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VI. Courts Martial

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  1. Delay in the Court Martial System
    1. Overview
    2. Initiatives of the Canadian Armed Forces
    3. Pleas of Guilty and Case Management
    4. Increased Use of Technology
    5. Preliminary Proceedings
  2. Military Rules of Evidence
  3. General Courts Martial
    1. Re-Elections for General Courts Martial
    2. Composition of General Court Martial Panels
    3. Objections to the Constitution of the General Court Martial
    4. Decisions of the General Court Martial Panel
  4. Sentencing Process
  5. Rights of Appeal to the Court Martial Appeal Court of Canada
  6. Constitution of the Court Martial Appeal Court of Canada
  1. As I mentioned previously, the military justice system tries cases by summary trials or by courts martial. Any person subject to the Code of Service Discipline (“CSD”) can be tried by court martial for any service offence.Footnote 471 From 2015-2016 to 2019-2020, there were 54 courts martial per year on average, and they represented 8.1 per cent of all trials in the military justice system over the period.Footnote 472
  2. Courts martial are “designed to deal with more serious offences and [have] powers of punishment up to and including imprisonment for life”.Footnote 473 Proceedings at court martial are in some ways akin to proceedings before criminal courts: the court is presided over by a military judge, a military prosecutor represents the Crown, the accused is entitled to legal representation by defence counsel, the proceedings are adversarial, and detailed rules of evidence apply. But several differences exist, either as a reflection of the unique purposes and constraints of the military justice system, or as a result of it having ignored or rejected reforms of the civilian justice system.
  3. Two types of courts martial can be convened. A general court martial “is composed of a military judge and a panel of five members” of the Canadian Armed Forces (“CAF”).Footnote 474 The panel decides all questions of fact and determines the innocence or guilt of the accused.Footnote 475 The military judge determines all questions of law or of mixed law and fact and imposes sentences.Footnote 476 By comparison, a standing court martial is composed of a military judge alone.Footnote 477
  4. Court martial decisions can be appealed to the Court Martial Appeal Court of Canada (“CMAC”). The CMAC is a superior court of recordFootnote 478 composed of civilian judges cross-appointed by the Governor in Council from the judges of the Federal Court of Appeal, the Federal Court or provincial and territorial superior courts of criminal jurisdiction.Footnote 479 Some judgments of the CMAC can be appealed to the Supreme Court of Canada.Footnote 480
  5. Delay is the main concern which was brought to my attention in relation to the court martial system. Minimizing delay in the court martial system is of paramount importance because addressing breaches of military discipline promptly is essential to maintaining the discipline, efficiency and morale of the military. I have already recommended a number of changes to address the problem of delay in the court martial system, including establishing a permanent Military Court of Canada,Footnote 481 granting members of the uniformed military police the authority to lay charges for service offencesFootnote 482 and removing referral authorities from the operation of the referral process.Footnote 483 Additional recommendations with the same objective appear below.
  6. My other recommendations concern the Military Rules of EvidenceFootnote 484(“MRE”); the composition, constitution and decisions of general court martial panels; the sentencing process; the rights of appeal to the CMAC and the composition of the CMAC.
    1. Delay in the Court Martial System
      1. Overview
        1. The distinct purpose of the military justice system is “to allow the Armed Forces to deal with matters that pertain directly to the discipline, efficiency and morale of the military”.Footnote 485 In Généreux, Chief Justice Lamer wrote that “the military must be in a position to enforce internal discipline effectively and efficiently. Breaches of military discipline must be dealt with speedily […]”.Footnote 486 Less than two years ago, the majority of the Supreme Court of Canada reiterated in Stillman that “responding swiftly to misconduct within the military” enhances “discipline, efficiency, and morale in the military”.Footnote 487
        2. Accordingly, the NDA provides that “[c]harges laid under the Code of Service Discipline shall be dealt with as expeditiously as the circumstances permit”.Footnote 488 Summary trials are completed significantly faster than most criminal trials in the civilian justice system.
