A/CMJ letter dated 12 May 2020 on COVID-19 situation – courts martial and other judicial hearings.

12 May 2020

Distribution List

HEALTH EMERGENCY CAUSED IN CANADA BY COVID-19 - COURTS MARTIAL
AND OTHER JUDICIAL HEARINGS

CONTEXT

1.     In the context of the health emergency caused in Canada by COVID-19 and that resulting
from the implementation of the guidelines of the federal and provincial public health authorities
and the Chief of the Defence Staff (CDS), it remains imperative to continue to ensure the proper
administration of military justice and the effectiveness of court martial hearings or other judicial
hearings.

2.     The procedure to govern the conduct of a trial by court martial provides for the in-person
presence in the courtroom of all participants: the military judge appointed to preside over it, the
court clerk-reporter, the prosecutor, the accused, and if represented, the defence lawyer, the
officer of the court and his staff, the witnesses called by either party and the public, which
includes media representatives. Exceptionally, the court martial may collect testimonial evidence
remotely through the use of technological tools (e.g., video conferencing, etc.).

3.     Indeed, as provided in Chapter 112 of the Queen’s Regulations and Orders to the
Canadian Forces (QR&O), the military judge may, with the consent of the prosecutor and the
accused, order that testimony be taken at any time during court martial hearings by any means of
telecommunications allowing the witness to testify in a location other than the courtroom and to
allow the witness, the court, the prosecutor, the defence counsel and the accused person to see
and communicate simultaneously.

 

4.     With respect to court martial preliminary proceedings, a military judge may order, with
the consent of the prosecutor and the accused, to conduct a hearing using any means of
telecommunication that allows the military judge, prosecutor, defence counsel and the accused to
see and communicate simultaneously during the preliminary proceedings, which is at any time
after a charge has been preferred but before the commencement of the trial. Thus, it would be
possible for a military judge to conduct, in accordance with the terms he/she specifies, a virtual
hearing on issues raised in preliminary proceedings. However, this does not apply to proceedings
relating to the accused who wishes to plead guilty to a charge on the charge sheet.

TEMPORARY IMPOSSIBILITY TO HOLD A COURT MARTIAL

5.     Physical and social distancing and containment measures by federal and provincial public
health authorities and the CDS have temporarily made it impossible to hold a court martial
because of the following factors:

a.     the inability of participants to travel and to go to the location for the trial or
        hearing;

 

b.     the unavailability of commercial housing for some or all participants;

 

c.     the inaccessibility of premises that are usually available or provided for holding
        the court martial;

 

d.     the unavailability of administrative support and necessary staff from the unit
        where the court is being held to proceed in a dignified and military manner; and

 

e.     the inability of units to implement public health measures relating to participants
        and locations that are necessary for holding the court martial.

 

6.     It is in this context that since 16 March 2020, the holding of courts martial has been
suspended due to a directive originally issued by the Chief Military Judge on that date,
instructing the Court Martial Administrator to cancel all convening orders relating to courts
martial until 5 April 2020. As Acting Chief Military Judge since 20 March 2020, I have extended
this directive until 31 May 2020.

7.     Despite the fact that the courts martial scheduled on the judicial calendar between 16
March and 31 May 2020 cannot take place, the same directive provides that during that same
period, any other judicial hearing may be held at the discretion of the designated military judge
to preside it, pursuant to the limitations imposed by the present context, including the use of any
means of telecommunication allowing the parties involved to see and communicate
simultaneously during the proceedings.

8.     The purpose of this letter is therefore to inform all participants, and anyone else interested
in a trial by court martial and any other judicial hearing, about the related temporary policies and
procedures that have been in place since the date when the usual activities of court martial
administration were disrupted due to the health emergency caused by COVID-19. This letter
complements the judicial instructions that have been given from time to time to the Court Martial
Administrator (CMA) by the Chief Military Judge and the Acting Chief Military Judge (ACMJ).

