Chapter Five: Report of the Auditor General of Canada in the Administration of Justice in the Canadian Armed Forces

Introduction

As a part of its 2018 Spring Reports, the Auditor General of Canada reported to Parliament on the Administration of Justice in the CAF.^{Footnote 28}  The audit focused on whether the CAF administered the military justice system efficiently and in particular, it assessed the effectiveness of the CAF in processing military justice cases in a timely manner.

In regards to those areas that fell within the responsibility of the DMP, the Auditor General concluded that:

• It took too long to resolve many of its cases;
• The policy on disclosing relevant evidence to the accused did not establish time standards to provide evidence to the accused;
• There was no formal requirement to communicate with the military police about whether charges were laid or to provide feedback on the quality of the police investigations;
• The procedure for assigning cases and decision-making authorities to prosecutors was not clear and the assignment of cases to prosecutors was not always documented.

As a result, the Auditor General made a series of recommendations designed to address those concerns. Those recommendations that fell within the responsibility of the DMP included:

• The CAF should establish formal communication processes to ensure that the Military Police, the DMP, the JAG’s legal officers, and the military units receive the information that they need to carry out their duties and functions in a timely manner.
• The CAF should define and communicate expectations for the timely disclosure of all relevant information to members charged with an offence.
• The CAF should put in place a case management system that contains the information needed to monitor and manage the progress and completion of military justice cases.
• The DMP should ensure that the policies and processes for assigning cases to prosecutors, and for documenting decisions made in military justice cases, are well defined, communicated, and fully implemented by the members of the CMPS.

Before the report was released, the DMP instituted a number of changes to address the concerns of the Auditor General. For example, the DMP directed his two DDMPs who supervise RMPs to request disclosure from the appropriate investigative agency before the file is assigned. In addition, before the report was released, the DMP had already made changes to the instruments for the appointment of prosecutors clarifying the limits for the exercise of their prosecutorial powers indicating that they were authorized to exercise the statutory powers given to the DMP on his behalf but subject to those limitations as indicated in his policy directives.

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Policy Amendments

Following the release of the report, the DMP undertook a detailed policy review by 1 September 2018 to ensure that his policies properly reflect the concerns expressed by the Auditor General and that all key decisions taken on a file affecting the disposition of that file are properly documented and communicated. Those changes made in response to the concerns raised by the Auditor General are set out below.

DMP Policy Directive 001/00: Relationship with Canadian Forces National Investigation Service

Once a decision has been made to prefer charges for trial by court martial, prosecutors are required to actively follow-up with the investigator to ensure that they are aware of the decision and to discuss next steps as required. If the decision was not to prefer, the discussion with the investigator will essentially be to provide feedback to assist with improving future investigations.

Once a court martial has been completed the prosecutor must provide feedback to the investigator in order to address any concerns which may have arisen during the course of the court martial. The intent of the feedback is to identify and address areas of mutual concern with the aim of improving the quality of future investigations.

DMP Policy Directive 002/00: Pre-Charge Screening 

If a prosecutor is unable to complete the pre-charge screening in the allotted timeframe, he or she shall contact the appropriate DDMP and seek approval to extend the timeline beyond the applicable time period. In those cases where the DDMP approves an extension beyond the applicable time period, he or she shall do so in writing and shall document the reasons as to why the extension was approved. The written authorization by the DDMP shall be placed in the case file. 

Once an extension beyond the applicable time period has been approved the prosecutor shall contact the investigator and provide a reasonable estimate as to how much time will be required to provide the advice and a brief explanation as to why more time is required.

DMP Policy Directive 003/00: Post-Charge Review

File Assignment and Final Disposition

Upon receipt of a referral from a referral authority the appropriate DDMP shall conduct an initial review of the file to familiarize him or herself with the size and complexity of the file prior to assigning it to a prosecutor. At this stage, where the applicable DDMP concludes that a particular file will result in a non-preferral decision, in the interests of efficiency, he or she may complete the necessary documentation to dispose of the file without assigning it to a prosecutor. 

Should the applicable DDMP not dispose of the file immediately, he or she shall request disclosure from the applicable investigative agency and assign a prosecutor to conduct the post-charge review.

Where a prosecutor does not have final disposition authority, he or she shall make their recommendation regarding disposition to the proper authority within the applicable timeframe.  Once a decision is taken by the proper authority, that person must then ensure that they record their decision and place it in the prosecution case file. 

