Chapter 4 – Consultation
4.1 Introduction
The CMCRT was directed in its Terms of Reference to consult widely as it executed its mandate, including with the Canadian Public, other government departments, international experts, and senior CAF leaders. The CMCRT’s consultation with international experts and the resulting comparative analysis that flowed from these consultations is described below in Chapter 5. This chapter describes the CMCRT’s other consultation efforts, including with the Canadian Public, targeted consultations with known experts and stakeholders, and with internal stakeholders inside the Canadian Armed Forces. This chapter then summarizes what was learned through these engagements.
It must be emphasized that this chapter simply recounts what was communicated to the CMCRT by others. The CMCRT is not attempting to endorse, support, justify, criticize, or undermine any of the viewpoints expressed by contributors.1
Some consultations yielded comments on topics outside of the CMCRT’s mandate (for example, investigations, military policing, and summary trials). Where appropriate, the CMCRT forwarded such comments on to the relevant NDHQ directorate. However, as these comments were outside of the team’s mandate, the CMCRT captured in the report where they were made but did not reproduce their substantive content. Where any input received intersected with areas both inside and outside of the CMCRT’s mandate, the submission was included in the report and considered by the CMCRT only for the purposes of its mandate.
4.2 Liaison with the Department of Justice
On several occasions over the course of the last year, the CMCRT has engaged in person or by email with the Director General of the Department of Justice’s Criminal Systems Review Group, and with other counsel from the department’s Criminal Law Policy Section, in order to share information about our respective work efforts, and to identify whether any areas of overlap exist.
Through these consultations the CMCRT has concluded that – at the very broadest level – the CMCRT and officials from the Department of Justice are working toward common goals of improving the justice systems that deal with criminal and penal offences. However, at any more concrete level, it is clear that the CMCRT and the Department of Justice are pursuing independent lines of inquiry and initiative, with different mandates and different timelines for completion. As a result, consultations with the Department of Justice ultimately served the single dominant purpose of mutual information sharing.
Additional liaison has taken place with other Department of Justice stakeholder groups on specific legal and policy issues. For instance, on 26 April 2017, the CMCRT participated in a Federal Victims Strategy meeting led by the Department of Justice’s Policy Centre for Victim Issues, an organization with which the Office of the JAG’s Military Justice Division has had an ongoing and productive relationship over the last several years.
Finally, where specific legal opinions relevant to the CMCR were produced by the CMCRT, these opinions were shared with relevant subject matter experts from within the Department of Justice for input. The CMCRT benefited from the exchanges of military and other legal expertise that resulted from these issue-specific consultations with the Department of Justice.
4.3 Public Consultation
In the JAG’s Annual Report to the Minister of National Defence on the Administration of Military Justice (2015-2016),2 the JAG signalled his intention to conduct the Court Martial Comprehensive Review during the 2016-2017 fiscal year.3 On 22 July, 2016, the CAF issued a news release notifying Canadians of the Court Martial Comprehensive Review. This news release also indicated that the comprehensive review would include a variety of consultations.4
On 12 September 2016, the Deputy JAG for Military Justice and Director General of the CMCRT, Col Rob Holman, gave an interview with Lee Berthiaume of the Canadian Press concerning the CMCR that was published on 9 October, 2016 in several English and French language media outlets.5
On 11 October 2016, the CMCRT issued a news release, in English and French, announcing the launch of Public Consultations for the Court Martial Comprehensive Review. The release was posted on the “News” section of the Government of Canada website.6
The CMCR public consultation effort incorporated an active social media campaign, which included a video (widely circulated online) where in both English and French Col Holman invited Canadians to have their voices heard.
Infographics, information, and videos were shared multiple times across DND and the CAF’s social media channels on Facebook and Twitter. There were five posts overall, two of which used the video mentioned above. Each post received an average of approximately 30,000 impressions, with the video posts attracting even more impressions (an average of 40,000). Social media posts through Facebook received a total of 198,495 impressions, 578 ‘Likes’, 52 comments, 109 ‘Shares’, and 285 clicked links. Posts through Twitter received 42,167 impressions, 613 engagements, 62 ‘Likes’, 67 ‘Retweets’, and 82 clicked links.
In order to facilitate informed contribution to the review, the CMCR used a web page, in both English and French, dedicated to providing information, resources, and online access to submissions during the Public Consultation period.7 Canadians were informed of their options to provide input to the CMCRT through multiple communications channels, which included filling out a form online, sending an email, or mailing a letter. All three methods were used by contributors. The web page included a “Discussion Board”, where input received as a part of public consultations was posted, without editorial changes,8 for anyone to view.
In order to maximize the efficiency of its own resources, and acutely aware of the legal and practical complications that can exist for CAF members desiring to express their personal opinions on CAF subjects, the CMCRT determined the most expeditious and convenient way to solicit input from individual CAF members was to leverage the already ongoing public consultations.
On 14 October, 2016, The Chief of Defence Staff issued CANFORGEN 186/16 – CDS GUIDANCE COURT MARTIAL COMPREHENSIVE REVIEW CONSULTATION, wherein he authorized, and encouraged, individual CAF members to share their views as private citizens on the court martial system through the public consultation process. The CDS imposed only two minor conditions: 1) CAF members could not purport to be engaging on behalf of the CAF itself; and 2) members could not suggest that their personal views had been endorsed by the Government of Canada, the DND, or the CAF. This was essentially the same approach that was taken to facilitate contributions from CAF members regarding the Defence Policy Review that had commenced earlier in 2016.
Articles were also published in Canadian Armed Forces newspapers, and the Canadian Military Families Magazine, in order to maximize awareness of the consultation opportunity.
The CMCRT received input from 11 persons who identified themselves as either having current, or previous, military experience, representing a third of all input received from individuals during the period of public consultation. Their contributions are incorporated into the summary of public consultations, below.
Canadians were also given the option of submitting comments on the condition that these comments would not be made public. Several contributors took advantage of this option. While their comments were not posted to the Discussion Board, they received equal attention from the CMCRT.
4.3.1 Public Consultation – Summary of Results
During the public consultations, the CMCRT received a total of thirty-three submissions from thirty-two individuals, and one submission from an institutional stakeholder (the Federal Ombudsman for Victims of Crime). After the period of public consultation closed, the CMCRT received further submissions from other stakeholders. These submissions are discussed below under the heading of targeted consultations.
Perhaps not surprisingly, public consultation yielded no consensus on any individual issue. Once the period of consultation closed, the CMCRT publicly posted a summary of the input received,9 which is reproduced in the following paragraphs.
In submissions from the public, some were skeptical whether “ordinary criminal offences” – or offences under civilian law – ought to be triable at all within the court martial system, where others suggested that these offences should only be triable when the facts of the offence have some kind of connection to military service.
Some people felt that the court martial system should not have jurisdiction to deal with offences of a sexual nature, especially when those offences concern the families of CAF members or young persons, including ‘cadets’. Others noted that, where inappropriate sexual behaviour, assault, or harassment does occur, the system must take the matter seriously and the perpetrator must be dealt with sufficiently harshly.
Still on the topic of jurisdiction, some people insisted that the military must have at least some way to discipline its members, given how important discipline is in the CAF and considering the unique kinds of tasks the CAF is trusted to carry out. Some suggested that, in light of this trust, military members ought to be held to a higher standard than ordinary citizens, and that this higher standard should be formalized in law. Since military service in Canada is completely voluntary, some saw military members as having agreed to be held to this higher standard when they enrolled.
On the other hand, some people submitted that the current court martial system is not capable of promoting or reinforcing military discipline, partly because court martial proceedings take too long, and partly because the results are often out of touch with the perspectives of the chain of command. Some suggested the current system is actually harming discipline, and asserted that there is a perception, widely held among junior CAF members, that accused persons who elect trial by court martial are much more likely: 1) to have their charges dropped by the military prosecutor; 2) to receive a finding of not guilty due to some ‘technicality’; or, 3) when found guilty, to receive a punishment much more lenient than those common at summary trials for similar conduct in similar circumstances. Some also suggested that courts martial require an inordinate resource commitment from units (in terms of persons, time, and expense) given their net impact on unit discipline, and that the combination of these negative factors may actually end up incentivizing those responsible for discipline to deal with misconduct in other ways, such as through informal or administrative measures, or by ‘undercharging’ in order to keep matters at summary trials and out of the court martial system.
On the specific topic of court martial tribunals, some people felt that ‘military’ judges would be better positioned to judge in a military system. They were skeptical whether a civilian judge could be able to understand the unique circumstances of a military accused. Others felt that civilian judges would inspire more objective public confidence, by being seen to be more independent and transparent. It was suggested that in rare, highly technical cases, civilian judges could rely on expert military witnesses to fill in any knowledge gaps.
Some people commented that it was absolutely necessary that courts martial be capable of deploying forward with CAF operations, in order to ensure that discipline could be seen being carried out both by the deployed members and the local population. Others suggested that attempts to keep an accused in theatre awaiting trial could result in a dangerous distraction from the mission and could be harmful to discipline. They suggested that it would be better to send any accused back to Canada and to hold the trial there.
There were public comments that suggested the head of any military prosecution service should be a civilian, as this might inspire more public confidence in the prosecution service’s objectivity and transparency. Others felt that military prosecutors could be used as trial counsel, but that they ought to have specialized careers paths.
Some contributors suggested that the sentencing options at court martial should be expanded to include options currently available in the civilian criminal justice system – for example, discharges or restitution orders. Others felt that if the principles and purposes of sentencing at courts martial are to be different from those in the civilian criminal justice system, then they should be codified in legislation.
It was further suggested that, if the military panel was to be kept as finders of fact at courts martial, then the panel should be permitted to make recommendations to the judge on sentencing. It was also suggested that ‘military’ and ‘community’ impact statements should be admissible during sentencing processes at courts martial.
It was suggested by some that the Military Rules of Evidence are too far out of date, and no longer serve a clear purpose. This led to a suggestion that the Rules could be discontinued, and the law of evidence at courts martial could be the Canada Evidence Act and the common law.
Several contributors made submissions concerning the victims of service offences, and their rights within the military justice system. All those who submitted on this topic felt that in a court martial system, victims should have rights at least equal to, and access to resources at least as good as, those available in the civilian criminal justice system in Canada. Some contributors recommended that victims’ resources in the court martial system could be made even better than most civilian systems – for example, by providing victims with free legal representation in certain circumstances.
Lastly, some suggested that the court martial system could benefit from a comprehensive performance measurement system, which would assist future assessments of how effective the system is at contributing to the discipline, efficiency, and morale of the CAF, as well as future evaluations of whether aspects of the system should be rationalized, taking into account that level of effectiveness
In the interests of transparency, the Discussion Board remained available online after the period of consultation closed so that any member of the public could continue to read the actual, original input to the public consultations.10 The Discussion Board is reproduced at Annex C.
4.4 Targeted Consultations
In order to fulfill its Terms of Reference, and in order to ensure maximum value from consultation, the CMCRT sent targeted invitations to a variety of stakeholders, including academics and media commentators on both military and criminal law matters. A total of 71 individuals were invited to contribute, some of whom were also invited to respond on behalf of, or in tandem with, the various organizations that they represent.
Notable individuals targeted for consultation and invited to contribute included professor Eugene Fidel of Yale Law School; Gilles Létourneau (a retired justice of the Court Martial Appeal Court), and Michel Drapeau (a retired CAF colonel who is now a lawyer and prolific commentator on Canadian military justice).
The CMCRT also invited 42 foreign military justice experts, being those persons consulted during the comparative study detailed below in Chapter 5, to offer, in their personal capacity, any input they might have on Canada’s court martial system.
A complete list of individuals and organizations invited to submit to the CMCRT as a part of targeted consultations can be found at Annex D.
Out of 135 total requests for submissions as a part of targeted consultation, the CMCRT received six eventual submissions: a written submission from Professor Eugene Fidel from Yale Law School (which was posted on the Public Consultation Discussion Board and is reproduced as a part of Annex C), a written submission from the Federal Ombudsman for Victims of Crime; a written submission from the Canadian Bar Association – Military Law Section; an in-person consultation and written submission from the Department of National Defence Sexual Misconduct Response Centre; an in-person consultation with Military Judge (retired) Jean-Guy Perron, and Lieutenant-Commander (retired) Pascal Levesque, and a written submission from the victims’ advocacy group It’s Just 700.
4.4.1 Submission from the Federal Ombudsman For Victims of Crime
The CMCRT received a submission from Sue O’Sullivan, the Federal Ombudsman for Victims of Crime. The submission (reproduced below at Annex E) was received in both English and French, and was posted by the CMCRT on the public consultation discussion board,11 and was also posted by the Ombudsman on her own webpage.12 Her submission made two recommendations.
The first recommendation was: “Bring victims’ rights under the National Defence Act in line with those under the Canadian Victims Bill of Rights.”
The second recommendation was: “That the Canadian Armed Forces ensure its internal policies, procedures and practices as they relate, or could relate, to victims of crime address victims’ needs and concerns.”
