ARCHIVED - Chapter 4: Review of the Court Martial System

4.1 Introduction

The court martial system is generally used to deal with more serious breaches of military discipline. However, the right to elect court martial at summary trial also means that the court martial provides a venue for an accused person to elect a mode of trial offering a full range of constitutional protections. It is an essential safeguard in our system. While courts martial are similar to civilian criminal trials, they maintain a distinct military character. Each court martial is composed of either a military judge alone, known as a Standing Court Martial (SCM), or a military judge with a panel of five Canadian Forces (CF) members, known as a General Court Martial (GCM). The panel in a GCM performs a function roughly analogous to that of a jury in the civilian justice system. All courts martial are prosecuted by legal officers from the Canadian Military Prosecution Service (CMPS). In addition, accused tried by court martial are entitled to representation by either defence counsel from Defence Counsel Services (DCS) at the Crown's expense, or by civilian legal counsel at their own expense. This chapter will examine the activity in the court martial system during the reporting period.

4.2 Courts Martial held during the reporting period

During the reporting period, 65 courts martial were conducted.¹ While the number of courts martial for this reporting period represents a 17% decrease from the number of trials conducted during the 2007-2008 period, it is similar to the 2006-2007 reporting period, during which time 67 courts martial were conducted. Over the last five reporting periods the average number of courts martial conducted was 61.

The annual report from the Director of Military Prosecutions (DMP) is included at Annex C.² Detailed statistics for courts martial conducted during the reporting period from 1 April 2008 to 31 March 2009 are included at Annex F.

4.3 Office of the Chief Military Judge (CMJ)

In the military justice system, military judges preside over courts martial and perform other judicial functions as provided for under the National Defence Act (NDA).³ Presently, the Office of the CMJ is comprised of four military judges: Colonel Mario Dutil (CMJ); Commander Peter Lamont; Lieutenant-Colonel Louis-Vincent d'Auteuil; and Lieutenant-Colonel Jean-Guy Perron. The Governor in Council may appoint as a military judge an officer of the CF who is a barrister or advocate of at least ten years standing at the bar of any province in Canada. Currently, military judges are appointed for a five-year term and are eligible for re-appointment on the recommendation of a renewal committee established by regulations.⁴

With regard to the compensation of military judges, the NDA requires that a review be conducted regularly by a Compensation Committee established under regulations.⁵ Accordingly, the Military Judges Compensation Committee (MJCC) was established to commence an inquiry into the remuneration of military judges every four years beginning on the first day of September 1999.⁶ The MJCC consists of three part-time members, with one person nominated by the military judges, one person nominated by the Minister of National Defence (MND) and a chairperson nominated by the first two members. The members of the MJCC in the reporting period were:

• Chair – the Honourable Guy Richard;
• Minister's nominee – the Honourable David Gruchy, Q.C.; and
• Military Judges' nominee – the Honourable Claire L'Heureux-Dubé, Q.C..

As indicated in the 2007-2008 annual report, the MJCC commenced its latest quadrennial review on 29 January 2008. The MJCC conducted a hearing on 10 and 11 June 2008 during which the Committee heard submissions from the military judges and the Government of Canada. During the course of its deliberations into compensation for military judges, the MJCC examined military justice and the role of courts martial, similarities and differences between courts martial and trials in the civilian criminal justice system, as well as the issues of judicial independence and adequacy of remuneration for judges generally.

In reaching its conclusions with respect to the compensation of military judges, the Committee considered the following criteria: the prevailing economic conditions in Canada; the role of financial security of military judges in ensuring judicial independence; the need to attract outstanding officers as military judges; and other objective criteria considered relevant by the Committee. The MJCC submitted its report to the MND on 29 September 2008. It recommended that the salary for military judges be set at $225,000 as of 1 September 2007. It also suggested that the CMJ receive a premium of 3% in light of his additional duties.⁷ The government response to the Committee's recommendation will be reported in the next annual report.

