Chapter Three: Military Justice: Jurisprudence and Policy Initiatives

This chapter highlights key jurisprudence with broad impact from the reporting period, as well as legislative and regulatory developments.

Jurisprudence – Supreme Court of Canada

Minister’s right of appeal held to be constitutional – R. v. Cawthorne, R. v. Gagnon and R. v. Thibault, 2016 SCC 32

The panel of a general court martial found Ordinary Seaman (OS) Cawthorne guilty of two child pornography offences under section 130 of the NDA. He appealed the decision to the CMAC, which found that a mistrial should have been granted because of issues regarding answers provided by a witness at trial. Consequently, the CMAC ordered a new trial. The Minister appealed this decision to the Supreme Court of Canada and OS Cawthorne sought to quash the appeal on the basis that the Minister’s right to appeal to the Supreme Court under subsection 245(2) of the NDA violates sections 7 and 11(d) of the Charter.

In two separate trials, Warrant Officer (WO) Gagnon and Corporal (Cpl) Thibault were each charged with sexual assault. WO Gagnon was found not guilty by a General Court Martial. Cpl Thibault made a plea in bar of trial, claiming insufficient nexus with military service, which was allowed by the military judge. In both cases, the Minister appealed to the CMAC.30

WO Gagnon and Cpl Thibault each brought motions to quash the appeal on the basis that the Minister’s right to appeal to the CMAC pursuant to section 230.1 of the NDA violates section 7 of the Charter. In its decision, the CMAC determined that section 230.1 of the NDA violated the right to an independent prosecutor, which is a principle of fundamental justice under section 7 the Charter, and declared the provision invalid. However, the CMAC dismissed the respondents’ motions to quash because to do so would be a consequence disproportionate to the societal interest in a determination of the merits of the appeals. Instead, the court adjourned the hearing of the appeals until after the six-month suspension period for the declaration of invalidity of section 230.1 of the NDA. The Minister appealed this decision to the Supreme Court of Canada.

The Supreme Court agreed that the power conferred on the Minister pursuant to ss. 230.1 and 245(2) of the NDA may effect a deprivation of liberty such that section 7 of the Charter is engaged. The Court recognized that prosecutors must not act for improper purposes, such as purely partisan motives, as a constitutional principle. A prosecutor, whether it be the Attorney General, a Crown prosecutor, or the Minister exercising a prosecutorial function, has a constitutional obligation to act independently of partisan concerns and other improper motives.

The Court found that the Minister, like any Attorney General, is entitled to a strong presumption that the exercise of prosecutorial discretion is independent of partisan concerns. The Minister’s membership in Cabinet does not displace that presumption. The Court found no compelling reason to treat the Minister differently from any Attorney General, also a member of Cabinet, in which the law presumes that he or she can and does set aside partisan duties in exercising prosecutorial responsibilities required of the position. Accordingly, the Court found that the right of appeal conferred on the Minister in sections 230.1 and 245(2) of the NDA does not violate sections 7 or 11(d) of the Charter.

As a result of the combination of the Supreme Court’s constitutional decision and its determination that the majority of the CMAC had erred in quashing them, the convictions and sentence entered against OS Cawthorne at court martial were reinstated. The matters against WO Gagnon and Cpl Thibault were remitted to the CMAC for a hearing of the appeals on their merits and in light of the finding that section 230.1 of the NDA is constitutional.

Jurisprudence – Court Martial Appeal Court

Paragraph 130(1)(a) of the NDA does not violate section 11(f) of the CharterR. v. Royes, 2016 CMAC 1

Master Corporal (MCpl) Royes was convicted in 2013 of one count of sexual assault, stemming from an incident that took place in Wainwright, Alberta in 2012. He appealed to the CMAC on both the legality of the guilty verdict and the constitutionality of paragraph 130(1)(a) of the NDA. The court severed the appeal and heard each basis of appeal separately. In 2014 the CMAC dismissed the appeal with respect to the legality of the guilty verdict. In June 2016, the CMAC dismissed all grounds of appeal on the constitutionality of the NDA, holding that paragraph 130(1)(a), interpreted without a military nexus does not violate section 11(f) of the Charter. As a result, the 36 month sentence imposed by court martial in 2013 was upheld.

