ARCHIVED - Chapter 4: Military Justice Trends and Issues

In his capacity as superintendent of the administration of military justice, the JAG tasked the Director of Law Military Justice Policy and Research (DLaw/MJP&R) and the JAG Chief Warrant Officer (JAG CWO) to personally conduct a series of interviews with some of the main participants in the military justice system, including presiding officers, charge-layers, assisting officers, and - for the first time - accused members. These interviews were conducted at the conclusion of the reporting period at selected bases/establishments across the country.

Prior to the advertised interview periods, a questionnaire was distributed to the chain of command in Victoria, Edmonton, Winnipeg, Shilo, St. Jean and Valcartier, with the goal of obtaining feedback from a sample group that spanned all three elements, and crossed both linguistic and geographic lines. CF members voluntarily completed this questionnaire, and ultimately a total of 134 members were interviewed in person at the above-noted locations by DLaw/MJP&R and the JAG CWO.

While this number represents a small sample of all military justice participants in a given reporting period, their answers were nevertheless very instructive in identifying areas where the military justice system is seen to be effective, and areas where there remains room for improvement. Given the careful methodology applied, and the confidential nature of the interviews, there is a high degree of confidence in the results obtained.

4.1 Rationale

The overall objective of the interviews was to obtain face-to-face feedback from a representative sample of military justice participants on the functioning of the military justice system. In particular, the interview questions focused on receiving relevant feedback in order to:

• determine the level of satisfaction with the military justice system and gauge its usefulness as a tool for both establishing and maintaining discipline;
• identify systemic and local concerns relating to the military justice system; and
• determine the general level of satisfaction with the legal support provided by unit level legal advisors and by Defence Counsel Services (DCS) when using the military justice system.

4.2 Findings

A. General

Based on the interviews, the following are key findings:

• The military justice system as a whole effectively meets the needs of the chain of command;
• The roles of the key players in the summary trial system are generally understood by most participants. However, further education on the role of the assisting officer is warranted;
• There is a desire for additional military justice training;
• The level of satisfaction with the legal support provided in relation to military justice matters is generally quite high; and
• Accused members generally perceive the summary trial system as fair.

B. Effectiveness of the Military Justice System

The majority of presiding officers and charge-layers interviewed expressed a positive view of the military justice system and took the view that the system is meeting the needs of the chain of command. These positive opinions were based in part on the improvements made to the system during the late 1990s. The focus placed on military justice training - and the increased opportunities for individuals to receive that training - have fostered a greater understanding of the military justice system within the CF community.

While the majority of responses were positive, concerns were nevertheless raised in relation to the timeliness of proceedings and the complexity of court martial and summary trial procedural requirements. It is worth noting at this point that the OJAG is currently working on regulatory amendments to continue to reduce delays in the system.

When asked to identify those areas within the military justice system that are working well, the most common answers provided were: the summary trial process, military justice training, and the legal support provided.

C. Assessment of the Summary Trial System

The presiding officer, charge-layer and assisting officer each play an important, but distinct, role in the summary trial process, and each must remain relatively independent of the others in order to ensure fairness and transparency throughout.

Presiding Officers

The officers who can exercise summary trial jurisdiction over CF members are the commanding officers, delegated officers and superior commanders. A commanding officer is normally in respect of an accused person, the commanding officer of the accused person, but may also include the officers described in QR&O article 101.01. A commanding officer has jurisdiction over officer cadets or NCM below the rank of warrant officer. A commanding officer may also delegate to a delegated officer his powers to try summarily an accused person under the commanding officer's command, but with limited powers of punishment. Finally, a superior commander may try an officer below the rank of lieutenant-colonel or an NCM above the rank of sergeant.

The presiding officers interviewed generally saw their role as an impartial trier of the facts presented during a summary trial. A number of presiding officers saw summary trials as an opportunity to educate, train and discipline not only the accused but also those members of the unit in attendance to watch the trial. Consistent with these views, many of the presiding officers interviewed make it a practice to have unit members attend each trial so that the unit members are provided with an opportunity to see how the military justice system works. They also see it as a way to further the sentencing goal of general deterrence where an accused is found guilty.

The presiding officers interviewed all expressed positive comments regarding the Presiding Officer Certification Training (POCT) course, which is a mandated pre-requisite for all presiding officers before they are permitted to conduct summary trials.³⁶ The knowledge gained during the POCT was found to be of great assistance during the actual conduct of summary trials, and in helping presiding officers gain a better understanding of military justice as a whole. One consistent theme raised by the presiding officers interviewed was the need for a mock trial (role-playing) to be built into the two-day course, or to be added on as a third day of training.

