ARCHIVED - Annex C: Annual Report of the Director of Military Prosecutions 2008-09

Section 1 – Introduction

This report, covering the period of 1 April 2008 to 31 March 2009, is prepared in accordance with the article 110.11 of the Queen's Regulations and Orders for the Canadian Forces (QR&O), which requires the Director of Military Prosecutions¹ (DMP) to report annually to the Judge Advocate General (JAG) on the execution of her duties and functions.² This report includes the following subjects:

• The Canadian Military Prosecution Service's (CMPS) Role, Organization and Personnel
• Training and Policy Development
• Military Justice Proceedings: Trials, Appeals and Other Hearings

Section 2 – The DMP and the CMPS

ROLE OF DMP

The DMP is appointed by the Minister of National Defence. While she acts under the general supervision of the JAG, she exercises her duties and functions independently.³ Some of these duties and functions are noted below:

• Reviewing all Code of Service Discipline charges referred to her through the Canadian Forces (CF) chain of command and determining whether:
  • The charges or other charges founded on the evidence should be tried by court martial; or
  • The charges should be dealt with by an officer who has jurisdiction to try the accused by summary trial.
• Conducting – within Canada or at deployed locations overseas – the prosecution of all charges tried by court martial.
• Acting as appellate counsel for the Minister of National Defence on all appeals from courts martial.
• Acting as the representative of the CF at all custody review hearings and before other boards and tribunals whose jurisdiction touches upon matters relevant to the military justice system.
• Providing legal advice to military police personnel assigned to the Canadian Forces National Investigation Service (CFNIS).

ORGANIZATION OF THE CMPS

The DMP is assisted in her duties and functions by regular and reserve force military prosecutors, along with civilian paralegals and support staff. The service is organized regionally, and consists of:

• CMPS headquarters at National Defence Headquarters in Ottawa consisting of the DMP, two Deputy Directors of Military Prosecutions (DDMP), an appellate counsel, one staff prosecutor responsible for communications, training and policy development as well as legal advisor working directly with the CFNIS;
• Regional Military Prosecutors' (RMP) offices, each established for two regular force prosecutors, located at:
  • Halifax, Nova Scotia (Atlantic Region)
  • Valcartier, Quebec (Eastern Region)
  • Ottawa, Ontario (Central Region)
  • Edmonton, Alberta (Western Region)
• Reserve force prosecutors located individually across Canada.

Communications are of vital importance to an organization like CMPS, particularly given the geographic dispersal of CF military prosecutors. To ensure that all prosecutors remain aware of the progress of individual disciplinary files, DMP updates and distributes several internal reports on a weekly basis. The DMP also convenes regular conference calls among the prosecutors to provide direction and discuss matters of common interest. On the completion of each court martial, the trial prosecutor provides all other prosecutors with a summary sheet outlining the results of the case and the reasons provided by the military judge. Continuous individual contact is maintained by the DMP and DDMPs with military prosecutors and key civilian staff.

CMPS PERSONNEL

During the reporting period, the CMPS experienced a number of personnel and position changes both at CMPS headquarters as well as at the various RMP offices located across the country. At the CMPS headquarters, two positions were created - an additional DDMP position and an embedded prosecutor position. Also, one of the staff prosecutor positions was eliminated.

Legal officers new to the CMPS filled both the additional positions of DDMP and CFNIS legal advisor. Further, the remaining staff prosecution position was filled in April.

Finally, the legal officer in the original DDMP position was deployed in January as legal advisor to the United Nations Mission in the Sudan. This required the prosecutor in the appeals position to fill one of the DDMP positions in an acting capacity.

The following staff changes occurred in the various RMP offices:

• a new prosecutor to RMP Atlantic in September;
• a new prosecutor to RMP Eastern in November;
• the legal officer originally in the staff prosecutor position that was eliminated at CMPS headquarters was posted to RMP Central in July;
• one of the prosecutors at RMP Central was seconded to the Ontario Crown in Ottawa for one year beginning in February; and
• two prosecutors were posted to RMP Western in June and July.

