Director of Military Prosecutions Annual Report 2014-15

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Letter from the Director of Military Prosecutions to the Judge Advocate General

National Defence
Director of Military Prosecutions
Constitution Building
305 Rideau Street
Ottawa, Ontario
K1A 0K2

8 May 2015

Major General Blaise Cathcart, OMM, CD, Q.C.
Judge Advocate General
National Defence Headquarters
101 Colonel-By Drive
Ottawa ON K1A 0K2

Major-General Cathcart,

Pursuant to article 110.11 of the Queen's Regulations and Orders for the Canadian Forces, I am pleased to present you with the 2014-2015 Annual Report of the Director of Military Prosecutions.  The report covers the period from 1 April 2014 through 31 March 2015.

Yours sincerely,

Colonel B.W. MacGregor, CD
Director of Military Prosecutions

Canada

 


Message from the Director of Military Prosecutions 

I am pleased to present the Director of Military Prosecutions’ (DMP) Annual Report for 2014-2015, my first since being appointed as DMP on 20 October 2014.

The DMP prosecutes cases under the Code of Service Discipline (CSD); acts as counsel to the Minister of National Defence in respect of appeals to the Court Martial Appeal Court (CMAC) and Supreme Court of Canada (SCC); and provides legal advice to the Canadian Forces National Investigation Service (CFNIS). DMP fulfils his legal mandate in a fair, impartial and objective manner.

Canadians expect disciplined military forces that comply with Canadian and international law. The maintenance of discipline in the Canadian Armed Forces (CAF) is the responsibility of the chain of command and is crucial for operational effectiveness and mission success. The military justice system is designed to support the maintenance of discipline and respect for the rule of law. To achieve these aims, the chain of command must be effectively engaged in the disciplinary process. Over the last several months, I have initiated meetings with senior members of the chain of command at various bases across Canada to explain my role in the military justice system, encourage chain of command participation and solicit feedback. These efforts have been very positively received and I will endeavour to continue such interactions in the year ahead.

In the past year, we have prosecuted a wide variety of cases at Court Martial. We have also initiated appeals where appropriate and responded to appeals initiated by offenders. Among those appeals, we have faced a significant number of constitutional challenges to the military justice system raised by offenders at the Court Martial and CMAC levels. Our military prosecutors have worked together through these complex matters, committed to the interests of justice. Our civilian personnel have been steadfast in their support of our prosecutions and appeals.

In the coming year, we will continue to respond to such challenges, most significantly before the SCC in the cases of Second Lieutenant Moriarity et al. v R; Private Alexandra Vezina v R; and Sergeant Damien Arsenault v R.

In closing, I wish to thank all my military and civilian personnel for their professionalism, hard work, dedication and perseverance. I look forward to advancing our mission together in the year to come.

ORDO PER JUSTITIA

Colonel B.W. MacGregor, CD
Director of Military Prosecutions 

 


Introduction  

This report, covering the period of 1 April 2014 to 31 March 2015, 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 functions2.  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 Armed 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. Section 165.11 of the National Defence Act (NDA) provides that the DMP is responsible for the preferring of all charges to be tried by court martial and for the conduct of all prosecutions at courts martial in Canada and abroad. The DMP also acts as counsel for the Minister of National Defence in respect of appeals before the CMAC and the SCC. Over the past year, military prosecutors have also represented the CAF at custody review hearings and provided legal advice and training to the CFNIS.

In accordance with section 165.15 of the NDA, the DMP is assisted by officers from the Regular Force and the Reserve Force who are barristers or advocates. DMP can also count on a small but highly effective group of civilian support staff. Appointed for a four-year term, the DMP fulfils his mandate in a manner that is fair, impartial and objective. Although the DMP acts under the general supervision of the JAG, he exercises his prosecutorial mandate independently. Those duties and functions, set out in the NDA, the QR&O, ministerial orders and other instruments, include:

  • Reviewing all CSD charges referred to him through the CAF chain of command and determining whether:
    • The charges or other charges founded on the evidence should be tried by court martial;
    • The charges should be dealt with by an officer who has jurisdiction to try the accused by summary trial; or
    • The charges should not be proceeded with.
  • 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, to the CMAC and to the SCC.
  • Acting as the representative of the CAF at all custody review hearings conducted before a military judge.
  • Providing legal advice to military police personnel assigned to the CFNIS.

Organizational Structure

In accordance with section 165.15 of the NDA, 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 Canadian Military Prosecution Service (CMPS). It is organized regionally, and currently 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) responsible for the Atlantic and Central regions, an appellate counsel, a military prosecutor responsible for policy, training and communications, a legal advisor working directly with the CFNIS, a civilian paralegal, and one legal assistant; 
  • Regional Military Prosecutors’ (RMP) offices, with the exception of the Pacific regional office, have an establishment of two regular force military prosecutors and one legal assistant, located at:
    • Halifax, Nova Scotia (Atlantic Region);
    • Valcartier, Quebec (Eastern Region);
    • Ottawa, Ontario (Central Region);
    • Edmonton, Alberta (Western Region);
    • Esquimalt, British Columbia (Pacific Region)3; and
    • Nine Reserve force military prosecutors located individually across Canada. 

The DMP organization chart is provided at Annex A.

CMPS Personnel

During this reporting period, CMPS experienced a low turnover of military personnel and position changes at DMP headquarters and in regional offices. However, budgetary restraint measures across the Department of National Defence over the last three years have reduced the civilian work force at DMP headquarters by 50%. One clerk position and one of two paralegal positions were eliminated in FY 12-13. The remaining paralegal is thus responsible for providing litigation support for the entire organization.

During the period, the recently established RMP’s office for the Pacific region was finally staffed with dedicated administrative support. This greatly increases the effectiveness of the RMP and DDMP posted to that office.

