Military Justice System Statistics

As it has in previous years, the Office of the JAG continues to collect the most accurate quantitative data available regarding the military justice system throughout the 2023/24 reporting period. In addition, the Office of the JAG has been actively engaged in upgrading the military justice statistical monitoring and analysis processes in order to enhance transparency and accountability in the system. These improvements are an ongoing process that are integral to the military justice system’s evolution.

The 2023/24 reporting period marks the first full reporting period since the introduction of the summary hearing system. This comprehensive reconfiguration of the military justice system’s summary tier is reflected in the way the statistical information is presented in this chapter, which differs in a number of respects from the presentation of military justice statistics in previous annual reports. One change is that certain types of data that were relevant to the functioning of the former summary trial system, such as the number of elections to courts martial or the number of service offences tried by summary trial, are not applicable to the summary hearing system and are no longer included.

More broadly, the comprehensive change in the system of summary proceedings means that meaningful comparative data from previous reporting periods is not available. Though they serve similar purposes, the summary hearing and summary trial systems are fundamentally different processes. They are designed to address different types of misconduct and are built upon different legal principles. Unlike its predecessor, the summary hearing system has no authority to hear charges for service offences and is expressly a non-penal, disciplinary proceeding based upon administrative law principles. Consequently, a comparison between this reporting period’s summary hearing statistics and previous years’ statistics for summary trials would have little analytical value and could potentially be misleading.

Comparisons with the summary hearing statistics from the approximately nine months of the 2022/23 reporting period when the system was functioning would be similarly unhelpful. The summary hearing system was in its introductory stage during those months, so the statistics from that time do not present a complete picture of the system’s uptake at the unit level. Moreover, as is illustrated below at Figure 3.2, the use of summary hearings fluctuates from month to month, so statistics that do not capture a complete reporting period, such as those from 2022/23, do not provide useful comparators for analytical purposes.

In light of these considerations, the most effective long-term approach is to treat the 2023/24 reporting period as “year one” for the purposes of summary hearing statistics. Accordingly, this chapter does not present comparative statistics for summary proceedings from pervious reporting periods. Instead, the statistics presented in this chapter will only cover the present reporting period, and it will serve as the baseline for comparisons in future annual reports.

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Summary Hearings

During this reporting period, 46 courts martial and 417 summary hearings were conducted. Summary hearings were by far the most widely used form of disciplinary procedure (compared with courts martial) in the Canadian Armed Forces, comprising approximately 90% of disciplinary proceedings. The preponderance of summary hearings is in keeping with expectations given that the system was designed to provide a fast and accessible tool for addressing relatively minor misconduct at the unit level. Figure 3.1 shows the number of courts martial and summary hearings held over the reporting period as well as the corresponding percentage of cases tried by each type of service proceeding.

Figure 3.1: Distribution of Service Proceedings

 

Figure 3.2 shows the distribution of summary hearings by month since the introduction of the new system on 20 June 2022. Overall, the statistics suggest a relatively steady use of summary hearings by units with some seasonal fluctuations. The system appears to have been readily adopted throughout the final months of the 2022/23 reporting period, a trend that continued into the first three months of the present period, though the number of summary hearings dropped in the final months of this reporting period (December 2023 to March 2024).

Figure 3.2: Number of Summary Hearings by Month

Summary Hearings by Organization

Figure 3.3 shows the total number of summary hearings held over the reporting period within the following nine organizations: Canadian Army, Royal Canadian Navy, Military Personnel Command, Royal Canadian Air Force, Canadian Joint Operations Command, Canadian Special Operations Forces Command, Vice Chief of Defence Staff, Assistant Deputy Minister (Materiel), and Assistant Deputy Minister (Information Management).

The distribution of summary hearings across organizations, with the Canadian Army accounting for the highest number of hearings (147 or 35.25%) followed by the Royal Canadian Navy (97 or 23.26%), is in keeping with the distribution of summary proceedings in previous years. 

Figure 3.3: Number of Summary Hearings by Organization

Charges Disposed of at Summary Hearing

During this reporting period, 641 charges for service infractions were disposed of at summary hearing. Chapter 120 of the Queen’s Regulations and Orders for the Canadian Forces sets out three categories of service infractions that cover a broad range of relatively minor disciplinary misconduct: infractions in relation to property and information, infractions in relation to military service, and infractions in relation to drugs and alcohol. Service infractions are distinct from service offences over which courts martial have jurisdiction.

There were 41 charges disposed of at summary hearing for service infractions in relation to drugs and alcohol under article 120.04 of the Queen’s Regulations and Orders for the Canadian Forces, accounting for approximately 6% of the total. The most common charge disposed of under this article was paragraph 120.04(c) (introduces, possesses, or consumes an intoxicant contrary to article 19.04 (Intoxicants)), accounting for 3% of all charges. There were 21 charges disposed of for service infractions in relation to property and information under article 120.02, accounting for 3% of the total. Figure 3.4 provides the number and percentage of charges for each category of service infraction disposed of at summary hearing during the 2023/24 reporting period. A more detailed list of each infraction disposed of at summary hearing is provided at Annex A.