Insofar as civilian staff are concerned, at CMPS headquarters both the administrative assistant and the court martial paralegal took maternity leave and those positions are currently being filled by individuals in an acting capacity. Also at CMPS headquarters, the individual in the appeals paralegal position left CMPS and this position is also being filled by an individual in an acting capacity. In the RMP offices, the administrative assistant for RMP Central left CMPS and this position has since been filled. Finally, at RMP Atlantic, the administrative assistant position was filled throughout the reporting period with several individuals on a casual basis until September when an individual was seconded from the Federal Department of Justice to fill the position on a more permanent basis.

Section 3 – Training and Policy Development

TRAINING

All regular force prosecutors are military legal officers who are posted to their positions for a limited period of time – usually three to five years. As such, the training that they receive must support both their current employment as prosecutors as well as their professional development as officers and lawyers. The relative brevity of a military prosecutor's posting with the CMPS requires a significant and ongoing organizational commitment to providing him or her with the formal training and practical experience necessary to develop the skills, knowledge and judgment essential in an effective prosecutor.

Given the small size of the CMPS, much of the required training is provided by organizations external to the CF. During the present reporting period, CMPS prosecutors participated in conferences and continuing legal education programs organized by federal, provincial and territorial Heads of Prosecution, the International Society for the Reform of Criminal Law, the Canadian Bar Association and its provincial affiliates, the Advocate's Society, the National Criminal Law Program, the Ontario Crown Attorneys Association and various provincial law societies. These programs benefited the CF not only through the knowledge imparted or skills developed but also through the professional bonds forged by individual military prosecutors with their colleagues from the provincial and federal prosecution services.

Also, in an effort to increase professional interaction among military prosecutors, CMPS held its annual workshop on 25 October 2008 in Ottawa, Ontario. It was attended by regular and reserve force prosecutors and focused on current issues such as updates on significant cases and proceedings in the military justice system. In the course of discussions chaired by DMP the participants were also encouraged to express their views on various prosecution policy related matters.

From 15 to 18 April 2008 DMP co-hosted the 35^th Conference of the Federal, Provincial and Territorial Heads of Prosecutions Committee in Ottawa. The conference covered an array of topics related to prosecutions. It also provided an opportunity for the various heads of prosecutions across the country to witness a series of military demonstrations and briefings. The responses from the various heads of prosecutions confirmed that the conference was a tremendous success.

In addition to the above noted training, all available military prosecutors are also required to attend the annual JAG continuing legal education workshop as well as to maintain their readiness to deploy into a theatre of operations in support of DMP's mandate by conducting individual military skills training such as weapons familiarization and first aid training.

A hardworking and highly motivated civilian support staff is an integral part of the CMPS team and provides a most important service in the carrying out of the prosecutorial function. As a result, significant efforts are also made to provide these individuals with training and experiences that will enhance their value to CMPS and to the Department of National Defence.

CMPS also provides support to the training activities of other CF entities. During the present reporting period, this support included the mentoring and supervision by military prosecutors of a number of junior military lawyers from the Office of the Judge Advocate General, who completed a portion of their "on the job training" program by assisting in the prosecution at courts martial. Military prosecutors also provided presentations to JAG legal officers, military justice training to members of the CFNIS, served as supervisors for law students articling with the Office of the JAG and acted as instructors during a week-long Legal Officer Intermediate Training course in military justice.

POLICY DEVELOPMENT - COURT MARTIAL DELAY INITIATIVE

In the course of the previous reporting period, the DMP contracted with two external civilian consultants to conduct a review of the CMPS in order to identify those factors that contribute to delay in the military justice system and to make recommendations about what CMPS could do to reduce those delays.

One of the key conclusions of the review was that delay in the military justice system is caused by the policies and practices rather than by a lack of adequate resources. Accordingly, a number of recommendations were made to assist in reducing overall delay, including a comprehensive review and redrafting of the policies and procedures of the CMPS.

In response to these recommendations, CMPS amended several of its policies that have a direct impact on delay in the military justice system. Specifically, the amended policies set out concrete timelines for file movement at the pre-charge screening and post-charge review stages and amended the practices and procedures in place for engaging in resolution discussions with defence counsel and CMPS interactions with the CFNIS as well as unit legal advisors and the chain of command.