PREFERRAL OF CHARGE AND NOTICE OF WITHDRAWAL OF A PREFERRAL OF
A CHARGE

9.     The sending of the original charge sheet signed by the DPM or an officer duly authorized
by him to do so and the sending of the original notice of withdrawal of a charge sheet by the
DPM or one of his representatives for filing with the CMA is done in practice by mailing the
document. It is only after receiving the original in question that the CMA takes the required
administrative action. Exceptionally, it has occurred in the past that the CMA has explicitly
accepted, for a specific file, the electronic filing of such a document to the extent that the original
would be provided to her as soon as possible after receiving the electronic version of the
document in question. She has introduced this exceptional practice in order to enable her to act
expeditiously without having to wait to be in possession of the original document.

 

10.     In the current context, I indicated to the CMA to make from this exceptional practice a
general standard that applies temporarily for all files that are subject to preferral or withdrawal of
a charge sheet by the DMP or any of his representatives without having to provide further notice,
and to inform the DPM of such thing. Thus, the DPM and his representatives are temporarily
encouraged considering the electronic filing of a charge sheet or notice of withdrawal of a charge
sheet for any file under their responsibility as long as the original will be subsequently forwarded
to the CMA as soon as possible.

 

JUDICIAL HEARING

 

        I.     PRE-TRIAL JUDICIAL CUSTODY REVIEW - JUDICIAL REVIEW OF THE
                OFFICER'S INSTRUCTIONS TO REVIEW PRE-TRIAL CUSTODY

11.     Considering that a person subject to the Code of Service Discipline cannot be detained
without just cause before trial, the following hearings are considered urgent and a military judge
will be assigned to hear them expeditiously as a priority over any other case:

a.     pre-trial custody review hearings by a military judge (section 159 of the National
        Defence Act (NDA);

b.     hearings by a military judge to review directions made pursuant to section 158.7
        of the NDA

12.     The usual practice with respect to a request for judicial pre-trial custody hearings
continues to apply, as enacted under the CMA guideline (Guideline for initiating judicial pretrial custody hearing - Custody Review Officers and unit responsibilities) of 27 August 2018.

 

13.     The judicial pre-trial custody hearing is an issue that must be determined as soon as
possible. As provided in section 159.6 of the NDA, the military judge assigned to preside at the
hearing may direct that the hearing be conducted wholly or in part by the means of a
telecommunications device, including by telephone, if the military judge is satisfied that the
benefit of a hearing by that device outweighs the potential prejudice to the person in custody of
conducting a hearing by that device. The same section sets out the factors to be taken into
account by the military judge when making a decision on this issue. The current state of health
emergency caused by COVID-19, which involves restrictions on the transport and day-to-day
activities of the Canadian Armed Forces (CAF) as well as new imperatives such as physical and
social distancing, will have to be considered by any military judge considering these issues.

 

14.     Hearings to review the direction from the officer in charge of reviewing the one made by
the custody review officer also requires the immediate attention of a military judge. Section
105.297 of the QR&Os requires that the military judge presiding at the hearing may, with the
consent of the applicant and the other party, permit any person to appear at the hearing by any
means that allows the hearing participants, including witnesses, to engage in simultaneous visual
and oral communication. Considering the current state of health emergency caused by COVID-
19, it is understood that the parties and their counsel must carefully consider whether to consent
to proceed by such means of telecommunications.

 

II. PRELIMINARY PROCEEDINGS

Filing of a Notice in Writing

15. The prosecutor, the accused or his lawyer, or any other party, may continue to raise any
preliminary matter before a military judge or the military judge assigned to preside at the court
martial, at any time after a charge has been preferred but before the commencement of the trial,
with a written notice, as provided for by the NDA, by Chapter 112 of the QR&Os, and by the
Court Martial Rules of Practice published on the OCMJ website.

