Chapter 1 — The Canadian Military Prosecution Service: Ordo Per Justitia

Introduction

The nature of the operational missions entrusted to the Canadian Armed Forces (CAF) requires the maintenance of a high degree of discipline among CAF members. Parliament and the Supreme Court of Canada (SCC) have long recognized the importance of a Code of Service Discipline (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 1980 and 1992 the SCC in MacKay v the Queen¹ and R v Généreux² unequivocally upheld the need for military tribunals to exercise their jurisdiction in order to contribute to the maintenance of discipline, efficiency and morale in the CAF.

These principles were unanimously reaffirmed by the SCC in 2015 in Second Lieutenant Moriarity et al v R: “I conclude that Parliament’s objective in creating the military justice system was to provide processes that would assure the maintenance of discipline, efficiency and morale of the military.”³ In Moriarity the SCC also reinforced that “… the behavior of members of the military relates to discipline, efficiency and morale even when they are not on duty, in uniform, or on a military base.”⁴

These views were directly in line with earlier comments by Chief Justice Lamer in Généreux that 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. In other words, 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. There is thus a need for separate tribunals to enforce special disciplinary standards in the military.”⁵

Following Moriarity, the SCC delivered another unanimous decision related to the military justice system. In 2016, the SCC confirmed in the case of R v Cawthorne⁶ that the authority conferred to the Minister of National Defence over appeals was in compliance with the Canadian Charter of Rights and Freedoms (Charter). This decision not only confirmed the organizational structure of the military prosecution service but also was important for all prosecution services across Canada as the court touched upon the concept of prosecutorial independence and abuse of process.⁷ This clearly shows that the military justice system is a respected parallel justice system within the broader Canadian legal mosaic.

1.1 The Military Justice System

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.⁸ 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.⁹ 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 National Defence Act (NDA) creates a structure of military tribunals as the ultimate means of enforcing discipline. Among these tribunals are courts martial. Significantly, court martial decisions may be appealed to the Court Martial Appeal Court (CMAC), which is made up of civilian justices of provincial superior courts, the Federal Court and the Federal Court of Appeal. CMAC decisions can be appealed further to the SCC, providing the court martial system with final civilian review similar to that of the criminal justice system.

In determining whether to prefer a matter for trial by court martial, military prosecutors 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.¹⁰ 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 by the military prosecutor as the maintenance of the discipline, efficiency, and morale of the CAF needs to be considered. These include:

• he 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 charges to his or her next superior officer in matters of discipline. That superior officer is expected to also comment on public interest factors when referring the matter to the DMP.¹¹ Military prosecutors are to maintain effective communication with service authorities as it is necessary for the prosecutor to understand the needs and requirements of the chain of command after a charge is referred to the DMP and during the court martial process.¹²

Additionally, the consideration of uniquely military public interest factors as part of the second stage of the analysis further allows the DMP to support the CAF in “providing a workplace free from harassment and discrimination.”¹³

1.1.1 Unique features of the Court Martial System

The court martial system has many features in common with the civilian criminal justice system. For example, the Charter applies to both civilian criminal courts and to courts martial. As such, in both a civilian criminal trial and a trial by court martial, an accused person is presumed innocent until the prosecution proves his or her guilt beyond a reasonable doubt. Additionally, courts martial are independent and impartial tribunals and hearings are open to the public, just as they are before a civilian criminal court. They are announced in advance in the Routine Orders of the Base where the court martial is to occur. The media is also proactively invited to attend courts martial, and courts martial results and appeals are also communicated publically through a variety of means including the web and social media.

There are a number of features that are unique to the court martial system. For example, courts martial, in contrast to civilian justice processes, are mobile and may be held anywhere in or outside Canada. Normally, they are held at the unit of the accused person. 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. Those most affected by an alleged offence can see for themselves that justice is being done. This also means that all military judges, military defence counsel, and military prosecutors, are away from home on a regular basis. For this reporting year, military prosecutors spent a total of 750 days on temporary duty (TD) outside of their assigned geographical locations for courts martial (including trial preparation), training (both prosecution and general service related) or other reasons pertaining to military service.

Here are other unique features worth mentioning outlined in the table, below.