CMCRT’s mandate, contained in its Terms of Reference, permits it to make recommendations on areas of court martial policy, procedure and practice, and specifically directs it to consider the needs of victims. The CMCRT appreciates the Ombudsman’s voicing of the benefits of doing so:
In addition to the benefits to individual victims, providing a more equal and supportive environment for victims of crime in the military would help to enhance confidence and potentially participation in the Canadian military justice system. This is important not only for the treatment of victims, but also for the effectiveness of the overall system. Members of the CAF who have been victimized, or who see others who have been victimized, may look to past experiences as a deciding factor in whether or not to report crime. If victims’ experiences in the military justice system are such that victims feel marginalized or less protected than even the average Canadian, they may be more reluctant to come forward. This reluctance may contribute to a culture of unreported crime and ongoing victimization. Providing a system that is fair and respectful of victims’ needs and concerns can help to encourage reporting and, therefore, assist the CAF in becoming aware of – and having the opportunity to address – acts of violence and crime within its organization. Without knowledge of these crimes, or the impacts these crimes have on its members, the military may miss important opportunities for change in its work to ensure a safe and healthy environment for all staff.
4.4.2 Submission from the Canadian Bar Association – Military Law Section
Several members of the Canadian Bar Association – Military Law Section were contacted by the CMCRT as a part of its targeted consultation efforts. The Section itself contacted the CMCRT via email on 12 December, 2016 (Annex F).
Though the deadline for public consultation had passed, the CBA indicated in its letter that it desired to ‘meaningfully contribute to [the CMCR] process’, and wanted to take ‘consideration of the many subject areas involved’. The CMCRT was correspondingly very interested in receiving input from the CBA, and agreed to the CBA’s suggested submission date of not later than 31 March, 2017.
The CBA – Military Law Section provided its five-page written submission to the CMCRT via email on 31 March, 2017, which is reproduced at Annex G.
The submission contained multiple criticisms of the CMCR itself.13 The CMCRT forwarded the criticisms on to the Judge Advocate General for his consideration, but noted that the JAG did not himself possess the authority to address the criticisms.14 The CBA’s submission included no recommendations for enhancing the effectiveness, efficiency or legitimacy of the court martial system, nor did it highlight any perceived problems concerning any subject matter area in the CMCRT’s Terms of Reference.
4.4.3 The Sexual Misconduct Response Centre
On 13 March, 2017, The CMCRT requested input from the Department of National Defence Sexual Misconduct Response Centre. Established on 1 September 2015 in response to the recommendation made in the Report of the External Review into Sexual Misconduct and Sexual Harassment in the Canadian Armed Forces,15 the Centre is independent of the Canadian Armed Forces and the chain of command. Its mission is to “support CAF members affected by inappropriate sexual behaviour by helping them make informed choices on available options and provide resources to meet their individual needs”. The Centre offers confidential, personal, and bilingual assistance, providing information, reassurance, support, and referrals to the various services offered to CAF members.
Two members of the CMCRT met with the Centre’s acting director, as well as most of its counsellors, at the Centre on 29 March 2017. The SMRC provided written submissions on 18 April, 2017.
The SMRC provided the CMCRT with valuable “qualitative and quantitative data regarding member experience of the military criminal justice system”. While the SMRC noted that “the data are primarily a subjective description of the person’s lived experience with the military criminal justice system as a whole, as very few who contacted the SMRC made a distinction between the component parts of the system be they Chain of Command, MP/National Investigation Service (NIS), JAG and Court Martial,” the CMCRT was still inclined to make use of whatever information was available, paying proper attention to its accepted limits.
In addition to the data products, the SMRC also provided the CMCRT with general recommendations. First, the SMRC advised the CMCRT to consider the impact a system’s design can have on victims, both individually and systemically. For example, a system’s design can negatively impact an individual victim, but it might also discourage many victims from engaging in the process or even making a report. Using the example of sexual assault cases in the current system, the SMRC advised the CMCRT:
As a result of their experience, victims of sexual assault are required to navigate numerous services within the military justice system (ex: Chain of Command, Military Police/NIS, JAG, civilian police). This means that at any point in time, depending on the victim’s experience with any of these points of contact, they may decide to withdraw from the process. For example, a victim could have a very positive experience with a NIS officer but decide to withdraw after feeling dismissed by a JAG. A victim could also decide to withdraw right after feeling re-victimized during a victim interview with the NIS. Therefore, when reviewing the court martial process and its impact on victims, it is important to consider the system as a whole and how it interacts together to best support the members.16
The SMRC went on to list specific areas for potential improvement in the court martial system, again within the context of sexual offences, with reasons:
Improving the […] integrity of the current court martial system would include elements such as provision of victim advocates, victim access to independent JAG legal advice to assist with specific legal questions, procedural or otherwise, improving transparency and the responsiveness of all component parts of the military criminal justice process by reducing silos between systems and finally increasing the overall level of education and awareness of victim behaviour re: neurobiology of trauma and Forensic Experiential Trauma Investigation.17
The SMRC provided a detailed submission concerning victims’ advocacy18 in the court martial system. In the SMRC’s view, in the court martial system, victims of sexual offences are disadvantaged compared to the majority of Canadian society, “where most victims have access to advocacy services in the form of sexual assault crisis centres.”19 The Centre pointed out recent reforms that have taken place in the Australian and the American military justice systems,20 and described for the CMCRT the potential benefits of such services.21
The SMRC was careful to note, and the CMCRT is also aware, that enhanced victim support, including some of the above listed services, is currently being studied by the CAF Strategic Response Team on Sexual Misconduct (CSRT-SM), as well as other key CAF stakeholders. The CMCRT correspondingly also coordinated with the CSRT-SM, detailed below, as a part of internal consultations.
The SMRC submission is reproduced at Annex H.
4.4.4 It’s Just 700
On 26 June 2017, in response to a request for input from the CMCRT, the team received a written submission from It’s Just 700, an organization that was formed specifically to help support Canadian military sexual trauma survivors. This complete written submission is included at Annex I.
This submission highlighted the perception among military sexual trauma survivors that greater expertise in dealing with sexual assault files exists within the civilian criminal justice system as compared to within the court martial system, largely because of the higher volume of cases that actors encounter in the former system. However, the submission endorsed the view that, “even where a case of sexual assault is referred to civilian authorities, the CAF should carry out its own parallel assessment as to whether any administrative sanctions should be imposed.”
The submission recommended that civilian processes be adopted, and suggested that a model from France could be a useful example. The submission was also critical of delays within the system, and noted that “[i]t is hard to recover from a trauma while pursuing legal action. Expediting the legal process will allow a quicker recovery and could avoid unnecessary medical releases.”
The submission indicated that much more should be done to support victims through the various processes, and that victims should be provided with counsel to help prepare the victims for interrogations, among other things.
The submission suggested that harsher penalties are required for those who engage in sexual misconduct, and reiterated a previous observation that “[o]nly strong sanctions, through military justice, disciplinary and administrative action, will deter further assaults.” This observation led It’s Just 700 to further recommend that minimum sentences and sanctions be established for sexual offences, so that it would be obvious that perpetrators are not just getting a “slap on the wrist”. It was also recommended that perpetrators be prevented from relying on past good character or remorse as a mitigating factor at sentencing.
The submission expressed concern about the possibility of retaliation or reprisals against those who come forward to make allegations of sexual misconduct, and recommended that such inappropriate actions should be criminalized as a means of protecting those who come forward.
The submission recommended better training relevant to sexual offences for court martial system actors, and suggested that better measurements of effectiveness or quality assurance in relation to complaints of sexual misconduct be created.
Finally, the submission recommended the imposition of quotas or some other similar mechanism for promoting gender and other forms of equality within the military legal profession, the military judiciary, and the military police occupation.
4.4.5 Lieutenant-Colonel (Retired) Perron, former Military Judge
On 12 June 2017, three members of the CMCRT conducted an in-person targeted engagement with retired Lieutenant-Colonel Jean-Guy Perron, formerly a Canadian Armed Forces infantry officer and military judge. A complete summary of the CMCRT’s discussions with Mr. Perron, the content of which has been verified for accuracy and confirmed by Mr. Perron, is included at Annex J.
Mr. Perron stated that any discussion on military justice must firstly focus on the concept of discipline. Military justice is a means of last resort to enforce discipline.
Mr. Perron queried why the court martial system would need jurisdiction over ordinary criminal offences unrelated to military discipline (e.g. domestic violence offences), but went on to point out that having jurisdiction over a wide variety of offences allows the court martial system to prevent impunity whenever the civilian justice system is unable or unwilling to prosecute a particular matter. Mr. Perron added that, if functioning properly, the court martial system should be able to deal with relatively minor, but still criminal, misconduct more quickly than a civilian court.
Mr. Perron suggested that he understood why the chain of command might feel disengaged from the court martial system. He attributed this disengagement to law reforms that took place in 1998, and that essentially put far more control of the court martial system into the hands of military lawyers. He felt, both at the time the changes were made and still today, that these changes had a negative impact on the chain of command’s involvement in the military justice system. He noted that in his view, in order for the chain of command to be engaged in the system, it would need to be much faster, and could not continue to be an administrative burden.
On the subject of differences between the military and civilian justice systems, Mr. Perron said that the former served an educative purpose that was not necessarily served within the latter. He indicated that his written decisions, as a military judge, were structured so as to allow the small number of people in attendance at most courts martial, and any readers of the decision after it was posted online, to understand certain basic realities about Canadian law and the military justice system. He suggested that this was why it will often take longer for a military judge to deliver a decision than a civilian criminal judge.
With respect to delays in the court martial system, Mr. Perron stated that, in his view, the disciplinary benefit of holding a court martial one year or more after an alleged offence took place approaches zero. He suggested that, in order to meet the CAF’s disciplinary needs, action must be taken immediately, not in a matter of years.
Regarding prosecution and defence counsel services, Mr. Perron noted that military knowledge was important within those services, but that the perception of their independence was also important. In his view, the fact that the DMP and DDCS are characterized publicly as part of the “JAG Command Team” is extremely problematic. He indicated that a better structure would involve placing the DDCS organization under the Minister of National Defence, but functionally independent from the Minister, in much the same way as the Office of the Chief Military Judge is situated relative to the Minister.
The CMCRT asked Mr. Perron about how rank differentials (e.g.: between a judge and an accused person, or between a prosecutor and a witness for the defence) might have an adverse impact within the court martial system. Mr. Perron indicated that he had presided over at least one trial wherein the accused person, the prosecutor, and the defence lawyer all outranked him as the military judge, and that he had no issues performing his duties impartially and free from any influence of these ranks. He noted that in his experience he never observed a problem due to rank between counsel and witnesses.
The discussion then turned toward the concept of deployed courts martial. Mr. Perron suggested that section 132 of the NDA (which essentially transforms all offences under the law of a foreign country in which a person is located into service offences that can be tried by court martial) is extremely useful as a means of demonstrating to host nations that the CAF can deal effectively with any misconduct by its members. He stressed that this section should be preserved. He was also of the view that a court martial should be held wherever it will have the most impact on discipline. (As an aside, he also noted that having a permanent military court would be useful as a way of dealing with such preliminary issues as location, etc., and he reiterated this recommendation for creating a permanent court in his concluding remarks).
When the CMCRT noted that most CAF deployments are six months in duration, and asked Mr. Perron whether he thought it would be possible to hold courts martial within six months of an offence taking place so that it would make sense to hold them in a deployed theatre of operations, Mr. Perron gave a very qualified answer. He said that he believed courts martial could happen within six months if the case was minor or relatively straight-forward, and if everyone involved recognized the need for unusual speed in that particular case and worked to much faster than normal timelines. However, he expressed significant doubt as to whether a system could be designed to ensure that courts martial could take place within six months in a majority of cases.
The CMCRT noted that in order to maintain the capability to deploy a court martial into a theatre of hostilities at any given time, military judges would need to maintain a very high level of personal operational readiness. The CMCRT asked Mr. Perron whether the obligation that all CAF members are under to complete regular deployment readiness training and verifications (such as requalifying on a personal weapon, completing an operational physical fitness test, or completing Chemical, Biological, Radiological and Nuclear warfare refresher training) was a hindrance to a military judge’s ability to perform his or her duties, and whether maintaining a high level of personal operational readiness would be an unmanageable burden on military judges. Mr. Perron forcefully noted that these obligations could not be imposed on members of the military judiciary, since it would compromise their judicial independence if a member of the executive branch of the government, like the Commander of Canadian Joint Operations Command, could tell a military judge what he or she must do before being allowed to deploy to Afghanistan or another theatre of operations in order to conduct a trial or, even worse, could deny the deployment of the court for that reason. He suggested that the same measure of independence also applied to members of a General Court Martial panel once they have been appointed, since – at that stage – they are part of the Court, and the Court is independent. Mr. Perron noted that when the Minister of National Defence, or Canadian Senators, visit CAF troops in a theatre of operations, they are not first required to fire a weapon or complete chemical warfare training, so this clearly is not absolutely required of military judges either.