A minority of presiding officers felt uncomfortable with their role due to a lack of experience and/or the significant passage of time between their initial POCT and their first summary trial.³⁷ It was apparent that this lack of confidence led to a number of problems, including a disinclination to use the summary trial system, an over-reliance on the charge-layer to ensure that any charge coming before the presiding officer was going to be an admission of the particulars, and an over-reliance on the legal advisor to advise as to a specific sentence to impose, rather than advising on a reasonable range of appropriate sentences.

While these concerns were not expressed during the majority of the presiding officer interviews, they are still of concern given their potential impact on the effectiveness of the system. Accordingly, these minority perspectives must be noted for consideration and discussion during future training of presiding officers. These points have been passed to the Canadian Forces Military Law Centre (CFMLC) for incorporation into their future training plans.

Charge-Layers

Charge-layers are the following persons who are authorized to lay charges under the CSD: a commanding officer, an officer or an NCM authorized by a commanding officer to lay charges or an officer or an NCM of the Military Police assigned to investigative duties with the Canadian Forces National Investigation Service. Most of the charge-layers interviewed clearly understood their roles and were familiar with the applicable regulatory requirements. However, some participants felt that if a charge resulted in an acquittal, then the charge-layer would be seen as having failed to do his or her job correctly. In addition, some charge-layers stated that they would not lay a charge if there were a chance for acquittal, even if the charge-layer had an actual and reasonable belief that the accused committed the alleged offence.³⁸

The POCT course is not a pre-requisite for charge-layers to carry out this duty on behalf of their commanding officers, however many of the interviewees did attend that training. Those who took the two day course found it very useful. Charge-layers generally felt that some type of standardized training was essential to ensure that they were performing this important role in the manner required and in accordance with the law. To address these concerns, the JAG has recommended that a specific training program be developed by the CFMLC to enhance the formal training opportunities available to charge-layers across the CF.

Assisting Officers

The role of an assisting officer at summary trial is to guide the accused through the process, ensure that the accused has the appropriate information and evidentiary disclosure to adequately prepare and make informed decisions about his or her rights, and assist the accused in the preparation and presentation of the case - to the extent desired by the accused.³⁹ It is important to note that an assisting officer is not legal counsel, and does not fulfill the role of defending officer for the accused.

QR&O article 108.14 requires that an assisting officer be appointed for an accused as soon as possible after a charge is laid. Every effort is made to appoint the assisting officer chosen by the accused, as long as that person is available and willing to perform the role.

Interviews suggested that most assisting officers took a limited role in assisting the accused during the summary trial process. In some cases, this can be attributed to the accused deciding to take a more independent role in the preparation of his or her case. Responses suggested that in many instances, however, assisting officers felt ill-prepared to fulfill their duties. This was often attributed to insufficient training.

While a reference guide for assisting officers⁴⁰ setting out their role and key responsibilities is available on the Defence Internal Network, the OJAG recognizes that further training is warranted to ensure that this important function is carried out as effectively as possible. To that end, as first noted in the 2008-2009 annual report, the CFMLC has begun developing an Assisting Officer training package for CF personnel. The goal is to make this material available CF-wide as a self-study program on the DNDLearn system by the Fall of 2011.

Accused persons

Interestingly, accused members (predominantly represented by junior-ranking NCMs) stated that their experience with - and exposure to - the workings of the military justice system was quite limited, even after having been charged and tried. Recruit level training on military justice is basic in nature, and does not provide them with much in-depth understanding of the summary trial or court martial processes.

It is clear that more training on the military justice system is required at all levels. A concerted effort will be made, in cooperation with the CFMLC, to plan for the delivery of such additional training.

D. Adequacy of Legal Support

There is a very high level of satisfaction with the legal support provided to military justice system participants from the perspective of presiding officers, charge layers, assisting officers and accused persons. Presiding officers found that legal officers responded relatively quickly to their needs throughout summary trial proceedings. Interestingly, some participants noted that legal support on deployed operations was better in two significant ways.

First, legal support from a deployed legal officer was found to be timelier than from legal officers located on bases (referred to as unit legal officers), where the turn-around time on legal advice was notably slower. Second, deployed legal officers seemed to have a better understanding of the needs of the chain of command and were much more in tune with the ongoing disciplinary issues of the units in question.