4.4 Appeals

Under the NDA, decisions rendered by courts martial are subject to two levels of appellate review. The first level of appeal is to the Court Martial Appeal Court (CMAC). The CMAC is authorized under the NDA to consider appeals brought forward by the MND or the person tried under the NDA.⁸ The second level of appeal is to the Supreme Court of Canada (SCC). A decision of the CMAC can be appealed to the SCC by the MND or the person tried in the circumstances set out in section 245 of the NDA.

Individuals who appeal a court martial decision may be represented at public expense by defence counsel from DCS. The Appeal Committee is responsible for determining whether an appellant will be provided legal representation at public expense.⁹ During the reporting period, regulatory amendments modified the structure and functioning of the Appeal Committee to reflect the recommendations made in the Lamer Report. These amendments are discussed in greater detail in Chapter 6.

Below is a table containing a summary of recent CMAC activity.

At the beginning of the reporting period, ten appeals which had commenced during the previous reporting periods were ongoing. Nine of these appeals were initiated by convicted members and one by the DMP. During this reporting period, sixteen appeals were initiated, three of them by the DMP. Of the twenty-six appeals, four were dismissed, three were abandoned by the appellants, and nine were heard and determined by the CMAC. These are reviewed in detail below. Three decisions had yet to be issued before the end of the reporting period, and seven appeals had yet to be heard by 31 March 2009. A tabular breakdown of the appeal statistics for this reporting period is found at Annex G of this report.

R. v. Trépanier¹¹

On 6 February 2006, Officer Cadet (OCdt) Trépanier was charged under section 130 of the NDA for sexual assault, contrary to section 271 of the Criminal Code. After his court martial was convened, his counsel filed a preliminary motion challenging the constitutionality of section 165.14 and subsection 165.19(1) of the NDA, as well as article 111.02(1) of the Queen's Regulations and Orders (QR&O). These provisions provide the DMP with the authority to select the type of court martial. The appellant challenged the authority of the DMP as an unjustifiable breach of the appellant's right to present a full answer and defence and to control the conduct of his defence under section 7 and subsection 11(d) of the Canadian Charter of Rights and Freedoms (Charter).¹² The CMJ, who tried the accused, dismissed the motion. OCdt Trépanier was found guilty on 29 January 2007 and was sentenced to a reprimand and a fine of $2,000.¹³

The CMAC found that the provisions of the NDA and QR&O which gave the DMP sole authority to determine the mode of trial of an accused violated the Charter rights of an accused to make a full answer and defence. The Court disagreed with the Crown's argument that the provisions in question were merely part of the prosecutorial discretion exercised by the DMP. The Court found that the ability to select the mode of trial, where available, is a benefit, an element of strategy and a tactical advantage of the accused; therefore, it is part of an accused's right to present a full answer and defence. The Court subsequently allowed the appeal, declared that section 165.14 and subsection 165.19(1) of the NDA as well as article 111.02(1) of the QR&O violated section 7 and subsection 11(d) of the Charter. The DMP applied for leave to appeal to the Supreme Court of Canada (SCC). The application was dismissed.¹⁴

Subsequent to the CMAC decision in Trépanier, legislative amendments were implemented which reduced the types of courts martial from 4 to 2 and provided the means whereby an accused may, in certain circumstances, select the type of court martial before which he or she will be tried. These changes are discussed in greater detail in Chapter 6.

R. v. Billard¹⁵

On 6 July 2007, Master Corporal (MCpl) Billard pleaded guilty at his SCM to one charge under section 129 of the NDA, Neglect to the Prejudice of Good Order and Discipline. The charge related to his failure to adopt a defensive posture as required by Task Force Standing Orders (TFSO) in Kandahar Province, Afghanistan, during an attack on the Forward Operating Base (FOB) at which the member was serving. After accepting his guilty plea, the Military Judge sentenced MCpl Billard to detention for a period of 21 days. The member appealed the severity of the sentence.

