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Chapter 7 – Assessment of the Current System

7.1 Introduction

In this chapter, the CMCRT assesses the current court martial system against the criteria established above in Chapter 6 (The Theoretical Basis for a Court Martial System).

7.1.1 Important Note on ‘System’ Assessment

It must continue to be stressed that nothing in this chapter, nor in this report, should be taken as critical or disparaging of any specific actors in the current court martial system. The CMCRT was not mandated to assess the performance, competency, or good faith of any individual, office, or group in the court martial system, and did not make any such assessments. The assessment that follows concerns the court martial system.

Even the most competent, hard-working, and devoted individuals would not be able to consistently achieve results in support of the purpose of the court martial system if the system itself was not structured to best support this purpose. It is for this reason that periodic assessments of the system itself must take place, as reflected at subsection 9.2(2) of the NDA (requiring the JAG to conduct, or cause to be conducted, regular reviews of the administration of military justice).

The CMCRT’s Terms of Reference provided for a broad mandate of assessing the effectiveness, efficiency, and legitimacy of the system while implicitly envisioning that changes to the system itself could be contemplated in order to better achieve these core principles.

In accordance with the CMCRT’s mandate,1 some potential options for enhancement are covered in the chapters that follow.

7.1.2 Sources of Information Relied Upon

The CMCRT has drawn on a wide variety of sources of information in order to ground the assessment that follows within this chapter.

For the purposes of measuring systemic efficiency, the CMCRT has relied on quantitative data and comparative analysis that was undertaken in support of the comprehensive review by officials from with the ADM (RS) Director General Evaluations organization. The individuals who compiled this data and performed this analysis are civilian employees within the Department of National Defence. The spreadsheets and the presentation that these individuals produced for the CMCRT are included at Annexes BB, CC, DD, EE and FF. The CMCRT has also drawn on its own comparative analysis, past critical perspectives on the court martial system, and other data sources such as JAG Annual Reports and publicly available court martial information, in order to assess systemic efficiency.

For the purposes of assessing both effectiveness and legitimacy, the CMCRT relied most heavily on information that was collected during the consultations that are described above at Chapter 4. Assessments of effectiveness were informed to a greater extent by internal CAF consultations, while assessments of legitimacy drew upon all forms of public, internal, and targeted consultation. In some cases, assessments of effectiveness and legitimacy have also relied upon the past critical perspectives on the court martial system that were discussed above at Chapter 3. Where appropriate, assessments of legitimacy and effectiveness have also noted any relevant parallels between issues within the Canadian court martial system and the equivalent systems of other countries that were considered as part of the CMCRT’s comparative analysis.

7.2 Overview: Assessment of the Current Court Martial System

The constitutionality of the court martial system is not seriously in doubt. Major aspects of Canada’s parallel military justice system have been recently upheld by the Supreme Court of Canada2 and the Court Martial Appeal Court.3 Chapter 2, above, laid out the history of Canada’s court martial system and discussed relatively recent reforms and amendments, some of which were responsive to judicial rulings to former aspects of the system. At time of writing, there are no unresolved court rulings concerning the operation or constitutionality of any aspect of the system. Canadians can have full confidence in the constitutionality of their court martial system.

However, as former Chief Justice of Canada Antonio Lamer noted, “[t]hose responsible for organizing and administrating Canada’s military justice system have strived, and must continue to strive, to offer a better system than merely that which cannot be constitutionally denied.”4 The constitutionality of the court martial system is a necessary, but not necessarily a sufficient criterion to allow the system to meet Canada’s needs as an instrument for supporting the government’s ability to control and use the CAF.

The CMCRT has concluded that Canada’s court martial system is somewhat effective (mostly in terms of its ability to achieve a public order and welfare purpose), appears to have considerable room for improvements in efficiency, and, as a result, faces challenges to its legitimacy.

7.3 Individual Subject Area Assessments of the Current Court Martial System

In the subsections of the chapter that follow, the CMCRT has assessed each relevant subject area within the court martial system. Some of the observations that are fundamental to these assessments (such as delay, and the challenge that is creates for producing timely outcomes) are cross-cutting, and will be discussed in detail at first, but will be referred to more briefly in subsequent contexts.

7.3.1 Status and Institutional Structure of Tribunals

From an effectiveness point of view, it is clear that several of the internal CAF users who were consulted believe that the court martial tribunal system is working well.5

The system appears to be sufficiently universal to meet the needs of the CAF, in that it has dealt with offences that occurred both inside and outside of Canada. The CMCRT noted that the system is somewhat unproven in its ability to conduct deployed trials. During the CAF’s participation in operations in Afghanistan, no courts martial were held in theatre. There was one instance of the taking of evidence in theatre, as part of a court martial otherwise held in Canada.6 In that case, the accused moved to have the court martial re-convened to Afghanistan from Gatineau, but was unsuccessful.7 That said, universality may not require that a court martial be deployable. Indeed, the ability to conduct deployed trials does not seem to be a requirement for many CAF leaders, some of whom have suggested that they would not want to hold a court martial in a theatre of operations.8

Some CAF leaders also feel that the current tribunal system is achieving a measure of deterrence, and feel that the system promotes respect for the law.9

It is not clear whether the tribunal system is consistently effective in generating accurate and correct outcomes. Some of those who were consulted felt that the current tribunal system is suitably structured to understand both military and criminal matters in order to arrive at decisions. Others, however, felt that the tribunal system does not incorporate the correct balance of qualities – namely, criminal law and military expertise – that is needed to promote the most appropriate decisions.10 In particular, some of the CAF leaders who were consulted suggested that military judges have far less experience as judges than civilian judges,11 while another group “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.”12 For many of those who were consulted, there was a perception that the current system is particularly challenged in its ability to generate accurate / correct sentencing outcomes, because the sentences at courts martial are too lenient.13

Although it was not brought up to the CMCRT in consultation, the CMCRT notes that the current tribunal system appears to be effective in protecting the public from military personnel who engage in misconduct through the imposition of sentences. A review by the CMCRT of court martial sentencing decisions from 1 April 2012 to 31 March 2017 indicates that, out of 245 offenders during that period, 57 offenders (23%) were sentenced to some period of detention or imprisonment. This rate of imposing sentences of incarceration is comparable to the equivalent rate within the civilian criminal justice system,14 and – while not determinative – suggests to the CMCRT that the court martial tribunal system is achieving an effect that helps to protect the public.

Most of the above points indicate to the CMCRT that the court martial tribunal system is somewhat effective – predominantly in its ability to promote public order and welfare. From a disciplinary perspective, however, there are strong indications – almost universal among CAF leaders who were consulted – that the court martial tribunal system is not effective at promoting discipline, efficiency, and morale within the CAF. The most commonly noted reason why the current tribunal system is perceived as ineffective to meet the disciplinary needs of the CAF chain of command was a failure to produce timely outcomes.15

With respect to a lack of timely outcomes,16 the CMCRT notes that, based upon data compiled by the DMP with respect to fiscal year 2016-2017, courts martial currently take, on average, 434 days from the date charges are laid to the completion of a court martial.17 This average period can be broken down as follows: 69 days from the time charges are laid until a file is referred to the DMP; 89 days from the time a referral is received until charges are preferred; and, 250 days from the time charges are preferred until the start of a court martial.18 From this data, one can infer that the average time from the start of a court martial until completion of a court martial is 26 days. This total time period of 434 days is substantially longer than the 180 days that consulted CAF leaders view as being the maximum delay that can be experienced between an incident and resolution before the proceedings lose all relevance for the promotion of military discipline.19 It is also substantially longer than the median length of time of 112 days (from first appearance to completion of the trial) that it takes to dispose of criminal cases by trials in Canada’s civilian criminal justice system.20 However, for the purposes of assessing the current tribunal system, the key information is that it takes, on average, 276 days (250 days + 26 days) from the time that a charge is preferred for trial by court martial until a court martial on those charges is completed.

This period of elapsed time exists despite the fact that military commanders,21 armed forces members,22 analysts,23 independent review authorities,24 internal policies,25 and the Supreme Court of Canada,26 have all expressed that in order to meet the needs of discipline, military misconduct must be dealt with expeditiously in general and, specifically, swifter than comparable proceedings in the civilian criminal justice system.

The CMCRT heard that, for several commanders who were consulted, delay in the court martial system, alone, makes it largely irrelevant to the chain of command as a tool for promoting discipline.27 This perception is consistent with an observation by the Bronson Consulting Group noted in 2008: “delays in the Court Martial tier of the Military Justice System are so severe that the very purpose of having a separate military justice system is threatened.”28 An inability to produce timely outcomes – at least in terms of what CAF leaders feel is needed in order to achieve a disciplinary effect – has persisted for at least the last 17 years.29 Delay has persisted during periods when both three and four military judges have been appointed to the bench, and does not seem to be meaningfully impacted by the number of judges who are capable of sitting at any given time.

The CMCRT notes that the current tribunal system is not the lone cause of delay in the court martial system; more sources of delay will be discussed below. However, there are several major areas where the tribunal is contributing unnecessarily to delay.

For instance, there is no mechanism to effectively resolve cases early by way of a guilty plea. Considering that over the last five years, 65% of cases concluded in guilty pleas,30 permitting guilty pleas to occur at the earliest possible opportunity could have a significant impact on the state of delay. However, as the system currently stands, guilty pleas occur on the first day set down for trial, in the tribunal’s convened location (one that often requires travel on the part of the military judge, court reporter, defence counsel, and military prosecutor), even if all parties know that the guilty plea is going to occur. This cause of delay was noted by the Bronson Consulting Group in 2008.31

Another example of tribunal delay is the practice of sentencing hearings. The Bronson Consulting Group noted in their 2008 Report that court martial sentencing hearings – even those involving joint submissions, were inordinately long.32 The CMCRT noted that lengthy sentencing hearings continue.33

The CMCRT considered both the lack of a mechanism for early resolution and the practice of lengthy sentencing hearings to be part of the problem that Bronson Report (DMP) of 2008 would have addressed through ‘effective case management’. In addition to the above two recommendations for reform, practices like the establishment of a case management committee,34 trial coordination,35 improved scheduling practices,36 judicial pre-trial conferences,37 and confirmation hearings,38 were all recommended to expedite the court martial system and to more efficiently use its substantial resources. It would appear as if the Chief Military Judge within the current tribunal system has the statutory authority to make rules that would implement a case management system.39 However, to whatever extent these recommendations can be said to have been implemented (and it would appear that none of them have been implemented formally through regulatory rules of practice and procedure), they have not been successful in reducing delay over the last nine years.

The CMCRT noted the development in the UK Court Martial of “Better Case Management”. Remarkably similar to the recommendations made by the Bronson Group in 2008, its equivalent still does not exist in the Canadian court martial system.

[Better Case Management (Court Martial)] emphasises the importance of the effective management of proceedings whilst preserving judicial discretion and disposing of guilty plea cases at the earliest opportunity. It requires the early review and identification of those cases where the defendant is likely to plead guilty and early discussion between parties to identify the issues in contested cases. Thereafter, depending on the complexity of the case, it builds in time for cases to be prepared once the issues have been identified, allowing parties to focus on those matters in dispute and not on those which are not in contention. 40

In the UK, Better Case Management was imposed on actors within the Court Martial by the judiciary, who had seen the system in action and its positive effects on the administration of justice when they presided in Crown Court as civilian judges (as they all do for at least 3 months of every year).

It is important to recognize that challenges in producing timely outcomes are not unique to the court martial system. Canada’s Standing Senate Committee on Legal and Constitutional Affairs recently noted the following in its study of the civilian criminal justice system:

This committee respects judicial independence and the judiciary’s role in applying the common law and federal, provincial, and territorial statutes, including the Constitution and the Charter of Rights and Freedoms. At this time of reform and cultural shift, however, judges need to make broad efforts to take stock of case management practices and the opportunities provided by technology to modernize the administration of cases and courtrooms across the country.41

These comments likely apply with equal force in the court martial system, where delay is, on average, more severe than within the civilian criminal justice system.

