Chapter Three — Military Justice: Jurisprudence, Legislative Developments, Parliamentary Review, Policy Initiatives, and Other Developments

Introduction

The 2019/20 reporting period marked the realization of a series of significant jurisprudential, legislative, and policy developments, all of which have helped define a “new era” for military justice in Canada. This "new era" is characterized by efficiency, fairness, effectiveness, and unambiguous constitutional legitimacy. This chapter highlights the significant developments which have impacted the military justice system over the course of this reporting period.

Jurisprudence

Supreme Court of Canada

Right to a jury trial pursuant to section 11(f) of the Charter of Rights and Freedoms

R v Stillman, 2019 SCC 40

In R v Stillman, the Supreme Court of Canada considered the constitutionality of paragraph 130(1)(a) of the National Defence Act, which transforms most civil offences committed by persons subject to the Code of Service Discipline, into service offences, thereby giving the military justice system concurrent jurisdiction over such offences. The central argument before the Supreme Court of Canada focused on whether paragraph
130(1)(a) of the National Defence Act violated an accused service member’s right to a jury trial guaranteed under section 11(f) of the Charter of Rights and Freedoms (Charter). Section 11(f) of the Charter provides that anyone charged with an offence, where the maximum punishment is imprisonment for five years or more, has the right to a trial by jury, except in the case of an offence under military law tried by military tribunal.

The Court Martial Appeal Court of Canada considered this issue on three separate occasions. In R v Royes,Footnote 1  a unanimous panel of the Court concluded that paragraph 130(1)(a) of the National Defence Act fell within the exception to the right to a trial by jury in section 11(f) of the Charter. In R v Déry,Footnote 2  a new panel of the Court concluded that it was bound by the decision in R v Royes due to the principles of judicial comity and horizontal stare decisis, although the majority of the panel commented that it would have found paragraph 130(1)(a) of the National Defence Act unconstitutional. Finally, in R v Beaudry,Footnote 3  the Court found that paragraph 130(1)(a) of the National Defence Act violated the right of an accused to a jury trial guaranteed by section 11(f) of the Charter and declared paragraph 130(1)(a) of the National Defence Act to be unconstitutional and of no force or effect in its application to any civil offence for which the maximum sentence is five years of imprisonment or more.

At the Supreme Court of Canada, a majority of the Court ruled that paragraph 130(1)(a) of the National Defence Act is consistent with section 11(f) of the Charter. The Court confirmed that Parliament has the power over Militia, Military and Naval Service, and Defence under section 91(7) of the Constitution Act of 1867, and could therefore validly enact the service offences referred to as an offence under military law in section 11(f) of the Charter. The Court noted that a civil offence tried as a service offence under paragraph 130(1)(a) of the National Defence Act was no less an offence under military law than purely military offences prescribed in the Code of Service Discipline. Furthermore, and relying on its past reasoning in R v Moriarity,Footnote 4  the Court held that an accused person’s status as a service member was sufficient to charge a person pursuant to paragraph 130(1)(a) of the National Defence Act, and that a military nexus was not required. As a result, the Supreme Court of Canada concluded that where a serious civil offence is tried as a service offence under paragraph 130(1)(a) of the National Defence Act, it qualifies as an offence under military law and thereby engages the military exception in section 11(f) of the Charter.

"... a serious civil offence tried as a service offence under s. 130(1)(a) — whether or not there is a heightened “military nexus” — qualifies as “an offence under military law” for the purposes of s. 11(f) of the Charter."Footnote 5 

The Court went on to state that the purpose of the military exception found in section 11(f) of the Charter is to acknowledge the need for, and existence of, a separate military justice system tailored to the unique needs of the military. The Court reaffirmed that the military justice system ensures the maintenance of discipline, efficiency, and morale of the military, as it had previously recognized in R v GénéreuxFootnote 6 and in R v Moriarity. In a thorough assessment of the evolution of the military justice system, the Supreme Court of Canada recognized the dynamic nature of the military justice system and the fact that it has evolved to be a "full partner in administering justice alongside the civilian justice system," Footnote 7  and a "parallel system of justice which largely mirrors the civilian criminal justice system." Footnote 8

The military justice system is "... a full partner in administering justice alongside the civilian justice system" and a "parallel system of justice which largely mirrors the civilian criminal justice system."

In its decision, the Supreme Court of Canada also recognized the unique and important role of military panels. While the Court noted some similarities with civilian juries, it clearly distinguished military panels from civilian juries, observing that military panels need to be different so as to meet the unique objectives of the military justice system in fostering discipline, efficiency, and morale in the Canadian Armed Forces. According to the Court, the fact that panel members bring military experience and integrity to the military judicial process, and that a jury of Canadian civilians would be difficult, if not impossible, to convene outside Canada, demonstrated why military panels need to be different from a jury. The Court went on to observe that, although different, military panels provide a similar level of Charter protection to accused persons as civil juries, while addressing the unique objectives of the military justice system.Footnote 9 

In conclusion, through its decision in R v Stillman, the Supreme Court of Canada unambiguously affirmed the need for a separate system of military justice in Canada and confirmed that the system is constitutional, valid, necessary, and a full partner in the administration of justice with the civilian justice system. Following the Supreme Court of Canada’s decision, the Court Martial Appeal Court of Canada’s declaration of invalidity of paragraph 130(1)(a) of the National Defence Act was set aside, and the military justice system’s ability to prosecute serious civil offences, where appropriate, was reinstated.