After reviewing the record and hearing the appellant's arguments, the CMAC upheld the sentence imposed at court martial. The CMAC found that the trial judge properly considered the relevant mitigating factors and did not improperly consider other factors in sentencing MCpl Billard. Further, given the circumstances of the offence, the CMAC considered the "soldier first" principle of service in the CF. According to the Court, the appellant's neglect was related to his duty as a soldier to act appropriately when his unit was under fire. His failure to obey the lawful command set out in the TFSO to adopt a defensive posture put himself and his fellow soldiers at great risk. The CMAC held that the principles of denunciation and deterrence assumed particular importance in the circumstances and that the sentence of 21 days of detention was fit and proper in the circumstances.

R. v. Stevens¹⁶

On 17 January 2008, Ex-Corporal (Ex-Cpl) Stevens pleaded guilty to three charges of cocaine trafficking and one charge of ecstasy trafficking (pursuant to section 130 of the NDA and contrary to subsection 5(1) of the Controlled Drugs and Substances Act) before an SCM. Before accepting the guilty pleas, the Military Judge explained the elements of the offences in question, the effect of entering guilty pleas to the charges, as well as the maximum punishment for each charge. Ex-Cpl Stevens acknowledged that he understood the consequences of guilty pleas. The Military Judge accepted the guilty pleas and a joint sentencing submission was accepted. Ex-Cpl Stevens was sentenced to imprisonment for a period of 16 months on 17 January 2008. A motion for an order permitting the filing of a Notice of Appeal and an application for leave to appeal was brought forward by Ex-Cpl Stevens on 9 May 2008, despite the 30-day period for filing such notice having expired.

The accused argued that his civilian legal counsel failed to properly argue certain defences and to fully explain the consequences of a guilty plea. He also argued that he was unable to make known his desire to appeal his sentence because he had been sent to the CF service prison and was prevented from making necessary phone calls during the 30-day period provided for submitting a Notice of Appeal. The CMAC declined to extend the period provided for submitting a Notice of Appeal. The Court noted that the applicant had been asked by the Military Judge if he wished to seek release pending appeal and that he had declined to do so. Further, while regulations at the CF service prison precluded offenders from making personal phone calls until such a privilege had been earned, regulations did allow for phone calls to be made for the purpose of dealing with ongoing appeal matters.

R. v. Nociar¹⁷

Captain (Capt) Nociar was found guilty of one charge pursuant to section 130 of the NDA, in violation of section 271 of the Criminal Code, and sentenced to a reprimand and a fine of $1800. He filed an appeal challenging the legality of the conviction and sentence and sought leave to appeal the severity of the sentence. On the day before his appeal was heard, the CMAC delivered its Trépanier decision discussed above. The Court provided the parties with an opportunity to make submissions concerning the effect of the Trépanier decision on Capt Nociar's appeal. The appellant argued that a new trial was warranted, thus giving him the ability to select the type of court martial before which he would be tried. The prosecution argued that no new trial should be ordered. It argued that the CMAC should first consider the merits of the appeal before considering the effect of the Trépanier decision on the proceedings.

The CMAC held that Capt Nociar was entitled to the benefit arising from the Trépanier decision and that a new trial should be ordered. The Court reasoned that the appellant should not stand convicted as a result of a trial predicated on court martial selection procedures found to be unconstitutional. As his constitutional right to make full answer and defence had been violated by the procedures in place, the only appropriate remedy was to quash the conviction, set aside the sentence and order a new trial.

R. v. Willms¹⁸

Master Seaman (MS) Willms was found guilty at his SCM pursuant to section 130 of the NDA, in violation of section 266 of the Criminal Code. The charge resulted from the circumstances surrounding an injury to a recruit under MS Willms' command and his efforts to physically assist the recruit back to her barrack room. At court martial, the Military Judge found that MS Willms “was at least reckless as to whether or not [the Complainant] consented to being assisted by him”¹⁹ in escorting her to her room. The Military Judge did not consider the defence of honest but mistaken belief in consent.

