Appendix B: Breakdown of Representation at Court Martial by DCS Counsel
Table 3: Representation at Court Martial
Civilian Counsel Retained by DCS
Civilian Counsel Retained Privately
Appendix C: Synopsis of Appeals
Ex-Pte St-Onge (CMAC-517) On 26 June 2008, Ex-Pte St-Onge appealed the results of his court martial in which he had pled guilty to a charges of possessing cannabis, using cannabis and methamphetamine, unauthorized possession of CF ammunition, and verbally threatening a superior. The grounds of appeal were based on the jurisdiction of the court and that the sentence of thirty (30) days imprisonment was too severe. In August of 2010 the CMAC dismissed the appeal of jurisdiction but reduced the sentence to a fine of $3,000. One judge dissented. The DMP, on behalf of the Minister of National Defence, appealed the decision to the Supreme Court of Canada. In April 2011 the Supreme Court granted the appeal and restored the sentence of the Military Judge.
OS Lee (CMAC-523) OS Lee was found guilty of trafficking cocaine. He appealed the finding of guilt on the basis that the Military Judge had failed, within the specific facts of this case, to instruct the panel properly as to the mens rea of the offence. He also appealed the severity of his sentence of five months imprisonment. The appeal was heard on 19 March 2010. In April 2011 the appeal was dismissed.
Capt(CMAC-525) was found guilty of having, in October of 2000, made false documents contrary to section 367 of the Criminal Code. The trial commenced in October 2008. He made a Charter motion under sections 8 and 24(2) alleging unreasonable search and seizure. The Military Judge dismissed the application, convicted the accused and imposed a severe reprimand and a fine of $3000. The member appealed. In January 2010 the CMAC rejected the appeal. In May 2010 the Supreme Court of Canada denied his further request for appeal.
LS Reid, S. (CMAC-524) & LS Sinclair, J (CMAC-526), then P02 Reid and POl Sinclair, had plead guilty to willfully damaging public property contrary to Section 116(a) of the NDA. The property in question was a database icon that they had been instrumental in creating for use within the National Defence Operations Center. Both members were sentenced to reductions to the rank of leading seaman and fines of $3,000. They appealed their sentences. The CMAC dismissed their appeals in April 2010.
Ex-OS Ellis (CMAC-528) had pled guilty to two charges of trafficking cocaine and two charges of conduct to the prejudice of good order and discipline for using cocaine. He was sentenced to 9 months imprisonment. At trial the accused had brought a motion under sections 7, 11(d) and 12 of the Charter challenging the constitutionality of our separate military scale of punishments. In April 2009 he appealed the severity of his sentence and the Military Judge's rejection of his Charter motion. In April 2010 the Court Martial Appeal Court dismissed the appeal.
LCol Szczerbaniwicz (CMAC-513) had been found guilty of common assault after his defence of property submissions were rejected. In April 2008 he appealed. In May 2009 the CMAC dismissed the appeal with one judge dissenting. The member appealed to the Supreme Court of Canada and the matter was heard in June 2009. In a 5-2 decision, rendered in May 2010, a majority of the Supreme Court dismissed the appeal.
Cpl Liwyj, (CMAC-530) was a vehicle technician who, in June 2009, was found guilty of three offences of disobedience of a lawful command in relation to the procedure that was to be followed in fixing a vehicle's brakes. He was sentenced to a reprimand and a fine of $750. He appealed both the conviction and sentence. The CMAC heard the case in May of 2010. It upheld the conviction and the fine but removed the reprimand.
Cpl Wilcox (CMAC-534) was found guilty of criminal negligence causing death contrary to section 220 of the Criminal Code and negligent performance of a military duty contrary to section 124 of the National Defence Act for the accidental shooting death of his friend and follow soldier. He was sentenced to imprisonment for 48 months and dismissal from Her Majesty's service. In October 2009 he appealed on a number of grounds. In October 2010 the Minister reversed his position and joined the appellant in recommending a new trial be ordered as the military judge had erred in permitting the withdrawal of a panel member without replacement. The CMAC accepted this submission and ordered a new trial.