Seeking to narrow the application of the Supreme Court’s decision in R. v. Moriarity31, MCpl Royes argued that absent the requirement of a military nexus, paragraph 130(1)(a) was overbroad and violated section 11(f) of the Charter. The CMAC concluded that the Supreme Court’s decision in Moriarity effectively dictates that paragraph 130(1)(a) of the NDA does not violate section 11(f) of the Charter for overbreadth. The Supreme Court of Canada’s decision corrected the CMAC’s past approach to the question of overbreadth and determined that, properly interpreted, paragraph 130(1)(a) does not contain a military nexus requirement and even without this requirement the provision is not overbroad.

MCpl Royes applied for leave to appeal to the Supreme Court Canada. That application was denied on February 2, 2017.

On 26 April 2016, while the case of MCpl Royes was on reserve, a different panel of the CMAC heard a further 11 appeals where all accused similarly argued that their section 11(f) Charter rights had been violated. The decision of the court has been reserved and by the time of publication no decision has yet been rendered.

Jurisprudence – Court Martial

Right to be Tried Within a Reasonable Time - R. v. Thiele, 2016 CM 4015

In June of 2014, Leading Seaman (LS) Thiele assisted another CAF member to purchase oxycodone and cocaine by putting her in touch with a known dealer. Subsequently, the other CAF member reported to the military police that LS Thiele was trafficking drugs. This CAF member eventually became a police agent for the military police in relation to an investigation targeting LS Thiele.

Shortly thereafter, this CAF member informed the accused that she had a friend who wanted to purchase drugs. Unbeknownst to the accused, the friend was an undercover officer (UCO) with the military police. When LS Thiele and the UCO were put in touch, the accused facilitated the purchase of three grams of cocaine for the UCO. A subsequent transaction was later arranged between the accused and the UCO for the purchase of heroin. At a public parking lot, the UCO gave the accused $1800 following which the accused left the vehicle and returned with two bags of a substance later confirmed to be 7.5 grams of heroin. The accused was arrested upon completion of that transaction and was charged with three drug-related offences contrary to s. 130 of the NDA.

After 23 months and 7 days of delay due in part to each party, the matter was brought to trial, where the accused made a preliminary application alleging breach of his Charter right to be tried within a reasonable time. In his decision, the military judge acknowledged that the military justice system was not the object of the decision of the Supreme Court of Canada in R. v. Jordan32, but persons subject to the Code of Service Discipline are not second class citizens and should benefit from developments in the law regarding that issue. Their rights guaranteed by the Charter are the same as any other accused before any other court in Canada.

The court found the presumptive ceiling of 18 months as set out in Jordan applied as the upper limit for those cases that are tried within the military justice system. Applying those guidelines set out in Jordan to the case at hand, the military judge ruled that despite the fact that it took more than 23 months to bring the matter to trial, approximately six months of that delay was attributable to the defence. Once this was subtracted from the overall delay, the military judge found that the time between the laying of the charge and trial was less than 17 months and fell below the presumptive ceiling. The application was dismissed and the accused subsequently pleaded guilty to all charges.

Following a sentencing hearing where the prosecution and defence proceeded by a joint submission, the accused was sentenced to 15 months imprisonment less two days for time served in pre-trial custody. The accused was also prohibited from possessing any firearm or other weapon for a period of ten years and was ordered to provide bodily substances for forensic DNA analysis pursuant to section 196.14 of the NDA.

Sexual offences – R. v. Beaudry, 2016 CM 4010

Corporal (Cpl) Beaudry was tried for sexual assault causing bodily harm and for overcoming resistance by choking. Despite repeated refusals, Cpl Beaudry engaged in non-consensual sexual intercourse with the victim while grabbing her throat.

Cpl Beaudry was convicted on the sexual assault charge and was found not guilty on the charge of overcoming resistance. In determining an appropriate sentence, the military judge held that the offender's behavior was unacceptable, both within society and the CAF. The accused was sentenced to imprisonment for 42 months and dismissal from Her Majesty's service. In addition, there was an order authorizing the taking of number of samples of bodily substances, to comply with the Sex Offender Information Registration Act, and a prohibition from him from possessing any weapons for 10 years.

Cpl Beaudry filed a Notice of Appeal and a motion to seek release at the CMAC. The court dismissed the motion for release pending appeal and heard the appeal on the merits on February 23, 2017. A decision on the appeal has yet to be rendered.

