ARCHIVED - Chapter 2: Review of the Collection of Information on the Administration of Military Justice

2.1 Introduction

The JAG has the statutory responsibility to conduct regular reviews of the military justice system and to report to the Minister on an annual basis on the administration of military justice.1 The two principal methods by which the JAG fulfills these obligations are through the collection of data and statistics related to both the summary trial and court martial systems and by the conduct of surveys involving selected members of the chain of command and other individuals who have been involved in the summary trial process. This chapter outlines the different methods of data collection employed during the reporting period.

2.2 Trial Statistics

Summary Trial Database

The summary trial database contains data from each charge laid in the military justice system that has proceeded to trial by way of summary trial. The information in this database is collected from Records of Disciplinary Proceedings (RDPs).2 The RDP is the form used in each discipline matter to lay a charge or charges under the Code of Service Discipline. The RDP also records the key pre-trial steps taken in relation to each disciplinary matter, including how charges are dealt with at the summary trial level and, if applicable, the results of any review. Commanding Officers are obligated to maintain a Unit Registry of Disciplinary Proceedings, which includes copies of RDPs in relation to each charge in their unit, applications for referral to courts martial, copies of reports and investigations of service offences and copies of the decisions of reviews of summary trials.3 Further, units are required to forward a copy of all RDPs that contain charges for which a final disposition has been made to the unit's legal advisor who reviews the documents and in turn submits them to the Directorate of Law/Military Justice Policy and Research (DLaw/MJP&R) within the Office of the JAG.3 DLaw/MJP&R is then responsible for collecting the relevant information from each RDP, which is used to populate the database.

The information entered in the summary trial database enables users to generate reports and statistics relevant to the summary trial process. These research products provide a snapshot of summary trial activity, illustrate trends and are used to analyse the state of the summary trial system. For example, data may be used to compare numbers of summary trials between reporting periods, the types of charges being laid and sentences imposed. This information assists in assessing the level of confidence in the summary trial system.

Annex E contains summary trial data from the 2007-2008 and the 2008-2009 reporting periods. This data reflects the distribution of summary trials including demographics (language of trials, commands and ranks of the accused), a summary of charges, dispositions by charge, punishments and reviews. Additionally, Annex E provides a comparison of the five most prevalent types of offences dealt with by summary trial over the last six years.4

As mentioned above, the information maintained in the summary trial database is drawn from the RDPs that are forwarded by units to DLaw/MJP&R. Accordingly, the database is dependent on the timely receipt of the RDPs. In the 2007-2008 Annual Report, it was reported that 2035 summary trials were conducted. Subsequent to the preparation of that report, an additional ten RDPs were received. Consequently, the number of summary trials has been amended to a total of 2045.

During the reporting period, a JAG-ordered review of the issue of late submission of RDPs was conducted and a number of measures have been implemented to avoid or reduce the likelihood of such discrepancies occurring in the future. First, RDP reporting was closely monitored throughout the reporting period, with regular status reports being provided to unit legal advisors. Second, formal notices were disseminated just before and after the end of the reporting period which emphasized the unit's obligation to submit copies of RDPs in accordance with regulations.5 This practice will continue to ensure timely submissions prior to the cut-off date for each reporting period. Third, a later cut-off date has been used to give units more time to submit their RDPs.

Further, a Canadian Forces General Message (CANFORGEN) was promulgated by the Chief of Defence Staff (CDS) which reminds COs of their duty to ensure timely submission of RDPs as per regulations.6 Finally, new methods for disciplinary information gathering and tracking have been explored and incorporated into the Comprehensive Information Management Project (CIMP). The CIMP is an initiative to support the creation of a JAG Information Management System (JAGNet). JAGNet will transform information management practices within the Office of the JAG by enhancing the ability of legal officers to manage records and documents and to share information. This subject is discussed further in Chapter 7.

As a result of the aforementioned review, the following is a chart containing the updated statistics of the number of summary trials for the 1999-2009 reporting periods:

Fiscal Year Summary Trials Reported Prior to Cut-Off Date Cut-Off Date for Database Access for Annual Report Difference Number of Summary Trials according to Database accessed on 9 Sep 2009
1999-2000 426 n/a 80 506
2000-2001 1112 n/a 42 1154
2001-2002 1122 n/a 72 1194
2002-2003 1568 15-April-03 125 1693
2003-2004 1610 15-April-04 127 1737
2004-2005 1407 12-May-05 75 1482
2005-2006 1505 1-May-06 98 1603
2006-2007 1660 7-June-07 74 1734
2007-2008 2035 1-September-08 10 2045
2008-2009 1898 9-September-09 0 1898

Court Martial Reporting System (CMRS)

Statistics relating to courts martial are generated using information gathered and retained in the CMRS database. The CMRS is a proprietary database system written and maintained by the JAG Informatics department. The responsibility for entering the data and ensuring the accuracy of the information contained in the CMRS resides with DLaw/MJP&R. Information is provided to DLaw/MJP&R by the Canadian Military Prosecution Service (CMPS) in the course of their handling of charges referred to the Director of Military Prosecutions (DMP) by the chain of command.