Figure 3.4 Number of Charges Disposed of at Summary Hearing

	2023/24
	#	%
120.02 - INFRACTIONS IN RELATION TO PROPERTY AND INFORMATION	21	3.28
120.03 - INFRACTIONS IN RELATION TO MILITARY SERVICE	579	90.32
120.04 - INFRACTIONS IN RELATION TO DRUGS AND ALCOHOL	41	6.40
Total	641	100.00

Of the three categories of service infractions, the most frequently charged is service infractions in relation to military service, under article 120.03 of the Queen’s Regulations and Orders for the Canadian Forces. Charges under this article accounted for 579 of the 641 charges for service infractions during this reporting period, representing approximately 90% of the total. Article 120.03 includes nine individual service infractions, the highest number of the three categories. It also includes the two most common infractions disposed of at summary hearings: paragraph 120.03(f) (without reasonable excuse, fails to attend or is tardy to their place of duty) and paragraph 120.03(i) (behaves in a manner that adversely affects the discipline, efficiency, or morale of the Canadian Forces). These two infractions account for approximately 32% and 42% of charges under article 120.03, respectively. The other service infractions in relation to military service most commonly disposed of at summary hearing were paragraph 120.03(e) (in relation to military service, furnishes false or misleading information or engages in deceitful conduct) accounting for approximately 6% of charges under article 120.03, and 120.03(b) (discharges a firearm without authorization) accounting for over 4%. Figure 3.5 set outs the breakdown of the charges disposed of at summary hearing for infractions in relation to military service under article 120.03. 

Figure 3.5 Number of Charges Disposed of for Infractions in Relation to Military Service

	2023/24
120.03 - INFRACTIONS IN RELATION TO MILITARY SERVICE	#	%
(a) A person commits a service infraction who handles a weapon, explosive substance, or ammunition in a dangerous manner	9	1.55
(b) A person commits a service infraction who discharges a firearm without authorization	26	4.49
(c) A person commits a service infraction who behaves in a manner that could reasonably undermine the authority of a superior officer	26	4.49
(d) A person commits a service infraction who fails or while on duty is unfit to effectively perform their duties or carry out responsibilities	31	5.35
(e) A person commits a service infraction who in relation to military service, furnishes false or misleading information, or engages in deceitful conduct	37	6.39
(f) A person commits a service infraction who without reasonable excuse, fails to attend or is tardy to their place of duty	187	32.30
(g) A person commits a service infraction who dresses in a manner or adopts an appearance or demeanour that is inconsistent with Canadian Forces requirements	13	2.25
(h) A person commits a service infraction who fails to maintain personal equipment or assigned quarters in accordance with Canadian Forces requirements	6	1.04
(i) A person commits a service infraction who otherwise behaves in a manner that adversely affects the discipline, efficiency, or morale of the Canadian Forces	244	42.14
Total	579	100.00

 

Findings at Summary Hearing

During the reporting period, there were 571 findings that the alleged service infraction was committed, representing approximately 89% of summary hearing findings. There were 59 findings that the alleged service infraction was not committed, representing approximately 9% of findings. There were 11 charges not proceeded with at summary hearing. Based on these numbers, it appears that the move from summary trials to non-criminal and non-penal summary hearings, which included a move to the less onerous “balance of probabilities” standard of proof, has not had a significant impact on the outcome of summary proceedings because it is consistent with statistics found in previous annual reports concerning the now retired summary trial system. The statistics for findings at summary hearings are set out at Figure 3.6.

Figure 3.6: Findings by Charge (Summary Hearing)

 

Sanctions at Summary Hearing

OCSH’s are limited in the types of sanctions they may impose on a member found to have committed a service infraction. Arranged from the most severe sanction to the least severe, the available sanctions are: reduction in rank, severe reprimand, reprimand, deprivation of pay and allowances for no more than 18 days, and minor sanctions, which include confinement to ship or barracks for no more than 14 days, extra work and drill for no more than 14 days, and the withholding of leave for no more than 30 days. Reflecting the non-penal nature of the summary hearing system, OCSH’s do not have authority to impose either detention or a fine as a sanction.

Deprivation of pay and allowances was the most common sanction imposed at summary hearing during this reporting period, accounting for over 46% of sanctions. Extra work and drill was the second most frequently imposed sanction, accounting for over 25% of sanctions, while confinement to ship or barracks accounted for nearly 20% of sanctions imposed. Figure 3.7 shows the number of sanctions by type that were imposed at summary hearing during the 2023/24 reporting period.

