Message from the Director of Military Prosecutions

I am pleased to present the Director of Military Prosecutions (DMP) Annual Report for the 2018/19 reporting period, my fifth since being appointed by the Minister of National Defence as DMP on 20 October 2014.

As a Commanding Officer, it gives me great pride to lead an organization such as the Canadian Military Prosecution Service (CMPS) and those talented individuals who work within it. Despite a number of challenges faced by the CMPS this year, we were able to successfully continue to support the Canadian Armed Forces (CAF) in the maintenance of the discipline, efficiency and morale of the men and women who serve their country with distinction.

In September of 2018, the Court Martial Appeal Court (CMAC) released its decision in the case of R v Beaudry. Despite two previous rulings to the contrary, the CMAC held that s. 130(1)(a) of the National Defence Act violates section 11(f) of the Canadian Charter of Rights and Freedoms. The immediate effect of that ruling was that the CMPS was no longer able to prosecute those cases where accused persons were charged with offences under that section and were subject to a punishment of imprisonment for five years or more. At the time of the decision, nearly half of our annual caseload was impacted.

Within 48 hours of the decision, our team responded by appealing the decision on behalf of the Minister of National Defence and by filing two motions with the Supreme Court of Canada (SCC) – one to request a stay of execution of the declaration of invalidity and a second motion to join the matter with the case of R v Stillman which was already before the SCC on the very same issue.

On 14 January 2019, the SCC denied the request for a stay of execution. I immediately instructed all members of my team to examine those impacted cases on a principled basis to determine whether those matters could still proceed through the military justice system or if they had to be transferred to the civilian justice system. In all cases where there were victims, I required that they be consulted and informed prior to any decisions being taken.

It is an understatement to say that this presented a challenge to our organization and our ability to continue to prosecute cases through the military justice system. At all times, we continued to balance the need to hold those accused of offences to account for their actions along with the interests of victims and the rights of the accused to be tried within a reasonable time as indicated by the SCC in the recent case of R v Jordan. On 26 March 2019, the cases of Beaudry and Stillman were argued before the SCC and a decision is expected in the next reporting period.

In addition, this past reporting period the Auditor General of Canada, as a part of his 2018 Spring Report, reported on the administration of military justice. That report indicated a number of concerns related to delay, the documenting of key decisions in court martial files and the independence of the DMP. The Auditor General made a series of recommendations which were accepted and our prosecution team updated a number of our policies and procedures to ensure better efficiencies and that key decisions were properly documented.

In terms of independence, I continue to work with the Judge Advocate General and others to ensure that conflicts do not arise in the duty of my prosecutors to act in the public interest. Properly recognized by the Auditor General, prosecutorial independence that is free from any form of interference is one of the keys to a properly functioning criminal justice system.

This past reporting period there were a number of appeal decisions from the CMAC as well as the case of R v Gagnon which was also argued at the SCC. In that case, in a unanimous decision from the bench, the SCC affirmed the requirement, in cases of sexual assault, for an accused to take reasonable steps to ensure that the complainant is consenting to sexual activity. At the CMAC, aside from Beaudry, the court also rendered two other decisions in R v Edmunds and R v Cadieux. In addition, on behalf of the Minister, I appealed four court martial decisions to the CMAC on several questions of law in R v Bannister, R v MacIntyre, R v Edwards and R v Spriggs. All of these cases are discussed in greater detail in Chapter Three.

This past reporting period I also took considerable steps to engage in strategic outreach with members of the CAF as well as with civilian and military prosecutors both nationally and internationally through the Federal/Provincial/Territorial Heads of Prosecution Committee and the International Association of Prosecutors. These organizations are designed to promote good relations between prosecution agencies and facilitate the exchange and dissemination of information, expertise and experience in those areas that touch upon criminal law and practice management. Through these relationships not only do we improve the conduct of prosecutions within the CMPS through the sharing of best practices but we also continue to strengthen the legitimacy of Canada’s military justice system.

To further improve the abilities of my prosecutors I also put a high priority on training and professional development opportunities. With such a junior cadre of military prosecutors within the CMPS, training becomes an essential component in the improvement of the core prosecutorial competencies of our personnel. To that end, my prosecutors were afforded a number of training opportunities including some who worked alongside our civilian counterparts through memorandums of understanding with provincial prosecution services to prosecute cases under the mentorship of civilian Crown counsel. Given the busy workload and high tempo throughout the year, most of the CMPS leadership was involved in the two appeals to the SCC as well as providing assistance and guidance on the extraordinarily high number of cases argued at the CMAC this year. This made external training opportunities of vital importance to enhance the skill set of our personnel as internal training opportunities and day-to-day mentoring were greatly reduced.

Finally, this year saw significant development of and improvement to our electronic case management system. This system which tracks all court martial cases throughout the court martial process will improve transparency and efficiency by increasing accountability and reducing overall delays in the court martial system. In response to the recommendation by the Auditor General that a case management system be put in place to monitor and manage the progress and completion of military justice cases, the case management system was operationalized on 1 June 2018. The work done this year to enhance the case management system is discussed in greater detail in Chapter Eight.

In closing, it has been a very busy and challenging year for the CMPS and I would like to thank my entire team for their dedication, tenacity and professionalism in successfully meeting each and every one of these challenges as we continue to support the rule of law and support the maintenance of discipline, efficiency and morale in the Canadian Armed Forces.

ORDO PER JUSTITIA

Colonel Bruce MacGregor, CD, Q.C.
Director of Military Prosecutions