        3. However, the same cannot be said of courts martial. I was informed by the Office of the JAG (“OJAG”) that, from 2013-2014 to 2017-2018,Footnote 489 the average time to dispose of a charge at court martial was 384 days from the laying of the charge to the completion of the trial.Footnote 490 The OJAG stated that, by comparison, “Statistics Canada data from 2018/2019 identifies a median elapsed time of almost five months (139 days) to process a case in the adult criminal courts of the [civilian justice system] from a person’s first court appearance to the completion of their case”.Footnote 491
        4. The comparison is complicated by differences in processes, methodological differences in the available data and regional variance in the civilian justice system. But the data suggests that, as a general rule, trials by court martial currently take longer than most comparable trials in the civilian justice system. The analyses conducted by the authors of the Court Martial Comprehensive Review Report in 2017Footnote 492 and by the Auditor General of Canada in 2018 support this conclusion.Footnote 493
        5. The Auditor General of Canada recommended that:
          1. “[t]he Canadian Armed Forces […] review its military justice processes to identify the causes of delays and to implement corrective measures to reduce them”;Footnote 494
          2. “[t]he Canadian Armed Forces […] define and communicate time standards for every phase of the military justice process and ensure there is a process for tracking and enforcing them”;Footnote 495
          3. “[t]he Canadian Armed Forces […] put in place a case management system that contains the information needed to monitor and manage the progress and completion of military justice cases”;Footnote 496 and
          4. “[t]he Office of the Judge Advocate General and the Canadian Armed Forces […] regularly assess the efficiency and effectiveness of the administration of the military justice system and correct any identified weaknesses”.Footnote 497
      2. Initiatives of the Canadian Armed Forces
        1. In response to these recommendations, the OJAG established the Military Justice System Time Standards. They indicate that a maximum of 18 months should elapse between the laying of charges and the completion of a court martial.Footnote 498 The OJAG also participated to two additional initiatives of the CAF and Department of National Defence (“DND”):
          1. In collaboration with the OJAG, the Assistant Deputy Minister (Information Management) designed the Justice Administration and Information Management System (“JAIMS”). The JAIMS is an electronic case management tool and database expected to “track military justice files from the reporting of an alleged offence, through to investigation, charge-laying, trial disposition, and review in both the summary trial and court martial processes”.Footnote 499 The Military Justice System Time Standards will be “incorporated into JAIMS, ensuring that users are prompted to provide a justification in the event a time standard has not been met”.Footnote 500 The JAIMS will also have interoperability with the case management system of the Canadian Military Prosecution Service (“CMPS”) launched on June 1, 2018.Footnote 501
          2. The OJAG was also involved in the development of a Military Justice System Performance Monitoring Framework (“PMF”). The PMF “ultimately aims to enhance the effectiveness, efficiency, and legitimacy of the military justice system” by measuring its global performance, as well as its individual components’ performance, against the broad objectives of the military justice system.Footnote 502 The PMF will be integrated into the JAIMS and source much of its data from it.Footnote 503

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        2. These initiatives are promising. However, I am troubled by the time required to implement them. The JAIMS was initially expected to be “piloted beginning in January 2019 and […] launched in September 2019”.Footnote 504 Having enquired about its status, I was told in March 2021 that the “core functionality” of the JAIMS had so far only been launched to certain units in 4th Canadian Division Support Base Petawawa, and that “[t]he development and testing of more advanced functionality” were currently ongoing.Footnote 505 In particular, I understand that the features of the JAIMS which relate to the court martial system are not yet operational. I understand that the development and rollout of the JAIMS have been complicated by the COVID-19 pandemic.Footnote 506 But I recommend that every effort be made to achieve full implementation and operation of the JAIMS and the PMF as soon as possible.
          • Recommendation #50. The Justice Administration and Information Management System and Military Justice System Performance Monitoring Framework should be developed and start operating in all elements of the Canadian Armed Forces as soon as possible. The Canadian Armed Forces and the Department of National Defence should prioritize their development to meet this objective.
        3. Once the JAIMS and the PMF are fully implemented, the JAG should have a better view of the causes of systemic delays in the court martial system. She should then identify necessary reforms and recommend their implementation to the appropriate authorities, without waiting for the next independent review.