The amended policies adopted a 30-day target to complete post-charge reviews, which reflected the practices adopted earlier this year. Although there is limited data to draw any definitive conclusions on whether this has had an impact on reducing court martial delay, it can be seen that there is a general trend towards reducing the time between receiving an application for disposal of a charge and a decision being taken on whether to prefer a charge as well as the time between receiving an application for disposal of a charge and completion of court martial over the past few reporting periods. (See Figure 1).

Table 1: Historical Trends in Court Martial Delay⁴

Further, CMPS adopted several recommendations for:

• the creation of an embedded prosecutor position with the CFNIS to provide legal and practical advice at the investigative stage;
• the creation of an additional DDMP to participate in courts martial and act as a mentor to junior military prosecutors;
• the secondment of a prosecutor to work for twelve months in a civilian prosecution service to gain experience in court; and
• the opportunity for unit legal advisors to participate as co-counsel with RMPs at courts martial in order to contribute to the professional development of unit legal advisors as well as to improve the quality of prosecutions through greater local situational awareness.

Although there are indications that the adoption of these recommendations has already produced short-term results in reducing court martial delay, DMP is continuing to work towards adopting those remaining recommendations that have yet to be implemented. To these ends, DMP is in the process of conducting a comprehensive review of all CMPS policies and procedures, working with the CFNIS to create a standardized electronic disclosure package, and renegotiating a service level agreement with the CFNIS in an attempt to reduce overall court martial delay.

Section 4 – Military Justice Proceedings

The nature of the operational tasks entrusted to the CF requires the maintenance of a high degree of discipline among CF members. Parliament and the courts have long recognized the importance of a separate military Code of Service Discipline to govern the conduct of CF members and prescribe punishment for disciplinary breaches.

The Code of Service Discipline is designed to assist commanders in the promotion and maintenance of good order, high morale, efficiency, discipline and operational effectiveness. To these ends the Code of Service Discipline creates a structure of military tribunals as the ultimate means of enforcing discipline. Among these tribunals are the courts martial and the Court Martial Appeal Court of Canada (CMAC).

During the present reporting period, military prosecutors represented the interest of the CF in a number of different types of judicial proceedings related to the military justice system. These proceedings included courts martial, appeals from courts martial and reviews of pre-trial custody.

R. v. Trépanier

On 24 April 2008 the CMAC handed down its decision in the case of R. v. Trépanier. Although the details of this appeal are set out in the appeal section of this report, it is important to highlight this decision in the current section as it provides the necessary context when reviewing the statistics related to courts martial and backlog.

In Trépanier, the Court struck down those sections of the National Defence Act that gave the DMP authority to choose the type of court martial to try an accused and for the court martial administrator to convene a court martial in accordance with the decision of the DMP. As a result, from 24 April 2008 to 13 August 2008 the court martial administrator did not convene any new courts martial and also sent back 25 cases to DMP that were preferred but not yet convened as the accused was not provided with the opportunity to select the type of court martial.⁵

Further, although those courts martial that were already convened or commenced prior to 24 April 2008 continued, there were no courts martial held from 19 June 2008 until 20 August 2008.⁶ This hiatus in courts martial coupled with the inability of the court martial administrator to convene courts martial until the passage of Bill C-60 resulted in a significant backlog of cases during the reporting period.

COURTS MARTIAL

During the reporting period, the DMP received 90 applications for disposal of a charge or charges from various referral authorities. (See Figure 2).

Table 2: Referrals by Command of Referral Authority⁷

Following review by military prosecutors, charges were preferred to court martial in respect of 97 applications.⁸ In 16 of those cases, charges were withdrawn after they had been preferred but before trial. A decision to not prefer any charges was made in respect of 36 applications.

During the reporting period, a total of 187 charges were tried before 65 courts martial.⁹

Despite the number of courts martial completed during the reporting period, the backlog of cases awaiting trial remains significant. As of 31 March 2008, 12 courts martial had been convened but not yet commenced and charges in 23 cases had been preferred and were awaiting the assignment of a military judge and the convening of a court martial. This total of 35 cases awaiting completion compares to 52 cases awaiting completion on 31 March 2007 and represents a decrease of 32 percent from 2007 to 2008. However, the backlog of cases awaiting trial continues to be a significant factor and further steps for reducing this number are being explored.