The CMAC noted that consent in the case of assault must be examined based on all the circumstances surrounding the incident. The Court found that the trial judge failed to properly consider the accused's grounds for believing he had obtained the complainant's consent to physically assist her in returning to her room. The Court recognized that the accused was the complainant's instructor in the context of a basic recruit course and had a duty to offer such assistance in the event of injury. Recruits had been advised at the start of training that some physical contact between staff and recruit may be necessary during the course to effect training and safety. Further, the complainant's conduct at the time of the alleged offence supported the defence's argument that MS Willms honestly believed he had obtained the consent required to offer assistance. The CMAC found the guilty verdict to be unreasonable and not one that a properly instructed trier of fact could reasonably have rendered. The guilty verdict was substituted by an acquittal.

R. v. Beek²⁰

Ex-Cpl Beek was charged on 28 February 2005, pursuant to section 130 of the NDA, with nine counts of drug trafficking contrary to subsection 5(1) of the Controlled Drugs and Substances Act. At the start of his SCM, he filed an application pursuant to sections 7 and 11(d) of the Charter seeking a declaration that sections 165.14 and 165.19(1) of the NDA, as well as article 111.02 of the QR&O were unconstitutional. The application was heard and dismissed. He was found guilty of six charges of drug trafficking. On 26 July 2007 the presiding Military Judge sentenced him to a period of imprisonment of nine months. Ex-Cpl Beek appealed this decision to the CMAC on 10 August 2007. In light of the fact that similar issues were being challenged in other cases, Ex-Cpl Beek was granted intervenor status in the Trépanier case²¹. He agreed to be bound by the decision in that case.

Upon the decision in Trépanier being released, the CMAC quashed Ex-Cpl Beek's conviction and sentence, and directed a new trial to take place.

R. v. Liwyj²²

In this case, Cpl Liwyj was to be tried by a Disciplinary Court Martial (DCM) as selected by the DMP in accordance with section 165.14 of the NDA. The DCM commenced on 11 December 2007. The defendant pleaded not guilty to three charges under section 83 of the NDA for disobedience of a lawful command. The court was adjourned until 27 May 2008. On 24 April 2008 the Trépanier decision was delivered. The accused subsequently applied for an order to have his trial held before a SCM. The Military Judge discharged the assembled panel and dismissed the application for trial before a SCM. A conditional stay of proceedings was granted. The condition imposed was that the DMP would be required to consent to a trial by SCM.

The main issue in this case was that the offence of disobedience of a lawful command, for which the maximum punishment is life imprisonment, now falls, as a result of Bill C-60, into the category of offences in which the accused cannot select the type of court martial. Consequently, the condition in the stay of proceedings could not lawfully be met.²³ In this case, the DMP appealed the decision of the trial judge for a conditional stay. Ultimately, both parties agreed to consent to trial by SCM pursuant to subsection 165.191(2) of the NDA.

R. v. McDougall²⁴

Petty Officer First Class (PO1) McDougall was charged and convicted at his SCM of one count under section 130 of the NDA contrary to section 271 of the Criminal Code. PO1 McDougall and the complainant were students attending an aero-medical evacuation course. The incident in question occurred after a social outing during which both the accused and the complainant consumed alcohol. In considering the testimony of the accused, the complainant, and a witness to some of the evening's events, the Military Judge determined that, beyond a reasonable doubt, the accused had committed the offence.

The CMAC reviewed the trial record and, while acknowledging the considerable deference that must be given to a trial judge on matters related to assessing credibility, found that the Military Judge's conclusions with respect to PO1 McDougall's credibility were either not supported by the evidence or supported by insufficient reasons. The CMAC allowed the appeal, set aside the verdict of the SCM and ordered a new trial.

R. v. Couture²⁵

Sergeant (Sgt) Couture was charged under section 84 of the NDA, Striking or Offering Violence to a Superior; section 85 of the NDA, Insubordinate Behaviour; and section 129 of the NDA, Conduct to the Prejudice of Good Order & Discipline (3 charges). The accused presented an application for a plea in bar of trial pursuant to articles 112.05(5)(b) and 112.24(1)(a) of QR&O. The argument put forward supporting the application was that the charge layer had not complied with the requirement of article 107.03 of QR&O to obtain legal advice prior to 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 void.

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 was obligated to refer to in order to pronounce his judgment was the charge sheet signed by DMP. DMP decided not to proceed further with the charges.