On 7 July 2023, the processing of the sanction of deprivation of pay was placed on hold in Guardian and the Canadian Armed Forces pay system by the Director of Human Resources and Business Management in consultation with the Director of Pay and Policy Development and the Director of Military Pay and Processing. The processing hold was placed to ensure that a uniform method of administering the sanction is being used at the unit level, and to ensure that members deprived of pay are not deprived of allowances. No regulations have been created by the Governor in Council to authorize the deprivation of an allowance as is currently required by law.  The Office of the JAG is collaborating with all stakeholders to resolve the processing hold and improve the administration of the sanction. It is anticipated that a solution will be forthcoming.

Figure 3.7: Sanctions at Summary Hearing

 

Summary Hearings by Rank

All members of the Canadian Armed Forces may be charged with service infractions and subject to a summary hearing regardless of their rank. During the reporting period, there were a total of 290 summary hearings for junior non-commissioned members (between Private (Basic)/Sailor 3^rd Class and Master Corporal/Master Sailor) and 69 for senior non-commissioned members (between Sergeant/Petty Officer 2^nd Class and Chief Warrant Officer/Chief Petty Officer 1^st Class). For officers, there were 16 summary hearings for subordinate officers (officer cadets/naval cadets), 39 hearings for junior officers (between Second Lieutenant/Acting Sub-Lieutenant and Captain/Lieutenant (Navy)), and 3 hearings for senior officers (Major/Lieutenant Commander and above). There were no summary hearings for any officers above the rank of Major. Figure 3.8 sets out the number and percentage of summary hearings organized by the rank of the person alleged to have committed the service infraction.

Figure 3.8: Number of Summary Hearings by Rank of Person Charged

	2023/24
	#	%
Private (Basic) / Sailor 3rd Class	40	9.59
Private / Aviator / Sailor 2nd Class	77	18.46
Corporal / Sailor 1st Class	132	31.65
Master Corporal / Master Sailor	41	9.83
Sergeant / Petty Officer 2nd Class	39	9.35
Warrant Officer / Petty Officer 1st Class	19	4.56
Master Warrant Officer / Chief Petty Officer 2nd Class	9	2.16
Chief Warrant Officer / Chief Petty Officer 1st Class	2	0.48
Officer Cadet / Naval Cadet	16	3.84
Second Lieutenant / Acting Sub-Lieutenant	13	3.12
Lieutenant / Sub-Lieutenant	7	1.68
Captain / Lieutenant (Navy)	19	4.56
Major / Lieutenant-Commander	3	0.72
Lieutenant-Colonel / Commander	0	0.00
Colonel / Captain (Navy)	0	0.00
General Officer / Flag Officer	0	0.00
Total	417	100.00

Timeline for Summary Hearings

An essential feature of the summary hearing system is its ability to dispose of charges quickly. To that end, a summary hearing must be commenced within six months of the alleged commission of the service infraction. Summary proceedings are intended to allow Canadian Armed Forces units to address misconduct as promptly as possible, while still maintaining a fair process. Delays in addressing disciplinary issues allow problems to persist and adversely impacts a unit’s morale and efficiency. In this regard, the summary hearing system appears to be functioning as intended. The average number of days between an alleged infraction and the conclusion of the summary hearing during the reporting period was 93.5 days. Only 9 summary hearings, or 2.16% of the total, were completed more than 180 days following the alleged infraction. Figure 3.9 shows the amount of time that elapsed between an alleged service infraction and the completion of a summary hearing during the 2023/24 reporting period.

Figure 3.9: Number of Days between Alleged Infraction and Completion of Summary Hearing

 

Reviews of Summary Hearings

The review of a summary hearing can be initiated at the request of the member who was found to have committed a service infraction or on the initiative of a review authority. During the 2023/24 reporting period, there were 21 reviews of summary hearings, representing approximately 5% of summary hearings.

Review authorities for summary hearings can uphold the finding that the member committed the service infraction, quash the finding, or substitute a finding or sanction imposed at a summary hearing.^{Footnote 76} During this reporting period, review authorities upheld 14 findings, quashed 4 findings, and substituted 1 finding. With respect to sanctions imposed at summary hearing, review authorities substituted 3 sanctions and mitigated 3 sanctions. A breakdown of all decisions by summary hearing review authorities for the reporting period can be found at Figure 3.10.

Figure 3.10: Decisions of Summary Hearing Review Authorities

	2023/24
	#	%
Mitigates sanction	3	12.00
Quashes findings	4	16.00
Substitutes findings	1	4.00
Substitutes sanction	3	12.00
Upholds findings	14	56.00
Total	25*	100

*In two cases the review authority made multiple decisions.

 

Language of Summary Hearings

Persons charged with having committed a service infraction have the right for the hearing to be conducted in the official language of their choice. An OCSH is required to be able to understand the language in which a summary hearing is to be conducted without the assistance of an interpreter.

