Director of Military Prosecutions Annual Report 2012-2013

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Message from the Director of Military Prosecutions 

I am pleased to present the Director of Military Prosecutions’ (DMP) Annual Report for 2012-2013. Throughout this challenging year, the prosecutors and supporting staff of the Canadian Military Prosecution Service (CMPS), from across Canada, have fulfilled the DMP’s mandate. On behalf of this entire team, I detail in the pages that follow, our accomplishments and preview the way ahead for the organization.

Throughout the last year, the CMPS has undertaken the prosecution of all courts martial and represented the Canadian Forces (CF) for all custody review hearings. The CMPS also conducted appeals in the Court Martial Appeal Court (CMAC) and provided advice and training to the Canadian Forces National Investigation Service (CFNIS). Both Regular Force and Reserve Force prosecutors have conducted prosecutions of varying complexity across Canada and overseas. Such proceedings are essential components of the military justice system that is designed to address the unique need for discipline in a professional military, in accordance with Canadian law.

The concern highlighted in the previous report regarding the timelines from charge laying to referral to DMP remains a concern. The trial scheduling process is also less than optimal. We will continue to strive to improve the situation on both of these fronts.

We are noticing an increase in the number and complexity of systemic challenges raised both at the Court Martial and CMAC levels. Significant resources are engaged to address these challenges.

We have achieved positive results in the training and general development of our prosecutors but this is an ongoing task as we still have a relatively junior core of officers.

The CMPS is continuing to benefit from its minor leadership reorganization that took place three years ago. This reorganization has improved the supervision of and support to prosecutors, resulting in higher quality prosecution services. In the spirit of improvement, this year we established a new Regional Military Prosecutor’s office in Esquimalt, British Columbia, to better address prosecutorial needs in the Pacific region.

This has once again been a busy and productive year and I wish to thank all military and civilian staff for their hard work and constant dedication.

Colonel J.A.M. Léveillée, CD
Director of Military Prosecutions

 

 


 

 

This report, covering the period of 1 April 2012 to 31 March 2013, is prepared in accordance with article 110.11 of the Queen's Regulations and Orders for the Canadian Forces (QR&O), which requires the DMP1 to report annually to the Judge Advocate General (JAG) on the execution of his duties and functions.2  This report is organized into sections that will discuss the following:

Mission and Vision 

Our Mission

To provide competent, fair, swift and deployable prosecution services to the Canadian Forces in Canada and overseas.

Our Vision

ORDO PER JUSTITIA” or “DISCIPLINE THROUGH JUSTICE”.  The DMP is a key player in the Canadian military justice system helping to promote respect for the law, as well as discipline, good order, high morale, esprit de corps, group cohesion and operational efficiency and capability.

Duties and Functions of the DMP

The DMP is appointed by the Minister of National Defence.  Although the DMP acts under the general supervision of the JAG, he exercises his duties and functions independently.  Those duties and functions, which are set out in the National Defence Act (NDA), the QR&O, ministerial orders and other agreements, include:

  • Reviewing all Code of Service Discipline charges referred to him through the CF chain of command and determining whether: 
    •       The charges or other charges founded on the evidence should be tried by court martial; or 
    •       The charges should be dealt with by an officer who has jurisdiction to try the accused by summary trial.
  • Conducting – within Canada or at deployed locations overseas – the prosecution of all charges tried by court martial.
  • Acting as appellate counsel for the Minister of National Defence on all appeals from courts martial.
  • Acting as the representative of the CF at all custody review hearings conducted before a military judge.
  • Acting as the representative of the CF before other boards and tribunals whose jurisdiction touches upon matters relevant to the military justice system.
  • Providing legal advice to military police personnel assigned to the CFNIS

Organizational Structure

The DMP is assisted in his duties and functions by Regular Force and Reserve Force legal officers appointed to act as military prosecutors, along with a civilian paralegal and support staff. This organization is known as the CMPS. It is organized regionally, and consists of:

  • DMP headquarters at National Defence Headquarters in Ottawa consisting of the DMP, the Assistant Director of Military Prosecutions (ADMP), one Deputy Director of Military Prosecutions (DDMP (Atlantic and Central)), an appellate counsel, a military prosecutor responsible for policy, training and communications, and a legal advisor working directly with the CFNIS;
  • Regional Military Prosecutors’ (RMP) offices, each with an establishment of two regular force military prosecutors, located at:
    • Halifax, Nova Scotia (Atlantic Region),
    • Valcartier, Quebec (Eastern Region),
    • Ottawa, Ontario (Central Region), and
    • Edmonton, Alberta (Western Region); and
    • Esquimalt, British Columbia (Pacific Region)3; and
  • Reserve force military prosecutors located individually across Canada.  

CMPS Personnel

During this reporting period, CMPS experienced a low number of military personnel and position changes at DMP headquarters and in regional offices. However, budgetary restraint measures across the Department of National Defence had a significant impact on civilian personnel at DMP headquarters. Of particular note was the elimination of one research paralegal position. The remaining paralegal is thus responsible for providing research support to all RMPs and appellate counsel.

During the period, the recently-established Regional Military Prosecutor’s office for the Pacific region, continued to evolve and thereby increase its operational capacity. One impediment to this was the fact that the office consists of only one military prosecutor without dedicated administrative support. Measures are being taken to remedy both of these deficiencies.

The Regional Military Prosecutor’s office for the Western region in Edmonton returned to full strength with the addition of one Regular Force military prosecutor, thereby bringing the total complement to two military prosecutors and one legal assistant.

Training and Policy Development

Training

Regular force military prosecutors, not unlike other legal officers, are posted to their positions for a limited period of time – usually three to five years. As such, the training that they receive must support both their current employment as military prosecutors as well as their professional development as officers and military lawyers. The relative brevity of a military prosecutor’s posting with the CMPS requires a significant and ongoing organizational commitment to provide him or her with the formal training and practical experience necessary to develop the skills, knowledge and judgment essential in an effective military prosecutor.

Given the small size of the CMPS, much of the required training is provided by organizations external to the CF. During the present reporting period, military prosecutors participated in conferences and continuing legal education programs organized by the Federal, Provincial and Territorial Heads of Prosecutions Committee, the Canadian Bar Association and its provincial affiliates, the Federation of Law Societies of Canada, the Ontario Crown Attorneys’ Association and various provincial law societies. These programs benefited the CF not only through the knowledge imparted and skills developed but also through the professional bonds forged by individual military prosecutors with their colleagues from the provincial and federal prosecution services.

CMPS holds an annual workshop for its regular and reserve force military prosecutors. The one day workshop, held in the fall, is part of the annual JAG Continuing Legal Education workshop.

Military prosecutors also took part in a variety of professional development activities, including the legal officer intermediate and advanced training programs, and the officer professional military education program. Finally, in order to maintain their readiness to deploy into a theatre of operations in support of DMP’s mandate, military prosecutors conducted individual military skills training such as weapons familiarization and first aid training.

CMPS also provides support to the training activities of other CF entities. During the present reporting period, this support included the mentoring and supervision by military prosecutors of a number of junior military lawyers from the Office of the JAG, who completed a portion of their "on the job training" program by assisting in prosecutions at courts martial. Military prosecutors also provided presentations to JAG legal officers, military justice training to members of the CFNIS, and served as supervisors for law students articling with the Office of the JAG.

Annex C provides additional information regarding the legal training received by the members of the CMPS.

JAGNet

JAGNet continues to be used as the main electronic filing tool for electronic records of the office. There has been an increase in JAGNet use by CMPS personnel and correspondingly better knowledge management. JAGNet does not provide prosecution case management software. Such software would improve the capabilities of the CMPS for efficient and standardized case management.

Policy Development

DMP publishes all policy directives governing prosecutions by the CMPS.

Military prosecutors also play a role in the development of Canadian military justice and criminal justice policy. The DMP continues to play a role in such efforts through his participation on a committee made up of the heads of all federal, provincial and territorial prosecution services.

