ARCHIVED - Chapter 4: Military Justice: The Year in Review 2011-12

The Honourable Justice Thomas Cromwell of the Supreme Court of Canada with the JAG, after Justice Cromwell’s lecture to the JAG Branch during the Continuing Legal Education conference in October 2011.

The 2011-2012 reporting period has been an active time for Canadian military justice, with important advancements made to improve the effectiveness and fairness of the military justice system. This chapter discusses the events and initiatives that had a significant impact on the evolution of the military justice system during the 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 (JAG).

Important Judicial Decisions

R v. St-Onge

The case of Ex-Private (Ex-Pte) St-Onge is notable as a court martial decision that was appealed to the Supreme Court of Canada (SCC), which ultimately upheld the military judge’s original finding.

At a Court Martial in March 2008, Ex-Pte St-Onge pleaded guilty to possession of marijuana, possession of property obtained through the commission of a service offence, insubordination, and two counts of conduct to the prejudice of good order and discipline. He was sentenced to 30 days of imprisonment. Ex-Pte St-Onge appealed his conviction on possession of marijuana and his sentence to the Court Martial Appeal Court (CMAC). The CMAC allowed the appeal on the sentence, substituting a new sentence of a $3000 fine. The majority of the court found, given that Ex-Pte St-Onge was no longer a Canadian Armed Forces (CAF) member at the time of his court martial, imprisonment was not the most appropriate and least intrusive sanction available to the military judge. One appellate judge, however, dissented. Influenced by the recent judgment of the SCC in R. v. Nasogaluak, the dissenting judge was not satisfied that the military judge abused his discretion or that he erred in law. The Minister appealed the CMAC decision, as of right, to the SCC. In April 2011, the SCC adopted the reasons of the dissenting CMAC judge, overturning the CMAC decision and restoring the original sentence of 30 days of imprisonment.

R v. LeBlanc

The CMAC’s ruling in R v. LeBlanc has led to legislative amendments to the National Defence Act (NDA) and the Queen’s Regulations and Orders for the Canadian Forces (QR&O) with respect to the security of tenure of military judges.

Corporal (Cpl) LeBlanc was convicted at Standing Court Martial on 5 February 2010 of negligent performance of military duty, and was sentenced to a $500 fine. He appealed his conviction. On 2 June 2011, the CMAC, though dismissing Cpl LeBlanc’s appeal of the guilty verdict and application for a stay of proceedings, unanimously held that the applicable provisions of the NDA and QR&O dealing with the appointment and retirement of military judges did not sufficiently respect judicial independence as required by paragraph 11(d) of the Canadian Charter of Rights and Freedoms. Under section 165.21 of the NDA, military judges held office for renewable five-year terms and the QR&O provided discretionary powers to the Minister of National Defence to extend the retirement age for officers, including military judges. The CMAC stated that the current scheme of five-year renewable terms for military judges had the potential to undermine the freedom of an individual military judge to decide a case without influence from others, and almost assuredly, to raise a reasonable apprehension in a reasonable and right minded person that this independence may be undermined by the external interference of the Minister. The CMAC declared certain NDA and QR&O provisions constitutionally invalid and inoperative, but suspended the declaration of invalidity and its coming into force for a period of six months to allow remedial legislation to be enacted. In response to this CMAC decision, the government introduced Bill C-16, the Security of Tenure of Military Judges Act, was debated in Parliament and received Royal Assent on 29 November, 2011.

R v. Wilcox

The Wilcox court martial is a notable example of the military justice system’s jurisdiction over CAF members who are charged for homicides committed outside Canada.

Ex-Cpl Wilcox was originally convicted at General Court Martial in July 2009 of criminal negligence causing death and negligent performance of a military duty for events taking place on 6 March, 2007 in Kandahar Airfield (Afghanistan), where he shot a fellow soldier in the chest, thus causing his death. As a result, he was sentenced to four years imprisonment and to dismissal from Her Majesty’s Service. In October 2010, the CMAC set aside the convictions and ordered a new trial, based on the agreement of the parties that the trial commenced and held by a panel of only four members had at least a potentially substantial effect on the fairness of the trial and that a new trial was warranted. A new court martial was held and in November, 2011, Ex-Cpl Wilcox was convicted of criminal negligence causing death and negligent performance of a military duty and sentenced to four years imprisonment, this being the minimum sentence prescribed by law for the offence of criminal negligence causing death, when a firearm is used.

Legislative Initiatives

The Office of the JAG played a significant role in advancing legislative initiatives as well as policy and practice initiatives during the reporting period.