At this point, the CMCRT asked whether the military status of a military judge brought a distinct benefit to the court martial system, or whether civilian judges (e.g.: recently retired officers with ten years of experience as lawyers and sufficient military experience) might be just as effective. Mr. Perron acknowledged that it was an option that might strengthen perceptions of independence.
The CMCRT asked Mr. Perron about the number of sitting days for each military judge in any given year. Mr. Perron said that sitting days were a flawed metric for thinking about judicial schedules, because a judge might sit on a first day, then adjourn for three days to deliberate and write reasons, and then sit on a fifth day to deliver reasons. In this case, there are only two sitting days, but the judge was working for five days. He did agree that technology such a VTC could be used in more simple matters, such as guilty pleas with joint sentencing submissions, to resolve matters without any need for travel, but in more complex cases, he felt that an in-person trial was more appropriate.
The CMCRT asked Mr. Perron who the military judges are speaking for when they deliver their reasons, and specifically, whether they purport to speak for the military chain of command. Mr. Perron emphatically stated that military judges speak not on behalf of the chain of command, but on behalf of justice; more precisely, military justice. A decision on sentence was similar, in that it also represented the broad interests of justice rather than the interests of military leaders, but he noted that a sentencing decision also included a disciplinary voice, wherein a military judge would speak about what discipline demanded in that case.
Mr. Perron also observed that, if one looks to the text of the NDA and the instructions of the judge to the members of the panel, it is clear that a court martial panel is only empowered to make determinations of fact, not to represent the interests of the military chain of command.
In closing, Mr. Perron suggested that the Court Martial Appeal Court should be supported by legal counsel, be it an Amicus Curiae or some other transparent means of providing the CMAC with an experienced and knowledgeable third party that could draw the Court’s attention to particular military issues in appeals that might be beyond the ordinary comprehension of the Court. He also observed that it was extremely problematic for the Office of the JAG to be directly involved in hosting or coordinating judicial education for judges of the Court Martial Appeal Court, since this connection could compromise the Court’s independence; instead, he suggested, this education should be coordinated through the National Judicial Institute.
As a retired military judge, and as someone who participated in in-depth and in-person discussions with the CMCRT, the team placed significant weight on the input that it received from Mr. Perron, particularly on matters relating to the military judiciary.
4.4.6 Lieutenant-Commander (Retired) Levesque, Ph.D. (Military Law)
On 12 June 2017, three members of the CMCRT conducted an in-person targeted engagement with retired Lieutenant-Commander Pascal Levesque, formerly a Canadian Armed Forces legal officer with extensive experience both as defence counsel at courts martial, and in the development of military justice policy. A complete summary of the CMCRT’s discussions with Mr. Levesque, the content of which has been verified for accuracy and confirmed by Mr. Levesque, is included at Annex K. Mr. Levesque followed up after this consultation to provide the CMCRT with written submissions explaining his points in more detail, which are included at Annex L.
Mr. Levesque began his input by noting that the court martial system must be ready for a large scale armed conflict at any time, and must be capable of operating effectively in such a situation. He also suggested that the military justice system serves two purposes – a public order and welfare purpose and a disciplinary purpose – while the civilian criminal justice system only serves the former purpose.
Regarding the structure of prosecution and defence counsel services, Mr. Levesque was of the view that there are as many reasons to civilianize these offices as there are to keep them in their current form, so the balance should weigh in favour of the status quo. However, he suggested a number of changes to these offices that he felt would enhance them, including all of the following:
- Create a sub-occupation of “Litigator” within the military legal occupation, that requires at least five years of experience as prosecutor or defence lawyer as a prerequisite;
- Allow litigation counsel to remain in their postings indefinitely, and compensate them; and,
- Provide greater control over assessment and promotion of litigation counsel to the respective litigation Directors (DMP and DDCS, respectively).
Mr. Levesque also noted that the JAG’s multiplicity of roles under the NDA created clear conflicts in certain cases. In particular, the JAG’s role as legal advisor to government on military justice matters, superintendent of the administration of military justice, supervisor of the DMP, and supervisor of the DDCS created a web of relationships that were inherently problematic. Mr. Levesque likened this situation to a game of Chess, where the JAG makes all the rules, then controls the Black team’s plays, then control’s the White team’s plays. Mr. Levesque felt that it would be far more principled to have the DDCS organization fall under the Minister of National Defence’s supervision, but with an independent Board of Directors appointed to oversee the operation of the DDCS organization.
The CMCRT asked Mr. Levesque about how rank differentials (e.g.: between a judge and an accused person, or between a prosecutor and a witness for the defence) might have an adverse impact within the court martial system. Ultimately, Mr. Levesque was of the opinion that the accuracy of testimony and the fairness of proceedings would not be affected by the different ranks of participants in a court martial in Canada. He acknowledged that such an effect could exist in other systems where there is greater deference to rank and social class distinctions, however.
With respect to the conduct of courts martial in deployed theatres of operations, Mr. Levesque noted that it would ultimately be up to the operational military commanders to decide whether the CAF needs courts martial to be deployable, but Mr. Levesque seemed to think that this would be necessary. In particular, in a state of total war, he noted that a deployed system for deterring and dealing with misconduct would be essential in order to avoid incentivizing misconduct by soldiers as a means of getting back to safety in Canada.
Mr. Levesque proposed the idea of having regionalized military judicial districts across Canada where courts martial could take place, in addition to an “expeditionary” district for dealing with offences that take place outside of Canada.
When the CMCRT noted that most CAF deployments are six months in duration, and asked Mr. Levesque whether he thought it would be possible to hold courts martial within six months of an offence taking place so that it would make sense to hold them in a deployed theatre of operations, Mr. Levesque was unequivocal in saying that this would be impossible within the current court martial system. However, he suggested that it might be possible if the system were sufficiently changed by, for instance, removing unnecessary steps between the laying of a charge and the receipt of that charge by the DMP.
Mr. Levesque also made a number of observations about summary trial reforms that were outside of the scope of the review.
4.4.7 President of the International Society for Military Law and the Law of War
On 10 November 2017, two members of the CMCRT conducted an in-person targeted engagement with retired Brigadier General Jan Peter Spijk, formerly Head of the Military Legal Services of the Netherlands’ Armed Forces, and current president of the International Society for Military Law and the Law of War (ISMLLW) – an expert group on matters of military law that has held “consultative status” with the United Nations since 1997.22 Mr. Spijk also chairs several Advisory Boards for the Minister of Defence of the Kingdom of the Netherlands. He is Chairman of the Netherlands’ Military Law Review editorial board, and a Visiting Fellow at the Netherlands’ Defence Academy. The content of the summary of the CMCRT’s discussions with Mr. Spijk, below, has been verified for accuracy and confirmed by Mr. Spijk.
Mr. Spijk began the discussions by providing some background on the evolution of military justice systems in Europe during the 1980s and 1990s, with particular focus on evolutions within the Dutch system. He noted that change was prevalent across many aspects of different European societies during these decades as citizens began to challenge assumptions about, and the structures of, long-standing national institutions in an effort to promote greater individual liberty. With respect to national military justice systems, he observed that they remain very much like national anthems: each one is different, and must integrate acceptably into the overall national scheme and identity. He then proceeded to describe changes that took place over time to the Dutch court martial-type system in order to bring the system into its current form.
Mr. Spijk suggested that one of the most important reform elements was the creation of a reasonably clear and principled divide between military misconduct that was disciplinary in nature (which is dealt with by commanders outside of judicial processes) and military misconduct that is criminal in nature (which is dealt with by courts). He suggested that this change transformed what had previously been a large “grey area” between these two types of misconduct, and left only a “thin grey line” that continues to exist in some cases that could arguably be characterized as either disciplinary or criminal, depending on one’s perspective.
Mr. Spijk also noted that one should be clear about the purposes of a separate military justice system. In his view, such systems exist to promote three important values: discipline, accountability, and public protection.
With respect to prosecution services, Mr. Spijk indicated that prosecutions of criminal-like offences will be suspect if there is any chance that they can be influenced by the military chain of command or the military’s legal service branch. He suggested that such a case would create a kind of dual suspicion: either the prosecution service would use its power and discretion to protect military members from being held to account for misconduct (more often in the case of misconduct by senior personnel), or the prosecution service would use its power and discretion to unfairly target more junior members who engage in misconduct through a process that involves different or reduced protections when compared to a purely civilian system. However, Mr. Spijk indicated that, in his view, a prosecution service could avoid this suspicion as long as the head of the service was truly independent and not under any influence of the armed forces. In such a case, Mr. Spijk suggested, it would not be inappropriate to include uniformed military prosecutors within the prosecution service.
This discussion led Mr. Spijk to observe that, with the loss of conscription in the Netherlands in the mid-1990s, the country has seen a generally reduced level of military knowledge and expertise within the population, so deliberate efforts had been taken to ensure that some way of providing for this knowledge was incorporated into the Dutch tribunals and prosecution service.
With respect to military defence counsel, Mr. Spijk was of the view that a uniformed lawyer, given his or her (in principle long-term) professional relationship to the ministry of defence, would always be subject to a suspicion of not being able to provide counsel in a totally independent manner. Therefore, he advised not to use military lawyers as defence counsel within a court martial-type system. With respect to the funding of defence counsel, Mr. Spijk noted that in the Netherlands an accused person who is acquitted at trial will receive some public funding to compensate for the person’s legal fees. In addition, the State funds counsel for those with minimal earnings.
On the subject of jurisdiction to deal with civil offences, Mr. Spijk noted in the first place the great diversity in national systems, in this respect. He suggested there is no clear reason why a military tribunal should need to deal with such civil offences that take place in the person’s home country, in case a ‘nexus’ with military service (in the broadest sense) is totally absent. However, Mr. Spijk went on to say that any debate about this question becomes increasingly irrelevant as a military tribunal system grows more and more to resemble the ordinary civilian criminal justice system where such offences would otherwise be tried, in terms of independence and procedural safeguards.
4.5 Internal Consultations
It was critically important to the CMCRT when undertaking this review to understand the perspectives of the “users” of the court martial system: leaders within the CAF chain of command.
Consequently, the CMCRT undertook to extensively consult internally within the CAF.
The CMCRT noted that, in almost all cases of internal consultation, those who made submissions to the team were thoughtful and well-informed. It was clear to the CMCRT that these different “users” of the court martial system understood both the system itself, and broader societal issues relating to justice and discipline, quite well.
4.5.1 CAF Strategic Response Team on Sexual Misconduct
On 11 May, 2017, three members of the CMCRT met with the Director General of the Canadian Armed Forces Strategic Response Team on Sexual Misconduct (CSRT-CM),23 Rear Admiral Jennifer Bennett, and members of her staff. The CSRT-SM leads the CAF’s response at the strategic level to the External Review Authority report, and works towards eliminating harmful and inappropriate sexual behaviour from the Canadian military. The CSRT-SM focuses on policy, training and education, and performance measurement.
Understanding that the CMCRT and the CSRT-SM have different, though complimentary mandates,24 the two teams discussed the court martial system, and how it could be improved to better deal with offences of a sexual nature.25
The first point received from the CSRT-SM was that, based upon the input they have received from a variety of experts and stakeholders, that victims of offences of a sexual nature would benefit greatly from consistency in victim support services, rather than a series of ‘hand-offs’ as their complaint progresses through various processes (i.e. medical care; military justice; civil criminal justice; internal CAF administrative processes).
The CSRT-SM then offered that transparency of result, to CAF membership and the public but particularly victims, should be improved. In their view, it is difficult to achieve any effect from actions taken in response to inappropriate sexual behaviour if those actions are not made transparent to those affected. For example, the results of internal CAF administrative processes (e.g. Recorded Warnings; Counselling & Probation; removals from command; or even Release from the armed forces) are not made public, nor are the reasons for such actions (or lack of action). If a matter proceeds to trial, court martial results are made public, but if a matter does not get to trial, the reasons for this are not generally transparent to the CAF membership or the public (even if the reasons are legitimate). They are further often not transparent to the victim.26
The CSRT-SM greatly stressed that ‘timeliness matters’. In their view, there were no ‘speedy trials’ in the current court martial system, and this was having a very negative effect on victims of sexual offences, as well as eroding public confidence in the CAF’s ability to deal with such matters.
The CSRT-SM also pointed out that there is a general lack of awareness of the independence of various actors in the military justice system (e.g. The Provost Martial; the Director of Military Prosecutions; the JAG), and why this independence is importance in a penal system (like the court martial system). It was discussed whether or not having various actors in the court martial system ‘in uniform’ is a benefit or a hindrance to perceptions of independence and accountability, as well as legitimacy in the eyes of those affected by the system (“does having a uniform legitimize the actor?”). There was no consensus on this point.
Some members of the CSRT-SM advised that a formalized court process, whether court martial or civilian criminal court, needs to be available in all circumstances where an offence is alleged. Based upon the information they had gathered, they believed that victims of offences will be best served by having such a formalized process always available in some form, whether or not any particular victim wants to move forward with a prosecution. For example, if a CAF member is sexually assaulted by another CAF member outside Canada, there should always be a way for the victim to access a formalized, Canadian, court process, whether or not the foreign courts or domestic Canadian courts would normally have jurisdiction. Currently, the only option that is always available in that circumstance is the court martial system.