The data maintained in the CMRS is used to enable the JAG to monitor the court martial system and identify strategic trends. For example, the CMRS is used to generate statistics to demonstrate the length of time required in each case to complete all the stages leading to the determination of a matter, from the date a charge is laid until a final decision in any court martial or appeal. The court martial statistics for the current reporting period are found in Annex F. This annex contains data including the number and types of courts martial, demographics, a summary of the charges and the sentences imposed.

2.3 Surveys

Survey on the Summary Trial Process

Since 2000, the Office of the JAG has conducted an annual military justice survey of the summary trial process. The purpose of the survey is to assess, from the perspective of those who are involved, how well the summary trial process is working and the extent to which the regulations relating to the summary trial system are followed. The survey targets those members who have been involved in the summary trial process as Commanding Officers (COs), presiding officers, assisting officers, charge laying authorities, accused members and review authorities.

This year's survey was administered by the Director Military Personnel Operational Research and Analysis (DMPORA).7 This marks the third year that DMPORA, and its predecessor organization, the Directorate of Personnel/Applied Research, has administered the survey on behalf of the Office of the JAG. DMPORA is a part of the Director General Military Personnel, and its principal role is to provide research services and advice within the CF and DND. Although DMPORA is an internal DND organization, strict measures were taken to ensure that the survey was conducted independently.

The Office of the JAG assisted DMPORA in preparing the survey questionnaire to ensure that the data collected was related to the target subject areas and distributed the survey by e-mail and CANFORGEN through the chain of command. DMPORA was responsible for administrating the survey and compiling the data. The integrity of the survey results has been assured through the DMPORA's application of scientific methodologies in the collection and analysis of the data. Furthermore, both the content and methodology of the survey were subject to the scrutiny and approval of the Research Review Board, which has quality control and coordination oversight for all DND/CF research. The Board is composed of seven members from DMPORA and the environmental commands.

Similar to past practice, participation in the survey was solicited through a CANFORGEN and notification on the Defence Information Network. Further, in order to enhance the distribution of the survey, DMPORA compiled a list of CF members who acted as charge laying authorities, assisting officers and review authorities between 1 April 2008 and mid January 2009. An electronic copy of the survey was sent to each of these individuals. Participants were given the choice to complete the survey electronically or in paper format.

Data collection was carried out between 3 March and 2 April 2009. The results of the survey are discussed in Chapter 3 and are also available on the JAG website.8

Interview Survey of Stakeholders

The Military Justice Interview Survey of Stakeholders involves interviewing members of the chain of command who perform specific roles within the military justice system. The purpose of this survey is to provide a forum for military justice stakeholders to identify and discuss systemic issues relevant to the military justice system and to examine matters that would not be apparent from the statistical information available. The interview survey is conducted by an officer from DLaw/MJP&R and the JAG Chief Warrant Officer. The interview survey was last conducted during the 2006-2007 reporting period. The survey was not conducted during this reporting period due to competing military justice priorities and the personnel resources required to conduct the survey. The interview survey serves as an important tool for the military justice system and it is expected to be utilized in future reporting periods.

External Reviews of the Military Justice System

Timeliness for proceeding with matters in the military justice system and, in particular, the timeliness of courts martial, is a priority for the Office of the JAG. One of the initiatives undertaken by the JAG during the last reporting period was to initiate an external review in relation to the structure of the CMPS. The purpose of the review was to identify factors within the purview of the CMPS which contribute to delay in the military justice system and make recommendations on ways to mitigate delay. The CMPS external review was conducted by two senior retired Ontario crown attorneys, and the final report with recommendations was received on 31 March 2008. As a result of the review and recommendations, the CMPS initiated several reforms to reduce delay. This report is discussed in greater detail in Chapter 6.

In addition, an external review involving Defence Counsel Services was commenced during the last reporting period. The results will be discussed during the next reporting period.


Footnotes

1 National Defence Act, R.S.C. 1985, c. N-5 [NDA], ss. 9.2 and 9.3.

2 Queen's Regulations and Orders for the Canadian Forces [QR&O] article 107.07 - Form of Record of Disciplinary Proceedings.

3 QR&O, article 107.15 - Forwarding and Review of Summary Trial Documentation. By the seventh day of each month, every CO shall forward to the unit legal advisor copies of documents that have been placed on the URDP during the preceding month.

4 The five most prevalent types of offences charged over the past 5 years are offences contrary to three sections of the NDA, namely: section 90 - Absence Without Leave, section 97 - Drunkenness, and section 129 - Conduct to the Prejudice of Good Order and Discipline. Section 129 is used to charge various misconduct, hence for statistical purposes it is broken down and tracked into four sub-categories: offences of a sexual nature, offences involving drugs and alcohol, offences for which an election to court martial were given, and offences for which an election was not given. The latter three subcategories of offences, as well as sections 90 and 97, are the five most frequently occurring offences in the CF.

5 QR&O, article 107.15.

6 CANFORGEN 054/09 CDS 261700Z MAR 09.

7 Michaud, K., Survey on the Summary Trial Process: 2009 Results, Centre for Operational Research and Analysis, Technical Memorandum DGMPRA TN 2009-xx, Defence Research and Development Canada (Ottawa: Department of National Defence, 2009).

8 www.forces.gc.ca/jag/office/publications/compliance_survey/08-09_e.pdf [sic]

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