Effectiveness within the court martial system is challenged in other ways. The court martial tribunal structure is perceived by some as being unable to meet the disciplinary needs of CAF leaders in terms of deterring misconduct by military personnel, and expressing (military) community condemnation of misconduct by military personnel. Specifically, some CAF leaders perceive that the measures of independence that the tribunal needs to perform its constitutional functions actually inhibit the tribunal from taking proper note of the leader’s perspectives about what discipline requires in a particular. These CAF leaders perceive that the military status of tribunal members creates a kind of disciplinary confusion that is harmful to their disciplinary authority, when the tribunal makes a decision (e.g.: on sentence) that is inconsistent with the CAF leader’s view of what an appropriate decision under those circumstances would be.42

In light of all of the above observations and analysis, the CMCRT concludes that the current tribunal system is somewhat effective, in that it often achieves a public order and welfare purpose, but it rarely achieves a disciplinary purpose (and it is sometimes perceived by some CAF leaders as harming discipline).

In terms of efficiency, there are indications that the current tribunal system is producing its effects at a disproportionate financial or human resource cost.

From a financial cost perspective, the average cost per court martial trial over the last five years that is attributable to judicial and court services is $31 880 (inclusive of pro-rated judicial and court reporter salaries, civilian salaries for the Court Martial Administrator and staff, all judicial and court services travel costs, and normal operating and maintenance costs of the judicial and court administration organizations).43 Equivalent costs within comparator systems are as follows:

As these figures indicate, the financial costs per trial of the current tribunal system are over 15 times greater than equivalent costs per trial in Canada’s civilian criminal justice system, and almost 4 times greater than the costs per trial in the UK’s Court Martial. Even accounting for travel costs that are inherent in the current court martial system, the system incurs considerably more financial costs than comparators.

Over the last five years, the court martial system has conducted, on average, 63 trials per year. From a human resources perspective, over the last five years, military judges (accounting for periods when there were both three and four military judges) each conducted on average 17.1 courts martial per year (including both contested and uncontested matters). On average, 6 of these 17 matters would have been fully contested trials, with additionally 1 to 2 contested sentencing hearings after guilty pleas. The remaining 9-10 trials would have been ones involving guilty pleas following by joint submissions as to the sentence. These numbers can be compared with an average of:45

These approximately 17 courts martial (6 contested) per military judge, per year, required of each judge on average 59.3 sitting days. This number can be compared with:

Because courts martial are ad hoc ‘events’ normally convened by the Court Martial Administrator in the location where the alleged offence took place (or, some other place based on considerations about the location of the accused person, witnesses, or other affected CAF members), courts martial involve travel and this must be taken into account. Assuming that travel was required for every court martial,48 this would add 34 travel days to the 59 sitting days, for a total of 93 ‘court martial attributable’ days per year, per judge. This figure is closer to the numbers from the UK and Manitoba in total ‘sitting days’. However, the judges of those systems complete between 5 times and 25 times as many trials per year as Canadian military judges. Judges must also do some judicial work on days when they are not sitting, which is not reflected in the above data regarding sitting days for either the court martial system or any of the comparator system.49

Based upon the above comparators, it is evident that Canada’s court martial system is among the most judicially resource-intensive, even after taking account of its itinerant nature.

The human resource costs of the tribunal other than for the judiciary are likewise relatively high. The tribunal’s court administration services, consisting of the Court Martial Administrator, court reporters, and other staff, make up a total of 17 full-time personnel. Whenever a court martial is convened, local units must also provide officers of the court, and other individuals from their unit lines (who are taken away from their normal duties) to staff the court martial ‘event’. These can vary from 1-2 days for a guilty plea and a joint submission, to several weeks. If a General Court Martial is convened, then there is the additional human resource cost of a military panel, whose members are taken away from their normal duties to act only as finders of fact.

In terms of legitimacy, it is not seriously in dispute that military judges meet the constitutional requirements for judicial independence and impartiality. Courts martial before military judges are constitutionally fair. Nevertheless, the CMCRT received some input which suggests the perception that courts martial do not reflect societal values in a manner that lends inherent legitimacy to the processes.

The CMCRT received a number of comments related to the repute of the court martial tribunal during its consultation. For example, one commanding officer expressed to the CMCRT that in his view, military judges have much less experience when compared to civilian jurists, without having the same much military experience and ethos as those being judged.50 In another example, one reserve force commanding officer (a senior Crown prosecutor in his civilian capacity) told the CMCRT that “the experience level of the judicial branch of the court is concerning.”51 These comments express a perceptions that the current tribunal system is less fair and less intelligible in its design than the civilian criminal justice system’s courts, due to the relative differences in experience at the tribunal and at similar civilian criminal courts. These comments – if objectively accurate – would also indicate that the current tribunal system would have difficulty in generating accurate / correct outcomes.

Additionally, the military status and ranks that are held by tribunal members affected perceptions of fairness. The CMCRT received suggestions that individuals might question the fairness of a trial held before a military judge, who is a member of the regular force, and who is lower in rank than a local commander (e.g.: the Base Commander), a witness, prosecution or defence counsel, or even the accused.52 Similarly, public consultations suggested that an accused person might perceive a panel made up of military leaders as unfair since representatives of the very institution that is prosecuting him or her are also judging the case.53 On the other hand, members of the public, especially victims, may perceive military judges and military panels as ‘on the same team’ as the accused, and so more likely to treat him or her leniently or, even worse, allow the accused to escape with impunity.54

The CMCRT heard further fairness concerns with respect to the panel. At time of writing, junior ranking military members are not eligible to sit on panels. The CMCRT received input from some contributors suggesting that this was problematic from a perception of fairness perspective,55 since almost any military member – regardless of rank – should be capable of making factual findings and contributing to the determination of verdicts, just as almost any civilian can do so as a juror.

One consequential element of the current tribunal system that may contribute to disproportionate financial costs is the statutory requirement for the conduct of quadrennial inquiries into the compensation of military judges. This inquiry, which is constitutionally required is conducted by a Military Judges Compensation Committee (MJCC),56 made up of three members who are appointed by the Governor in Council who review submissions from the government and the (3 or 4) military judges about the adequacy of the military judges’ compensation, and who then produce a report for the government’s consideration. A similar committee is provided for under section 76 of the Judges Act, and enquires into the adequacy of compensation for the (approximately) 115457 federally-appointed civilian judges. The requirement for a separate committee and the costs associated with this committee arguably only exists because of the distinct identity of a small group of military judges, and might be dealt with in more efficient ways.

A final area of study related to the current tribunal system involves the provision of court reporting services. Comparative analysis suggests that in systems where civilian court reporting services are used on a contractual basis, transcripts are produced in a timely manner (generally within 24 hours) that may contribute to the generation of accurate / correct outcomes, at a proportionate financial cost, and in a manner that does not impact the system’s universality.58

Within the current court martial system, the use of full-time military personnel as court reporters does not appear to produce the same results. Notwithstanding QR&O 112.66, which requires that, “as soon as practical after the proceedings of a court martial are terminated,” a transcript of the proceedings is to be prepared, the CMCRT understands that it has become the practice to only produce transcripts when a court martial decision is under appeal, and it can take months to produce these transcripts.

The lack of timely transcripts may lead to systemic challenges in generating accurate / correct outcomes. Moreover, prosecutors, defence counsel, and military judges would be able to work more efficiently if they were able to refer to an accurate transcript during the trial in order to prepare and make submissions and judgements. Furthermore, the current system appears to involve less proportionate financial and human resource costs and less scalability because an established capability level will need to be maintained regardless of the volume of court reporting work that the system requires at any given point in time.

7.3.2 The Status and Institutional Structure of the Prosecution Service

From an effectiveness perspective, it is clear that the current prosecution service system is achieving a measure of promotion of public order and welfare. The prosecution service system is ensuring that cases referred to the DMP are dealt with, and are frequently preferring charges for trials by courts martial.59

In terms of universality, the current prosecution service system supports the court martial system’s effectiveness, since prosecutors have proven capable of performing their functions across the full spectrum of CAF operations and environments. The system is also somewhat scalable, in that more military prosecutors (regular force or reserve force) can be posted into or out of the DMP organization as needed to meet unexpected increases or decreases in systemic volume, but is not as scalable as it would be if the DMP had authority similar to that which the DDCS has to engage outside counsel or agents (who are not officers within the CAF) if required. The DMP does have a policy that permits the appointment of “special prosecutors” in certain cases, which could augment the prosecution service’s capacity, but only officers who are lawyers can be appointed, so the potential for increased capacity that “special prosecutors” represent is relatively low.

As noted above (regarding tribunals), many court martial cases have led to the imposition of periods of imprisonment or detention at sentencing, which suggests that the prosecution service system is effective in contributing to protection of the public from military personnel who engage in misconduct. Additionally, some CAF leaders have indicated that the current court martial system is achieving a measure of deterrence, and feel that the system promotes respect for the law.60 The current prosecution service system necessarily plays an important role in contributing to this deterrent effect.

The CMCRT heard several expressions of concern about whether the current prosecution service is structured to promote the generation of accurate / correct outcomes. For instance, some input received during public consultation suggests that, as a minimum, military prosecutors should have a specialized career path.61 Many of the CAF leaders who were consulted suggested that more should be done to ensure prosecutors contribute to the generation of accurate / correct outcomes, such as embedding military prosecutors with civilian prosecution services to develop better expertise through higher volumes of case loads,62 using career civilian prosecutors,63 using a mixed civilian / military prosecution service.64 All of these types of comments suggest that the current prosecution service system is perceived as not achieving the right balance of military and criminal law expertise that is needed to generate accurate / correct outcomes.

With respect to the current prosecution service system’s capacity to promote discipline, efficiency, and morale, there were several indications that the current model is not optimally effective. A large group of the command teams that were consulted expressed frustration that unit discipline and command authority is undermined when a military prosecutor decides not to proceed with disciplinary charges that have been laid by unit personnel,65 particularly when the reasons for doing so are not clearly communicated.66

This frustration suggests that the current prosecution service system is not perceived as promoting a level of community condemnation of misconduct by military personnel that is desired by CAF leaders. The issue, as perceived by these CAF leaders, does not appear to be with the actual decisions of the prosecutors in isolation, nor with the independence of the prosecutors (which is recognized as a positive feature); rather, the issue appears to be that the current system creates a sort of disciplinary role confusion when it permits prosecutors to negate the effect that a commander had in mind when he or she referred charges to the DMP in the first place.

A more commonly expressed indication that the current system is not promoting discipline, efficiency, and morale within the CAF was grounded in the current system’s inability to produce timely outcomes. The current prosecution service system contributes to delay. The average time that was taken by military prosecutors in 2016-2017 to decide whether to prosecute after a file has been referred to the DMP was 89 days. This amount of time – although down from the average of 103 days that was taken during 2006-200767 – can be contrasted with the standard that the Bronson Report (DMP) suggested exists within the civilian criminal justice system, where charge-screening decisions are made in a matter of minutes or hours, rather than in weeks or months.68

The Bronson Report (DMP) listed numerous ways in which the reviewers felt the prosecution system had contributed to the problem of delay. The CMCRT took particular note of one such factor that still endures: the relative inexperience of military prosecutors.69 To the extent that any recommendations of the Bronson Report (DMP) (or the LeSage Report, which echoed some of the Bronson Report) have been adopted, they have not been significantly successful in reducing delays attributable to the current prosecution service system. Furthermore, many of the recommendations (like having a specialized career track to promote faster prosecutions) have never been implemented, as reflected in the DMP’s comments in his most recent Annual Report to the JAG:

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. However, this was a conscious investment in the future on DMP’s part. These new prosecutors are extremely talented and promising. We expect that with the benefit of additional experience, those prosecutors will quickly become more efficient at reviewing files, capable of handling more complex cases, require less assistance, thus freeing more senior prosecutors to complete these files. Globally, this should result in a reduction of post-charge review timelines in 2017-2018.70

Although the above situation described by the DMP may look unique, it is bound to recur in a system where – assuming that prosecutors all complete 5-year postings to the DMP organization – at least three prosecutors per year will be turning over. The issue of turnover leading to a new group of inexperienced prosecutors is therefore a structural one, rather than an isolated instance. Some of the ways in which this issue could be addressed (for instance, by creating a specialized litigation career stream for military prosecutors) will be addressed in a subsequent chapter.

