Chapter Three: The Canadian Military Justice System: Structure and Analysis of Statistics
This chapter describes the structure of the Canadian military justice system and analyzes key statistical information in the administration of military justice over the course of the reporting period.2
Canada’s Military Justice System
Canada’s military justice system is a separate and parallel system of justice that forms an integral part of the Canadian legal mosaic. It shares many of the same underlying principles with the civilian criminal justice system, and it is subject to the same constitutional framework including the Charter. On more than one occasion, the Supreme Court of Canada has directly addressed the requirement for a separate, distinct military justice system to meet the specific needs of the CAF.3
While the military justice system is equal and not subservient to the civilian justice system, it differs from its civilian counterpart in respect of some of its objectives. In addition to ensuring that justice is administered fairly and with respect for the rule of law, the military justice system is also designed to promote the operational effectiveness of the CAF by contributing to the maintenance of discipline, efficiency, and morale. These objectives give rise to many of the substantive and procedural differences that properly distinguish the military justice system from the civilian justice system.
The ability of the CAF to operate effectively depends on the ability of its leadership to instill and maintain discipline. This particular need for discipline in the CAF is the raison d’être of the military justice system. Indeed, while training and leadership are central to the maintenance of discipline, the chain of command must also have a legal mechanism that it can employ to investigate and sanction disciplinary breaches that require a formal, fair, and prompt response. As the Supreme Court of Canada observed in R. v. Généreux, “breaches of military discipline must be dealt with speedily and, frequently, punished more severely than would be the case if a civilian engaged in such conduct. [...] There is thus a need for separate tribunals to enforce special disciplinary standards in the military.
” The military justice system is designed to meet those unique requirements articulated by Canada’s highest court and recently reiterated in R. v. Moriarity.
The Structure of the Military Justice System
The Code of Service Discipline
The Code of Service Discipline, Part III of the NDA, is the foundation of the Canadian military justice system. It sets out disciplinary jurisdiction and provides for service offences that are essential to the maintenance of discipline and the operational effectiveness of the CAF. It also sets out punishments and powers of arrest, along with the organization and procedures of service tribunals, appeals, and post-trial review.
The term "service offence" is defined in the NDA as “an offence under this Act, the Criminal Code, or any other Act of Parliament, committed by a person while subject to the Code of Service Discipline.
” Thus, service offences include many disciplinary offences that are unique to the profession of arms, such as disobedience of a lawful command, absence without leave, and conduct to the prejudice of good order and discipline, in addition to more conventional offences that are created by the Criminal Code and other Acts of Parliament. The diverse scope of service offences that fall within the Code of Service Discipline permits the military justice system to foster discipline, efficiency and morale, while ensuring fair justice within the CAF.
Members of the Regular Force of the CAF are subject to the Code of Service Discipline everywhere and at all times, whereas members of the Reserve Force are subject to the Code of Service Discipline only in the circumstances specified in the NDA. Civilians may be subject to the Code of Service Discipline in limited circumstances, such as when accompanying a unit or other element of the CAF during an operation.
Investigations and Charge Laying Process
If there are reasons to believe that a service offence has been committed, then an investigation is conducted to determine whether there may be sufficient grounds to lay a charge. If the complaint is of a serious or sensitive nature, then the Canadian Forces National Investigation Service will examine the complaint and investigate as appropriate. Otherwise, investigations are conducted either by Military Police or, where the matter is minor in nature, at the unit level.
The authorities and powers vested in Military Police members, such as those of a peace officer, are conferred by the NDA, the Criminal Code and the QR&O. Amongst other duties, Military Police members conduct investigations and report on service offences that were committed, or alleged to have been committed by persons subject to the Code of Service Discipline. Military Police members are professionally independent in carrying out policing duties and, as such, are not influenced by the chain of command in order to preserve and ensure the integrity of all investigations.
If a charge is to be laid, then an officer or non-commissioned member having authority to lay a charge is required to obtain legal advice before laying a charge in those circumstances set out in article 107.03 of the QR&O. Those circumstances where pre-charge legal advice is required are where an offence that is not authorized to be tried by summary trial, is alleged to have been committed by an officer or a non-commissioned member above the rank of sergeant or, if a charge were laid, it would give rise to a right to elect to be tried by court martial. The legal advice must address the sufficiency of the evidence, whether or not in the circumstances a charge should be laid and, where a charge should be laid, the appropriate charge.