Military Justice Proceedings

The nature of the operational tasks entrusted to the CF requires the maintenance of a high degree of discipline among CF members.  Parliament and the courts have long recognized the importance of a separate military Code of Service Discipline to govern the conduct of individual soldiers, sailors and air force personnel and prescribe punishment for disciplinary breaches.

The Code of Service Discipline is designed to assist commanders in the promotion and maintenance of good order, high morale, efficiency, discipline and operational effectiveness. To these ends, the NDA creates a structure of military tribunals as the ultimate means of enforcing discipline. Among these tribunals are courts martial and the CMAC.

During the present reporting period, military prosecutors represented the interests of the CF and the general public in a number of different types of judicial proceedings related to the military justice system. These proceedings included courts martial, appeals from courts martial and reviews of pre-trial custody

Courts Martial

During the reporting period, the DMP received 116 applications for disposal of a charge or charges from referral authorities and the CMAC ordered new trials in two cases. When an application for disposal is received, a military prosecutor is designated to perform a review of the case. Following this review, charges are preferred to court martial, if warranted. During the period, a decision not to prefer any charges to court martial was made in respect of 42 applications.

For the period, 63 members of the CF faced a total of 204 charges. Sixty-four courts martial were held. Sixty-three of those courts martial were held in Canada and one was held in Germany.

Out of the 64 courts martial held, 60 trials were held before a Standing Court Martial (SCM), composed of a military judge sitting alone. In addition, there were 4 trials held before a General Court Martial, composed of five CF members as triers of fact and a military judge as the trier of law.

At the conclusion of 50 of the trials, the trier of fact made a finding of guilty in respect of at least one charge. The remaining 14 trials had not guilty findings on all charges. There were no instances where there was either a stay or a withdrawal of all charges.

Annex A provides additional information regarding the charges tried and the results of each court martial.

While only one sentence may be passed on an offender at a court martial, a sentence may involve more than one punishment. The 50 sentences pronounced by courts martial during the reporting period involved 86 punishments. A fine was the most common punishment, with 34 fines being imposed. Eight punishments of imprisonment and one punishment of detention were also imposed by the courts. Of those nine, four were suspended sentences, which means, in the context of the Code of Service Discipline, that the sentence is suspended and that the offender does not have to serve out the sentence of imprisonment or detention.

We would like to highlight the following courts martial:

R. v. Major C.D. Lunney4
R. v. Major D.W. Watts5
R. v. Warrant Officer P.G. Ravensdale6

These three courts martial concerned the same incident. In February 2010, as a Company Commander in the Kandahar Provincial Reconstruction Team at Camp Nathan Smith in Kandahar, Afghanistan, Major Lunney granted permission to one of his platoon commanders, Captain Watts (as he then was), to fire, for training purposes, a command detonated, anti-personnel "Claymore" mine, on a firing range near Kan Kala, northeast of Kandahar. Warrant Officer Ravensdale was the platoon second-in-command. When the Claymore mine was fired, fragments from the explosion struck several Canadian soldiers, killing Corporal Joshua Baker and injuring four other members of his platoon.

Following an investigation by the CFNIS, two charges under section 130 of the NDA for breach of duty in relation to an explosive substance contrary to section 80 of the Criminal Code, and three charges under section 124 of the NDA for negligent performance of a military duty imposed on him, were preferred by DMP against Major Lunney.

Four charges under section 130 of the NDA (manslaughter contrary to section 236(b) of the Criminal Code; breach of duty in relation to an explosive substance causing death contrary to section 80 of the Criminal Code; breach of duty in relation to an explosive substance causing bodily harm contrary to section 80 of the Criminal Code; and unlawfully causing bodily harm contrary to section 269 of the Criminal Code), as well as two charges of negligent performance of a military duty imposed on him contrary to section 124 of the NDA, were preferred by DMP against Major Watts.

DMP preferred the same charges against Warrant Officer Ravensdale as had been preferred against Major Watts.