During the reporting period, 50 trials were held before a Standing Court Martial. There were 10 trials held before a Disciplinary Court Martial and five trials held before a General Court Martial.¹⁰ (See Figure 3).

Table 3: Type of Court Martial Trying Accused

At the conclusion of 52 of the trials, the trier of fact made a finding of guilty in respect of at least one charge.¹¹ (See Figure 4).

Table 4: Court Martial Disposition¹²

The one case that resulted in the withdrawal of all charges was that of Master Corporal Fraser. MCpl Fraser was charged by the CFNIS with one count of manslaughter while using a firearm and one count of negligent performance of a military duty both in relation to the death of MCpl Walsh on 9 August 2006. The charges were preferred for court martial on 12 October 2007 and were set down for trial commencing 14 October 2008.

On 11 October 2008, the defence provided new information to the prosecution who then determined that there was no longer a reasonable prospect of conviction. The charges against MCpl Fraser were subsequently withdrawn at trial.

The one case that resulted in a stay was that of Cpl Liwyj. The stay was successfully appealed and a new trial has been ordered.

While only one sentence may be passed on an offender at a court martial, a sentence may involve more than one punishment. The 52 sentences pronounced by courts martial during the reporting period involved 90 punishments. A fine was the most common punishment, with 40 fines being imposed. Seven punishments of imprisonment and two punishments of detention were imposed by the court. (See Figure 5).

Table 5: Punishments Awarded

A military judge heard three applications for release pending appeal in the cases where a custodial sentence was imposed. Release pending appeal was granted for two of these applications.

APPEAL

At the start of the reporting period, ten appeals were ongoing with nine of these appeals initiated by convicted members. During the reporting period, 16 appeals were initiated, three of them by Her Majesty. Of these 26 cases on appeal during the reporting period, four have been dismissed, including three for failure by the appellants to file their factums. Three cases were also abandoned by the appellant. The CMAC held oral hearings in respect of nine of these appeals and rendered a decision in nine. We are awaiting decisions in three of these appeals and the remaining seven appeals have not yet been argued.

Annex C provides additional information regarding the types of appeal and the progress of each appeal.

R. v. Trépanier

OCdt Trépanier challenged the constitutionality of section 165.14 and subsection 165.19(1) of the National Defence Act as well as article 111.02 of the QR&O seeking a declaration that these provisions were invalid and inoperative. Section 165.14 instructed the Director of Military Prosecutions to determine the type of Court Martial and subsection 165.19(1) of the National Defence Act as well as QR&O article 111.02 instructed the Court Martial Administrator to convene a court martial in accordance with the determination made by the DMP. Trépanier argued that these provisions breached his right to a fair trial protected by section 7 of the Charter and that the right to choose the trier of fact should rest with the accused.

On 15 February 2008, MCpl McRae and Ex-Cpl Beek were granted intervenor status in this case due to similar issues being raised at their Courts Martial. On 17 March 2008 MCpl McRae abandoned his appeal.

On 24 April 2008, the CMAC held that the exclusive power of the DMP to unilaterally choose the type of court martial violated the accused constitutional right to full answer and defence and to control the conduct of that defence. The Court struck down section 165.14, subsection 165.19(1) of the National Defence Act and article 111.02 of the QR&O.

The CMAC did not provide a remedy for OCdt Trépanier, but did recommend a remedy for Ex-MCpl Beek. The CMAC recommended that his conviction, sentence, and convening order be quashed and that a new trial be ordered giving the accused the right to choose the type of court martial.

On 30 May 2008, the DMP filed a Notice of Application for Leave to Appeal along with a Motion for a Stay of Execution of the judgment requesting an expedited hearing on the matter with the Supreme Court of Canada. The stay was sought in order to permit the military justice system to continue to function while the appeal process was being pursued. Simultaneously, the Office of the Judge Advocate General assembled a team to explore possible legislative and regulatory amendments to the National Defence Act and the QR&O. Two prosecutors with CMPS were tasked to work with the legislative and regulatory response team for a period of approximately two months.

The application for stay of execution was abandoned on 19 June when Bill C-60, An Act to amend the National Defence Act (court martial) and to make consequential amendment to another Act received royal assent. Pursuant to Bill C-60, the selection of the type of court martial is now governed by operation of law, enabling an accused person to make a choice as to the mode of trial in specified circumstances. Additionally, the court martial structure was simplified by reducing the types of court martial from four to two.