The current prosecution service system plays a large part in creating court martial system delays that cause matters within the system to take much longer than the 6 months that those CAF leaders who were consulted have universally indicated is the limit beyond which prosecutions and trials have no meaningful (or have harmful) effects on discipline. Consequently, the current prosecution service system is largely unable to contribute to the production of timely outcomes in any way that would promote discipline, efficiency and morale of the CAF.

That being said, there are many inherent sources of delay within the current court martial system that are outside of the control of the prosecution service, and that contribute to the overall delay of 434 days from the time a charge is laid until the completion of a court martial. For many of the more serious charges dealt with at courts martial, the statutory and regulatory scheme currently contemplates that a charge-layer will need to transmit the charge to a Commanding Officer, who will need to apply to a referral authority for disposal of the charge at court martial, who will need to refer the charge to the DMP, whose prosecutors will need to decide whether to prefer charges. If charges are preferred, then the Court Martial Administrator will need to convene a court martial that suits the schedules of the military judge, the prosecutor, and the defence counsel. Then, the trial will need to take place. All of these steps involve time, and contribute to systemic delay.

In terms of efficiency, and even accounting for the (potentially) temporary inexperience issue described above, the current prosecution system does not incur proportionate financial and human resource costs.

From a financial cost perspective, the average cost per court martial trial over the last five years that is attributable to prosecutions services is $48 966.71 This figure includes the total costs of all military and civilian salaries, travel costs, and normal operating and maintenance costs of the prosecution service, divided by the total number of courts martial.72 Equivalent costs within comparator systems are as follows:

As these figures indicate, the financial costs per trial of the current prosecution service system are over 30 times greater than equivalent costs per trial in Canada’s civilian criminal justice system, and more than double the costs per trial in the UK’s Court Martial. However, the costs are comparable to those within the Australian military prosecution service.

In terms of human resource costs, the current Canadian Military Prosecution Service is staffed with 16.8 full-time equivalent prosecutors (mixed regular and reserve force).74 In 2016/2017, the DMP’s Annual Report listed the organization as staffed with 16 full-time, regular force prosecutors (including the DMP himself), and 8 part-time reserve force prosecutors (with one additional reserve position currently vacant). The organization has a further 6 full-time civilian administrative support personnel, and one full-time paralegal.

As was noted above in the assessment of the court martial tribunal status and structure, the system conducts annually an average of 63 trials, 65% of which are resolved by way of guilty plea.

This means that, in terms of prosecutorial human resource requirements, based upon the previous five years, each Canadian military prosecutor (full-time and full-time equivalent) conducted on average 3.8 courts martial per year, with 1.33 per year being the rate of contested trials. These numbers can be compared with an average of:

It is clear that, in terms of caseloads, Canada’s military prosecution service is the most resourced of the comparator systems and is significantly more resourced than the two comparator provincial prosecution services.

As the Bronson Report (DMP) also suggested with respect to the low volume of cases that are conducted by each prosecutor within the current prosecution service system, this caseload is likely insufficient to allow prosecutors within the current prosecution service system to develop the required expertise to be fully proficient prosecutors (which would have an impact on both efficiency and effectiveness). In their judgment, it would take a civilian prosecutor 3-4 years of full-time practice and litigation, with mentorship from experienced, senior litigators, in order for a prosecutor to become “fully competent”.77 This presumes that a prosecutor would need to conduct between 300-600 trials before achieving the described standard of competency – which would take military prosecutors within the current system who have no previous criminal trial experience at least 75 years to complete, assuming each prosecutor completes four courts martial per year (slightly more than the current average).

It must be noted that the reserve force prosecutors within the DMP organization are generally also always civilian prosecutors in their civilian capacities, who have at least the minimum litigation experience that the Bronson reviewers felt was needed of a fully competent prosecutor.

The above information relating to financial and human resources costs, when compared to other systems that produce essentially similar or the same effects, suggests that the current prosecution service system uses such resources disproportionately, and is therefore not efficient.

More to the point, the current prosecution service system appears to be trending toward greater inefficiency over time. When the Bronson Report (DMP) was completed in 2008, the reviewers noted as follows: “We have concluded that lack of resources is not a contributing factor to Court Martial delays. Some of the people we spoke to even suggested that the system is over-resourced. Without going that far, we believe that delays are caused by the policies and practices employed in the system rather than by any lack of resources.”78 Since 2008, the prosecution service has grown by 3 full-time military prosecutors (from 13 to 16),79 while the volume of cases proceeding to court martial that have been dealt with by the prosecution service remained effectively the same.80 Military prosecutors currently deal with fewer court martial files per person than in 2008, when it was suggested that service may already have been over-resourced – although they have reduced the average amount of time taken to make decisions to prosecute from 103 days to 89 days.

It must be recognized that military prosecutors – like all other public prosecutors in Canada – may perform a significant amount of work on a file that never leads to a trial, advising investigators as needed, and conducting a post-charge review of the file in order to make their decision whether to prosecute. However, even if one considers the total number of files handled in any way by the prosecution service within the current system – which was, in 2016-2017, a total of 300 files (the highest number in the last 4 years),81 this results in approximately 17.6 files per military prosecutor for the year.82

These numbers can be compared with data drawn from the Public Prosecution Service of Canada’s (PPSC) 2015-2016 Annual Report.83 At the time of the report, PPSC employed 536 lawyers, and relied upon the services of another 409 standing agents. The total number of files handled during the year was 72 538. On average, this means that each lawyer / agent would handle approximately 76 files per year. Further data from the report indicates that 41 862 files (64%) were “low complexity”, and a total of 313 558 prosecutorial hours of time were spent on these files (for an average of 7.5 hours of time spent on each file). Another 21 061 files (32%) were “medium complexity”, and a total of 505 588 prosecutorial hours of time were spent on these files (for an average of 18.7 hours of time spent on each file). Finally, an additional 2374 files (4%) were “high complexity”, and a total of 306 853 prosecutorial hours of time were spent on these files (for an average of 129 hours of time spent on each file).

Court martial files are different from PPSC files, so it is possible that court martial files could be more complex. If one assumed that one third of the files that military prosecutors dealt with were “high complexity” files (i.e.: 33% of their files, as compared to 4% of the files dealt with by PPSC prosecutors) and none of the files dealt with by military prosecutors were ever “low complexity” (i.e.: the remaining 67% of military prosecutors’ files were “medium complexity”), then military prosecutors who achieved a level of efficiency that is equivalent to that of the PPSC prosecutors would have, on average, approximately 20 weeks of work each year in dealing with their 6 “high complexity” files, and another 6 weeks of work each year dealing with their 12 “medium complexity” files – assuming a 40-hour work week. This data provides an indication of what kind of proportionate financial and human resource outcomes could be achieved within the court martial system if the system facilitated the acquisition of the kind of litigation and criminal law expertise that seems to be present within PPSC.

With respect to legitimacy, it is not seriously in doubt that the status and institutional structure of the current prosecution service is constitutional. In one recent case, the Supreme Court of Canada upheld the Minister of National Defence’s statutory power to appeal within the court martial system84 (which authority is routinely exercised by the DMP on the Minister’s instruction).85 This fact suggests that the minimum standard of fairness exists.

The DMP acts under the general supervision of another military officer, the Judge Advocate General.86 The JAG is empowered to issue general instructions to the DMP,87 as well as specific instructions with respect to any particular prosecution.88 Any such general or specific instructions, however, must be made available to the public,89 providing appropriate transparency. The JAG supervises the DMP as well as the Director of Defence Counsel Services,90 in addition to having “the superintendence of the administration of military justice in the Canadian Forces.”91 The CMCRT heard from some individuals who were consulted that this unfamiliar structure creates a perception of reduced fairness and intelligibility. In the words of one contributor, this situation is like “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.”92 Regardless of the extent to which such a claim might be objectively inaccurate, the mere perception affects legitimacy of the prosecution service system, and has led to suggestions for a structure wherein the DMP is directly responsible to the Minister, rather than under the general supervision of the JAG.93

Lastly, the very fact that the DMP is a military officer, visibly subordinate to a large number of military officers (including the JAG) can create challenges for perceptions of fairness. The CMCRT heard from some stakeholders during targeted consultations that criminal-like prosecutions 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. Such a case, the CMCRT heard, creates 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.94

The CMCRT noted during its international comparative study that several nations that had either civilianized the analogous position,95 or had rendered the position ‘rank-less’,96 enjoyed many advantages with respect to perceptions of fairness. The CMCRT heard similar points during public consultations.97

The also heard during internal consultations that command teams were not being informed of the reasons for the delay in the system, nor were they being 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.98 Such comments suggest that more transparency within the prosecution service system could be achieved.

7.3.3 Provision of Defence Counsel Services

It is clear from internal consultation that CAF leaders believe that the current system for providing defence counsel services is effective, mostly because it helps the court martial system to generate accurate / correct outcomes. In particular, several CAF leaders expressed beliefs that the current system for providing defence counsel services has achieved a good balance of military and criminal law expertise.99 No internal consultation suggested that there were any substantive quality problems arising within the current system for providing defence counsel services. Similarly, no observations suggest that there are any universality problems with the current system, which the CMCRT notes has operated across a broad spectrum of CAF operations and environments.

In terms of efficiency, the CMCRT heard a carefully communicated message from internal consultations: the provision of defence counsel services should be generous, but probably less generous than at present and certainly not unlimited.100 This consultation suggested that – because of the extra liability to do dangerous and difficult work that is taken on by CAF members – the state should fully fund legal counsel for military accused persons where the charges arise out of military duties that the individuals have been required to perform, but not where the charges are far removed from what the accused person was expected to do under the circumstances as a military member. In the latter case, consultation suggested that a contribution model would be appropriate where accused persons contribute some or all of the cost of their defence. This input from internal CAF consultation was essential to help the CMCRT understand the scope of defence counsel services that CAF leaders felt the system ought to provide, which factored into the CMCRT’s assessment of efficiency.

With respect to the proportionality of financial and human resource costs, the CMCRT found that the defence counsel services system is more difficult to assess against appropriate comparators, since the court martial system’s full-time, fully-funded model is different from most other military comparators, and is very different from civilian legal aid and private criminal defence models. For instance, no other nation, except the United States, has adopted a full-time, fully-funded defence counsel model.101

From a financial cost perspective, the average cost per court martial trial over the last five years that is attributable to defence counsel services is $28 485 (inclusive of military and civilian salaries, travel costs, and normal operating and maintenance costs of the defence counsel service).102 To the extent that one can make comparisons, the equivalent costs within comparator systems are as follows:103

As these figures indicate, the financial costs per trial of the current defence counsel service system are over 15 times greater than equivalent costs per trial in Ontario’s civilian criminal justice system, and more than 4 times greater than the costs per trial in the UK’s Court Martial.

When making comparisons with Canada’s civilian legal aid system, however, it is important to note that many civilian justice system stakeholders, including the Canadian Bar Association, see the extent of government funding of legal aid to be inadequate: “More money for legal aid services across Canada is desperately needed.”105 In this case, therefore, the CMCRT sees comparison with the UK court martial system as the most appropriate comparator since, based on the CMCRT’s comparative analysis, UK stakeholders appear to be wholly satisfied with the quality of defence counsel services that are received106 for a fraction of the costs that are incurred within Canada’s current defence counsel services system.

Regarding human resource costs, over the last five years, defence counsel (full-time equivalents) assigned to DCS conducted on average 6.7 courts martial each per year. An average of 2.3 of those trials were contested. The lawyers are supported by one paralegal and two administrative support staff. The DDCS indicated to the CMCRT that the largest case-load of any individual lawyer in his organization as of February 2017 was 23 cases. Keeping in mind that the average amount of time between a charge being laid and the completion of a court martial is more than one year (434 days),107 the CMCRT assumes that a typical defence counsel lawyer within the current military DCS system would not deal with more than approximately 20 cases in a single year.