In this reporting period, approximately 85% of summary hearings were conducted in English. Approximately 15% of summary hearings were conducted in French. These numbers are broadly consistent with the previous reporting period. Figure 3.11 shows the total number of summary hearings conducted in English and French for the reporting period.

Figure 3.11: Language at Summary Hearing

	2023/24
	#	%
English	353	84.65
French	64	15.35
Total	417	100.00

 

Courts Martial

Referrals Received by the Director of Military Prosecutions

During this reporting period, the Director of Military Prosecutions received a total of 46 new referrals or requests for charges to proceed for trial by court martial, a decrease of 14 cases from the 2022/23 reporting period. This number does not include referrals that were carried over from the previous reporting period. It is notable that, since the coming into force of Bill C-77 in June 2022, all service offences are referred directly to the Director of Military Prosecutions. There were no referrals during the reporting period in respect of Criminal Code sexual offences. Figure 3.12 shows the number of referrals received by the Director of Military Prosecutions over the last two reporting periods.

Figure 3.12: Referrals Received by the Director of Military Prosecutions

 

Number of Courts Martial

During this reporting period, 46 courts martial were conducted, representing approximately 10% of all proceedings held by service tribunals. This is a slight increase from the 41 courts martial held during the previous reporting period. Of the 46 courts martial, 19 involved contested trials (including two with joint submissions on sentencing), 23 were guilty pleas with joint submissions on sentencing (including one where the accused changed their plea to guilty mid-trial), and 3 were guilty pleas where the sentence was contested. Figure 3.13 sets out the number of courts martial for the past two reporting periods.

The most common service offence disposed of at court martial during this reporting period was conduct to the prejudice of good order and discipline under section 129 of the National Defence Act, which accounted for over 14% of offences. This is a significant decrease from the previous reporting period when prejudice of good order and discipline charges accounted for 25% of service offences. The second most common service offence disposed of at court martial was sexual assault under section 271 of the Criminal Code, accounting for approximately 11% of offences. This is roughly on par with the previous reporting period, when sexual assault accounted for approximately 14% of service offences, but notably lower than the 2021/22 reporting period, when sexual assault accounted for over 21% of service offences disposed of at court martial. This decrease may in part be attributable to the release in November 2021 of the Director of Military Prosecution’s “Interim Direction Regarding the Implementation of Madame Arbour Interim Recommendation” which addressed the transfer of sexual assault cases from the military to the civilian justice system.

Figure 3.13: Number of Courts Martial

 

Results by Case at Court Martial

Of the 46 courts martial held during this reporting period, 35 resulted in a finding of guilty on at least one charge, 9 resulted in a finding of not guilty on all charges or a stay of proceedings, in 1 case the accused was found guilty of a less serious offence, and in 1 case all charges were withdrawn. Figure 3.14 shows the disposition by case for the current reporting period.

Figure 3.14: Disposition of Cases at Court Martial

	2023/24
	#	%
Found Guilty of at Least One Charge	35	76.08
Found Guilty of a Less Serious Offence	1	2.18
Not Guilty of All Charges or Stay of Proceedings	9	19.56
Withdrawal of All Charges	1	2.18
Total	46	100.00

 

Preferrals and Non-Preferrals

During this reporting period, the Director of Military Prosecutions proceeded with charges or preferred charges in 46 cases for trial by courts martial. There were 7 cases where the Director of Military Prosecutions did not proceed with or prefer any charges and no files were referred back to a unit to try the accused person by summary proceeding. Figure 3.15 illustrates the number of cases preferred by the Director of Military Prosecutions and the number of files where no charges were preferred over the past two reporting periods.

Figure 3.15: Number of Cases Disposed of by the Director of Military Prosecutions

Punishments at Court Martial

Figure 3.16 breaks down the punishments imposed by courts martial over the last reporting period. The most common punishments imposed continue to be fines, followed by reprimands.

Figure 3.16: Punishments at Court Martial

	2023/24
	#	%
Imprisonment for two years or more	2	3.39
Dismissal with disgrace from His Majesty’s service	0	0.00
Imprisonment for less than two years	3	5.08
Dismissal from His Majesty’s service	0	0.00
Detention	3	5.08
Reduction in Rank	0	0.00
Forfeiture of Seniority	0	0.00
Severe Reprimand	8	13.56
Reprimand	12	20.34
Minor Punishments	4	6.78
Fine	25	42.38
Absolute discharge*	2	3.39
Total	59	100.00
*An absolute discharge is not a punishment. If a court martial, finding that it is in the best interests of the offender and not contrary to the public interest, directs that an offender be discharged absolutely of an offence, the offender is deemed not to have been convicted of the offence except with respect to appeals and pleas in subsequent proceedings that the offender has already been tried for and convicted of the same offence.