ARCHIVED - Chapter 3: Military Justice Year in Review

This chapter will provide a brief overview of the CSD and the two types of service tribunals by which alleged violations of the CSD are addressed. It concludes with a brief statistical summary of proceedings conducted during this reporting period, with an emphasis on several noteworthy cases and trends.

3.1 The Code of Service Discipline (CSD)

The CSD is found at Part III of the NDA, and sets out the foundation of the Canadian military justice system. It prescribes disciplinary jurisdiction, pre-trial and trial procedures, offences and punishments, as well as post-trial and appeal procedures. The CSD is engaged when an alleged service offence occurs in Canada or elsewhere.22 It applies to regular force CF members at all times and to members of the reserve force in specified circumstances. Furthermore, the CSD can also apply to civilians in limited circumstances.23 Service offences include unique military offences as well as violations of the Criminal Code and other federal statutes.24

3.2 Service Tribunals - Summary Trial and Court Martial

The CSD provides for two types of service tribunals. "Service tribunal" is defined in section 2 of the NDA to mean a court martial or a person presiding at a summary trial. The first type, the summary trial, is presided over by military commanders and is intended as an expedient and fair means to deal with minor service offences at the unit level. In fact, the vast majority of disciplinary matters are dealt with at summary trial. The jurisdiction and powers of these tribunals are very restricted, however. Military commanders who preside at summary trials must be trained and certified by the JAG as being competent in their duties as presiding officers, and must maintain that currency by re-certifying every four years.25

In all but the most minor of cases, the QR&O require that charge-laying authorities obtain mandatory legal advice prior to laying charges, and that presiding officers to whom charges are referred obtain legal advice before proceeding to summary trial.26 Apart from these regulatory requirements, presiding officers are always free to seek the advice of legal officers at any time prior to or during a trial.

Findings of guilt and sentences awarded at a summary trial are subject to review by a superior officer, either at the request of an offender, or on the independent initiative of the chain of command if there are procedural or substantive concerns about the proceedings.27 The QR&O require that review authorities seek legal advice prior to making a decision on such a review.28

The second type of service tribunal is the court martial. Courts martial are presided over by military judges and function in a similar fashion to civilian criminal courts. Accused persons facing trial by court martial are entitled to publicly-funded legal representation by Defence Counsel Services (DCS), or they may hire a civilian lawyer at their own expense. Prosecutions are conducted by legal officers from the Canadian Military Prosecution Service (CMPS). Formal rules of evidence apply to the proceedings, and court martial findings and sentences may be appealed to the Court Martial Appeal Court of Canada, which is composed of civilian Federal Court and Provincial Superior Court justices (the CMAC). The next and final level of appeal beyond the CMAC is the Supreme Court of Canada (SCC).

3.3 Service Tribunals Conducted - 2009-2010 Reporting Period

A total of 1,998 service tribunals were held during the reporting period, representing 1,942 summary trials and 56 courts martial. The total number of proceedings has remained relatively constant in recent years. Of interest is the fact that summary trials continue their historical trend of representing approximately 97% of all service tribunals held in a given year.

3.4 Summary Trials During the Reporting Period

Detailed statistics for the summary trials held during the reporting period are provided at Annex E.

For the vast majority of offences, an accused has the right to elect trial by court martial.29 Interestingly, the proportion of members who elect court martial has decreased steadily from 8.5% in 2006 to 4.69% during this reporting period. The decline in the number of accused persons electing trial by court martial appears to confirm that accused persons are confident in the summary trial process.

Over half of all charges during this reporting period were laid under s.129 of the NDA for acts, conduct or neglect to the prejudice of good order and discipline. This offence offers the chain of command a means of addressing a variety of military-specific disciplinary breaches, including:

The right to elect trial by court martial arose in 47.83% of cases involving charges under s.129 of the NDA, although only 2.35% of accused ultimately elected court martial.

During the reporting period, requests for review of summary trial findings and/or sentences were made in 38 cases. Eighteen of these - or 47% - were initiated by offenders, while 20 reviews - or 53 % - were initiated by the chain of command, often on the advice of a legal officer conducting post-trial reviews of summary trial materials. This represents an overall review rate of only 2.0% when considered in light of the total number of summary trials held. In 71% of the reviews conducted, the review authority took some action favourable to the offender (whether set aside a finding of guilty on the ground that it is unjust or reduce a sentence on the ground that is unjust or too severe), whereas the remaining 29% of review situations saw no changes made to the summary trial decision.

3.5 Courts Martial During the Reporting Period

A total of 56 courts martial were held during this reporting period, reflecting a decrease from the 65 courts martial held in the 2008-2009 reporting period. The annual reports of the DMP and the Director of Defence Counsel Services (DDCS) at Annexes C and D provide further detail on these proceedings.

The following courts martial, completed during the reporting period, are of particular interest as they were high profile cases involving important questions of criminal and military law:

R. v. Wilcox31

On 6 March 2007, Corporal (Cpl) Megeney and Cpl Wilcox were working with other members of their section at Entry Control Point 3 (ECP3) at Kandahar Airfield in Afghanistan. At the end of their shift, Cpl Megeney and Cpl Wilcox were transported to their shared accommodation tent. Shortly thereafter, a shot was heard and a number of nearby personnel responded to screams coming from the tent. Upon entering the tent, members of the platoon noticed the presence and smell of gun smoke. Cpl Wilcox was seen lowering Cpl Megeney to the ground. Cpl Megeney had suffered a single gunshot wound to the chest, and eventually succumbed to his injury.