The CMCRT understands from the Bronson Report of 2009 that the caseloads typical of defence counsel working in legal aid offices or at the private defence bar would be more like 70-100 (or more) files per year.108 The Bronson Group highlighted the extent of this dissonance:

In the Brampton Criminal Law Office there are two staff lawyers, one Director, one community legal worker and one receptionist. At present, the staffing in Ottawa is considerably less but for the purposes of comparison, we will be using the staffing in 2006 and 2007, which at the time consisted of one Director, two staff lawyers, one community legal worker and one receptionist. In 2006 and 2007 in each of the Criminal Law Offices, the staff lawyers and the Director carried a full caseload and provided legal services to clients at all levels of court including appeals to Superior Court.

[…]

The Brampton Criminal Law Office opened 314 files in 2006 and opened 162 files for the 6 month period from January to June of 2007. The Ottawa Criminal Law Office opened 276 files in 2006 and opened 120 files for the 6 month period from January to June of 2007. At the time both offices were staffed with one Director and two staff lawyers as well as the above-noted support staff. It must be stated that most of the files opened were for clients charged with criminal code offences for which there was little prospect of incarceration if they were convicted. Each office carried a relatively small caseload of files that would be considered “serious offences”.

Suffice it to say, the difference in caseload between the DCS counsel and the staff legal aid offices is remarkable and warrants more in-depth analysis.109

Even taking account of the fact that DDCS legal officers are also responsible for the duty counsel phone line, the court martial system would appear to be disproportionate in the extent of financial and human resource costs that it incurs.

The significant expense of the current defence counsel service model is not surprising. In August, 1997, the CAF’s Defence Counsel Study Team noted that the current model was the most expensive option under its consideration.110

That same study team noted that the model would pose some challenges, given the prospective low caseload, with respect to maintaining an adequate level of expertise and proficiency111 - in much the same way as the Bronson Report of 2008 made the same observation about prosecutors.112

The current DDCS implicitly suggested that it is a challenge to maintain proficiency levels that would be needed in order for the court martial system to run more efficiently, when he noted that the current governance structure of DDCS is problematic, “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”. He further indicated structural risks to maintaining proficiency in the organization:

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. Further, it is disappointing for young officers who tell me that they had wished to be posted to DCS to hear that their desires were never passed on to me.113

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 DCS, the Director suggests that he was recently unable to secure comparable replacements for several more experienced officers who retired, frustrating any chance of maintaining continuity of litigation experience in his organization.114

The 1997 Defence Counsel Study noted another issue with the current model: if the system was to remain heavily resourced alongside such a small caseload, then “counsel may be tempted to research and present motions and arguments that might not otherwise warrant consideration, thereby extending the trial process and increasing the cost.”115 Twelve years later, the Bronson Group made the following observation in their 2009 Report:

Each lawyer is free to conduct his/her case as he/she sees fit. The lawyers do not docket their time and can devote as much time to an AWOL case as they would to a manslaughter case if they so choose […]. We could not establish how much time the lawyers were spending on their various cases. We know from statistics that the average number of cases per staff lawyer is between ten (10) and twelve (12) cases each, per year. The reservists are supposed to take three (3) to five (5) cases per year but their caseload last year was closer to ten (10) cases each. We were provided with anecdotal evidence from one reservist that his average length of time to prepare for a court martial was three days, plus travel, plus attendance. These statistics raise questions regarding the activities of the defence counsel as the caseload appears to be quite low in comparison with the civilian staff offices of legal aid in Ontario.116

Furthermore, the Bronson Group also expressed that:

[W]e have concerns that clients may not be fully aware of the delay occasioned in their cases by these [Charter] motions. When we raised these concerns we were assured by some interviewees that their clients were aware of the issues associated with the motions and instructed counsel to proceed with the motions nonetheless. Other interviewees felt that in fact clients were not necessarily properly advised. As our mandate did not extend to interviewing clients, we have no way of determining the level of client involvement in the decisions made on their files. The conflicting information received from various past and present defence counsel was sufficient to cause misgivings about the issue.117

Finally, the Bronson Group in 2009 expressed concerns that there was a perception that:

DCS’s agenda was to reform the military justice system, rather than to represent individual clients. It was the view of some interviewees, including defence counsel, that at times this agenda took priority over a client’s needs. We were advised of one situation where a client was not aware that his case had been appealed to the Supreme Court of Canada for instance.

The CMCRT cannot say whether obviously unmeritorious or inappropriate arguments are being advanced by counsel within the current defence counsel services system, but notes that counsel for accused persons have been very successful in making successful Charter applications that may benefit their clients at courts martial and at the Court Martial Appeal Court. The CMCRT is also unaware of any judicial or law society comments on the activities of defence counsel which would suggest that any improper advocacy is taking place.

However, from a proportionality of financial and human resources perspective, the CMCRT shares the concerns expressed by the Bronson Group in 2009 about a defence counsel services system that has no external limits on, controls over, or oversight of the extent of services provided to any particular accused person at public expense. Furthermore, in light of CAF leaders’ input suggesting that fully-funded counsel should only be provided in cases where an accused person was in legal jeopardy because of the military duties that he or she was required to perform, the CMCRT sees a sound basis for the Bronson Group’s recommendation that DCS appropriately track the time allocated by defence counsel to files,118 and that a reasonable limit be placed on the extent of publicly-funded legal services:

While we agree that our military deserves the best, there must be reasonable limits. If a client […] does not dispute the allegations giving rise to a charge and the punishment is going to be relatively minor, it makes no sense to spend thousands of dollars in time and travel. It might be appropriate to be guided by the question “Would a members of the Canadian Forces of this rank expend these funds if he/she had to pay for the services himself/ herself?”119

In light of all of the above information and analysis, the CMCRT has concluded that the current defence counsel services system is somewhat inefficient, particularly because of the absence of any over-arching and external control over the extent of services provided in each case that can lead to disproportionate financial and human resource costs. The CMCRT notes that in most court martial systems that offer comparable legal aid to military personnel, either a tariff setting out baseline levels of service to be provided in various classes of cases,120 or a contribution system that requires an accused person to pay a portion of defence costs,121 appear to have been successful in promoting efficiency within the legal aid scheme.

In terms of legitimacy, the CMCRT notes that no comments received as part of internal CAF or public consultations suggested that the use of military defence counsel within the current defence counsel services system creates fairness or intelligibility problems. To the extent that DCS was mentioned during these consultations, perceptions of the service seemed positive122 in ways that reinforce legitimacy.

However, past critical perspectives of the court martial system and targeted consultation suggest that some fairness and intelligibility concerns may arise within the current defence counsel services system. For instance, the 1997 Defence Counsel Study Team noted the potential challenges to perceptions of fairness if a military officer were assigned to defend. In their view:

The continuing status of defence counsel as officers does not resolve the perception problem expressed by some NCMs of defence counsel being loyal to the officer corps and the system rather than the individual member. This perception problem may be reduced somewhat by having defence counsel robe for trial rather than wearing a uniform. However, as the participants in the trial would still know the ranks for the prosecutor and defence counsel, this change would be cosmetic at best.123

On a related point, the President of the International Society for Military Law and the Law of War 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.

Another individual who contributed to the CMCRT’s targeted consultation similarly suggested that the reporting structure within the current defence counsel services system could create legitimacy problems due to perceived issues of fairness and intelligibility because the Director reports to the same officer (JAG) who generally supervises the prosecution service and acts as legal advisor to the Minister and the CF on matters of military law.124

The CMCRT notes that some might perceive military lawyers within the current defence counsel services system as being in a situation of ongoing conflict of interest that would undermine fairness and intelligibility: defence counsel have an ethical obligation to defend their clients by litigating against the Crown, but their careers (including posting, promotions, and corresponding pay increases) are all managed by CAF officers who fall within and primarily provide legal advice and services to the organization against which defence counsel are litigating. That being said, the CMCRT notes that it is not aware of any defence counsel within the current system who has ever sought to withdraw from representation of a client due to this type of conflict of interest. Therefore, it would appear that the lawyers themselves do not see a conflict of interest that would require them, ethically, to withdraw from representation.

In this case, notwithstanding CAF leaders’ perspectives that the current defence counsel services system is fair and effective, the CMCRT has placed meaningful weight on the perspectives of experts who have identified that some legitimacy issues exist, relating primarily to the fairness of having defence counsel from within the same (military) organization that is adverse in interest to the accused persons who are being represented by military defence counsel.

The CMCRT observed during its international comparative study that in those nations where civilian defence counsel are employed in defence of military accused persons, there are high levels of confidence in the fairness of the proceedings.125

7.3.4 The Substantive Body of Service Offences

From an effectiveness perspective, the CMCRT did not receive any input suggesting that the current body of service offences is inadequate. Some CAF leaders who were consulted suggested that all offences should be dealt with faster inside of the court martial system than in the civilian system if the court martial system is to have jurisdiction over the offences,126 and another suggested that fewer offences should be ‘electable’ in order to give the chain of command more ability to keep minor matters at the summary trial level.127 This concern would be dealt with through changes to the law along the lines of what was proposed in Bill C-71 (which would have created mutually exclusive categories of “infractions” leading to summary trials, and “offences” leading to courts martial – see Assumption 1 in Chapter 1).

The CMCRT notes that the criteria of universality is satisfied in respect of the current body of offences by virtue of the fact that jurisdiction over service offences exists throughout the world, regardless of where the offence may have been committed.

There did not appear to be any gaps in the current body of service offences. The CMCRT notes that there may be obsolete offences and duplicative offences within the current body of service offences, but these issues do not appear to have an impact on effectiveness. Consequently, the CMCRT assesses that the current body of service offences is effective in supporting the purposes of the court martial system.

With respect to efficiency – which requires that a system achieves its effects without disproportionate costs – the information available to the CMCRT suggests that the current body of service offences is problematic, as will be explained in the paragraphs that follow.

In many ways, the CMCRT’s assessment of the current tribunal and prosecution systems suggests that these systems are only effective in producing the same sorts of (public order and welfare) effects that the civilian criminal justice system produces in respect of civilian offences.

There is no Canadian information or precedent which suggests that the civilian criminal justice system could achieve public order and welfare purposes in respect of uniquely military offences – and the total absence of military expertise within the current civilian criminal justice system suggests that this system would struggle to generate accurate / correct outcomes in respect of uniquely military offences.

However, there is ample information and precedent to suggest that the civilian criminal justice system can and does achieve public order and welfare purposes in respect of ordinary criminal offences. This is the raison d’etre for the Canadian civilian criminal justice system, and in spite of any shortcomings that the system may have relating to delay or other factors, the system is clearly effective in achieving a public order and welfare purpose.

Efficiency – Uniquely Military Offences. Where the court martial system has the necessary military expertise to generate accurate / correct outcomes in respect of uniquely military offences, but the civilian criminal justice system does not currently have this expertise, then an efficiency analysis that looks at the proportionality of financial and human resource costs of the current court martial system that are attributable to uniquely military offences is essentially unnecessary, since no other current system can or should try such offences. In other words, the existence of jurisdiction to deal with uniquely military offences in the court martial system cannot lead to disproportionate financial and human resource costs, because there is no alternative to the existence of this jurisdiction without permitting a total failure to achieve the court martial system’s purposes through impunity for uniquely military offences. (It must be stressed, however, that the manner in which jurisdiction over uniquely military offences is exercised could lead to disproportionate financial and human resource costs, even if the mere existence of jurisdiction to deal with military offences involves proportionate costs).

Efficiency – Ordinary Criminal Offences. If both the current court martial system and the current civilian criminal justice system can achieve substantially similar and acceptable public order and welfare effects in respect of ordinary criminal offences, then an efficiency analysis that looks at the proportionality of financial and human resource costs of the current court martial system that are attributable to ordinary criminal offences (tried as service offences) should focus almost exclusively on determining which system can deal with these ordinary criminal offences at less costs – since both systems can produce acceptable public order and welfare effects when dealing with such offences.

Previous sections of this chapter have identified the costs per court martial of judicial and court administration services, prosecution services, and defence counsel services. When these costs are added together, the average total cost per court martial is $109 331.128 The equivalent cost per trial (including the same three categories of costs for judicial and court administration services, prosecution services, and total criminal legal aid costs distributed across the total number of trials) in Manitoba is $3561, and in Ontario is $3690.129 As these numbers indicate, the cost of conducting a trial within the current court martial system is approximately 30 times more expensive than the cost of conducting a trial within the civilian criminal justice system.