Canadian Military Prosecution Service - Continuing Legal Education Workshop 2014

Training, Policy Development and Outreach

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 an officer’s posting with the CMPS requires a significant and ongoing organizational commitment to provide him or her with the formal training and practical experience, and mentoring by Reserve RMPs (many of whom are senior Crown counsel), 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 CAF. During the reporting period, military prosecutors participated in conferences and continuing legal education programs organized by the Federal/Provincial/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, the Directeur des poursuites criminelles et pénales (Québec), various provincial law societies and the Office of the JAG. These programs benefited the CAF not only through the knowledge imparted and skills developed but also through the professional bonds developed by individual military prosecutors with their colleagues from the provincial and federal prosecution services.

CMPS held its Continuing Legal Education (CLE) workshop in October for its Regular Force and Reserve Force military prosecutors. This one-day workshop takes place annually in the fall in conjunction with the annual JAG CLE workshop.

Military prosecutors also took part in a variety of professional development activities, including the legal officer intermediate training 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 CAF entities. During the 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 military justice briefings to JAG legal officers, criminal law/military justice training to members of the CFNIS, and served as supervisors for law graduates articling with the Office of the JAG. Finally, legal officers serving outside the CMPS may, with the approval of their supervisor and the DMP, participate in courts martial as "second chair" prosecutors. The objective of this program is “to contribute to the professional development of unit legal advisors as well as to improve the quality of prosecutions through greater local situational awareness4”  .

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

Policy Development

DMP publishes all policy directives governing prosecutions, or other proceedings (such as custody review hearings) conducted by the CMPS. The Policy position within CMPS, which had been vacant for a number of years, is a key part of renewed efforts to review existing policies and in ensuring that DMP’s guidance in prosecution-related matters is translated into new policies or other written instruments.

Military prosecutors also play a role in the development of Canadian military justice and criminal justice policy. The DMP contributes to such efforts in part through his participation on the Federal/Provincial/Territorial Heads of Prosecutions Committee.

Outreach

F/P/T Heads of Prosecutions Committee

The DMP is a member of the Federal/Provincial/Territorial Heads of Prosecutions Committee, which brings together the leaders of Canada’s prosecution services to promote assistance and cooperation on operational issues. The Committee held two meetings in 2014. The first, in May 2014, was organized jointly by DMP and the Public Prosecution Service of Canada (as permanent co-chair) and featured the National Prosecution Awards Ceremony. The 2-day meeting was held at Canadian Forces Base Halifax, Nova Scotia. In addition to discussing matters of common concern in the domain of criminal prosecutions, participants were afforded the opportunity to increase their awareness of the CAF and how it cooperates with other government departments to serve Canadian interests at home and abroad.

International Association of Prosecutors

The International Association of Prosecutors (IAP) is a non-governmental and non-political organization. It promotes the effective, fair, impartial, and efficient prosecution of criminal offences through high standards and principles, including procedures to prevent or address miscarriages of justice. It assists prosecutors internationally in the fight against organized or other serious crime, and fosters measures for the elimination of corruption in public administration. The DMP will participate in the Twentieth Annual Conference and General Meeting of the IAP in Zurich in September 2015.

CAF Chain of Command

The military justice system is designed to promote the operational effectiveness of the CAF by contributing to the maintenance of discipline, efficiency, and morale. It also ensures that justice is administered fairly and with respect for the rule of law. To meet these objectives, the chain of command must be effectively engaged.

DMP recognizes the importance of maintaining collaborative relationships with the chain of command of the CAF, which respect the prosecutorial independence necessary for the prosecution of courts martial and appeals. Collaborative relationships with the chain of command ensure that both entities work together to strengthen discipline and operational efficiency through a robust military justice system.

During the reporting period, DMP travelled extensively throughout Canada, observing court martial proceedings and meeting with senior members of the chain of command. These meetings yielded many valuable insights for all concerned. DMP will continue these efforts in upcoming years.

Investigative Agencies

DMP also recognizes the importance of maintaining relationships with investigative agencies, while at the same time respecting the independence of each organization. Good relationships with investigative agencies ensure that both the DMP and the agencies exercise their respective roles independently, but co-operatively, and help to maximize CMPS’ effectiveness and efficiency as a prosecution service.

RMPs provide investigation-related legal advice to CFNIS detachments across Canada. In addition, RMPs provide training to CFNIS investigators on military justice and developments in criminal law. At the headquarters level, DMP has assigned a military prosecutor as legal advisor to the CFNIS command team in Ottawa. The provision of legal services by the military prosecutor assigned as CFNIS Legal Advisor is governed by a letter of agreement dated 30 September 2013, signed by DMP and the CAF Provost Marshal.

Information Management and Technology

JAGNet continues to be used as the main information management tool for electronic records in CMPS offices. It is a tool that allows users to manage sensitive legal information securely. The goal of the JAGNet project is to introduce a suite of information management and information technology capabilities to enable the organization to properly manage legal cases and recorded information and to efficiently search, find, share and use legal information and knowledge, subject to such access restrictions as are necessary.

Considerable efforts were made during the reporting period to allow all members of CMPS to better harness JAGNet’s full capability as a knowledge management tool. As a result, the research database available to CMPS personnel on the JAGNet DMP Portal has expanded significantly. Efforts will continue to be made to enhance information sharing through the addition of even more research resources to the JAGNet DMP Portal.

Resourcing and Performance Measurement

As part of the Government of Canada, the DMP is accountable for maximizing efficiencies within available resources and reporting on CMPS’s performance. The availability of reliable performance information is essential for planning and decision-making. The DMP relies upon data drawn from the Performance Measurement Decision Support System (PMDSS) for planning and reporting purposes. A selection of PMDSS data for CMPS personnel during the reporting period is provided in Table 1.

