Section 3: Policy, Training and Outreach

Policy Updates – Accounting for Victim’s Needs in Military Prosecutions

The CMPS Team at the 2016 National Criminal Law Program in Charlottetown, PEI from 4 to 8 July 2016.

Military prosecutors also play a role in the development of Canadian military justice and criminal justice policy. The DMP publishes all policy directives governing prosecutions or other proceedings (such as custody review hearings) conducted by the CMPS. The Policy, Training and Communications position within the CMPS is a key part of ongoing efforts to review existing policies and in ensuring that the DMP’s guidance in prosecution-related matters is translated into new policies or other written instruments.

A comprehensive examination of all policies pertaining to sexual misconduct offences was completed during the reporting period which effected changes to the following:

  • 002/99 Pre-Charge Screening;
  • 003/00 Post-Charge Review;
  • 004/00 Sexual Misconduct Offences;
  • 007/99 Responding to Victim’s Needs;
  • 008/99 Plea, Trial and Sentence Resolution Discussions; and
  • 012/00 Witness Interviews26.

DMP had ordered this examination in light of the Deschamps Report, Operation Honour and the Mandate Letter from the Prime Minister of Canada to the Minister of National Defence, all of which have highlighted the need to ensure that DND and CAF are fostering a workplace that is open, transparent, accountable and free from harassment and discrimination.

Highlights

Choice of Jurisdiction. The views of the victim and the victim’s Commanding Officer are now formally incorporated into the list of factors that the Prosecutor must consider to determine whether charges should proceed in the military or civilian justice system. Particularly, the following issues shall be considered:

  • the urgency of achieving a resolution for the victim;
  • safety concerns about possible reprisals;
  • concerns relating to conditions imposed on the suspect following release from custody;
  • access to victim support services;
  • physical or mental trauma resulting from the alleged offence;
  • physical or mental trauma resulting from the participation in court proceedings; and
  • the needs of any children or other dependants affected by the alleged offence.

Keeping the Victim Informed. It has been acknowledged that victims should be informed about prosecutorial decisions and court proceedings that affect resolution and closure from their perspective. The victim will be informed of all decisions regarding the choice of jurisdiction, whether or not to prefer charges and of the reasons supporting those decisions. Furthermore, victims will be kept informed of court dates and matters that potentially affect their security, such as changes to release conditions. Victims will also be informed of proposed resolutions.

Victims and the Investigation Sexual Misconduct Offences. Prosecutors are to liaise with investigators to ascertain that any investigation into a sexual misconduct offence will account for the views of the victim and that this is reflected in the investigation report. Prosecutors will also encourage the investigator to promptly inform the victim of any jurisdiction or charging decision made.

Consideration of the Public Interest Includes Consideration of the Views of the Victim. In making charging decisions, the public interest is an important factor to consider. The public interest includes consideration of the seriousness of the offence and the mitigating and aggravating circumstances among other things, but also of the victim’s views and of the impact a decision to lay a charge may have on her or him.

Witness Preparation. Witness preparation is a vital function of the Prosecutor with carriage of a sexual offence to be tried by court martial. The Prosecutor will offer support, encouragement and understanding; a non-judgmental attitude where the victim/witness is reluctant, but assurance that it is wise and prudent for a fearful victim to seek justice. Early in preparation for court martial, the Prosecutor should, where possible, meet with the victim and investigator in private and comfortable surroundings and:

  • explain the role of prosecution and defence counsel in court martial proceedings;
  • explain the role of a witness in court;
  • explain the disclosure process and lack of confidentiality;
  • review inevitable lines of questioning under cross-examination;
  • encourage the victim to testify truthfully to what occurred, telling the whole truth and being explicit;
  • discuss any testimonial fears (such as tears, nausea or embarrassment);
  • inform the victim of any release conditions imposed on the accused and determine if the victim has any concerns with the accused’s compliance with those conditions;
  • confirm that the victim has been made aware of available community support services; and
  • attempt to answer any questions the victim might have.

Victims’ Comfort and Security. Prosecutors will consider the appropriateness and availability, depending on the circumstances, of resorting to any of the following comfort measures provided under the NDA and the QR&O:

  • the use of a screen or closed circuit television;
  • the services of a support person;
  • the use of affidavit evidence;
  • in camera proceedings;
  • an order banning publication that might identify the victim;
  • a prohibition against production to the accused of the victim’s personal records;
  • a prohibition against evidence of the victim’s prior sexual conduct; and
  • any other measure available under section 179(1)(d) of the NDA, notably those available under the Criminal Code of Canada.

Sentencing. The Prosecutor must ensure that any submissions made at sentencing hearings include information regarding the impact of the offence on the victim, and that the court is made aware of all factors relevant to the protection and safety of the victim and the public.

Counsel for the Victim. The prosecutor represents the Crown, not individuals such as the victim, and as such is obliged to disclose what is learned from the victim. In cases where the victim’s personal interest is at stake (such as requests to produce personal records), the prosecutor cannot act as counsel for the victim, but will facilitate requests for legal assistance through available means.

Further review of all other policies is underway and a new policy directive on the appointment of special prosecutors is set to be issued during the next reporting period.

Training – Foundation to Excellence & Competence in Military Prosecutions

Regular Force military prosecutors, not unlike other legal officers, are posted from within the Office of the JAG to their prosecution position 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 external organizations. During the reporting period, military prosecutors participated in conferences and continuing legal education programs organized by Québec’s Directeur des poursuites criminelles et pénales, Federation of Law Societies of Canada, Canadian Bar Association, Ontario Crown Attorneys’ Association, Osgoode Professional Development, Law Society of Upper Canada, Barreau du Québec, International Association of Prosecutors, The Advocates’ Society and Public Prosecution Service of Canada. These programs benefited the CAF not only through the knowledge imparted and skills developed but also through the professional bonds developed by individual military prosecutors with their colleagues from the provincial and federal prosecution services.