4.5 Director of Defence Counsel Services (DDCS) Annual Report

In accordance with article 101.20 of the QR&O, the DDCS is required to report annually to the JAG. The DDCS Annual Report is found at Annex D. In this report, the DDCS raises a number of issues related to the administration of military justice from a defence counsel perspective. For instance, higher levels of demand were placed on DDCS services during the reporting year with increased levels of court martial files, an increase in the number of completed courts martial resulting in 92 more trial days than the previous reporting period, and the absence of one regular force defence lawyer due to deployment. In the view of DDCS, these demands were exacerbated by the resources required to address the results of the decision in Trépanier and the number of related challenges submitted at courts martial and to the CMAC. Numerous other issues were identified in the DDCS Annual Report. For example, the DDCS states that as a result of changes to the composition and duties of the Appeal Committee,²⁶ there has been a delay in the processing of applications for defence counsel at the Crown's expense by individuals convicted at courts martial. Budgeted amounts in respect of the delegated contracting authority of the DDCS were increased due in part to one matter involving an appeal led by a civilian lawyer. Another issue raised by DDCS was that some accused make decisions regarding their right to elect court martial without first exercising their right to discuss the matter with defence counsel. This matter will be reviewed by the Director of Law Military Justice Policy and Research in the next reporting period.

While challenging, the strains placed on the military justice system were faced by the members of DDCS with professionalism. Changes made to the types and selection process of courts martial, the composition and duties of the Appeal Committee and other aspects of the military justice system will only improve its efficacy and should have the desired effect of easing some of the burden faced by all participants in the military justice system. In addition to these changes, an external independent review was commenced during this reporting period to study the Defence Counsel Services. It is expected that the results of this study will address some of the highlighted concerns of DDCS and lead to a more efficient and effective Defence Counsel Service.

Footnotes

¹ This figure includes two courts martial at each of which two accused were tried for a total of 67 accused.

² In accordance with article 101.11 of the Queen's Regulations and Orders for the Canadian Forces [QR&O] the DMP is required to report annually to the JAG.

³ R.S.C. 1985, c. N-5 [NDA], at ss. 165.21-165.27.

⁴ For appointment, security of tenure and removal, re-appointment and retirement age see NDA s. 165.21. In June 2008, Cdr Lamont's appointment was renewed in accordance with the regulatory process.

⁵ Supra note 3 at s. 165.22(2).

⁶ QR&O, articles 204.23 to 204.27.

⁷ Report on the Compensation of Military Judges, MJCC September 2008.

⁸ Supra note 3, ss. 230 and 230.1.

⁹ QR&O 101.21.

¹⁰ These represent appeals commenced in prior reporting periods and carried over to subsequent reporting periods.

¹¹ [2008] CMAC 3.

¹² Section 7 of the Charter provides that “Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.” Subsection 11(d) of the Charter provides that “Any person charged with an offence has the right… to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal.”

¹³ Supra note 11 at paras 13-15.

¹⁴ [2008] S.C.C.A. No. 304.

¹⁵ [2008] CMAC 4.

¹⁶ [2008] CMAC 5.

¹⁷ [2008] CMAC 495.

¹⁸ [2008] CMAC 509.

¹⁹ 2007 CM 2021 at para 12.

²⁰ [2008] CMAC 504

²¹ Supra, note 10.

²² [2009] CMAC 1.

²³ Supra, note 3. Subsection 165.191(1) now provides that the Court Martial Administrator shall convene a General Court Martial if any charge preferred against an accused person on a charge sheet is, among other things, an offence under the NDA, other than one under sections 130 or 132, that is punishable by imprisonment for life. The section goes on, however, to provide that an accused person charged with an offence under subsection 165.191(1) may, with the consent of the DMP, be tried by Standing Court Martial [emphasis added].

²⁴ [2009] CMAC 2.

²⁵ [2008] CMAC 502.

²⁶ QR&O article 101.21 as amended P.C. 2008-1015 of 5 June 2008 effective 5 June 2008.