Table 1: Selected PMDSS Data

 

Time on Temporary Duty (i.e. away from home location) 536 days
Time in Court 288 days

 

Financial Information

Operating Budget

DMP’s budget is allocated primarily to operations: that is, to providing prosecution services.

In the current reporting period, DMP’s budget was $854,321.00. At year-end, DMP returned approximately $83,891.84 in light of prosecution-related expenditures that were lower than budgeted.

Table 2: Annual Expenditures

 

 ExpendituresBudget
2014-2015
Expenditures
2014-2015
Surplus (Deficit)
2014-2015
Crown Liabilities (Witness Expenses) $130,000.00 $136,478.80 ($6,478.80)

Regular Force Operations and Maintenance

$231,000.00 $183,327.455 $47,461.85
Civilian Wages $383,321.00 $384,837.44 ($1,516.44)
Reserve Force Pay $90,000.00 $63,753.24 $26,246.76
Reserve Force Operations and Maintenance $20,000.00 $1,821.53 $18,178.47
Totals $854,321.00 $770,429.16 $83,891.84

 

Military Justice Proceedings

The nature of the operational missions entrusted to the CAF requires the maintenance of a high degree of discipline among CAF members. Parliament and the Supreme Court of Canada have long recognized the importance of a separate military CSD to govern the conduct of individual soldiers, sailors and air force personnel, and to prescribe punishment for disciplinary breaches. In MacKay v the Queen6 and in R v Généreux7, the Supreme Court of Canada unequivocally confirmed the need for military tribunals to exercise their jurisdiction in order to contribute to the maintenance of discipline, and associated military values, as a matter of vital importance to the integrity of the CAF as a national institution.

The CSD is designed to assist commanders in promoting the operational effectiveness of the CAF by contributing to the maintenance of discipline, efficiency and morale and by contributing to respect for the law and the maintenance of a just, peaceful and safe society. Service tribunals serve the purpose of the ordinary criminal courts, that is, punishing wrongful conduct, in circumstances where the offence is committed by a member of the military or other person subject to the CSD8. Canadian doctrine identifies discipline as one of the essential components of the Canadian military ethos. Discipline is described as a key contributor to the instilling of shared values, the ability to cope with the demands of combat operations, self-assurance and resiliency in the face of adversity, and trust in leaders. It enables military individuals and units to succeed in missions where military skill alone could not9.

To these ends, the NDA creates a structure of military tribunals as the ultimate means of enforcing discipline. Among these tribunals are courts martial. Court martial decisions may be appealed to the CMAC, which is made up of civilian judges of the Federal Court.

During the present reporting period, military prosecutors represented the Crown in several different types of judicial proceedings related to the military justice system. These proceedings included reviews of pre-trial custody, courts martial, and appeals from courts martial10.

Courts Martial

During the reporting period, the DMP received 93 applications for disposal of a charge or charges from referral authorities. 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 33 applications11.

Thirty-five applications for disposal of a charge had more than 90 days delay between the date the charge was laid and the application being received by the DMP. Annex C provides additional information regarding the cases involving significant delay.

During the reporting period, 74 individuals faced a total of 287 charges before courts martial held in Canada.

Of the 7212 courts martial held13, 61 trials were before a Standing Court Martial (SCM), composed of a military judge sitting alone. Eleven trials were held before a General Court Martial (GCM), composed of five CAF members as triers of fact and a military judge as the trier of law. In 55 of the trials, the trier of fact made a finding of guilty in respect of at least one charge. The remaining 12 trials had not guilty findings on all charges. There was one case that resulted in a stay and 4 cases that resulted in a withdrawal of all charges. Annex D 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 55 sentences pronounced by courts martial during the reporting period involved 87 punishments. A fine was the most common punishment, with 39 fines being imposed. Eight punishments of imprisonment and eight punishments of detention were also imposed by the courts. Of those 16 custodial punishments, six were suspended. This means, in the context of the CSD, that the offender does not have to serve out the sentence of imprisonment or detention as long as he or she remains of good behaviour during the period of the sentence.

CMPS counsel prosecute offences contrary to the NDA, including offences under section 130 of the NDA, which are based on federal statutes such as the Criminal Code and the Controlled Drugs and Substances Act14.

We would like to highlight a selection of courts martial in the following four broad areas:

  • Drug Offences;
  • Sexual Assault and Other Offences Against the Person;
  • Fraud and Other Offences Against Property; and
  • Offences Relating to Conduct.

The cases discussed below give a flavour of the matters dealt with by courts martial during the reporting period. Some cases may seem minor until they are seen in their military context where the four core Canadian military values are: duty, loyalty, integrity, and courage. The value of integrity obligates CAF members to the highest possible levels for honesty, uprightness of character, honour, and the adherence to ethical standards15. The military justice system exists in part to address instances where it is alleged that CAF members did not discharge their obligations to the required level.

Drug Offences

Like all Canadians, persons subject to the CSD are liable to prosecution for drug-related offences as provided in the Controlled Drugs and Substances Act. Unlike the civilian population, however, persons subject to the CSD are also liable to prosecution for drug use16.

R v Corporal V. Hamel17

In November 2012, Corporal Hamel was a reservist on deployment in Afghanistan. He asked another CAF member to send him anabolic steroids and related items from Canada through the military postal system. Corporal Hamel advised the other CAF member on how to send the items. That individual did as requested by Corporal Hamel and hid the items in a Ziploc bag concealed in a container of powdered protein. He then took the package to a Military Family Resource Centre for shipment to Afghanistan. The illicit items were discovered during a routine safety inspection of packages to be sent overseas. Corporal Hamel pleaded guilty before an SCM to one charge under section 130 of the NDA, namely, attempting to export substances contrary to subsection 6(1) of the Controlled Drugs and Substances Act. Following a joint submission, the SCM sentenced Corporal Hamel to a severe reprimand and a fine of $2,500 payable in ten equal monthly instalments of $250 a month.