The Two Tiers of the Military Justice System
The military justice system has a tiered tribunal structure comprised of two types of service tribunals: summary trials and courts martial. The QR&O outline procedures for the disposal of a charge by each type of service tribunal.
Summary Trials
The summary trial is the most common form of service tribunal. It allows for less serious service offences to be tried and disposed of quickly at the unit level. Summary trials are presided over by members of the chain of command, who are trained and certified by the JAG as qualified to perform their duties as presiding officers in the administration of the Code of Service Discipline. All accused members are entitled to an assisting officer who is appointed under the authority of a commanding officer to assist the accused in the preparation of his or her case and during the summary trial.
After a charge is laid by an authorized charge layer, if it is determined that the accused can be tried by summary trial then, except in a certain circumstances, an accused person has a right to be offered an election to be tried by court martial.4 The election process was designed to provide the accused with the opportunity to make an informed choice regarding the type of trial to be held, bearing in mind that an accused who elects not to be tried by court martial is, in effect, waiving the right to be tried by that form of trial with full knowledge of the implications.
There are many differences between summary trials and courts martial. Courts martial are more formal and provide the accused more procedural safeguards than those available at summary trial, such as the right to be represented by legal counsel. The election process was designed to provide the accused with a reasonable opportunity to be informed about both types of tribunals in order to decide whether to exercise the right to be tried by court martial and to communicate and record their choice.
The jurisdiction of a summary trial is limited by factors such as the rank of the accused, the type of offence the accused is charged with and whether the accused has elected to be tried by court martial. In those cases that cannot be dealt with by summary trial, the matter is referred to the DMP, who determines whether the matter will be disposed of by court martial.
The disposition of charges by summary trial is meant to occur expeditiously. Accordingly, other than for two civil offences for which the limitation period is six-months5, a presiding officer may not try an accused person by summary trial unless the trial commences within one year after the day on which the service offence is alleged to have been committed.
The procedures at summary trial are straightforward and the powers of punishment are limited. This limitation reflects both the less serious nature of the offences involved, and the intent that the punishments be primarily corrective in nature.
Review of a Finding Made and/or Sentence Imposed at Summary Trial
All offenders convicted at summary trial have the right to apply to a review authority for a review of the findings, the punishment imposed, or both. The findings and/or punishment imposed at summary trial may also be reviewed on the independent initiative of a review authority. A review authority is a more senior officer in the chain of command of the officer who presided over the summary trial, as designated by the QR&O. A review authority may quash any findings made at summary trial, substitute any finding or punishment or may mitigate, commute or remit any punishment awarded at summary trial. Before making any determination, a review authority must obtain legal advice.
Courts Martial
The court martial – a formal military court presided over by a military judge – is designed to deal with more serious offences. Courts martial are conducted in accordance with rules and procedures similar to those of civilian criminal courts and have the same rights, powers and privileges as a superior court of criminal jurisdiction with respect to all “matters necessary or proper for the due exercise of [their] jurisdiction.
”6
The NDA provides for two types of court martial: General and Standing. These courts martial can be convened anywhere, in Canada and abroad. The General Court Martial is composed of a military judge and a panel of five CAF members. The panel is selected randomly by the Court Martial Administrator and is governed by rules that reinforce its military character. At a General Court Martial, the panel serves as the trier of fact while the military judge makes all legal rulings and imposes the sentence. Panels must reach unanimous decisions on any finding of guilt. At a Standing Court Martial, the military judge sits alone, makes any of the required findings and, if the accused person is convicted, imposes the sentence.
At a court martial, the prosecution is conducted by a military prosecutor under the authority of the DMP. The accused is entitled to be represented by defence counsel from the Directorate of Defence Counsel Services at no cost, or by civilian counsel at his or her own expense. The accused can also choose not to be represented by a lawyer.
Appeal of a Court Martial Decision
Decisions made at courts martial may be appealed by the person subject to the Code of Service Discipline or by the Minister or counsel instructed by the Minister to the Court Martial Appeal Court.7 The Court Martial Appeal Court is composed of civilian judges who are designated from the Federal Court of Canada and the Federal Court of Appeal, or appointed from the Superior Courts and Courts of Appeal of the provinces and territories.