      3. Pleas of Guilty and Case Management
        1. Currently, the accused is called on by a military judge to plead at the beginning of a court martial.Footnote 507 If the accused pleads not guilty to any of the charges, the trial immediately proceeds. If the accused pleads guilty to all charges, the military judge discharges the panel, if there is one, and proceeds to pass sentence.Footnote 508
        2. Section 191.1 of the NDA provides that an accused’s plea of guilty may, “on application”, be received by “the military judge assigned to preside at the court martial”, “at any time after a General Court Martial is convened but before the panel of the court martial assembles”. A preliminary plea of guilty of this sort may not be received by video conferencing, even if all parties consent.Footnote 509 Curiously, despite the fact that standing courts martial form the vast majority of courts martial,Footnote 510 no provision of the NDA explicitly deals with pleas of guilty in cases where standing courts martial are convened.Footnote 511 An explicit provision will be inserted once the remaining provisions of Bill C-77Footnote 512 come into force.Footnote 513
        3. The current system is ill-designed to encourage the taking of pleas at the earliest opportunity. I see no reason to wait for the court martial to be convened, which may happen several months after the preferral of charges by the DMP.Footnote 514 Or to require the accused to proactively make an application. Or not to allow all military judges to receive a plea of guilty, whichever judge is assigned to the court martial. Or not to allow pleas of guilty by video conferencing.
        4. The complexity of the current construct may explain the conclusion reached by the authors of the Court Martial Comprehensive Review Report that “as the system currently stands, guilty pleas occur on the first day set down for trial, in the tribunal’s convened location (one that often requires travel on the part of the military judge, court reporter, defence counsel, and military prosecutor), even if all parties know that the guilty plea is going to occur”.Footnote 515
        5. The military prosecutors who briefed my team informed me that, in the three most recent years where statistics as to guilty pleas were recorded (2013-2014 to 2015-2016), trials resolved entirely by guilty pleas amounted respectively to 64 per cent, 52 per cent and 67 per cent of all trials by court martial. Taking guilty pleas at the earliest opportunity would therefore help significantly to reduce delays in the court martial system.
        6. The practice in the Court Martial of the United Kingdom is instructive, from the standpoint of comparative law. The Judge Advocate General of the Armed Forces issued a Practice Memorandum meant to “to ensure that cases in the Court Martial are dealt with as expeditiously as possible”.Footnote 516 In most cases, a Plea and Trial Preparation Hearing (“PTPH”)must be held “within 28 days of the case papers being received at the Military Court Service”.Footnote 517 If defence advises, “in advance of the PTPH, that the case is to proceed as a guilty plea, the PTPH can be replaced by a plea and sentence hearing” in several cases.Footnote 518 “If the defendant pleads not guilty, the judge, assisted by prosecution and defence legal representatives, will establish the issues in the case and a timetable will be set to ensure the case can be properly prepared for trial”.Footnote 519
        7. In my view, it would be highly beneficial to implement analogous practices in Canada, whether or not my recommendation to establish a permanent Military Court of Canada is implemented.Footnote 520
          • Recommendation #51. Sections 189.1 and/or 191.1 of the National Defence Act should be amended to provide that an accused person’s plea of guilty may be received by any military judge, at any time after a charge has been preferred but before the commencement of the trial.
          • Subsection 112.64(2) of the Queen’s Regulations and Orders for the Canadian Forces should be repealed.
          • As a general rule, a pre-trial hearing should be convened within 28 days of the preferral of charges by the Director of Military Prosecutions. The accused should be called on to plead at that pre-trial hearing. The military judge and the parties should subsequently discuss case management.
      4. Increased Use of Technology
        1. Today’s information and communications technology is not only instrumental in ensuring the future portability, deployability and flexibility of the military justice system. It can also greatly expedite proceedings by removing travel requirements.
        2. I recommend that the QR&O be amended to allow increased use of technology to facilitate remote attendance by any person in court martial proceedings,Footnote 521 and to repeal provisions which unduly restrict its use. For example, under the current rules, the parties may only appear at preliminary proceedings by video conferencing if both the prosecution and the defence agree, and the military judge so orders.Footnote 522 The same rule applies to the appearance of witnesses by video conferencing.Footnote 523 In its submissions, the CMPS stated that “[p]roper administration of military justice would be better served by leaving the discretion to authorize remote participation in the hands of the military judge”.Footnote 524 I agree with this submission. If my recommendations to establish judicial search and arrest warrant regimes are implemented,Footnote 525 the NDA could be amended to allow telewarrants in this context. I should, of course, not be understood to have identified all circumstances in which increased use of technology would be beneficial.