R v Captain J.P.H.E. Racine18

In October 2013, Captain Racine was taking a military career counsellor course at the Collège Militaire Royal in Saint-Jean-sur-Richelieu, Québec. At the time, he was the new commander of a Canadian Forces Recruiting Centre detachment. On the evening of 2 October 2013, in the presence of another CAF member, Captain Racine lit up a cannabis cigarette and smoked it. One week later, the other CAF member informed Captain Racine’s commanding officer that Captain Racine had used cannabis in her presence. Captain Racine’s Commanding Officer ordered counselling and probation from 18 October 2013 to 17 October 2014, based on a disciplinary investigation and on the discussions he had with Captain Racine and others regarding Captain Racine’s violation of the drug control program. Captain Racine agreed to be relieved of his duties at the recruiting centre detachment and was loaned to a Primary Reserve unit. Captain Racine pleaded guilty before an SCM to one charge of conduct to the prejudice of good order and discipline under section 129 of the NDA for having used cannabis contrary to article 20.04 of the QR&O. He was sentenced to a severe reprimand and a fine of $500.

Sexual Assault and Other Offences against the Person

R. v Petty Officer 2nd Class J.K. Wilks19

The accused was a medical technician who served in Thunder Bay and London, Ontario from December 2003 to October 2009. In the course of enrolment medical and periodic health assessments, the accused performed visual breast inspections and manual breast examinations that were not required and that he was not qualified to perform. An SCM20 found Petty Officer 2nd Class Wilks guilty of 25 charges, comprised of 10 charges of sexual assault contrary to section 130 of the NDA, pursuant to section 271 of the Criminal Code; and 15 charges of breach of trust by a public officer contrary to section 130 of the NDA, pursuant to section 122 of the Criminal Code. The SCM sentenced the offender to imprisonment for a term of 30 months; ordered that samples of bodily substances be taken from Petty Officer Second Class Wilks for the purpose of forensic DNA analysis; and ordered him to comply with the Sex Offender Information Registration Act for life. The offender has appealed his conviction to the CMAC.

R v Major D. Yurczyszyn21

At the time of the offence, Major Yurczyszyn was the Commanding Officer of Canadian Forces Base/Area Support Unit Wainwright. During a party on the evening of 11 November 2012, Major Yurczyszyn was in uniform and under the influence of alcohol that he had voluntarily consumed. While at the party, he touched the breast of a civilian woman without her consent. He made sexual comments and attempted to touch another woman in a sexual manner. An SCM found that his conduct was “likely to bring discredit on Her Majesty’s service”  given his rank and position, and held that it was a subjectively grave instance of drunkenness within the meaning of that offence in the NDA. Before the SCM22, the offender pleaded guilty to one charge of drunkenness pursuant to section 97 of the NDA and was additionally found guilty of one charge of sexual assault contrary to section 130 of the NDA, pursuant to section 271 of the Criminal Code following a trial. The SCM sentenced the offender to a reduction in rank from Major to Captain.

Fraud and Other Offences against Property

R v Corporal M. Parent23

Corporal Parent submitted forms to have his marital status changed from single to common-law, despite the fact that he was separated and was not in a common-law relationship. Corporal Parent then began claiming separation allowance, notwithstanding that he was not in a common-law relationship. Each month, Corporal Parent fraudulently claimed benefits related to his purported common-law status by filling out, signing, and submitting CF52 General Allowance Claims. He certified on each claim that he had incurred the claimed expenses, that he had a dependant, and that there was no separation with intent during the period covered by the claim. Corporal Parent fraudulently claimed a total of $46,773. Corporal Parent pleaded guilty before an SCM to one charge of theft over $5,000 contrary to section 130 of the NDA, pursuant to section 334 of the Criminal Code. The SCM sentenced the offender to a punishment of detention for 90 days.

R v Sergeant (retired) G. Tardif24

At the time of the offences, the offender was a supply technician serving as quartermaster sergeant in the 1st Battalion Royal New Brunswick Regiment. On numerous occasions, the accused went to a gas station and gave the proprietor one or more CAF fleet fuel credit cards. The proprietor charged each credit card without providing any fuel or other consideration. The accused took the receipts and had them processed for payment as if fuel had been received. In consideration of these fraudulent transactions, the proprietor allowed the accused to purchase items for personal use and charge the cost to the proprietor. In addition, the accused stole from the CAF some 92 items having a combined value of $16,011.39. Sergeant (retired) Tardif pleaded guilty before an SCM to two charges of fraud contrary to section 130 of the NDA, pursuant to section 380 of the Criminal Code; and one charge of theft contrary to section 114 of the NDA, while he was entrusted with the custody or distribution of stolen property. The offender was sentenced to imprisonment for a period of 90 days.

Offences Relating to Conduct

R v Lieutenant-Colonel D.L. Miller25

At the time of the offence, Lieutenant-Colonel Miller was a commissioned officer in the Regular Force. On 20 December 2012, at a unit event, Lieutenant-Colonel Miller wore her Dress Environmental Uniform tunic with the following decorations: Officer of the Order of Military Merit (OMM); Special Service Medal (SSM) with NATO bar; Canadian Peacekeeping Service Medal (CPSM); UN Disengagement Observation Force (UNDOF) with the tour numeral two; UN Interim Force in Lebanon (UNIFIL); Canadian Forces’ Decoration (CD) with one clasp/one silver rosette; and three Command Commendations. She did not have authority to wear the UNIFIL medal, the SSM, or two of the command commendations. She had been wearing the UNIFIL and SSM medals on her uniform since 1997. Before an SCM, Lieutenant-Colonel Miller pleaded guilty to three charges of an act to the prejudice of good order and discipline contrary to 129 of the NDA.

