ARCHIVED - Annex D: Annual Report of the Director of Defence Counsel Services - 2008-09
Prepared by Lieutenant-Colonel Jean-Marie Dugas
1. This is the 10th annual report of the Director of Defence Counsel Services (DDCS) presented to the Judge Advocate General (JAG), Brigadier General K. W. Watkin. By virtue of the National Defence Act, I perform my duties under his general direction. As for the past years, the JAG maintained his interest in the military justice system, in particular with regard to delay. Amongst the initiatives taken during the last fiscal year in that regard, we should note the external review requested by the JAG on the functionality of the DCS whose final report will be completed in the next fiscal year.
2. The format of this document conforms to Queen's Regulations and Orders for the Canadian Forces (QR&O) article 101.20. This report, my sixth as Director, covers the period from 1 April 2008 to 31 March 2009 and contains:
- An overview of the DCS and changes throughout the year;
- A review of the DCS's duties and responsibilities;
- A review of the relationships between the Director, the staff and counsel of DCS, the Judge Advocate General (JAG) and the chain of command;
- An overview of the services provided during the reporting period; and
- DCS general activities.
3. During the last year, the DCS workload was significant. It was amplified by a high turnover rate. First, two lawyers who had completed only one year with DCS left, while a fulltime lawyer was deployed without being replaced. In that sense, it was a challenge to meet the judicial calendar demands, especially when the number of regular lawyers was, at certain time, lower than the number of judges. And while the postings summer period should have given us time to pause, it was transformed to a judicial marathon for the preparation of two factums on behalf of the respondent for the Supreme Court of Canada (SCC). In order to meet the demand, the budget for both the reserve and civilian lawyers was raised this year.
4. With a judicial break of almost two months, the DCS team must concentrate its work in courts martial within ten months. On another matter, the modifications to the rules applicable to the appeal committee had the consequence that no files submitted by accused were processed for the moment. We are waiting for the committee to reunite to decide on the merits.
5. In comparison with last year figures, the activities for year 2008-09 were as follows:
- 169 active court martial files (increase of 39);
- 65 courts martial completed, including 14 in French
- 232 days in court (increase of 92);
- 1500 (approx.) instances of advice given to service members and other persons subject to the Code of Service Discipline (CSD);
- 4 cases before the Court Martial Appeal Court (CMAC) (decrease of 6);
- 1 lawyer deployed (increase of 1).
6. In order to improve the effectiveness of the decision-making process, the delegated contractual authority of DCS has been increased. Nevertheless, legal fees associated with one case on appeal led by a civilian lawyer still await payment after almost one year. This shows that it is difficult to manage special files which involve legal fees higher than the maximum delegated to DDCS.
7. The decision in the CMAC in the Trépanier1 case resulted in changes to the provisions of the NDA. Despite the substantial modifications to the Act and although prosecution's leave to the SCC was dimissed, other constitutional issues remain. Some were submitted to the court martial and the CMAC. The delays associated in receiving those decisions by the ad hoc tribunal required both a professional and personal investment of all members of the team.
8. According to the defence, the selection of members of the General Court Martial panel, the discrimination of the ranks of the panel members and the system of sentencing are among these issues where improvement of the military justice system should be sought. For example, we submit that the limited range of sentences available at the Court Martial precludes an accused under the CSD of legitimate options available for similar infractions under the Criminal Code.
9. On the judicial administration side, we would like that the process related to the convening of court martial and the process of fixing dates be better suited to the reality of the system. Despite the efforts and good will showed by the different contributors, a transparent management of each step is required as well as a longer timeline to respond. For example, an accused directly receives the information relative to his obligation to make a choice on the type of court martial without going necessarily through their defence counsel. Experience shows that the military personnel so informed seem distraught upon receiving their charge sheet and related documents. Unsure as to what to do next, they do not choose, thus deemed 14 days later to have selected a General Court Martial (GCM) pursuant to NDA. In our opinion, absence of a choice initiates too soon the process of convening a GCM and the work associated with it for the CMA.
10. At DCS, the number of cases dealt with greatly exceeds the number of courts martial. Although certain cases are withdrawn by the prosecution, they nevertheless required an important human resources and financial investment for several months. In some cases, the withdrawal only occurred at the trial, often several months after the charge was laid. Although a tangible improvement has been noted in this regard, further improvement would allow more energy to be focussed on the cases that require more immediate attention.
11. The willingness of all interveners to address questions pertaining to delay has led to improvements. It appears from our data that the files involving long delays are no longer predominant which results in our activities being more efficient and effective. Besides, at the time of this report, eight (8) cases were still awaiting a trial date. In order to identify potential avenues of improvement, the JAG has required an external review of the DCS pertaining to its role with regard to delay.