 

16.     On the other hand, considering that the physical presence of an OCMJ staff member
cannot be constantly assured at its office that it is necessary to limit any risk of contagion and
that the reliability of the mail service may be uncertain due to the health emergency caused by
COVID 19, and after consultation with the military judges, the DMP, the DDCS, the JAG and
the CMA, I strongly encourage the parties and their lawyers to file their notice in writing in the
context of a preliminary application or any other applications by sending it electronically in PDF
format at CMA-ACM@CMJ@Ottawa-Hull; or dnd.cma-acm.mdn@forces.gc.ca. This is a
temporary change to the Court Martial Rules of Practice published on the OCMJ website and is
considered strictly because of the health emergency caused in Canada by COVID-19 and the
context arising from the application of the guidelines of federal and provincial public health
authorities and the CDS.

 

17.     The content of the notice in writing must, however, remain in accordance with the
applicable provisions of the QR&Os and the requirements contained in the Court Martial Rules
of Practice, with the necessary adjustments if necessary. Attachments can also be filed
electronically in PDF format or by a list with hyperlinks, making sure to use one or more
separate emails depending on the volume of documents submitted. The applicant remains
responsible for providing a copy of the notice in writing and attachments to the other party as
soon as he/she receives a notice of receipt from the CMA or one of the CMA’s representatives
and, at the latest, within a reasonable period of time before the proposed hearing date.

 

Hearing Deemed Essential

18.    As previously mentioned, the current health emergency caused by COVID-19 does not
necessarily permit a judicial hearing at any location in the country in the presence of all
participants, due to restrictions set out in paragraph 5 and measures of physical and social
confinement and distance. In this way, the military justice system is in a similar situation to that
of other courts in Canada. In addition, such a hearing depends on the capacity of CAF logistics
support and personnel at its facilities across the country. The ability to hold a hearing anywhere,
whether domestic or abroad, is therefore dependent, among other things, on the operational
situation of the CAF, which, for the time being, is that CAF military personnel adjust their
personal circumstances to match what is permitted in their province or territory. Access to CAF
facilities remains dependent on the resumption of CAF operations in each of Canada's regions. It
should be noted that the resumption of CAF activities will therefore be an important factor to
consider in resuming courts martial.

 

19.     The OCMJ must ensure that the health and safety of those who perform their duties
before the court, including clerk-court reporters, is protected in order to prevent the transmission
of COVID-19. Under the current circumstances, the courtroom managed by the OCMJ at the
Asticou Centre in Gatineau, Province of Quebec, is the only one currently free, accessible and
technologically well equipped, as it is at the same time under the full control of the OCMJ and in
a geographical area where most military judges, clerk-court reporters are located, as well as some
prosecutors and defence lawyers. It is the only place at this time that can allow for a full or
partial in-person court hearing by the parties and their lawyers, if the requirements of physical
and social distancing are met and approved if a sanitary protocol is implemented by the CMA
and strictly followed. To this effect, I have issued a directive to the CMA to ensure that a health
protocol for public health measures relating to participants and places necessary for the holding
of the court martial and specific to the health emergency situation related to COVID-19, is
implemented for the use of the courtroom located at the Asticou Centre. This protocol may
eventually be used for other courtrooms across the country.

 

20.     For now, the use of the courtroom located at the Asticou Centre will be limited to
hearings deemed urgent or essential, considering the health requirements associated with its use
as well as the fact that any risk of contamination cannot be ruled out.

 

21.     A hearing may be considered essential if, in the opinion of the military judge assigned to
preside at the court martial or any judicial hearing, the failure to hold such a hearing jeopardizes
the rights of either party or could significantly delay a trial by court martial when all the
conditions that make it temporarily impossible to hold one with the in-person presence of all
participants have been resolved.

 

22.     The room is equipped with technology that allows the military judge, the accused and his
counsel, and the prosecutor to see and communicate simultaneously during the hearing. Thus, a
judicial hearing may take place with the physical presence of some participants and in the
presence of others who interact by a means of telecommunications allowing interested parties to
see and communicate simultaneously.

 

23.     On the other hand, if the military judge considers it appropriate in the context of the
health emergency caused in Canada by COVID-19, it will still be possible for him or her to order
to proceed through any other method of hearing, including the use of technology that allows all
participants to see and communicate simultaneously even if none of them are in the same place.