Federal Court

Requesting the Assignment of a military judge in the court martial case of R v Dutil

Canada (Director of Military Prosecutions) v Canada (Office of the Chief Military Judge), 2020 FC 330

The Canadian Forces National Investigation Service began to investigate allegations of impropriety with respect to the Chief Military Judge, Colonel Mario Dutil, in 2015. On 25 January 2018, he was charged with eight offences under the Code of Service Discipline based on allegations of fraud, falsely claiming travel expenses, and having an inappropriate relationship with a subordinate. Colonel Dutil’s court martial was convened on 10 June 2019 before the Deputy Chief Military Judge, Lieutenant Colonel Louis-Vincent D’Auteuil. Defence counsel requested recusal on the basis of a reasonable apprehension of bias, citing the close personal relationship between the accused and the Deputy Chief Military Judge (among other issues).

On 17 June 2019 the Deputy Chief Military Judge granted the accused’s application and recused himself in the case of R v Dutil.Footnote 10  Immediately following this decision, the Deputy Chief Military Judge issued a letter advising that he would not assign any other military judge to preside and adjourned proceedings to an undetermined date.

The Director of Military Prosecutions subsequently sought judicial review at the Federal Court, specifically requesting that the Federal Court order the Deputy Chief Military Judge to assign another judge to the case, pursuant to section 165.25 of the National Defence Act. In the alternative, the Director of Military Prosecutions requested that the Federal Court set aside the decision not to assign any other military judge.

The application for judicial review was dismissed. In its analysis, the Federal Court considered the fundamental rights of the accused to be tried within a reasonable time and to be presumed innocent until proven guilty in a fair and public hearing by an independent and impartial tribunal, as provided for in sections 11(b) and (d) of the Charter. The right of the accused to choose the language of trial was another important consideration.

"These are fundamental, non-negotiable rights that cannot be restricted for reasons of administrative convenience, such as a shortage of military judges."Footnote 11 

After confirming that it had the required jurisdiction to review the impugned decision, the Federal Court ruled that the decision was reasonable in all respects and that it did not contain reviewable errors. The Federal Court found that the decision to adjourn the proceedings indeterminately and not to assign a replacement military judge preserved the rule of law as well as the accused's right to a fair trial. The Court outlined that exercising the power to assign military judges must not only be consistent with the Charter but also not result in a miscarriage of justice. The Federal Court also deferred to the judgment of the Deputy Chief Military Judge in the exercise of his duty to assess whether another military judge is well suited to be assigned a case.

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Court Martial Appeal Court of Canada

Necessity to establish a prima facie case in respect of charges laid

R v Banting, 2019 CMAC 5

Lieutenant Banting was found not guilty by way of directed verdict at his court martial. The military judge found that no prima facie case had been made out on a charge preferred against the accused of conduct to the prejudice of good order and discipline contrary to section 129 of the National Defence Act. The Director of Military Prosecutions, on behalf of the Minister of National Defence, appealed to the Court Martial Appeal Court of Canada seeking to overturn the military judge’s decision. The appellant argued that the military judge erred in law in finding that no prima facie case had been made out in respect of the charge.

In unanimously dismissing the appeal, the Court Martial Appeal Court of Canada held that it agreed with the military judge’s view that there was no evidence upon which a reasonable panel of a General court martial, properly instructed, could return a guilty verdict on the charge of prejudice to good order and discipline. The Court concluded that the military judge correctly applied the law as it relates to the failure to establish a prima facie case and therefore dismissed the appeal.

Interpretation of disgraceful conduct and conduct to the prejudice of good order and discipline

R v Bannister, 2019 CMAC 2

Captain Bannister was charged with making inappropriate sexual comments in the workplace. The court martial initially found him not guilty of all three charges of disgraceful conduct contrary to section 93 of the National Defence Act and three alternative charges of conduct to the prejudice of good order and discipline contrary to section 129 of the National Defence Act. The Director of Military Prosecutions, on behalf of the Minister of National Defence, appealed the decision. The Court Martial Appeal Court of Canada concluded that the military judge had erred in law, and therefore granted the appeal. The decision at court martial was set aside and the Court directed that a new trial take place before a different military judge.