12. The bilingual requirement of the duty counsel line complicates the recruitment of experienced military lawyers. On the other hand, the recruitment of civilian personnel was a success this year, because of the support of the human resources services and the reclassification of certain positions.
13. For the reserve force, two positions in Western Canada and one in Eastern Canada remain to be filled. Some candidates are interested but the process of hiring is long. There is also a need for certain positions to be geographically repositioned. Two other positions vacant in Ontario and Quebec are in the process of being filled by candidates who have accepted their offers but are still awaiting their nominations.
14. The JAG organization is sensitive to the informatics needs of the reserve lawyers who still have very limited access to the DND network and information pertaining to military justice. The duplication of computers, one for their military cases and another for their private practice, is bothersome to the reserve lawyers. We are working on ways to ease their access. Requests have been made for provisions of equipment compatible with the new protected network.
Duties and Responsibilities
15. Our duties and responsibilities under the NDA have been slightly modified with regards to legal advice pertaining to board of inquiry matters. The new regulation must be interpreted as authorizing DCS to only provide consultation services to individuals and no more representation services when they receive a notice of adverse evidence. From a DCS perspective, this limitation might be seen as being negative all the more since such board of inquiries could rely on a recently enhanced legal support.
16. The principal activities provided by DCS are specified by QR&Os and are summarized as follows:
Legal Counsel Services:
- To detained persons:
- To persons held in custody, at hearings by a military judge under ss. 159(1) of the NDA to determine retention in custody [QR&O 101.20 (2) (e)].
- To accused persons:
- At courts martial [QR&O 101.20 (2) (f)];
- Where there are reasonable grounds to believe that the accused person is unfit to stand trial, at hearings to determine fitness to stand trial [QR&O 101.20 (2) (b)]; and
- In cases where a finding of unfit to stand trial has been made, at hearings as to the sufficiency of admissible evidence to put the accused person on trial [QR&O 101.20 (3) (c)].
- To persons sentenced at courts martial to detention or imprisonment, at hearings for:
- Release pending appeal [QR&O 101.20 (3) (b)];
- Review of undertakings for release pending appeal [QR&O 101.20 (3) (b) and 118.23]; and
- Cancellation of release pending appeal [QR&O 118.23].
- To the respondent (offender), at CMAC or SCC hearings where prosecution authorities appeal the legality of a finding or the severity of a sentence awarded by court martial [QR&O 101.20 (2) (g)].
- To a person on an appeal or an application for leave to appeal to the CMAC or the SCC, with the approval of the Appeal Committee [QR&O 101.20 (2) (h)].
- To persons arrested or detained in respect of a service offence pursuant to s. 10(b) of the Canadian Charter of Rights and Freedoms (the Charter), on a 24/7 basis [QR&O 101.20 (2) (a)].
- To assisting officers and accused persons with respect to the making of an election to be tried by court martial pursuant to QR&O 108.17 and 108.18 [QR&O 101.20 (2) (d)].
- To assisting officers or accused persons on matters of a general nature relating to summary trials [QR&O 101.20 (2) (c)].
- To persons subject to an investigation under the CSD, a summary investigation or a board of inquiry [QR&O 101.20 (2) (i)].
Relationship between DCS, DCS Personnel, the Judge Advocate General and the Chain of Command
17. Regular meetings between the JAG and DCS continued and have promoted positive developments for both our organization in particular and the military justice system as a whole.
18. The JAG has not issued guidelines of general application to DCS military lawyers during this reporting period although his authority of general supervision over DDCS pursuant to ss. 249.2(2) of the NDA, allows him to do so.
19. With regard to continuing education, the National Criminal Law Program remains the main source of training in criminal law for DCS. Every year, all regular force lawyers and one reserve lawyer participate in that five (5) day program. In addition, there is the annual DCS training, where for two (2) days defence counsel receive and give lectures on new developments in criminal law, decisions of the CMAC and on modifications to the NDA. And lastly, the mandatory continuing education requirements of some provincial bar associations is monitored within the global training framework of the JAG.
20. The budget allocated to courts martial is more adapted to meet the objective of reducing the delays to hold a court martial. However, financial planning remains difficult especially with files that are carried over from one fiscal year to the next.
21. The financial authority of DDCS for external professional services is limited to $50,000. During this reporting period no cases in court martial have required authorization above this amount. However with appeal cases this amount is sometimes insufficient. In cases where the accused has retained a civilian lawyer of his/her choice, the maximum amount allocated sometimes limits the choice of counsel.
