Chapter 1 – Introduction - Court Martial Comprehensive Review – Interim Report

1.1 Background

On 1 September 1999, amendments to the National Defence Act (NDA) came into force that assigned to the Judge Advocate General (JAG) of the Canadian Forces (CF) a statutory responsibility to “conduct, or cause to be conducted, regular reviews of the administration of military justice.”¹

Since that time, a number of separately provided for external reviews² have been conducted that have looked into different aspects of the administration of military justice, including aspects of the summary trial and court martial systems,³ as well as the military prosecution and defence counsel services (DCS).⁴ Additional internal reviews by Office of the Judge Advocate General (OJAG) legal officers have also been undertaken on numerous occasions, and some of these reviews have led to the development of legislative proposals to amend provisions of the NDA relating to the administration of military justice.⁵

JAGs have also fulfilled their responsibility for the conduct of regular reviews of the administration of military justice through Military Justice Stakeholder Interviews. For instance, in December 2012, an Office of the JAG team visited seven locations across Canada where they spoke with representatives of the military chain of command, charge-layers, offenders, summary trial assisting officers, court martial referral authorities, and a variety of other military justice stakeholders, about the administration of military justice. Similar review initiatives took place in 2007 and 2010. These types of initiatives assist the Office of the JAG in understanding the administration of military justice from the perspectives of those who are often most immediately affected within the military justice system.

Since 1999, there have been a number of significant developments in Canada’s military justice system. In terms of legislation, for instance, the Strengthening Military Justice in the Defence of Canada Act received Royal Assent on June 19, 2013.⁶ More recently, Bill C-71 (the Victims Rights in the Military Justice System Act, dealing with victims’ rights and summary trial reform) was introduced in Parliament on June 15, 2015, yet died on the order paper shortly thereafter.⁷ Additionally, several important Court Martial Appeal Court (CMAC) decisions from the last decade have led to other legislative changes. For instance, the R v Trépanier⁸ case from 2008 led to the enactment of Bill C-60⁹ that same year, giving accused persons the right to choose between a court martial in front of a judge presiding alone, or a court martial comprised of a judge and a panel of military members as fact-finders. Similarly, in 2011, the R v LeBlanc¹⁰ case led to the enactment of Bill C-16¹¹ later that year, providing military judges with secure tenure until age 60, in recognition of the constitutional requirement for their judicial independence.¹²

In light of these elements of change, along with others that impact the court martial system, the JAG concluded that a proactive purpose-specific review of the court martial system was desirable. Consequently, on 13 May 2016, the JAG directed that a comprehensive review of the court martial system be conducted (see Terms of Reference – Court Martial Comprehensive Review, included at Annex A (ToR)).

1.2 Scope of the Comprehensive Review

The comprehensive review includes an assessment of the current court martial system’s effectiveness, efficiency, and legitimacy. The review also includes an assessment of whether changes to any features of this system are required or advisable in order to promote greater systemic effectiveness, efficiency, or legitimacy. The review has included consideration of the following subject matter areas:

• The status and institutional structure of tribunals/courts with jurisdiction over service offences, including whether they ought to be: military or civilian in character; permanent or ad hoc entities; and, capable of deploying to austere or hostile environments inside and outside of Canada;
• The status and institutional structure of a prosecution service with responsibility for prosecuting service offences, including whether this service ought to be military or civilian in character, and capable of deploying to austere or hostile environments inside and outside of Canada;
• The mechanism through which defence counsel services are provided to persons accused of committing service offences, including whether such services ought to be: provided by military or civilian lawyers; provided in whole or in part at public expense; and, capable of being provided within austere or hostile environments inside and outside of Canada;
• The substantive body of service offences, including full consideration of whether any current offences ought to be updated or repealed, and whether any additional offences ought to be added;
• The punishments, sanctions, and sentencing laws that apply in respect of service offences, including full consideration of whether any current sentencing provisions ought to be updated or repealed, and whether any additional sentencing options ought to be added;
• The laws of evidence that ought to apply at trials in respect of service offences;
• The rights, grounds, and mechanisms of appeal that ought to exist for the Crown and for persons subject to the Code of Service Discipline (CSD); and,
• The special needs of any particular groups who may interact with the military justice system, including victims, young persons, and aboriginal offenders.