The Court Martial Appeal Court of Canada observed that courts martial have utilized different tests over the years to determine whether conduct was disgraceful pursuant to section 93 of the National Defence Act. The Court stressed that there should not exist separate methods of assessing disgraceful conduct, but rather a single objective standard. The Court held that military judges must analyse the conduct at issue by considering it within the totality of the context in which it occurred. The Court went on to observe that there are not two separate silos, one for “shockingly unacceptable” conduct and one for consequences related to “harm or risk of harm” stemming from the conduct. Both methods are, but parts of, the required contextual assessment. The Court further asserted that within the military context, the military judge remains the expert on the issue of disgraceful conduct, and that no other expert evidence will be required, nor permitted.

"... a military judge is expected to judge cases by applying his or her experience and general service knowledge."Footnote 12 

Regarding section 129 of the National Defence Act, the Court Martial Appeal Court of Canada held that the military judge conflated the concept of judicial notice with the concept of using military experience and general service knowledge to make inferences. The Court reiterated the principle of Smith v The QueenFootnote 13  according to which a “service tribunal may apply its general military knowledge as to what good order and discipline require under the circumstances, and so come to a conclusion whether the conduct, disorder, or neglect complained of was to the prejudice of both good order and discipline.”Footnote 14 

The military judge is "... not only entitled, but obliged to use the inferential reasoning process."Footnote 15 

In referencing R v JonesFootnote 16  and R v Golzari,Footnote 17  the Court also reaffirmed that the prejudice does not need to be confined to a physical manifestation of injury to good order and discipline. It specified that proof of prejudice can be inferred from the circumstances if the evidence clearly points to prejudice as a natural consequence of the proven act. Prejudice encapsulates conduct that “tends to” or is “likely to” adversely affect discipline.

Time and place as elements of an offence

R v Edwards, 2019 CMAC 4

Charged with one count of prejudice to good order and discipline for the use of cocaine, contrary to section 129 of the National Defence Act, Leading Seaman Edwards was acquitted at court martial on the basis that the prosecution failed to prove that any cocaine usage occurred at the place and within the time period stated in the charge sheet.

The Director of Military Prosecutions, on behalf of the Minister of National Defence, appealed the court martial decision. On appeal, the Court Martial Appeal Court of Canada held that, unless the time of the offence is an essential/critical element of the offence, crucial to the defence, or misleading given the offence as particularized, a date or time period specified in an indictment is not held to be a material matter. The evidence in this case was not circumstantial and therefore no potential for confusion was possible. The Court held that in the circumstances of this case, the place of the offence only became relevant for territorial jurisdiction.

The acquittal was set aside and a new trial ordered. The court martial is to be heard during the next reporting period.

Mens Rea elements for sexual assault and the defence of honest but mistaken belief in consent

R v MacIntyre, 2019 CMAC 3

Sergeant MacIntyre was acquitted at court martial of one charge of sexual assault contrary to section 271 of the Criminal Code and punishable under paragraph 130(1)(a) of the National Defence Act. After the court martial heard all the evidence, the accused requested that a defence of honest but mistaken belief in consent be put to the General court martial panel. The military judge refused to put the defence to the panel after having determined that, on the facts, there was no air of reality to the defence. The military judge provided instructions to the panel as to the relevant legal principles as well as reasonable doubt, before the panel deliberated and returned its verdict of not guilty. These instructions served as the basis for the subsequent appeal to the Court Martial Appeal Court of Canada. The Director of Military Prosecutions, on behalf of the Minister of National Defence, appealed the decision and specifically challenged the instructions relating to the accused’s knowledge of the complainant’s lack of consent as well as inadequate police investigation.

On appeal, it was argued that knowledge of lack of consent is not an element of the offence, but instead only arises if there is an air of reality to an honest but mistaken belief in consent. Given the military judge’s ruling that there was no air of reality to the defence of honest but mistaken belief in consent, the appellant argued that there was no requirement to prove the element of knowledge of absence of consent. The Court Martial Appeal Court of Canada rejected this argument citing settled law by the Supreme Court of Canada that knowledge, wilful blindness, or recklessness as to the victim’s lack of consent is an essential mens rea element of sexual assault. The Court clarified that trial judges cannot repackage the defence of honest but mistaken belief as the mens rea element when it has no air of reality, but it is not an error of law to instruct the trier of fact on the element of knowledge of lack of consent.

"... knowledge, wilful blindness, or recklessness as to the complainant’s lack of consent is an essential mens rea element of sexual assault."Footnote 18 

The Director of Military Prosecutions also challenged the military judge’s instructions to the panel concerning the evidence heard during trial of an inadequate police investigation. The appellant argued that the military judge effectively provided instructions to acquit, so long as the panel found that the police investigation was inadequate. The Court Martial Appeal Court of Canada disagreed with this characterization of the instructions and rejected the appellant’s argument. The Court held that the instructions, when read as a whole, could not have resulted in any confusion for the panel as to the role of the police investigation. The Court indicated that the panel was entitled to consider the police investigation in the context of assessing the credibility and reliability of the witnesses. Moreover, the Court held that the failure of the appellant to object at trial demonstrated their satisfaction with the instruction, which was a factor to be considered on appeal.