Court Martial Appeal Court decisions may be appealed to the Supreme Court of Canada on any question of law on which a judge of the Court Martial Appeal Court dissents, or on any question of law if leave to appeal is granted by the Supreme Court of Canada.8
Analysis of Key Issues
Decrease in Number of Charges Tried by Summary Trial
Summary trials remain the most widely used service tribunal to deal with service offences under the Code of Service Discipline. In this reporting period there were 721 summary trials as compared to 47 courts martial. Therefore, almost 94 percent of all cases were disposed of at summary trial. A summary of the number of service tribunals divided between court martial and summary trial for the last two reporting periods can be found at Figure 3-1.
Figure 3-1: Distribution of Service Tribunals
| 2014-2015 | 2015-2016 | |||
|---|---|---|---|---|
| Amount | Percentage | Amount | Percentage | |
| Number of courts martial | 70 | 7.55 | 47 | 6.12 |
| Number of summary trials | 857 | 92.45 | 721 | 93.88 |
| Total | 927 | 100 | 768 | 100 |
During the reporting period, there were a total of 1078 charges that were disposed of at 721 summary trials. This is a decrease of 147 charges and 136 summary trials in comparison to the last reporting period. This downward trend in the number of charges that are disposed of at summary trial as well as the total number of summary trials has been a feature of the past several reporting periods. For example, the total number of charges laid that are tried by summary trial in the 2013/2014 and 2014/15 reporting periods were 1806 and 1225, respectively. The total number of summary trials in the 2013/2014 and 2014/15 reporting periods were 1162 and 857, respectively. Figure 3-2 shows the number of summary trials by year since 2011/12 and Figure 3-3 shows the number of charges disposed of at summary trial by year since 2011/12.
Figure 3-2: Number of Summary Trials
See table below for graph breakdown.
| Year 11-12 | Year 12-13 | Year 13-14 | Year 14-15 | Year 15-16 | |
|---|---|---|---|---|---|
| Number of Summary Trials | 1438 | 1248 | 1162 | 857 | 721 |
Figure 3-3: Number of Charges Disposed at a Summary Trial
See table below for graph breakdown.
| Year 11-12 | Year 12-13 | Year 13-14 | Year 14-15 | Year 15-16 | |
|---|---|---|---|---|---|
| Number of Charges Disposed | 1984 | 1721 | 1806 | 1225 | 1078 |
When looking at this trend by examining the number of summary trials broken down by command a significant decrease can be seen in the number of summary trials conducted by the Canadian Army. In this reporting period the total number of summary trials conducted by the Canadian Army was 334. This is a decrease in comparison to the 2013/2014 and 2014/15 reporting periods where there were 567 and 477 summary trials conducted by the Canadian Army, respectively. Examining this further by looking at specific regions, both 5th Canadian Division Support Base Gagetown and Garrison Petawawa have reported a decrease in the number of summary trials over the course of the last several reporting periods which accounts for roughly half of the decrease. For example, in this reporting period there were 84 summary trials conducted at 5th Canadian Division Support Base Gagetown. This is compared to 111 and 121 summary trials conducted in the 2014/15 and 2013/14 reporting periods, respectively. Similarly, there were 63 summary trials conducted at Garrison Petawawa this reporting period compared to 136 and 119 for the 2014/15 and 2013/14 reporting periods, respectively.
In contrast, the Royal Canadian Navy has seen a slight increase in the number of summary trials compared to the previous reporting period. This reporting period there were 184 summary trials conducted by the Royal Canadian Navy compared to 130 for the previous reporting period. The Royal Canadian Air Force has remained relatively constant with 78 summary trials in 2015/16 compared to 75 in the 2014/15 reporting period and 78 in the 2013/14 reporting period. Finally, the Chief of Military Personnel reported 74 summary trials this year in comparison with 84 summary trials in 2014/15 and 187 in 2013/14.
Figure 3-4 shows a chart containing the number of summary trials by command by year for the past two reporting periods.