Derogatory Comments – R. v. Crabtree-Megahy, 2017 CM 1002

Corporal (Cpl) Crabtree-Megahy was charged with one count of conduct to the prejudice of good order and discipline under s. 129 of the NDA for making a series of derogatory comments of a sexual nature. At the dining hall at Canadian Forces Base Borden the accused made a series of derogatory sexual comments regarding the various women that passed by his table. These comments were observed by several CAF members, including a member of the CAF who was senior to the accused.

The accused pleaded guilty to the charge. The prosecution and defence counsel presented a joint submission for a fine in the amount of $500. The military judge in accepting the joint submission noted that initial counselling for a conduct deficiency was initiated as a result of his actions requiring the accused to familiarize himself with CAF policy with regard to inappropriate sexual behavior in the workplace. The military judge was satisfied that it was in the public interest to accept the joint submission and sentenced Cpl Crabtree-Megahy to a fine of $500.

Negligence Causing Bodily Injury – R. v. Cadieux, 2016 CM 4008

In early September 2014, Corporal (Cpl) Cadieux took part in a pre-deployment training exercise while serving with the Canadian Special Operations Regiment. The exercise occurred in a training area where movement drills were practiced using live rounds. These drills continued into the evening when night vision goggles were used by the participants. Under night-time conditions the accused, as part of a four-person team, completed a drill which involved moving towards a target while supported by other members tasked to provide covering fire. Every person in the training area was using night vision goggles and had a laser mounted on their rifles to assist them in locating their targets. The training participants were wearing two infrared glow sticks, one on each upper arm, to help identify them in the dark.

After engaging two groups of pop-up firing targets the team of four withdrew. During that withdrawal, the accused and another member of the team became separated from the other two members. When the accused saw two white dots in the darkness, he believed they were the lasers of the two other members, fixed on a target. However, the dots originated from the area where the participants providing supporting fire were situated. When the accused turned and fired two rounds in the direction of the dots, one round struck another CAF member who had been staffing a machine gun. The accused was charged with a negligence offence pursuant to s. 127 of the NDA and was subsequently tried by General Court Martial.

At trial, the evidence showed that the victim was seriously injured and that there was a high probability that he would be medically released from the CAF as a result. Following a guilty finding by the panel, counsel for the prosecution and defence made a joint submission on sentencing recommending a punishment of 21 days’ detention. Having considered the nature and circumstances of the offence, the military judge encouraged the accused to remember the tragic events and the consequences of his actions, but to continue to live up to his potential as a member of the CAF. The military judge accepted the recommendation of the prosecution and defence and sentenced the accused to 21 days detention.

Joint Submissions – R. v. Ledoux, 2016 CM 1019

While deployed in a theatre of operations as a part of a team to train Ukranian soldiers, Sergeant (Sgt) Ledoux participated in a cultural excursion to Lviv, Ukraine. Before departing, all members on the excursion were briefed that they were to remain in groups of no less than three and were reminded that they were not permitted to consume alcohol.

During the excursion, the accused decided to separate from the group as he did not want to eat at a location chosen by the rest of the group. Further, during the excursion, the accused consumed an unknown quantity of alcohol to the point that he was visibly intoxicated on the return trip to base. The accused was observed by a number of other group members as having difficulty maintaining his balance, slurring his speech and had vomited several times on the return bus back to base. As a result of this incident, Sgt Ledoux was repatriated from theater prior to the end of his tour and was charged with two counts of conduct to the prejudice of good order and discipline pursuant to s.129 of the NDA as well as one count of drunkenness pursuant to s.97 of the NDA.

At trial the accused entered a guilty plea to the charge of drunkenness and the remaining two charges were withdrawn by the prosecution. At sentencing the prosecution and defence counsel proceeded with a joint submission recommending a reprimand and a fine in the amount of $1500.

In deciding whether or not to accept the recommendation the military judge acknowledged the recent Supreme Court of Canada decision of R. v. Anthony-Cook33 which dealt with the issue of joint submissions. In that decision the Supreme Court noted that joint submissions play a vital role in contributing to the administration of justice. They allow a high degree of certainty and save the justice system precious time, resources, and expenses, which can be channeled into other matters. This in turn allows the justice system to function more efficiently. However, the Court also noted that counsel must provide the trial judge not only with the proposed sentence, but with a full description of the facts relevant to the offender and the offence, in order to give the judge a proper basis upon which to determine whether the joint submission should be accepted.