1.3 Composition of the Court Martial Comprehensive Review Team (CMCRT)

The CMCRT was comprised of the following legal officers, assigned to the following roles:

• Col Rob Holman, CD, LL.B., LL.M: DJAG MJ and Director General (DG CMCRT);
• LCdr Mike Madden, CD, LL.B, LL.M.: Senior Legal and Policy Advisor;
• LCdr Clark Colwell, CD, LL.B, LL.M.: Legal and Policy Advisor; and,
• Lt(N) Amélie Aubut, LL.B, LL.M.: Legal and Policy Advisor.

This team brought a wide variety of useful qualifications and experiences to the comprehensive review. Some of these qualifications and experiences are listed below:

• All four members have graduate degrees in law;
• One member has a civil law degree in addition to a common law degree;
• One member also has a Masters degree in the humanties and has done extensive work in criminal law and procedure at the doctoral level;
• Three members have previously served as judicial law clerks at the Supreme Court of Canada (SCC), the Federal Court of Appeal, or the New Brunswick Court of Appeal, respectively;
• Three members have significant experience as legal officers working within the military justice system at the tactical level (either as a military prosecutor or a unit legal advisor);
• Two members have significant experience in providing military justice legal advice in the context of deployed operations; and,
• Three members have significant Canadian Armed Forces (CAF) experience as officers in either regular force or reserve force operational occupations within the Royal Canadian Navy (RCN), the Canadian Army (CA), or the Royal Canadian Air Force (RCAF) (specifically, within the Maritime Surface and Subsurface, Artillery, and Pilot officer occupations) prior to becoming legal officers.

Collectively, the CMCRT was well positioned to receive and understand input from a broad range of internal and external stakeholders, and to undertake the analysis and other work that was required as part of the comprehensive review.

1.4 Definitions and Terminology

As noted above, the CMCR is focused on questions of effectiveness, efficiency, and legitimacy relating to the court martial system.

For the purposes of the comprehensive review, the CMCRT has adopted the following meanings for these terms:

• Effective: successful in producing a desired or intended result;
• Efficient: capable of producing desired results without disproportionate expenditures of resources, time, or energy; and,
• Legitimate: capable of creating and sustaining public belief that a system is appropriate and proper for its purpose, often because of the system’s conformity with recognized principles or accepted rules and standards. The term “public” in this context should be taken to include both the external Canadian and international public, and the internal CAF public.

Furthermore, because that the CMCRT was directed to consider a wide range of topics, and has examined a wide range of options for improving the court martial system, the CMCRT has adopted generalized definitions for several other terms that can usefully be applied to the full spectrum of options and situations that the CMCRT has examined. Throughout this report, the following definitions will be used:

Court martial system / court martial-type system: refers to any justice system that applies to military personnel, and can try military offences. These terms should not necessarily be equated with any particular (e.g.: Anglo-American) model of court martial system, and should not be taken to imply any particular level of military involvement within the system. For instance, the term “court martial system” in this report would equally include systems like those used in Australia (where legally-trained military officers preside as Defence Force Magistrates and Judge Advocates), the United Kingdom (where civilian judges preside at the Court Martial), and Finland (where a specialized form of the ordinary civilian criminal courts – that includes two military members who preside together with one civilian judge – deals with offences by military personnel).

Military offences: refers to offences that fall within the jurisdiction of a court martial system. These offences typically involve more serious service misconduct, and any criminal misconduct, by military personnel. The term “military offence” in this report is not intended to include minor service misconduct that is non-criminal in nature, and that many military justice systems characterize as infractions which are dealt with through some form of summary hearing system.

Uniquely military offences: refers to military offences that are uniquely military in character, and that do not have close equivalents under civilian criminal law (e.g.: desertion, disobedience of a lawful command, misconduct in the presence of the enemy, and negligent performance of a military duty).

Civil offences / civilian offences: refers to military offences that are also criminal offences of general application under civilian law (e.g.: sexual assault, theft, possession of a controlled drug), but that are incorporated into a military penal statute.

Military personnel: refers to individuals who are subject to military law. In most countries with military justice systems that are similar to Canada’s, military personnel would include full-time members of the Regular component of the armed forces, and may also include:

• members of the part-time (Reserve) component of the armed forces;
• civilian personnel who are closely integrated into the armed forces on operations or active service;
• members of foreign armed forces who are closely integrated into the armed forces on exchange or secondment; and
• anyone engaged or employed with the armed forces who agrees to be subject to military law.¹³

1.5 Assumptions

The CMCRT made a series of relatively uncontroversial assumptions in order to focus more of its attention on particularly challenging aspects of its review. Each of these assumptions, and the reasons for making the assumptions, are described below.