In determining the sentence, the SCM noted as an aggravating factor that Lieutenant-Colonel Miller had been convicted by an SCM on 22 October 201226 of three unrelated offences involving dishonesty: willfully making a false statement in a document signed by her that was required for official purposes, and two counts of conduct to the prejudice of good order and discipline. Those three convictions related to her falsely representing that she had passed a CF EXPRES Program physical fitness test, knowing this representation to be false. For those offences, she was sentenced to a severe reprimand and a fine of $3,000. The SCM also noted that Lieutenant-Colonel Miller wore the medals and commendations at issue for an extended period and that she continued to wear the decorations to which she was not entitled after her previous conviction at court martial for an offence of dishonesty. In the present case, Lieutenant-Colonel Miller was sentenced to a severe reprimand and a fine of $5,000.

R v Corporal M. Paquette27

At the time of the offences, Corporal Paquette was posted to 413 Squadron at Canadian Forces Base Greenwood as an aviation systems technician. He was informed that while using DND information technology assets he would have no expectation of privacy due to frequent monitoring conducted on files and email by security personnel. A report generated by the Canadian Forces National Operations Centre as a result of a keyword alert ("pre-teen") indicated that on 31 March 2011, Corporal Paquette had conducted internet searches for images of child pornography, in addition to visiting web sites associated with child pornography. In the course of these internet searches and visiting child pornography sites, Corporal Paquette knowingly viewed six images of child pornography. These images were of pre-pubescent girls posing for the camera and displaying their breasts and sexual organs. Before an SCM, the accused pleaded guilty to charges: one charge under section 130 of the NDA, that is to say, accessing child pornography contrary to subsection 163.1(4.1) of the Criminal Code; and to one charge under section 129 of the NDA (Conduct to the Prejudice of Good Order and Discipline). The offender was sentenced to imprisonment for a period of 21 days. The SCM also made an order under section 196.14 of the NDA for the taking of bodily substances from the offender for the purpose of forensic DNA analysis; and made an order under section 227.01 of the NDA for the offender to comply with the Sex Offender Information Registration Act for a period of 10 years.

R v Ordinary Seaman W.K. Cawthorne28

At the time of the offences, Ordinary Seaman Cawthorne was a member of Her Majesty’s Canadian Ship (HMCS) Algonquin participating in an exercise off the coast of Hawaii. Around 21 July 2012, another sailor went to his bunk and found Ordinary Seaman Cawthorne’s iPhone between the two sleeping racks. The sailor pressed the phone’s "home button" and an image appeared immediately on the phone showing a very young girl clearly under the age of 16 involved in a very explicit sexual act. The sailor then brought this discovery to the attention of his superiors. The phone was eventually seized by the police and analyzed by a forensic computer expert. The expert’s report revealed that the phone contained several digital graphic images that depicted young children engaged in explicit sexual activity, or the dominant characteristic of which was the depiction, for a sexual purpose, of a sexual organ or the anal region of a person under the age of 18 years. The accused was tried by GCM. On 16 April 2014, the GCM found the offender guilty of one count of possession of child pornography, an offence under section 130 of the NDA, contrary to subsection 163.1(4) of the Criminal Code. He was also found guilty of one count of accessing child pornography, an offence under section 130 of the NDA, contrary to subsection 163.1(4.1) of the Criminal Code. The offender was sentenced to imprisonment for a period of 30 days. The military judge made an order under section 196.14 of the NDA for the taking of samples of bodily substances from the offender for the purpose of forensic DNA analysis; and an order under section 227.01 of the NDA for the offender to comply with the Sex Offender Information Registration Act for life. The offender launched an appeal of his conviction and that appeal is being considered by the CMAC.

R v Corporal B.D. Cartwright29

At the time of the offence, Corporal Cartwright was a member of the Regular Force and a member of the military police. On 4 December 2012, Corporal Cartwright was arrested and charged by the London (Ontario) Police Service in respect of other matters. In the course of a consensual search of his property, low velocity practice colour marking cartridges (paint-filled training ammunition) were found to be unlawfully in his possession. These cartridges were the property of the Crown and are manufactured and provided solely to the Canadian Forces for operational use. Before an SCM, Corporal Cartwright pleaded guilty to one charge of an act to the prejudice of good order and discipline contrary to 129 of the NDA. He was sentenced to a reprimand and a fine of $5,000, payable in monthly instalments of $150 commencing on 1 October 2014.

R v Ordinary Seaman L.W. Admiraal30

At the time of the offence, OS Admiraal was a candidate on a course at Canadian Forces Base Esquimalt. He was living in military barracks. On 23 August 2013, after having consumed a significant amount of alcohol, the accused damaged a mattress in an unoccupied barrack room by stabbing the mattress with a knife. Before an SCM, the accused pleaded guilty to one charge of wilfully causing damage to public property contrary to section 116 of the NDA; one charge of an act to the prejudice of good order and discipline contrary to 129 of the NDA; and one charge of drunkenness contrary to section 97 of the NDA. He was sentenced to a severe reprimand and a fine of $2,000 payable in 20 equal and consecutive monthly instalments beginning on 31 July 2014.

Appeals to the Court Martial Appeal Court

During the reporting period, the CMAC rendered decisions on five appeals and one release pending appeal application. Four appeals were abandoned by the appellant (in two cases by Her Majesty the Queen and in two cases by the accused). For appeals launched by the accused, DDCS provides legal representation, at no cost to CAF members, when authorized to do so by the Appeal Committee. Authorization is not required when the accused is the respondent31. During the reporting period, seven new applications to appeal were filed with the CMAC. Out of the seven, five appeals were initiated by DDCS counsel on behalf of CAF members convicted and sentenced by court martial; two appeals were initiated by the DMP on behalf of the Minister of National Defence.