The military judge noted that the Supreme Court affirmed that the public interest test is the proper legal test that trial judges should apply, which means a trial judge should not depart from a joint submission on sentence unless the proposed sentence would bring the administration of justice into disrepute or would otherwise be contrary to the public interest.

In the case at hand, the military judge applied the public interest test and accepted the recommendations of counsel. The accused was sentenced to a reprimand and a fine in the amount of $1500.

Unauthorized Discharge – R. v. Rouleau, 2016 CM 3015

Major General (MGen) Rouleau, Commander of the Special Operation Forces Command, was charged with one count of conduct to the prejudice of good order and discipline, contrary to s. 129 of the NDA for an unauthorized discharge of his C8 Carbine occurring in the Canadian area of operations in Iraq on 19 December 2015.

Having arrived in Iraq for an official visit, MGen Rouleau was provided with a pistol and a C8 carbine rifle. He was informed by another member of the CAF, with whom he was travelling, that his C8 carbine rifle was loaded but did not have a round in the chamber. At the first stop of the visit, MGen Rouleau removed his weapon from the vehicle, cocked the action, and mistakenly fired one round into the ground approximately two feet from another CAF member. MGen Rouleau admitted full responsibility for the incident and entered a guilty plea at the earliest possible opportunity. A joint submission on sentencing was submitted by both parties, indicating a fine of $2000 was appropriate in the circumstances.

The military judge stressed that all unauthorized discharges are treated seriously, regardless of the member’s rank, and considered aggravating and mitigating factors in assessing the appropriateness of the proposed sentence. Aggravating factors included the rank and position of the accused, his experience with the C8 carbine, and the location of the offence in an operational environment. Mitigating factors included a full admission of guilt, lack of criminal record, the incident was out of character, and MGen Rouleau’s exceptional career with the CAF.

The court accepted the joint submission made by counsel and sentenced MGen Rouleau to a fine in the amount of $2,000.

Possession of Prohibited Substances – R. v. Curran, 2016 CM 4013

In the early morning hours of August 16, 2014 Private (Pte) Curran was observed by a member of the military police (MP) driving his vehicle on Canadian Forces Base Gagetown with a burnt out headlight. He was stopped a short way off the base and informed of the reason for the stop. During the ensuing conversation between the MP and the accused, the MP noticed a large number of bills in the accused’s wallet, and a faint to medium odor of marihuana emanating from the vehicle. The MP shined her flashlight around the vehicle and noticed a large Ziploc bag on the floor behind the driver’s seat which appeared to contain marihuana.

The accused was placed under arrest for possession of marihuana, and the vehicle was photographed and searched. As a result of the search, the Ziploc bag and eight small plastic bags containing beige crystal rocks and powder were seized. Analysis confirmed the large bag contained 82 grams of marihuana, and the smaller bags contained a combined 10 grams of crystal methamphetamine. The accused was charged with two counts of possession for the purpose of trafficking in a substance included in Schedule I, contrary to sections 5(2) of the Controlled Drugs and Substances Act, and two counts of possession of a substance included in Schedule I, contrary to section 4(1) of the Controlled Drugs and Substances Act.34

The prosecution presented no evidence on the trafficking charges at court martial, and the accused pleaded guilty to two possession charges. Counsel for the prosecution and defence provided a joint submission proposing a sentence of 20 days imprisonment and a fine of $1000. In accepting this submission, the military judge cited as an aggravating factor the fact that the accused possessed a significant quantity of controlled substances while on base, which directly engages the military community. The seriousness of the offence was further compounded by the accused’s two previous convictions at summary trial for use of drugs, which resulted in his reduction in rank from Corporal to Private. Not only did the conduct of the accused threaten discipline, it potentially placed at risk the health, safety and operational effectiveness of the CAF and its personnel. The military judge accepted the joint submission and sentenced Pte Curran to imprisonment for a period of 20 days and a fine in the amount of $1000.

Unauthorized Civilian Employment – R. v. Soares, 2016 CM 3019

Following a period of intermittent sick leave Lieutenant (Lt) Soares, a nursing officer with the CAF, was placed on a return to work program where she was scheduled to work three out of five days per week. In addition, she had a number of medical employment limitations placed on her which further restricted those duties that she was able to perform.