Disclosure

Once a prosecutor has ensured that he or she has received complete disclosure he or she shall review the disclosure material in order to determine whether a charge or charges should be preferred. Where possible, the prosecutor shall prepare the disclosure package to be sent to defence counsel contemporaneously with the decision on whether or not to prefer charges.  Where the prosecutor is unable to send the disclosure contemporaneously with the decision on whether or not to prefer charges, he or she shall notify the applicable DDMP informing him or her as to why disclosure will be delayed. In all cases, the necessary vetting of the disclosure materials shall commence immediately upon receipt in order to ensure that all relevant material is provided to the accused as soon as possible.

Reassignment of File

Where a file is to be reassigned from one prosecutor to another, the applicable DDMP shall assign a new prosecutor in writing. Once a new prosecutor has been assigned to the file, he or she shall review the file to determine whether there is a reasonable prospect of conviction should the matter proceed to trial by court martial and whether the public interest requires that a prosecution be pursued. In all cases, the new prosecutor shall document his or her decision and place it in the prosecution case file.

Timelines

The timeline to complete a post-charge review will be determined by the appropriate DDMP by considering the size and complexity of the file, the workload and experience of the prosecutor and any other relevant factors. Should the prosecutor require longer than the assigned time to complete the post-charge review he or she shall request approval from the appropriate DDMP and provide a reasonable estimate as to how much time will be required to complete the review and a brief explanation as to why more time is required. 

Where the appropriate DDMP approves an extension of the deadline for the post-charge review, he or she must ensure that the approval is provided in writing and contains an explanation as to why the extension was provided. This approval shall be placed in the prosecution case file. 

DMP Policy Directive 005/00: Communications with Service Authorities

This policy reiterates the requirement for prosecutors to speak with investigators after a court martial to provide feedback to assist in improving the quality of future investigations. However, it also makes it a requirement to do so in cases of military police and unit investigations.

DMP Policy Directive 011/00: Withdrawal of Charges

Once a decision to withdraw a charge has been made, the individual with final disposition authority must ensure that they record their decision and place it in the prosecution case file. 

DMP Policy Directive 017/18: Court Martial Scheduling

This is a new policy that deals with the scheduling of courts martial and pre-trial applications. It holds that prosecutors shall take all best efforts to ensure that they schedule all courts martial, including pre-trial applications, in a timely manner. According to the policy, two timelines have been put in place to move cases more quickly:

• Once disclosure has been sent to defence counsel, prosecutors shall inform the accused of any witness who he or she proposes to call as soon as practicable and, except in exceptional circumstances, no later than 15 days after providing disclosure.
• Once disclosure and the list of witnesses have been sent to the accused, the prosecutor shall make best efforts to engage defence counsel within 30 days to discuss possible dates for court martial.

The policy also offers some guidance for the bringing of scheduling applications. In those cases where it may be appropriate to do so, the policy sets out a number of factors that should be taken into consideration such as:

• Whether the prosecutor has made reasonable efforts to schedule a court martial with defence counsel or an unrepresented accused;
• Whether the prosecutor is of the opinion that there is no valid reason to justify why a court martial should not be scheduled; and
• Whether the prosecutor is of the opinion that the only way for a court martial to be scheduled in a timely manner is to make a scheduling application.

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Case Management System

In 2016, the DMP began work to create an electronic database to track cases throughout the court martial process with the aim of improving transparency and efficiency, increasing accountability and reducing over-all delays in the court martial system. In response to the recommendation by the Auditor General that the CAF put a case management system in place that monitors and manages the progress and completion of military justice cases, the DMP responded that he was prepared to employ a significantly improved electronic database / case management sys-tem by 1 June 2018. 

Referred to as the Case Management System (CMS), this database was operationalized on 1 June 2018 and allows all prosecutors within the CMPS to monitor the progress of each file and to conduct specific actions on each file such as the assignment of files by the DDMPs. Since 1 June 2018, a number of upgrades have been made to CMS to further improve its functionality and enhance the way in which files are tracked through the court martial process. For a more detailed explanation of the CMS, please refer to Chapter Eight.

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Canadian Forces Military Police Academy

In order to further enhance communications between prosecutors and military police, the DMP also undertook to examine how additional legal support could be provided to the Canadian Forces Military Police Academy (CFMPA). In addition to facilitating the provision of information between military prosecutors and military police, the intent is to assist in the improvement of the quality of future investigations through coordinated training and feedback. Since the release of the Report, the DMP has continued to offer assistance to locate an additional prosecutor at the CFMPA.