ARCHIVED - Chapter 4: Military Justice: The Year in Review

R. v. Szczerbaniwicz

The case of Lieutenant-Colonel (LCol) Szczerbaniwicz is notable as a court martial decision that was appealed to the Supreme Court of Canada (SCC). The SCC ultimately upheld the military judge’s original finding.

LCol Szczerbaniwicz was convicted at Standing Court Martial of common assault arising from a domestic altercation with his estranged spouse. He appealed the conviction on the grounds that, amongst other things, the military judge misconstrued the law with respect to the defence of property and the use of excessive force. On 5 May 2009, the majority of the CMAC dismissed the appeal, with one judge dissenting on the issue of the defence of property.

LCol Szczerbaniwicz appealed, as of right, to the SCC. On 6 May 2010, the SCC dismissed the appeal. The majority of the court found that the military judge had not erred and that LCol Szczerbaniwicz had employed excessive force to rely upon the defence of protection of property.

Legislative and Regulatory Initiatives

Bill C-41: Strengthening Military Justice in the Defence of Canada Act

Bill C-41 would have represented the most comprehensive proposed revision of Canada’s military justice system since Bill C-25 in 1998. Based on the report of the former Chief Justice of Canada, the late Right Honourable Antonio Lamer, and the report of Standing Senate Committee on Legal and Constitutional Affairs (SCOLCA), “Equal Justice: Reforming Canada’s System of Courts Martial”, the Bill’s proposed changes would have further ensured the fairness of the military justice system by providing for greater independence for military judges and granting them a wider range of sentencing options including absolute discharges, intermittent sentences, and restitution. The Bill also addressed the practical needs of the military justice system by allowing for the formation of a panel of Reserve Force military judges and expanding the pool of CAF members eligible to sit on a court martial panel. Furthermore, the Bill clarified the position and delineated the responsibilities of the Canadian Forces Provost Marshal (CFPM) and allowed for more effective resolution processes for grievances and complaints involving the Military Police. Bill C-41 reached Report Stage back to the House of Commons after consideration by the Standing Committee on National Defence, but died on the Order Paper when Parliament was dissolved on 26 March 2011 upon the calling of an election.

Bill S-2: Protecting Victims from Sex Offenders Act

Bill S-2: Protecting Victims from Sex Offenders Act (S.C. 2010, c.17) makes a number of amendments to the national registry of sex offenders created by the Sex Offender Information Registry Act (SOIRA). In particular, under the provisions of the Bill, individuals found guilty of a sexual offence under the CSD are now automatically registered in the national registry, and samples of their DNA are taken for forensic analysis. The Office of the JAG worked with Public Safety Canada and Justice Canada to make the necessary amendments to the NDA and Queen’s Regulations and Orders for the Canadian Forces.

Policy Initiatives

Detention Barrack Regulations

Rehabilitation is an essential aim of military justice. The goal of the system is not simply to punish wrongdoers, but to rehabilitate them into valuable members of the CAF. The Canadian Forces Service Prison and Detention Barracks (CFSPDB) enables the CAF to achieve this aim. Working in conjunction with the CFPM, the Office of the JAG has initiated a revision and modernization of the CAF’s detention barrack regulations. This is the first review of the rules since they came into force in 1967. The proposed changes to the regulations include amendments to enhance compliance with the Charter of Rights and Freedoms.

Delay Regulations and Practices

The ability to deal with a case in an efficient, timely manner is one of the hallmarks of an effective military justice system. The Office of the JAG is continuing its work to improve the efficiency of the military justice system by studying options for new regulations and practices to reduce unnecessary delays from the various actors in the military justice system.

Mental Health Issues and PTSD

Recent years have seen a growing awareness of the unique challenges posed by mental health issues in the CAF and military justice system, particularly issues surrounding operational stress injuries, including Post-Traumatic Stress Disorder (PTSD). The Office of the JAG is engaged in an ongoing effort to better understand these challenges and develop solutions that serve the needs of both the chain of command and individual CAF members.

Second Independent Review Authority (SIRA)

Bill C-25 requires the Minister of National Defence (MND) to conduct an independent review of the provisions and operation of the Bill every five years, and to table a report of the review in Parliament. On 25 March, 2011, the MND appointed the Honourable Patrick J. LeSage, retired Chief Justice of the Ontario Superior Court of Justice, to conduct the second independent review of Bill C-25 (S.C. 1998, c.35), as well as to conduct a review of Bill C-60 (S.C. 2008, c. 29). The SIRA will visit CAF bases across Canada to meet with individuals who have comments about the subjects under review, and to receive feedback on how the changes made by Bill C-25 and Bill C-60 are functioning. The Office of the JAG worked to ensure that SIRA had unrestricted access to the information and individuals necessary to carry out his review. The results of the SIRA review will be discussed in subsequent Annual Reports.