Figure 3-4: Number of Summary Trials by Command
| Commands | 2014-2015 | 2015-2016 | ||
|---|---|---|---|---|
| Amount | Percentage | Amount | Percentage | |
| Vice Chief of the Defence Staff | 13 | 1.52 | 6 | 0.84 |
| Canada Joint Operations Command (CJOC) | 60 | 7.00 | 28 | 3.88 |
| Canada Special Operations Forces Command | 11 | 1.28 | 6 | 0.84 |
| Royal Canadian Navy | 130 | 15.17 | 184 | 25.52 |
| Canadian Army | 477 | 55.66 | 334 | 46.32 |
| Royal Canadian Air Force | 75 | 8.75 | 78 | 10.82 |
| Chief of Military Personnel | 84 | 9.80 | 74 | 10.26 |
| Assistant Deputy Minister (Information Management) | 1 | 0.12 | 6 | 0.83 |
| Assistant Deputy Minister (Material) | 1 | 0.12 | 1 | 0.14 |
| Assistant Deputy Minister (Public Affairs) | 1 | 0.12 | 1 | 0.14 |
| Assistant Deputy Minister (Infrastructure and Environment) | 0 | 0 | 1 | 0.14 |
| Canadian Forces Intelligence Command (CFINTCOM / CDI) | 4 | 0.12 | 2 | 0.27 |
| Total | 1162 | 100 | 827 | 100 |
A review of the number of charges that were disposed of by summary trial shows that there has been a decrease in the number of charges for specific offences such as absence without leave, under section 90 of the NDA as well as prejudice to good order and discipline under section 129 of the NDA.
The number of charges laid for the offence of absence without leave in this reporting period was 446. This is a decrease in comparison to the 2013/14 and 2014/15 reporting periods where the number of charges for absence without leave was 667 and 475, respectively. However, the percentage of charges for absence without leave compared to total number of charges has remained relatively consistent over the past several reporting periods (41.4 percent in 2015/16, 38.7 percent in 2014/15 and 36.9 percent in 2013/14).
The number of charges laid for the offence of conduct to the prejudice of good order and discipline in this reporting period was 294.9 Again, the downward in the number of charges for this offence is clear as the number of charges, excluding any charges for negligent discharges, for the offence of conduct to the prejudice of good order and discipline in the 2013/14 and 2014/15 reporting periods was 498 and 297, respectively. Yet, the percentage of charges for the offence of conduct to the prejudice of good order and discipline compared to total number of charges has also remained relatively consistent over the past several reporting periods (27.3 percent in 2015/16, 24.2 percent in 2014/15 and 27.6 percent in 2013/14). A complete summary of all charges tried by summary trial during this reporting period can be found in Annex A.
The exact reason for this trend is not known and will be the subject of further investigation. As discussed in Chapter Two, the Military Justice Division of the Office of the JAG will be developing a process for conducting military justice audits at the unit level that should assist in the analysis of why there has been a decrease in the number of charges laid that are tried by summary trial as well as the total number of summary trials. By visiting with various units across the CAF and speaking with key players in the military justice system at the unit level, members of the Military Justice Division of the Office of the JAG will be able to better identify why there has been an overall decrease in the number of summary trials.
As this initiative is launched, the number of charges laid that are tried by summary trial as well as the total number of summary trials will be closely monitored to determine whether these audits are having an impact on the administration of the Code of Service Discipline at the unit level.
Elections to be Tried by Court Martial
Pursuant to QR&O article 108.17, an accused person has the right to elect to be tried by court martial except where the accused has been charged with one of five minor service offences and the circumstances surrounding the commission of the offence are sufficiently minor in nature that the officer exercising summary trial jurisdiction over the accused concludes that a punishment of detention, reduction in rank or a fine in excess of 25 percent of monthly basic pay would not be warranted if the accused were found guilty of the offence. Those five minor offences are insubordinate behaviour, quarrelling, absence without leave, drunkenness or conduct or neglect to the prejudice of good order and discipline where the offence relates to military training, maintenance of personal equipment, quarters or work space, or dress and deportment.10
During the reporting period, accused members elected trial by court martial 51 times out of the 250 cases in which an election was offered, representing just over 20 percent of accused electing trial by court martial where an election was offered. The percentage of accused members electing trial by court martial has increased over the past few reporting periods as accused members have elected trial by court martial 18 percent (55 times out of 311 cases of an election being offered) in the 2014/15 reporting period and just over 15 percent (65 times out of 421 cases of an election being offered) in the 2013/14 reporting period. A summary of the number of elections to be tried by summary trial and court martial for the past two reporting periods can be found in Figure 3-5.
Figure 3-5: Elections to Court Martial offered to accused
| 2014-2015 | 2015-2016 | |||
|---|---|---|---|---|
| Amount | Percentage | Amount | Percentage | |
| Elections to be tried by summary trial | 256* | 82.3 | 199 | 79.6 |
| Elections to be tried by courts martial | 55 | 17.7 | 51 | 20.4 |
| Total | 311 | 100 | 250 | 100 |
* Includes one case where the accused elected summary trial but the matter was subsequently referred to court martial pursuant to QR&O article 108.16(1)a.iii.
