Section 1: The Canadian Military Prosecution Service : Ordo Per Justitia

Introduction

This report, covering the period of 1 April 2016 to 31 March 2017, 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 JAG on the execution of his duties and functions2.

The Military Justice System

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 SCC have long recognized the importance of a CSD supported by a separate military justice system to govern the conduct of individual soldiers, sailors and air force personnel, and to prescribe punishment for disciplinary breaches. In MacKay v the Queen3 and in R v Généreux4, the SCC unequivocally upheld the need for military tribunals to exercise their jurisdiction in order to contribute to the maintenance of discipline, and associated military values, as a matter of vital importance to the integrity of the CAF as a national institution. These principles were unanimously reaffirmed by the SCC in 2015 in Second Lieutenant Moriarity et al v R; Private Alexandra Vezina v R; and Sergeant Damien Arsenault v R.5

In determining whether to prefer a matter for trial by court martial, military prosecutors must conduct a two-stage analysis. They must consider whether there is a reasonable prospect of conviction should the matter proceed to trial and whether the public interest requires that a prosecution be pursued.6 This policy is consistent with policies applied by Attorneys General throughout Canada and by prosecution agencies elsewhere in the Commonwealth. What sets the military justice system apart are some of the public interest factors that must be taken into account. These include:

  • the likely effect on public confidence in military discipline or the administration of military justice;
  • the prevalence of the alleged offence in the unit or military community at large and the need for general and specific deterrence; and
  • the effect on the maintenance of good order and discipline in the CAF, including the likely impact, if any, on military operations.

Information relating to these and other public interest factors comes from the accused’s commanding officer (CO) when the CO sends the matter to his or her next superior officer in matters of discipline. That superior officer may also comment on public interest factors when referring the matter to the DMP.7

The consideration of uniquely military public interest factors allows the DMP to support the Minister of National Defence as he works with senior leaders of the CAF to “establish and maintain a workplace free from harassment and discrimination.”8

Public interest factors in the military context may require prosecuting a person who was subject to the CSD at the time of the alleged offence but who was subsequently released from the CAF. The jurisdiction of the military justice system extends to such persons.9 Prosecuting a former CAF member at court martial communicates to serving CAF members that they will be held accountable for their behaviour in uniform whether they continue to serve in the CAF or not.

Courts martial, in contrast to civilian justice processes, are mobile. This allows courts martial to take place in or close to the military community that was most affected by the alleged offences, whether it be an individual victim or a military unit. Courts martial are open to the public, resulting in increased transparency. Those most affected by an alleged offence can see for themselves that justice is being done.

Where the military justice system is called upon as a means of maintaining or reinforcing discipline, it does so with overlapping, but different objectives than the civilian criminal justice system seeks to achieve. It also has different requirements. First, those judging military personnel for alleged breaches of the CSD must not only have the requisite jurisdiction to deal with matters that threaten discipline and effectiveness, they must possess an understanding of the bases, need for, and the intricacies of military discipline. Second, as Colonel (Retired) Michael Gibson [now Ontario Superior Court of Justice Gibson] noted in considering the goals and principles of sentencing under the CSD that have been enacted in a recent amendment to the NDA:

This represents a synthesis of the classic criminal law sentencing objectives of denunciation, general and specific deterrence, and rehabilitation and restitution, with those targeted at specifically military objectives, such as promoting a habit of obedience to lawful commands and orders, and the maintenance in a democratic state of public trust in the military as a disciplined armed force. This synthesis illustrates that military law has a more positive purpose than the general criminal law in seeking to mould and modify behaviour to the specific requirements of military service. Simply put, an effective military justice system, guided by the correct principles, is a prerequisite for the effective functioning of the armed forces of a modern democratic state governed by the rule of law. It is also key to ensuring compliance of states and their armed forces with the normative requirements of international human rights and international humanitarian law.10

As stated by Chief Justice Lamer in Généreux, the CSD “does not serve merely to regulate conduct that undermines such discipline and integrity. The Code serves a public function as well by punishing specific conduct which threatens public order and welfare” and “recourse to the ordinary criminal courts would, as a general rule, be inadequate to serve the particular disciplinary needs of the military. There is thus a need for separate tribunals to enforce special disciplinary standards in the military.” 11

Criminal or fraudulent conduct, even when committed in circumstances that are not directly related to military duties, may have an impact on the standard of discipline, efficiency and morale in the CAF. For instance, the fact that a member of the military has committed an assault in a civil context may call into question that individual’s capacity to show discipline in a military environment and to respect military authorities. The fact that the offence has occurred outside a military context does not make it irrational to conclude that the prosecution of the offence is related to the discipline, efficiency and morale of the military.12

Canadian military doctrine identifies discipline as one of the essential components of the Canadian military ethos. Discipline is described as a key contributor to the instilling of shared values, the ability to cope with the demands of combat operations, self-assurance and resiliency in the face of adversity, and trust in leaders. It enables military individuals and units to succeed in missions where military skill alone could not.13 Some cases may seem minor until they are seen in their military context as violations of the four core Canadian military values which are: duty, loyalty, integrity, and courage. The value of integrity obliges CAF members to maintain the highest possible levels for honesty, uprightness of character, honour, and the adherence to ethical standards.14 The military justice system exists in part to address instances where it is alleged that CAF members did not discharge their obligations to the required level.

