Director of Military Prosecutions Annual Report 2016-17

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Letter from the Director of Military Prosecutions to the Judge Advocate General

National Defence
Director of Military Prosecutions
National Defence Headquarters
Major-General George R. Pearkes Building
101 Colonel By Drive
Ottawa ON K1A 0K2

12 May 2017

Major-General Blaise Cathcart, OMM, CD, Q.C.
Judge Advocate General
National Defence Headquarters
101 Colonel By Drive
Ottawa ON K1A 0K2

Major-General Cathcart,

Pursuant to article 110.11 of the Queen's Regulations and Orders for the Canadian Forces, I am pleased to present you with the 2016-2017 Annual Report of the Director of Military Prosecutions. The report covers the period from 1 April 2016 through 31 March 2017.

Yours sincerely,

Colonel B.W. MacGregor, CD
Director of Military Prosecutions

Message from the Director of Military Prosecutions

Lady Justice

I am pleased to present the Director of Military Prosecutions (DMP) Annual Report for 2016-2017, my third since being appointed as DMP on 20 October 2014.

As provided for in the National Defence Act (NDA), the DMP is responsible for the preferral of charges and prosecution of cases at courts martial under the Code of Service Discipline (CSD); he acts as counsel for the Minister of National Defence in respect of appeals to the Court Martial Appeal Court (CMAC) and Supreme Court of Canada (SCC); and he provides legal advice to the Canadian Forces National Investigation Service (CFNIS). Bolstered by his security of tenure as set out in legislation, the DMP fulfils his legal mandate in a fair, impartial and independent manner.

Canadians expect disciplined military forces that comply with Canadian and international law. The maintenance of discipline in the Canadian Armed Forces (CAF) is the responsibility of the chain of command and is crucial for operational effectiveness and mission success. A disciplined military promotes a respectful work environment, supportive of diversity, in which members feel valued and are motivated to contribute to mission success and to reach their full potential. The military justice system is designed to support the maintenance of discipline, efficiency and morale of CAF members as well as heightening respect for the rule of law.

During this past year, the focus of the Canadian Military Prosecution Service (CMPS) continued to be conducting prosecutions in a manner that is fair, transparent and responsive. To achieve its goal, CMPS took steps to improve its efficiency on three fronts by; 1) improving data collection and devising tools to enhance decision-making and resource allocation; 2) initiating a complete overhaul of its policies beginning with those affecting victims and prosecutions of sexual misconduct offences; and 3) increasing training for prosecutors, especially pertaining to sexual misconduct offences.

CMPS has been actively involved in support of the efforts of the Court Martial Comprehensive Review (CMCR) mandated by the Judge Advocate General (JAG) by providing comments and data that illustrate the work being done by our military prosecutors and support staff on a daily basis. DMP looks forward to further consultations and opportunities to assist the CMCR.

Respecting appeals, the SCC affirmed the constitutionality of the provisions of the NDA conferring a right to appeal to the Minister of National Defence on 22 July 2016 in the cases of Ordinary Seaman Cawthorne v R; Warrant Officer Gagnon v R; and Corporal Thibault v R (ss 230.1 and 245(2) of the NDA).

At the CMAC, 11 appellants and two respondents on cross-appeal have raised a new ground of appeal following the decision of the SCC in R v Second Lieutenant Moriarity, 2015 SCC 55. These appellants allege that paragraph 130(1)(a) of the NDA violates the right to a jury trial under subsection 11(f) of the Canadian Charter of Rights and Freedoms (Charter). A first panel of the CMAC rejected arguments on this issue in R v Master Corporal Royes on 03 June 2016. A second panel heard arguments on 26 April 2016 on this same issue from nine other appellants and two respondents but we are still awaiting its decision. A third panel of the CMAC in R v Corporal Beaudry adjourned until the second panel issues its decision. Furthermore, on 23 February 2017, the CMAC heard the Minister’s appeal in the case of R v Corporal Golzari pertaining to knowledge by an accused of the peace officer status of military police officers and the requirement to adduce evidence of a breach of a standard of conduct under section 129 of the NDA.

In closing, I wish to thank once more the CMPS team for their efforts and hard work. While this past year has been rife with challenges, I am confident that we were successful in meeting them and thus, in the process, significantly improved the quality and efficiency of military prosecutions.


Colonel B.W. MacGregor, CD
Director of Military Prosecutions

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