Requests for Review
This reporting period, reviews were conducted based on a request for review made by a member found guilty at summary trial or on a review authority’s own initiative 11 times based on finding, 11 times based on sentence, and six times based on both finding and sentence. The results of these reviews were as follows: 12 of the original decisions were upheld; seven findings were quashed; three findings were substituted; two punishments were substituted; and, five punishments were mitigated, commuted or remitted. The overall number of reviews this reporting period (28) is significantly lower than the number of reviews during the last reporting period (52). However, the percentage of cases reviewed is just under four percent compared to approximately six percent from last year. Figure 3-6 shows the number and type of requests for review for the past two reporting periods. A summary of the decisions of the review authorities for the past two reporting periods can be found in Figure 3-7.
Figure 3-6: Types of Reviews
| 2014-2015 | 2015-2016 | |||
|---|---|---|---|---|
| Amount | Percentage | Amount | Percentage | |
| Reviews based on finding | 20 | 38.46 | 11 | 39.29 |
| Reviews based on sentence | 17 | 32.69 | 11 | 39.29 |
| Reviews based on finding & sentence | 15 | 28.85 | 6 | 21.42 |
| Total | 52 | 100 | 28 | 100 |
Figure 3-7: Decisions of Review Authority
| Types of Decisions | 2014-2015 | 2015-2016 | ||
|---|---|---|---|---|
| Amount | Percentage | Amount | Percentage | |
| Upholds decision | 16 | 30.77 | 12 | 41.38 |
| Quashes findings | 25 | 48.08 | 7 | 24.14 |
| Substitutes punishment | 3 | 5.77 | 2 | 6.90 |
| Substitutes findings | 0 | 0 | 3 | 10.34 |
| Mitigates / commutes / remits punishment | 8 | 15.38 | 5 | 17.24 |
| Total | 52 | 100 | 2911 | 100 |
Courts Martial
During this reporting period, there were a total of 47 courts martial - 40 Standing Courts Martial and seven General Courts Martial - representing just over six percent of all service tribunals. This is a significant decrease of 23 courts martial, or approximately 33 percent fewer courts martial, in comparison to the last reporting period where 61 Standing Courts Martial and nine General Courts Martial were held. The decrease in the number of courts martial appears to be related to the fact that there were only three sitting military judges for the entire reporting period compared to four for the majority of the previous reporting period.12 Figure 3-8 shows the number of courts martial by year since 2011/12.
Figure 3-8: Number of Courts Martial by Year
See table below for graph breakdown.
| Year 11-12 | Year 12-13 | Year 13-14 | Year 14-15 | Year 15-16 | |
|---|---|---|---|---|---|
| Number of courts martial | 62 | 64 | 67 | 70 | 47 |
This reporting period the average number of court days spent on contested trials doubled from an average of approximately five days per contested trial in the previous reporting period to an average of over ten days in court days per contested trial for this reporting period. However, it is unlikely that this contributed to the decrease in number of courts martial as there were fewer contested courts martial in this reporting period as compared to previous reporting periods. In this reporting period only 11 out of 47 courts martial were contested representing 23 percent of all courts martial. In the 2014/15 reporting period 48 percent of all courts martial were contested (34 out of 71) and in the 2013/14 reporting period 36 percent of courts martial were contested (24 out of 67). Therefore, the number of contested courts martial in this reporting period is significantly lower than in previous years.
This reporting period the average number of days from referral of a matter to the DMP until charges against an accused were preferred remained relatively constant in comparison to the previous reporting period. In the 2014/15 reporting period the average number of days it took to prefer charges once a file was referred to the DMP was approximately 54 days. In this reporting period that number increased to approximately 63 days.
However, the average length of time that it took to complete a court martial once charges against an accused were preferred decreased significantly. In this reporting period, the average number of days that it took to complete a court martial once charges were preferred was 138 days. In the 2014/15 reporting period, the length of time from preferral to the completion of the court martial was 185 days.
Of the 47 courts martial held during this reporting period, 41 accused persons were either found guilty or pleaded guilty to at least one charge and six were found not guilty of all charges. Figure 3-9 shows the disposition of all cases tried by courts martial for the past two reporting periods.
