Chapter 1: Introduction to Defence Counsel Services

BACKGROUND

The Canadian military justice system is an integral part of the broader Canadian justice system; it exists concurrently with – and alongside of – the civilian justice system. Canadian law has long recognized the requirement for a separate system of military justice¹– most recently in the cases of MacKay v. The Queen and R. v. Généreux. In fact, the Supreme Court of Canada stated in R. v. Généreux that the safety and security of Canadians depend in large measure on the efficiency and discipline of the Canadian Forces (CF).

The National Defence Act² (NDA) sets out the framework of the military justice system. While CF members are subject to the ordinary law of the land that is applicable to all Canadians, they are also subject to the Code of Service Discipline.³ The Code of Service Discipline sets out the foundation of the military justice system, including disciplinary jurisdiction, service offences, punishments, powers of arrest, organization and procedures of service tribunals, and appeals and reviews. In some cases, the service offences prescribed by the Code of Service Discipline are analogous to offences in ordinary Canadian law; however, many service offences are unique to the military and have no equivalent in ordinary Canadian law.

In December 1998, Parliament extensively amended the NDA. These amendments – many of which came into effect on 1 September 1999 – brought about substantial reforms to the Canadian military justice system. For example, subsection 9.2(1) of the NDA now specifically provides that the CF's highest-ranking legal officer, the Judge Advocate General (JAG), is responsible for the superintendence of the administration of military justice in the CF. Another important reform is the formal recognition in the NDA of an accused person's right to representation:

The NDA also formally established the position of an independent Director of Defence Counsel Services (DDCS) – an experienced lawyer who is a legal officer in the CF. The independence of the DDCS is fostered by the fact that the DDCS is appointed by the Minister of National Defence,⁵ rather than simply posted to the position by the CF chain of command. Furthermore, the DDCS holds office during good behaviour for a term not exceeding four years, and is eligible for reappointment on the expiration of a first or subsequent term of office.⁶ Nonetheless, the DDCS's duties are carried out under the general supervision of JAG.⁷

PRESCRIBED SERVICES⁸

DDCS provides the following principal services.⁹

• Legal counsel services¹⁰ are provided to
  • accused persons
    • at courts martial;
    • where there are reasonable grounds to believe that the accused person is unfit to stand trial, at hearings to determine fitness to stand trial; and
    • in cases where a finding of unfit to stand trial has been made, at hearings to determine the sufficiency of admissible evidence to put the accused person on trial;
  • persons sentenced by court martial to detention or imprisonment, at hearings for
    • release pending appeal;
    • review of undertakings for release pending appeal; and
    • cancellation of release pending appeal;
  • persons held in custody, at hearings by a military judge under subsection 159(1) of the NDA to determine retention in custody;
  • the respondent (offender), at Court Martial Appeal Court or Supreme Court of Canada hearings where prosecution authorities appeal the legality of a finding or the severity of a sentence awarded by court martial; and
  • a person on an appeal or an application for leave to appeal to the Court Martial Appeal Court or the Supreme Court of Canada, with the approval of the Appeal Committee.¹¹
• Advisory services are provided to
  • persons arrested or detained in respect of a service offence (subsection 10(b) Charter of Rights advice), on a seven-days-a-week/24-hours-a-day basis;
  • assisting officers¹² and accused persons with respect to the making of an election to be tried by court martial pursuant to the Queen's Regulations and Orders for the Canadian Forces (QR&O) articles 108.17 and 108.18;
  • assisting officers or accused persons on matters of a general nature relating to summary trials; and
  • persons subject to an investigation under the Code of Service Discipline, a summary investigation or a board of inquiry.

ROLE AND FUNCTION OF DDCS LAWYERS IN THE DISCIPLINARY SYSTEM

DDCS lawyers are the "defence bar" of the CF. A DDCS lawyer's duty is the same as a defence counsel in the civilian criminal justice system. The DDCS lawyer's solemn duty to his or her client is to fearlessly raise every issue, advance every argument and ask every question that the lawyer thinks will help his or her client's case. Furthermore, the DDCS lawyer must endeavour to obtain for his or her client the benefit of any and every remedy and defence that is authorized by law. The DDCS lawyer must discharge this duty by fair and honourable means, without illegality, and in a manner consistent with a lawyer's duty to treat the court with candour, fairness, courtesy and respect.¹³

DDCS is statutorily obliged to provide – free of charge – advice and representation to persons subject to the Code of Service Discipline¹⁴ who are suspected of, or charged with, the commission of service offences.¹⁵ DDCS lawyers deal directly with their clients, including assisting officers, irrespective of rank, status, unit or physical location. They also deal with their clients' chain of command, military and civilian prosecution and enforcement authorities, and all other persons involved in disciplinary proceedings respecting their clients. Finally, DDCS lawyers interact with military prosecutors, courts martial, the Court Martial Appeal Court, the Federal Court of Canada, the Supreme Court of Canada, provincial bars and professional associations.