To these ends, the NDA creates a structure of military tribunals as the ultimate means of enforcing discipline. Among these tribunals are courts martial. Additionally, court martial decisions may be appealed to the CMAC, which is made up of civilian justices of provincial superior courts, the Federal Court and the Federal Court of Appeal.

Mission and Vision

Our Mission

To provide competent, fair, swift and deployable prosecution services to the Canadian Armed 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.

See below for description of diagram.

DMP Vision: Discipline through Justice

  • Objectives for all Canadian - Outcomes:
    • Public Confidence in the Canadian Military Justice System.
    • Support the maintenance of public trust in the CAF as a disciplined, efficient and capable armed force.
    • Public confidence in the DMP.
  • CAF Objectives - Outputs:
    • Comply with CFNIS Service Level Agreements.
    • Meet all demands for courts, advice, operational deployments and training.
    • Support & comply with all government-wide initiatives, legal, ethical & moral standards.
  • Internal Objectives - Processes:
    • Maintain a productive work environment supporting independence, discretion, initiative, decisiveness and trust.
      • Maintain efficiency, transparency & inclusiveness in the prosecution service.
      • Enhance fairness and timeliness of military justice.
      • Operate effectively within the statutory & regulatory framework of CMs.
      • Conduct all activities within assigned resources.
  • People Objectives - Enablers:
    • A fully staffed, healthy & highly motivated team.
    • Continuously improve core competencies of lawyers, paralegals and support staff.
    • Task-tailored, professional development for all DMP military & civilian personnel.

Duties and Functions of the DMP

The DMP is appointed by the Minister of National Defence. Section 165.11 of the NDA provides that the DMP is responsible for the preferring of all charges to be tried by court martial and for the conduct of all prosecutions at courts martial in Canada and abroad. The DMP also acts as counsel for the Minister of National Defence in respect of appeals before the CMAC and the SCC. Over the past year, military prosecutors have also represented the CAF at custody review hearings and provided legal advice and training to the CFNIS.

In accordance with section 165.15 of the NDA, the DMP is assisted by officers from the Regular Force and the Reserve Force who are barristers or advocates. DMP can also count on a small but highly effective group of civilian support staff. Appointed for a four-year term, the DMP fulfils his mandate in a manner that is fair and impartial. Although the DMP acts under the general supervision of the JAG, he exercises his prosecutorial mandate independent of the chain of command. Those duties and functions, set out in the NDA, the QR&O, ministerial orders and other instruments, include:

  • Reviewing all CSD charges referred to him through the CAF chain of command and determining whether:
    • The charge(s) or other charges founded on the evidence should be tried by court martial;
    • The charge(s) should be dealt with by an officer who has jurisdiction to try the accused by summary trial; or
    • The charge(s) should not be proceeded with.
  • Conducting – within Canada or 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, to the CMAC and to the SCC.
  • Acting as the representative of the CAF at all custody review hearings conducted before a military judge.
  • Providing legal advice to military police personnel assigned to the CFNIS.

Organizational Structure

DMP and his staff of military prosecutors and civilian personnel are known collectively as the Canadian Military Prosecution Service (CMPS). It is organized regionally, and currently consists of:

  • DMP headquarters at National Defence Headquarters in Ottawa consisting of the DMP, the Assistant Director of Military Prosecutions (ADMP, who is also responsible for the Eastern Region), one Deputy Director of Military Prosecutions (DDMP) responsible for the Atlantic and Central regions, an appellate counsel, a military prosecutor responsible for policy, training and communications, a legal advisor working directly with the CFNIS, a civilian paralegal, and one legal assistant;
  • Regional Military Prosecutors’ (RMP) offices, with the exception of the Pacific regional office, have an establishment of two Regular Force military prosecutors and one legal assistant, located at:
    • Halifax, Nova Scotia (Atlantic Region);
    • Valcartier, Quebec (Eastern Region);
    • Ottawa, Ontario (Central Region);
    • Edmonton, Alberta (Western Region);
    • Esquimalt, British Columbia (Pacific Region);15 and
    • Nine Reserve Force military prosecutors located individually across Canada.