In October 2013, a CAF member who worked at the Canadian Forces Health Services Centre in Ottawa encountered Lt Soares working in a nursing capacity at the Ottawa Hospital General Campus. The accused explained that she was moonlighting at the Ottawa Hospital. This information was communicated back to Lt Soares chain of command who confirmed that she was not authorized to undertake employment at any civilian facility and a military police investigation was commenced. The accused was charged with an act of a fraudulent nature; delaying the cure to infirmity by willful disobedience of orders; feigned infirmity; willfully making a false entry in a document that was required for official purposes; and an act to the prejudice of good order and discipline.

The accused pleaded guilty to an act to the prejudice of good order and discipline and the prosecution withdrew the remaining four charges. The prosecution and defence proceeded by joint submission recommending a sentence of a severe reprimand and a fine in the amount of $3000. In his sentencing decision, the military judge noted that the accused pleaded guilty and also that she suffered from a number of physical and mental health disorders and was to be medically released from the CAF in March of 2017. The military judge accepted the joint submission and sentenced the accused to a severe reprimand and a fine of $3000.

Viewing Pornographic Material on Workplace Computer - R. v. Hamelin, 2017 CM 4005

In June 2015, a civilian information technician informed the Canadian Forces National Investigation Service (CFNIS) of suspicious activity on Major Hamelin’s user log. A subsequent analysis of the accused’s hard drive revealed that 90 files containing pornographic images were downloaded or viewed in June 2015 and were then subsequently deleted. During an interview with CFNIS investigators the accused admitted to having viewed the images in question on his workplace computer. He also indicated that he was aware that CAF policy prohibits the use of workplace computers and networks to access pornography. Despite knowing his actions were wrong, the accused continued to access and download pornographic images for nearly two weeks. Major Hamelin was charged with one count of act to the prejudice of good order and discipline contrary to section 129 of the NDA.

The accused pleaded guilty to the offence and the prosecution and defence, in a joint recommendation to the military judge, recommended a punishment of a reprimand and fine in the amount of $1800. The military judge in his decision noted that the actions of the accused indicated a significant lack of respect for the accused’s functions as a senior officer and for his obligation to comply with orders pertaining to the protection of the security of DND computers and information systems. The military judge also noted that the offence involved 90 pornographic images accessed or downloaded over a period of several days as opposed to a one-time weakness. After considering these factors along with various mitigating factors such as the accused’s guilty plea, the military judge accepted the joint submission and sentenced Major Hamelin to a reprimand and fine of $1800.

Unauthorized Wearing of Medals – R. v. Fancy, 2016 CM 1010

On 11 November 2014, Master Warrant Officer (MWO) Fancy wore three Canadian Forces medals and a specialist skill badge which he was not authorized to wear on his uniform while participating in a Remembrance Day parade. The medals in question were a Somalia medal, a General Campaign Star, and a South-West Asia medal.

The accused had previously worn the medals and decorations in question at a unit function in January of 2014, raising concern from a number of the accused’s colleagues. When the accused was approached about the matter he indicated that he had earned the medals and decorations and stated that he would locate the required documentation to update his personnel records. When the accused wore the medals and decorations again on 11 November 14, without having provided such documentation, an investigation was commenced which determined that the accused was not permitted to wear them. MWO Fancy was charged with two counts of unlawful use of military uniforms pursuant to s.419 of the Criminal Code and three counts of conduct to the prejudice of good order and discipline pursuant to s.129 of the NDA.35

At court martial the unlawful use of a military uniform charges were withdrawn and the accused pleaded guilty to the remaining s.129 charges. The prosecution and defence agreed to a joint submission on sentencing and recommended a fine of $300 and a reduction in rank to the rank of warrant officer. The military judge considered the nature and circumstances of the offence, including the lack of integrity and respect shown to medals and decorations awarded to CAF members. The military judge accepted the recommendation and sentenced the accused to a fine of $300 and a reduction in rank to warrant officer.

Policy Initiatives

Court Martial Comprehensive Review

Pursuant to his statutory responsibilities for superintendence and for the conduct of regular reviews of the administration of military justice under subsections 9.2(1) and (2) of the NDA, on 13 May 2016, the JAG directed the Deputy Judge Advocate General for Military Justice (DJAG MJ) to conduct a comprehensive review of the CAF’s court martial system. The purpose of this review is to conduct a legal and policy analysis of all aspects of the CAF’s court martial system and, where appropriate, to develop and analyze options to enhance the effectiveness, efficiency, and legitimacy of that system.