 

24.     As I have mentioned, through the judicial directives issued since the beginning of the
health emergency, it is up to the military judge assigned to preside at a judicial hearing to
exercise discretion with respect to the terms and conditions for holding any hearing requested by
one of the parties or deemed necessary depending on the circumstances. In exercising this
discretion, the following factors may, among other things, be taken into account:

 

a.     the position of the parties on the need to hold the hearing without the physical
        presence of the participants, in recognition of the fact that the applicable legal
        framework often requires the consent of all parties to do so;

 

b.     the limitations caused by the circumstances that will be in effect at the time of the
        proposed hearing, including the physical presence or mode of technological
        participation of participants;

 

c.     the necessity to receive the proposed, documentary or testimonial evidence, and
        the means, technological or otherwise, to allow this evidence to be admitted so
        that it can be properly considered by the parties and the military judge;

 

d.     the ability to audio-record debates and the ability to identify and preserve
        evidence in a satisfactory manner;

 

e.     the complexity of the issues to be debated, the receipt of the evidence and the time
        required to hold the proposed hearing;

 

f.     the possibility of using alternative means such as written arguments and affidavits
        in order to minimize the time required and the complexity of a hearing; and

 

g.     any other factor considered relevant by the military judge.

 

25.     Once the military judge has decided when and how to hold a judicial hearing, if any,
participants in any telecommunication means that allow interested parties to see or communicate
simultaneously must provide the court clerk-reporter assigned at the hearing with their email
address and telephone number for being contacted prior to the hearing date.

 

        III. ACCESS TO THE PUBLIC AND MEDIA

26. As specified in section 180 of the NDA, court martial proceedings and proceedings
before a military judge are public, subject to the capacity of the courtroom and any in camera
order.

 

27.     The military judiciary remains committed to the open court principle during the COVID-
19 pandemic. It is possible that the courtroom at the Asticou Centre in Gatineau may not have
the capacity to allow members of the public and the media to attend in person due to health
restrictions, or only a very limited number of people may be present. In such a case, it may be
possible for the public and media to attend the debates remotely. While this may involve some
technological challenges, it may be possible for them to attend the hearings through a
telecommunication method that allows participants to see or communicate simultaneously. It will
be up to the presiding military judge to assess the situation and provide appropriate guidance in
the circumstances.

 

28.     In order to make it possible to access the courtroom proceedings, the OCMJ website,
under the subtitle " Upcoming Court Martial Proceedings" (https://www.ca-ciconline.com/en/chiefmilitary-judge/services/upcoming-courts-martial.html) will mention the date and time of any
judicial hearing to be heard by a military judge. In doing so, the public and the media will be
able to be informed of the upcoming hearings and choose to hear or observe the procedure of
their choice.

 

29.     Members of the public and media who wish to hear or observe remotely proceedings held
in the courtroom at the Asticou Centre in Gatineau may e-mail their requests to the assigned
court clerk-reporter as indicated on the website under the subtitle ‘Upcoming Court Martial
Proceedings’ prior to the hearing. Anyone requesting access to the proceedings must give their
name, the name of the hearing they wish to hear or observe, and their contact information. The
court clerk-reporter will take all reasonable steps to provide the applicant with required
information to hear or observe the proceedings

 

30.     The Court Martial Procedures Guide (https://www.ca-ciconline.com/en/chief-militaryjudge/services/consult-legal-resources/procedure-guide.html) specifies that the recording of the
hearing of courts martial or any other judicial hearings before a military judge by the public and
media is prohibited unless express authorization is obtained from the military judge presiding at
the hearing. Any such request must be forwarded to the clerk-court reporter assigned to the case
prior to the hearing, preferably at the time the exchange of correspondence to convey
information to hear or observe the proceedings is made.

 

COURT MARTIAL CALENDAR

Courts Martial for Which the Convening Order Was Rescinded

 

31.     Despite the cancellation of the court martial orders that were scheduled in the judicial
calendar between 16 March and 31 May 2020, the military judges who were assigned to preside
at them remain in charge despite the absence of any official assignation at this time, and are
responsible for continuing to manage these proceedings in consultation with the parties. When
the time comes to determine a new convening date, these courts martial will generally take
precedence over a preferral for which no convening orders have yet been issued by the CMA.