The Court Martial Appeal Court of Canada dismissed the appeal in its entirety. The Minister of National Defence, as represented by the Director of Military Prosecutions, petitioned the Supreme Court of Canada for leave to appeal from the judgment of the Court Martial Appeal Court of Canada. The Supreme Court of Canada dismissed the application for leave.

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Court Martial — Decisions of Note

Chief Military Judge – Recusal of trial judge

R v Dutil, 2019 CM 3003

In 2015, then Chief Military Judge Colonel Mario Dutil was under investigation by the Canadian Forces National Investigation Service. On 25 January 2018, he was charged with eight offences under the Code of Service Discipline based on allegations of fraud, falsely claiming travel expenses, and having an inappropriate relationship with a subordinate

On 15 June 2018, following the laying of these charges, the accused delegated to the Deputy Chief Military Judge, Lieutenant-Colonel Louis-Vincent D'Auteuil, the authority to assign military judges to preside at court martial.

At the commencement of his court martial on 10 June 2019, the accused faced four charges: one count of willfully making false statements contrary to section 125(a) of the National Defence Act, one count of fraud contrary to section 380 of the Criminal Code and punishable under section 130 of the National Defence Act, one count of an act of fraudulent nature contrary to section 117(f) of the National Defence Act, and one count of conduct to the prejudice of good order and discipline contrary to section 129 of the National Defence Act.

At the opening of his trial before the Deputy Chief Military Judge, the accused requested the recusal of the military judge. The accused claimed that the military judge did not have, in fact or in appearance, the independence and impartiality required to preside at his trial. On 17 June 2019, the military judge recused himself, adjourned the proceedings to an indeterminate date and read into the record a letter outlining his decision not to assign any other military judge to the case.

The decision outlined that the test for recusal is whether a well-informed person examining the issue in detail, in a realistic and practical manner, would be left with a reasonable apprehension of bias. The Court noted that decision-makers must be—and appear to be—unbiased, as discussed by the Supreme Court of Canada in R v S (R.D.).Footnote 19  The Court also noted the rigor with which it must analyze the question of impartiality, as previously declared by the Supreme Court of Canada in R v GénéreuxFootnote 20  and R v Leblanc.Footnote 21  The Court further highlighted the importance of the presumption of innocence and the fact that the potential criminal consequences of the case included imprisonment.

The accused testified that the military judge had become a friend and confidant who had helped in dealing with the alleged personal relationship once terminated. The military judge was also aware of some of the contextual elements surrounding the impugned incidents. According to the Court, another decisive factor was the close professional relationship existing between military judges and court reporters, and the fact that many of the witnesses called were former or current court reporters from the Office of the Chief Military Judge. The Court came to the conclusion that a well-informed person, having examined the matter in a realistic and practical way, would conclude that the military judge was biased.

The Director of Military Prosecutions raised the question of conducting the trial within a reasonable time frame as well as the doctrine of necessity – in order to avoid a situation where it becomes impossible to proceed with the case. The Court rejected both arguments and noted that the parties were responsible for the conduct of the case, were aware of the applicable law, and were not in a situation where it had become impossible for another military judge to preside over the case. While certain evidence had demonstrated that some of the military judges could face recusal or could not preside over a contested trial in French, the court martial found it had not been established that another military judge or Reserve Force military judge could not be assigned in the circumstances, particularly given that the issue had been known for some time.

"Colonel Dutil has the right to be tried by an independent and impartial military judge, like any person subject to the Code of Service Discipline. Public trust towards the military justice system, and particularly the military members' trust, rests on the fact that, among other things, such independence and impartiality is not only perceived but also exists in reality."Footnote 22 

Before adjourning the proceedings to an indeterminate date, the Deputy Chief Military Judge read into the record his decision not to assign any other military judge to the case. This decision was appealed to the Federal Court in the case of Canada (Director of Military Prosecutions) v Canada (Office of the Chief Military Judge).Footnote 23  The Federal Court ultimately dismissed the appeal (see summary above) and shortly thereafter the Director of Military Prosecutions announced the withdrawal of all charges against the accused.

Necessity to establish a prima facie case in respect of charges laid

R v Banting, 2019 CM 2009

Lieutenant Banting faced one charge for conduct to the prejudice of good order and discipline, contrary to section 129 of the National Defence Act. The charge stemmed from the alleged use of inappropriate sexualized language while the accused was instructing at a military course. The accused was tried by General court martial and, at the end of the prosecution’s case, brought before the court martial an application for a directed verdict, pursuant to paragraph 112.05(13) of the Queen’s Regulations and Orders for the Canadian Forces.Footnote 24 

The accused argued that the prosecution had not introduced evidence sufficient to prove the essential elements of the impugned offence, including the actual prejudice to good order and discipline. In contrast, the prosecution argued that the alleged conduct breached Operation HONOUR and that, pursuant to subsection 129(2) of the National Defence Act, prejudice may be inferred from the breach of an order.