Table 3
Statistics #
Total Number of Training Days 323.125
Number of Training Events 32
Number of Prosecutors who Have Received Training 27
Average Days of Training per RMP 11.968
Average Number of Training Events per RMP 3.54

For the first time CMPS developed a special training session for newly appointed military prosecutors. This training, which was held in Ottawa and available through videoconference on 6 & 7 December 2016, covered topics such as arrests and investigatory advice, pre-charge and post-charge review, disclosure, plea resolutions, court martial procedure, trial advocacy, sentencing and appeals. The training will be available in video format for newly appointed military prosecutors in the future.

CMPS held its annual Continuing Legal Education (CLE) workshop in February 2017 for its Regular Force and Reserve Force military prosecutors. This year, the event was held on two consecutive days prior to the annual JAG CLE workshop and focused on prosecutions of sexual misconduct offences. We notably had presentations on sexual assault trials by a United States Navy military prosecutor who was accompanied by an actual victim and survivor of a horrific sexual assault; on resiliency in prosecuting sexual assaults and child pornography cases by a former CAF officer who is currently employed by the Ontario Provincial Police as a forensic psychiatrist; and on sexual violence prosecutions by an experienced Ontario Crown prosecutor.

During the reporting period, all military prosecutors who were not on a prolonged leave of absence (22) took part in at least one training activity focused on sexual misconduct offences, accounting for a total of more than 53 days of training (almost 16% of all training days and over 2.4 days of training per military prosecutor). As a comparison and as reported in the CAF Second Progress Report Addressing Inappropriate Sexual Behaviour27, six military prosecutors took part in three training events pertaining to offences of a sexual nature in FY 2015-2016.

Military prosecutors also took part in a variety of professional development activities, including significant participation from CMPS in the National Criminal Law Program held in Charlottetown, PEI from 4 to 8 July 2016.

Finally, in order to maintain their readiness to deploy into a theatre of operations in support of the 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, legal officers serving outside the CMPS may, with the approval of their supervisor and the DMP, participate in courts martial as “second chair” prosecutors. The objective of this program is “to contribute to the professional development of unit legal advisors as well as to improve the quality of prosecutions through greater local situational awareness”.28 The reporting period saw two unit legal advisers, three candidates in the Military Legal Training Program and one articling student participate in courts martial as second chairs. Feedback from the unit legal advisers and military prosecutors indicates that the program objectives were achieved: the prosecution benefitted from local insight and the unit legal advisers came away with a better understanding of the military justice system at the court martial level. These legal officers enjoy the same independent stature and protections of full-time military prosecutors while performing their particular prosecution duties.

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

Outreach

The ADMP and DMP during a panel discussion at the IAP 21st Annual Conference in Dublin, Ireland in September 2016.

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 respective leaders of Canada’s prosecution services to promote assistance and cooperation on operational issues. The Committee held two general meetings during the reporting period both of which the DMP personally attended. These meetings provided an invaluable opportunity for participants to discuss matters of common concern in the domain of criminal prosecutions and find opportunities for collaboration.

International Association of Prosecutors – Launch of a New Special Interest Group Meeting & Global Network on Military Prosecutions

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 the application of high standards and principles, including procedures to prevent or address miscarriages of justice. The IAP also promotes good relations between prosecution agencies and facilitates the exchange and dissemination among them of information, expertise and experience. The DMP and ADMP both attended the IAP’s 21st Annual Conference and General Meeting in September 2016 in Dublin, Ireland and lead efforts in launching both a new Special Interest Group Meeting and a Global Network specifically dealing with military prosecutions.

CAF Chain of Command

The military justice system is designed to promote the operational effectiveness of the CAF by contributing to the maintenance of discipline, efficiency, and morale. It also ensures that justice is administered fairly and with respect for the rule of law. Operational effectiveness requires a workplace that is fair, respectful, inclusive and supportive of diversity. To meet these objectives, the chain of command must be effectively engaged.

The DMP recognizes the importance of maintaining collaborative relationships with the chain of command of the CAF, which concurrently respect the prosecutorial independence necessary for the prosecution of courts martial and appeals. Collaborative relationships with the chain of command ensure that both entities work together to strengthen discipline and operational efficiency through a robust military justice system.

During the reporting period, the DMP continued his practice of regularly attending court martial proceedings and meeting with senior members of the chain of command. As part of his effort to maintain proactive and effective communication with service authorities in order to keep the chain of command engaged in court martial matters, the DMP gave a presentation to the CAF general officers at the General Officers/Flag Officers Symposium in Ottawa on 31 August 2016 and met with the Chief of the Defence Staff (CDS) on 06 October 2016. Such inclusiveness is subject, however, to the necessary independence required of prosecutors in exercising prosecutorial discretion throughout the court martial process.

Investigative Agencies

The DMP also recognizes the importance of maintaining relationships with investigative agencies, while at the same time 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.29


Footnotes

26 All DMP Policy Directives are available on the DMP website.

27 See the Canadian Armed Forces Second Progress Report Addressing Inappropriate Sexual Behaviour for further information.

28 The DMP and the Deputy Judge Advocate General Regional Services have an agreement whereby unit legal advisors may participate as second chairs to RMPs in preparation for and conduct of courts martial. Please see DMP Policy Directive #: 009/00 for further information.

29 The provision of legal services by the military prosecutor assigned as CFNIS Legal Advisor is governed by a letter of agreement dated 30 September 2013, signed by DMP and the Canadian Forces Provost Marshal.

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