The comprehensive review commenced on 15 July 2016, and will produce a draft policy-based report for the JAG by 21 July 2017. 36

The Court Martial Comprehensive Review Team (CMCRT), comprised of legal officers from the Military Justice Division, is considering the following subject matter areas:

  1. The status and institutional structure of tribunals/courts with jurisdiction over service offences, including whether they ought to be: military or civilian in character; permanent or ad hoc entities; and, capable of deploying to austere or hostile environments inside and outside of Canada;
  2. The status and institutional structure of a prosecution service with responsibility for prosecuting service offences, including whether this service ought to be military or civilian in character, and capable of deploying to austere or hostile environments inside and outside of Canada;
  3. The mechanism through which defence counsel services are provided to persons accused of committing service offences, including whether such services ought to be: provided by military or civilian lawyers; provided in whole or in part at public expense; and, capable of being provided within austere or hostile environments inside and outside of Canada;
  4. The substantive body of service offences, including full consideration of whether any current offences ought to be updated or repealed, and whether any additional offences ought to be added;
  5. The punishments, sanctions, and sentencing laws that apply in respect of service offences, including full consideration of whether any current sentencing provisions ought to be updated or repealed, and whether any additional sentencing options ought to be added;
  6. The laws of evidence that ought to apply at trials in respect of service offences;
  7. The rights, grounds, and mechanisms of appeal that ought to exist for the Crown and for persons subject to the CSD; and,
  8. The special needs of any particular groups who may interact with the military justice system, including victims, young persons, and aboriginal offenders.

During the reporting period, the CMCRT conducted extensive public and internal CAF consultation to seek input on the subject matter areas to be reviewed and analyzed. Additionally, as part of its review, the CMCRT conducted technical visits involving consultation with foreign subject matter experts from ten countries (United States, Australia, New Zealand, United Kingdom, Ireland, France, Netherlands, Denmark, Norway, and Finland). The CMCRT also took advantage of opportunities for less in-depth knowledge exchanges with military justice experts from Singapore and Israel, as part of other visits to these places that were being conducted by Office of the JAG legal officers. This comparative study by the CMCRT of how other states operate their military justice systems exposed the CMCRT to a full range of military justice considerations, structures, practices, and outcomes.

JAG Superintendence

In the previous reporting period the JAG announced the creation of a team to develop and pilot an audit process for the collection of objective and measurable data in order to better assess the unit level administration of the Code of Service Discipline. Upon commencing the work it became clear that in order to better audit specific units within the CAF on their obligations regarding the administration of military justice, a more comprehensive case management tool and database was necessary as one of its primary functions would be to facilitate the collection of measurable data at the unit level. This would benefit all commanders within the CAF by providing them with improved oversight of all disciplinary matters within their area of responsibility while also making their military justice processes more efficient.

Therefore, the focus of the project has shifted to the creation of a military justice case management tool and database. Since that time, personnel within the MJ Division have examined several options such as purchasing an existing case management tool and database from one of several provincial jurisdictions, developing one in consultation with an external organization, or building one internally. These options continue to be canvassed in order to determine the most efficient and economical course of action.

It is envisioned that the military justice case management tool and database would be an electronic system designed to track military justice files from the reporting of an alleged infraction, through to investigation, charge laying, trial disposition and review in both the summary trial and court martial processes.

It would provide commanders at all levels with a user-friendly case management tool that would enhance the administration of military justice at the unit level by providing unit authorities with a real-time overview of discipline matters allowing them to track the progress of a file through all of the procedural steps within the process. This would allow unit authorities and legal officers to track the progress of a file in real-time ensuring that a case proceeds through the system in a timely manner.

In addition, the military justice case management tool and database would also compile all relevant statistics on the administration of military justice by providing oversight of the entire military justice system. Such information would be available by commanders at all levels and allow them to maintain situational awareness of all disciplinary matters from the tactical level through to the strategic level.

The creation of a military justice case management tool and database would also enhance the JAG’s ability to superintend the administration of military justice by:

Summary Trial Working Groups

Building on previous work undertaken by the Canadian Armed Forces Discipline Advisory Council, in the reporting period the JAG sought input from the chain of command to develop and consider options for the renewal of the summary trial system to promote the prompt and fair administration of military justice in respect of non-criminal breaches of discipline. The JAG, with approval from the Chief of Defence Staff, coordinated the establishment of two working groups comprised of unit commanding officers and their most senior non-commissioned members with representation from all CAF environments. The issues discussed during these working groups covered a wide variety of topics focusing specifically on the summary trial system and included the structure of investigations, charge-laying authorities, disciplinary infractions and sanctions in the summary trial system and also included participation in hypothetical scenarios.