          • Recommendation #52. The National Defence Act or the Queen’s Regulations and Orders for the Canadian Forces, as appropriate, should be amended to allow increased use of technology to facilitate remote attendance by any person in court martial proceedings, and to repeal provisions which unduly restrict its use, including subsections 112.64(1) and 112.65(1) of the Queen’s Regulations and Orders for the Canadian Forces.
          • In the performance of her superintendence of the administration of military justice in the Canadian Forces, the Judge Advocate General should collaborate with the Office of the Chief Military Judge, the Canadian Military Prosecution Service and the Directorate of Defence Counsel Services to identify the desirable amendments.
      5. Preliminary Proceedings
        1. Section 187 of the NDA provides that “[a]t any time after a charge has been preferred but before the commencement of the trial, any question, matter or objection in respect of the charge may, on application, be heard and determined by a military judge or, if the court martial has been convened, the military judge assigned to preside at the court martial”. By contrast, the Court Martial Rules of Practice (“CMRP”) do not allow preliminary applications prior to the convening of a court martial. They provide that “[a]n application may be commenced at any time after a military judge has been assigned to preside and a court martial has been convened”.Footnote 526
        2. Chief Justice LeSage expressed the view that any military judge, not only the military judge assigned to a court martial, should have authority to hear and decide preliminary issues, even after the court martial has been convened. He recommended an amendment to section 187 of the NDA which was not implemented.Footnote 527 I agree with his recommendation.
          • Recommendation #53. The words “or, if the court martial has been convened, the military judge assigned to preside at the court martial” should be repealed from section 187 of the National Defence Act to allow any military judge to hear and decide preliminary issues, even after the court martial has been convened.

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        3. The issue of evidence in preliminary proceedings was also brought to my attention. The CMPS informed me that section 182 of the NDA “is applied, without distinction, to pre-trial applications and to the trial itself”.Footnote 528 Pursuant to this provision, courts martial may only receive statutory declarations (affidavits) as evidence of the facts stated in them if both parties agree. If not, the statutory declaration has no probative value, and the person making it is required to be examined in court, which clearly increases the length of hearings. The CMPS submitted that “[c]onsideratio[n] should be given to allow evidence by affidavit in support of applications as the default mode of presentation of evidence, with an option for cross-examination” of the person making the declaration by the other party.Footnote 529 I agree with this submission.
          • Recommendation #54. The National Defence Act and the Queen’s Regulations and Orders for the Canadian Forces should be amended to allow evidence in preliminary proceedings to be given by statutory declaration regardless of the opposing party’s consent. The opposing party should have the right to cross-examine the person making the statutory declaration.
    2. Military Rules of Evidence
        1. Subsection 181(1) of the NDA provides that “[t]he Governor in Council may make rules of evidence to be applicable at trials by court martial”. In August 1959, the Governor in Council exercised this power and adopted the Military Rules of Evidence. They were “a codification of the normal evidentiary rules followed by Canadian criminal courts” – at the time – and had the justifiable objective of simplifying the rules of evidence applicable at courts martial and making them more consistent.Footnote 530
        2. Unfortunately, the MRE were not kept abreast of the evolution of common law rules of evidence in Canada. They were amended only twice, in 1990 and 2001, and then again very slightly.Footnote 531 As a result, as the CMPS noted, “[t]hey refer to positions and terminology that no longer [have] any meaning”, and “[t]here are multiple references to QR&O and NDA provisions that no longer correspond to what they were at the time the rules were issued”.Footnote 532 More importantly, they now deviate from common law rules of evidence in many respects. I have been informed that military judges rely on civilian rules either to fill the gaps of the MRE or, on occasion, because they are more favourable to the accused.
        3. Chief Justice LeSage recommended in 2011 that “[t]he Military Rules of Evidence should be superseded by the statutory and common law rules of evidence in the court martial system”.Footnote 533 The OJAG informed me that his recommendation was accepted in principle but not implemented because further study is required, 10 years later.Footnote 534 When I asked for details on the policy work which had already been done and on the nature and extent of the further study, I was told that a detailed search in available records had not revealed any additional information.Footnote 535
        4. I believe that the MRE have lost their raison-d’être. Military judges, prosecutors and defence counsel have sufficient expertise to apply the statutory and common law rules of evidence which apply in civilian courts. None of the participants in my review took issue with the repeal of the MRE, and several encouraged it.
          • Recommendation #55. The Military Rules of Evidence should be repealed and replaced in the court martial system by the statutory and common law rules of evidence.