Figure 3-9: Disposition by Case
| Disposition | 2014-2015 | 2015-2016 | ||
|---|---|---|---|---|
| Amount | Percentage | Amount | Percentage | |
| Found/Plead Guilty of at least one charge | 55 | 77.46 | 41 | 87.23 |
| Not Guilty of all charges | 12 | 16.90 | 6 | 12.77 |
| Stay of all charges | 2 | 2.82 | 0 | 0 |
| Withdrawal of all charges | 2 | 2.92 | 0 | 0 |
| Total | 71 | 100 | 47 | 100 |
While only one sentence may be passed on an offender at a court martial, a sentence may involve more than one punishment. The 41 sentences pronounced by courts martial during the reporting period involved 69 punishments. A fine was the most common punishment, with 32 fines being imposed. Five punishments of imprisonment and four punishments of detention were also imposed by the courts. Of those 9 custodial punishments, two were suspended. This means, in the context of the Code of Service Discipline, that the offender does not have to serve out the sentence of imprisonment or detention as long as he or she remains of good behaviour during the period of the sentence. Figure 3-10 summarizes those sentences that were awarded at courts martial for the past two reporting periods.
Figure 3-10: Sentences at Court Martial
| Types of Sentences | 2014-2015 Amount |
2015-2016 Amount |
|---|---|---|
| Dismissal | 1 | 2 |
| Imprisonment | 6 | 3 |
| Imprisonment (suspended) | 2 | 2 |
| Detention | 4 | 4 |
| Detention (suspended) | 4 | 0 |
| Reduction in rank | 1 | 3 |
| Forfeiture of seniority | 0 | 0 |
| Severe reprimand | 18 | 10 |
| Reprimand | 13 | 13 |
| Fine | 39 | 32 |
| Minor punishments: Confinement to ship or barracks | 0 | 0 |
| Total | 88 | 69 |
Note: More than one type of punishment can be included in a sentence.
In this reporting period there were 12 Charter applications made in eight separate cases by an accused alleging that there was a violation of his or her Charter rights.13 This means that at least one Charter application was made in approximately 17 percent of all cases heard at court martial. Of those 12 applications, nine were dismissed by the military judge, one was withdrawn by the accused and the accused person was successful in establishing a Charter violation in two of those applications.14 In the previous reporting period there were a total of 16 Charter applications made in 15 separate cases representing at least one Charter application in approximately 21 percent of all cases heard at court martial.
Appeals to the Court Martial Appeal Court
During the reporting period, two new notices of appeal were filed with the Court Martial Appeal Court. Of those notices, both were initiated by the convicted person.15 Also, a third member filed a motion to extend the time to file his notice of appeal.
This reporting period, the Court Martial Appeal Court rendered two decisions, one appeal and one motion to quash. The appeal was the case of R. v. Cawthorne and the motion to quash was R. v. Gagnon and Thibault. Both of those decisions were appealed to the Supreme Court of Canada. They are discussed in detail in Chapter Four.
Appeals to the Supreme Court of Canada
This reporting period there was one request for leave to appeal to the Supreme Court by the Minister in the case of R. v. Gagnon and Thibault and one appeal by the Minister as of right in the case of R. v. Cawthorne. These cases are discussed in detail in Chapter Four.
Language of Proceedings
As an accused may choose to have his or her summary trial conducted in either official language, the presiding officer must be able to understand the official language in which the proceedings are to be conducted without the assistance of an interpreter. Should the presiding officer determine that he or she does not have the required language ability, then the presiding officer should refer the charge to another presiding officer who has the required ability.
In the 2014/15 Annual Report, it was reported that there were 13 instances where there was a discrepancy between the choice of language of proceedings by the accused and the language of the particulars of the offence as recorded on the Record of Disciplinary Proceedings. Notwithstanding these discrepancies, there were no reports of an accused CAF member tried by a service tribunal other than in the official language of their choice. This suggests that the discrepancy was limited to the language of the particulars of the offence and the choice of language of proceedings by the accused as recorded on the Record of Disciplinary Proceedings and did not affect the language of trial as selected by the accused.
During the 2015/16 reporting period, there was one instance where the particulars of a charge as recorded on the Record of Disciplinary Proceedings did not match the choice of language as selected by the accused. However, despite this discrepancy, the CAF member was tried in the official language of his choice.
