Chapter One: The Canadian Military Prosecution Service: Ordo per Justitia

Duties and Functions of the DMP

The Director of Military Prosecutions (DMP) is the senior military prosecutor in the Canadian Armed Forces (CAF). He is appointed by the Minister of National Defence (MND) for a fixed term pursuant to subsection 165.1(1) of the National Defence Act (NDA).Footnote 1  Under the NDA, the DMP is responsible to prefer all charges to be tried by court martial and for the conduct of all prosecutions at courts martial. The DMP acts as counsel to the MND, when instructed, in respect of appeals to the Court Martial Appeal Court (CMAC) and the Supreme Court of Canada (SCC). The DMP is also responsible to provide advice in support of investigations conducted by the Canadian Forces National Investigation Service (CFNIS), which is the investigative arm of the Canadian Forces Military Police. The DMP represents the CAF at custody review hearings before military judges and the CMAC.

The DMP operates under the general supervision of the Judge Advocate General (JAG) and, in this regard, the JAG may issue general instructions or guidelines in writing in respect of prosecutions, which the DMP must ensure are made available to the public. The JAG may also issue instructions or guidelines in writing in respect of a particular prosecution. The DMP must ensure that these instructions or guidelines are also available to the public, unless the DMP considers that doing so would not be in the best interest of the administration of military justice.

Appointed for a four-year term, the DMP acts independently from CAF and Department of National Defence (DND) authorities when exercising his prosecutorial powers, duties and functions, and fulfils his mandate in a manner that is fair and impartial. Although the DMP acts under the general supervision of the JAG, he exercises his prosecutorial mandate independently from the JAG and the chain of command. The 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, the DMP determines whether to:
  • Prefer (or not prefer) the charge;
  • Prefer any other charge that is founded on facts disclosed by evidence in addition to or in substitution for the charge; or
  • Refer it for disposal by an officer who has jurisdiction to try the accused person by summary trial in those cases where the DMP is satisfied that a charge should not be proceeded with by court martial.

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

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Mission and Vision

Mission

To provide competent, fair, swift and deployable prosecution services to the CAF in Canada and overseas.

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 law, as well as discipline, good order, high morale, esprit de corps, group cohesion and operational efficiency and capability.

Figure 1-1: DMP Vision: Discipline Through Justice

Long description follows

 
Figure 1-1: Long description

DMP Vision: Discipline through Justice

CMPS Objectives

  • Enablers:
    • A fully staffed, healthy & highly motivated team
    • Continuously improve core competencies of lawyers, paralegals and support staff
    • Task-tailored, professional development for all DMP military & civilian personnel
  • Processes:
    •  Maintain a productive work environment supporting prosecutorial independence, discretion, initiative, decisiveness and trust 
      •  Maintain efficiency, transparency & inclusiveness in the CMPS
      • Enhance fairness and timeliness of military justice
      • Operate effectively within the statutory & regulatory framework of CMs
      • Conduct all activities within assigned resources

CAF Objectives - Outputs:

  • Comply with CFNIS Service Level Agreements
  • Meet the demands for courts martial, referrals, legal advice, operational deployments and training
  • Support & comply with all government-wide initiatives, legal, ethical & moral standards

Objectives for all Canadians - Outcomes:

  • Public Confidence in the CM Process as part of the Canadian Military Justice System
  • Support the maintenance of discipline, efficiency and morale in the CAF
  • Public confidence in the CMPS

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Canadian Military Prosecution Service

In accordance with section 165.15 of the NDA, the DMP may be assisted and represented, to the extent determined by the DMP, by officers who are barristers or advocates with standing at the bar of a province. In this regard the DMP is assisted by a number of Regular and Reserve Force legal officers appointed to act as military prosecutors, along with a civilian paralegal and support staff. This organization, known as the Canadian Military Prosecution Service (CMPS) is headquartered in Ottawa and comprised of several Regional Military Prosecutor (RMP) offices located across Canada.

CMPS Headquarters

The CMPS Headquarters (HQ) consists of the DMP, the Assistant Director of Military Prosecutions (ADMP), two Deputy Directors of Military Prosecutions (DDMPs), the Appellate Counsel, the Senior Counsel – Policy & Training, and the CFNIS Legal Advisor.

ADMP

The ADMP is responsible to assist the DMP in the day-to-day management of the CMPS. In addition, the ADMP supervises the Appellate Counsel, the Senior Counsel – Policy & Training, and the CFNIS Legal Advisor.