    3. General Courts Martial
      1. Re-Elections for General Courts Martial
        1. Sections 165.191 to 165.193 of the NDA identify the circumstances in which each type of court is convened:
          1. A standing court martial is mandatory for service offences (except civil offences) punishable by imprisonment for less than two years or less punishment, and for civil offences which are summary conviction offences.Footnote 536
          2. A general court martial must, as a general rule, be convened for all service offences punishable by imprisonment for life and for the civil offences which would, in the civilian justice system, fall within the exclusive jurisdiction of the superior courts of criminal jurisdiction.Footnote 537 In cases where a general court martial would otherwise be required, a standing court martial may instead be convened with the written consent of both the accused and the DMP.Footnote 538
          3. In other circumstances, the “accused person may choose to be tried by General Court Martial or Standing Court Martial”.Footnote 539 The accused make their elections after the charges have been preferred by the DMP. Subsequently, they “may, not later than 30 days before the date set for the commencement of the trial, make a new choice once as of right”.Footnote 540 The written consent of the DMP is required for additional or late re-elections.Footnote 541
        2. An accused may therefore re-elect trial by general court martial 30 days before the commencement of the trial. This re-election prompts the Court Martial Administrator (“CMA”) to constitute a panel. I was informed by the CMA that this delay is too short and “difficult to comply with from an administrative perspective considering the detailed step-by-step process that the Court Martial Administrator must follow”,Footnote 542 which “it normally takes a minimum of two months to complete”.Footnote 543The CMA recommended that the minimum delay for the first re-election as of right be extended to 60 days before the date set for the commencement of the trial.Footnote 544 I agree with this recommendation, noting that the same delay applies to certain re-elections in the civilian justice system.Footnote 545
          • Recommendation #56. Subsection 165.193(4) of the National Defence Act should be amended to replace the words “30 days” by the words “60 days”.
      2. Composition of General Court Martial Panels
        1. Section 167 of the NDA describes the composition of a general court martial. It restricts the pool of eligible panel members depending on the rank of the accused:
          • 167 (1) A General Court Martial is composed of a military judge and a panel of five members.
          • (2) The senior member of the panel must be an officer of or above the rank of lieutenant-colonel. […]
          • (4) If the accused person is of or above the rank of brigadier-general, the senior member of the panel must be an officer of or above the rank of the accused person and the other members of the panel must be of or above the rank of colonel.
          • (5) If the accused person is of the rank of colonel, the senior member of the panel must be an officer of or above the rank of the accused person and the other members of the panel must be of or above the rank of lieutenant-colonel.
          • (6) If the accused person is an officer of or below the rank of lieutenant-colonel, the members of the panel other than the senior member must be of or above the rank of the accused person.
          • (7) If the accused person is a non-commissioned member, the panel is composed of the senior member, one other officer and three non-commissioned members who are of or above both the rank of the accused person and the rank of sergeant.
        2. Some have advocated for panel composition rules that do not depend on the rank of the accused. In 2009, for example, the Standing Senate Committee on Legal and Constitutional Affairs stated that “absent a compelling rationale for retaining them, [distinctions based on rank] are contrary to the spirit of equality before the law embodied in section 15 of the Charter, and should therefore be eliminated”.Footnote 546
        3. I recognize the importance of providing equal justice to all members of the CAF. But formally equal treatment may not, in fact, lead to substantially equal justice. It is important to remember that the military justice system operates in a highly hierarchical institution. Panel members hold rank. This creates a risk that they may consider the accused’s rank, the rank of complainants or witnesses, or the wishes of the military hierarchy in reaching their decisions. Unless the panel system is abolished, this concern is unavoidable. But it can be minimized in a number of ways.
        4. To reduce the risk that panel members will inappropriately defer to the wishes of the chain of command, special care should be taken by military judges to ensure that panel members understand their role to act impartially and independently, regardless of other interests such as the chain of command’s or their own. There must also exist structural protections to protect panel members from rewards or reprisals.Footnote 547

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        5. These measures also address the risk that panel members will defer to accused of higher ranks. But the most effective way to minimize this risk is to reduce the circumstances in which members of lower rank than the accused are empanelled. This is the result achieved by subsections 167(6) and 167(7) of the NDA for accused who are non-commissioned members or officers of or below the rank of lieutenant-colonel.