But, the CSRT-SM then stressed that the distinction between conduct that qualifies as an offence under the law, and conduct that is not an offence but is unacceptable for members of the profession of arms, is not well understood. The discussion then turned to Bill C-71, tabled during the previous Parliament but which died on the order paper at the call of the 2015 federal election, which could have been interpreted as making such a distinction more clear insofar as it would have transformed the summary trial system into a non-penal process (more analogous to professional discipline hearings) and required all penal matters to be dealt with at court martial.
If a similar bill were to be introduced in the future, the CSRT-SM advised that this would address a significant gap in the current system, where there is no public, transparent process available whenever misconduct does not constitute an offence, or where the evidence available does not result in a reasonable prospect of conviction based upon strict rules of evidence and proof beyond a reasonable doubt. If this gap could be closed, then the major remaining challenges would be timeliness and transparency of court martial proceedings.
When given the potential option of a future court martial system that relied upon ordinary civil courts, as some of Canada’s European allies have done, the DG CSRT-SM remarked that so long as the chain of command, the Canadian public, the victim and the accused would retain the ability to make sure that the unique circumstances of military life and the operational environment were communicated to the tribunal, then such a change could be considered. However, without this ability, she was clear that neither the public interest, nor the needs of discipline, nor the needs of victims would be well served by such a change.
4.5.2 Chain of Command Consultation – Introduction
On 20 September 2016, the Judge Advocate General briefed Armed Forces Council on the (then) upcoming period of CMCR public consultation. Subsequently, by letter dated 6 October 2016 (reproduced at Annex M), the JAG requested that all members of Armed Forces Council identify members of the chain of command in their respective organizations to provide leadership input to the CMCR. This initiative was also reflected in CANFORGEN 186/16, wherein the CDS expressly indicated that input was being sought from specific CAF leaders at the strategic, operational, and tactical levels, in addition to the public consultation process.
In his letter of 6 October, the JAG requested that chain of command input be received by 25 November 2016. He also offered to have members of the CMCRT conduct personalized briefings for any command teams of staffs that so desired. Two such personalized briefings were requested and provided.
The input the CMCRT received from the chain of command is summarized below. Where members of the chain of command made comments concerning investigations and/or the summary trial system, the CMCRT noted the recommendations, but stressed that those aspects of the military justice system were outside of the team’s mandate. Those submissions, where made, are identified below, but being outside the CMCRT’s mandate are not canvassed in detail.
4.5.3 Canadian Special Operations Forces Command (Regular and Reserve Force)
On 27 October, 2016, two members of the CMCRT met face-to-face with the Commander of Canadian Special Operations Forces Command (CANSOFCOM), who had requested a personalized briefing. The content of the summary of the CMCRT’s discussions with the Commander of CANSOFCOM, below, has been verified for accuracy and confirmed by the Commander and his Command Sergeant-Major.
The Commander characterized the current court martial system as intolerably slow. He described a recent case where, in September of 2014, a member of his Command unintentionally shot another member during a training exercise on a range.27 The trial did not commence until the summer of 2016, with final resolution on 21 June 2016, for a total of 21 months delay.
During the entire period of delay, he as the Commander wished to order an internal, administrative investigation into the incident in order to investigate ways to prevent future occurrences. He indicated his perception that he was de facto prevented from doing so by various military justice system participants [who may have been concerned about preserving the admissibility of evidence for a possible court martial]. This to him was unacceptable, as he felt he was essentially forced to continue with potentially unsafe training practices for over a year until the prosecutor gave him the ‘green light’ to move forward with an administrative investigation.
On the same case, during this delay, he also had to make command decisions relating to CANSOFCOM’s operational needs (e.g. was the accused member still deployable? Was the accused member fit to remain as a part of CANSOFCOM?) Because all information related to the incident was controlled by the Military Police and the Canadian Military Prosecution Service, the Commander believed he had insufficient information to make many core command decisions.
The Commander rejected the reasons given to him for the delay. These reasons as he understood them included that the prosecution service was very busy with many files, and that they needed time in order to make an independent assessment on whether or not charges ought to proceed.
When asked about how speedy a court martial system would need to be (on serious matters) and still be useful to the Chain of Command for reinforcing discipline, efficiency, and morale, the Commander of CANSOFCOM answered that generally, six months would be acceptable. On less serious, summary trial type matters, he was adamant that seven to fourteen days is the maximum amount of time that can pass between an incident and resolution before a rapid drop off in effectiveness.
The Commander of CANSOFCOM, having recently himself been an accused person at court martial,28 had further observations about the current system. First, notwithstanding that in his estimation, the facts of his own case were incredibly straightforward (he also stated that he had admitted the event immediately, and cooperated with CAF authorities), the case took ten months to reach resolution. In his opinion, this was without excuse and clearly unacceptable. It was a distraction to both himself, and necessarily his entire command, for far longer than reasonable.
Both the Commander and members of his headquarters staff also commented on the specific, practical effect of the events at the trial. The CMCRT was particularly struck by comments made by the Commander’s subordinates, who approached the team members on their own accord outside of the meeting with the Commander. These subordinates described the trial in harsh terms. They expressed that they were shocked that even though their Commander pleaded guilty and entered an agreed statement of facts, the military prosecutor called the Commander’s own command chief warrant officer was required to testify against him. They were again disenchanted when, after the Commander’s defence counsel objected, the military judge allowed the testimony. In their eyes, in circumstances where the Commander had already admitted his guilt (as a proper officer should do, in their view), calling the CWO to testify against his own Commander was completely unnecessary, distasteful, and disrespectful. They could not understand how a military prosecutor and a military judge could do something so contrary to what they believed were important military values.
The Commander’s subordinates indicated that they were further disillusioned during the sentencing hearing when the military judge, an officer who to their knowledge had no combat or other operational experience, proceeded, in their view, to publically admonish their Commander, a combat veteran, and lecture him about the importance of discipline and weapons safety on operations. They heard the military judge as contemplating whether or not the Commander would re-offend, and understood the judge to express the hope that he would not. In the opinion of the members of CANSOFCOM in attendance, the military judge spoke to the Major-General, in front of his subordinates, like a he was a private or a corporal, concerning a ‘disciplinary’ matter which the Commander had ‘owned’ since the beginning.29 They expressed that they now see the court martial system as having no credibility or legitimacy. In their eyes, there is no legitimacy for a prosecutor with no combat experience, and a judge with no combat experience, to ‘judge’ the standard of military discipline expected of a combat commander.
The Commander also shared his thoughts on the idea of permanently or temporarily embedding prosecutors within civilian prosecutions services with much higher case-volumes, in order to enhance knowledge, skills, and proficiency. The Commander offered an analogy from his own experience: Regular Force specialist physicians currently work full-time in civilian hospitals but, when the CAF needs them, they are employable and deployable at the height of their skills. In his view, this works very well, since what CANSOFCOM, and the CAF, really need are good doctors that can deploy, and the only way to maintain that competence is through volume and currency. In his view, any ‘blending’ of civilian and military experience to create efficiency and expertise “could not be anything but good”.
Overall, the Commander of CANSOFCOM offered, in his assessment of the current system from the perspective of a military commander, that the CAF “has lost sight of who owns discipline: it is the chain of command, [not the lawyers]”. He expressed unhappiness at the idea that commanders might feel obliged to have legal officers take de facto carriage of disciplinary decisions. In his view, this may be a longer term legacy of the Somalia Affair and the reforms it precipitated (i.e. a tendency to believe or feel military justice is ‘out of [the commander’s] hands’). He expressed support for the idea that if the system could be placed back in the hands of the chain of command, while still following the law and meeting all legal requirements, this would be best for operational effectiveness, but more so, for credibility and legitimacy in the eyes of CAF members.
The Commander made further comments and recommendations on the current speed and quality of investigations in the military justice system.
4.5.4 Canadian Army
The CMCRT received a high number of thoughtfully developed and responsive submissions from within the Canadian Army. The perspectives included those of both senior officers and senior non-commissioned members, from both unit- and formation-levels, and from within both the regular and reserve force. The importance of the court martial system, and its effectiveness, to these stakeholders was plainly evident to the CMCRT, and the team was grateful for the time and energy that each contributor took in communicating their views to the CMCRT.
4.5.4.1 2nd Canadian Division
4.5.4.1.1 2 Canadian Division Personnel Services – Commanding Officer (Regular Force)
The CO from 2 Canadian Division Personnel Services (2 Can Div Pers Svcs) made his submission to the CMCRT in writing, via email. The complete submission is included at Annex N.
Concerning tribunals, the CO not convinced of the need to have military judges, and indicated that in his view military judges have much less experience when compared to civilian jurists. The CO also suggested that any civilian judges assigned to the court martial system should be selected based upon a high level of criminal law trial experience and interest in military matters.
While the CO believed that the dynamics of a tactical or operational environment would be an important reality that any judge must be able to understand, he was not convinced that this would be an insurmountable challenge for an experienced civilian judge properly informed by professional lawyers and senior military staff. He was of the view that a civilian judge would be perceived, justifiably or not, as more impartial.
He was in any case not convinced that military judges have the same military experience and knowledge, or even the same culture, as military members who spend the majority of their career on a base or in a ship.
The CO cautioned that on any service offences that are also ordinary crimes, the tribunal must be capable of understanding that an ordinary offence may be more serious in an operational context, and it may not be appropriate to deal with the offender in precisely the same way as would be the case in ordinary courts.
On the topic of the court martial panel, the CO was in favour of retaining it as a finder of fact, though he believed command experience should be mandatory for eligibility for panel membership. He expressed that former commanding officers and formation commanders would have the necessary judgment and experience to deal with the intricacies of a charge, and to understand the impact of misconduct on unit discipline and operational security.
The CO believed that courts martial should continue to be internationally deployable. While the CO believed that in the current operational climate, deployed trials are never going to occur (accused persons will be repatriated immediately, and by the time any trial could commence the rest of the deployment rotation will have also returned to Canada), he believed that if Canada were to undertake longer, larger missions, then a deployed court martial would be required.
Concerning prosecutions, the CO expressed that the most important factors for maintaining confidence in the military justice system were the expertise, sound judgment, and military knowledge of the system’s actors. In his view, this would be the case whether prosecutors were military or civilian. He was very critical of the state of delay in the current system, as well as how it seems to place great emphasis on technical legal points at the expense of the interests of military justice and discipline. In his view, a system of career civilian prosecutors with developed expertise in military prosecutions could undoubtedly contribute to the credibility of the institution – as opposed to military prosecutors who only fulfil that role for a very brief period of time. The CO suggested that a mixed civilian / military prosecution office could also be an option, as well as civilian prosecutors with military advisors.
The CO had positive comments relating to military defence counsel. He was of the view that if service offences are punished more harshly than ordinary offences (and in his view, they ought to be), then state-funded legal support to accused CAF members should be greater than in the civilian system. He had a moral concern, as military members (especially, in his view, commanders) are more vulnerable than civilians to having their decisions ‘second-guessed’, and, unlike civilians, are liable to be charged for those decisions. The CO advised that any system of financial contribution would need to take into account these two realities.
The CO was very supportive of maintaining uniformed, military defence counsel, as he saw this as important for ensuring that military knowledge would form part of a member’s defence. The CO believed that it was essential for military defence counsel to have tactical experience on operations (especially expeditionary operations). However, a civilian director (DDCS) might also help preserve the notion of fairness for members who may feel that military defence lawyers are somehow ‘second rate’.
Concerning offences, the CO was of the view that continued jurisdiction over ordinary criminal offences could be advantageous, if courts martial could proceed faster than ordinary criminal courts and if sentences could be handed down through the chain of command. He was at the same time however of the view that such offences should only be handled by way of court martial instead of the ordinary courts if a member was in uniform or on duty, or if the offence was committed in the context of an expeditionary operation.
The CO was very critical of the ‘hierarchy’ of military punishments, as he felt this rule can cause the actual best punishment, for an offender and for the public, to be legally unavailable as somehow ‘too severe’ or ‘too lenient’. He was of the view that the most appropriate punishment should be available in all cases.
4.5.4.1.2 2 Canadian Division Personnel Services – Unit Chief Warrant Officer (Regular Force)
In addition to the submission from the unit CO, the CMCRT also received a written submission from the Unit CWO, which is included at Annex O.
The CWO was not convinced of the need to have military judges, and indicated that in his view, military judges have much less experience when compared to civilian jurists. If civilian judges were to hear cases, he thought that this might inspire more public confidence in the court martial’s transparency. The CWO suggested that in cases involving uniquely military offences, civilian judges could hear expert evidence on military matters.
The CWO did not believe that courts martial should still be capable of deploying. He suggested that it would be better to send any accused back to Canada and to hold the trial there. The CWO believed that attempts to keep an accused in theatre awaiting trial could result in a dangerous distraction from the mission.