In considering the accused’s application, the military judge examined the evidentiary record before the court to determine whether there was some evidence upon which a properly instructed panel might convict the accused. This included all the documentary evidence tendered relating to Operation HONOUR, such as the Canadian Forces General Message 130/15, Chief of the Defence Staff (CDS) Operation Order – Operation HONOUR and its accompanying documents and training packages.After an examination of the evidentiary record, the military judge concluded that the evidence was insufficient to prove that the alleged conduct resulted in prejudice to good order and discipline. The military judge opined that the CDS Operation Order was not the type of order envisaged under subsection 129(2) of the National Defence Act. The military judge held that the CDS Operation Order and its supporting documents were focused on eliminating conduct described by the conjoined term “harmful and inappropriate sexual behavior” (HISB), that the alleged conduct did not fit within the definition of HISB, and that it fell outside the scope of the conduct captured by the CDS Operation Order and its supporting documentation. As such, the Court could not expect a properly instructed panel to rely upon these documents to infer prejudice from the alleged conduct.

"... the CDS Op Order - Op HONOUR is not the type of order envisaged under subsection 129(2). [...] Op HONOUR and its FRAGOs set out clear direction to the chain of command on how to deal with issues of inappropriate conduct in accordance with extant policy and the law. It does not establish new law or policies."Footnote 25 

In directing a not guilty verdict, the military judge concluded that the accused had demonstrated, on a balance of probabilities, that no evidence was adduced to prove that the alleged conduct violated the CDS Operation Order.

Perception of judicial independence of military judge

R v Pett, 2020 CM 4002

Master Corporal Pett was charged with two offences: one count of insubordinate behavior contrary to section 85 of the National Defence Act, and one count of abuse of subordinates contrary to section 95 of the National Defence Act. Prior to the commencement of the trial, the accused filed a plea in bar of a trial, pursuant to article 112.24 of the Queen’s Regulations and Orders for the Canadian Forces, challenging the independence of military judges.Footnote 26  The accused argued that an order issued by the Chief of the Defence Staff on 2 October 2019 subjected military judges to the disciplinary authority of a general officer in the military hierarchy, which violated the constitutional principles of judicial independence and of an accused’s right to be tried by an independent and impartial tribunal, guaranteed under section 11(d) of the Charter. The subject order designated the Deputy Vice Chief of the Defence Staff to exercise the powers and jurisdiction of a commanding officer with respect to any disciplinary matter involving a military judge.

The military judge hearing the preliminary application found that military judges, as officers in the Canadian Armed Forces, are liable to be charged and dealt with under the Code of Service Discipline while they hold their judicial office. The military judge determined that this could lead an informed observer to reasonably conclude that military judges do not enjoy the essential conditions of judicial independence. The military judge reasoned, however, that the National Defence Act and its regulations provide a number of safeguards designed to regulate the conduct of military judges while ensuring that they are immune from any disciplinary or administrative measures initiated by the executive. Another significant safeguard identified by the Court was the powers exercised by the Military Judges Inquiry Committee which, as a body of judicial peers, can evaluate the fitness and conduct of military judges.

These safeguards were found to be sufficient to ensure that the system would not give rise to a reasonable apprehension of bias in the mind of a reasonable, well-informed observer. The subject order, however, imposed a disciplinary process driven by the chain of command to run parallel to the existing legislative and regulatory safeguards, thereby effectively undermining judicial independence and giving rise to a reasonable apprehension of bias. The military judge therefore declared the subject order to be unlawful and of no force or effect as it pertains to military judges.

"A reasonable observer considering the order expressing the desire to submit military judges to a disciplinary process initiated by the executive over the legislated process administered by judicial peers could reasonably apprehend that the military judge could be biased in favour of the executive in the performance of his or her duties.Footnote 27 

In finding the Chief of the Defence Staff Order to be of no force or effect as it pertains to military judges, the military judge in the case held that any violation of the accused’s right to be tried by an independent and impartial tribunal under section 11(d) of the Charter had been rectified. The military judge therefore dismissed the accused’s application for a stay of proceedings.

R v D’Amico, 2020 CM 2002

Corporal D’Amico was charged with one count of neglect to the prejudice to good order and discipline pursuant to section 129 of the National Defence Act. Prior to the commencement of his trial, the accused brought a plea in bar of trial, pursuant to article 112.24 of the Queen’s Regulations and Orders for the Canadian Forces,Footnote 28  arguing that the order issued by the Chief of the Defence Staff on 2 October 2019, designating the Deputy Vice Chief of the Defence Staff as the commanding officer with respect to disciplinary matters involving a military judge, was unconstitutional as it compromised judicial independence contrary to section 11(d) of the Charter. The application was very similar to the one presented before the military judge in R v PettFootnote 29  and for which the decision had been rendered eleven days earlier.