What follows is a summary of appeals to the CMAC during the reporting period.

Sergeant Damien Arsenault v R32

The appellant appealed a decision dated 23 April 2013 by an SCM33, that found him guilty of fraud on Her Majesty the Queen in Right of Canada and, during that same period, of willfully making false statements in several allowance claims that he signed.

Those charges concerned the payment of $30,725 to the appellant as Separation Expense (SE) following his transfer from one Canadian Forces base to another, as well as the payment of $3,469 in Post Living Differential (PLD). At trial, it was held that the appellant had made several false monthly statements concerning his marital status (he was separated) and regarding the fact that he had dependants. Those false statements resulted in him receiving allowances to which he was not entitled. The appeal was based on two grounds: (1) paragraphs 117(f) and 130(1)(a) of the NDA are overbroad and are contrary to section 7 of the Canadian Charter of Rights and Freedoms (Charter); and (2) the appellant was entitled to SE because he had dependants within the meaning of the applicable legislation and regulations.

The CMAC held that the constitutional challenge to paragraph 130(1)(a) must be rejected because of the CMAC’s decisions R v Moriarity/Hannah34 and R v Larouche35, and that the constitutional challenge to paragraph 117(f) is moot because the charges under that paragraph were in the alternative to the charge of fraud. The finding of guilt on the charge of fraud caused the two alternative charges to be stayed. Regarding the appellant’s claim that he was entitled to SE, the CMAC held that the appellant made false statements which resulted in his receipt of SE and PLD to which he was not entitled. The Court found that the appellant’s children did not normally reside with him and were not his dependants according to the requirements for claiming those allowances. He was not absent from his home. The CMAC therefore reaffirmed that the appellant was guilty of fraud and of making false statements. The appeal was dismissed. Sergeant Arsenault has appealed this decision to the SCC.

R v Paul Wehmeier36

Mr. Wehmeier, a former CAF member, was employed in his civilian capacity as a "peer educator" at a "third location decompression center" operated by the CAF in Germany. The center was set up to assist CAF members transitioning out of the operational theatre in Afghanistan to reintegrate into Canadian society. On 19 March 2011, Mr. Wehmeier attended a beer festival in Bitburg, Germany, where he allegedly became intoxicated and committed offences against three members of the CAF. Ten days into his contract and five days after the alleged incident, the respondent was returned to Canada. He was subsequently charged under section 130 of the NDA for sexual assault, assault and uttering threats, contrary to sections 271, 266 and 264.1(1)(a), respectively, of the Criminal Code. At his SCM, the accused brought an application seeking a stay of proceedings under subsection 24(1) of the Charter. The accused argued that the decision of the DMP to prefer charges against a civilian subject to the CSD violated section 7 of the Charter. The respondent argued that the DMP’s conduct amounted to an abuse of process. The Chief Military Judge granted the application and terminated the proceedings instead of granting a stay. The DMP appealed that decision.

The CMAC found that the Chief Military Judge erred in concluding that the DMP’s conduct amounted to an abuse of process. The CMAC went on to hold that when receiving a request to transfer a matter to the civilian authorities, the DMP is under no obligation to respond favourably. Also, there was nothing improper in the considerations relied upon by the DMP in making his decision to continue the proceedings. However, the CMAC was satisfied that the prosecution of Mr. Wehmeier in the military justice system would be arbitrary since it would lack any connection with the objectives sought to be achieved by making accompanying civilians subject to the CSD. In the absence of justification for prosecuting Mr. Wehmeier in the military justice system instead of the civilian criminal justice system, the CMAC concluded that the effects of prosecuting the Mr. Wehmeier in the military justice system were disproportionate, thereby breaching his right not to be deprived of his liberty except in accordance with the principles of fundamental justice contrary to section 7 of the Charter. The CMAC dismissed the DMP’s appeal and ruled that the appropriate remedy was a termination of the proceedings against him without adjudication. DMP sought leave to appeal this decision to the SCC but leave was not granted.

Lieutenant D.W. Watts v R37

During a range practice on 12 February 2010, in Afghanistan, a C19 anti-personnel "Claymore mine" misfired, the payload was projected backwards, and the pellets struck several soldiers. Corporal Baker was killed, and several others were severely injured. The cause of the misfire was never determined. The appellant was convicted by a GCM of three charges arising from that incident. He was acquitted of three other charges. He was sentenced to a severe reprimand and a reduction in rank to Lieutenant. He appealed these convictions and sentence. The Crown cross-appealed the sentence.

The CMAC held that based on the manner the charges were framed, and the definition of military duty, the military judge incorrectly identified the military duty that needed to be proved beyond a reasonable doubt. The Court concluded that this instruction created a fatal error to the charge to the panel on the three charges of which the appellant was convicted. The Court went on to note that the military judge erred in his instruction to the panel regarding the effect of the designation of Warrant Officer Ravensdale as the Officer-in-Charge of the C19 range. The CMAC allowed the appeal, set aside the finding of guilty and directed a new trial by court martial on the fourth charge (unlawfully causing bodily harm) and the fifth charge (negligent performance of duty). The Court set aside the finding of guilty and entered a finding of not guilty on the sixth charge (negligent performance of duty). In light of these findings it was not necessary to address the Crown’s cross-appeal against the sentences. After reviewing the CMAC’s decision and upon reviewing the remaining available evidence, the DMP decided not to proceed with a trial on the remaining fourth and fifth charges.