          1. General Courts Martial for Colonels and General Officers
            1. Subsections 167(4) and 167(5) of the NDA take a different approach for accused who are colonels or general officers. Perhaps in recognition of the limited number of officers of the CAF of those ranks, the provisions allow them to be tried by up to four subordinates. Only one panel member has to be “an officer of or above the rank of the accused person”.Footnote 548 Not only does this raise the potential of rank-based influence on panel members: it also creates significant problems in certain cases.
            2. The JAG, Lieutenant-Colonel (retired) François Lareau, Lieutenant-Colonel (retired) Rory G. Fowler and other participants in my review have all raised concern over the fact that subsection 167(4) of the NDA does not allow the Chief of the Defence Staff (“CDS”) to be tried by general court martial. The CDS is at all times the only active member of the Canadian Armed Forces holding the rank of general or admiral. The senior member of the panel can never be of or above the rank of the CDS.
            3. If the accused is a lieutenant-general, a general court martial panel can theoretically be composed. There may nevertheless be significant practical difficulties. I have been informed that there are nine active lieutenant-generals or vice-admirals in the CAF. They routinely interact with each other, and other general officers, to discuss and decide matters related to the command, control and administration of the entire CAF. If one were accused, others would likely be found not to have sufficient impartiality in respect of the accused. No general court martial panel could likely be formed.
            4. The relevance of these gaps in the NDA is made obvious by the recent events. Media accounts report that the current CDS, now on leave, faces investigations for allegations of sexual misconduct not amounting to sexual assault.Footnote 549 Should he be charged, he would only be triable in the military justice system,Footnote 550 where he would have the right to elect trial by general court martial. If this happens, the military justice system may not be able to deliver justice.
            5. A number of potential solutions exist which do not require abolishing the rank-based structure for panels altogether. First, the NDA could prescribe that the general officers of highest ranks only be triable by standing court martial. This solution would possibly be challenged on the basis of section 11(f) of the Canadian Charter of Rights and Freedoms, which “contemplates that there be protection, to the extent possible, equivalent to the civilian jury system”.Footnote 551 Second, general court martial panels for those general officers could be entirely made up of other general officers, irrespective of rank. But this would still allow the most senior officers of the CAF to be judged by their subordinates and would not do away with the risk of rank-based influence.
            6. A third solution was offered by the JAG. She suggested that general officers could, upon their retirement from the CAF, be placed on a roster of candidates for the general courts martial of active general officers. For example, this would allow a former CDS to be the senior member of the general court martial convened to try the serving CDS. The JAG stated that further policy analysis is required for this option.
            7. In my view, this option safeguards both the accused’s right to a general court martial and the military justice system’s ability to deliver impartial and independent justice. To minimize the risk of rank-based influence, all officers of the CAF should as a general rule be judged by officers of or above their rank. The possibility of empanelling retired officers increases the number of eligible candidates and should ensure the applicability of this rule in most cases. Senior officers of the CAF should only be judged by subordinates if there is an insufficient number of eligible and non-objectionable active or retired officers of or above their ranks.
              • Recommendation #57. Subsections 167(4) and 167(5) of the National Defence Act should be amended to provide that, as a general rule, if the accused is of or above the rank of colonel, the members of the panel must be officers of or above the rank of the accused person.
              • If there is an insufficient number of eligible active officers, or if objections are allowed in respect of those who exist, the panel should be completed by retired officers of the Canadian Armed Forces having held the requisite ranks at the time of their retirement.
              • If there is also an insufficient number of eligible retired officers, or if objections are allowed in respect of those who exist, the panel should exceptionally be completed by active officers of the Canadian Armed Forces as little subordinate in rank to the accused as possible.
          2. Joint Trials by General Court Martial
            1. In its submissions, the OJAG stated that “[t]he NDA permits joint trials, [but] since the law provides for different [general court martial] panel compositions for officers and non-commissioned members, situations can arise where officers and non-commissioned members facing charges arising out of the same or related circumstances must nevertheless be tried separately”.Footnote 552 It recommended that an exception be provided in the NDA, but recognized that further policy analysis was “required to determine the exceptional panel composition mechanism, so that it effectively balances the interests of accused members”.Footnote 553
            2. I agree with this recommendation. Provided the rights of the accused are safeguarded, joint trials can improve the efficiency of the military justice system by avoiding separate trials on the same facts. They can also improve its legitimacy by ensuring a consistency of trial outcomes.