Cpl Wilcox was subsequently charged with three offences under the CSD, namely manslaughter, criminal negligence causing death, and negligent performance of a military duty. On 30 July 2009, Cpl Wilcox was found guilty by a General Court Martial of two offences: criminal negligence causing death and negligent performance of a military duty.

On 30 September 2009, the military judge sentenced Cpl Wilcox to four years imprisonment and dismissal from Her Majesty's Service. Cpl Wilcox filed a Notice of Appeal with the CMAC, appealing both the finding and the sentence imposed. As of the end of this reporting period no decision had been made concerning the appeal.32 Additional details will be provided in the next annual report.

R. v. Semrau33

Captain (Capt) Semrau was deployed to Afghanistan in August 2008. He was a member of the Operational Mentoring and Liaison Team (OMLT) assigned to the 2nd Kandak (Battalion) of the Afghan National Army (ANA). An OMLT is a CF unit whose primary responsibility is to train ANA soldiers on western military ethics, tactics and standards.

On 19 October 2008, Capt Semrau and his three-man Canadian mentoring team participated in a clearing patrol outside of the city of Lashkar Gah, in Helmand Province (which neighbours Kandahar Province to the west). During that morning's operation, Capt Semrau and his team, accompanying an ANA infantry company, came across a severely wounded, suspected insurgent. The ANA company commander told the CF personnel not to treat or administer aid to the wounded man. Following a short discussion, this course of action was agreed to by the CF personnel.

The CF and the ANA moved forward, whereupon they encountered a second suspected insurgent, apparently deceased. Capt Semrau, another CF member, and an ANA interpreter then returned to the location of the first suspected insurgent. It was at this time that Capt Semrau fired into the body of the first insurgent with his CF issued C-8 rifle.

Following an investigation by the CF National Investigation Service (CFNIS), Capt Semrau was arrested on 30 December 2008, retained in custody, and repatriated back to Canada. Following a court hearing, he was released with conditions on 7 January 2009. On 17 September 2009, three charges were preferred by the DMP against Capt Semrau, namely second degree murder, attempt to commit murder with a firearm, and cruel or disgraceful conduct. The trial commenced during the reporting period. Additional details will be provided in the next annual report.

3.6 Court Martial Appeals

During this reporting period, 21 appeals were heard before the CMAC. All of these appeals, save for one, were initiated by the offender. The CMAC rendered decisions in eight of the appeals during the reporting period.

Additionally, one notice of appeal34 and one application for leave to appeal35 were filed with the SCC, both by offenders whose appeals had been denied by the CMAC. At the end of this reporting period, the SCC had not yet rendered decisions concerning these appeals.

Detailed information on the court martial appeals heard during this reporting period can be found in the Report of the DMP at Annex C, and the Report of the DDCS, at Annex D.

3.7 Summary Trials - Unauthorized Discharge of Weapons

The majority of charges laid with respect to the unauthorized discharge of a weapon again involved CF members in training environments. During the 2009-2010 reporting period, a total of 523 charges were heard at summary trial for this type of offence. Of these, 420 - or 80% - were related to training incidents, while the remaining 103 - or 20% - occurred during operations. These numbers are generally consistent with prior reporting periods, and continue to reflect the same statistical division between unauthorized discharges occurring in training and on operations. Overall, summary trials involving unauthorized discharges represented 27% of all summary trials held during 2009-2010, a 5% increase from the 2008-2009 reporting period. This increase may be attributable to a 17% increase in the number of recruits and officer cadets attending the Canadian Forces Leadership and Recruit School during the reporting period.

3.8 Summary Trials Conducted on Operations

The maintenance of discipline during operations is of vital importance to military commanders at all levels in the chain of command. The charges dealt with during the reporting period reflect how seriously operational commanders view alleged breaches of the CSD, particularly where those breaches could potentially affect the safety of CF personnel. The portable and deployable nature of the military justice system gives commanders the means to promptly and fairly deal with disciplinary allegations in the field. This flexibility allows disciplinary matters to be expeditiously addressed, so that those involved can continue to carry out their responsibilities with as little disruption as possible to the operational effectiveness of their units.

The vast majority of disciplinary incidents tried during CF operations for this reporting period occurred in Afghanistan, with a total of 268 charges laid for in-theatre offences. The most common offences were related to the unauthorized discharge of a weapon (103 charges laid) and failure to properly secure a weapon or failure to wear mandated personal protective equipment (36 charges laid).


Footnotes

22 Supra note 1, s.67

23 Supra note 6

24 Supra note 1, s.130

25 QR&O 101.09 refers. Note also that every four years, qualified presiding officers require re-certification, which is done online through Presiding Officer Re-certification Test (PORT).

26 QR&O 107.03 and 107.11 refer.

27 QR&O 108.45 and 116.02 refer.

28 QR&O 108.45(8)

29 QR&O 108.17

30 Serious offences of a sexual nature such as sexual assault are dealt with at courts martial. There were 84 charges of a sexual nature laid against 51 accused during this reporting period dealt with by summary trial.

31 R. v. Corporal M.A. Wilcox, 2009 CM 2014

32 On 18 October 2010, the CMAC set aside the guilty findings and directed a new trial for Ex-Cpl Wilcox, on the grounds that the court martial panel had been improperly constituted. DMP preferred new charges on 29 October 2010.

33 R. v. Semrau, 2010 CM 1002

34 Szczerbaniwicz v. The Queen, 2009 CMAC 513, appealed to SCC.

35 Savaria v. The Queen, 2010 CMAC 525, leave to appeal to SCC requested.

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