Master Corporal Laflamme v R38

Master Corporal Laflamme appealed from an SCM’s decision dated 18 June 2013, that declared him guilty of two charges brought under section 130 of the NDA namely, obstruction of a peace officer contrary to section 129(a) of the Criminal Code. The incident involved the obstruction of two military police officers at Canadian Forces Base Trenton, Ontario during a RIDE (Reduce Impaired Driving Everywhere) operation.

The appellant raised two grounds of appeal: (1) the military judge did not provide adequate reasons to justify the rejection of the defence (flowing from the alleged presence of a third police officer at the time of the incident); and (2) the military judge erred by rejecting testimony based on the rule set out in Browne v Dunn39 although he had already determined that it did not apply. The Court found that the military judge could not decide to not apply the rule set out in Browne v. Dunn and then apply it in his judgment when assessing the credibility of the witnesses. By doing so, it was impossible to explain the verdict or to determine whether the principle of reasonable doubt was applied correctly. The CMAC allowed the appeal, set aside the guilty verdicts with respect to the two charges, and ordered a new trial on the two charges. The DMP has decided that MCpl Laflamme will be retried on those charges.

Master Corporal D.D. Royes v R40

Master Corporal Royes was convicted of sexual assault by an SCM41. He was sentenced to a term of imprisonment of 36 months42. He appealed the legality of the guilty verdict as well as the Military Judge’s decision to dismiss his motion for an order striking down paragraph 130(1)(a) of the NDA. The Appellant advanced four grounds of appeal: that the Military Judge erred in assessing the credibility and reliability of witnesses; that the Military Judge wrongly shifted the onus of proof by requiring the appellant to demonstrate that the complainant had consented to the sexual activity; that the Military Judge misapprehended the evidence in finding that the complainant was unconscious at the time of the sexual acts; and paragraph 130(1)(a) of the NDA is unconstitutional. The Court dismissed all grounds of appeal raised by the appellant other than that dealing with the constitutionality of paragraph 130(1)(a) of the NDA. That question and the final outcome of this appeal will be reserved until the SCC has ruled on Moriarity et al.

Private Réjean Larouche v R43

Private Larouche appealed from a decision of an SCM dated 31 August 2012,44 convicting him of charges under section 130 of the NDA for voyeurism contrary to section 162(5) of the Criminal Code; and of possession of child pornography contrary to section 163.1(4) of the Criminal Code.45 He raised two grounds of appeal: the unconstitutionality of section 130(1)(a) of the NDA and the Military Judge’s refusal to exclude, under section 24(2) of the Charter, evidence that had been gathered following the execution of two search warrants although the Military Judge had found that these warrants should not have been issued.

Regarding the first ground, the Court maintained its long-held view that an offence set out in section 130 of the NDA may be tried under the Code of Service Discipline when it is so connected with military service in its nature, and in the circumstances of its commission, that it would tend to affect the general standard of discipline and efficiency of the Canadian Forces. Such an offence would be an offence under military law within the meaning of section 11(f) of the Charter and must be tried before a Canadian military tribunal because it pertains directly to the discipline, efficiency and morale of the military.

Regarding the second ground of appeal, the Court found that the Military Judge failed to complete the analysis that was required in the circumstances regarding the seriousness of the Charter-infringing state conduct. The Court held that the Military Judge placed undue emphasis on the line of inquiry pertaining to the maintenance of confidence in the military justice system, while neglecting the importance of the other inquiries, particularly the need to dissociate the justice system from flagrant breaches of Charter rights. This led the Court to allow the appeal, set aside the convictions in respect of the two charges of which the appellant was convicted and entered an acquittal in respect of those charges.

Upcoming CMAC Appeals

Two notable appeals from courts martial are likely to be heard by the CMAC in the coming year. The first appeal concerns R v Warrant Officer Gagnon46. In that case, the accused was found not guilty by a GCM of sexual assault under section 130 of the NDA, contrary to section 271 of the Criminal Code. The DMP has appealed that decision to the CMAC. The second appeal concerns R v Corporal A.J.R. Thibault47. In that case, the accused was charged with sexual assault under section 130 of the NDA, contrary to section 271 of the Criminal Code. Both the accused and complainant were members of the CAF. The accused made a plea in bar of trial claiming that there was insufficient military nexus for the matter to be tried by a court martial. The Chief Military Judge granted that plea and terminated the proceedings. The DMP has appealed that decision to the CMAC. Although neither appeal has yet been heard, the respondents have each made an application to the CMAC arguing that section 230.1 of the NDA (enabling the Minister of National Defence to launch appeals from court martial decisions) is unconstitutional. The DMP has responded to both applications and will argue before the CMAC that the impugned section of the NDA is indeed constitutional.

Appeals to the Supreme Court of Canada

During the reporting period, the SCC granted leave to appeal in the following military cases and all are scheduled to be heard by the SCC on 12 May 2015:

  • Second Lieutenant Moriarity et al. v R;
  • Private Alexandra Vezina v R; and
  • Sergeant Damien Arsenault v R.

The foregoing appeals challenge paragraph 130(1)(a) of the NDA as being overbroad, in breach of s. 7 of the Charter. In Sergeant Damien Arsenault v R, the appellant additionally challenges paragraph 117(f) of the NDA as being overbroad, in breach of s. 7 of the Charter.

The DMP represents the Minister of National Defence in respect of the foregoing appeals.

Paragraph 130(1)(a) of the NDA provides a mechanism for offences under the Criminal Code or any other Act of Parliament, committed in Canada, to be tried within the CSD. DMP will argue that paragraph 130(i)(a) of the NDA is constitutional, and that while the CMAC correctly dismissed the Appellants’ overbreadth claims (in Second Lieutenant Moriarity et al. v R), it erred in interpreting the provision as requiring the imposition of a military nexus as a precondition to the exercise of jurisdiction by a service tribunal.