              • Recommendation #58. Section 167 of the National Defence Act should be amended to provide for the composition of the general court martial where joint accused are of different ranks.
              • The Judge Advocate General should identify the panel composition rules which will allow joint trials and assure due regard for the rights of each accused.
      3. Objections to the Constitution of the General Court Martial
        1. At the beginning of a general court martial, the prosecution and the accused may object to the constitution of the panel.Footnote 554 No grounds for objection are specified by the NDA or the QR&O. When there is an objection, witnesses may be called by either party or by the court.Footnote 555 The evidence is followed by the parties’ argument.Footnote 556 The final decision is “made by the other members of the panel, on the basis of a majority vote, with the members voting orally in succession beginning with the member lowest in rank”.Footnote 557
        2. In its submissions, the OJAG stated that partiality was not explicitly included as a ground of objection in the military justice system, in contrast to the civilian justice system.Footnote 558 It recommended that “consideration […] be given to whether a challenge for cause on the ground of [lack of] impartiality, akin to paragraph 638(1)(b) of the Criminal Code, should be established in the military justice system”.Footnote 559
        3. I will not make this recommendation. Contrary to the Criminal Code,Footnote 560the NDA and QR&O do not define an exhaustive list of grounds to challenge panel members. The inclusion of a specific ground of partiality is unnecessary and could result in confusion.
        4. The OJAG also recommended that “[c]onsideration […] be given to whether the decision-making authority to remove panel members for cause should shift from the panel members to the military judge”.Footnote 561 I agree with this recommendation, which mirrors the solution applied since 2019 in the civilian justice system.Footnote 562
          • Recommendation #59. Section 112.14 of the Queen’s Regulations and Orders for the Canadian Forces should be amended to provide that an objection with respect to a member of the general court martial panel must be heard and determined by the military judge.
      4. Decisions of the General Court Martial Panel
        1. Subsection 192(2) of the NDA provides that “[a] decision of the panel in respect of a finding of guilty or not guilty, or unfitness to stand trial or of not responsible on account of mental disorder is determined by the unanimous vote of its members. A decision in respect of any other matter is determined by a majority vote”. In every case, the manner of voting remains the same. “The members of a court martial panel […] vote orally in succession, beginning with the member lowest in rank”.Footnote 563
        2. In its submissions, the OJAG recommended that “[c]onsideration […] be given to whether individual panel members should vote by anonymous ballot”, to reduce rank-based influence on panel members.Footnote 564 I agree with this recommendation. It is an example of the structural protections to protect panel members from rewards or reprisals to which I alluded earlier.Footnote 565
          • Recommendation #60. Section 112.413 of the Queen’s Regulations and Orders for the Canadian Forces should be amended to provide that the members of a general court martial panel vote by anonymous ballot.

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    4. Sentencing Process
      1. A number of concerns about the adequacy of the punishments imposed by courts martial were brought to my attention. The majority of participants who addressed this issue, including members of the CAF, told me that the sentences were too lenient. I occasionally heard the opposite preoccupation, particularly with respect to non-violent, non-criminal sexual misconduct incidents. The Sexual Misconduct Response Centre (“SMRC”) and Marie-Claude Gagnon, founder of “It’s Just 700”, told me that such incidents had sometimes been punished disproportionately severely, particularly in the first years of Operation HONOUR.
      2. Once they come into force, the remaining provisions of Bill C-77 will introduce two additional tools on which military judges will be able to rely to determine the appropriate severity of a sentence. In addition to victim impact statements, which they are already required to consider, military judges will also be required to consider military impact statementsFootnote 566 and community impact statements.Footnote 567
      3. In its submissions, the SMRC suggested that pre-sentence reports could be an additional option to enhance the adequacy of the punishments imposed by military judges.Footnote 568 The authors of the Court Martial Comprehensive Review Report had also considered this possibility. Noting that there are no probation officers in the CAF, they had suggested that “CAF social work officers could be trained to draft pre-sentence reports, or the existing resources within the civilian criminal justice system could be leveraged to implement pre-sentencing reports in the court martial system”.Footnote 569 I agree with the principle of the SMRC’s recommendation.