DDMPs

The DDMPs are responsible to supervise and mentor the RMPs. One DDMP currently supervises RMPs located in the Central, Atlantic, and Eastern regions. The other DDMP supervises RMPs located in the Western and Pacific regions.Footnote 2

Appellate Counsel

The Appellate Counsel prepares and files written materials and appears as counsel on behalf of the MND for all matters at the CMAC and the SCC.Footnote 3

Senior Counsel – Policy & Training

The Senior Counsel – Policy & Training is a senior military prosecutor who provides advice and support to the DMP on all policy-related matters. They also assist in the coordination of all training opportunities for members of the CMPS, including the organization of an annual Continuing Legal Education workshop.

CFNIS Legal Advisor

The CFNIS Legal Advisor is a military prosecutor embedded with the CFNIS and responsible to provide legal advice to members of the CFNIS HQ.  The CFNIS Legal Advisor also provides advice to investigators throughout all stages of an investigation, as well as updates on developments in the criminal law.

Regional Military Prosecution Offices

Regional offices are located in Halifax, Valcartier, Ottawa, Edmonton and Esquimalt. Each office is comprised of two RMPs and one civilian administrative support staff with the exception of the Esquimalt Office, which only has one RMP. RMPs are responsible for the conduct of courts martial, for representing the CAF at custody review hearings, and for the provision of legal advice and training to their respective CFNIS Detachments.

Sexual Misconduct Action Response Team

The DDMP for the Sexual Misconduct Action Response Team (SMART) is primarily responsible for mentoring prosecutors in the performance of their duties related to serious sexual misconduct prosecutions. The DDMP SMART is an experienced Reserve Force prosecutor who holds the rank of Lieutenant-Colonel (LCol).

Reserve Force Prosecutors

The CMPS relies on eight experienced civilian prosecutors who are members of the Reserve Force. These members consist of a DDMP Reserves, at the rank of LCol, who is responsible for the overall supervision and management of Reserve Force prosecutors, the DDMP SMART, and six prosecutors who assist their Regular Force counterparts in the prosecution of cases at courts martial.

The organizational chart for DMP can be found at Figure 1-2.

Figure 1-2: Organizational Chart for the Director of Military Prosecutions

Long description follows

 
Figure 1-2: Long description
  • Director of Military Prosecutions
    • Deputy Director of Military Prosecutions
      • Regional Military Prosecutions Atlantic
      • Regional Military Prosecutions Eastern
      • Regional Military Prosecutions Central
    • Deputy Director of Military Prosecutions 
      • Regional Military Prosecutions Western
      • Regional Military Prosecutions Pacific
    • Deputy Director of Military Prosecutions Reserves
    • Deputy Director of Military Prosecutions SMART 
    • Assistant Director of Military Prosecutions
      • Appellate Counsel
      • Senior Counsel - Policy and Training
      • CFNIS LA (Canadian Forces National Investigation Service Legal Advisor)

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CMPS Personnel Update

Regular Force

JAG Instruction Regarding Postings of Regular Force members at the CMPS

Recognizing the needs and challenges associated with developing experienced military prosecutors, the JAG issued an instruction to ensure that Regular Force members can remain with the CMPS for a minimum of five years before being considered for a posting. Before this instruction, Regular Force members of the Office of the JAG (OJAG) would normally be considered for a posting outside of the CMPS within three years. This instruction has helped the CMPS in building a pool of experienced RMPs, the benefits of which are beginning to be realized. This reporting period, the JAG renewed her commitment to the five-year minimum posting approach.

Reserve Force

During this reporting period, one civilian assistant Crown attorney from Nova Scotia enrolled in the CAF and joined the CMPS as a Reserve Force prosecutor. One position remains vacant and is expected to be staffed in the next fiscal year.

Civilian personnel

The CMPS Paralegal position was filled in an acting capacity by another civilian member from the OJAG for a period of four months during the reporting period. In September 2019, a new paralegal was hired into the position.

Additionally, in September 2019, the civilian member who occupied the position of Office Manager/Administrative Assistant for the Pacific Region office took a year of leave without pay to pursue an employment opportunity with the provincial government. In the meantime, the position is being filled on a part time basis by a former member of the CAF.

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Training and Continuing Legal Education

The need to continue to develop legal skills and keep abreast of key developments in the law is important for any lawyer but is critical for all prosecutors. The state of criminal law remains in constant evolution through judicial decisions at the trial and appellate levels, as well as through changes to the Criminal Code and the NDA.

The DMP places a premium on training opportunities for members of the CMPS and, aside from a yearly Continuing Legal Education workshop, relies heavily on external organizations to fulfill much of its training requirements. The following sections describe those training opportunities undertaken by members of the CMPS as well as those training activities which were provided by members of the CMPS to other organizations.

