that respondent’s section 8 Charter rights had been breached through an abusive seizure; and third, in excluding the evidence pursuant to section 24 of the Charter.

Regarding the production order, the CMAC agreed with the military judge that the errors he identified were not "trifling technicalities." Rather, they were “technical matters where precision is expected, rigor is demanded and complete and accurate disclosure is required.”³⁵ Regarding the manner in which the seizure of the email correspondence was carried out, the CMAC found that there was “ample support for the military judge’s finding that the search and production of the respondent’s personal data was abusive because its execution went beyond the scope of the Production Order.”³⁶ Regarding the exclusion of the email correspondence, the Court saw no error in the military judge’s conclusion that the admission of the impugned evidence would bring the administration of justice into disrepute. For those reasons, a majority of the three-judge CMAC panel dismissed the appeal. The remaining member of the panel wrote a dissenting opinion.

Annex E provides additional information regarding appeals to the CMAC.

Appeals to the Supreme Court of Canada

There was one application for leave to appeal filed with the Supreme Court of Canada during the reporting period and there were no appeals to the Supreme Court of Canada. The application for leave to appeal concerned the appeals by Second-Lieutenant Moriarity and Private Hannah that were dismissed by the CMAC. The appellants challenged the ruling by the CMAC that paragraph 130(1)(a) of the NDA is not unconstitutionally overbroad. Annex F provides additional information regarding appeals to the Supreme Court of Canada.

Custody Reviews

Military Judges are, in certain circumstances, required to review orders made to retain a CAF member in service custody. DMP represents the CAF at such hearings. During the reporting period, military prosecutors appeared at seven pre-trial custody review hearings³⁷, one 90-day review hearing³⁸ and one Release Pending Appeal revocation hearing³⁹. Further information on custody reviews is provided at Annex G.

Footnotes

¹ Colonel J.A.M. Léveillée was appointed by the Minister of National Defence on 7 March 2012 to be the DMP for a four-year term. However, he assumed the responsibilities of DMP on 7 February 2012 following the resignation of Captain(Navy) J.C. Maguire.

² Previous DMP Annual Reports, along with DMP Policy Directives and other information can be found at the DMP website.

³ The DDMP (Western and Pacific) is currently collocated with the RMP Pacific.

⁴ R. v. Généreux, [1992] 1 S.C.R. 259.

⁵ The interests of the accused are usually represented at reviews of pre-trial custody, courts martial and appeals from courts martial to the CMAC and SCC by the Director of Defence Counsel Services (DDCS). Representation by DDCS is provided at public expense. The accused may also retain counsel at his or her own expense.

⁶ Receipt of applications for disposal of a charge and the resulting preferral or non-preferral and court martial (if charges are preferred) do not necessarily occur in the same reporting period.

⁷ See NDA sections 70 and 130. A service tribunal shall not try any person charged with any of the following offences committed in Canada: murder; manslaughter or an offence under any of sections 280 to 283 of the Criminal Code.

⁸ QR&O, article 20.04.

⁹ R. v. Hannah, 2013 CM 2012.

¹⁰ R. v. Vezina, 2013 CM 3013.

¹¹ Decision unavailable. Date of commencement of trial: 25 September 2013.

¹² R. v. Déry, 2013 CM 3024.

¹³ Decision unavailable. Date of commencement of trial: 2 December 2013.

¹⁴ Decision unavailable. Date of commencement of trial: 22 October 2013.

¹⁵ R. v. Arsenault, 2013 CM 4007.

¹⁶ R. v. Edmunds, 2013 CM 4016.

¹⁷ R. v. Salera, 2013 CM 3028.

¹⁸ R. v. Martin, 2014 CM 3001.

¹⁹ R. v. Castle, 2013 CM 4008.

²⁰ R. v. Hanson, 2013 CM 3021.

²¹ R. v. Matte, 2013 CM 4019.

²² See QR&O articles 101.20 and 101.21 for information on DDCS involvement in appeals and regarding the Appeal Committee.

²³ Moriarity v. Canada, 2014 CMAC 1.

²⁴ R. v. Moriarity, 2012 CM 3022.

²⁵ Vezina v. Canada, 2014 CMAC 3.

²⁶ R. v. Mack, [1988] 2 S.C.R. 903.

²⁷ R. v. Barnes, [1991] 1 S.C.R. 449.

²⁸ Canada v. Courneyea, 2013 CMAC 3.

²⁹ R. v. Courneyea, 2012 CM 4013.

³⁰ Ibid. at para. 10.

³¹ Thibeault v. Canada, 2014 CMAC 2.

³² R. v. Thibeault, 2012 CM 1014.

³³ Canada v. Wright, 2014 CMAC 4.

³⁴ R. v. Wright, 2012 CM 3002.

³⁵ Ibid. at para. 59.

³⁶ Ibid. at para. 69.

³⁷ NDA, s. 159.

³⁸ NDA, s. 159.8.

³⁹ NDA, s. 248.8.