Resumption and maintenance of the activities of the court martial with the in person presence of participants.

8  October 2020

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RESUMPTION AND MAINTENANCE OF THE ACTIVITIES OF THE COURT MARTIAL WITH THE IN PERSON PRESENCE OF PARTICIPANTS

1.    In my letter dated 12 May 2020 relating to the health emergency caused in Canada by COVID-19, courts martial and other judicial hearings, I identified five factors in paragraph 5 of this letter which made it temporarily impossible to hold a court martial with the in person presence of all participants:

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.

2.    Considering that the measures of physical and social distancing as well as confinement implemented by the federal and provincial public health authorities have gradually been modified and that the Chief of Defence Staff (CDS) specifically authorized in his directive Canadian Armed Forces (CAF) Resumption of Activities dated 9 June 2020 (CDS TASKORD 004 - OP LASER 20-01) the travel of CAF members to participate at or in support of courts martial and that he mentioned specifically that we must continue support to the resumption of Courts Martial in liaison with the Court Martial Administrator (CMA) by providing: access to DND/CAF premises that are normally available or provided for holding a Court Martial; the necessary administrative and IT support, as well as unit personnel to staff the Court Martial; and the provision of non-medical masks and personal protective equipment to ensure the safe conduct of court martial procedures, it appears that the impossibilities and incapacities temporarily preventing the holding of a court martial no longer currently apply in the circumstances. Thus, the activities of the court martial were able to resume gradually during the month of June.

3.    However, despite these modifications, the situation in question may not necessarily allow a court martial to be held at any place in the country in the presence of all participants due to the restrictions still in force in the province or the territory during the period in which the court martial or other judicial proceeding is to take place. Access to CAF facilities remains dependent on the resumption of operations in each region of Canada. It should be noted that the resumption of activities by CAF units is still an important and relevant factor to consider when resuming the conduct of a court martial. It is also important to take into account the directives issued from time to time for this purpose by the CDS, such as the one issued on 24 September 2020 for sustained activities in a COVID-19 environment ( fall 2020 posture).

4.    Since public health measures may vary from province to province or from territory to territory in Canada, the five factors I have already listed will have to continue to be taken into consideration in determining whether a court martial may be held in light of the public health measures that have been put in place by the public health authorities of each province and territory.

5.    For courts martial where proceedings have been adjourned, the military judge presiding at the court martial has continued to do the required management for each case, taking into account the impact arising from the application of directives from the federal, provincial and territorial public health authorities as well as those from the CDS on the continuity of the case.

6.    With regard to the courts martial which were scheduled in the judicial calendar to be held between 16 March and 31 May 2020, the military judges responsible for them have discussed with the parties in order to give them the opportunity to determine a suitable trial date for the court martial to be convened by the CMA. As I mentioned in my letter of 12 May 2020, these cases took precedence over other cases where preferrals were not the subject of a convening order issued by the CMA.

7.    Since these steps have been taken, I resumed weekly coordination teleconferences on 25 June 2020 to determine a trial date for the preferrals which have not been the subject of a convening order issued by the CMA. Interested parties have been, and will continue to be, advised of such a teleconference to be held on a weekly basis, unless otherwise advised.

8.    As you may have noticed, since 29 May 2020, certain activities of the court martial have been able to resume gradually, taking into account the factors to which I have already referred. The application of a strict protocol issued by the CMA concerning the applicable public health measures has made it possible to conclude that the holding of a court martial with the in person presence of all participants is possible.

9.    To facilitate effective management of the risk of contamination linked to COVID-19 during the course of any judicial hearing, the CMA has provided the military judge and the parties with the necessary technological means to comply with the principle of social distancing and to minimize the exchange of documents during it, while ensuring the same efficiency in its conduct. Thus, in addition to being able to hear witnesses remotely as part of a court martial hearing or any preliminary procedure, it is now possible to file documents and ask questions of witnesses on these during the hearing without compromising the health of the parties. In addition, these technological means make it possible to support the progress, partially or totally, of a greater number of preliminary procedures remotely if the need arises.

