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

Duties and Functions of the DMP

The DMP is the senior military prosecutor in the 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 for preferring 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, with respect to 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 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 regarding a particular prosecution. The DMP must ensure that these instructions or guidelines are 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 of the 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 of 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

Our Mission

The CMPS prosecutes cases competently, fairly, and expeditiously in order to promote the operational effectiveness of the CAF through the maintenance of discipline, efficiency and morale.

Our Vision

The CMPS is an independent prosecution authority serving the needs of military justice, promoting discipline, and enhancing the operational effectiveness of the CAF.

We are a diverse and inclusive organization, committed to the health and well-being of our people.

Staffed by dedicated civilian and military professionals, our people hold themselves to a high ethical standard. They have a thirst for learning and constantly strive for excellence.

We are an agile organization, fully capable of operating in any environment, both in Canada and abroad, and are equipped to meet current and future challenges.

Our military officers are leaders who embody the ethos of the profession of arms, uphold the rule of law, and prosecute offences in a fair and transparent manner.

The CMPS is recognized domestically and inter-nationally as a critical and respected partner in the administration of justice, and has the full trust and confidence of the Canadian public, members of the CAF, and the chain of command.

Figure 1-1: DMP Vision: Discipline Through Justice

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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 CMPS, is headquartered in Ottawa and comprised of several Regional Military Prosecution Offices located across Canada.

CMPS Headquarters

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

ADMP

The ADMP is responsible to assist the DMP in the corporate governance of the CMPS and supervises the Senior Counsel. The ADMP also fulfills the responsibilities of the DMP in his absence.

DDMPs

The CMPS has recently redefined the role of the DDMPs:

• The DDMP Operations (DDMP Ops) is responsible for the management of the court martial calendar and file assignments. DDMP Ops supervises and mentors the Regional Military Prosecutors (RMP);^{Footnote 2} 
• The DDMP Strategic (DDMP Strat) supervises the Appellate Counsel and the CFNIS Legal Advisor. DDMP Strat tracks all matters of national interest occurring at the trial level and develops standardized legal positions on key areas of law;
• The DDMP for the Sexual Misconduct Action Response Team (DDMP SMART) is an experienced Reserve Force prosecutor who holds the rank of LCol and who is primarily responsible for mentoring prosecutors in the performance of their duties related to serious sexual misconduct prosecutions; and
• The DDMP Reserves (DDMP Res) is an experienced Reserve Force prosecutor who holds the rank of LCol and who is responsible for the overall supervision and management of Reserve Force prosecutors.

Senior Counsel

The Senior Counsel is a senior military prosecutor who is responsible to develop the litigation competencies of RMPs and assist the DMP and the ADMP in the governance of the CMPS, which includes staffing, training, policy review and development, drafting of statutory reports, access to information requests, media inquiries, and budget planning and forecasting.

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}

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 investigations, as well as updates on developments in the criminal law.

Regional Military Prosecution Offices

Each of the five Regional Military Prosecution offices are managed by a Senior RMP. Offices are located in Halifax, Valcartier, Ottawa, Edmonton and Esquimalt.

Senior RMPs are responsible to manage the day-to-day operations of their offices and to supervise their civilian administrative support staff. Senior RMPs and RMPs are also 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.

Reserve Force Prosecutors

The CMPS relies on eight experienced civilian prosecutors who are members of the Reserve Force. These members consist of the DDMP Reserves, the DDMP SMART, and six prosecutors who assist their Regular Force counterparts in the prosecution of cases at courts martial.

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

Figure 1-2: Organizational Chart for the CMPS

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CMPS Personnel Update

Regular Force

On 29 June 2021, Col Kerr was appointed as the new DMP, replacing Col MacGregor who had been the DMP for the previous seven years.

The position of the Appellate Counsel was vacated and filled by the Senior RMP from the Halifax office, leaving a single RMP in that office. A second RMP is expected to be posted to the Halifax office during the next reporting period.

The Senior RMP from the Valcartier office released from the CAF, leaving a single RMP in that office. A second RMP is expected to fill out the empty position remotely during the next reporting period.

The Senior RMP from the Esquimalt office was posted out of the CMPS and replaced by the Senior RMP from the Edmonton office. An experienced legal advisor from the Office of the JAG (OJAG) joined the Edmonton office as an RMP to fill in the vacant position left by the posting of the Senior RMP to Esquimalt.

The Senior RMP for the Ottawa office was moved into the Senior Counsel position and one of the RMPs for that Office took over the role of Senior RMP.

Reserve Force

During this reporting period three Reserve Force prosecution positions have become vacant. A Selection Board was conducted and the three positions are expected to be staffed in the course of the next reporting period.

Civilian Personnel

The Administrative Assistant to the DMP left the CMPS and a new Administrative Assistant was hired in the fall.

The Administrative Assistants for the Esquimalt and the Valcartier offices left the CMPS. A new Administrative Assistant was hired in Valcartier, and the position in Esquimalt is expected to be filled in the next reporting period.

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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 prosecutors. Criminal law is constantly evolving 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 the annual Continuing Legal Education (CLE) 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 CLE workshop is usually held concurrently with the JAG CLE workshop. Due to time constraints with the JAG CLE workshop during this reporting period, the CMPS has delayed its annual CLE workshop until the beginning of the next reporting period.

External organizations

During this reporting period, RMPs participated in continuing legal education programs delivered by several organizations. These programs benefited the CAF not only through the knowledge imparted and skills developed, but also through the professional bonds developed by individual military prosecutors with their colleagues from the provincial and federal prosecution services.

See Table 1-1 for a breakdown of training provided by external organizations for this reporting period.

Table 1-2: External Training Opportunities

HOST ORGANIZATION	NAME OF COURSE	NUMBER OF ATTENDEES
Public Prosecution Service of Canada	School for Prosecutors Level 1	2
	Written Advocacy Course	2
Ministry of Attorney General of Ontario – Sexual Violence Advisory Group	Prosecuting Sexual Assault: Law and Advocacy	10
Direction des poursuites criminelles et pénales du Québec	Cybercriminalité	1
Justice Canada	National Virtual Conference on Language Rights in Prosecutions	1
Nova Scotia Public Prosecution Service	Virtual Fall Conference	1
Siracusa International Institute for Criminal Justice and Human Rights	Specialization Course for Prosecutors	1
Alberta Law Enforcement Response Team	Firearms Crime Investigations and Prosecutions Conference	1
Canadian Bar Association	Myrna McCallum: Trauma Informed Lawyering and Advocacy	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” 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. 

From time to time legal officers serving outside the CMPS may, 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 4} 

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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, military prosecutors 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 564 days. This is a significant increase in comparison to the last reporting period (from 146 to 564). This increase is attributable to the relaxation of travel restrictions associated with the COVID-19 pandemic, thus allowing proceedings to be held in person again.

Table 1-2 shows the breakdown of TD days by Region for this reporting period.

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Table 1-2: CMPS Temporary Duty

REGION	COURT MARTIAL RELATED TD	APPEAL RELATED TD	TRAINING RELATED TD	OTHER TD	TOTAL TD
CMPS HQ	0	16	37	32	85
Atlantic	53	0	0	0	53
Eastern	93	0	0	0	93
Central	174	0	0	0	174
Western	71	0	0	0	71
Pacific	62	0	0	26	88
Total	479	16	37	32	564Footnote 5