The DMP organization chart is provided at Annex A.

CMPS Personnel

The CMPS team at the 2017 DMP CLE in Ottawa, Ontario on 28 February 2017.

Regular Force

During this reporting period, CMPS has been committed to integrating newly appointed military and civilian personnel. In our headquarters, an experienced prosecutor who was serving as legal advisor to the CFNIS was appointed as appellate counsel to fill the seat left vacant by last fiscal year’s promotion and appointment of our DDMP responsible for the Atlantic and Central Regions. As a consequence, one of our Central Region prosecutors was appointed as our new legal advisor to the CFNIS. His position within the Central Region was filled by a newly posted captain. Another new captain was also appointed to replace our former counsel responsible for communications, training and policies upon his transfer to the Administrative Law Division within the Office of the Judge Advocate General (OJAG).

Our Edmonton office was back at full strength with the return from parental leave of one RMP and the appointment of a newly posted captain. Within the Eastern Region, we saw the departure of one of our experienced military prosecutors who was replaced by a captain with some previous experience with Québec’s Directeur des poursuites criminelles et pénales.

Reserve Force

During the prolonged absence of our DDMP Reserves, one of our more experienced Reserve Force RMPs has brilliantly stepped up in the interim. While we have welcomed a new Reserve Force military prosecutor in the Atlantic Region, we are still in the process of recruiting another one for the Central Region.

Reserve Force RMPs contributed significantly to advancing CMPS priorities over the last FY. In fact, the number of court days by Reserve Force RMPs more than doubled over the past FY when compared with FY 2015-2016 and is the highest over the past five years. Our reservists were not only heavily involved in actual case work, but they also significantly contributed to the delivery of training, notably by taking on an acting role during the new RMP Training session in December 2016 and the DMP CLE in February 2017.

As a result,the averages for the number or parade days and court days have both reached record highs in the reporting period despite the extended leave of absence of our DDMP Reserves and of another reservist RMP. As of note, the averages for both FY 2015-2016 and 2016-2017 were based on a complement of 8 reservist RMPs as opposed to 9 for the first three FYs reported.

Civilian Staff

Both Central and Eastern Regions have welcomed new administrative assistants; the former after the deployment of the new administrative assistant to the DMP and the latter upon retirement of their former administrative assistant. Our paralegal will be leaving CMPS in the coming fiscal year due to her transfer to another position within the public service. Efforts to staff the paralegal position are underway.

Figure 1 - See table below for graph breakdown.

Total Parade and Court Days - Reserve Forces RMPs
2012/13 2013/14 2014/15 2015/16 2016/17
Total Parade Days 142.5 151 199.5 247.5 260
Total Court Days 22 21 13 39 84

Figure 2 - See table below for graph breakdown.

Average Parade and Court Days - Reserve Force RMPs
2012/13 2013/14 2014/15 2015/16 2016/17
Average Parade Days 16.78 16.78 22.17 30.94 32.50
Average Court Days 2.44 2.33 1.44 4.88 10.50


Footnotes

1 Colonel Bruce MacGregor was appointed by the Minister of National Defence on 20 October 2014 to be the DMP for a four-year term.

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

3 MacKay v the Queen, [1980] 2 SCR 370 at paras 48 and 49.

4 R v Généreux, [1992] 1 SCR 259 at para 50.

5 R v Moriarity, 2015 SCC 55, [2015] 3 S.C.R. 485.

6 For further information, please refer to DMP Policy Directive 003/00 Post-Charge Review.

7 Supra note 6, at paragraph 28.

8 Minister of National Defence Mandate Letter from the Rt. Hon. Justin Trudeau, P.C., M.P., Prime Minister of Canada.

9 NDA sections 60 and 69.

10 Michael Gibson, "International Human Rights Law and the Administration of Justice through Military Tribunals: Preserving Utility while Precluding Impunity" (2008) 4: 1 Intl L and Relations 1, at 12.

11 R v Généreux, [1992] 1 SCR 259 at 281 and 293.

12 R v Moriarity, 2015 SCC 55 at para 50.

13 Canada, Department of National Defence, “Canadian Military Doctrine,” by the Chief of the Defence Staff, Ottawa: 2011-09 [Canadian Military Doctrine]. See, in particular, Ch. 2 “Generation and Application of Military Power” and Ch. 4 “The Canadian Forces” at 4-5.

14 Canadian Military Doctrine. See, in particular, Ch 2 "Generation and Application of Military Power" and Ch 4 "The Canadian Forces".

15 The DDMP (Western and Pacific) is currently co-located with the RMP Pacific.

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