Administration of Justice in the Canadian Armed Forces

Opening Statement to the Standing Committee on Public Accounts

Administration of Justice in the Canadian Armed Forces

(Report 3—2018 Spring Reports of the Auditor General of Canada)

22 October 2018

Jerome Berthelette
Assistant Auditor General

Mr. Chair, thank you for this opportunity to discuss our spring 2018 report on the administration of justice in the Canadian Armed Forces. Joining me today is Andrew Hayes, who was the principal responsible for the audit and is now our Senior General Counsel. Also joining me is Chantal Thibaudeau, the director for the audit.

Canada’s military justice system functions in parallel to the civilian justice system. The purpose of the military justice system is to maintain discipline, efficiency, and morale in the Canadian Armed Forces. Like the civilian system, the military system must be fair and respect the rule of law.

Charges in the military justice system can be dealt with through a summary trial or by court martial. The circumstances of each case, including the nature of the charges and the rank of the accused, will determine the type of trial. In some cases, the accused can select the type of trial.

Summary trials are intended to dispense prompt but fair justice for less serious offences. These trials are presided over by commanding officers or other authorized officers. A court martial is a formal trial presided over by a military judge. A court martial follows many of the same rules that apply to the criminal proceedings dealt with by civilian courts.

This audit focused on whether the Canadian Armed Forces administered the military justice system efficiently, including whether they processed military justice cases in a timely manner. We concluded that the Canadian Armed Forces did not administer the military justice system efficiently.

We found that there were delays throughout the various stages of the military justice process, and that the Canadian Armed Forces did not set time standards for some stages, which contributed to the delays. For example, we found that it took a long time to lay charges. For court martial cases, it took a long time to refer cases to prosecutors, to decide to proceed to court martial, and to set the date for the hearing.

The Supreme Court of Canada has established the principle that most trials should be completed within an 18-month timeline after charges have been laid. For the 20 court martial cases we looked at, we found that the average time to complete the cases after charges were laid was 17.7 months, and that 9 cases took more than 18 months to complete.

In the 2016–17 fiscal year, a court martial dismissed charges in one case because of delay, and in 9 other cases, delay was one of the military prosecutors’ reasons for not proceeding to trial. Canadians expect their armed forces to be disciplined and to address unacceptable behaviour promptly. The Supreme Court of Canada has also emphasized the importance of prompt administration of justice.

We also noted that the frequency of rotation of legal officers across the various legal service areas prevented prosecutors and defence counsel from developing the necessary expertise and experience to effectively perform their duties.

Furthermore, we found that the Office of the Judge Advocate General did not provide effective oversight of the military justice system. The regular reviews of the system that were required had not been conducted, and case management systems and practices were inadequate. Some military units had their own tracking systems, but they did not capture all the information needed. Other units did not have any system or process to track and monitor their military justice cases.

We found that prosecutors had rarely documented their reasons for proceeding to courts martial. Prosecution decisions involve a high degree of professional judgment, and poor decisions may undermine confidence in the military justice system. Without information about why prosecutors decided to proceed with court martial cases, the Director of Military Prosecutions cannot monitor and show how prosecutors applied legal principles and exercised professional judgment in each case.

We also found that the Canadian Military Prosecution Service did not develop clear and defined processes to implement its prosecution policy. The delegation of prosecutorial duties and functions was not always documented, and the procedure for assigning cases and decision-making authorities was not clear.

National Defence agreed with our recommendations. The Department has prepared an action plan with milestones and time frames to address the recommendations. We have noted that according to the action plan, some actions and milestones identified by National Defence should have already been completed.

Mr. Chair, this concludes my opening remarks. We would be pleased to answer any questions the Committee may have. Thank you.