The CWO suggested that the head of the military prosecution service could be a civilian, as this might inspire more public confidence in the prosecution service’s transparency. He gave the example of the staff supporting the Director General Canadian Forces Grievance Authority, who are civilian and who understand the ‘military environment’.30
The CWO was very supportive of maintaining uniformed, military defence counsel, as he saw this as important for ensuring that military knowledge would form part of a member’s defence. He believed it was necessary for them to understand the environment and challenges faced by units. However, the CWO believed that CAF members ought to be required to contribute financially to their defence (akin to the civilian legal aid scheme).
Concerning offences, the CWO was of the view that continued jurisdiction over ordinary criminal offences would be advantageous, especially since ordinary criminal courts are overburdened. However, the CWO noted that military cases ought to be swiftly dealt with in order to maintain discipline.
The CWO believed that punishments ought to be the same under the military and civilian justice system. He was not in favour of retaining ‘military’ punishments as this was not fair to military offenders. He noted that the changes that will be brought forward by Bill C-15, when they come into force, will bring military punishments more in line with civilian ones.
On appeals, the CWO indicated that the CMAC could be composed of civilian court judges and one military judge to bring military knowledge to the court.
The CWO believed that there should not be any special provision for particular groups such as youths. Rather, he thought that these specific cases should be dealt with in the civilian system, especially in cases involving youths (cadets) and domestic violence (women).
4.5.4.1.3 5ieme Regiment Genie du Combat - Commanding Officer (Regular Force)
The Commanding Officer of 5ieme Regiment Genie du Combat (5 RGC) offered some specific observations on the process of referring cases to court martial. His written submission is included at Annex P.
His principal point related to the role of the CO in the referral process to court martial. In his view, when charges are laid directly by a member of the Canadian Forces National Investigation Service,31 (which virtually always occurs without the involvement of the member’s unit), it makes no sense to oblige the members CO, and unit, to complete and send the referral package to the Director of Military Prosecutions. Since the member’s chain of command would not have seen the file, and not been involved in the decision to lay charges, it seemed to him unjustifiable to insert the chain of command into the process for no other practical reason than to compile the documents and send off the referral package.
He gave further examples of how the current system’s multiplicity of decision makers32 can often lead to communication challenges and role confusion, particularly between commanding officers and prosecutors. He expressed dissatisfaction with the quality and transparency of explanations provided by military prosecutors on specific decisions to proceed or not proceed with charges.
4.5.4.1.4 35 Canadian Brigade Group Headquarters - Chief Warrant Officer (Reserve Force)
The Brigade Chief Warrant Officer at 35 Canadian Brigade Group Headquarters (35 CBG HQ), expressed in his written submission (included at Annex Q) that in any court martial system, an accused military member must be tried fairly. He also expressed that victims ought to have access to assistance in the form of civilian lawyers or counsellors.
He was open to the idea of civilian judges hearing cases, except if the offence charged related to purely military matters, in which case he felt military judges would be better. If civilian judges were to hear cases, he suggested they should have access to expert advice on military matters.
However, the CWO was of the view that certain kinds of military misconduct should always be judged by other military members, and must be judged as quickly as possible in order to ensure that general deterrence is achieved and respect for the law is fortified within other military members.
The CWO was also of the view that, in certain cases, there ought to be an appeal mechanism.
4.5.4.2 4th Canadian Division
4.5.4.2.1 2 Canadian Mechanized Brigade Group & 4th Canadian Division Support Group – All Command Teams (Regular Force)
On 22 November 2016, two members of the CMCRT attended 4th CDSB Petawawa and met with the entire senior leadership33 from 4th Canadian Division Support Group (4 CDSG) and 2 Canadian Mechanized Brigade Group (2 CMBG), providing the second personalized briefing. The content of the summary of the CMCRT’s discussions with these senior leaders, below, has been verified for accuracy and confirmed by the respective commanders of 2 CMBG and 4 CDSG, and their staffs.
After receiving an update on the current state of military justice, the command teams discussed summary trial reform and expressed concerns with some aspects of the current system, particularly the amount of misconduct that is subject to an election to court martial. In their view, the majority of these matters ought to be swiftly dealt with as a minor disciplinary matter. Delay at the summary trial level was also a concern. The command teams agreed that in order for the summary trial system to be most effective, matters need to be dealt with within 7-14 days of an incident.
Moving on to courts martial, the entirety of the 2 CMBG and 4 CDSG command teams were in agreement: the current system is “broken.”
The overarching question, in the command teams’ view, was: who precisely is the court martial system supposed to serve? If the chain of command cannot, as they cannot now: 1) meaningfully influence the process, including proceeding to trial; 2) ensure key military matters or facts are submitted as evidence and given weight; or 3) meaningfully impact submissions and outcomes (especially in cases of joint submissions) on sentencing, then they failed to see the utility in having a ‘military’ tribunal at all.
In their view, if the chain of command continues to have no meaningful role, then serious cases (e.g. criminal-like cases) could just as effectively be dealt with in local provincial criminal courts; units could easily have an attending officer34 relay court dates, and have unit members attend.
The command teams of 2 CMBG and 4 CDSG did not express any attachment to having regular or reserve force ‘military’ judges, and were comfortable with the idea of civilian judges trying service offences. They expressed that if there were legal rules that ensured the views of the chain of command, and evidence about the impact of a member’s misconduct on the unit, would always be entered into evidence and meaningfully considered (especially at sentencing), then it would not matter if the tribunal and/or the judge was civilian in character. A ‘military impact statement’ was one example given, but a preferred rule was one that obliged the court to hear testimony from a members’ commanding officer at sentencing. The command teams did not believe that these sorts of rules would be any less effective at meeting the needs of unit discipline if they were applied in civilian criminal courts instead of at military tribunals.
Some command teams expressed that such legal rules, in a civilian court, would be superior to the ‘broken’ system as it currently stands. Others went further and posited that a civilian court might actually be more inclined to give weight to the evidence from the chain of command, and relayed disappointment with how their views had been treated by military judges and prosecutors in the current system.
In unanimity, the command teams were very critical of the current court martial scheme. They described frustration with what they perceived as a relatively routine occurrence: after receiving legal advice, commanding officers and Referral Authorities,35 decide that charges ought to proceed to court martial, and refer those charges to the Director of Military Prosecutions. But, once the charges are reviewed by a military prosecutor, that command decision is overruled and rendered meaningless, usually by a major or captain working far from where the misconduct took place (and where the people affected by it remain). From the perspectives of these commanders, this perceived routine occurrence undermines the credibility of the chain of command and is very harmful to discipline.
They were also skeptical that the prosecutor was better positioned to assess the ‘public interest’ in proceeding than they were. The commanders understood that prosecutorial decisions needed to be based on independent legal assessments. What they could not accept was that after they themselves received independent legal advice from their unit legal advisor recommending to proceed, that it appeared to be necessary for another military actor to be in the position to make decisions that they felt undercut their command authority and credibility. The command teams were also very critical of situations where they felt that they had not been informed of prosecutorial decisions to not proceed, or to reduce the seriousness of the charges, until after the decision had been made and a letter had been sent to the accused, and overall felt that these decisions themselves were not sufficiently transparent.
There was majority agreement that, if military justice decisions made by the chain of command could not be made meaningful, then it would probably be better for unit discipline if the true decision makers were not military – at least that way, they indicated, the authority and judgment of the commander could not be undermined, and the system itself would not be harmful to discipline.
Also concerning charges reduced or not proceeded with by the military prosecution service, the command teams stated that there should be greater transparency across the CAF concerning how often this is happening, and why it is done. They suggested that the DMP’s annual report should capture the number of charges reduced and/or not proceeded with, what those charges were, and why the decision was made in each case.36
On a similar theme, the command teams expressed dissatisfaction with sentencing results at court martial. Generally of the opinion that the sentences were far too lenient to instill discipline, they were particularly critical of sentencing results on those cases where the matter had only been referred to court martial because, based on the facts of the case and after receiving independent legal advice, the commanding officer with summary trial jurisdiction did not believe his or her maximum summary powers of punishment (i.e. 30 days detention) were sufficient. Again, they expressed that command credibility is being significantly undermined since such cases, routinely, result in sentences of Reprimands and/or small fines at court martial, often with the consent of the military prosecutor.
In contrast with the views above on military judges and prosecutors, some commanders were more hesitant with the idea of complete civilianization of all actors. They did, however, express that after enough time away from operations, all CAF members, and especially those belonging to support occupations, can become more and more ‘civilianized’. They were strongly in favour of regular and routine ‘re-militarization’ of any military justice actors, including judges, by re-immersing them in military operations and culture, in order to maintain their appreciation for the realities of military life, and operations.
Concerning defence counsel, the command teams suggested that the current, fully-funded and virtually unlimited defence counsel model was unsustainable and unfair, but were concerned about what might befall CAF members accused of military/operational offences as a result of any reform. In their view, if Canada is going to send CAF members on dangerous operations, then there is a duty to assist them if they are accused of wrongdoing while carrying out those very operations. But on the other hand, for non-operational offences (e.g. theft; sexual assault), they were not supportive of the military paying for ‘legal aid’. For military/operational offences alleged to have occurred on military missions, they expressed approval for a fully-funded legal representation policy analogous to the current Treasury Board Policy on Legal Assistance and Indemnification.37
On the topic of operations, the command teams of 2 CMBG and 4 CDSG were concerned that court martial reform was being contemplated in a ‘peace time’ scenario, with not enough thought paid to what a court martial system would require in order to maintain discipline if in the future Canada became involved in a large-scale armed conflict. They wanted to be sure that the CMCRT was contemplating such a scenario. This point generated a large amount of discussion between the command teams themselves, as well as the CMCRT. Near-consensus was eventually reached that if Canada were to find itself in such a ‘total-war’ scenario, none of the commanders would want to hold courts martial in theatre, and certainly not anywhere near the front lines. The command teams agreed that courts martial are simply too resource intensive for tactical units to be considered useful at the front, and in any case would be a distraction from the mission. They came to the conclusion that what they would probably actually need in a large-scale armed conflict would be more robust summary powers.
Concerning offences and jurisdiction, the command teams were unanimous that they wanted any ‘double jeopardy’ between military disciplinary proceedings and criminal/ penal law proceedings eliminated. They did not want to have to wait until a court martial or civilian court had dealt with a member before they could proceed with a process of disciplining or dealing administratively with their personnel, nor did they want prosecutorial decisions or outcomes at trial to serve as a barrier to a command decision to conduct a disciplinary proceeding, either before or after the trial. They were very critical of the election to court martial being available for very minor misconduct, and pointed out that court martial delay, combined with court martial outcomes that were harmful to discipline, had damaged the credibility of both military justice and the chain of command.
Lastly, the command teams from 2 CMBG and 4 CDSG agreed that for both summary discipline processes and courts martial, it was absolutely necessary to have a review or appeal process available. In their view, on summary matters, that was the only reliable way that they, as commanders and unit disciplinarians, could be made aware of mistakes. For courts martial, they believed that a strong appeal process for both the offender and the CAF should help military law develop into a better and better tool for doing what it is supposed to do: reinforcing discipline, raising morale, and enhancing operational effectiveness. They were not sure that this is what is happening now.
The command teams made further recommendations for improvements to the summary trial system.
In subsequent correspondence with the leadership of 2 CMBG, after the CMCRT had provided a copy of the above written summary of the 22 November 2016 consultation discussions to 2 CMBG, it was confirmed to the CMCRT by email from 2 CMBG staff that “[o]ur Unit Command Teams see the system is broken from start to finish and I think this is reflected in the report.”
Additionally, on behalf of 2 CMBG, the Brigade Sergeant Major reiterated by email on 27 June 2017 some of the key points that 2 CMBG feels are essential within any enhanced court martial system (with the points quoted below in their entirety):
- A timely system;
- A system that demonstrates openness and does not undermine Command, one that supports discipline, raises moral (due to discipline being seen to be done in a timely manner), and finally lends to operational effectiveness;
- The difference in offences is “discipline” (the CO hears it) and “Criminal” (A Judge hears it). It will be up to the CMCR to determine what offences will be and who’s authority they fall under;
- Agreed that Court martials do seem to be seen as lenient in their sentencing;
- Agreed that soldiers should not be allowed to elect for what we see as minor discipline issues. This just backs up the system and/or are thrown out completely from the court martial;
- Agree that unit command teams need to have their voices heard and the impact statements presented in writing or person; and
- When it comes to criminal activity we all agreed that it needs to be heard by a judge (civ or military) as they have the training and education. We do however believe that for lesser disciplinary issue, a unit CO can address these, just lesson their powers of punishment (ie no jail time). Only judges should be able to put someone in jail or prison.”
The CMCRT notes that its consultations with 4 CDSG and 2 CMBG were effectively the equivalent of approximately 15 individual consultations with 2-person command team that would have otherwise been conducted with unit- and formation-level command teams from within the Canadian Army. Furthermore, these consultations took place in an in-person environment where CMCRT personnel could ask follow-up and clarifying questions in order to truly understand the essence of all points that were being made by the command team personnel. Finally, the substance of the issues that were discussed during these consultations clearly reflected the fact that the command teams were highly informed about the current court martial system, and about broader legal and policy issues that were relevant to the consultations. Consequently, in subsequent chapters, the CMCRT has placed substantial weight on the information gained during these consultations.