On 13 September 2012, at an SCM, Major Lunney pleaded guilty to one charge under section 124 of the NDA. The remaining charges were withdrawn. Between 13 November 2012 and 4 December 2012, Major Watts was tried by GCM. At the conclusion of the trial, he was found guilty of the fourth, fifth and sixth charges. He was found not guilty of the first, second and third charges. He was sentenced to a reduction in rank to Lieutenant and a severe reprimand.

Between 28 January 2013 and 14 February 2013, Warrant Officer Ravensdale was tried by GCM. At the conclusion of the trial, he was found guilty of two counts of breach of duty in relation to an explosive substance, of unlawfully causing bodily harm, and of one count of negligent performance of a military duty imposed on him. WO Ravensdale was found not guilty of manslaughter and not guilty on one count of negligent performance of a military duty imposed on him.

Pursuant to a joint submission on sentence, Major Lunney was sentenced to a reduction in rank to Captain and a severe reprimand. Major Watts was sentenced to a reduction in rank to Lieutenant and a severe reprimand. Warrant Officer Ravensdale was sentenced to imprisonment for six months (suspended), reduction in rank to Sergeant, and a fine in the amount of $2,000. The offence of unlawfully causing bodily harm is included in paragraph (a) of the definition of "primary designated offence" found at section 487.04 of the Criminal Code. As such, the offence of unlawfully causing bodily harm is also included in paragraph (a) of the definition of "primary designated offence" found at section 196.11 of the NDA. That being the case, a conviction for unlawfully causing bodily harm results in a mandatory DNA order pursuant to section 196.14(1) of the NDA (i.e., “A court martial shall make an order…”). The court martial accordingly made a DNA order.

R. v. Lieutenant(Navy) L.M. Pearson7

Lieutenant(Navy) Pearson, a marine engineer, was onboard HMCS Ottawa for a training mission in the summer of 2011. He was the Head of Department for the Combat Systems Engineering division and responsible for the training of personnel including the complainant. Lieutenant(Navy) Pearson was in a situation of authority and trust towards the complainant. During that mission, the accused made inappropriate comments towards the complainant or in her presence that a reasonable observer would conclude were sexual in nature and demonstrated harassing behaviours towards her. To these kinds of comments and behaviours coming from her training supervisor, the complainant would either tell Lieutenant(Navy) Pearson that she did not want to talk about it or would not say anything, not wanting to be singled out. On 22 June, the HMCS Ottawa was in port at Pago Pago in the American Samoa. The final incident occurred that night in the ship’s wardroom when Lieutenant(Navy) Pearson approached the complainant from behind, placed his face on her neck, then proceeded to put his hand down under her shorts and undergarments, reaching the beginning of her pubic hair. As this was occurring, the complainant felt extremely uncomfortable to the point where she froze up. The complainant informed her chain of command of what had happened. As a result, Lieutenant(Navy) Pearson was sent ashore on the 23 June and was repatriated to Canada that same day.

One charge under section 130 of the NDA (sexual assault contrary to section 271 of the Criminal Code), as well as one charge of drunkenness contrary to section 97 of the NDA, and one charge of conduct to the prejudice of good order and discipline under section 129 of the NDA for harassment contrary to Defence Administrative Orders and Directives 5012-0, were preferred by DMP against Lieutenant(Navy) Pearson. To the first charge, the accused pleaded guilty to the lesser and included offence of assault. The second charge was withdrawn and the accused pleaded guilty to the third charge. The court martial found Lieutenant(Navy) Pearson guilty of assault, an offence punishable under section 130 of the NDA contrary to section 266 of the Criminal Code; and guilty of conduct to the prejudice of good order and discipline under section 129 of the NDA for harassment contrary to Defence Administrative Orders and Directives 5012-0. He was sentenced to a severe reprimand and a fine in the amount of $8,000.