On 25 September 2008, leave to appeal was denied by the Supreme Court without reasons.

R. v. Couture

This matter arose out of the decision at court martial not to proceed with the trial of Sgt Couture since the charge layer had not complied with the requirement of QR&O article 107.03 to obtain legal advice before laying charges for offences under the Code of Service Discipline. The military judge ruled that by neglecting to read the legal advice provided, the charge layer rendered the Record of Disciplinary Proceedings a nullity.

DMP filed a Notice of Appeal with the CMAC, appealing the legality of the decision to terminate proceedings on all charges against the accused. In a unanimous judgment, the appeal was allowed and a new trial was ordered. The CMAC ruled that the only document the military judge had to refer to in order to pronounce a judgment was the charge sheet signed and provided to him by DMP. Because Sgt Couture was charged with relatively minor insubordination offences that took place in 2005, and considering that he had since been released from the CF, DMP decided not to proceed further with these charges.

R. v. Billard

This matter arose out of the conviction of MCpl Billard for neglect to the prejudice of good order and discipline at Court Martial on 6 July 2007. MCpl Billard failed to don his helmet and flak vest contrary to a standing order and remained in bed while his forward operating base in Afghanistan was under direct attack. The accused pleaded guilty to the charge and the military judge sentenced him to detention for a period of 21 days.

MCpl Billard appealed the severity of his sentence to the CMAC. In a unanimous judgment the appeal was dismissed. The CMAC ruled that the sentence of detention was neither illegal nor demonstrably unfit in the circumstances of this case. MCpl Billard's failure to perform as a member of a fighting unit, which was then under attack, put at risk the lives and safety of himself and his comrades. In such circumstances, lawful orders must be unquestioningly obeyed.

Other Hearings

Custody Reviews

Military judges are, in certain circumstances, required to review orders made to retain a CF member in service custody. DMP may represent the interest of the CF at such hearings. During the reporting period, military prosecutors appeared at three pre-trial custody review hearings. In these cases the person in custody was released upon giving an undertaking to comply with certain conditions set by the military judge.

Ex-Master Corporal Matchee

On 25 April 1994, the then Chief Military Judge presiding at a Standing Court Martial declared Ex-MCpl Matchee unfit to stand trial for the death of Shidane Abukar Arone, a Somalian teenager, in March 1993. Every 2 years since this original finding, the prosecution has been required to demonstrate that there remains sufficient evidence to try Ex-MCpl Matchee of the offences charged. The most recent biennial hearing was scheduled for 16 September 2008.

Parallel to the Court Martial proceedings, the Saskatchewan Review Board reviewed the situation of Ex-MCpl Matchee and conducted a hearing to determine if he remained unfit to stand trial every six months. The Saskatchewan Review Board has in previous dispositions indicated that Mr. Matchee would never be fit to stand trial on the outstanding charges.

In September 2008, the DMP concluded that the public interest, including the interests of the CF, did not require that the prosecution against Ex-MCpl Matchee be continued. This conclusion was based on the fact that the offences took place more than 15 years ago, that Ex-MCpl Matchee would never be legally fit to answer the charges and that there was no evidence that he posed a significant risk to the community if charges were withdrawn. Consequently, DMP withdrew the outstanding charges against Ex-MCpl Matchee, bringing a prosecution that has been ongoing for 15 years to an end.

Conclusion

DMP Comments

This has been a year of challenges and uncertainty for the military justice system. The decision by the CMAC in R v. Trépanier to strike down the sections of the National Defence Act that gave DMP the authority to choose the type of court martial and the Court Martial Administrator to convene a court martial resulted in an unexpected and significant interruption in courts martial proceedings. I was concerned that this disruption would further exacerbate the problem with respect to timeliness of the court martial system identified in last year's annual report.

Fortunately, I am pleased to note that this was not the case. In fact this was a year where we observed a marked improvement from previous years in terms of timelines from referral to court martial completion. The reasons for this progress are numerous but primary among them are the adoption and implementation of many of the recommendations made in the review conducted last year of CMPS by two very experienced former Crown Attorneys and the hard work and dedication by all members of the CMPS team in implementing these changes.