10.    With regard to access to the courtroom for the public and the media, the in person presence of the latter will always be dependent on its capacity to allow such, and more particularly within the framework of the application of the protocol issued by the CMA regarding public health measures. Due to reduced seating capacity in courtrooms in the actual context, members of the public and media are strongly encouraged to access hearings remotely. Thus, the indications mentioned in paragraphs 26 to 30 of my 12 May 2020 letter concerning remote access to the public and the media continues to apply.

11.    I also wish to reiterate that under subsection 180(3) of the National Defence Act, witnesses are not to be admitted to the proceedings except when under examination or by specific leave of the court martial or military judge, as the case may be. Thus, the parties must ensure that their respective witnesses who are summoned to appear before a court martial or any other judicial hearing are advised not to access the proceedings remotely without first having received the express permission of the military judge who presides at the hearing.

12.    I would like to remind you that the recording by the public and the media of the hearing of courts martial or of any other judicial hearings held before a military judge is prohibited, without the express authorization of the military judge who presides at the hearing. Likewise, taking photos and taking screenshots during hearings is prohibited. I would also like to reiterate that it is also prohibited to broadcast or distribute a recording of the hearings, in whole or in part, without having previously obtained the express authorization of the military judge presiding at the hearing.

13.    The responsibility lies with the presiding military judge to assess the situation and provide appropriate directions regarding public and media access to the courtroom in person and remotely in relation to each court martial and any other judicial hearing.

14.    In order to promote a gradual and safe resumption of court martial activities, and considering the current measures of health restrictions relating to the maximum number of people allowed for gatherings inside the same room, the active period of postings and military summer leave, the gradual resumption of unit activities as well as the return of the military to their place of work, the resumption of court martial activities with the in person presence of all participants was limited to the Standing Court Martial (SCM) for the months of July and August 2020. Activities relating to the General Court Martial (GCM) were able to resume in September 2020.

15.    It remains important to remember that the holding of each court martial, Standing or General, is dependent on the public health measures in place at the time and at the specific location where the court martial will take place and the responses received to the five factors that I have previously referred to. Thus, it is with all the caution required in the circumstances that the parties must provide the information necessary to facilitate the determination of the location and the date for the convening of each trial.

16.    The fundamental principles and perspectives considered and identified by the Action Committee on the Administration of Courts in response to COVID-19, which is co-chaired by the Right Honorable Richard Wagner, Chief Justice of the Supreme Court of Canada, and the Honorable David Lametti, Minister of Justice and Attorney General of Canada, will be very helpful as a guide, with the adaptations that may be necessary according to the needs of the military justice system, which will promote a harmonious approach in maintaining the functioning of courts martial, that will put the health, safety and best interests of all CAF members at the forefront, including all persons subject to the Code of Service Discipline and participants in judicial hearings.

17.    Thus, the court martial can remain a military tribunal that is safe and accessible to all by identifying and mitigating the risks associated with COVID-19. Decisions related to the resumption and continuity of court martial activities are based on current public health guidelines, as advised by public health officials. It also involves, in particular, dealing with any charge as expeditiously as the circumstances permit, providing justice in a timely manner to all those involved in court martial procedures or in any other judicial hearing presided by a military judge and to try within a reasonable time the persons subject to the Code of Service Discipline who are the subject of a trial by court martial.

18.    The existence of a strong and independent military judiciary is essential to the maintenance of discipline and to the confidence of the public in the court martial which is an integral part of the military justice system. Judicial independence is essential to the impartiality of military judges and their ability to protect individual rights and the Constitution itself. It exists for the benefit of all CAF members, including those subject to the Code of Service Discipline, and not for military judges themselves. The military judiciary has authority over the activities of the court martial overall, including decisions regarding when and how to resume and maintain the activities of the court martial, the judicial calendar and the allocation of cases. Each military judge has authority over matters assigned to him or her, including the management of the courtroom (physical or remotely) and of participants in the hearing.

19.    The safe and efficient resumption of court martial activities is a shared enterprise that requires collaboration, communication and information sharing on the part of all participants. Coordination and cooperation on the part of all are key elements that will ensure the long-term success of the resumption and maintenance of court martial activities and other judicial hearings provided for in the National Defence Act.

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


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