Chapter Four — Impact of the COVID-19 Pandemic

Introduction

The COVID-19 pandemic deeply affected Canadian society over the reporting period. The effects of the pandemic have been felt by the Canadian Armed Forces, the Office of the JAG, and the military justice system as a whole. This chapter outlines the impact the pandemic has had on the Office of the JAG and on the administration of military justice and discusses the support that was provided by the Office of the JAG to the domestic operations undertaken by the Canadian Armed Forces to ameliorate the harm caused by COVID-19.

Impact of the pandemic on the Office of the JAG

In March 2020, and as part of the larger collective effort within the Canadian Armed Forces to limit the spread of COVID-19, the Office of the JAG activated its Business Continuity Plan and adopted a remote-work posture. With the exception of those legal officers and office staff members whose presence was required in a place of work for operational or other essential reasons, this posture remained in place throughout the reporting period.

To enable remote work and the continued provision of responsive, high-quality legal services in an effective and safe manner, the Office of the JAG significantly increased its use of available technological tools, such as videoconferencing, collaborative software programs and online conferencing.  At the same time, the Office of the JAG adapted its approach to legal and administrative service and support delivery in order to continue supporting the operational requirements of the Canadian Armed Forces while concurrently providing for the personal and family circumstances and challenges brought about by the pandemic and the realities of working remotely.

Impact of the pandemic on service tribunals

The COVID-19 pandemic had a significant impact on the operation of the military justice system. Like the civilian criminal justice system, the military justice system was challenged to continue functioning while respecting all necessary public health precautions. At both summary trial and court martial, innovative and functional solutions were utilised to keep the military justice system operating in a safe and responsible manner. 

Summary Trials

While summary trials continued to be conducted throughout the reporting period, there was a notable reduction in the number of summary trials as compared to the 2019-2020 reporting period.

Figure 4-1 illustrates the month over month comparison of summary trials between this reporting period and the previous reporting period. The most significant decrease was observed at the beginning of the reporting period, which was followed by a notable increase in June 2020. A further decline was observed in September 2020. It is noted that these fluctuations align with the introduction and subsequent alteration of applicable public health measures and the related changes to the Canadian Armed Forces’ posture.

The lower number of summary trials conducted at the beginning of the reporting period coincides with the introduction of provincial and federal public health restrictions and the Canadian Armed Forces’ adoption of an aggressive posture in March 2020 with the aim of minimizing the risk of COVID-19 exposure, preserving operational capability, and avoiding becoming a transmission vector.^{Footnote 1}

At this time, commanders were required to carefully scrutinize all travel and training activities to ensure that only those assessed as being essential to immediate and near term mission success were conducted.^{Footnote 2}  Concurrently, access to many defence establishments and Canadian Armed Forces facilities and activities, such as sports centres, messes, cafeterias, as well as individual and collective training was limited or temporarily halted.^{Footnote 3}  This posture along with the existing public health measures resulted in a cessation of many regular activities and in-person interactions between Canadian Armed Forces members.

As noted in Figure 4-1, there was a significant increase in the number of summary trials in June 2020. Over this same time period leading into the summer, public health measures and restrictions were being relaxed and the posture of the Canadian Armed Forces was adjusted to allow the resumption of certain training, institutional and operational activities while respecting public health measures and ensuring the protection of personnel.^{Footnote 4} 

In circumstances where public health restrictions precluded the conduct of in-person summary trials, and with due regard to the rights of the accused member, units were able to leverage telecommunication technology to enable the conduct of summary trials and the continuing administration of unit-level discipline. Article 108.21 of the Queen’s Regulations and Orders for the Canadian Forces authorizes presiding officers to receive evidence at summary trial using a telecommunication device that permits the presiding officer and the accused to hear and examine a witness who has been sworn.^{Footnote 5}

The use of telecommunication platforms at summary trial also provided a unique opportunity for a wider audience to attend the proceeding remotely without the constraints of courtroom space and the applicable public health measures.

Over the reporting period, telecommunication technology was also successfully leveraged to allow the delivery of Presiding Officer Certification Training despite the pandemic environment. Presiding Officer Certification Training is required for any officer to act as a presiding officer at summary trial and is normally conducted as a two-day in-person classroom session. However, to address the need to provide the training to a growing number of officers while respecting the pandemic related restrictions on travel and gathering, training delivery pivoted to online platforms.