CMPS Continuing Legal Education Workshop

The CMPS was scheduled to hold its annual Continuing Legal Education (CLE) workshop at the end of March 2020 for its Regular Force and Reserve Force military prosecutors. Unfortunately, on 12 March 2020, in response to the coronavirus pandemic (COVID-19) and in accordance with CAF directives, the JAG placed a restriction on all temporary duty travel of its members for a period of a least 30 days. This led to the cancellation of the JAG CLE workshop. Similarly, the CMPS postponed its portion of the CLE workshop until the next reporting period.

Civilian Personnel Training Workshop

On 24 and 25 April 2019, the CMPS held a civilian administrative assistant training workshop, which focused on topics such as file management, finance, and training on the functionality of the electronic Case Management System.

Partnership with the Directeur des poursuites criminelles et pénales du Québec

During the last reporting year, the CMPS entered into a partnership with the Directeur des poursuites criminelles et pénales (DPCP) for the temporary employment of an RMP as a Crown prosecutor with the province of Quebec.

One RMP from the Eastern region was seconded to the Quebec City DPCP’s Office for a few months. During that time, the RMP acted as second chair for several trials involving sexual violence offences held at the Cour du Québec and the Cour supérieure du Québec. The RMP also followed two in-house courses regarding interaction with media and warrants. Finally, the RMP assisted Crown prosecutors in the conduct of military matters that had been referred to the civilian justice system following the decision of the CMAC in the matter of R v Beaudry.Footnote 4  These exchanges are invaluable in fostering relationships with other Canadian prosecution services, developing well-rounded advocates, and providing an opportunity to capture lessons learned that help further advance our practices and policies.

External organizations

During the reporting period, RMPs participated in continuing legal education programs delivered by a number of organizations including the Federation of Law Societies of Canada, the Public Prosecution Service of Canada, the Ontario Crown Attorneys’ Association, le Barreau du Québec, the Osgoode Professional Development, the Professional Development Institute, the Canada School of Public Service and the Alberta Crown Prosecution Service. These programs benefited the CAF not only through the knowledge imparted and skills developed but also through the professional bonds developed by individual RMPs with their colleagues from the provincial and federal prosecution services.

For a complete breakdown of training opportunities provided by external organization, please refer to Table 1-3.

Table 1-3: External Training Opportunities

HOST ORGANIZATION NAME OF COURSE NUMBER OF ATTENDEES
Federation of Law Societies of Canada 2019 National Criminal Law Program 18
Public Prosecution Service of Canada PPSC School for Prosecutions - Prosecution Fundamentals (Level 2) 1
Ontario Crown Attorneys' Association Nuts and Bolts 3
Ontario Crown Attorneys' Association Appellate Advocacy 1
Ontario Crown Attorneys' Association Financial Crimes 1
Ontario Crown Attorneys' Association Trial Advocacy 1
Ontario Crown Attorneys' Association Search and Seizure 2
Barreau du Québec Techniques de plaidoirie 1
Osgoode Professional Development Search Warrant Drafting 1
Alberta Crown Prosecution Service Indigenous Justice: Cultural Competency Law and Practice 1
Alberta Crown Prosecution Service Alberta Crown Conference 1
Professional Development Institute Rule of Law Conference 1
Canada School of Public Service Change Management Training 1

Training provided by CMPS

The CMPS also provides support to the training activities of the OJAG and other CAF entities. During the reporting period, this support included the mentoring and supervision by RMPs of a number of junior legal officers from the OJAG who completed a portion of their “On the job training” program by assisting at courts martial. The CMPS also provided support to military justice briefings given to JAG legal officers and military justice briefings offered by the Regional Services division of the OJAG to other members of the CAF.

Legal officers serving outside the CMPS may also, 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”.Footnote 5

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Temporary Duty

The portability of the court martial system means that courts martial can occur anywhere in Canada or around the world. Unlike their civilian counterparts, RMPs are called upon to travel away from their home for significant periods of time to conduct courts martial and appeals, or to attend training events. Travel away from home – referred to as temporary duty (TD) – has a significant impact on the well-being of CMPS personnel and their families. This year, members of the CMPS were on TD for a total of 806 days. This is an increase of 102 days in comparison to the last reporting period (from 704 to 806). The increase in total number of TD days for this reporting period is mostly due to an increase in court martial-related TD days in comparison to the last reporting period (from 375 to 448). 

Table 1-4 shows the breakdown of temporary duty for CMPS personnel by region for this reporting period.


Table 1-4: CMPS Temporary Duty

REGION COURT MARTIAL
RELATED TD
APPEAL
RELATED TD
TRAINING
RELATED TD
OTHER
TD
TOTAL
TD
CMPS HQ 72 25 23 63 183
Atlantic 41 0 22 4 67
Eastern 77 0 19 4 100
Central 143 0 65 1 209
Western 76 0 115 1 192
Pacific 39 0 11 5 55
Total 448 25 255 78 806Footnote 6
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