Ex-Pte Seifi (CMAC-535) was charged with one count of sexual assault and an alternate charge of conduct to the prejudice of good order and discipline for touching the breast of the complainant. He was found not guilty of both these charges but guilty of the lesser and included offence of common assault. He was sentenced to a reprimand and fine of $500.00. In October 2009 he appealed. The Director of Military Prosecutions, on behalf of the Minister, cross-appealed on the findings of not guilty of both sexual assault and conduct to the prejudice of good order and discipline. In April 2010 both appeal and cross-appeal were abandoned.
MS Boyle, (CMAC-537) was acquitted of behaving in a disgraceful manner (section 93 NDA) and of committing an act to the prejudice of good order and discipline (section 129 NDA) in relation to some apparent "horseplay" on board a ship. The Director of Military Prosecutions, on behalf of the Minister, filed a notice of appeal in December 2009. In November 2010 the CMAC ordered a new trial. The prosecution was subsequently abandoned.
Cpl T. Leblanc (CMAC-538) was found guilty of sexual assault pursuant to section 271 of the Criminal Code and was sentenced to imprisonment for 20 months. During the course ofthe trial the military judge had refused to admit statements made by the victim which were relevant to the central issue of trial; the member's reasonable belief that there was consent to the sexual activities he engaged in. The accused appealed his conviction. After the conclusion of this reporting period, the CMAC has overturned the conviction and sent the matter back for a new trial.
Cpl A. Leblanc (CMAC-539) was found guilty of negligently performing a military duty and was sentenced to a $500 fine. He made pre-trial motions under sections 7,11d) and 12 of the Charter challenging the constitutionality of the military scale of punishments as well as the independence of Military Judges. These were dismissed. In March 2010 the member filed a notice of appeal in relation to both the finding of guilt and the military judge's independence. The CMAC herd the matter outside of this reporting period. They upheld the finding of guilt. However, they found that the Military Judge, under the extant re-appointment provisions, lacked the requisite independence. This has been corrected by legislation.
Capt Winters (CMAC-540) plead guilty at trial to a charge of conduct to the prejudice of good order and discipline for violating Land Forces Quebec Area "Information Systems Security Regulations". The Military Judge refused to accept the guilty plea because the provision contravened did not have the legal attributes of a regulation. The member was found not guilty and the Director of Military Prosecutions appealed the decision. In January 2010, after discussing the requirements and consequences of a guilty plea, the CMAC granted the appeal and returned the matter to the Standing Court Martial for sentencing.
Bdr Gray (CMAC-542) was found guilty of stealing (section 114 NDA). He was sentenced to a fine of $2001. The additional dollar had consequences on the ability of the member to seek a pardon in a timely fashion. In June 2010 the member appealed the severity of sentence. In October 2010 the Appeal Committee refused his application for counsel at public expense. In March 2011 the CMAC dismissed the appeal because of the inaction of the appellant.
Capt Day (CMAC-543) was charged with two counts of negligent performance of a military duty (s.124 NDA) and, alternatively, with two counts of neglect to the prejudice of good order and discipline (s.129 NDA). The charges related to an incident in Afghanistan where, as a result in a breakdown in communications, a Canadian tank fired in the direction of Canadian soldiers. At the close of the prosecution's case, the military judge granted a motion that the prosecution had failed to present a primae facie case and found the member not guilty of all charges. The ruling was appealed and, in May 2011, a new trial ordered.
Capt Clark (CMAC-545) was found guilty of disobedience of a lawful command of a superior officer (s.83 NDA) and two charges of committing an act to the prejudice of good order and discipline (s.129 NDA). She was found to have inappropriately communicated performance evaluation report discussions to a subordinate contrary to a direction not to do so and to have lied in statements denying misconduct. In February 2011 the member appealed the findings of guilt. At the end of this reporting period the appellant was awaiting the decision of the Appeal Committee.
Cpl Lough (CMAC -544) was charged in relation to allegations of sexual assault at CFB Cold Lake. On 10 August 2010 a military judge ordered that he be retained in pre-trial custody pursuant to subsection 159.2(b) ofthe NDA. On 17 September 2010 DCS counsel filed a motion with the CMAC for his release. The CMAC denied the motion but granted leave to return the matter to a hearing before the same military judge who, on 21 September 2010, released the member on conditions.
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