Chapter Six: Policy Updates

The policy directives of the DMP serve a key role in the prosecution of cases at courts martial. Not only do they set out the authorities and limitations for prosecutors but they provide specific direction on a number of related issues such as communications with victims and with service authorities, media relations, the appeal process and the appointment of special prosecutors. They govern the prosecutions and other military justice proceedings conducted by prosecutors and ensure that all decisions taken by prosecutors are done on a principled basis and in accordance with the law.

In an effort to further enhance public confidence in the administration of military justice, the DMP, during this reporting period, promulgated the CMPS Complaints Policy which sets out the procedure for an individual to make a complaint on any matter within the purview of the CMPS and details the process for the timely resolution of all complaints Footnote 29.

Although the CMPS is responsible to prosecute all service offences with diligence and in a manner that is fair, impartial and objective, on occasion a member of the CAF or a member of the Canadian public may feel as though they have been treated unfairly or that a prosecutor with the CMPS has not conducted him or herself in accordance with CMPS policies or directives. In such cases, that individual may wish to initiate a formal complaint for resolution.

As independent actors within the military justice system, prosecutors with the CMPS are required to exercise their discretion in a variety of circumstances and on a regular basis. Therefore, the goal of this policy is to ensure the CAF and the Canadian public that the CMPS remains accountable to exercise their discretionary powers properly and in accordance with the direction provided by the DMP. In those instances where a complaint has been made, members of the CAF and the Canadian public can have the confidence that the leadership of the CMPS organization will take action as necessary when a matter has been brought to their attention.

In order to make a complaint, an individual must submit the complaint in writing, in either official language, and provide all relevant information in order to allow for a thorough review of the matter. Complaints may speak to the conduct of a particular prosecutor but may also be more general in nature addressing any procedure, practice or policy of the CMPS which results in the unfair treatment of any individual.

Where possible, the CMPS will provide the complainant with a written response within forty days of the complaint being received. If the CMPS is unable to do so, the complainant will be notified and will be provided with a written explanation for the delay.  Additionally, in most cases, where a complainant is dissatisfied with the initial response he or she may request that the complaint be reviewed personally by the DMP for resolution. 

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Special Prosecutor

On 12 April 2017 The DMP issued a new policy directive for the appointment of special prosecutors whenever there is a risk of an actual or perceived conflict of interest in the conduct of military prosecution duties that may adversely impact public confidence in the administration of military justice.Footnote 30  Special prosecutors, are appointed by the DMP and must be members in good standing of the bar of a province or territory of Canada and must also be officers of the CAF but not a member of the Office of the JAG.

The DMP appointed a special prosecutor, Lieutenant-Colonel Mark Poland, a reserve infantry officer who is also the Crown Attorney of the Waterloo Region with the Ontario Ministry of the Attorney General on 19 February 2018 to conduct the post-charge review of charges laid by the CFNIS against the Chief Military Judge, Colonel Mario Dutil on 25 January 2018.

On 31 July 2018, the DMP appointed Second Lieutenant Cimon Senécal, a criminal and penal prosecuting attorney with the Directeur des poursuites criminelles et pénales of Québec, to assist Lieutenant-Colonel Poland.  However, on 26 December 2018, Lieutenant-Colonel Poland was appointed by the Attorney General of Ontario as a justice in the Ontario Court of Justice. As a result, Second Lieutenant Senécal will now be the lead prosecutor in this matter.

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Additional Amendments

In addition to those policy amendments made as a result of the Report of the Auditor General on the Administration of Justice in the CAF a number of additional policy amendments were made to provide better clarity in areas where the policy was not as clear as it should have been. These amendments were made contemporaneously with those to respond to the concerns of the Auditor General and were promulgated on 1 September 2018.

DMP Policy Directive 002/00: Pre-Charge ScreeningFootnote 31

The notion of further investigation at the pre-charge stage will no longer exist. That is, prosecutors will no longer return a file and request that additional investigation be undertaken thereby “stopping the clock” for how long it takes a prosecutor to conduct pre-charge screening. If a prosecutor receives a file and the evidence in the file does not satisfy the test to recommend that a charge be laid, the prosecutor will return the file with a recommendation that no charge be laid. 

However, if the prosecutor believes that further investigation may assist he or she shall discuss this with the investigator and provide sufficient detail to assist the investigator in conducting any necessary further investigation. Should the investigator conduct further investigation and resubmit for pre-charge screening, the file will be re-opened and the prosecutor will provide his or her opinion based on the information contained in the updated file.

DMP Policy Directive 003/00: Post-Charge ReviewFootnote 32

Changes made to this policy provide a bit more clarity to how serious sexual misconduct files are assigned and how final disposition authority is given to the DDMP SMART. Where a DDMP receives a file which contains an allegation of sexual misconduct, he or she will determine whether the allegation is one of serious sexual misconduct. Where required, the DDMP will consult with the DDMP SMART when making such a determination. 

Where the file contains an allegation of serious sexual misconduct, the DDMP will assign the file to a prosecutor in consultation with DDMP SMART. In all cases involving an allegation of serious sexual misconduct, the DDMP will ensure that DDMP SMART is assigned final disposition authority. In all other cases of sexual misconduct, the DDMP will ensure that DDMP SMART is aware of the file.

DMP Policy Directive 009/00: Communications with Unit Legal AdvisorsFootnote 33

This policy was amended to set out that prosecutors will only conduct pre-charge screening at the request of a Deputy Judge Advocate (DJA) after the DJA has thoroughly reviewed the file and has formed the opinion that charges triable only by court martial are warranted.  

In addition, after providing pre-charge legal advice, the prosecutor will proactively follow up with the unit legal advisor and address any questions or concerns arising from that advice.

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Victims

This reporting period, the DMP also created a new e-mail address, monitored daily, to provide victims of sexual misconduct with an online option to seek information from military prosecutors about the status of their case and the court martial process, or to get answers on questions they may have about their file.Footnote 34

This initiative was introduced to ensure that victims remain informed and supported throughout the court martial process following recent amendments to a number of DMP policy directives requiring military prosecutors to consider the views of the victim in a variety of circumstances.

Information available to victims includes, but is not limited to:

  • The decision of the prosecutor on whether to prefer a charge against the accused;
  • Any release conditions placed on the accused prior to trial or any amendments thereto;
  • Information regarding the court martial process;
  • Publication bans or other available methods to protect victims’ identities;
  • Information regarding testifying at court martial;
  • Any decision by the prosecutor to enter into plea negotiations with defence counsel;
  • Any decision by the prosecutor to withdraw charges against the accused; and
  • The ability of the victim to provide a victim impact statement at court martial.

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