Through the shift to online training delivery, officers from across the Canadian Armed Forces were able to receive the training required for their presiding officer certification and participate in group discussions and activities that would not have otherwise been possible. In total, legal officers with the Office of the JAG conducted 34 online Presiding Officer Certification Training sessions and succeeded in providing the necessary training to 809 candidates.

Courts Martial

In the early stages of the pandemic, as was the situation in the civilian criminal justice system, many cases at court martial were adjourned and postponed until safe and effective measures could be implemented for the resumption of proceedings. 

Beginning in March 2020, at the end of the previous reporting period, and continuing into the current reporting period, a series of directives and letters containing direction and guidance pertaining to the administration and conduct of courts martial and other judicial proceedings in the context of the COVID-19 pandemic were issued. 

The first directive was issued by the Chief Military Judge on 16 March 2020.^{Footnote 6}  Taking into account the COVID-19 virus and the directives issued by the Government of Canada and the Chief of the Defence Staff, the Court Martial Administrator was directed to “cancel all convening orders for courts martial to be held between 16 March and 5 April 2020.” The directive also provided that other judicial hearings could be held at the discretion of the presiding military judge, subject to the limitations imposed by the existing situation, including “any means allowing the involved parties to engage is simultaneous visual and oral communications.”

Two following directives were issued on 3 April 2020^{Footnote 7}  and 5 May 2020,^{Footnote 8}  in which the Acting Chief Military Judge effectively extended the direction in the 16 March 2020 directive to the periods between 6 April and 10 May 2020 and between 11 and 31 May 2020 respectively.

On 12 May 2020, the Acting Chief Military Judge issued a lengthy letter to “inform all participants, and anyone else interested in a trial by court martial and any other judicial hearing, about the related temporary policies and procedures that have been in place since the date when the usual activities of court martial administration were disrupted due to the health emergency caused by COVID-19.”^{Footnote 9}  As explained in the letter, it was also meant to complement any judicial instructions that were issued from time to time by the Chief Military Judge and the Acting Chief Military Judge to the Court Martial Administrator, and as such, it included the following factors that had made it temporarily impossible to hold courts martial in the context of the distancing and containment measures established by federal and provincial public health authorities and the Chief of the Defence Staff:

1. the inability of participants to travel and attend the location for the trial or hearing;
2. the unavailability of commercial housing for some or all participants;
3. the inaccessibility of premises that are usually available or provided for holding the court martial;
4. the unavailability of administrative support and necessary staff from the unit where the court is being held to proceed in a dignified and military manner; and
5. the inability of units to implement public health measures relating to participants and locations that are necessary for holding the court martial.

The letter also detailed the various temporary policies and procedures that had been put into practice relating to court martial administration and the conduct of judicial proceedings since the usual court martial activities had first been disrupted due to the pandemic and include the following:

1. in relation to the preferral of a charge and the notice of withdrawal of a preferral of a charge, that the Court Martial Administrator would accept electronically filed documents rather than the original paper versions, which were to be subsequently submitted;^{Footnote 10} 
2. in relation to the use of the military court room located at the Asticou Centre in Gatineau, Québec, the issuance of direction to the Court Martial Administrator to implement a health protocol for the use of the court room in consideration of the public health measures relating to the COVID-19 health emergency;^{Footnote 11}  and
3. in relation to the conduct of courts martial and other judicial proceeding before a military judge, the introduction of a procedure to enable remote access to the proceeding for members of the public and the media.^{Footnote 12} 

Additionally, in the 12 May 2020 letter, the Acting Chief Military Judge identified the following factors that a presiding military judge may take into account when exercising their discretion to hold a judicial hearing and identify the terms and conditions applicable to the conduct of that hearing, including the use of telecommunications:  

1. the position of the parties on the need to hold the hearing without the physical presence of the participants, in recognition of the fact that the applicable legal framework often requires the consent of all parties to do so;
2. the limitations caused by the circumstances that will be in effect at the time of the proposed hearing, including the physical presence or mode of technological participation of participants;
3. the need to receive the proposed documentary or testimonial evidence, and the means, technological or otherwise, to allow this evidence to be admitted so that it can be properly considered by the parties and the military judge;
4. the ability to audio-record debates and the ability to identify and preserve evidence in a satisfactory manner;
5. the complexity of the issues to be debated, the receipt of the evidence and the time required to hold the proposed hearing;
6. the possibility of using alternative means such as written arguments and affidavits in order to minimize the time required and the complexity of a hearing; and
7. any other factor considered relevant by the military judge.^{Footnote 13} 

