ARCHIVED - Chapter 6: Legislative, Regulatory and Policy Initiatives

6.1 Introduction

In addition to the superintendence mandate of the administration of military justice in the CF, the JAG provides support to the Minister and the CF in relation to legislative, regulatory and policy initiatives related to military justice. This responsibility involves identifying and developing policies for the enhancement of the military justice system as well as providing direct support for all legislation and regulations relevant to the military justice system. This chapter highlights the legislative, regulatory and policy initiatives which were advanced during the reporting period.

6.2 Legislative Amendments

Bill C-60, An Act to amend the National Defence Act (court martial) and to make a consequential amendment to another Act¹

As discussed in Chapter 4, the Court Martial Appeal Court (CMAC) decision in R. v. Trépanier² related to the challenge of the constitutionality of the power vested in the Director of Military Prosecutions (DMP) to select the type of court martial used to try an accused. The CMAC found that the provisions in the National Defence Act³ (NDA) which gave the DMP sole authority to determine the mode of trial of an accused violated the Charter right of an accused to make a full answer and defence. The relevant sections were struck down and the Court ordered a new trial whereby the appellant would be given the opportunity to choose the type of court martial.

Leave to appeal to the Supreme Court of Canada (SCC) was sought by the DMP on behalf of the Minister of National Defence (MND). Without conceding the issue on appeal, the Government moved to amend the NDA through Bill C-60. The enactment amended certain provisions of the NDA governing the military justice system that included:

• Reducing the types of courts martial from four to two, thereby eliminating the Disciplinary Court Martial and the Special General Court Martial;
• Standardizing the jurisdiction and range of sentences available between the two remaining types of courts martial, the Standing Court Martial (SCM) and the General Court Martial (GCM);
• Expanding the ability of military judges to deal with pre-trial matters; and
• Requiring the unanimous decision of the five-member panel in a GCM for decisions such as the determination to be made whether an accused is fit to stand trial and the finding on the facts of the case.

Bill C-60 was introduced on 6 June 2008, received Royal Assent on 18 June 2008 and came into effect on 18 July 2008. The leave to appeal sought by the DMP on behalf of the Crown was ultimately dismissed by the SCC in September 2008.⁴

As noted above, there are now only two types of courts martial; the SCM and the GCM. Each has jurisdiction to try anyone subject to the Code of Service Discipline (CSD) and each has the ability to sentence a person to the full range of punishments available under section 139 of the NDA.⁵

A GCM is to be convened if any charge is preferred against an accused person that is punishable by imprisonment for life, an offence under section 130 of the NDA that is punishable by imprisonment for life, or an offence under section 130 that is referred to in section 469 of the Criminal Code⁶. A SCM is to be convened if every charge preferred against an accused person is an offence under the NDA, other than one under section 130, punishable by imprisonment for less than two years or by a lower punishment, or an offence punishable under section 130 and punishable on summary conviction under any Act of Parliament.⁷ Where neither of these situations apply, the accused may choose the type of court martial.⁸

Bill C-60 also clarified some uncertainty in respect of the accused person's election rights and the ability of a commander to refer a matter to court martial prior to or during the summary trial. In the CMAC decision of Grant v. R., the CMAC directed that a new trial be conducted by summary trial instead of at court martial.⁹ Bill C-60 clearly indicated that the power of the Court Martial Appeal Court is to order a new trial by court martial. The duty to act expeditiously under the Code of Service Discipline arises upon the laying of the charge, and the one-year limitation period is a jurisdictional provision reinforcing the summary nature of those proceedings.

Bill C-45, An Act to amend the National Defence Act and to make consequential amendments to other Acts¹⁰

Amendments were made to the NDA in 1998 through the passing of Bill C-25, An Act to Amend the National Defence Act and to make Consequential Amendments to other Acts¹¹, which significantly changed the military justice system. In order to assess the efficacy of these changes, the amendments included a provision requiring that an independent review of the provisions and operations of Bill C-25 be conducted within five years of the Bill receiving Royal Assent. As a result, in March 2003, the Minister appointed the late Right Honourable Antonio Lamer, former Chief Justice of the SCC, to conduct the first independent review. The report containing Justice Lamer's recommendations (the "Lamer Report") was submitted to the Minister on 3 September 2003 and was tabled in Parliament on 5 November 2003.

Bill C-7, which contained the Government of Canada's legislative response to the recommendations made in the Lamer Report, was introduced in Parliament on 27 April 2006. Bill C-7 died on the Order Paper when Parliament was prorogued on 17 September 2007. A new Bill containing the Government's legislative response to the Lamer Report was then developed. The successor bill to Bill C-7, Bill C-45, was introduced in Parliament on 3 March 2008. Bill C-45 largely mirrored the contents of Bill C-7.