Assumption #1: A summary discipline system will continue to exist. The CMCRT assumes that some form of a commander-driven and commander-administered summary trial or summary hearing system for dealing with minor and non-criminal service misconduct by military personnel will continue to exist in Canada, separately and apart from any system for dealing with more serious and criminal-like misconduct by military personnel. More specifically, the team has assumed that a summary discipline system that is similar in principle to the system that was recently proposed in Bill C-71¹⁴ – that is to say, a system that provides for summary hearings only in respect of service-related “infractions” that are not offences, and that cannot lead to the imposition of any true penal consequences – will be established within the Canadian military justice system.

Such summary discipline systems exist as central features within national military justice systems of essentially every effective armed force around the world (regardless of the extent to which a court martial-type system has been retained in these national military justice systems). Furthermore, the continued need for a summary discipline system as a means of contributing to the effectiveness of the Canadian Armed Forces was affirmed through an abundance of public and internal consultation input that the CMCRT received.¹⁵ Finally, this assumption is consistent with Canada’s international legal obligations to ensure that members of its armed forces are subject to an internal discipline system.¹⁶

Assumption #2: Some uniquely military offences must continue to exist. The CMCRT assumes that Canadian law must continue to proscribe certain uniquely military offences, either within a national defence statute, or another penal statute.

This assumption is consistent with past Canadian jurisprudence relating to Canada’s parallel system of military justice,¹⁷ and with Canada’s international legal obligations (e.g.: to repress and punish grave breaches of the Geneva Conventions).¹⁸ It also reflects the prevalence of uniquely military offences within the domestic legal systems of essentially every state that has an effective armed force around the world (regardless of the extent to which a court martial-type system has been retained in these states). In order for an armed force to function effectively and to be properly subject to democratic control, the conduct of members of the armed force must be regulated by at least some additional offence-based prohibitions and requirements.

Assumption #3: It must be possible to impose true penal consequences. The CMCRT assumes that any Canadian court martial-type system will need to preserve the possibility for imposing true penal consequences in respect of a military offence. The Supreme Court of Canada has stated that – as a matter of Canadian constitutional law – “a true penal consequence is imprisonment or a fine which, having regard to its magnitude and other relevant factors, is imposed to redress the wrong done to society at large rather than simply to secure compliance.”¹⁹

This assumption is consistent with existing realities both in Canada and around the world (where the possibility of imprisonment or some other form of incarceration exists in respect of many, if not all, military offences in most jurisdictions).

Assumption #4: Any proposed reforms must be constitutional, across the full spectrum of operations. On multiple occasions over the last several years, the Court Martial Appeal Court and the Supreme Court of Canada have upheld the constitutionality of different aspects of the court martial system. No challenges to its constitutionality are pending before any courts. The system is clearly consistent with the provisions of Canada’s Constitution. It remains imperative that constitutional risks within the court martial system be avoided.

Therefore, the CMCRT assumes that, in order to be considered relevant and feasible, any proposed changes to Canada’s court martial system must be based on constitutional grounds, capable of withstanding robust legal scrutiny. The CMCRT assumes this must be so, whether the system is functioning in peacetime or in armed conflict, in Canada or abroad, across the full spectrum of Canadian Armed Forces operations.

All of the above assumptions apply throughout the remainder of this report.

1.6 Method for the Comprehensive Review

Preliminary Remarks – Constitutionality of the Court Martial System. The CMCR commenced its review fully aware of the various constitutional challenges to aspects of the court martial system that have been advanced over the last decades, and was particularly aware of the two recent instances, in 2015 and 2016, where such constitutional challenges were unanimously rejected by the Supreme Court of Canada.²⁰ Based on these decisions and on numerous independent reviews of the court martial system over the years (discussed in more detail in Chapter 3, below), the CMCRT recognized clearly that – as of the time of writing – there is no constitutional necessity to change any particular aspect of the court martial system. Nonetheless, the CMCRT was obligated by its terms of reference to look beyond the constitutionality of the current court martial system. As noted in the Lamer Report, “[t]hose responsible for organizing and administrating Canada’s military justice system have strived, and must continue to strive, to offer a better system than merely that which cannot be constitutionally denied.”²¹