The military judge substantially followed the reasoning in R v Pett, and dismissed the accused’s application. In reviewing the principle of judicial comity, the military judge referred to the Supreme Court of Canada's decision in R v StillmanFootnote 30  to state that the protection of an accused’s fundamental rights cannot be dependent upon the Director of Military Prosecutions’ conduct alone.

Also considering another Supreme Court of Canada decision, R v Lippé,Footnote 31  the military judge determined that R v Pett had been rightly decided and that the Chief of the Defence Staff Order had to be rescinded in order for the accused’s rights under section 11(d) of the Charter to be protected.

"... the protection of an accused’s fundamental rights cannot be dependent on DMP’s conduct alone, particularly where the role of DMP is adverse in nature to the interests of an accused person."Footnote 32 

The military judge went on to comment on the pressing policy reasons for the primacy of the Military Judges Inquiry Committee as a means of disciplining military judges. While generally following the court martial ruling in R v Pett, the military judge further stated that the inapplicability of the Chief of the Defence Staff Order to military judges should be a strong rebuttable presumption rather than a general rule. This preferred method would have the Military Judges Inquiry Committee with primary disciplinary jurisdiction for military judges, followed by civilian criminal courts for matters falling outside the jurisdiction of the Committee, with the military justice system as a last resort. Referring to R v Wehmeier,Footnote 33  the Military Judge proposed that for matters falling outside the jurisdiction of the Military Judges Inquiry Committee, the onus would rest with the Director of Military Prosecutions to justify before a judge why it is required to bring the matter before a court martial rather than the civilian criminal courts.

Ultimately, the military judge found the Chief of the Defence Staff Order to be of no force or effect as it pertains to military judges—thereby rectifying any violation of the accused’s rights under section 11(d)—and dismissed the application for a stay of proceedings.

The trial on the merits was heard on 3 March 2020 but at the end of this reporting period, the court martial had not released its decision in the matter.

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Legislative Developments

Bill C-77: An Act to amend the National Defence Act and to make related and consequential amendments to other Acts

Bill C-77

  • Strengthens the military justice system, further aligning it with the civilian criminal justice system while recognizing the unique requirements of the military justice system
  • Introduces the Declaration of Victims Rights, further strengthening the victims’ rights framework within the military justice system
  • Reforms the summary trial process into a non-penal, non-criminal summary hearing process

Bill C-77, An Act to amend the National Defence Act and to make related and consequential amendments to other Acts (Bill C-77), which was at second reading in the Senate at the end of the previous reporting period, received Royal Assent on 21 June 2019.

Bill C-77 strengthens the military justice system and further aligns it with the civilian criminal justice system while respecting the unique requirements of the Canadian Armed Forces. Most significantly, Bill C-77 introduces the Declaration of Victims Rights to the Code of Service Discipline, thus enshrining rights for victims of service offences within the military justice system. These rights mirror those found in the Canadian Victims Bill of Rights, which received Royal Assent on 23 April 2015, and their introduction aligns the victims’ rights available in the military justice system with those available in the civilian criminal justice system.

Bill C-77 also adds provisions that mirror the Criminal Code by setting out that evidence that a service offence or service infraction motivated by bias, prejudice, or hate based on gender identity or expression constitutes aggravating circumstances that must be taken into consideration when a sentence or sanction is imposed.Footnote 34  Moreover, Bill C-77 also requires that particular attention be afforded to the circumstances of Indigenous offenders when considering the appropriate punishments.Footnote 35  The punishments must be reasonable in the circumstances and consistent with the harm done to victims or to the community. Finally, Bill C-77 reforms the summary trial process into a non-penal, non-criminal summary hearing process designed to address minor breaches of military discipline at the unit level.Footnote 36   While some of these provisions have already come into force, significant regulatory and policy development is required to bring the majority of the sections into force.

The Military Justice Division of the Office of the Judge Advocate General (Office of the JAG) provided direct legal support for this important legislative initiative throughout the Parliamentary process. Since Bill C-77 received Royal Assent, the Military Justice Division has engaged a variety of different stakeholders with a view to facilitating meaningful consultation in developing the regulations In addition, the Military Justice Division conducted the complex legal and policy analysis in order to assess options with a view to identify the appropriate regulatory and policy instruments required to bring the majority of Bill C-77 into force.

In the next reporting periods the Military Justice Division will continue this challenging work, in conjunction with the myriad of stakeholders and the Department of National Defence and Canadian Forces Legal Adviser’s Queen’s Regulations and Orders for the Canadian Forces Drafting Section, which will lead to the drafting of the necessary regulations, and the identification and develop-ment of policy instruments to bring into force the provisions of Bill C-77.