22. With the increase in the tempo of courts martial, it is often more difficult to obtain the transcriptions of stenographic notes for use in other cases in a timely fashion. However, the use of such notes is from our perspective an economical way of bringing evidence before the court with all participants consent and when the circumstances are appropriate. During the last reporting period, DCS encountered supplementary transcription fees for certain preliminary decisions of the court and for witness statements given both during investigation and in-court testimony.
23. When facing a court martial, an accused person under the CSD has the right to be represented by DCS counsel at public expense, may retain legal counsel at his or her own expense, or may choose not to be represented.
24. During the reporting period, 66 courts martial involving DCS commenced before the court martial. Of the 66 cases included in the following chart, (8) eight cases were conducted by civilian counsel retained by DCS. The sources of representation at courts martial are divided as follows:
Table 1: Representation at Courts Martial
|DCS Counsel||DCS Reservists||Civilian Counsel||Total|
25. Pursuant to the authority granted under ss. 249.21(2) of the NDA, the DDCS may retain, at public expense, civilian counsel in cases where, for example, having received a request for representation by DCS counsel, no member of the DCS office can represent the particular individual because of a conflict of interest. Reliance on civilian counsel poses two major difficulties: first, few of them have suitable expertise in military law; second, where an inexperienced civilian counsel shows some interest, the DDCS must indirectly assume the costs of their professional development in military law, not to mention the time spent providing him/her with the minimal reference documents. The Office of the JAG, in collaboration with DCS, is in the process of addressing this situation.
26. As demonstrated in the chart above, the involvement of reserve defence counsel is still very much sought after, as a direct result of the change in personnel and of the need for experience in disciplinary matters. Especially since this year there is still a large volume of records to process. DCS reserve counsel constitute an essential resource to the DCS.
COURT MARTIAL APPEAL COURT OF CANADA (CMAC)
27. Twenty two (22) appeals involving DCS counsel came before the CMAC during the period 2008-2009. Of those, nine (9) were filed during the previous fiscal year, the others having been filed during the current reporting period.
Appellants submitted requests for legal representation by DCS before the CMAC to the Appeal Committee in accordance with article 101.20(2)(h) of QR&O. These files, except for one, required the approval of the Committee. Four (4) requests were rejected for "lack of professional merit" and one case is still awaiting a decision of the court. From those requests, three appellants were not able to financially sustain their appeals which were then denied for failure to file the factum on time. Another was still pending awaiting the decision from the court.
DCS counsels were involved to different degrees in the following appeals during the reporting period. Several of these cases concern the constitutional claims raised by the defence in court martial:
- OCdt Trépanier, J.S.K. (CMAC 498)– The CMAC allowed Trépanier's appeal in part and declare that section 165.14, subsection 165.19(1) of the NDA and article 111.02(1) of the QR&Os found to be no force and effect because they violate section 7 and 11(d) of the Charter. The inability to choose trier of fact through a mode of trial interfered with accused's constitutional right to a fair hearing in particular his right to make full answer and defence and to control the conduct of such defence. The application for leave to appeal by the prosecution to the SCC was dismissed.
- Ex-Cpl Beek, D.D. (CMAC-504) – The CMAC allowed the appeal of the Ex-Cpl Beek and ordered a new trial. The court followed the recommendation made by the CMAC in the Trépanier case where the appellant was an intervener. The CMAC believed that this was consistent with the interests of justice, the accused and the prosecution as well as respecting the Charter by giving the accused a right to choose his trier of facts.
- Master Corporal McRea, J. (CMAC-499)- As in the Trépanier case, the appeal challenges the question of the accused's choice of mode of trial. He also appealed the legality of the verdict on the grounds of misapplication of the doctrine of reasonable doubt with respect to the evidence from the accused, and the interpretation of the required mens rea. MCpl McRae abandoned his appeal on 17 March, 2008.
- Master Corporal Billard, P.P. (CMAC-503) - MCpl Billard appealed the severity of his sentence of 21 days of detention imposed by a military judge on 6 July 2007 for a charge of neglect to the prejudice of good order and discipline for which he pleaded guilty. The CMAC dismissed the appeal on the ground that the appellant's offence did not relate to the performance of his day-to-day tasks but as a member of a fighting unit which was then under attack. The CMAC noted that the misconduct of the appellant could endanger not only his safety but also that of his comrades.
- Corporal Khadr, T.M. (CMAC-506) – Cpl Khadr had a plea in bar of trial, for a stay of proceedings alleging infringement of his rights guaranteed by sections 7 and 11(d) of the Charter. At court martial, the military judge concluded that a reasonable observer would not have a perception of bias in the judicial process where the charge layer is also a witness in the case. The Appeal Committee did not approve the provision of legal counsel by DCS. Upon a motion by the Crown, the appeal was dismissed by the CMAC due to the failure to file the factum on time.