Preliminary Remarks – Good Faith Effort and Intentions. The CMCR was not undertaken in order to look into the levels of effort, motivation, or good intentions that are displayed by any particular actors within the court martial system. The CMCRT took it as a given that all of these actors were working hard in order to fulfill their respective roles within the system, subject to any limits or constraints that are imposed upon them within the current system – and this assumption was validated throughout the CMCR process when it became apparent that all key stakeholders, including prosecutors, judges, defence counsel, and unit-level personnel were striving to their utmost to carry out their roles in the administration of military justice. Nonetheless, the CMCRT was obligated by its terms of reference to look beyond levels of effort and good faith, in order to assess effectiveness, efficiency, and legitimacy within the court martial system and – where any barriers to achieving optimized levels of these core principles could be identified – to develop options for eliminating or reducing such barriers. The CMCR was undertaken with this fundamental approach in mind.

History. The CMCRT reviewed the history and evolution of the court martial system from its origins in British and Canadian law up to the present. With a complete understanding of how and why the system has developed over time, the CMCRT was better situated to assess the effectiveness, efficiency, and legitimacy of the system today, and to develop options for enhancing the system that are consistent with its contemporary purpose.

Review of Previous Critical Perspectives of the System. The CMCRT carefully studied a number of useful sources of information that have critically assessed or offered comment upon the current court martial system from 1997-2016. These sources were drawn from the following broad categories of material: objective, external, or independent reviews of the system; subjective and internal studies of the system; Canadian academic and media commentary on the system; and, international law discourse relevant to the system. Through awareness of how the court martial system has been perceived and assessed by others prior to the start of the current comprehensive review, the CMCRT was properly positioned to conduct a current assessment of the system’s effectiveness, efficiency, and legitimacy.

Consultation. The CMCRT engaged in extensive consultation with a variety of stakeholders from both within and outside of the CAF, in Canada and in other countries. Four types of consultation were undertaken: public consultation; internal CAF consultation; targeted expert consultation; and, other government department consultation. The purpose of this broad consultation effort was to ensure that the CMCRT – a relatively small and homogenous group of CAF legal officers – could take advantage of the opinions, ideas, experiences, and lessons learned that could be drawn from a much wider and more diverse group of contributors.

The consultation that was undertaken yielded many benefits:

• it informed, and often confirmed, aspects of the court martial system theory that was being developed;
• it provided frames of reference through which the CMCRT could assess the effectiveness, efficiency, and legitimacy of the current court martial system, or of any options under consideration for the enhancement of this system; and,
• it provided the CMCRT with a wide range of ideas for enhancement to consider in respect of almost every subject area under consideration by the team.

An overview of the consultation that was conducted, and of the results of this consultation, is contained within Chapter 4.

Comparative Analysis. The CMCRT studied in depth the court martial systems of ten other countries that all differ significantly in certain ways from the Canadian court martial system. The CMCRT then conducted in-depth technical visits with military justice experts from these countries, including lawyers, judges, administrators, and members of the military chain of command. In addition to these technical visits, the CMCRT also took advantage of opportunities for less in-depth knowledge exchanges with military justice experts from Singapore and Israel, as part of other visits to these places that were being conducted by OJAG legal officers. All of the information that was gained through these technical visits and knowledge exchanges fed into the CMCRT’s comparative analysis of how other countries structure and operate their court martial systems. Many valuable insights and lessons were gained as a result of this comparative analysis, a complete description of which is included at Chapter 5.

Theory. Based on the CMCRT’s historical, consultative, and comparative analyses, the CMCRT elaborated a theoretical model that attempts to describe what Canada’s court martial system can and should be intended to accomplish. This model considers the fundamental purpose of the system, the key principles that must animate the system if it is to achieve its purpose, and the features that the system requires in support of each key principle. This model serves as the CMCRT’s basis for assessing effectiveness, efficiency, and legitimacy (of both the existing court martial system and any proposed options to improve the system), and is described in detail in Chapter 6.

Assessment of the Current System. Informed by the CMCRT’s historical, consultative, and comparative analyses, and the development of a mature court martial system theory, the CMCRT assessed the current court martial system’s effectiveness, efficiency, and legitimacy. This assessment was undertaken in reliance on a combination of qualitative and quantitative data about the system that was collected in an effort to determine whether the current system was optimized from the perspectives of effectiveness, efficiency, and legitimacy.