On 8 October 2020, the Acting Chief Military Judge issued his second and final letter of the reporting period, which addressed the “resumption and maintenance of the activities of the court martial with the in person presence of participants.”^{Footnote 14}  In this letter the Acting Chief Military Judge outlined the cessation of the five factors referenced in the 12 May 2020 letter that had rendered it impossible to conduct court martial proceedings as usual and referenced the Chief of the Defence Staff’s 9 June 2020 directive on the Resumption of Activities, in which the Chief of the Defence Staff specifically noted the need to support the gradual resumption of courts martial.^{Footnote 15} 

The Acting Chief Military Judge noted that while a gradual resumption of court martial activities had begun during the summer of 2020 and was continuing, it would remain the responsibility of the presiding military judge to ultimately determine the feasibility and appropriateness of proceedings in each individual case, given the ever-changing landscape of provincial and federal health restrictions. Whether in-person, via telecommunication, or some combination of the two, it was confirmed that courts martial would continue to operate in an effective and safety-conscious manner.

Figure 4-2 depicts the number of courts martial conducted by month during the 2020-2021 reporting period as compared to the 2019-2020 reporting period. In addition to illustrating an overall reduction in the number of courts martial conducted, the figure shows particularly low numbers at the beginning of the reporting period and again in January 2021.

For further statistics and details on court martial cases conducted in this reporting period, see Chapter 2.

Impact of the pandemic on discipline

Over the reporting period, the Canadian Armed Forces and its members, like others in Canada, were subject to various public health measures and restrictions introduced in an effort to keep the population safe and minimize the health impacts of the COVID-19 pandemic. 

In this context, charges were laid against Canadian Forces members in 9 cases for breaching the applicable public health measures. Based on the particulars of each case, the offences charged were under section 83 of the National Defence Act, disobedience of a lawful command, section 90 of the National Defence Act, absence without leave, and section 129 of the National Defence Act, conduct to the prejudice to good order and discipline. 

A summary of these cases is found in Figure 4-3.

Figure 4-3: Violations of COVID-19 Precautions Addressed by Summary Trial

Case	Date	Offence	Circumstances	Result
Bdr R	24 April 2020	s. 83 NDA	Violation of order to self-isolate	Guilty Fine: $445 Confinement to Ship or Barracks: 14 days
MCpl W	26 June 2020	s. 129 NDA	Violation of COVID-19 precautions	Guilty Fine: $500
Cpl M	20 July 2020	s. 90 NDA	Violation of COVID-19 geographic restrictions	Guilty Fine: $500
Sgt G	22 October 2020	s. 129 NDA	Violation of COVID-19 precautions	Guilty Fine: $1200
Pte C	22 October 2020	s. 129 NDA	Violation of COVID-19 precautions	Guilty Fine: $100 Confinement to Ship or Barracks: 4 days
Avr D	5 November 2020	s. 129 NDA	Violation of COVID-19 geographic restrictions	Guilty Fine: $200
MCpl S	5 November 2020	s. 129 NDA	Violation of COVID-19 geographic restrictions	Guilty Reprimand Fine: $400
Sgt K	6 November 2020	s. 129 NDA	Violation of COVID-19 precautions	Guilty Stoppage of Leave: 7 days
Avr T	8 February 2021	s. 129 NDA	Violation of COVID-19 precautions	Guilty Fine: $500

Office of the JAG support for OPERATIONS LASER and VECTOR

Over the reporting period the Canadian Armed Forces engaged in two domestic operations directly related to the COVID-19 pandemic: Operation Laser^{Footnote 16}  (OP LASER) and Operation Vector^{Footnote 17}  (OP VECTOR). The Office of JAG supported the Canadian Armed Forces in the conduct of both operations through the provision of direct legal support and services to all levels of the chain of command by Regular and Reserve Force legal officers located across Canada.

Op LASER

Op LASER is the activation of the Canadian Armed Forces’ Contingency Plan LASER for the response to a pandemic of an influenza-like disease. In March 2020, the Chief of the Defence Staff activated Op LASER, which is the Canadian Armed Forces’ response to the COVID-19 pandemic. The strategic objectives for Op LASER are to:

• save lives;
• assist federal, provincial, territorial and regional partners; and
• maintain Canadian Armed Forces readiness, effectiveness and resilience.

