Military Justice

Bill C-77

Key Facts

Details

• With the adoption of Bill C-77, several aspects of the bill have already been implemented, including:
  • Considering the circumstances of Indigenous offenders in the determination of the appropriate sentence and punishments;
  • Ensuring sentencings take into account whether crimes were motivated by bias, prejudice or hate based on gender identity or expression; and
  • Clarifying the circumstances where a person convicted of minor service offences and sentenced to certain punishments (severe reprimand, reprimand, a fine not exceeding basic pay for one month, minor punishments) will not have a criminal record.
• The Canadian Armed Forces are currently conducting wide stakeholder consultation to build the regulatory framework to implement the B C-77. To date, the following entities have been consulted:
  • The Sexual Misconduct Response Centre (SMRC);
  • The External Advisory Council to SMRC;
  • The Final Settlement Agreement Consultation Group;
  • The Policy Centre for Victim Issues;
  • The Directorate Professional Military Conduct-Operation HONOUR;
  • The Federal Ombudsman for Victims of Crime;
  • The Federal-Provincial-Territorial Working Group on Victims of Crime;
  • The Ontario Office for Victims of Crime;
  • The group “It’s just 700”;
  • The Canadian Resource Centre for Victims of Crime; and
  • L’Association québécoise Plaidoyer Victimes.
• More general stakeholder engagement has also taken place with:
  • Public Prosecution Service of Canada (PPSC);
  • Royal Canadian Mounted Policy (RCMP);
  • Correctional Service of Canada (CSC);
  • Parole Board of Canada (PBC);
  • Ontario Provincial Police (OPP);
  • Canadian Forces Legal Advisor (CFLA);
  • Director of Military Prosecutions (DMP);
  • The Canadian Armed Forces Discipline Advisory Council (CAFDAC)
  • Military Police Group (MP GP); and
  • Integrated Conflict and Complaint Management (ICCM).

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Independent Review of the National Defence Act

Key Facts

Details

• Under Section 273.601 of the National Defence Act (NDA), the Minister of National Defence is required to initiate an independent review of specified provisions of the Act and its operation.
• The report from the independent review is to be tabled in Parliament within a specified timeline, pursuant to subsection 273.601(2) of the NDA.
• The report from the third independent review is expected to be tabled in June of 2021.
• The independent review may provide recommendations, however, it is the decision of the Government of Canada to accept the recommendations or not.
• Former Chief Justice LeSage’s report included 55 recommendations. These recommendations pertained to military justice, the Military Police, the Military Police Complaints Commission, and the Canadian Armed Forces grievance process.
  • The Government of Canada accepted the majority of the recommendations.
• This first report of review contributed directly to legislative changes to the National Defence Act. For example:
  • An Act to amend the National Defence Act (court martial) and to make a consequential amendment to another Act (Bill C-60);
  • An Act to amend the National Defence Act (military judges) (Bill C-16); and
  • The Strengthening Military Justice in the Defence of Canada Act (Bill C-15).

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Independence of Military Judges

Details

• October 2, 2019: The Chief of the Defence Staff designated, by order, the Deputy Vice Chief of the Defence Staff to exercise the powers and jurisdiction of a commanding officer with respect to any disciplinary matters involving a military judge (CDS Order).
  • There were six court martial decisions recently where defendants argued that the October 2, 2019 CDS Order violated the principles of judicial independence and impartiality guaranteed by section 11(d) of the Canadian Charter of Rights and Freedoms (Charter).
  • In all cases, the courts concluded that the right of an accused to be tried by an independent and impartial tribunal protected by section 11(d) of the Charter was infringed by the October 2, 2019 CDS Order.
  • Two of the six cases proceeded to trial because the Military Judges declared the CDS Order to be of no force and effect and allowed the trials to proceed because they were satisfied that the declaration was sufficient to alleviate concerns related to the finding of lack of independence.
  • Stays of proceedings were ordered by military judges in four other cases. A stay of proceedings has the effect of a finding of not guilty. 
  • The Director of Military Prosecutions, on behalf of the Minister of National Defence, filed Notices of Appeal to the Court Martial Appeal Court of Canada in all four cases where a stay of proceedings was declared.
• September 15, 2020: In response to the decisions where stays of proceedings were granted, the Chief of the Defence Staff suspended the Order, dated October 2, 2019, pending the outcome of the appeals.
  • Following this suspension, there were five cases where defendants argued that the CDS Suspension Order dated 15 September 2020 and Canadian Forces Organisational Order 3763 violated the principles of judicial independence and impartiality guaranteed by section 11(d) of the Charter.
  • In three of these cases, the court concluded that there was no infringement of section 11(d) of the Charter and dismissed the defendants’ applications accordingly.
  • In the other two cases, the courts concluded that the Suspension Order and the Canadian Forces Organisational Order 3763 violated section 11(d) of the Charter respectively and stays of proceedings were ordered.
• November 18, 2020: In response to these latest decisions where stays of proceedings were granted, the Canadian Forces Organisational Order 3763 was re-issued without paragraph 9.
  • Following this amendment to Canadian Forces Organisational Order 3763, there were four cases where defendants argued that the CDS Suspension Order dated 15 September 2020 and amended Canadian Forces Organisational Order 3763 violated the principles of judicial independence and impartiality guaranteed by section 11(d) of the Charter.
  • In three of these cases, the court concluded that there was no infringement of section 11(d) of the Charter and dismissed the defendants’ applications accordingly.
  • In the other case, the court concluded that the Suspension Order and amended Canadian Forces Organisational Order 3763 were insufficient to cure the violation to section 11(d) of the Charter and a termination of proceedings was ordered.
• The Director of Military Prosecutions, on behalf of the Minister of National Defence, filed Notices of Appeal to the Court Martial Appeal Court of Canada in all cases where stays or a termination of proceedings were ordered.
• As of 29 January, 2021: The Court Martial Appeal Courter heard the appeal in the frst four cases in which a stay of proceedings was issued.
  • R v LS Edwards, R v Capt Crépeau, R v Gnr Fontaine and R v Capt Iredale
  • In these cases military judges found that the 2019 CDS Designation Order, designating a CO for disciplinary purposes over military judges, created a lack independence which infringed on the accused rights under section 11(d) of the Canadian Charter of Rights and Freedoms to have their charges heard by “an independent and impartial tribunal”.
  • The appeal decision has not yet been released.

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Independence of the Military Justice System

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