On the basis of these numbers, and the proposition that the civilian criminal justice system and the court martial system are both capable of achieving substantially similar and acceptable public order and welfare purposes, and the proposition that the current court martial system is not achieving a disciplinary purpose in most cases, the CMCRT concludes that – from a purely public order and welfare perspective – the current body of service offences is inefficient because it permits ordinary civilian offences to be tried in a system that is 30 times more costly than a suitable alternative. This aspect of the current body of service offences is currently resulting in disproportionate financial and human resource costs in as many as 25 court martial trials per year – the average number of trials over a five-year period involving a charge under section 130 of the NDA for an ordinary criminal offence.130

That being said, if a disciplinary effect were being achieved through the prosecution of ordinary civilian offences (as, for instance, in the cases of military members stealing from or assaulting other military members) within the court martial system, and this effect could not be achieved through prosecutions in the civilian criminal justice system, then this efficiency analysis would need to change to account for the added disciplinary benefit that could – in theory – justice the extra costs of a court martial prosecution. The CMCRT notes that, in light of the length of time that it takes to complete trials within the court martial system, many of the senior CAF leaders who were consulted indicated that the system is not regularly achieving a disciplinary benefit.

From a legitimacy perspective, the CMCRT heard from several individuals during public consultations that the court martial system ought not to have jurisdiction over ordinary criminal offences, and from others that such jurisdiction should only exist when there is a strong connection to military service. Other contributors suggested that the system should not have jurisdiction over sexual assault offences. The CMCRT infers that such comments may have been made out of concerns regarding fairness, intelligibility, or transparency, but cannot be certain on this point.

As this information suggests, there are some legitimacy concerns relating to the existence of jurisdiction to deal with ordinary criminal offences within the current body of service offences, but no such concerns relating to the existence of jurisdiction to deal with uniquely military offences.

7.3.5 Punishments, Sanctions, and Sentencing

The CMCRT’s assessment of the current sentencing and punishment system includes consideration of both the legal regime itself, and the manner in which the legal regime is being applied within the court martial system.

In terms of effectiveness, the CMCRT found that, due to the availability and actual use of punishments of imprisonment and detention, the court martial system was achieving a measure of protection of the public from military personnel who engage in misconduct. The CMCRT’s review of court martial sentencing decisions from 1 April 2012 to 31 March 2017 found that 57 offenders (23% of all offenders sentenced by courts martial) were sentenced to some period of detention or imprisonment. This rate of imposing sentences of incarceration is comparable to the equivalent rate within the civilian criminal justice system,131 and suggests to the CMCRT that the court martial tribunal system is achieving an effect that helps protecting the public where necessary.

However, based on widely held perceptions among persons consulted by the CMCRT – both from within the CAF (among senior leaders132 and more lower ranked personnel133) and from stakeholders outside of the CAF134 – that sentences actually imposed on offenders are too low in many circumstances, the CMCRT is concerned that the current punishment and sentencing regime may not adequately express community condemnation of misconduct by military personnel.

The CMCRT heard further indications that some aspects of the current punishment and sentencing regime do not appear to have any value in rehabilitating military personnel who engage in misconduct, or in expressing community condemnation of misconduct by military personnel. Specifically, it was noted that the perception among most military personnel is that leadership-related punishments of cautions, reprimands, and severe reprimands are not understood by most members, have no practical impact, and “are viewed as a slap on the wrist by most.”135

Finally, several contributors noted that the current hierarchy of punishments under section 139 of the NDA136 and the absence of sentencing options that would otherwise be available within the civilian system137 were problematic. The CMCRT infers that these comments amount to perceptions that the current punishment and sentencing regime do not necessarily facilitate the generation of accurate / correct sentencing outcomes.

In terms of efficiency, the CMCRT received no information to suggest that there are any concerns about the proportionality of financial or human resource costs within the court martial system that are attributable to the current punishment and sentencing regime.

From a legitimacy perspective, the CMCRT heard from several contributors that the current punishment and sentencing regime in not fair, because it does not achieve parity with the civilian sentencing regime in terms of options and rules.138 On a related point, one senior CAF leader noted that the retention of uniquely military punishments was also not fair, since it exposed military personnel to punishments that no other Canadian would need to face.139

Other contributors suggested that sentencing discretion within the current regime leads to inconsistent140 or inappropriate141 sentencing results, and indicated that sentencing guidelines,142 rules of evidence that would require a court martial to hear evidence and recommendations on sentencing from the chain of command,143 and mandatory minimum sentences for certain offences should be adopted144 – possibly to increase transparency in sentencing decisions, and to better promote the generation of accurate / correct sentencing outcomes.

7.3.6 The Laws of Evidence

The CMCRT received numerous indications that the current laws of evidence that apply at courts martial, as contained within the Military Rules of Evidence, are only somewhat effective and somewhat efficient.

These indications were received in the course of public,145 targeted,146 and internal CAF consultations,147 Similar indications flowed from the LeSage Report of 2011, wherein Mr. Justice LeSage made the following observations and recommendation:

In the court martial structure there have, for many years, been Military Rules of Evidence to guide and assist court martial procedure. These rules have not been regularly updated and have not kept pace with the common law evolution of the law of evidence. Today’s Military Judges are well-trained and knowledgeable in law and procedure, as are counsel who appear before them. The Military Rules of Evidence are, in my view, no longer necessary for court martial proceedings. The common law rules of evidence as well as the Canada Evidence Act and, where appropriate, other provincial and federal evidence statutes, along with judicial decisions well known to Military Judges and counsel, should provide ample guidance for court martial proceedings. That is all the direction required.

Recommendation 28:

The Military Rules of Evidence should be superseded by the statutory and common law rules of evidence in the court martial system.148

The military rules of evidence have been the subject of efforts for reform149 and academic study150 for years, but in spite of this reality, they have not been kept up to date in a manner that promotes effectiveness (by contributing to the generation of accurate / correct outcomes), or efficiency (by promoting timely trial outcomes through rules of evidence that expedite trial processes where possible).

The CMCRT did note during its international comparative study that although most nations apply the ordinary rules of evidence applicable in civilian courts in their court martial systems, many maintain a few special rules (e.g.: detailing how to prove or deem certain military matters like standing orders or what is a warship)151 that they view as being helpful within their systems.

Although it was not noted during consultations, the CMCRT assesses that the current laws of evidence likely pose a legitimacy challenge, in the sense that the rules of evidence within the court martial system are unfamiliar in comparison with equivalent rules in the civilian criminal justice system, and are therefore less intelligible.

7.3.7 The Rights, Grounds, and Mechanisms of Appeal

The only input that the CMCRT received regarding appeals implicitly suggested that more criminal law and military expertise would be beneficial at the Court Martial Appeal Court, which would promote the generation of accurate / correct outcomes in order to support effectiveness. Specifically, one individual suggested that the Court be permitted to appoint Amicus Curiae or some other means of drawing the Court’s attention to particular military issues that might be beyond the ordinary comprehension of the Court.152 One other individual suggested that the CMAC be comprised of civilian judges and one military judge to bring military knowledge to the Court.153 Another individual suggested that the use of Federal Court judges at the CMAC is not ideal, and recommended that the CMAC draw only from provincial Court of Appeal judges.154

Notwithstanding these observations and suggestions, it appears to the CMCRT that the current appeals system is for the most part effective.

Although it was not commented upon during consultation, the CMCRT concluded that the current appeals system is efficient, because the CMAC leverages existing court services infrastructure, and uses only civilian judges who are already appointed to regularly sitting Canadian courts. The incremental costs are, therefore, negligible. The number and geographic dispersion of judges appointed to the court facilitates the timely outcome of any appeals. The model is highly efficient.

Again, although it was not commented upon during consultation, the CMCRT concluded that the current appeals system – in terms of the court that is used to hear appeals – is highly legitimate. The CMAC resembles a civilian court of appeal in most ways, and is staffed entirely with civilian judges in a way that is familiar and intelligible. Proceedings are as transparent as they would be in the Federal Court.

However, as one senior CAF leader noted, the accused person’s and the Minister’s rights of appeal should be the same in the court martial system as in the civilian criminal justice system.155 This point has also been raised by at least one critical commentator.156 Although rights of appeal are currently similar, there are subtle differences. For instance, the Minister can appeal a finding of not guilty on a question law alone or a question of mixed law and fact,157 whereas civilian prosecutors can only appeal a finding of not guilty on a question of law alone.158 These differences may not be intelligible, and could create some perceptions that weaken the current system’s perceived legitimacy.

7.3.8 The Special Needs of any Particular Groups, Including Victims, Young Persons, and Aboriginal Offenders.

7.3.8.1 Victims / Survivors

The CMCRT received input from several sources which suggests that the current court martial system is perceived by many as not fair to victims, and not successful in protecting victims from the consequences of misconduct by military personnel. Specifically, the CMCRT heard from the Federal Ombudsman for Victims of Crime that victims in the court martial system should have at least the same rights they would have if the matter was being handled in the civilian justice system.159 Variations of this point were made in public,160 targeted,161 and internal consultations.162 The reality that victims remain disadvantaged in the court martial system relative to the civilian criminal justice system weakens the current system’s effectiveness, and creates perceptions that the system is less fair and legitimate.

Limited victim-related provisions currently exist within the NDA. Many processes and procedures for the benefit and protection of victims that have existed in statutory form within the civilian criminal justice system for years do not currently exist in statutory form within the court martial system. For instance, the power to order a publication ban exists under the Criminal Code in relation to many situations and offences,163 but is not expressly provided for under the NDA. In the absence of specific authority under the NDA, military judges have resorted to section 179(1)(d) of the NDA as authority to issue publication under the common law.164

Similarly, matters such as “rape shield” protections and disclosure of victim records held by third parties must be addressed by the application of common law as the NDA does not include provisions similar to those in the Criminal Code found at section 276 (and following). Furthermore, section 278.1 (and following) of the Criminal Code sets out a detailed process for the protection of third-party records (i.e.: records that are not in the possession of or under the control of the Crown) that are sought by an accused person, such as medical or psychiatric records relating to a complainant in a sexual assault case. This statutory scheme was enacted in response to the SCC’s decision in R v O’Connor,165 and provides for a two-step process that is somewhat different than the process that the SCC set out in O’Connor. No equivalent scheme exists under the NDA, which means that a military judge who applies the common law (as established by the SCC in O’Connor) at a court martial will follow a different process than the one that Parliament determined was more appropriate within the civilian criminal justice system when it enacted section 278.1 (and following) of the Criminal Code. The differences between these processes – that typically apply for the benefit and protection of victims and complainants – could create perceptions that the court martial system is less fair and less intelligible than the civilian criminal justice system.

A number of provisions in Bill C-15, when brought into force, will provide victims of service offences with specific procedural rights. Victim impact statements will permit individual victims of offences, particularly those who have experienced significant, financial and emotional harm, to have a voice in the sentencing process. Restitution orders will allow the court martial to impose a restitution order on an offender in situations involving damage or loss of property, or bodily or psychological harm. This provision will permit restitution to victims of service offences without the need to resort to actions in civil court.

In spite of the positive changes that the implementation Bill C-15 will make for the benefit and protection of victims, the court martial system would still not provide the same extent of victim-centred processes and procedures as exist within the civilian criminal justice system.

The CMCRT also notes that some recent efforts have been made to improve the experiences of victims in the court martial system. The Director of Military Prosecutions recently updated his suite of Policy Directives to, among other things, better account for the needs of victims.166

However, even though these updated Policy Directives had been in force for approximately one year at the time of the CMCRT’s relevant targeted consultations, the CMCRT received submissions to the effect that victims continue to perceive transparency challenges at multiple stages of both the court martial and civilian criminal justice processes,167 and acknowledges that these challenges weaken perceptions of the current system’s legitimacy.