- Corporal Hentges, J.L. (CMAC-507) – The court martial found Cpl Hentges guilty of 17 charges under NDA; that is to say, 10 counts of willfully making a false entry in a document required for official purposes, and 7 counts of committing an act of a fraudulent nature. The appellant appealed the findings and the severity of the sentence. The Appeal Committee did not authorize a DCS lawyer to represent Corporal Hentges. Upon a motion by the Crown, the appealed was dismissed by the CMAC due to the appellant's failure to file the factum on time.
- Sergeant Couture, N. (CMAC-502) – The CMAC allowed the appeal of the prosecution and ordered a new trial. The CMAC decided that a deviation from the procedure in article 107.03 of the QR&O which requires legal advice before laying charges does not "necessarily" invalidate proceedings unless an injustice has been done to the accused by the deviation (101.06 QR&O). For the Court, the interpretation of the world "shall" and "must" is based on the common law rather than QR&O article 1.06.
- Private Tupper, R.J. (CMAC-508) – Private Tupper was found guilty by the court on 28 October 2007 of breaking out of barracks, of being absent without leave on two occasions, of insubordination for behaving with contempt toward a superior officer, of disobedience of a lawful command, and of resisting an escort whose duty was to apprehend him. Private R. J. Tupper appealed both the findings and the sentence. The hearing was held on 20 March 2009.
- Master Seaman Willms, B.B.J. (CMAC – 509) – Appealed his conviction by the court martial for assault and ill-treatment of a subordinate. The CMAC allowed the appeal and concluded that the Crown had not met its burden of proof beyond any reasonable doubt on the issue of mens rea and entered an acquittal.
- Master Corporal Matusheskie, C.A. (CMAC – 512) – On 2 April 2008 at CFB Petawawa the appellant was found guilty on the charge of disobedience of a lawful command contrary to section 83 of the NDA. The appellant submitted that the military judge erred in law when finding that the second and contradictory order given to the applicant was unlawful and that he was not justified to obey it, even though the said order was not manifestly unlawful. The hearing was held on 27 March 2009.
- Ex-Corporal. Stevens, B.M. (CMAC – 514) – In that matter, DCS was acting as amicus curiae. The appeal period had expired. Ex-Corporal Stevens made a motion to be relieved of his failure to file notice of appeal on time. The motion by Ex-Cpl Stevens mentioned that he was not adequately represented by his civilian counsel at court martial and that as an incarcerated individual he was unable to act in a timely fashion. The CMAC did not grant the motion.
- Sergeant Thompson, E.B. (CMAC – 515) – On 12 June 2008, Sgt Thompson appealed his conviction and the severity of the sentence. He argued that the judge erred in dismissing the application for a stay of proceedings. He further maintained that the sentence imposed by the court was more than the minimum punishment required to maintain discipline in the CF. The hearing should be held during the next reporting period.
- Ex-Private St-Onge, D. (CMAC – 517) – A notice of appeal was filed by Ex-Private St-Onge, on 26 June 2008. At court martial the appellant pleaded guilty on five charges of possessing and consuming marihuana and on other disciplinary charges. The appellant raises as grounds for appeal that the court martial had no jurisdiction to try him and to impose a sentence of thirty days imprisonment which would be much exaggerated in the circumstances.
- Corporal Liwyj, A.E. (CMAC – 516) – In the wake of the Trépanier decision cited above, the military judge ordered a stay of proceedings, ruling he did not have jurisdiction over the accused, the court not being constituted according to his choice. However, the judge gave the option to re-prefer the charges to the CMA to convene a new court martial according to the choice of the accused. The prosecution appealed the decision. The appeal was allowed by the CMAC, both parties having consented to elect down to a standing court martial. A new trial was ordered, with a restriction on the maximum punishment should there be one.
- Corporal Venator, W.J. (CMAC – 518) – On 11 June 2008, the military judge ordered a conditional stay and terminated the proceedings based on the Trépanier decision. On 4 December 2008, the prosecution abandoned the appeal of the conditional stay. A new trial will take place.
- Private Jenkins, D.A. (CMAC – 519) – The prosecution filed a notice of appeal on 3 October 2008. It alleged that the military judge erred in law while applying the reasonable doubt tests enunciated by the SCC in R v. W. (D). The court martial had found the individual not guilty of sexual assault and of an act to the prejudice of good order and discipline. The appeal was abandoned.