The information obtained from these working groups has provided the JAG with an additional command perspective on the administration of military justice at the unit level. This will be of assistance to the JAG in ensuring that the military justice system, particularly at the summary trial level, remains responsive to the needs of the CAF.

One of the primary observations of the working groups was delay in the summary trial process. It was believed that the requirement to offer an election as well as the requirement for legal advice at multiple stages in the process added time in the process and was counter to one of the main purposes of the summary trial system which is to administer justice in a prompt and efficient manner. Participants also commented on the referral process and questioned whether the requirement for a file to be sent to a referral authority before being referred to the DMP added any value to the process. It was believed that this step added time in the process and that there were other ways in which a referral authority could comment on public interest while still ensuring that a file was referred to the DMP in a more expedient manner.

Aside from issues of delay, the working groups also observed that the punishments available at summary trial are not as effective for maintaining discipline in the reserve context. It was noted that due to the part-time working nature of reservists misconduct is generally not properly dealt with through the military justice system as the system is designed to better deal with those full time members of the Regular Force. As a result, reserve units are often turning to administrative measures and other forms of informal discipline to enforce and maintain discipline within their units.

Director of Military Prosecutions Policy Amendments

This reporting period, the DMP amended a number of his policy directives concerning the conduct of prosecutions of offences of a sexual nature. The two main objectives of that policy review were to ensure that offences of a sexual nature are prosecuted in the appropriate justice system and that the views of complainants are solicited, considered and addressed at all phases of the court martial process. As a result, the views of the victim are now formally incorporated into the list of factors that the prosecution must consider when determining whether the charges should proceed in the military or civilian justice system. The victim will also be informed of all decisions regarding the choice of jurisdiction, whether or not to prefer charges and of the reasons supporting those decisions.

Although it is inevitable that any process, whether in the military or civilian justice systems, will require a complainant to relive the circumstances of the alleged offence, efforts can be made to minimize the effect that this will have on the complainant. Therefore, in order to ensure that the impact of the process is minimized as much as possible, the DMP has directed that offences of a sexual nature will be given scheduling priority in order to move those cases through the military justice system as expeditiously as possible. In addition, every effort is to be made to ensure that it is the same prosecutor handling the case from beginning to end in order to avoid the complainant having to recount their version of events on multiple occasions to different individuals.

The DMP has also re-issued his policy on interviewing witnesses reminding his prosecutors that the comfort of the witness during an interview is of key importance. As circumstances permit, interviews should be in private and prosecutors must maintain an approach that is professional and respectful. In addition, the DMP has reminded prosecutors that they shall treat all witnesses and complainants in particular with courtesy, sensitivity and respect, bearing in mind the emotional interest one might reasonably expect the complainant to have in the proceedings. Further the prosecutor shall:

In order to minimize the potential for additional trauma that a complainant may suffer while testifying at a court martial the DMP has directed that prosecutors consider additional measures to accommodate a complainant’s security and comfort while testifying at court martial including:


30 In At the time of Cpl Thibault’s trial, the Supreme Court of Canada had not yet issued its ruling in R. v. Moriarity. Therefore, the decision of the CMAC in that case was applicable. The CMAC decision in Moriarity held that a military nexus – or a link between the offence and the discipline, efficiency, and morale of the CAF - was required to try an individual under s. 130(1) of the NDA. However, the Supreme Court overturned that decision finding that military service was a sufficient connection to establish military nexus.

31 2015 SCC 15.

32 2016 SCC 27.

33 2016 SCC 43.

34 Offences under the Controlled Drugs and Substances Act are incorporated into the NDA through s. 130 of the NDA which incorporates any act or omission punishable under the Criminal Code of Canada or any other act of Parliament to be tried by as a service offence within the military justice system.

35 Offences under the Criminal Code of Canada are incorporated into the NDA through s. 130 of the NDA which incorporates any act or omission punishable under the Criminal Code of Canada or any other act of Parliament to be tried by as a service offence within the military justice system.

36 Amendments to Terms of Reference – Court Martial Comprehensive Review, 11 July 2017.

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