In summary, the amendments proposed in Bill C-45 would have:

• provided for security of tenure for military judges until their retirement;
• permitted the appointment of part-time military judges;
• elaborated the purposes, objectives and principles of sentencing in the military justice system;
• provided for additional sentencing options, including absolute discharges, intermittent sentences and restitution orders;
• required the unanimous decision of a court martial panel to find an accused guilty or not guilty;
• provided the CMAC the authority to suspend a sentence;
• set out the duties and functions of the Canadian Forces Provost Marshal (CFPM);
• enhanced the timeliness and fairness of the military police complaints process;
• expanded the ability of the CDS to delegate his or her powers as a final authority in the grievance process; and
• provided an explicit requirement in the NDA to conduct future independent reviews of the military justice system, the military police complaints process and the grievance process.

Bill C-45 died on the Order Paper on 7 September 2008 when Parliament was dissolved for a federal election. Although Bill C-45 died on the Order Paper, certain amendments contained in the Bill have been implemented through other legislative and regulatory amendments. These include:

• the requirement for unanimous consent by a court martial panel in respect of certain types of decisions including the finding of guilty or not guilty (see Bill C-60);
• changes to the composition and workings of the Appeal Committee through amendments to QR&O article 101.21, including the establishment of a committee of three members who shall, by majority vote, determine applications for defence counsel at the Crown's expense based on an interpretation of a new definition of "professional merit"; and
• the ability of a military judge to determine preliminary matters in a case once charges have been preferred by DMP.

6.3 Regulatory Amendments

Regulations relating to Bill S-3, An Act to Amend the National Defence Act, the Criminal Code, the Sex Offender Information Registration Act (SOIRA) and the Criminal Records Act¹²

The national sex offender database was established under the Sex Offender Information Registration Act (SOIRA)¹³ on 15 December 2004. However, the legislation did not include amendments to the NDA to make SOIRA applicable to sexual offenders convicted at courts martial. Bill S-3 amended the NDA, the Criminal Code and the Criminal Records Act to bring the military justice system fully within the regime of sex offender registration. The amending act came into force concurrently with the Sex Offender Information Registration Regulations (Canadian Forces) (the Regulations)¹⁴ on 12 September 2008.

The amendments permit a court martial to order an offender, convicted of a designated offence, to register in the national sex offender database. Registration and reporting procedures in the military context mirror those in the civilian context while recognizing the unique nature of military operational demands.

Amendments to the QR&O relating to An Act to amend the Criminal Code, the DNA Identification Act and the National Defence Act and An Act to amend certain Acts in relation to DNA Identification

Certain sections of Bill C-13, An Act to amend the Criminal Code, the DNA Identification Act and the National Defence Act and Bill C-18, An Act to amend certain Acts in relation to DNA Identification, came into force on 1 January 2008. As a result, amendments to the QR&O were required to mirror forms found in the Criminal Code while taking into account their use in the military justice system.

Amendments to the QR&O to implement numerous Lamer recommendations relating to the Appeal Committee

Article 101.21 of the QR&O established an Appeal Committee to receive and consider applications for legal representation at Crown expense from those convicted at court martial seeking to appeal their conviction or sentence. Previously, the Appeal Committee consisted of two members, one appointed by the CDS and one appointed by the JAG. On reviewing an application for defence counsel at Crown expense, the two members needed to agree with respect to recommending counsel be provided, or not, based on whether the application showed professional merit.

On 5 June 2008, amendments to article 101.21 of the QR&O were implemented to restructure the Appeal Committee and provide greater detail with respect to how the Committee makes its determinations. The Appeal Committee now consists of three members, appointed by the JAG, the CDS and the Director of Defence Counsel Services (DDCS). The member selected by the JAG must be a retired military judge, a retired judge advocate, or a retired judge of a superior court. The Appeal Committee currently consists of the following members:

• Commander (retired) R.J.A. Gynn, a retired judge advocate, Appeal Committee Chairperson, appointed by the JAG;
• Colonel (retired) D.A. Fairbanks, a retired legal officer in the supplementary reserve and practicing regional crown attorney in the province of Nova Scotia, appointed by the CDS; and
• Mr. Roger Landry, lawyer and Director General of the Community Legal Centre, Outaouais Region, appointed by the DDCS.

In addition to the establishment of the Appeal Committee, the QR&O amendments also included a definition of the requirement of "professional merit". For the purposes of the Appeal Committee's determination of an appeal, an appeal has "professional merit" if there is a reasonable chance that one or more of the issues raised could be successful on appeal and result in the alteration of a court martial finding or sentence, or be of importance to the administration of military justice.

