Tuesday, June 2, 2020

Canadian military justice evolving during COVID-19

Government-imposed restrictions in light of COVID-19 have forced the Canadian Forces to seek solutions for a broad range of functions, including the conduct of courts martial.  Beginning on 29 May 2020, with the General Court Martial for Petty Officer Second Class M. Isabelle, proceedings relating to courts martial are being conducted by video teleconference (VTC).

A second proceeding, for Major J.R.E. Duquette commenced 2 June 2020.  Specifically, the proceeding was a sentencing hearing.

Use of VTC for elements of a court martial proceeding is not new.  On select occasions, it has been necessary to conduct parts of a proceeding using VTC, either due to time constraints, inefficiencies relating to travel for a proceeding of limited duration, or operational obligations.  However, due to COVID-19, we now face circumstances in which the use of VTC may become the norm, or at least, routine.  It is the regular use of VTC, for an increasingly broad range of proceedings (or aspects of proceedings), that is novel.  We can likely expect 'troubleshooting' to be a regular requirement initially.  A current list of proceedings can be found here.  As indicated in the Acting Chief Military Judge's letter of 12 May 2020, these proceedings will generally be limited to custody review and 'preliminary proceedings', such as applications under the Canadian Charter of Rights and Freedoms and section 187 of the National Defence Act, reflected at article 112.03 of the Queen's Regulations and Orders for the Canadian Forces (QR&O).

However, Major Duquette's circumstances do not appear to fall within the scope of the Acting Chief Military Judge's direction on 12 May 2020.  A sentencing hearing concludes a court martial - it is neither a custody review hearing nor a preliminary proceeding.

While this marks a noteworthy development in the application of the Code of Service Discipline in the Canadian Forces, the significance of this step should not be exaggerated.  These VTC do not represent the conduct of a trial on its merits before an empanelled General Court Martial (i.e. before a military judge and a 5-member Panel).  These proceedings will principally comprise hearings of preliminary applications or motions, custody review and, it appears, sentencing hearings.  One common factor is that these hearings will be before a judge alone.

One of the challenges that Canadian courts martial face is the interpretation of article 112.64 of the QR&O, which states:

(1) Where the prosecutor and the accused person agree, and the judge so orders, the accused, the prosecutor or the judge may appear at preliminary proceedings (see article 112.03 – Preliminary Proceedings) by any means that allow the judge, the prosecutor and the accused to engage in simultaneous visual and oral communication.

(2) Paragraph (1) does not apply in respect of an accused person’s plea of guilty at preliminary proceedings.

Since this provision expressly applies to preliminary proceedings, it is interpreted through the canon of construction expressio unius exclusio alterius that the use of VTC is limited to preliminary proceedings and may not be used for the conduct of the trial on its merits.  Paragraph (2) also exempts the use of VTC in respect of a guilty plea at a preliminary proceeding.

There are still legislative improvements that could be made to permit courts martial to operate flexibly, fairly, and efficiently.

Presumably, the legal officers working under the Deputy Judge Advocate General - Military Justice are working diligently with the regulatory drafters from the Department of Justice to prepare regulations under the QR&O that will permit the conduct of trials via VTC or another feasible alternative.

Now might also be a good time for the Governor in Council to appoint a new Chief Military Judge.

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