These comments are not surprising, given the fact that deployed legal officers are typically embedded within a task force headquarters as the dedicated legal advisor, whereas unit legal officers are typically centralized as a lodger unit on a base, and might find themselves responding to legal support requests from (on average) ten to thirty separate CF units in a given geographic area. Nevertheless, unit legal officers are encouraged to visit, train and participate in operational exercises with these units to better familiarize themselves with the specific needs and challenges of each unique chain of command.

While charge-layers also felt that the legal advice provided to them was generally effective, they too distinguished between the nature of the legal advice received on operations and that received at home from unit legal officers. Some charge-layers found the advice given on operations to be more succinct, and the legal advice given at home in garrison to be more "legalistic". Much of this can likely be attributed to the fact that deployed operational environments legitimately demand (and receive) much faster turn-around time for legal support requests given the pace of operations. Legal opinions in such cases tend to focus less on the detailed elaboration of the underlying rationale for the opinion, and more on the legal "bottom line".

Assisting officers do not typically speak to base or unit legal officers when seeking assistance with their duties, as these individuals are the advisors for the chain of command, and would likely have advised on the charges the accused member in question is facing. To avoid a potential conflict of interest, assisting officers are therefore encouraged to contact DCS with their questions. When assisting officers did speak to legal officers within DCS, they reported that DCS personnel were interested and helpful in explaining the role of an assisting officer, and in aiding the accused through the process.

Most accused members recall being informed of their right to counsel, but many had no contact with DCS legal counsel or civilian lawyers. Those accused who did contact DCS counsel found them to be informative and useful.

E. Accused Perception of Fairness

Accused persons interviewed were notably positive about the military justice system and there was an overall view that they were fairly treated. They received timely disclosure, they had sufficient time to prepare for their elections (where applicable) and their summary trials, and they were provided reasonable opportunities to contact counsel. At their summary trials, their choice of language of trial was honoured and they were given opportunities to ask questions and present their positions.

Despite this, some accused stated that they had not been informed of their right to request a review of the findings or the sentence.⁴¹ Others indicated that they had been informed of their right to review, but not told that a review authority had no power to increase the punishment awarded at summary trial.⁴²

Although these points already feature in the military justice training provided to CF members, legal officers providing such training - and those advising presiding officers - will reiterate the requirement for presiding officers to make offenders aware of the existence and scope of the right of review.

4.3 Conclusion

As a whole, the participants in this process were very appreciative of the opportunity to meet with members of the OJAG on military justice issues and express their opinions of the military justice system. Each participant appeared comfortable in expressing his or her own personal experiences and views. Such comfort was increased by the fact that the interviews were confidential, with no personal attribution. The participants were encouraged to be part of an ongoing process to improve the effectiveness and fairness of the system.

Overall, the responses by the presiding officers, charge layers, assisting officers and accused were positive despite certain criticisms highlighted above. It is obvious that the participants care about the military justice system. This is particularly true with the summary trial system. All participants were interested in the questions posed during the interviews and were anxious to share their experiences, both good and bad. They saw the interviews as an opportunity to make the system better and were candid about areas that they felt needed improvement.

The OJAG will continue with interviews of military justice participants in the future to provide the JAG with valuable first-hand information to support his superintendence function. These interviews also demonstrate to the users of the military justice system that their experiences matter, and that their input helps to shape future changes.

Footnotes

³⁶ Supra note 26

³⁷ Ibid.

³⁸ QR&O 107.02 Note: A "reasonable belief" is a belief which would lead any ordinary prudent and cautious person to the conclusion that the accused is probably guilty of the offence alleged.

³⁹ QR&O 108.14 refers.

⁴⁰ The Election to be Tried by Summary Trial or Courts Martial - Guide for Accused and Assisting Officers (A-LG-050-000/AF-001) - available on the JAG website.

⁴¹ QR&O 108.45 refers. Offenders have the right to request a review of the finding and/or sentence imposed at summary trial, within 14 days of the completion of the proceedings.

⁴² A review authority acting under QR&O article 108.45 is an authority having the power to quash a finding of guilty, substitute a new finding for any finding of guilty, and alter a sentence imposed at summary trial (see article 116.02 - Review Authorities - Summary Trials and the notes to that article) and to suspend the carrying into effect of a punishment of detention (see article 114.02 - Authority to Suspend). Note that a review authority cannot substitute a new sentence higher on the scale of punishments in place of the one imposed at trial, or replace a not guilty finding with a guilty finding.