        • Recommendation #61. The National Defence Act should be amended to allow military judges to require that pre-sentence reports relating to the accused be prepared for the purpose of assisting the court martial in imposing a sentence or in determining whether the accused should be discharged. The Canadian Armed Forces should identify the most effective framework for the implementation of a pre-sentence report regime.
    5. Rights of Appeal to the Court Martial Appeal Court of Canada
      1. In their submissions, Colonel (retired) Michel Drapeau and Justice Gilles Létourneau argued that the rights of appeal against the verdicts of courts martial are tipped in favour of the Minister of National Defence (“Minister”).
      2. Persons found guilty by a criminal court in proceedings by indictment can appeal against their convictions on questions of law and, with leave, “on any ground of appeal that involves a question of fact or a question of mixed law and fact” or “on any [other] ground of appeal […] that appears to the court of appeal to be a sufficient ground of appeal”.Footnote 570 On the contrary, persons found guilty by a court martial can only appeal findings of guilty on the basis of their “legality”,Footnote 571 which is “deemed to relate either to questions of law alone or to questions of mixed law and fact”.Footnote 572 I see no reason which would justify that members of the CAF have narrower rights of appeal.Footnote 573
        • Recommendation #62. In addition to their current rights of appeal, accused persons in court martial proceedings should have the right to appeal, with leave of the Court Martial Appeal Court of Canada or a judge thereof, any finding of guilty on (a) any ground of appeal that involves a question of fact; or (b) any ground of appeal that appears to the Court Martial Appeal Court of Canada to be a sufficient ground of appeal. The National Defence Act should be amended accordingly.
      3. Colonel Drapeau and Justice Létourneau also recommended that the right of the Minister (or of the counsel instructed by him for that purpose) to appeal findings of not guilty on the basis of questions of mixed law and fact should be repealed.Footnote 574 In the civilian justice system, the Crown can only appeal “against a judgment or verdict of acquittal […] in proceedings by indictment on any ground of appeal that involves a question of law alone”.Footnote 575
      4. I am not convinced that the Minister’s broader rights of appeal in the military justice system are unjustified. I believe that the distinct purposes of the military justice system and the risk of rank-based influence on general court martial panel members are sufficient justifications for allowing questions of mixed law and fact to be considered in appeals against acquittals. However, for a better protection of the accused, I recommend that the CMAC’s leave be required for such questions.
        • Recommendation #63. The National Defence Act should be amended to provide that the Minister, or counsel instructed by him for that purpose, has the right to appeal to the Court Martial Appeal Court of Canada in respect of any finding of not guilty at a court martial (a) on any ground of appeal that involves a question of law alone; or (b) on any ground of appeal that involves a question of mixed law and fact, with leave of the Court Martial Appeal Court of Canada or a judge thereof.
    6. Constitution of the Court Martial Appeal Court of Canada
      1. Subsection 234(2) of the NDA provides that “[t]he judges of the Court Martial Appeal Court are […] not fewer than four judges of the Federal Court of Appeal or the Federal Court to be designated by the Governor in Council; and […] any additional judges of a superior court of criminal jurisdiction who are appointed by the Governor in Council”.
      2. The CMAC is currently composed of the Chief Justice and 56 additional judges. The number of CMAC judges is significantly higher than the number of Federal Appeal Court judges.Footnote 576 It also appears disproportionate to the workload of the CMAC. I have been informed by the CMAC that over a period of 15 years (from January 1, 2005 to December 31, 2020), its judges sat a total of 76 days and rendered 79 judgments.
      3. A number of participants in my review, including external commentators and officials of the CAF, have suggested that the number of CMAC judges could be reduced. I agree with this suggestion. A smaller roster of judges would ensure that each CMAC judge would have sufficient exposure to cases to become proficient in matters of military law and justice.
      4. Any restructuring of the bench should, however, preserve a sufficient level of criminal law experience in the CMAC. Some Federal Court of Appeal or Federal Court judges may have criminal law experience, but most criminal law cases are adjudicated in superior courts of criminal jurisdiction and provincial and territorial courts of appeal.
        • Recommendation #64. The Court Martial Appeal Court of Canada should be composed of 10 to 20 judges with significant criminal law experience. A majority should be judges of a superior court of criminal jurisdiction or a provincial or territorial court of appeal. Section 234 of the National Defence Act should be amended accordingly.

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