Bill C-15: Strengthening Military Justice in the Defence of Canada Act

Bill C-15 is the successor to Bill C-41, which died on the order paper when Parliament was dissolved in March 2011. Like its predecessor, Bill C-15 represents the most comprehensive change to Canada’s military justice system since the enactment of Bill C-25 in 1998. Based on the report of the former Chief Justice of the Supreme Court of Canada, the late Right Honourable Antonio Lamer, and the report of Standing Senate Committee on Legal and Constitutional Affairs, “Equal Justice: Reforming Canada’s System of Courts Martial”, the Bill’s proposed amendments would further enhance 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 addresses the practical needs of the military justice system by allowing for the formation of a panel of Reserve Force military judges and reducing the distinctions based on rank when determining the composition of a court martial panel. Furthermore, the Bill clarifies the position and delineates the responsibilities of the Canadian Forces Provost Marshal (CFPM) and allows for a more effective resolution processes for grievances and complaints involving the Military Police. The Bill was introduced in the House of Commons on 7 October, 2011 and the first reading of the Bill was completed at the close of the reporting period.

Bill C-16: Security of Tenure of Military Judges Act

Bill C-16 (now S.C. 2011, c.22), the Security of Tenure of Military Judges Act, was introduced on 7 October, 2011, in response to the CMAC’s judgment in the case of R. v. LeBlanc. In its decision, the CMAC determined that existing provisions of the NDA and QR&O regarding the appointment and retirement of military judges did not sufficiently respect judicial independence as required by paragraph 11(d) of the Charter. In response, the Minister of National Defence (MND) introduced Bill C-16 in order to enhance security of tenure for military judges. Bill C-16 provides that a military judge hold office during good behaviour until attaining the age of 60, unless the military judge resigns from office or is released from the CAF. By establishing clear parameters for the tenure of military judges, the Bill has enhanced their independence in a way that respects Charter requirements. The Bill received Royal Assent on 29 November, 2011. In addition, several key QR&O amendments were made expeditiously to respond fully and give effect to the CMAC decision in R. v. Leblanc and Bill C-16.

Policy and Practice Initiatives

Second Independent Review Authority

Bill C-25 (S.C. 1998, c.35), An Act to amend the National Defence Act and to make consequential amendments to other Acts, which was passed in 1998, requires the 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 as well as to conduct a review of Bill C-60 (S.C. 2008, c.29). Bill C-60 was passed by Parliament in 2008 as a result of the CMAC decision in Trépanier. The purpose of Bill C-60 was to amend the NDA to establish a legal framework that will govern the selection of mode of trial by court martial by operation of law rather than pursuant to the direction of the Director of Military Prosecutions (DMP).

Between May and August 2011, the Second Independent Review Authority made ten visits to CAF Bases and Wings across Canada to meet with individuals who had comments about the matters under review, and to receive feedback on how the changes made by Bill C-25 and Bill C-60 are functioning. In addition, Justice LeSage met with senior officials of the Office of the JAG, the DDCS, the DMP, military judges, and the Chief of the Defence Staff, among others. The Office of the JAG worked to ensure that Justice LeSage had unrestricted access to the information and individuals necessary to carry out his review.

On 8 June 2012, the Minister of National Defence tabled in Parliament the independent report of Mr. Justice LeSage. The results of the Justice LeSage’s review will be discussed in subsequent Annual Reports.

Military Police Command and Control

In April 2011, the Canadian Forces Provost Marshal (CFPM) assumed full command and control of all military police directly involved in policing. This important change to the command structure of Canada’s military police was instituted to safeguard the independence of police investigations and to promote accountability, transparency and credibility. The Office of the JAG maintains its ongoing commitment to supporting the CFPM in this endeavour, helping to ensure that the military police remain an effective component of the military justice system.

A Legal adviser and mentor assisting videographers creating a recruiting video for the evolving Afghan National Army’s legal branch.

Strategic Legal Engagement

Canada is widely recognized as having one of the fairest and most effective military justice systems in the world. Many other states have looked to Canada as an example to emulate in making improvements to their own military justice systems. Likewise, the Office of the JAG maintains a current awareness of developments and innovations in military justice in other countries in order to inform the further evolution of our own system. As part of this ongoing process of strategic legal engagement, members of the Office of the JAG participated in international military justice conferences, visited their counterparts in the United States and Australia, and hosted a visiting delegation of Vietnamese parliamentarians who were in Canada to study our military justice system. In addition, two JAG legal officers provided a three-day seminar on military justice issues to officers of Kenya and Tanzania. Two other legal officers participated in a seminar with military justice officials in Albania.

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