4.5.4.2.2 Royal Highland Fusiliers of Canada - Commanding Officer (Reserve Force)
The CMCRT received a detailed email submission from the commanding officer of the Royal Highland Fusiliers, which is included at Annex R. A reservist himself, in his civilian employment the CO is the Crown Attorney of the Waterloo Region, and oversees a team of 23 civilian prosecutors. In addition to his extensive reserve service in operational military occupations, the CO had also previously been a reserve legal officer, both as a unit legal advisor and as a member of defence counsel services. His submission touched upon all of the enumerated grounds in the CMCRT’s Terms of Reference.
In general, the CO advised that: “efforts should be made to keep the [court martial] ‘military’.” However, he highlighted several areas that, in his view, were in need of reform.
Firstly, in his assessment, “the experience level of the judicial branch of the court is concerning.” He recommended that the experience level of the military judiciary “could be significantly enhanced by accessing the Reserve Judicial Officers provisions of the [National Defence Act].”
He highlighted that: “The level of experience necessary to execute this function is difficult to achieve if the military judicial appointments are largely drawn from a prosecution/defence service that conduct in the neighbourhood of only +/- 70 matters per year. This is, frankly, similar to the case load of a single lawyer (or at maximum two lawyers) within the civilian justice system.”
In the CO’s view, some other ways to enhance the experience level of military judges would be to permit the appointment of civilian judges or lawyers who have sufficient experience as military officers, and to pursue the potential for cross-appointments of military judges to civilian criminal trial-level courts to ensure continuing judicial experience for appointed members. The CO was not convinced that military judges needed to hold a normal rank, and implied that they could instead hold a simple judicial title (e.g. ‘Judge’; ‘Justice’).
Outside of the military judiciary, the CO suggested that there should be more reliance on Reserve Force members who in their civilian lives are experienced and practicing criminal trial lawyers, for military prosecution and defence counsel services. This would, in his view, ensure that counsel with sufficient experience are defending our soldiers and prosecuting on behalf of Her Majesty.
Regarding defence counsel services, the CO was of the view that legal fees should be paid by members on an “ability to pay” basis. In his view, having a soldier engaged in making a financial contribution for a defence on the front end may have a positive effect in terms of limiting or curtailing unmeritorious or speculative applications.
The CO was also of the view that budgetary decisions for the directorate of defence counsel services should be conducted by a body at arms-length from the Judge Advocate General. He further offered that the Director ought not to be within the JAG chain of command.
For the tribunal used at court martial, the CO believed that a permanent standing court that is fully equivalent to the Superior Courts of the provinces is needed. While the CO was supportive of retaining both judge-alone trials and trials by a panel with a judge presiding, he suggested that the composition of the panel should be reformed towards all-rank participation, including junior ranks.
The CO was not supportive of convening courts martial abroad. In his view, while the theoretical requirement for a court martial to sit outside of Canada still exists, courts martial should not be convened outside of Canada unless there are very specific reasons to do so, particularly when one considers how short operational tours outside of Canada tend to be for military personnel.
On subject matter and personal jurisdiction, the CO was of the view that courts martial should continue to prosecute both service offences, and offences under the general laws of Canada.
Concerning sentencing, the CO was of the view that sentences at courts martial should reflect the civilian sentencing approach, and he believed that sentencing should be done only by judges.
As for what rules of evidence ought to apply at court martial, the CO expressed his view that the civilian common law of evidence is far superior to the Military Rules of Evidence because it grows and expands to face new challenges, whereas the MRE are overly stilted, inflexible, and out of date.
Considering an appeals process for the court martial system, the CO was of the view that change is required in how members of the appellate court are selected. In his estimation, CMAC judges should have extensive criminal law experience. He felt that the use of Federal Court judges is not optimal, given their inexperience in dealing with criminal law issues. He also suggested that the CMAC could be established following the model that is used by the appeal courts of the North West Territories.38 He felt that the appellate judges did not necessarily need prior military experience, although this type of experience could be beneficial to give the court a legal “interpreter” who is familiar with the military context surrounding the offences that are being examined.
Finally, the CO suggested that vulnerable victims should be afforded the protections envisioned in the Criminal Code, including publication bans, and the potential for the use of testimonial aides, including closed circuit television and support persons.
The CO made some additional recommendations on streamlining the process by which charge layers and tactical commanders are provided legal advice.
The CMCRT notes that this submission from the CO reflects the informed perspective of a commander with extensive experience as a key justice system actor within Canada’s civilian criminal justice system, and as a leader in the CAF at different ranks. It was clear to the CMCRT that the CO had given due consideration to a wide variety of difficult and important issues prior to making this submission. Consequently, in subsequent chapters, the CMCRT has placed substantial weight on the information gained within this submission.
4.5.4.2.3 The Royal Regiment of Canada - Command Team (Reserve Force)
The Royal Regiment of Canada provided the CMCRT with a submission by email (included at Annex S). Their submission was focussed on several key topics: the military rules or character of the tribunal, and the nature of the prosecution and defence counsel services.
Regarding the military character of courts martial, the Regiment’s command team stated: “the expectations of military members are higher than that of regular citizens. There should remain the opportunity for military personnel to be involved in the court/trial process in order to monitor and impose the higher standard expected of the accused military person that would not otherwise be fully understood by non-military personnel.” The Regiment’s command team further submitted that: “Based on the higher expectation from military members, there would need to be a military influence in the court proceeding if it were to be tried by civilians. This would ensure that the member is held to the higher standard for their actions if/when allegations are proven. The impact of the outcome of the proceedings on discipline within the unit is also a significant factor of consideration for the process.”
Concerning prosecution services at court martial, they felt that “[i]t could be considered that only military members should prosecute in a court martial. With the higher standards expected of military members, the military prosecutor would be better positioned than a civilian counterpart with a significantly deeper understanding of the impact of the allegations against the accused and the impact of the proceedings on the victim, the accused, the home unit and the institution.”
And, for defence counsel the command team stated, “[i]t could be considered that any civilian lawyer who will be representing a military member in a court martial should have the opportunity to be formally made aware of the unique aspects of the military court’s processes prior to the commencement of the proceedings. This understanding would ensure that the military member who chooses a civilian lawyer would not be at disadvantage with a legal representative who may be inexperienced with the nuances and required additional formalities within a military court martial.”
4.5.4.3 5th Canadian Division - Division Chief Warrant Officer (Regular Force)
Fifth Canadian Division selected their Division Chief Warrant Officer to communicate their submission to the CMCRT. This submission was received in writing, and is included at Annex T. The principal concern that was expressed from the CWO was that “the time span from charge laying to the actual conduct of the [court martial] is too long”. The CWO indicated that in his experience, the delay had been “as long as 18 – 24 months.” He further indicated that he had often seen some of the charges dropped due to the delay.
The CWO further submitted that the “punishments awarded at [court martial] are viewed as more lenient than those awarded at [Summary Trial]. A good example would be a Pte [at Summary Trial] [who] was awarded 18 days in [Detention] for the theft of another soldiers kit and about 6 months later a Pte [at court martial] was awarded a fine of $650 for stealing C4 plastic explosives from a demolition range. Understanding there are many factors considered in awarding a punishment the general sentiment is that [court martial] punishments are far more lenient.”
The 5th Canadian Division CWO further suggested that the “understanding of administration and military law at the unit level are not well understood and often mixed,” and suggested increased training during normal career coursing on the separation between military administrative law and actions (for example, remedial measures, and administrative release) and military justice.
The CWO made further comments and recommendations with regards to investigations, both at the unit level and those undertaken by the military police and the National Investigation Service, but those observations were outside of the mandate of the CMCR.
4.5.5.1 Maritime Forces Pacific (Regular and Reserve Force)
The Commander, Royal Canadian Navy, selected Maritime Forces Pacific (MARPAC) to provide input to the CMCRT on behalf of the RCN. Commander MARPAC solicited input from all command teams in his formation, and submitted a consolidated written response to the CMCRT (included at Annex U). MARPAC noted several areas where they felt that enhancement was needed within the court martial system, alongside comments related to the summary trial system.
The first area where Commander MARPAC believed the court martial system required improvement was timeliness. In his words:
The courts martial system is seen as a very time-consuming process, with long delays, from the laying of the charge to the actual conclusion of the process. There is a widespread concern that the system is overburdened, and it takes in excess of two years to get to a Court Martial date. This is universally viewed as far too long and not serving the needs of the population. Over the last several years, the perceived limited capacity of military judges has led to unacceptable and lengthy wait times, which goes against the fundamentals of due process regarding being tried in a reasonable time frame. Furthermore, timely, swift, and balanced justice provides an effective deterrent, promotes good order and discipline, and counters many aspects of discipline which negatively affect morale and welfare.
The second area was general deterrence, and the perception of the court martial system amongst CAF members:
The widespread perception amongst the junior sailors is that election of Court Martial over Summary Trial currently provides members with a much greater chance of getting acquitted of their charges, particularly if they enlist the services of a civilian lawyer, who are perceived to have a better understanding and application of trial law than military lawyers. Many of the acquittals over the last decade are perceived to be due to “technicalities”, and members of the CAF view the accused as having gotten away with infractions. […] The current commonly held perception is that election for Court Martial has been used as a tactic to either delay proceedings until a member is released, or in hopes that it will be thrown out/dismissed due to a backlog.
Commander MARPAC also noted discrepancies in sentences and expectations:
[F]or the sentencing phase of both Summary Trials and Courts Martial, punishment discretion can lead to inconsistency across the Formation/RCN/CAF. Some units suggested new sentencing guidelines/ranges should be reviewed/ considered. Some sailors feel that the fines are too low based on current rates of pay, with the consensus being that fines need to be increased dramatically to have an effect.
Building on this theme, Commander MARPAC advised the CMCRT that: “All units noted that there needs to be a review of what types of offences […] are electable and which are not, with a view to shortening the list of electable offences.”
Commander MARPAC had positive comments related to the local nature, and military character, of military justice proceedings, particularly summary trials but also courts martial:
One of the strengths of the Military Justice system is that the CAF encourages participation, both through attendance at proceedings and making public the results and sentences of those proceedings. The publicity, even of minor infractions, ensures personnel have clear understanding of the consequences of their actions; this is not achieved as effectively in the civilian courts. It serves as a deterrence mechanism that helps maintain order and discipline, and reminds all personnel of the standards they are expected to maintain. The formal conduct and military tradition in Summary Trials and Courts Martial also serves as a reminder to all that the CAF is held to a higher standard for very important reasons. All units need to continue to ensure leaders attend Courts Martial to better understand the process and the outcomes.
4.5.5.2 The Crew of HMCS OTTAWA (Regular Force)
In addition to the leadership comments submitted through MARPAC, the commanding officer of Her Majesty's Canadian Ship (HMCS) OTTAWA encouraged his crew to submit their own personal thoughts, through him. This enabled HMCS OTTAWA to submit the thoughts of her crew as ‘CAF members’, augmenting the process already available to them as private citizens under CANFORGEN 186/16. The individual submitters remained anonymous to the CMCRT, aside from their belonging to HMCS OTTAWA, but not the command team of OTTAWA. The unedited, uncensored comments were relayed in writing by OTTAWA’s Commanding Officer to MARPAC, for onward distribution to the CMCRT. These consolidated comments are included at Annex V.
The crew of HMCS OTTAWA had several comments related to the military justice system as a whole, and in particular summary trials. Overall, the comments indicated that the total system was working well, and even if some areas require improvement, they believed that the military needs some internal mechanism to enforce discipline. On this note, one comment suggested that “[t]he justice system itself does not really maintain good order and discipline, that’s what the [chain of command] does.”
Another submitter noted that “[t]he military justice system works best when part of holistic system for dealing with behaviours that are a threat to good order and discipline in the CAF. It seems to me today though, that sometimes the [Chain of Command] will fail to exhaust other avenues of modifying a member’s behaviour, such as coaching, mentoring and identifying deeper personal problems.”
Some members of the crew of HMCS OTTAWA suggested that the election to court martial is now seen as a way to escape the consequences of misconduct. One of these members specified that “members electing [courts martial] are perceived to have more serious charges reduced to meet perceived higher evidence thresholds. [A] recent example is a […] court martial where initial charges were sexual assault but the prosecutor ended up only taking charges of drunkenness to trial.”
Timeliness and delay in the court martial process was a major concern for multiple members of OTTAWA’s crew. One member commented on this point at length, presuming that the court martial system is under-resourced:39
Recently, there has often been an unreasonable amount of time between when a charge occurs and is laid, and the time when a member receives a court martial. The amount of time between the laying of a charge and a trial has been recognized as a key component of procedural fairness by both the civilian and military justice systems, demonstrated in the statutory limits that the civilian system places necessitating when a trial can be brought to court. […] What is clear is that the lengthening time between an offence against the [Code of Service Discipline] occurring and a Court Martial seriously impacts the procedural fairness to the member, thus undermining the fairness of the system and negatively affecting members’ respect for the system.