With respect to sexual offences, there remains a perception that the court martial system is not ideal for the handling of these offences as the civilian justice system, perhaps due to the large disparity in the volume of cases between these systems,168 and perhaps due to the effects of rank and career, professional, and social impact on a military victim whose case proceeds in the court martial system.169 These perceptions suggest that the current court martial system may be less fair than the civilian system to both victims and accused persons, which weakens the system’s perceived legitimacy.

While the DMP has attempted to ensure that CMPS prosecutors have received additional training,170 it is not clear that this training can compensate for the relatively low volume of cases that each prosecutor deals – recalling that each military prosecutor completes (on average) 3.8 courts martial per year,171 and that the Bronson Report (DMP) suggested that it would take 3-4 years for a civilian prosecutor (who complete over 100 trials per year)172 to become “fully competent.”173 The CMCRT notes impressionistically that in many cases involving sexual assault charges, the DMP has relied upon reserve force prosecutors (who have extensive depth and breadth of experience as civilian prosecutors) to conduct prosecutions.

The CMCRT received further input from survivors of sexual misconduct concerning the training of court martial system actors, and the appropriateness of the system dealing with sexual offences, which also suggests that the current system faces effectiveness and legitimacy challenges in respect of how victims are treated:

All military judges should be held to the same standards as civilian judges and have Bill C-337 apply to them, mandating sexual assault law training and ongoing continuing education in this area.174 As military law has many unique issues in this area, CAF should develop a military specific addition to this training for all military lawyers and judges and for all those that support this system including [Military Police] and medical personnel. More transparent oversight mechanism of judges when their behaviour/bias is in question personally or professionally. Sexual assault victims in the military tend to be female vs male and the perpetrator male and in a position of power professionally over the victim. Judges that have themselves been involved in fraternization cases should not be on the bench or at the very least should be recused from gender related cases.175

Overall, despite proactive, positive efforts to improve the experiences of victims in the court martial system, they continue to be perceived by some as being disadvantaged relative to victims in civilian criminal courts.

7.3.8.2 Young Persons

There is no special regime within the court martial system to account for the special needs of accused persons who would be considered as “young persons” within the civilian criminal justice system. Although it is rare for offences involving such young persons to arise today within the court martial system, such cases still exist; for instance, a recruit who is 17 years old would be subject to CSD, and could be tried for an ordinary civilian criminal offence by a court martial that would involve processes and rules that are different from those under the Youth Criminal Justice Act that would apply if the person were to be tried in a civilian court. The CMCRT received no input during consultations in relation to young persons who are accused within the court martial system.

Nonetheless, the CMCRT assesses that the absence of any special procedures for young persons within the court martial system that have proven effective at promoting public order and welfare within the civilian criminal justice system calls into question the effectiveness and the legitimacy of the current court martial system’s treatment of young persons.

7.3.8.3 Aboriginal Persons

As noted above, at Chapter 2, there is currently no equivalent to section 718.2(e) of the Criminal Code within the NDA. This provision in the Criminal Code requires sentencing courts to take into account the principle that “all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victims or to the community should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders.”

The leading case interpreting this provision is R v Gladue,176 wherein the SCC affirmed that, in order to give effect to the provision, some evidence about the circumstances of any particular Aboriginal offender will be needed in order to assist the sentencing judge. Subsequent to this decision, it has become common practice for civilian criminal courts to order “Gladue” pre-sentence reports that draw attention to unique systemic factors that may have caused a particular Aboriginal offender to come before the court, and that provide information about community-based rehabilitation that may or may not be culturally appropriate.

In the absence of a provision that is equivalent to section 718.2(e) of the Criminal Code within the NDA, courts martial have typically not had the benefit of a “Gladue” report when sentencing Aboriginal offenders. However, in one recent case, an Aboriginal offender’s military defence counsel resourcefully sought and obtained a “Gladue” report on behalf of the offender, and offered it to the court martial to assist in determining the sentence. The court martial accepted this report, and found it useful.177

Although the CMCRT did not receive any input during consultation on this point, the CMCRT assesses that the absence of any special procedures to account for the unique circumstances of aboriginal offenders within the court martial system that have proven effective at generating accurate / correct sentencing outcomes within the civilian criminal justice system calls into question the effectiveness and the legitimacy of the current court martial system’s treatment of aboriginal offenders.

7.3.9 Overall Assessment

The CMCRT was not mandated to assess the performance of people, and did not do so. This comprehensive review is not about people – it is about a system that, within this chapter, has been assessed as somewhat effective (mostly in terms of its ability to achieve a public order and welfare purpose), appears to have considerable room for improvements in efficiency, and, as a result, faces challenges to its legitimacy.

The most dedicated, industrious, and faithful individuals could not succeed in a system that is not fully designed and structured to achieve its stated purposes. The CMCRT noted the high degree of professionalism, loyalty, and ethics that were seen in all court martial system stakeholders it encountered as it conducted this review. All shared the same commitment to the fulfillment of their constitutional, statutory, and other roles within the court martial system.

7.4 Conclusion

The assessment of the current court martial system within this chapter suggests that this system – like every other justice system of which the CMCRT has knowledge – could likely benefit from at least some improvements.

Many of the areas discussed within this assessment where there appears to be the most potential for cross-cutting improvements to the court martial system are closely linked to some of the themes that emerged most frequently during the CMCRT’s consultations (see Key Observations from Consultation – Chapter 4).

Specifically, as the above assessment has shown, delays within the court martial system challenge the system’s effectiveness and efficiency. The perception among many of the stakeholders who were consulted that sentences are too lenient challenges the system’s effectiveness and legitimacy. The perception among many of the stakeholders who were consulted that groups of key actors within the court martial system would benefit from greater criminal law, litigation, and military expertise challenges the system’s legitimacy – and if the perceptions are objectively accurate, could undermine the system’s effectiveness. Finally, the perception among many of the CAF leaders who commented upon this point – and who recognize and support the constitutional requirement for independent actors within the court martial system – that these independent military officers will make decisions that are not aligned with the CAF leaders’ views as to what discipline requires under the circumstances challenges the system’s legitimacy and effectiveness in achieving its disciplinary purpose.

In addition to these important challenges that relate directly to input that the CMCRT received during consultations, the above assessment also highlights the extent to which costs of the court martial system may be disproportionate, and signals how efficiency-based improvements to the system may alleviate some or all of this potential disproportionality.

The chapters that follow lay out several options for enhancement, according to the subject areas enumerated in the CMCRT’s Terms of Reference. These options are focused primarily on reducing or eliminating the most significant and commonly noted weaknesses within the current court martial system, although many of the options also aim to enhance other aspects of the system in order to enhance the features that support the system’s effectiveness, efficiency, and legitimacy.

Footnotes

1 i.e. Where appropriate, to develop and analyze options for enhancement of the system.

2 R v Moriarity, 2015 SCC 55.

3 R v Dery, 2017 CMAC 2.

4 Canada, Department of National Defence, The First Independent Review by the Right Honourable Antonio Lamer P.C., C.C., C.D. of the provisions and operation of Bill C-25 An Act to amend the National Defence Act and to make consequential amendments to other Acts, as required under section 96 of Statutes of Canada 1998, c.35 (Ottawa: Department of National Defence, 2003), at 1 [Lamer Report].

5 See Annex U, Submission from the Maritime Forces Pacific (Regular and Reserve Force) to the CMCRT, 23 November 2016.

6 R v Semrau, 2010 CM 4010.

7 R v Semrau, 2010 CM 1003.

8 See above, Chapter 4 (Consultation) at section 4.5.4.2.1 (4 CDSG & 2 CMBG).

9 See above, Chapter 4 (Consultation) at sections 4.5.4.1.4 (35 CBG) and 4.5.5.1 (MARPAC).

10 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 (2 Can Div Pers Svcs – CO), 4.5.4.1.2 (2 Can Div Pers Svcs – CWO) and 4.5.4.2.2 (RHFC).

11 See above, Chapter 4 (Consultation) at section 4.5.4.1.2 (2 Can Div Pers Svcs – CWO).

12 See above, Chapter 4 (Consultation) at section 4.5.4.2.1 (4 CDSG & 2 CMBG).

13 See above, Chapter 4 (Consultation) at sections 4.5.4.3 (5 Can Div – CWO), 4.5.5.1 (MARPAC), 4.5.4.2.1 (4 CDSG & 2 CMBG), 4.5.5.2 (HMCS OTTAWA Crew) and 4.4.4 (IJ 700).

14 Ashley Maxwell, Adult Criminal Court Statistics in Canada 2013/2014 (Ottawa: Canadian Centre for Justice Statistics, 2015) Chart 5 at 10 (noting that, in 2013-2014, 36.2% of offenders in the civilian criminal justice system in Canada received a sentence involving custody).

15 See above, Chapter 4 (Consultation) at sections 4.4.5 (LCol (ret’d) Perron), 4.4.6 (LCdr (ret’d) Lévesque), 4.5.3 (CANSOFCOM), 4.5.4.3 (5 Can Div – CWO) and 4.5.5.1 (MARPAC).

16 The timeliness of trials is also problematic in Canada’s civilian criminal justice system. See R v Jordan 2016 SCC 27; R v Cody, 2017 SCC 31.

17 Canada, Department of National Defence, Director of Military Prosecutions Annual Report 2016-2017 (Ottawa: Office of the Judge Advocate General, 2017), at 33 [DMP Annual Report 2016-2017].

18 Ibid.

19 Andrejs Berzins, Q.C., and Malcolm Lindsay, Q.C., External Review of the Canadian Military Prosecution Service, (Ottawa: Bronson Consulting Group, 2008), at 10 [Bronson Report (DMP)]. See also above, Chapter 4 (Consultation) at section 4.5.4.2.1 (CDSG and 2 CMBG).

20 See Senate, Standing Senate Committee on Legal and Constitutional Affairs, Delaying Justice is Denying Justice: An Urgent Need to Address Lengthy Court Delays in Canada (Final Report) (June 2017) at 28 (Chair: The Honourable Bob Runciman), [Senate Report 2017] online: <https://sencanada.ca/content/sen/committee/421/LCJC/Reports/Court_Delays_Final_Report_e.pdf>. The Final report of the Standing Senate Committee on Legal and Constitutional Affairs (Senate Report 2017).

21 See above, Chapter 4 (Consultation) at sections 4.5.3 (CANSOFCOM), 4.5.4.3 (5 Can Div – CWO) and 4.5.5.1 (MARPAC).

22 See above, Chapter 4 (Consultation) at section 4.5.5.2 (HMCS OTTAWA Crew).

23 Bronson Report (DMP), supra note 19 at 10.

24 Lamer Report, supra note 4 at 70-73; Canada, Department of National Defence, Report of the Special Advisory Group on Military Justice and Military Police Investigation Services (Ottawa: Department of National Defence, 1997) (Chair: The Right Honourable Brian Dickson) at 9; Canada, Department of National Defence, Report of the Second Independent Review Authority to The Honourable Peter G. MacKay, Minister of National Defence (Ottawa: Department of National Defence, 2011) (Chair: The Honourable Patrick J. LeSage), at 10 [LeSage Report].

25 Judge Advocate General, “JAG Policy Directive 013/01, General Instructions in Respect of Delay in the Court Martial Process,” (30 March 2001), online: <http://www.forces.gc.ca/assets/FORCES_Internet/docs/fr/jag/delais-processus-cour-martiale.pdf>.

26 R v Genereux, [1992] 1 SCR 259, at 281: “Breaches of military discipline must be dealt with speedily and, frequently, punished more severely than would be the case if a civilian engaged in such conduct”.

27 See above, Chapter 4 (Consultation), at sections 4.5.3 (CANSOFCOM) and 4.5.4.2.1 (4 CDSG and 2 CMBG).

28 Bronson Report (DMP), supra note 19 at 8.

29 See above Chapter 3 (Past Studies) at sections 3.3.1 to 3.3.5 (Military Justice Stakeholder Input) for a summary of chain of command perspectives, including on the matter of delay.