Bill C-77

Upon receiving Royal Assent, the following legislative and corresponding regulatory amendments, applicable to both summary trials and courts martial, came into force:

  • Evidence that a service offence was motivated by bias, prejudice, or hate based on gender identity or expression constitutes aggravating circumstances that must be taken into consideration when a sentence is imposed
  • Particular attention is to be afforded to the circumstances of Indigenous offenders when considering the appropriate punishments. The punishment must be reasonable in the circumstances and consistent with the harm done to victims or to the community, including the Canadian Armed Forces
  • A person convicted of certain service offences will not have a criminal record when sentenced to one or more of the following punishments: severe reprimand, reprimand, fine not exceeding basic pay for one month, or minor punishment

The remaining provisions of Bill C-77 will come into force at a later date along with related provisions amending the Queen’s Regulations and Orders for the Canadian Forces.

Bill C-93: An Act to provide no-cost, expedited record suspensions for simple possession of cannabis

An Act to provide no-cost, expedited record suspensions for simple possession of cannabis, formerly Bill C-93 (Bill C-93), introduced by the Minister of Public Safety and Emergency Preparedness, received Royal Assent on 21 June 2019 and came into force on 1 August 2019.

Bill C-93 has amended the Criminal Records Act to allow persons who have been convicted under the Controlled Drugs and Substances Act, the Narcotic Control Act, or the National Defence Act only of simple possession of cannabis offences committed before 17 October 2018 to apply for a record suspension without being subject to the restriction period imposed by the Criminal Records Act for other offences or to the fee that is otherwise payable in applying for a suspension.

The Office of the JAG has collaborated with Public Safety Canada in the context of Bill C-93, to ensure that persons convicted of such service offences may apply for a record suspension.Footnote 37

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Parliamentary Review

Report 3, Administration of Justice in the Canadian Armed Forces, of the 2018 Spring Reports of the Auditor General of Canada

On 29 May 2018, the Office of the Auditor General tabled its Report 3—Administration of Justice in the Canadian Armed Forces and provided nine recommendations to improve the administration of military justice.Footnote 38  The Department of National Defence and the Canadian Armed Forces agreed with all nine recommendations and submitted a detailed Management Action Plan outlining the departmental response to address the recommendations. The Office of the Auditor General’s report was studied in the fall of 2018 by the Standing Committee on Public Accounts. On 22 October 2019, the Deputy Minister of National Defence and the Judge Advocate General appeared before the Committee to respond to questions and provide evidence. The Committee subsequently released its own report on 6 December 2018 entitled Report 3, Administration of Justice in the Canadian Armed Forces, of the 2018 Spring Reports of the Auditor General of Canada.Footnote 39  This report echoed and supplemented the findings and conclusions of the Office of the Auditor General’s report.

During this reporting period, on 5 April 2019, the official government responseFootnote 40  to the report of the Standing Com-mittee on Public Accounts was submitted. The government response acknowledged that the efficient administration of military justice is of critical importance to maintaining discipline, efficiency, and morale in the Canadian Armed Forces and provided the Standing Committee on Public Accounts with updates on the status of the implementation of measures aimed at addressing the recommendations contained in the reports of the Office of the Auditor General of Canada and the Standing Committee on Public Accounts.

The Office of the JAG had fully implemented four of the nine recommendations of each report at the conclusion of the last reporting period, and progress towards the full implementation of the remaining recommendations was made during this reporting period. To this end, the Office of the JAG has launched a number of initiatives further described in Chapter 4.

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Policy Initiatives

Support to Victims’ Initiatives

Support to Victims

  • During this reporting period, the Military Justice Division worked in close collaboration with key stakeholders, including the Directorate Professional Military Conduct - Operation HONOUR, the Sexual Misconduct Response Centre, and the Canadian Forces Provost Marshal to assist in the development of policies to enhance support to victims as well as provide guidance to the chain of command to maintain discipline
  • In addition, internal and external consultations continued to ensure that victim and survivor support strategies reflect emerging best practices, while remaining tailored to meet the needs of the Canadian Armed Forces. These engagements, as well as work completed towards furthering survivor support initiatives, will continue into the next reporting period

Enhancing support to victims and survivors of service offences remains a top priority for the Government of Canada, the Department of National Defence, and the Canadian Armed Forces, as clearly articulated in Canada’s Defence Policy - Strong, Secure, Engaged and Operation HONOUR. As outlined in last year’s Annual Report, the development of policies providing support to victims and survivors at all stages of the military justice system continued to remain a priority during this reporting period.

As Operation HONOUR remains a top institutional priority for the Canadian Armed Forces, the Office of the JAG remains fully committed to supporting the chain of command in changing the culture of, and eliminating sexual misconduct in, the Canadian Armed Forces. During this reporting period, the Office of the JAG continued to provide legal support to various initiatives aimed at improving the support mechanisms available to victims and survivors of service.This included supporting key stakeholders in their development of important policy instruments aimed at clarifying reporting obligations with respect to sexual misconduct, ensuring that victims’ views are considered in determining the appropriate means of handling an instance of sexual misconduct, and that victims of sexual misconduct are properly supported.