 

32.     On the other hand, this general rule does not mean that these courts martial will
necessarily be put back on the calendar in the order in which they were set before they were
cancelled. The parties will be consulted as usual by the military judge in charge of the case to
ensure that the availability of the parties, counsel and other participants is taken into account and
that a date for the convening of the court martial is determined accordingly given all restrictions.

 

33.     As with preferrals for which no convening order has yet been issued by the CMA, certain
other factors will need to be considered: the availability of transportation and commercial
accommodation, the availability of a courtroom, the support of unit staff to assist in the holding
of the court martial, the plan for the gradual resumption of activities on a regional basis, and the
public health measures relating to participants and locations that are necessary for holding a
court martial. Some or all of these factors could cause some courts martial to be delayed and
others, initially planned later, to be pre-empted. Other restrictions may be raised and may be
discussed between the parties and the military judge in charge of the case. Ultimately, if no
agreement is reached between the parties, a preliminary application to set a trial date may be
made by one of them to a military judge who will be assigned to hear it.

 

Courts Martial for Which Proceedings Have Been Adjourned

 

34.     With regard to court-martial proceedings that were adjourned and were scheduled to
resume during the period between 16 March and 31 May 2020, it will be up to the presiding
military judge to properly manage this case taking into account the health emergency caused in
Canada by COVID-19, and the context arising from the application of the guidelines of the
federal and provincial public health authorities and the CDS on the conduct of the case.

 

Courts Martial for Which a Convening Order Has Been Issued

 

35.     The impact of the health emergency caused in Canada by COVID-19, and also the one
resulting from the application of guidelines from federal and provincial public health authorities
and the CDS on the holding of a court martial, will be constantly assessed. Thus, in light of the
factors listed in paragraph 5 of this letter, I will determine within a reasonable time, whether
further instructions to the CMA will be necessary regarding the cancellation of a convening order
already issued for the courts martial that appear on the calendar for upcoming courts martial.

 

Preferral for Which No Trial Date Has Yet Been Set

 

36.     Since 16 March 2020, I have not held a coordination teleconference to set a date for a
trial by court martial. I do not intend to hold such a coordination teleconference until all of the
factors that have made it temporarily impossible to hold a court martial, have been resolved.

 

37.     Having said that, I remain available to hold coordination teleconferences at any time for a
particular file. For any case that has been preferred and for which no military judge is in charge,
it is still possible for the parties to discuss the nature of the case and request the assignment of a
military judge so that certain issues can be determined in a preliminary manner. However, it will
be up to the assigned military judge to determine whether the hearing is essential in the
circumstances, and if so, the mode of the hearing.

 

38.     This will allow active management of proceedings to begin, to hear preliminary issues if
necessary, and to ensure that the proceedings run efficiently up to the time all the conditions that
make it temporarily impossible to hold a court martial with the in-person presence of all
participants have been resolved. This may help to minimize the negative impact on a large
number of cases awaiting trial by court martial until it can begin. It is therefore up to the parties
to continue to take the reasonable steps available to them so that each case can be dealt with
expeditiously when all the conditions that temporarily make it impossible to hold a trial by court
martial have been resolved.

Resuming Court Martial with the Presence In-Person of All Participants

 

39.     The OCMJ is in constant communication with the relevant military authorities regarding
the conditions for CAF activities. Participants will be notified as soon as possible when all
conditions that make it temporarily impossible to hold a trial by court martial with the in-person
presence of all participants have been resolved.

 

CONCLUSION

 

40.     We are living in a period of uncertainty due to restrictions imposed in connection with the
COVID-19 pandemic, and it may be agreed that not all factors that may affect the holding of
courts martial or other judicial hearings presided over by a military judge can be foreseen.
Accordingly, the co-operation of all participants remains essential and appreciated in order to
ensure the proper administration of military justice and the effective conduct of court martial and
other judicial hearings.

 

L.-V. d’Auteuil
Lieutenant-Colonel
Acting Chief Military Judge

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JAG
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