30 See Annex Z, Submission of the Director of Military Prosecutions to ADM(RS), 23 January 2017.

31 Bronson Report (DMP), supra note 19 at 65:

We believe that one of the improvements to the Court Martial system that would have the biggest impact on delay reduction would be to provide for a forum or procedure for dealing with early pleas of guilty. In the civilian system, every attempt is made to have the resolution of cases take place earlier in special “plea courts” established for that purpose.

Bill C-45, if passed, will provide the Chief Judge with more “tools” to schedule early pleas of guilty. Consideration should be given to making greater use of the courtroom in Gatineau, Quebec for pleas of guilty in appropriate cases, with the proceedings broadcast by video to the accused’s Unit in another part of Canada.

32 Bronson Report (DMP), supra note 19 at 65-66:

We are advised that sentencing hearings may take two days, even if there are joint submissions. We assume that the principle endorsed by civilian appellate courts that a sentencing judge should not depart from a joint submission unless the proposed sentence would bring the administration of justice into disrepute, or is otherwise not in the public interest, is also applied in the military system.

We realize that sentencing is a very important matter and there are special considerations involving military discipline that do not apply to the civilian justice system. However, we feel that the Court Martial system has such lengthy delays that it simply cannot afford to take up the amount of time it does on sentencing, particularly in straight-forward cases. Alternative ways must be found to put before the court information judges require on sentencing.

33 See e.g. R v Dowe, 2017 CM 1009. This case took place in Yellowknife, NWT, and involved a Warrant Officer who plead guilty to one charge under section 97 of the National Defence Act for drunkenness. The prosecution and defence counsel agreed to make a joint submission as to the sentence. The sentencing hearing spanned two sitting days. WO Dowe was sentenced to a $2000 fine.

34 Bronson Report (DMP), supra note 19 at 59.

35 Ibid at 61.

36 Ibid at 62.

37 Ibid at 63.

38 Ibid at 64.

39 See National Defence Act, RSC 1985, c N-5, s 165.3 [NDA]:

The Chief Military Judge may, with the Governor in Council’s approval and after consulting with a rules committee established under regulations made by the Governor in Council, make rules governing the following:

40 See “Memorandum 13 – Better Case Management (Court Martial)” in Practice in the Service Courts – Collected Memoranda (Version 6), (London: Military Court Service, 2016) at 56, online: <https://www.judiciary.gov.uk/wp-content/uploads/2015/05/practice-memo-ver-6-1Sep16.pdf>. The Better Case Management System includes mandatory timelines for court hearings and deadlines in contested cases.

41 Senate Report 2017, supra note 20 at 75. See also, ibid at 74, quoting the Honourable Terrence Matchett, Chief Judge, Provincial Court of Alberta: “Because the courts possess a degree of impartiality and authority that no other stakeholder can claim, we have a very important leadership role to play in bringing all of the parties together in our joint efforts to improve case flows and to bring cases to trial as soon as possible.”

42 See above, Chapter 4 (Consultation) at sections 4.5.3 (CANSOFCOM) and 4.5.4.2.1 (4 CDSG & 2 CMBG).

43 See Annex BB, ADM (RS) Spreadsheet – Courts and Judges.

44 Ibid.

45 Data is only available in respect of the comparator jurisdictions that follow regarding the total number of trials, but not regarding the percentage of these trials that are contested, are disposed of by guilty pleas, or are disposed of by guilty pleas and joint submissions regarding the sentence.

46 See Annex BB, ADM (RS) Spreadsheet – Courts and Judges.

47 Ibid.

48 Not all courts martial occur outside of a military judge’s geographic region. Many trials happen in the National Capital Region, for example, where the Office of the Chief Military Judge is located. However, this must be balanced with the fact that some courts martial require more than one ‘trip’ to the court martial location in order to complete the trial due to participant availability.

49 The CMCRT was sensitive to the fact that as regular force members, military judges could have time commitments in addition to their judicial duties that judges of the UK Court Martial and the ordinary courts of Manitoba and Ontario would not have. For example, all CAF members are expected to pass an annual operational physical fitness test; re-qualify annually on personal weapons; and re-qualify annually or semi-annually in Chemical, Biological, Radiological, and Nuclear (CBRN) defence. This can involve a relatively significant time commitment of a week or two each year. However, the CMCRT heard from a retired military judge that military judges could not be required to conduct this training, and that they in fact ought not to complete this training. The CMCRT was therefore confident in discounting these training obligations as a potential time and human resource commitments to be accounted for in the status and institutional structure of the court martial tribunal. (Chapter 4 (Consultation) at section 4.4.5 (LCol (ret’d) Perron).

50 See above, Chapter 4 (Consultation) at section 4.5.4.1.1 (2 Can Div Pers Svcs – CO).

51 See above, Chapter 4 (Consultation) at section 4.5.4.2.2 (RHFC).

52 Michel W Drapeau & Gilles Létourneau, Behind the times: Modernization of Canadian Military Criminal Justice, (2017) at 80-81 [Drapeau & Létourneau]; LeSage Report, supra note 24 at 41-42.

53 See above, Chapter 4 (Consultation) at section 4.3.1 (Summary of Results).

54 See above, Chapter 4 (Consultation) at section 4.4.4 (IJ 700).

55 See above, Chapter 4 (Consultation) at section 4.5.4.2.2 (RHFC).

56 NDA, supra note 39, s 165.33 (and following).

57 For information about the number and location of federally-appointed judges, see online: <http://www.fja.gc.ca/appointments-nominations/judges-juges-eng.aspx>.

58 See above, Chapter 5 (Comparative) at sections 5.2.2 (Australia) and 5.2.5 (United Kingdom).

59 Based on a five-year average, the military prosecution service prefers charges in respect of approximately 67% of the cases that are referred to the DMP.

60 See above, Chapter 4 (Consultation) at sections 4.5.4.1.4 (35 CBG HQ) and 4.5.5.1 (MARPAC).

61 See above, Chapter 4 (Consultation) at section 4.3.1 (Summary of Results).

62 See above, Chapter 4 (Consultation) at section 4.5.3 (CANSOFCOM).

63 See above, Chapter 4 (Consultation) at section 4.5.4.1.1 (2 Can Div Pers Svcs – CO).

64 See above, Chapter 4 (Consultation) at section 4.5.4.1.1 (2 Can Div Pers Svcs – CO).

65 See above, Chapter 4 (Consultation) at section 4.5.4.2.1 (4 CDSG & 2 CMBG).

66 See the discussion relating to transparency, infra note 97 (and accompanying text).

67 Bronson Report (DMP), supra note 19 at 11

68 Bronson Report (DMP), supra note 19 at 12.

69 DMP Annual Report 2016-2017, supra note 17 at 33-34.

70 DMP Annual Report 2016-2017, supra note 17 at 33-34.

71 See Annex CC, ADM (RS) Spreadsheet – Prosecutions.

72 The CMCRT notes that some officers within the prosecution service do not tend to prosecute at courts martial, but, rather, fulfill a policy role, advise the NIS, or fulfill supervisory roles. Nonetheless, for the purposes of the present calculation, the costs associated with having these officers within the prosecution service have been included, and factor into the total cost, and the total cost per court martial, of operating the current prosecution service.

73 See Annex CC, ADM (RS) Spreadsheet – Prosecutions.

74 Ibid.

75 The Bronson Report, supra note 19 at 8, noted that, on average, Regional Military Prosecutors dealt with an average of 9 cases that proceeded to court martial in 2007-2008: Bronson Report (DMP),. However, the CMCRT understands that, at that time, there were a total of 13 legal officers in different roles within the prosecution service at that time (in policy, supervisory, or other roles). The CMCRT therefore assesses that the average number of cases proceeding to court martial per legal officer within the prosecution service at that time was 6 courts martial (78 courts martial, and 13 legal officers within the prosecution service).

76 See Annex CC, ADM (RS) Spreadsheet – Prosecutions.

77 Bronson Report (DMP), supra note 19 at 69.

78 Ibid at 9.

79 This growth after 2008 continued a trend that began in 2001, when the number of Regional Military Prosecutors doubled from 4 to 8, as reported in 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 2000 to 31 March 2001 (Ottawa: Office of the Judge Advocate General, 2001) at 36, and now sits at 9 RMPs. The other two additions to the DMP’s organization since 2008 are at the LCol/Cdr level, where the establishment has increased from 1 to 3 more senior/supervisory prosecuting officers.

80 It is noted within the Bronson Report (DMP), supra note 19 at 8, that from 1 April 2000 until 31 March 2007, an average of 62 courts martial per year were conducted.

81 See Canada, Department of National Defence, Director of Military Prosecutions Annual Report 2016-17 (Ottawa: Office of the Judge Advocate General, 2017), at 11 [DMP Annual Report 2016-2017].

82 “Files” included all pre- and post-charge files from all sources that were handled by prosecutors during the year.

83 Public Prosecution Service of Canada Annual Report, 2015-2016, online: <http://www.ppsc-sppc.gc.ca/eng/pub/ar-ra/2015_2016/index.html>.

84 R v Cawthorne, 2016 SCC 32.

85 NDA, supra note 39, ss 165.1 and 230.1.

86 Ibid, s 165.17(1).

87 Ibid, s 165.17 (2).

88 Ibid, s 165.17(3).

89 Ibid.

90 Ibid, s 249.2(1).

91 Ibid, s 9.2(1).

92 See above, Chapter 4 (Consultation) at section 4.4.6 (LCdr (ret’d) Levesque).

93 See above, Chapter 4 (Consultation) at section 4.4.5 (LCol (ret’d) Perron).

94 See above, Chapter 4 (Consultation) at section 4.4.7 (President of the ISMLLW).

95 See above, Chapter 5 (Comparative) at sections 5.2.5 (United Kingdom), 5.2.6 (Norway) and 5.2.8 (Finland).

96 See above, Chapter 5 (Comparative) at section 5.2.7 (Denmark).

97 See Annex C, Discussion Board of the CMCR’s Public Consultation. In particular, see submission from Martin Gagnon, 26 October 2016.

98 See above, Chapter 4 (Consultation) at sections 4.5.3 (CANSOFCOM), 4.5.4.2 (4 CDSG & 2 CMBG) and 4.5.4.1.3 (5 RGC).

99 See above, Chapter 4 (Consultation) at sections 4.5.4.1.1 (2 Can Div Pers Svcs – CO), 4.5.4.1.2 (2 Can Div Pers Svcs – CWO) and 4.5.4.2.3 (Royal Regiment of Canada).

100 See above, Chapter 4 (Consultation) at sections 4.5.4.2.1 (4 CDSG & 2 CMBG), 4.5.4.2.2 (RHFC), 4.5.4.1.1 (2 Can Div Pers Svcs – CO) and 4.5.4.1.2 (2 Can Div Pers Svcs – CWO).

101 See above, Chapter 5 (Comparative) at section 5.2.1 (United States).

102 See Annex DD, ADM (RS) Excel Spreadsheet – Defence Counsel Services.

103 Data was not available to the CMCRT or ADM (RS) regarding the costs of legal aid or defence counsel services in Australia or Manitoba at the time of completion of this report.

104 See Annex DD, ADM (RS) Excel Spreadsheet – Defence Counsel Services.

105 Online: <https://www.cba.org/Sections/Legal-Aid-Liaison/Resources/Resources/Legal-Aid-in-Canada>.

106 See above, Chapter 5 (Comparative) at section 5.2.5 (United Kingdom), where there were no indication of dissatisfaction with defense counsel services.

107 DMP Annual Report 2016-2017, supra note 17 at 33.

108 Andrejs Berzins, Q.C., and Malcolm Lindsay, Q.C., External Review of Defence Counsel Services, (Ottawa: Bronson Consulting Group, 2009), at 16-17 [Bronson Report (DDCS)].

109 Ibid at 17.

110 Canada, Department of National Defence, Provision of Defence Counsel Services in the Canadian Forces, Report of the Defence Counsel Study Team (Ottawa: Office of the Judge Advocate General, 1997), at 42 [DDCS Report 1997].