Since the members of CMCRT were not experts in quantitative data analysis and systemic performance measurement, the CMCRT enlisted the assistance of specialists from within the Department of National Defence’s (DND) Assistant Deputy Minister (Review Services) (ADM (RS)) organization for the purposes of assisting the team in assessing the effectiveness and efficiency of the current court martial system. The assistance provided by these external experts proved invaluable. They successfully sought and obtained quantitative and qualitative data from internal CAF, and external Canadian and foreign sources, and performed analysis that was highly relevant to the CMCRT’s review. They brought an informed and objective perspective to the CMCRT’s work through their analysis and interpretation of the information that they collected.

The CMCRT concluded that Canada’s court martial system is somewhat effective (mostly in terms of its ability to achieve a public order and welfare purpose), appears to have considerable room for improvements in efficiency, and, as a result, faces challenges to its legitimacy. Consequently, the CMCRT concluded that the court martial system would benefit from enhancements in certain respects. The CMCRT’s full assessment of the current court martial system is provided within Chapter 7.

Development and Consideration of Options for Enhancement. Drawing upon the products of the CMCRT’s historical, consultative, and comparative analyses, and its theory about what Canada’s court martial system can and should strive to achieve, the CMCRT identified multiple options for each of the subject areas under review that would have the potential to enhance effectiveness, efficiency or legitimacy within the system. An introduction to the presentation of options is included at Chapter 8, followed by a description of each option and a discussion of how each option may impact various features of the court martial system within Chapters 9 - 17.

Legal Analysis. The purpose of the comprehensive review is to conduct a legal and policy analysis of all aspects of the CAF’s court martial system and – where appropriate – to develop and analyse options to enhance the effectiveness, efficiency, and legitimacy of that system. The legal analysis that was necessary to support the policy analysis of this draft was undertaken by the Court Martial Comprehensive Review Team (CMCRT), with input from experts within the Department of Justice, and is not discussed within the body of the current report. This body of this report incorporates the CMCRT’s complete policy analysis, including an assessment of the current court martial system and a full description of options that could, from a policy perspective, enhance the court martial system’s effectiveness, efficiency, and legitimacy.

1.7 Conclusion

Consistent with amended terms of reference dated 12 July 2017 (see Amended Terms of Reference – Court Martial Comprehensive Review, included at Annex B), this report provides a policy-based analysis and discussion of options for enhancing the court martial system. Any decision to develop one of the included – or any other – options for improving the court martial system in more detail would need to be made by the JAG. Thus, while the Court Martial Comprehensive Review has been both thorough and extensive, it is just the first step in what may lead to other action that would more definitively advance changes to the court martial system.

In the chapters that follow, the CMCRT has worked to provide a critical blueprint for future evolution of the court martial system. This comprehensive review represents an important mechanism through which the JAG can continue to discharge her statutory responsibilities, and through which the Minister, CAF leaders and members, and the broader Canadian public can continue to have confidence in Canada’s ability to operate a fair and effective court martial system.

Footnotes

¹ National Defence Act, RSC 1985, c N-5, s 9.2(2) [NDA].

² The Act to amend the National Defence Act and to make consequential amendments to other Acts, SC 1988, c 35, s 96, required the Minister of National Defence to undertake these reviews and to cause the reports of these reviews to be laid before each House of Parliament. In other cases, purpose specific reviews have been initiated by, for instance, the Director of Military Prosecutions.

³ For example, in September 2003, the retired former Chief Justice of Canada, Antonio Lamer, completed the first independent review of Bill C-25. See: Canada, Department of National Defence, The First Independent Review by the Right Honourable Antonio Lamer P.C., C.C., C.D. of the provisions and operation of Bill C-25 An Act to amend the National Defence Act and to make consequential amendments to other Acts, as required under section 96 of Statutes of Canada 1998, c.35 (Ottawa: Department of National Defence, 2003) [Lamer Report]. This review focused on three main areas: aspects of the administration of military justice, the Canadian Forces’ grievance process, and the military police complaints process. The report concluded “the military justice system is generally working well” with “room for improvement.” The report included 88 recommendations for improvement.