There were also several comments concerning punishments in the military justice system, including both at summary trials and courts martial. While some members felt that the powers of punishment, at least, were fair and transparent, others indicated that they wanted parity with the civilian criminal justice system. Some crew members expressed the feeling that “the fines are too low based on members’ pay. The consensus is that if members got hit with $800 - $900 fines rather then $150 – $200 there would be less reoffenders.” One submitter suggested that “[p]owers of Punishment are the one area where the CAF could potentially use some reform. It frequently feels that the punishments are insufficient. […] For an example of the first issue, if a $200 fine is the ‘going rate’ for a minor offence, say AWOL by an hour, that $200 fine will not have the same impact on a member 10 years later when pay has gone up substantially. Similarly, punishments of ‘caution’, ‘reprimand’ and ‘severe reprimand’ are not understood by most members; they are all viewed as a ‘slap on the wrist’ by most.”
Concerning subject-matter jurisdiction, at least one member of HMCS OTTAWA suggested that “[s]exual crimes should never be tried through [the] military judicial system. As indicated in the media, crimes of a sexual nature cannot reasonably be adjudicated through military justice. […] In a court where everyone is your co-worker, peer, or worse, a supervisor, standing up to the accused may prove to be a daunting task. In a civilian court, pressures of rank differences and military formalities are removed, thereby creating a more accommodating atmosphere for the victim.”
Concerning the nature and composition of a court martial tribunal, two crew members expressed concern at the idea of using civilian judges, out of a worry that civilians would either refuse, or would not be permitted, to serve in a theatre of hostilities if it ever became necessary in the future to do so, as well as out of a worry that fewer and fewer civilians have any personal experience with the realities of military service.
There were additional recommendations from the crew for: improved training for investigators; better education on the system for all CAF members; and improving the transparency of any administrative action taking place parallel to military justice proceedings.
4.5.7.1 Commander, 1 Health Service Group (Regular Force)
The Commander of 1 Health Services Group provided the CMCRT with a submission in writing, which is included at Annex W. The Commander’s main concern was with delay in commencing court martial proceedings after a decision has been made to proceed. In the Commander’s words,
[D]elays [are] obviously impacting negatively both the alleged victims and accused. This has detrimental effect on their life and health in addition to creating significant issues for their unit in employing them. This is even more of a problem for our clinical [personnel] as most of the time they cannot be employed in their clinical role based on the nature of the charges against them.
The Commander pointed out that, sometimes, the delays were so extensive that the accused had “time to retire before the proceedings [took] place. This creates additional challenges for managing their entitlements at the unit level. Such delays […] also [conflict] with the approach of the summary trial in which the principle being applied is the timelier, the better.” The Commander 1 HSG concluded with the following overarching comment: “I believe having a more timely scheduling of our Court Martials would [achieve] better results.”
4.5.8 The Director of Defence Counsel Services
The Director of Defence Counsel Services provided two submissions to the CMCRT as a part of internal CAF consultations. The first was by letter dated 3 November, 2016 (reproduced at Annex X), which coincided with the period of public consultation. The second was by letter dated 13 February 2017 (reproduced at Annex Y), and coincided with the quantitative analysis of the court martial system undertaken by DND ADM (RS) (described in more detail below in Chapter 7).
In the words of the DDCS:
[I]t is my view that an overriding issue within the Military Justice system today is delay. This is an issue that affects the efficiency, the cost, the purpose and the constitutionality of the system. It touches every accused and every complainant within the system, as well as many other members of the CAF. It is, nonetheless, not an issue that can be addressed simply by trying to shorten trials or attenuate our support to an accused. It is more complex than that and has to be addressed at every stage of the process.
The DDCS canvassed those ‘stages’ of the current court martial process that, in his view, snowballed into the delay currently being experienced. He pointed out that the current ‘two-track’ charge screening process permits what he perceived as hopeless files (with no reasonable prospect of conviction) to enter the court martial system, requiring significant expenditures of energy by both prosecution and defence counsel.
The DDCS was critical of how the current processes allows for specific charges and particulars to change at several stages, as well as earlier legislative amendments that removed any legal requirement to investigate expeditiously.
One recommendation the DDCS made was with regard to the pre and post-charge screening process. In his view, in light of recent Supreme Court of Canada jurisprudence, the options for who performs what function at the charging / preferral stage is flexible, and he suggested that the current practice of having insular rolls for DJAs and RMPs should be revisited.
Concerning his own organization, the DDCS highlighted some areas that he felt could benefit from reform. He noted that the current governance structure is problematic for him, “given that defence counsel remain under the command of the JAG, a member of the executive, who controls their pay, posting and annual assessment notwithstanding the fact that their clients are litigating against the organization”.
The DDCS pointed out a particular example of this challenge, as he has recently been unable to ensure continuity of litigation experience in his organization. With no ability to control postings in or out of his team, and no knowledge of what legal officers have indicated a desire to come to DDCS, he felt that he was not able to secure comparable reliefs for several more experienced officers who retired.
On the topic of efficiency and workload, the DDCS indicated that workload was only an issue insofar as additional work is generated by excessive delay. He indicated that the largest case-load held by any single defence lawyer on his team was 23 cases.
4.5.9 The Director of Military Prosecutions
The Director of Military Prosecutions provided, in his personal capacity, a submission to the CMCRT that was considered as part of the public consultation process, that was posted on the Discussion Board,40 and the contents of which are included in this chapter’s summary of public consultation, above.
The DMP also provided a submission to the CMCRT indirectly through ADM (RS), in response to the latter’s request for input as part of their quantitative analysis of the court martial system (described in more detail below in Chapter 7). This written submission is included at Annex Z.
This submission provided a substantial extent of quantitative data relating to experience levels of military prosecutors, the amount of time that various steps within the court martial system have taken over the last five years, and the volume of cases that are dealt with by the prosecution service each year.
The submission also provided qualitative observations of both regular force and reserve force military prosecutors about different sources of delay within the court martial system, the differences between the civilian and military justice systems, and on the structure and policies of the prosecution service.
In several of the comments included within this submission, both by the DMP and other military prosecutors, it is suggested that the length of time needed to do investigations and the lack of adequate judicial resources are the major contributors to delay within the court martial system. The DMP suggests that “[t]he biggest challenge from my perspective is the inability to conduct trials in sufficient numbers to avoid an accumulation of cases. The single factor that could improve this is additional judicial capacity, something that the MJS shares with the civilian justice system.” However, the DMP also noted his view that, “either more prosecutors and/or prosecutors with more experience would also logically contribute to improving the functioning of the court martial system, including delays.”
The DMP cautioned against placing undue emphasis on timeliness within the court martial system as a measure of the system’s effectiveness or efficiency:
It is important to remember that speed is not the sole factor through which we can measure effectiveness, efficiency and legitimacy. It might not even be the most important. It is a fact that time has the advantage of being easily measurable (just like money), more so than ‘the level of discipline, effectiveness and morale’ for instance. This could easily lead to an overemphasis of that aspect to the detriment to others which may be more difficult to measure, but nevertheless crucial
The DMP also suggested that an “important aspect of the court martial system’s legitimacy is how much the public knows and understands that system, as well as the decisions made within [it].” The DMP indicated that it would be ideal if some means of measuring public confidence in the court martial system could be created. However, the DMP noted that,
Even without having a clear evidence-based view of the level of public support and knowledge of the court martial system, it is empirically evident that there is a lot of misunderstanding and criticism of the court martial system. This alone militates towards better public communication about the court martial system, with a view of enhancing its legitimacy.
The DMP and other military prosecutors who commented within this submission expressed strong disagreement with the suggestion contained in the Bronson Report (DMP)41 that delay within the court martial system was so severe that it threatened the very purpose of having a separate military justice system. These individuals suggested that delay was only one factor among many that should be considered when determining whether a separate system is needed, and indicated that delay was not so severe as to be a threat to the system.
4.6 Key Observations from Consultation
Consultation generated perceptions about the court martial system. The CMCRT notes that not all elements of all submissions that were received were factually well-informed about the current court martial system and the way that it operates. What is represented in this chapter, however, is not objective truth about the court martial system, but a collection of perceptions about the system from a very wide and diverse group of individuals and organizations.
To the extent that perceptions about the court martial system are objectively accurate, these perceptions can offer very important indicators about the effectiveness, efficiency, and legitimacy of the court martial system. However, even perceptions that are somewhat misinformed or inaccurate still have value for the purposes of the court martial comprehensive review, because they speak to the legitimacy of the court martial system. The legitimacy of a system is linked in part to the system’s compliance with legal rules, but is also linked to perceptions and acceptance of a system being a proper and appropriate exercise of government power, as seen from within and outside of the system. Thus, from a legitimacy perspective, the mere fact that people hold views that call into question whether the court martial system is always a proper and appropriate exercise of government power is relevant, regardless of whether those views are objectively correct.
Notwithstanding the above point about perceptions, the CMCRT found that stakeholders who made submissions were generally quite well informed about the court martial system.
From all of the above consultation, several recurring perceptions seem to be identifiable. These recurring perceptions are each described below.
The CAF is perceived as needing a system that helps to maintain internal discipline. First, it appeared to the CMCRT that there was broad agreement amongst contributors that the Canadian Armed Forces must have some internal mechanism to enforce discipline amongst its members. While there is significant variety of opinion concerning what subject matter ought to be included in such a disciplinary system, what the disciplinary process ought to look like, and what consequences ought to follow, there was never any suggestion put forward that the CAF could rely entirely on external sources to enforce discipline, nor that it could simply do without any disciplinary mechanism.42
Delays within the court martial system are perceived as unacceptable. Next, all contributors agreed that delay in the current court martial system is a very serious problem.43 At best, delay is undermining confidence in the legitimacy of the system. At worst, claims were made that delay was actively harming discipline, causing accused persons to doubt the fairness of the proceedings, and increasing the hardship endured by victims.
Whenever the CMCRT asked court martial system stakeholders how swift court martial proceedings would need to be in order to maintain their effectiveness, the answer was almost always the same: six months.44 During consultations, no commentator indicated that this ‘target’ was being met. Rather, submissions indicated experiences range from 10 months to almost two years.
Sentences imposed at courts martial are perceived as too lenient. According to both public and internal consultations, whenever sentencing was discussed, there was near-universal agreement that the sentences being handed down at court martial are perceived as being too low to achieve the aims of discipline or public order and welfare. Many contributors further indicated that sentences are perceived as being significantly out of step with those sentences being handed down at summary trial for similar offences conducted by similar offenders in similar circumstances.
Both military and criminal law expertise are perceived as being needed in the system – but such expertise can come from different sources. Many contributors submitted that the court martial system ought to be operated, in key positions, by military members. However, upon examination, these commenters universally did so based upon a presumption that uniformed actors would inherently provide certain core attributes to the system, in that they would:
- bring significant military knowledge and expertise to the proceedings;
- understand and give meaning to the needs of unit discipline; and
- ensure that accused members would receive fair treatment while being held to the higher standard expected of armed forces members.45
However, at the same time, the CMCRT heard from other contributors that simply placing uniforms on military justice system actors did not appear to produce the desired result of conferring military knowledge or expertise on these actors.46
The CMCRT noted that more than one contributor perceived military justice system actors as not possessing an adequate amount of criminal law and procedure experience or expertise, at least not when compared to their civilian criminal justice system counterparts – while recognizing that this experience and expertise was important within the court martial system.47
Decisions of independent military actors in the system were perceived as undermining discipline and the authority of the chain of command. Many commenters indicated that they perceived it to be harmful to discipline when another CAF officer who is independent of the chain of command made decisions that they felt were at odds with their own decisions (e.g.: to lay charges, or to refer charges to the DMP for trial by court martial), particularly when the outcomes that members of the military chain of command believe the court martial system should produce are so significantly different from the outcomes that the system actually produces.48 While they understand and support the constitutional necessity that military prosecutors and military judges exercise their functions independently, they perceived that their own credibility and authority as disciplinarians was undermined in such situations. Some of these contributors suggested that their perceptions in this regard were shaped by the fact that the independent decision-makers were also CAF officers, who they perceived to a large extent to exist to give effect to the disciplinary needs of the chain of command. These commenters suggested that they would not perceive the same kinds of problems being created by equivalent decisions of civilian justice system actors.
Many CAF contributors do not perceive a need for deployed court martial trials. When the issue was discussed in any detail, commenters showed widespread agreement in their perceptions that the court martial system required jurisdiction over CAF members abroad taking part in operations, including both prescriptive jurisdiction (i.e. ‘offence’ jurisdiction) and investigative capacity (i.e. the capability to conduct investigations abroad). However, the CMCRT observed a noticeable lack of consensus in perceptions of whether courts martial need to be deployable into theatres of hostilities, or even abroad at all, in order to meet the needs of justice and discipline.
Victims are perceived of as needing better rights and protections. Finally, whenever the needs of specific groups in the court martial system were discussed, the CMCRT was not surprised that contributors unanimously indicated that the court martial system ought to grant victims at least the same rights and services as are available in the civilian criminal justice system.