As illustrated above, the court martial system has its own particularities but these are not the hallmark of a second class substandard system. They are only differences designed to maintain or reinforce discipline. Even though there is some overlapping, the military justice system has different objectives than the civilian criminal justice system. This was well explained by Colonel (Retired) Michael Gibson, now a serving Ontario Superior Court Justice:

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.¹⁴

1.2 Duties and Functions of the DMP

The DMP is appointed by the Minister of National Defence.¹⁵ 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. DMP is also responsible for representing the CAF at custody review hearings and providing 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 Judge Advocate General (JAG), he exercises his prosecutorial mandate in an independent manner from the chain of command. DMP has a constitutional obligation, like any other public official exercising a prosecutorial function, to act independently of partisan concerns and other improper motives.

In accordance with sections 165.12 and 165.13 of the NDA, when a charge is referred to him, DMP determines whether:

• To prefer or not the charge(s);
• Prefer any other charge that is founded on fact disclosed by evidence in addition to or in substitution for the charge(s); or
• Refer it for disposal by an officer who has jurisdiction to try the accused by summary trial.

The DMP may also withdraw a charge that has been preferred.

1.3 Mission and Vision

Our Mission

To provide competent, fair, swift and deployable prosecution services to the CAF 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 rule of law and the maintenance of discipline, efficiency and morale in the CAF.

The DMP’s vision described in the graphic below, aligns itself with the JAG’s new Strategic Direction.¹⁶

1.4 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. Since the last reporting period some structural changes have been implemented. The two Deputy Directors of Military Prosecutions (DDMP) and the Assistant Director of Military Prosecutions (ADMP) respective roles were adjusted to improve efficiency and ensure a better distribution of files amongst prosecutors as well as allowing the ADMP to focus more on long term projects and strategic issues. There was also the creation of a new Lieutenant-Colonel (LCol) position, DDMP Sexual Misconduct Action Response Team (SMART). As a result, the CMPS is currently structured as:

• DMP headquarters at National Defence Headquarters in Ottawa consisting of the following personnel:
  • DMP;
  • ADMP;
  • DDMP Atlantic, Eastern and Pacific regions;
  • DDMP Central and Western regions;
  • DMP-2 (Policies, Training & Communications);
  • DMP-3 (Appellate Counsel);
  • CFNIS Legal Advisor;
  • CMPS Paralegal; and
  • Legal Assistant to the DMP.
• 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); and
• DDMP SMARTThe position of DDMP SMART was created in this reporting period 2017-2018 and is currently filled by a LCol from the Reserve Force working from Toronto, Ontario.
• Eight Reserve Force positions located individually across Canada, including a LCol position for the reserve who acts as DDMP Reserves.

The DMP organization chart is provided at Annex A.

Footnotes

¹ [1980] 2 SCR 370 at paras 48 and 49.

² [1992] 1 SCR 259 at para 50.

³ 2015 SCC 55, [2015] 3 SCR 485 at para 46.

⁴ Ibid at para 54.

⁵ Généreux, at 281 and 293.

⁶ 2016 SCC 32.

⁷ The Attorney General of Canada, the Attorney General of Ontario, the Attorney General of Quebec, the Attorney General of British Columbia and the Director of Criminal and Penal Prosecutions of Quebec all intervened in this appeal to the SCC.

⁸ 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.

⁹ Canadian Military Doctrine. See, in particular, Ch 2 "Generation and Application of Military Power" and Ch 4 "The Canadian Forces".

¹⁰ For further information, please refer to DMP Policy Directive 003/00 Post-Charge Review available on the DMP website: http://www.forces.gc.ca/en/about-policies-standards-legal/post-charge-review.page.

¹¹ Supra note 7, at paragraph 28-29.

¹² DMP Policy Directive 005/99 Communications with Service Authorities

¹³ Canada’s Defence Policy, Strong Secure Engaged, p.27.

¹⁴ 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.

¹⁵ Colonel Bruce MacGregor was appointed by the Minister of National Defence on 20 October 2014 to be the DMP for a four-year term.

¹⁶ 2018-2021 Office of the JAG Strategic Direction, Excellence Through Service.