In December 2011, the second independent review of the provisions and operation of Bill C-25 was completed. This review dealt with aspects of the administration of military justice, the Canadian Forces’ grievance process, and the military police complaints process. It was conducted by retired Chief Justice of the Ontario Superior Court, the Honourable Patrick J. LeSage (Canada, Department of National Defence, Report of the Second Independent Review Authority to The Honourable Peter G. MacKay, Minister of National Defence, by The Honourable Patrick J. LeSage (Ottawa: Department of National Defence, 2011) [Lesage Report]). The report again found that “regarding the operation of the military justice system, specifically the summary trial and court martial processes, the system is generally working well.” The report included 55 recommendations for improvement in a variety of areas.

⁴ See Andrejs Berzins, Q.C., and Malcolm Lindsay, Q.C., External Review of the Canadian Military Prosecution Service, Ottawa: Bronson Consulting Group, 31 March 2008 [Bronson Report (DMP)], and External Review of Defence Counsel Services, Ottawa: Bronson Consulting Group, 15 September 2009 [Bronson Report (DDCS)], respectively.

⁵ For instance, in 2004, a JAG Internal Review Team [JIRT] was created to provide a departmental response to the Lamer Report, supra note 3. Similarly, in 2010, a Military Justice Strategic Review Team was created that was responsible for the policy development behind Bill C-15, Strengthening Military Justice in the Defence of Canada Act, SC 2013, c 24.

⁶ Strengthening Military Justice in the Defence of Canada Act, SC 2013, c 24. As of the time of writing, much of this Act is not yet in force. However, it is anticipated that almost all provisions of the Act will be brought into force within approximately one year from the date on which this report is submitted.

⁷ Bill C-71, The Victims Rights in the Military Justice System Act, 2nd Sess, 41th Parl, 2015 (died on the order of paper).

⁸ R v JSKT, 2008 CMAC 3.

⁹ Bill C-60, An Act to amend the National Defence Act (court martial) and to make a consequential amendment to another Act,

¹⁰ R v Leblanc, 2011 CMAC 2.

¹¹ Bill C-16, Security of Tenure of Military Judges Act, SC 2011, c 22.

¹² Ibid.

¹³ See, for instance, NDA, supra note 1, ss 60(1)(f) and (j) for examples of how such individuals may be brought under the jurisdiction of a court martial system.

¹⁴ Supra note 7.

¹⁵ This consultation is described in more detail, below, at Chapter 4 (Consultation).

¹⁶ Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts (Protocol I), 1125 UNTS 3 (opened for signature 8 June 1977, entered into force 7 December 1979) [AP I], art 43, requires states to ensure that their “armed forces shall be subject to an internal disciplinary system which, ' inter alia ', shall enforce compliance with the rules of international law applicable in armed conflict.”

¹⁷ See, for instance, R v Généreux, [1992] 1 SCR 259, at 293: “special service tribunals, rather than the ordinary courts, have been given jurisdiction to punish breaches of the Code of Service Discipline. Recourse to the ordinary criminal courts would, as a general rule, be inadequate to serve the particular disciplinary needs of the military. There is thus a need for separate tribunals to enforce special disciplinary standards in the military.”

¹⁸ AP I, supra note 16, art 43(1):

The armed forces of a Party to a conflict consist of all organized armed forces, groups and units which are under a command responsible to that Party for the conduct of its subordinates, even if that Party is represented by a government or an authority not recognized by an adverse Party. Such armed forces shall be subject to an internal disciplinary system which, ' inter alia ', shall enforce compliance with the rules of international law applicable in armed conflict”; see also, AP I, art 86(1): “The High Contracting Parties and the Parties to the conflict shall repress grave breaches, and take measures necessary to suppress all other breaches, of the Conventions or of this Protocol which result from a failure to act when under a duty to do so.

¹⁹ Guindon v Canada, 2015 SCC 41, at para 75. As the SCC reaffirmed in the Guindon case, the legal and constitutional significance of characterizing a punishment as a “true penal consequence” is that a person who is charged with an offence for which a true penal consequence can be imposed is entitled to the protection of all of the rights provided for under section 11 of the Charter of Rights and Freedoms, including the right to be tried within a reasonable time, and the right to be to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal. This same significance attaches – regardless of the punishment that may be imposed – when a person charged with an offence is subjected to a proceeding that is criminal in nature.

²⁰ R v Moriarity, 2015 SCC 55; R v Cawthorne, 2016 SCC 32.

²¹ Lamer Report, supra note 3 at 1.