- Master Corporal Mills, T.J. (CMAC – 520) – On 9 October, 2008 the service member appealed his conviction and the severity of the sentence The court martial found him guilty of two offences including one of provoking gesture toward a person subject to the CSD. In particular, the appeal alleges a violation of his right to be tried within a reasonable time. The appellant awaits the decision of the Appeal Committee.
- Leading Seaman Dandrade, J.D. (CMAC – 521) – Appeal from the decision of the court on the ground that the military judge erred in law by deciding there were no "compelling reasons" to suspend the ten (10) days of detention period. For the appellant, there is no such requirement under the NDA. The service member abandoned his appeal on 24 November 2008 prior to the hearing.
- Ordinary Seaman Lee (CMAC- 523) – A notice of appeal was filed on 23 January 2009. The member is appealing both his conviction on the charge of trafficking in illegal substances and on the severity of the sentence.
30. Bilingual service is available without cost, at any time and without interruption for all service members and other persons subject to the CSD serving abroad. DCS lawyers provide advice through three means of communication:
- Toll-free 1-800 number to ensure access to legal advice upon arrest or detention; this number is distributed throughout the CF, in particular to military police and other CF authorities likely to be involved in investigations of a disciplinary or criminal nature. The transfer to another telephone service provider has caused some difficulties in accessing the duty counsel service outside normal working hours. The problem was identified and has been resolved since.
- Standard direct telephone number, available to accused persons subject to the CSD, for advice in relation to an election between court martial and summary trial, or questions on other disciplinary matters, or all other matters authorized under the QR&O; and
- Email, an avenue now frequently used as first contact or to obtain information and whose popularity is growing.
31. During the reporting period, DCS handled approximately 1500 calls. The calls ranged in duration but, on average, were approximately 15 minutes. This undertaking totalled more than 300 hours, similar to previous years. The origin of the calls is illustrated in the following graph:
Table 2: Phone Calls by Origin
32. We have also tabulated the number of calls by the official language used by the caller, illustrated in the following graph:
Table 3: Phone Calls by Language
33. As the collected data indicates, the advisory services of DCS remain the dominant aspect of our work. The high operational tempo to which service members are facing, has lead to numerous and complex requests for legal assistance, going far beyond the simple choice of the mode of trial by the accused. The participation of a large number of reservists, which raises several legal issues, contributes to this complexity. The advisory service provided by DCS contributes to the protection of the fundamental rights of CF members and other individuals subject to the CSD.
34. While providing advice to individuals, we unfortunately found that many of them were ignorant of their rights or feared, wrongly or rightly, retaliation from the military hierarchy. To raise awareness, the DCS is studying the possibility of providing more information through its website which is under reconstruction. A better understanding of the role of DCS is even more relevant since that a rapid response from us often prevents certain disciplinary situations from escalating.
General Activities & Comments
35. At the request of the Senate Standing Committee on Legal Affairs and Constitutional, two DCS lawyers appeared before it. They summarily presented the defence's point of view and explained their position on what they consider as possible improvements of the NDA. The report of the Committee will be published in the next reporting period.
36. Among those avenues for improvement that we highlighted in the past, we should note the challenges posed by the payment of fines in cases where the decision of the court martial has been appealed. We believe that the procedure should be amended so that payment of these fines may be suspended pending appeal. Although the situation remains, our request has been discussed.
37. Our services were required a few times with regards to boards of inquiry and summary investigations. As previously mentioned, our role is now limited to consultation only under the current regulatory regime, which limits our intervention on these matters.
38. On another subject, the DCS was previously in charge of the administration of legal aid funds given to military personnel accused abroad. This role is now shared and in a large part assumed by the Directorate of Military Justice Policy and Research. The administration of this file was done in accordance with Canadian Forces Administrative Order 111-2 – Employment of Civilian Defence Counsel in Foreign Criminal Court, which was cancelled in February 2009 and should be replaced by a similar directive in the future.
39. The primary objective of DCS lawyers is to enable individuals to obtain justice with the minimum of delay. In that sense, both the human and financial resources provided during this year and the flexibility of the finance service have greatly facilitated our efforts, although a high turnover of our legal team has imposed an additional burden to them. Overall, we were able to deliver the goods since less than a dozen files were awaiting a court martial date at the end of the fiscal year.
40. Finally, following changes to the NDA by Bill C-60, modifications are required to some of the policies and directives related to the management of court martial files. A committee will begin this task in the next reporting period with the goal of contributing to better case management.
1 R. v. Trépanier,  CMAC 3, CMAC-498, leave to appeal to S.C.C. dismissed 25 Sept 2008.
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