111 Ibid at 41.

112 Ibid at 69.

113 See Annex Y, Submission from the Director of Defence Counsel Services to ADM(RS), 13 February 2017, at 6.

114 Ibid.

115 DDCS Report 1997, supra note 110 at 42.

116 Bronson Report (DDCS), supra note 108 at 15.

117 Ibid at 48-49.

118 Ibid at 30.

119 Ibid.

120 See above, Chapter 5 (Comparative) at sections 5.2.3 (New Zealand) and 5.2.4 (Ireland).

121 See above, Chapter 5 (Comparative) at sections 5.2.3 (New Zealand) and 5.2.5 (United Kingdom).

122 See above, Chapter 4 (Consultation) at sections 4.5.4.1.1 (2 Can Div Pers Svcs – CO), 4.5.4.1.2 (2 Can Div Pers Svcs – CWO) and 4.5.4.2.3 (Royal Regiment of Canada).

123 DDCS Report 1997, supra note 110 at 41.

124 See above, Chapter 4 (Consultation) at section 4.4.6 (LCdr (ret’d) Levesque).

125 See above, Chapter 5 (Comparative) at sections 5.2.5 (United Kingdom), 5.2.7 (Denmark) and 5.2.8 (Finland).

126 See above, Chapter 4 (Consultation) at sections 4.5.4.1.1 (2 Can Div Pers Svcs – CO) and 4.5.4.1.2 (2 Can Div Pers Svcs – CWO).

127 See above, Chapter 4 (Consultation) at section 4.5.5.1 (MARPAC).

128 See Annex EE, ADM (RS) Spreadsheet – Overall Comparison.

129 Ibid. As a matter of interest, the average cost per trial in the UK court martial system is $37 357.

130 See Annex FF, ADM (RS) CM Review Presentation, slide 13. It should be noted that some of these charges may be in respect of ordinary civilian criminal offences that are laid under section 130(1)(b) of the National Defence Act, as offences that take place outside of Canada, and over which Canadian civilian courts tend not to have jurisdiction. It is for this reason that the CMCRT suggests disproportionate financial and human resource costs are currently being incurred in as many as 25 court martial trials per year based on exercises of court martial jurisdiction over offences that could potentially otherwise be tried by Canadian civilian criminal courts. It is also worth noting that Canadian civilian courts do have extraterritorial jurisdiction in respect of a number of ordinary civilian criminal offences that take place outside of Canada, including all offences listed under section 7 of the Criminal Code, and all offences under the Crimes Against Humanity and War Crimes Act, among others.

131 Ashley Maxwell, Adult Criminal Court Statistics in Canada 2013/2014 (Ottawa: Canadian Centre for Justice Statistics, 2015) Chart 5 at 10 (noting that, in 2013-2014, 36.2% of offenders in the civilian criminal justice system in Canada received a sentence involving custody).

132 See above, Chapter 4 (Consultation) at sections 4.5.4.3 (5 Can Div), 4.5.5.1 (MARPAC) and 4.5.4.2.1 (4 CDSG & 2 CMBG).

133 See above, Chapter 4 (Consultation) at section 4.5.5.2 (HMCS OTTAWA Crew).

134 See above, Chapter 4 (Consultation) at section 4.4.4 (IJ 700).

135 See above, Chapter 4 (Consultation), section 4.5.5.2 (HMCS OTTAWA Crew).

136 See above, Chapter 4 (Consultation) at section 4.5.4.1.1 (2 Can Div Pers Svcs – CO).

137 See above, Chapter 4 (Consultation) at sections 4.5.4.1.1 (2 Can Div Pers Svcs – CWO) and 4.5.5.2 (HMCS OTTAWA Crew).

138 See above, Chapter 4 (Consultation) at sections 4.3.1 (Summary of results), 4.5.4.1.2 (2 Can Div Pers Svcs – CWO), 4.5.4.2.2 (RHFC) and 4.5.5.2 (HMCS OTTAWA Crew).

139 See above, Chapter 4 (Consultation) at section 4.5.4.1.1 (2 Can Div Pers Svcs – CWO).

140 See above, Chapter 4 (Consultation) at section 4.5.5.1 (MARPAC).

141 See above, Chapter 4 (Consultation) at sections 4.4.4 (IJ 700) and 4.5.4.2.1 (4 CDSG & 2 CMBG).

142 See above, Chapter 4 (Consultation) at section 4.5.5.1 (MARPAC).

143 See above, Chapter 4 (Consultation) at section 4.5.4.2.1 (4 CDSG & 2 CMBG).

144 See above, Chapter 4 (Consultation) at section 4.4.4 (IJ 700).

145 See Annex C, Discussion Board of the CMCR’s Public Consultation. In particular, see submission from Bruce MacGregor, 8 November 2016, who in his professional capacity is the currently serving DMP, made his submission in his personal capacity, as was required under CANFORGEN 186/16 – CDS GUIDANCE COURT MARTIAL COMPREHENSIVE REVIEW CONSULTATION. The CMCRT gave his personal submission equal consideration along with other public contributors, while taking proper note of his in-depth knowledge of and experience in the military justice system.

146 See above, Chapter 4 (Consultation) at section 4.4.5 (LCol (ret’d) Perron).

147 See above, Chapter 4 (Consultation) at section 4.5.4.2.2 (RHFC).

148 Lesage Report, supra note 24 at 45.

149 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 2001 to 31 March 2002 (Ottawa: Office of the Judge Advocate General, 2002) at 39.

150 G. Herfst, Meeting the Needs of Military Justice: An Examination of the Military Rules of Evidence. LL.M. Thesis (unpublished) Dalhousie University, 1995.

151 See above, Chapter 5 (Comparative) at section 5.2.1 (United Kingdom).

152 See above, Chapter 4 (Consultation) at section 4.4.5 (LCol (ret’d) Perron).

153 See above, Chapter 4 (Consultation) at section 4.5.4.1.2 (2 Can Div Pers Svcs – CWO). This is precisely how the Military Chamber of the Court of Appeal at Arnhem, in the Netherlands, is structured. See above, Chapter 5 (Comparative) at section 5.2.10 (The Netherlands).

154 See above, Chapter 4 (Consultation) at section 4.5.4.2.2 (RHFC).

155 See above, Chapter 4 (Consultation) at section 4.5.4.2.2 (RHFC).

156 Gilles Létourneau, "L’effeuillage (strip-tease) du système de justice pénale militaire canadien" (21 March 2016), Global Military Justice Reform (blog), online : ˂http://globalmjreform.blogspot.ca/2016/03/leffeuillage-strip-tease-du-systeme-de.html˃.

157 NDA, supra note 39, s 230.1(b).

158 Criminal Code, RCS 1985 c C-34, s 676(1)(a) [Criminal Code].

159 See above, Chapter 4 (Consultation) at section 4.4.1

(Federal Ombudsman for Victims of Crime)..

160 See above, Chapter 4 (Consultation) at section 4.3.1 (Summary of results).

161 See above, Chapter 4 (Consultation) at sections 4.4.1 (Federal Ombudsman for Victims of Crime), 4.4.3 (SMRC) and 4.4.4 (IJ 700).

162 See above, Chapter 4 (Consultation) at section 4.5.1 (CSRT-SM), 4.5.4.1.4 (35 CBG HQ) and 4.5.4.2.2 (RHFC).

163 See, for instance, Criminal Code, supra note 158, ss 486.4 and 486.5, (sexual offences and proper administration of justice); s 517 (judicial interim release hearings); s 631(6) (jury selection); and ss 672.51 and 672.501 (Mental Disorder / Review Board hearings).

164 See, for instance, R v Rivas, 2011 CM 2012; see also Canadian Broadcasting Corp v Boland, [1995] 1 FCR 323

165 R v O’Connor, 4 SCR 411.

166 The Director of Military Prosecutions updated his Policy Directive 007/99, “Responding to Victims’ Needs”, on 17 May 2016 online: <https://www.canada.ca/en/department-national-defence/corporate/policies-standards/legal-policies-directives.html>. The updated Policy Directive acknowledges that: “[g]enerally, a victim requires more than the information required by other witnesses in court martial proceedings. For example, a victim of crime may feel aggrieved by decisions not to prosecute, or decisions to prosecute when they do not favour prosecution,” and directs that “[c]ounsel should keep the victim appropriately informed throughout the process.” The Policy Directive goes on to state that “[t]here are ways other than testimony whereby a victim can participate in court martial proceedings. The Prosecutor shall consider the victim in respect of the following: a. at any time that an accused is released from custody pending the completion of proceedings, the Prosecutor shall take reasonable steps to ensure the victim is aware of the release, the terms of release, and any amendment to terms of release; b. where the Prosecutor causes a final disposition of a matter by the exercise of prosecutorial discretion, he or she should ensure that victims of offences alleged are informed of the decision and the reasons; c. where the Prosecutor discloses to defence counsel information of a sensitive nature pertaining to the victim, he or she shall consider such steps as might be prudent to protect against inappropriate use or dissemination of the materials; d. the right of the victim to timely information pertaining to plea and sentence discussions; and e. participation of the victim in sentencing hearings, by means of viva voce testimony or otherwise” [footnotes omitted]. This Policy Directive exists alongside DMP Policy Directive 012/00, “Witness Interviews”, which was updated in May, 2016 as well. That Policy Directive further states: “Additional considerations apply in relation to the interview of a victim who requires more than the information required by all witnesses in court martial proceedings. With respect to a victim, the following principles apply: a. The Prosecutor shall treat all witnesses and victims in particular with courtesy, sensitivity and respect, bearing in mind the emotional interest one might reasonably expect the victim to have in the proceedings; b. The Prosecutor shall make all reasonable efforts to answer any questions posed by the victim in respect of the proceedings; c. The Prosecutor shall take all reasonable steps to ensure that the victim understands the nature of the proceedings; d. The Prosecutor shall, in appropriate cases, inform the victim of available support and counseling resources of which the Prosecutor is aware; e. The Prosecutor shall make all reasonable efforts to keep the victim informed with respect to the proceedings including plea and sentence discussions undertaken, any verdict, sentence or other final decision in the case; and f. The Prosecutor shall always consider the propriety of special accommodations, and shall discuss the availability of such matters with the victim in appropriate cases”. DMP Policy Directive 003/00, “Post-Charge Review”, also updated in May, 2016, further obliges the prosecutor to take into account the views of the victim in deciding whether or not to exercise jurisdiction, and directs the provision of information to victims whose ‘personal integrity’ has been violated, including being informed of any decision not to proceed and the reasons for that decision. The CMCRT received the above comment from the CSRT-SM notwithstanding that these updated Policy Directives had been in force for over a year at the time of the CMCRT’s consultations. The submission from the SMRC, reproduced at Annex H, similarly indicated to the CMCRT that victims are perceiving transparency challenges at multiple stages of both the court martial and civilian criminal justice processes.

167 See above, Chapter 4 (Consultation) at sections 4.4.3 (SMRC), 4.4.4 (IJ 700), and 4.5.1 (CSRT-SM).

168 See above, Chapter 4 (Consultation) at section 4.4.4 (IJ 700).

169 See above, Chapter 4 (Consultation) at section 4.5.5.2 (HMCS OTTAWA Crew).

170 See DMP Annual Report 2016/2017, supra note 17 at 34, and at 58-59.

171 See Annex CC, ADM (RS) Spreadsheet – Prosecutions.

172 Ibid.

173 Bronson Report (DMP), supra note 19 at 69.

174 The CMCRT notes that this bill, which would require mandatory sexual assault training for judges (among other things) has been characterized by some as constitutionally suspect. See, for instance, http://policyoptions.irpp.org/magazines/may-2017/judicial-education-doesnt-breach-independence-but-bill-c-337-might/.

175 See above, Chapter 4 (Consultation) at section 4.4.4 (IJ 700). Regarding the IJ 700 comment about military judges who have themselves been involved in fraternization cases, the CMCRT notes a report of an allegation that the current Chief Military Judge may have committed a service offence by breaching the CAF’s policy on personal relationships by engaging in a relationship with a subordinate under the Chief Military Judge’s command, but also notes that a complaint to the Military Judges Inquiry Committee about this allegation was dismissed: https://www.thelawyersdaily.ca/articles/2075/military-judge-will-not-face-court-guns?article_related_content=1.

176 R v Gladue, [1999] 1 SCR 688.

177 R v Levi-Gould, 2016 CM 4003.

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