Military justice continuously evolves in order to remain consistent with changes in military and societal justice expectations, and in the criminal law. However, the system’s commitment to the promotion of the rule of law and maintenance of discipline within the Canadian Armed Forces (CAF) remains constant.

This chapter discusses the events and initiatives that had the greatest impact on the evolution of the military justice system in the course of the 2010-2011 reporting period, including important court martial and appeal cases, legislative and regulatory initiatives and policy initiatives undertaken by the Office of the Judge Advocate General.

Important Court and Tribunal Cases

R. v. Semrau

The Semrau court martial is notable for its high public profile and the seriousness of the charges involved. This proceeding visibly illustrated that the military justice system is transportable. It demonstrated the reach of the Code of Service Discipline (CSD). It involved allegations of acts, that if proven would constitute criminal homicide, that fall within the parameters of a service offence since they were alleged to have been committed outside of Canada. It showed the importance of having deployable service tribunals, specifically courts martial that are capable of travelling to operational theatres in circumstances of armed conflict to hear evidence that might not otherwise have been brought before a court in Canada.

Second Lieutenant (2Lt) Semrau (at the time a Captain) was a member of the Operational Mentoring and Liaison Team assigned to the 2nd Kandak (Battalion) of the Afghan National Army (ANA). On 19 October 2008, during a patrol in Helmand Province, 2Lt Semrau was alleged to have fired his rifle into the body of a severely wounded suspected Taliban insurgent.

Following an investigation by the Canadian Forces National Investigation Service, 2Lt Semrau was arrested on 30 December 2008, retained in custody, and repatriated back to Canada. On 17 September 2009, four charges were preferred by the Director of Military Prosecutions against 2Lt Semrau: second degree murder, attempt to commit murder with a firearm, cruel or disgraceful conduct and negligent performance of duties. As part of the proceedings, the ensuing court martial spent two weeks in Afghanistan hearing testimony from a number of witnesses.

On 19 July 2010, 2Lt Semrau was convicted of disgraceful conduct, but acquitted of second degree murder attempted murder and negligent performance of duties. On 5 October 2010, he was sentenced to dismissal from Her Majesty’s service and a reduction in rank from Captain to 2Lt.

R. v. Wilcox

R. v. Wilcox is another case involving a CAF member facing serious charges as the result of a death that occurred in Afghanistan.

On 6 March 2007, Corporal (Cpl) Megeney and Ex-Cpl Wilcox were working at Kandahar Airfield in Afghanistan where they shared an accommodation tent. On that day, a shot was heard coming from their tent, and Ex-Cpl Wilcox was found holding the body of Cpl Megeney, who had a single gunshot wound to the chest from which he eventually died.

Ex-Cpl Wilcox was charged with three offences under the CSD: manslaughter, criminal negligence causing death, and negligent performance of a military duty. On 30 July 2009, Ex-Cpl Wilcox was found guilty by a General Court Martial of criminal negligence causing death and negligent performance of a military duty and was sentenced to four years of imprisonment and dismissal from Her Majesty’s Service. Ex-Cpl Wilcox appealed both the finding and the sentence imposed. At the appeal, questions were raised regarding the composition of the court martial panel that convicted him and on 7 December 2009, the CMAC set aside the convictions, ordering a new trial. The same charges were preferred again on 29 October 2010 and on 14 February 2011, the Court Martial Administrator convened a Standing Court Martial to begin on 26 April 2011. The results of this court martial will be discussed in next year’s annual report.

Military Justice Issues During Operations

The need for portability and deployability of the military justice system creates a unique set of challenges. In order to ensure the system is capable of maintaining discipline and delivering justice in the often austere conditions of overseas deployments, the Office of the JAG is seeking to clarify the roles and jurisdictions of participants in the system. In particular, the Office of the JAG is working to develop policies regarding the delegation of commanding officers’ authority to preside over summary trials and lay charges.

Military Justice Training Material

Throughout the reporting period, the Office of the JAG has been working with the Canadian Defence Academy and the Military Law Centre to update military justice training material to ensure it keeps pace with the evolving military justice system. In particular, training material was revised to take into account changes brought about by Bill C-60 (S.C. 2008, c. 29).