Independent Review of the National Defence Act

Third Independent Review of the NDA

  • Mandated by section 273.601 of the National Defence Act
  • Causes an independent review of outlined sections in the National Defence Act and their operation, which includes the military justice system
  • Report of the independent review to be tabled in Parliament every seven years
  • Third Independent Review report expected to be tabled in Parliament in June 2021

In this reporting period, the Judge Advocate General Independent Review Support Team was formed to provide responsive support to the upcoming Third Independent Review, as mandated by section 273.601 of the National Defence Act. This provision requires the Minister to cause an independent review of outlined sections in the National Defence Act and their operation, which includes the military justice system. A report of these independent reviews is to be tabled every seven year. These reviews typically lead to legislative amendments to ensure the military justice system continues to reflect Canadian values while maintaining discipline, efficiency, and morale.

As per the National Defence Act, the independent review will cover matters that touch upon the Code of Service Discipline, the Canadian Forces grievance process, the Military Police Complaints Commission, the Canadian Forces Provost Marshal, and Military Police.Footnote 41 

The First Independent Review under this provision was completed in 2003. The former Chief Justice of Canada, the late Right Honourable Antonio Lamer, made 88 recommendations and concluded that “… Canada has developed a very sound and fair military justice framework in which Canadians can have trust and confidence.”Footnote 42  Most of the recommendations were accepted by the Minister of National Defence and were subsequently addressed by amendments to the National Defence Act in Bill C-60, An Act to amend the National Defence Act (court martial) and to make a consequential amendment to another Act; Bill C-16, An Act to amend the National Defence Act (military judges); and Bill C-15, the Strengthening Military Justice in the Defence of Canada Act (Bill C-15); respectively.

The Second Independent Review was conducted by the former Chief Justice of the Ontario Superior Court of Justice, the Honourable Patrick LeSage, in 2011. Like his predecessor, he agreed that “… the military justice system is sound, but some modifications will assist in ensuring its continued strength and viability.”Footnote 43  Chief Justice LeSage’s 55 recommendations are substantially reflected in Bill C-15 regulations which came into force in September 2018, as well as in revised policies.

The next independent review will take place during the next reporting period and it is expected that the report will be tabled in June 2021.

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The Military Justice Stakeholders’ Forum

The Military Justice Stakeholders’ Forum is a regular meeting between independent stakeholders in the military justice system, which serves to enable strategic exchanges and improve communication in areas of common interest. In addition, the Military Justice Stakeholders’ Forum facilitates knowledge-sharing and increases awareness of initiatives and best practices in the administration of military justice while respecting the statutorily independent roles of the respective actors. This initiative is in response to a recommendation contained in the Office of the Auditor General of Canada’s Report on the Administration of Justice in the Canadian Armed Forces.Footnote 44 

During this reporting period, the Military Justice Stakeholders’ Forum was convened twice, on 12 December 2019 and 7 February 2020. Attendees included the Chief Justice of the Court Martial Appeal Court of Canada, the Judge Advocate General, the Deputy Chief Military Judge, the Director of Military Prosecutions, the Director of Defence Counsel Services, the Canadian Forces Provost Marshal, the Deputy Judge Advocate General (Military Justice), the Executive Director and General Counsel to the Federal Court of Appeal and Court Martial Appeal Court of Canada, the Court Martial Administrator, and Legal Counsel to the Court Martial Administrator.

Meetings of the Military Justice Stakeholders’ Forum will continue to be scheduled at regular intervals in order to facilitate the sustained exchange of knowledge, expertise, and best practices amongst key actors in the military justice system.

Other Developments

Appointment of New Director of Defence Counsel Services

Pursuant to section 249.18 of the National Defence Act, the Minister of National Defence is responsible for the appointment of an individual to serve as the Director of Defence Counsel Services. The Director of Defence Counsel Services is responsible for providing, supervising, and directing the provision of legal services to persons who are liable to be charged, dealt with, and tried under the Code of Service Discipline. During this reporting period, the term of the former Director of Defence Counsel Services, Colonel Delano Fullerton, CD, expired. The Minister of National Defence appointed Colonel Jean-Bruno Cloutier, CD, as the new Director of Defence Counsel Services for a term of four years. His appointment was effective as of 6 March 2020.

Conclusion

The 2019/20 reporting period is highlighted by a number of notable developments in the military justice system. The landmark decision of the Supreme Court of Canada in R v Stillman strongly affirms the constitutionality, validity, and necessity of a separate system of military justice in Canada. The significant legislative developments outlined in this chapter will considerably enhance support to victims along with improving the promptness, fairness, and effectiveness of the military justice system in modernizing the current summary trial process. These legislative developments notably incorporated sentencing principles similar to that of the civilian criminal justice system in considering gender identity and expression and the unique factors applicable to Indigenous offenders.  Finally, it is expected that the Third Independent Review of the military justice system will contribute significantly to the continued evolution of the military justice system.

As a result of the several judicial decisions, legislative initiatives, and policy advancement during the reporting period, the military justice system continues to evolve in light of Canadian law and values while supporting the chain of command to ensure the discipline, efficiency, and morale of the Canadian Armed Forces.

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Footnotes
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