6.4 Policy Initiatives

Military Justice Committees

The Administration of Military Justice Committee (AMJC) examines issues of interest to the administration of military justice. The AMJC is co-chaired by the Chief Military Judge (CMJ) and the JAG. Its membership includes a representative from the Canadian Military Prosecution Service (CMPS), Defence Counsel Services (DCS), Deputy Judge Advocate General/Military Justice and Administrative Law (DJAG/MJ&AL), Directorate of Law/ Military Justice Policy and Research (DLaw/MJP&R) and the Court Martial Administrator (CMA). The AMJC met once during the reporting period.

The AMJC sub-committee, having previously examined court martial proceedings and protocols, turned its attention to the use of video link technology and how its use has affected the administration of military justice, particularly with respect to reducing delay. The sub-committee examined the use of video link technology in the civilian criminal justice context, with particular emphasis on the provinces of British Columbia and Alberta, where such technology is in widely used. The sub-committee is expected to present its report on the subject to the committee as a whole in the next reporting period.

As discussed in previous annual reports, the Office of the JAG and the Chief Justice of the Court Martial Appeal Court (CJ CMAC) have explored the possibility of creating a committee to examine the CMAC Rules of Appeal and Procedure. These discussions have continued during this reporting period with a number of options being identified through communication between the CJ CMAC and the Office of the JAG. More information is expected in the next reporting period on what further action may be taken in this regard.

Military Justice Delay

The Office of the JAG continues to address issues related to delay in the military justice system. For instance, as reported in the last Annual Report, the JAG initiated the JAG working group on military justice delay involving representatives from the Canadian Forces National Investigative Service and Deputy Provost Martial, Environmental Command staff, DMP, Deputy Judge Advocate General/Regional Services and DLaw/MJP&R. Specifically, the working group has the mandate to:

• Examine the current practices and procedures in the military justice system for the purpose of identifying areas where efficiency and expediency can be gained;
• Identify feasible long-term options for enhancing efficiency and expediency; and
• Develop an action plan involving proposed changes to the practices and procedures within the military justice system which will enhance timeliness while addressing the specific needs and circumstances of the various actors in the system

During the reporting period, the Office of the JAG developed a working group with the Office of the Canadian Forces Provost Marshal to study the use of electronic disclosure methods in the context of the provision of military police investigation reports to legal advisors. While the examination of these issues remains ongoing, feedback from legal officers suggests that greater reliance on electronic forms of investigation reports and disclosure packages is preferred given the often voluminous amount of information and documentation involved. Efforts continue to develop investigation reporting systems tailored to provide legal advisors with better reporting products during the investigatory, pre-charge and post-charge review stages. It is expected that improvements in these areas will address in part the issue of delay in the military justice system.

As reported in the 2007-2008 Annual Report, an external review of the practices and procedures of the CMPS was initiated and carried out by the Bronson Consulting Group. The objective of the external review was to identify factors within the purview of the CMPS which contribute to delay in the military justice system and to make recommendations to the CMPS on what could be done to reduce such delays. The Report examined three main areas and compared CMPS practices to those of the civilian prosecution system, namely: organization and structure; human resource management and policies; and practices and procedures.

The Report examined several key aspects of CMPS. Particular assessment was made of the CMPS' participation in the disciplinary investigation process. Current policies and practices of the CMPS, the court martial process and the human resource structure of the CMPS were also reviewed. The Report made numerous specific recommendations with respect to each of these issues. The Report and its recommendations have been reviewed with the intention of implementing the necessary changes to improve the efficiency of the military prosecution service and thereby reduce military justice delay. Many of the recommendations have been implemented by the Director of Military Prosecutions. These positive steps have been outlined in the DMP Annual Report at Annex E of this Report.

During the reporting period, a similar external review was initiated to consider the DCS organization, structure, human resource management, polices and practices. This review is expected to be completed during the next reporting period.

Footnotes

¹ 2^nd Sess., 39^th Parl., 2008 [Bill C-60].

² [2008] CMAC 3.

³ R.S.C. 1985, c. N-5 [NDA].

⁴ [2008] S.C.C.A. No. 304.

⁵ Civilians subject to the CSD may only be sentenced to imprisonment and/or a fine - NDA sections 166.1 and 175. Further, courts martial are subject to maximum punishments set out in the CSD for specific offences.

⁶ Supra, note 3, s. 165.91.

⁷ Ibid., s. 165.192.

⁸ Ibid., s. 165.193.

⁹ [2007] CMAC 2.

¹⁰ 2^nd Sess., 39th Parl., 2008 [Bill C-45].

¹¹ S.C. 1998, c.35 [Bill C-25].

¹² R.C.S. 2007, c. 5 [Bill S-3].

¹³ R.C.S. 2004, c. 10.

¹⁴ SOR/2008-247 - P.C. 2008-1508.