During the reporting period and under the ambit of Op LASER, the Canadian Armed Forces responded to requests for assistance from provincial and territorial partners pursuant to subsection 273.6(1) of the National Defence Act, which allows the Governor in Council or the Minister of National Defence to authorize the Canadian Armed Forces to perform public service duties. The process of requesting assistance involves official communication between the provincial/territorial and federal governments. 

The assistance provided over the reporting period took several forms. Three examples include support to long-term care facilities, support to remote northern communities, and assistance at Land Ports of Entry. 

Support to Long-Term Care Facilities

From April to July 2020, the Canadian Armed Forces responded to requests for assistance in support of 54 long-term care facilities in Quebec and Ontario. 

The assistance provided included on-site medical and support staff as well as off-site support involving planning, liaison, general services, maintenance, and delivery of personal protective equipment.

Support for Northern and Remote Communities

From April to July 2020, the 2nd Canadian Ranger Patrol Group deployed more than 200 Canadian Rangers to assist 28 communities in response to various requests for assistance from the Government of Quebec. Similarly, 157 members of the 3rd Canadian Ranger Patrol Group were activated on 5 April 2020, to provide assistance in Northern Ontario. In all, the Canadian Armed Forces provided requested assistance to more than 15 First Nations across the country, and the Office of the JAG supported this response, in part, by ensuring a common understanding between the supporting government entities of the relevant legal authorities.

Support at Land Ports of Entry

From 19 February to 28 March 2021, Canadian Armed Forces personnel provided planning and logistical support to the Public Health Agency of Canada to establish screening sites at 16 land ports of entry in Canada. In particular, assistance was provided at the Queenstown border crossing in Ontario, the St-Armand/Lacolle border crossing in Quebec, the St. Stephen border crossing in New Brunswick, the Coutts border crossing in Alberta, and the Douglas border crossing in British Columbia.

Legal officers with the Office of the JAG, from both the Regular and Reserve Forces and located across Canada, were directly involved in providing support to the Canadian Armed Forces in furtherance of the various government requests for assistance related to Op LASER activities. This support was provided to the regional Joint Task Forces and ensured an understanding of relevant subjects ranging from the applicable legal authorities to the implicated provincial legal regimes to issues of personal and institutional liability. Additionally, legal officers from across Canada engaged and consulted extensively throughout these domestic operations with their federal and provincial counterparts.

Op VECTOR

Op VECTOR commenced on 27 Nov 2020 and is the Canadian Armed Forces’ support to the federal, provincial and territorial governments in relation to the distribution of COVID-19 vaccines. Through Op VECTOR, support was provided to federal, provincial and territorial partners with:

• logistical and planning support;
• assistance from well-trained military personnel; and
• capability to transport medical supplies and equipment to remote communities.

In particular, support was provided by the Canadian Armed Forces through Indigenous Services Canada in partnership with First Nations in Manitoba, to accelerate the pace of immunization in 23 on-reserve communities. Legal officers with the Office of the JAG, from both the Regular and Reserve Forces, were again directly involved in providing support to the Canadian Armed Forces in furtherance of the various government requests for assistance related to Op VECTOR activities. As with Op LASER, this support was provided to the regional Joint Task Forces and ranged in nature from supporting the acquisition of temporary facilities and infrastructure to ensuring an understanding of the relevant legal authorities and applicable provincial legal regimes.

Conclusion

The COVID-19 pandemic has had a significant impact on the demands of the Canadian Armed Forces, the military justice system, and the Office of the JAG. Notwithstanding the challenges and constraints imposed by the pandemic, both the Office of the JAG and the military justice system demonstrated the agility and adaptability required to continue supporting the disciplinary needs and operational effectiveness of the Canadian Armed Forces.

From the onset of the pandemic, and throughout the reporting period, the Office of the JAG took a measured and adapted approach. Personnel were enabled to continue providing legal and administrative support services remotely or, when essential, from the office, and were supported when confronted with personal and family challenges brought on by the pandemic. At the same time, legal officers from across Canada continued to provide the Canadian Armed Forces with needed legal support, contributing to vital domestic missions, which over the reporting period was dominated by the provision of much needed assistance to help mitigate the effects of the pandemic.