Sexual Misconduct
In the 2014/15 Annual Report, it was reported that summary trial statistics related to "offences of a sexual nature" pursuant to section 129 of the NDA were not specifically included in the breakdown of section 129 offences of that annual report. Although the determination of whether a specific charge is one that is of a sexual nature or not is not always clear as it may involve an element of subjective interpretation of the particulars of a charge, improvements to the summary trial database now allow better tracking and reporting of such offences.
For the purposes of tracking in the summary trial database, all offences of a sexual nature are characterized as either sexual misconduct, which is defined as offences related to either sexual harassment, or ones involving improper personal relationships. Over the course of the upcoming reporting period further study will be undertaken to determine whether this method of tracking offences of a sexual nature meets the intended aim with a view to examining whether any improvements can be made to enhance reporting in this area.
In this reporting period there were 12 charges related to sexual harassment and 12 charges involving improper personal relationships that were disposed of at summary trial. At court martial there were four charges of sexual assault, nine charges for conduct to the prejudice of good order and discipline for sexual harassment, one charge of possession of child pornography and one charge of accessing child pornography.
Footnotes
2 The statistics reported and discussed in this report are current as of 18 May 2016.
3 R. v. Généreux, [1992] 1 S.C.R. 259; Mackay v. R., [1980] 2 S.C.R. 370 at 399; R. v. Moriarity, [2015] 3 S.C.R. 485.
4 An accused does not have the right to elect his or her mode of trial in two instances. First, where the accused has been charged with one of five minor service offences and the circumstances surrounding the commission of the offence are sufficiently minor in nature that the officer exercising summary trial jurisdiction over the accused concludes that a punishment of detention, reduction in rank or a fine in excess of 25 percent of monthly basic pay would not be warranted if the accused were found guilty of the offence. Second, where the charges are more serious in nature and require a direct referral to court martial.
5 See Note (B) to article 108.05 of the QR&O.
6 See section 179 of the NDA.
7 The Minister has instructed the DMP to act on his behalf for appeals to the Court Martial Appeal Court and the Supreme Court of Canada.
8 As will be described in Chapter Four, the Minister’s right of appeal to the Court Martial Appeal Court and to the Supreme Court of Canada was challenged in R. v. Gagnon and Thibault and R. v. Cawthorne. In these cases, counsel for the accused persons applied to have the appeals dismissed on the grounds that the right to appeal must be attributed to an independent prosecutor and that it is contrary to sections 7 and 11(d) of the Charter to confer the right to appeal to the Minister. The cases were jointly heard at the Supreme Court of Canada on April 25, 2016 and the judgement was taken under reserve.
9 This number does not include any charges for negligent discharges that were laid pursuant to section 129 of the NDA. Following the court martial decisions in R. v. Nauss, 2013 CM 3008 and R. v. Brideau, 2014 CM 1005, the number of charges for negligent discharges pursuant to section 129 of the NDA decreased significantly in subsequent reporting periods. Therefore, so as to provide an accurate picture of the decrease in the number of charges for conduct to the prejudice of good order and discipline it was determined that those charges for negligent discharges would have to be excluded in order to properly capture the downward trend for remaining charges pursuant to section 129 of the NDA.
10 An accused will also not have the right to choose between summary trial and court martial in those circumstances where the charges are more serious in nature and require a direct referral to court martial. During this reporting period there were 28 direct referrals where the matter was referred to court martial without an accused having the right to elect trial by court martial.
11 In one request for review made by a member found guilty at summary trial, the review authority took two separate decisions on two different charges for which the member was found guilty.
12 Colonel Michael Gibson was appointed to the Ontario Superior Court of Justice on 5 February 2015
13 This statistic only reflects the number of Charter applications made in those cases where the court martial was completed by the end of the reporting period.
14 In R. v. Korolyk, the accused successfully argued that subsection 129(2) of the NDA was unconstitutional as it violated her right to be innocent until proven guilty as guaranteed by section 11(d) of the Charter. In R. v. Levi-Gould, the accused successfully argued that subsection 157(1) of the NDA violated his rights under sections 7 and 8 of the Charter which protect his rights to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice as well as his rights to be secure against unreasonable search or seizure. Both of these cases are discussed in detail in Chapter Four.
15 The applications were filed by Petty Officer Second Class Blackman and Second Lieutenant Soudri who both challenged the legality of the finding made at court martial.
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