ANNEX A

1. Abu-Ghosh, Capt

2. Belanger, Sgt

3. Benoit, Capt

4. Bergeron, Pte

5. Bradt, PO1

6. Brisson, Ex-Pte

7. Buck, Cpl

8. Camirand, Capt

9. Carlson, Ex-PO1

10. Carreau-Lapointe, Pte

11. Clarke, Capt

12. Crawford, AB

13. Dandrade, LS

14. Dashney, LS

15. Dery, Lt

16. Dilello, Sgt

17. Dubé, Cpl

18. Edwards, Lt(N)

19. Ellis, OS

20. Floyd, MCpl

21. Fraser, MCpl

22. Gaffey, Cpl

23. Gardiner, Sgt

24. Gendron, Pte

25. Gero, Ex-PO1

26. Henderin, OCdt and Rivard, Ex-OCdt

27. Hentges, Cpl

28. Hernandez, Lt

29. Houston, LS

30. Jenkins, Pte

31. Joseph, MCpl

32. Kettle, Bdr

33. Labrie, Cpl

34. Labrie, OS

35. Lee, OS

36. Leslie, Capt

37. Lewis, Cpl

38. Lueke, Ex-LS

39. Liwyj, Cpl

40. Marchand, Cpl

41. Matusheskie, MCpl

42. McCallum, Cpl

43. McLean, Sgt

44. Middlemiss, MS

45. Miksovsky, Ex-Cpl

46. Mills, MCpl

47. Morin, Sgt

48. Noah, Pte

49. Osmond, Ex-Cpl

50. Pearson, MCpl

51. Pelletier, MWO

52. Reid, PO2 and Sinclair, PO2

53. Robertson, Cpl

54. Rompré, Maj

55. Rose, Cpl

56. Russell, MCpl

57.                     , Capt

58. Springer, Cpl

59. St-Onge, Ex-Pte

60. Strong, Cpl

61. Szczerbaniwicz, LCol

62. Tardif, Ex-Pte

63. Thompson, Sgt

64. Venator, Cpl

65. Whelan, MCpl

ANNEX B

Disposition By Court Martial

Sentences

Language of Trial

Courts Martial By Command

Courts Martial By Rank

Type of Court Martial

Summary Of Charges

ANNEX C

Footnotes

¹ The DMP is Captain (N) M.H. MacDougall, who was appointed on 16 January 2005 and re-appointed on 16 January 2009.

² Previous DMP Annual Reports, along with copies of DMP Policy Directives and other information can be found here.

³ The duties and functions of the DMP are set out in the National Defence Act, the QR&O, ministerial orders and various agreements.

⁴ The statistics for "Referrals received to preferral" in fiscal year 2008/2009 only account for those referrals that have been received and preferred at the time of this report. It does not account for those cases that have been referred but have yet to be preferred.

⁵ On 19 June 2009, Bill C-60, An Act to amend the National Defence Act (court martial) and to make consequential amendment to another Act received royal assent. According to Bill C-60 the court martial administrator could convene courts martial and select the type of court martial by operation of law. Once Bill C-60 came into force and cases were preferred the court martial administrator began once again to convene courts martial.

⁶ On 24 April 2008, there were five courts martial that were already commenced and 17 cases that had already been convened but not yet commenced. The majority of these cases proceeded. As of 19 June 2008, there were no longer any convened cases that could proceed by court martial.

⁷ Both SOFCOM and CANOSCOM did not have any referrals during the reporting period.

⁸ This includes 19 cases that were re-preferred as a result of the CMAC decision in R. v. Trépanier.

⁹ In this reporting period there were two joint trials so there were 65 courts martial for 67 accused.

¹⁰ On 19 June 2008 the National Defence Act was amended, when Bill C-60 received royal assent, whereby the court martial structure was simplified by reducing the types of court martial from four to two. Both the Disciplinary Court Martial and the Special General Court Martial were eliminated and neither of these types of courts martial were held after this date.

¹¹ In this reporting period there were two joint trials for four accused resulting in four findings made at two courts martial.

¹² Annexes A and B provide additional information regarding the charges tried and the results of each court martial.