INDEPENDENCE OF DDCS LAWYERS AND THE CHAIN OF COMMAND

Since they are CF members, DDCS lawyers are at all times subject to the NDA, the Code of Service Discipline, the QR&Os, and all other CF orders and instructions. As noted previously, they perform their duties and provide their services under the general supervision of JAG.¹⁶ It may appear that there is a conflict, or a potential for conflict, between the requirements of membership in the CF and officership on the one hand and the duties and responsibilities of defence counsel on the other.

To address this misperception it is important to remember that the DDCS is appointed by the Minister of National Defence, not by CF authorities. Furthermore, an examination of the respective oaths¹⁷ they are required to swear, the governing legislation and regulations for DDCS lawyers,¹⁸ and the codes of professional conduct of the provincial and territorial law societies show that the legislative intent is to ensure, to the fullest extent possible,¹⁹ their independence in the provision of defence counsel services. In the final analysis, DDCS lawyers are subject to the same responsibilities and obligations as any other CF officer unless those responsibilities and obligations conflict with defence counsel duties.

DDCS lawyers perform their duties and provide their services independent of the chain of command and of CF and Department of National Defence disciplinary and enforcement authorities. The sole restraints on the provision of their services are those imposed by law and by professional ethics, including the requirements and constraints of solicitor-client privilege.

As indicated above, in fulfilling the mandate set out for the DDCS in the NDA, DDCS lawyers provide their clients with the defence counsel and advisory services typically provided by criminal lawyers in the civilian practice of law. They are, in fact and in law, under lawful military orders to provide those services to their clients.²⁰ Accordingly, in respect of the provision of those services, the DDCS lawyer's allegiance is to the client.²¹

Footnotes

¹ For two examples, see the Supreme Court of Canada cases of MacKay v. The Queen, [1980] 2 SCR 370 and R.v. Généreux, [1992] 1 SCR 259.

² RSC 1985, c. N-5, as amended by SC 1998, c. 35.

³ NDA Part III, ss. 55 – 249.26.

⁴ NDA s. 249.17.

⁵ NDA subs. 249.18(1).

⁶ NDA subss. 249.18(2) and (3).

⁷ NDA subs. 249.2(1).

⁸ NDA s. 249.19. The legal services addressed here are separate and distinct from those in the Treasury Board Directive Policy on the Indemnification of and Legal Assistance for Crown Servants.

⁹ Queen's Regulations and Orders for the Canadian Forces (QR&O) arts. 101.20(2) and (3).

¹⁰ Pursuant to QR&O art. 101.20(6), legal counsel services are not provided in connection with any matter for which a person is represented by civilian legal counsel.

¹¹ See QR&O art. 101.21 for provisions respecting the Appeal Committee.

¹² An "assisting officer" is defined at QR&O arts. 108.03 and 108.14 as an officer or non-commissioned member appointed by, or under the authority of, the commanding officer to assist persons subject to the Code of Service Discipline who have been charged with the commission of a service offence.

¹³ Commentary 2 to Rule 10 of the Law Society of Upper Canada Professional Conduct Handbook and the Canadian Bar Association Code of Professional Conduct (1998), c. IX.

¹⁴ Those persons who are subject to the Code of Service Discipline are set out in NDA s. 60.

¹⁵ A "service offence" is defined at s. 2 of the NDA as an offence that is defined as such by the NDA, the Criminal Code or any other Act of Parliament and that is committed by a person while subject to the Code of Service Discipline.

¹⁶ NDA subs. 249.2(1).

¹⁷ See QR&O art. 6.04 for the oath taken by officers on enrolment in the CF.

¹⁸ NDA s. 249.18 – s. 249.21 and QR&O art. 101.19 – 101.20.

¹⁹ NDA subss. 249.2(1) and (2).

²⁰ See NDA s. 249.19, and QR&O arts. 101.20 and 101.22(1)(a).

²¹ In discharging their duty to their clients, DDCS lawyers must always act ethically in accordance with the rules of professional conduct of their law society and those adopted by the Canadian Bar Association.