R. v. Mr. Paul Wehmeier8

The accused (a civilian subject to the Code of Service Discipline) worked as a "peer educator" at a "third location decompression centre" operated by the CF in Germany. The centre was meant to assist CF members transitioning out of the operational theatre in Afghanistan to reintegrate into Canadian society. Peer educators participated in decompression briefings with the returning soldiers and were expected to answer soldiers’ questions on a personal level. The CF provided the accused with accommodations during his stay in Germany. On 19 March 2011, ten days into his contract, Mr. Wehmeier attended a beer festival in Bitberg, Germany, where he allegedly became intoxicated and committed offences against three members of the CF. It is alleged that he fondled the breasts of one Corporal; he jumped over a table at another Corporal; and he threatened to kill a third Corporal. Five days after the alleged incident, the accused was returned to Canada. Canadian military police investigated the incident.

Three charges under section 130 of the NDA (sexual assault contrary to section 271 of the Criminal Code; uttering threats contrary to section 264.1(1)(a) of the Criminal Code; and assault contrary to section 266 of the Criminal Code) were preferred by DMP against Mr. Wehmeier. The court martial began on 29 May 2012 at Canadian Forces Base Comox, British Columbia. On 6 June 2012, the presiding military judge found that DMP’s decision to continue the prosecution of the accused was an abuse of process. Consequently, the military judge terminated the proceedings. DMP appealed this decision to the CMAC. Proceedings before the CMAC did not commence in this reporting period.

Appeals to the Court Martial Appeal Court

During the reporting period the CMAC rendered a decision on four appeals and one custody review. One appeal was abandoned by the appellant. During the reporting period 9 applications to appeal were filed with the CMAC. Out of these, 7 appeals had been initiated by members of the CF who had been convicted and sentenced by court martial; 2 were initiated by the Crown.

The following appeal case is of particular interest:

Ordinary Seaman K. O’Toole v. R.9

Ordinary Seaman O’Toole had, on numerous occasions, been arrested and released from military police custody but had failed repeatedly to comply with the conditions of release. Following his arrest by military police on 18 October 2012, Ordinary Seaman O’Toole was held in custody in the detention barracks at Canadian Forces Base Esquimalt. A Military Judge directed that Ordinary Seaman O’Toole was to be retained in custody pending his Standing Court Martial.

Pursuant to section 159.9 of the NDA, Ordinary Seaman O’Toole sought an order from the CMAC on 5 November 2012 for his release from custody until his court martial scheduled to commence 14 November 2012.

This case is significant for three reasons. First, before this case, there was no jurisprudence with regard to section 159.9 of the NDA. Chief Justice Blanchard of the CMAC ruled that a review under section 159.9 of the NDA is similar to a bail review under sections 520 and 521 of the Criminal Code. In appropriate cases, this would include conducting a de novo hearing and rendering the appropriate decision where an error is made in the initial order. Second, in the CF, the public safety (secondary) grounds include a substantial likelihood that the accused will commit an offence that will have an impact on the discipline, efficiency, or morale of the military to an extent that could affect the operational readiness of the CF. Finally, Chief Justice Blanchard wrote in his decision, “The military justice system should … resemble the civilian justice system insofar as there is no military rationale for adopting a different approach”. The CMAC ordered Ordinary Seaman O’Toole to be retained in custody until his court martial.

Annex B provides additional information regarding the appeals to the CMAC.

Appeal to the Supreme Court of Canada

There were no appeals to the Supreme Court of Canada during this reporting period.

Custody Reviews

Military Judges are, in certain circumstances, required to review orders made to retain a CF member in service custody. DMP represents the CF at such hearings. During the reporting period, military prosecutors appeared at four pre-trial custody review hearings.

 


Footnotes

1 Colonel J.A.M. Léveillée was appointed by the Minister of National Defence on 7 March 2012 to be the DMP for a four year term.

2 Previous DMP Annual Reports, along with copies of DMP Policy Directives and other information can be found at the DMP website.

3 The senior military prosecutor in the RMP Pacific Region office is also the DDMP (Western and Pacific).

4 R. v. Lunney, 2012 CM 2012

5 R. v. Watts, 2013 CM 2006

6 R. v. Ravensdale, 2013 CM 1001

7 R. v. Pearson, 2012 CM 1004

8 R. v. Wehmeier, 2012 CM 1005

9 O'Toole v. The Queen, 2012 CMAC 5

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