4.7 Conclusion
The widespread consultation that was conducted as part of the CMCR permitted each member of the CMCRT to draw upon the perspectives, knowledge, and expertise of many different individuals and groups, and allowed members of the CMCRT to see well beyond the limits of their own personal experiences. This consultation contributed significantly to work that was performed by the CMCRT.
Footnotes
1 Where appropriate, the CMCRT does indicate in this chapter where some claims made by contributors were supportable by any factual data or historical information in the CMCRT’s possession.
2 Tabled in Parliament in June, 2016. See Canada, Department of National Defence, Annual Report of the Judge Advocate General to the Minister of National Defence on the Administration of Military Justice in the Canadian Forces: A Review from 1 April 2015 to 31 March 2016 (Ottawa: Office of the Judge Advocate General, 2016), online: <http://www.forces.gc.ca/assets/FORCES_Internet/docs/en/jag/jag-annual-report-15-16.pdf>.
3 Ibid at iv.
4 Online: <https://www.canada.ca/en/department-national-defence/news/2016/10/asks-public-input-canada-court-martial-system.html>.
5 See, for instance, online: <http://www.cp24.com/news/military-justice-review-to-consider-leaving-sex-crimes-with-civilian-court-1.3108603>.
6 See online: <https://www.canada.ca/en/department-national-defence/news/2016/10/asks-public-input-canada-court-martial-system.html>.
7 The URL remains active as of the date of this report’s completion. See online: <http://www.forces.gc.ca/en/about-reports-pubs-military-law-court-martial-comprehensive-review/index.page>.
8 The CMCRT reserved the right to edit submissions for offensive content, though it did not in fact have to do so. The moderation rules of the Discussion Board were public, and was posted online: <https://www.canada.ca/en/department-national-defence/corporate/reports-publications/military-law.html>.
9 See online: <https://www.canada.ca/en/department-national-defence/corporate/reports-publications/military-law.html>.
10 See online: <https://www.canada.ca/en/department-national-defence/corporate/reports-publications/military-law.html>.
11 See online: <https://www.canada.ca/en/department-national-defence/corporate/reports-publications/military-law.html>.
12 See online: <http://www.victimsfirst.gc.ca/vv/SCMCR-MCRCM/index.html>.
13 The CBA-NMLS submission also contained criticisms entirely unrelated to the CMCR, which the CMCRT treated in the same manner as similar submissions from other contributors – i.e. it forwarded them on to the appropriate NDHQ directorate. The submission further suggested that the CMCRT ought to engage in targeted consultations with experts and stakeholders, as well as conduct an international comparative study. Both of these tasks were explicitly mandated in the CMCR’s Terms of Reference; at the time the CBA-NMLS’s submission was received, targeted consultations were still ongoing, and the international comparative study was complete.
14 The JAG does not possess the authority, for example, to direct Parliament to conduct a review of the Code of Service Discipline, as recommended by the CBA-NMLS.
15 Canada, Department of National Defence, External Review into Sexual Misconduct and Sexual Harassment in the Canadian Armed Forces, by Marie Deschamps C.C., Ad.E (Ottawa: Department of National Defence, 2015) [Deschamps Report].
16 Annex H, Submission from the SMRC to the CMCRT, 5 April 2017. See, Briefing Note to CMCRT, “Analysis of Victim Expressed Experience”, 5 April 2017.
17 Ibid.
18 Ibid.
19 Ibid.
20 Ibid.
21 Ibid. The research referenced by the SMRC was summarized in a literature review attached to the Centre’s submission, included at Annex H.
22 The International Society for Military Law and the Law of War is an international non-profit and non-political association under Belgian law. The Society was created in 1956 and has had its seat as well as its General Secretariat in Brussels (Belgium) since 1988. The Society counts approximately 900 members worldwide, among whom many are military and civilian legal advisors, judges and prosecutors. The academic community is also well represented in the Society’s membership.
23 The CSRT-SM was stood up by the CDS on 25 February 2015, in response to the Deschamps Report, supra note 15.
24 Paragraph 10 of the CMCRT’s Terms of Reference (Annex A) states: “any options that are considered by the CMCRT as a means of achieving greater effectiveness, efficiency, or legitimacy within the court martial system should be consistent with efforts that are being undertaken by other CAF authorities in support of Operation HONOUR. To this end, the CMCRT is authorized to consult with the CAF Strategic Response Team on Sexual Misconduct as approved by the DG CMCRT.”
25 Other topics of military law and policy were also discussed (e.g. administrative measures in response to alleged sexual harassment or sexual misconduct), but these topics, being outside of the mandate of the CMCRT, were for context only.
26 On this point see above, Chapter 3 (Past Studies), at note 83 (and accompanying text).
27 R v Cadieux, 2016 CM 4008.
28 R v Rouleau, 2016 CM 3015. The Commander CANSOFCOM accidentally discharged his firearm while in an operational theatre. No one was injured. On a guilty plea and joint submission on sentence, he was found guilty of one count under section 129 of the NDA, Conduct to the Prejudice of Good Order and Discipline, and sentenced to a $2000 fine.
29 The relevant sentencing portion of the military trial judge’s written reasons reads:
In arriving at what the court considers a fair and appropriate sentence, the court has considered the following mitigating and aggravating factors: […] (b) with respect to the subjective seriousness of the offence, the court considers three things as aggravating factors as suggested by the prosecutor: (i) First, the rank and position. It is easy for you to imagine that expectations are very high towards someone like you, with your rank and position. I do not have to elaborate a lot about that, but because of that, your rank and position constitutes, in the circumstances, an aggravating factor. (ii) Your experience with weapons and with the C8 carbine, which was referred to by the prosecutor as your familiarity with the weapon. Clearly you knew what you were handling, you knew how to handle it, and you were negligent, so I have to consider this factor, experience with this type of weapon, as an aggravating factor. (iii) Location and circumstances. It is true it was in a war environment. What I kept from those circumstances is the location; you were not in a controlled environment like a fire range where some safety measures are taken. Basically, each soldier must rely on each other to take his own safety measures in order to avoid causing any injuries to someone. Fortunately, nothing happened, but I have to consider it as an aggravating factor.
The court has also considered the following mitigating factors: (a) First, there is your guilty plea. Clearly you accepted full responsibility for what you did since the incident occurred. There is your statement just after the incident, there is your letter, and there are your instructions to your counsel to plead guilty at the very first opportunity. You clearly recognized and took full responsibility for the incident and your actions. (b) There is no annotation on your conduct sheet, in fact, I haven’t seen any conduct sheet, but clearly there is nothing in relation to any disciplinary incidents or disciplinary matters or an indication of any criminal record that you may have. (c) Also, I take from the circumstances that it is isolated and an out-of-character incident. Some people would say that it just proves that you are a human being, sometimes those things happen. We do not want to see those things happen, but it happened, but it is not something that you are used to do. It was probably your first and last time before this court. (d) There is also your exceptional career within the Canadian Armed Forces. As expressed by Chief Warrant Officer Legault, it is not a coincidence if you achieve what you have achieved in wearing the rank that you have and I think it must be considered, in all of the circumstances, as a mitigating factor.
Usually as a matter of sentence, in such circumstances, it goes from a severe reprimand and a fine to a reprimand and a fine up to a fine as demonstrated by all of the case law provided to the court by the prosecutor. I would add […]:
Basic military discipline requires that any service member regardless of his or her rank and responsibilities must handle his or her personal weapon with due care. The potential for the mishandling of weapons is increased tremendously as fatigue and stress also increase. This case sends a clear message that the mishandling of weapons by the failure to follow the proper safety measures is treated rigorously regardless of the status and rank of the offender.
In consequence, the Court will accept the joint submission made by counsel to sentence you to a fine in the amount of $2,000 considering that it is not contrary to the public interest and will not bring the administration of justice into disrepute. (citations omitted)
30 On this point, the CMCRT suspects that the Unit CWO may have been referring to the Military Grievances External Review Committee, which is comprised exclusively of civilian members, rather than the Director General Canadian Forces Grievance Authority, which includes military members.
31 Queen’s Regulations and Orders for the Canadian Forces, art 107.02, and 107, section 3 [QR&O].
32 For example: investigator; charge-layer; CO; Referral Authority; military prosecutor.
33 Specifically, the Commanding Officers, Unit Chief Warrant Officers, Brigade Group Commander, Brigade Group CWO, Support Group Commander, and Support Group CWO.
34 See for example the current requirement established by QR&O art 19.57.
35 QR&O art, 109.02: “The officers who are authorized to refer a charge to the Director of Military Prosecutions are the Chief of the Defence Staff and any officer having the powers of an officer commanding a command.”
36 The latest annual report of the DMP (2016-2017) does in fact capture the number of files preferred or not preferred. However, it does not capture how many specific charges were received and not preferred, reduced to a less serious charge, or increased to a more serious charge, nor are any reasons provided for any of these decisions. See: Canada, Department of National Defence, Director of Military Prosecutions Annual Report 2016-2017 (Ottawa: Office of the Judge Advocate General, 2017) [DMP Annual Report 2016-2017].
37 Online: <https://www.tbs-sct.gc.ca/pol/doc-eng.aspx?id=13937>.
38 The Court of Appeal for the Northwest Territories does not consist of judges who are appointed exclusively to that court, but, rather, consists of judges who are cross-appointed to that court from the Courts of Appeal of Alberta and Saskatchewan, and of the judges of the Supreme Court of the Northwest Territories, who are ex officio judges of the Court of Appeal.
39 The resourcing of the current court martial system will be explored below in Chapter 7 (Assessment).
40 See online: <https://www.canada.ca/en/department-national-defence/corporate/reports-publications/military-law.html>.
41 Andrejs Berzins, Q.C., and Malcolm Lindsay, Q.C., External Review of the Canadian Military Prosecution Service, (Ottawa: Bronson Consulting Group, 2008) [Bronson Report (DMP)].
42 This widely held-view is consistent with Canadian legal authorities. See for example R v MacKay, [1980] 2 SCR 370; R v Généreux, [1992] 1 SCR 259.
43 Delay has been a problem in the court martial system since at least the coming into force of Bill C-25 in 1999: See Bronson Report (DMP), supra note 41 at 10. The perception that it remains a serious issue is supported by the data: DMP Annual Report 2016-2017, supra note 36 at 33-35.
44 This answer has remained unchanged for at least nine years: Bronson Report (DMP), supra note 41 at 9-10.
45 See above, Chapter 4 (Consultation) at sections 4.5.4.2.1 (4 CDSG & 2 CMBG), 4.5.4.2.2 (RHFC), 4.5.4.2.3 (Royal Regiment of Canada) and 4.5.5.2 (HMCS OTTAWA Crew).
46 See above, Chapter 4 (Consultation) at sections 4.5.3(CANSOFCOM), 4.5.4.2.1 (4 CDSG & 2 CMBG), 4.5.4.1.1 and 4.5.4.1.2 (2 Can Div Pers Svcs). This observation triangulates with what was observed during the CMCRT’s comparative study, particularly concerning the UK court martial system.
47 See above, Chapter 4 (Consultation) at sections 4.5.4.2.2 (RHFC), 4.5.4.1.1 and 4.5.4.1.2 (2 Can Div Pers Svcs). The CMCRT learned that this perception was at least partially supported by more objective sources, including the DMP Annual Report 2016-2017, supra note 36 at 33-34:
CMPS welcomed 5 new captains just prior to or during the reporting period. Given their lack of experience, they take more time to adequately review files of equal complexity than a more experienced prosecutor would take. They are initially assigned files of lesser complexity, generally requiring less time. They require supervision and assistance from more senior prosecutors, which takes away from the time the latter can devote to their files. The more senior prosecutors end up with a greater proportion of the more complex cases requiring more time, with less time to devote to them than if there was a greater number of senior prosecutors on the team;
See also Annex Y, Submission from the Director of Defence Counsel Services to ADM(RS), 13 February 2017: “The one issue that I do see as very concerning regarding the experience levels of military defence counsel is that, both last year and the year before, I was effectively shut out of knowing which legal officers had expressed a desire to come to DCS. This is a complete reversal from my early years in this position. It has the potential to severely influence the competence level within the organization as others unilaterally select who will come”;
See also Annex BB, ADM(RS) Spreadsheet – Courts and Judges. The quantitative analysis undertaken by DND’s ADM (RS) for the CMCRT (discussed in detail in the following chapter), which indicated that Canada’s military judges each deal with about 17 courts martial a year, where their civilian counterparts in Canada deal with about 400 trials. ‘Judge Advocates’ of the Court Martial in the UK, for a military court comparison, deal with 90. The Bronson Reports likewise noted that DDCS and CMPS legal officers, without secondments to external prosecutions services, did not have sufficient case volume to reach the same level of experience and competency as their civilian counterparts.
48 See in particular above, Chapter 4 (Consultation) at sections 4.5.3 (CANSOFCOM) and 4.5.4.2.1 (4 CDSG & 2 CMBG).
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