Regarding paragraph 117(f) of the NDA, which creates a service offence prohibiting acts of a fraudulent nature that are not particularized as offences elsewhere in the NDA, the DMP will argue that it is also constitutional. The scope and effect of this offence provision are directly connected with the aim that the provision seeks to achieve. Paragraph 117(f) seeks to prevent specific conduct, and if necessary, to allow for the prosecution of those who engage in the prohibited conduct. The legislative objective of paragraph 117(f) is to prevent individuals subject to the CSD from committing fraudulent acts. Parliament has sought to achieve this objective by making such acts service offences. Paragraph 117(f) has no particular harmful or restrictive effect on individuals beyond that of prohibiting them from committing fraud.

Annex F provides additional information regarding appeals to the SCC48.

Custody Reviews

Military Judges are, in certain circumstances, required to review orders made to retain a CAF member in service custody. DMP represents the CAF at such hearings. During the reporting period, military prosecutors appeared at four pre-trial custody review hearings49, no 90-day review hearings50 and no Release Pending Appeal revocation hearings51. Further information on custody reviews is provided at Annex G.

 


Footnotes

1 Colonel B.W. MacGregor was appointed by the Minister of National Defence on 20 October 2014 to be the DMP for a four-year term. He assumed the responsibilities of DMP that same day, following the resignation of Colonel J.A.M. Léveillée.

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

3 The DDMP (Western and Pacific) is currently co-located with the RMP Pacific.

4 The DMP and the Deputy Judge Advocate General Regional Services have an agreement whereby unit legal advisors will participate as second chairs to RMPs in preparation for and conduct of Courts Martial. Please see DMP Policy Directive #: 009/00 for further information.

5 A Fund Reserve of $210.70 was added to these expenditures.

6 MacKay v the Queen, [1980] 2 SCR 370 at paras 48 and 49.

7 R v Généreux, [1992] 1 SCR 259 at para 50.

8 Ibid.

9 Canada, Department of National Defence, "Canadian Military Doctrine," by the Chief of the Defence Staff, Ottawa: 2011-09 [Canadian Military Doctrine]. See, in particular, Ch. 2 "Generation and Application of Military Power" and Ch. 4 "The Canadian Forces" at 4-5.

10 The interests of the accused are usually represented at reviews of pre-trial custody, courts martial and appeals from courts martial to the CMAC and SCC by the Director of Defence Counsel Services (DDCS). Representation by DDCS is provided at public expense. The accused may choose to retain counsel at his or her own expense.

11 Receipt of applications for disposal of a charge and the resulting preferral or non-preferral and court martial (if charges are preferred) do not necessarily occur in the same reporting period.

12 One court martial tried two co-accused.

13 This statistic is based on court martial cases that concluded during the 2014-2015 fiscal year but could have been initiated before or during that fiscal year.

14 See NDA sections 70 and 130. A service tribunal shall not try any person charged with any of the following offences committed in Canada: murder; manslaughter or an offence under any of sections 280 to 283 of the Criminal Code.

15 Canadian Military Doctrine. See, in particular, Ch. 2 "Generation and Application of Military Power" and Ch 4 "The Canadian Forces."

16 QR&O, article 20.04.

17 R v Hamel, 2014 CM 1012.

18 R v Racine, 2014 CM 1011.

19 R v Wilks, 2014 CM 3008.

20 R v Wilks, 2013 CM 3032.

21 R v Yurczyszyn, 2014 CM 2005.

22 R v Yurczyszyn, 2014 CM 2004..

23 R v Parent, 2014 CM 2012.

24 R v Tardif, 2014 CM 1022.

25 R v Miller, 2014 CM 2018.

26 R v Miller, 2012 CM 2014.

27 R v Paquette, 2014 CM 2014.

28 R v Cawthorne, 2014 CM 1014.

29 R v Cartwright, 2014 CM 2015.

30 R v Admiraal, 2014 CM 1016.

31 See QR&O articles 101.20 and 101.21 for information on DDCS involvement in appeals and regarding the Appeal Committee.

32 Arsenault v Canada, 2014 CMAC 8.

33 R v Arsenault, 2013 CM 4005.

34 R v Moriarity/Hannah, 2014 CMAC 1.

35 R v Larouche, 2014 CMAC 6.

36 Canada v Wehmeier, 2014 CMAC 5.

37 Watts v Canada, 2014 CMAC 9.

38 Laflamme v Canada, 2014 CMAC 7 (see also Laflamme v Canada, 2014 CMAC 11).

39 Browne v Dunn (1893), 6 R. 67 (H.L.). In summary, the rule is that if counsel is going to challenge the credibility of a witness by calling contradictory evidence, the witness must be given the chance to address the contradictory evidence in cross-examination while he or she is in the witness-box.

40 Master Corporal D.D. Royes v Canada, 2014 CMAC 10.

41 R v Master Corporal D.D. Royes, 2013 CM 4033.

42 R v Master Corporal D.D. Royes, 2013 CM 4034.

43 Private Réjean Larouche v Her Majesty The Queen, 2014 CMAC 6.

44 R v Private Réjean Larouche, 2012 CM 3009.

45 At the time of the appeal, Private Larouche also faced criminal charges under sections 139, 151, 152, 212(4), 153(1)(a), 153(1)(b), 163.1(2)(a) and 163.1(4)(a) of the Criminal Code in the civilian criminal courts.

46 Gagnon J.G.A. (Warrant Officer), R. v.

47 R v Thibault, 2015 CM 1001.

48 Further information may also be obtained by accessing the Supreme Court of Canada website.

49 NDA, s. 159.

50 NDA, s. 159.8.

51 NDA, s. 248.8.

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