Policy on Access to Documents and Information - Courts Martial

5203-3 (CMA)

14 December 2016

 

References : A.  s.180 of the National Defence Act

B. QR&O art. 101.17 (d) and (e)

C. QR&O art. 112.66 (4)

D. QR&O art. 101.17 (a),(b) and (c)

E. Canadian Broadcasting Corporation /Radio-Canada v. Canada (Procureur-général) 2016 FC 933 

The Open Court Principle

1.         The general rule in Canada is that court hearings are open to the public and may be reported in full. At the same time, however, courts also have significant common law and statutory powers to ensure that proceedings are conducted fairly and to protect the integrity of the courts’ processes.

Public and Media Access  to the Courts Martial

2.          Hearings of courts martial and other proceedings held under the National Defence Act, other than pre-trial, are generally open and accessible to the public and media. Exceptions may apply when it is considered necessary to exclude the public during the whole or part of its proceedings in the interests of public safety, defence or public morals, for the maintenance of order or the proper administration of military justice or to prevent injury to international relations (reference A).

Publication of Courts Martial Decisions

3.         The Office of the Chief Military Judge (OCMJ) requested the services of a Montreal-based company called LEXUM, which has provided and maintained an online data warehouse, search tool and content management system to store judicial decisions. This online data warehouse, called DECISIA, records and shows online the decisions rendered by courts martial and during other hearings. In order to make the principal decisions more available and to meet the obligations of publicity, transparency and promotion of the rule of law, the OCMJ makes available to the public and to the parties responsible to deal with a case the principal decisions rendered by military judges and the findings made by court martial panels.  Decisions are available at the following OCMJ Website address:

http://decisia.jmc-cmj.forces.gc.ca/jmc-cmj/en/nav.do

4.         The principal decisions made by the military judges presiding at a court martial (such as the findings, the sentences, the decisions made as a result of a motion under the Canadian Charter of Rights and Freedoms and other decisions) are published on this site. The directory includes the decisions made since 2004. In accordance with the Queen’s Regulations and Orders for the Canadian Forces (QR&O) art. 112.66(4), the decisions were certified by the military judge presiding at the trial or hearing. The decisions are shown in Word, PDF and HTML and include the following:

a)      the military judge presiding at the trial;

b)      the type and status of the decision;

c)      the type of court martial;

d)     date of commencement of the trial;

e)      the location of the trial;

f)       the charges;

g)      the results, which are the findings and if applicable, the sentence imposed; and

h)      the legal counsel who represented the parties.

5.         Individuals who consult the Website may use the search function or advanced search to locate, as quickly as possible, the relevant case or the decision from the basic data that is known to them.

6.        The decisions are published in both official languages in accordance with the criteria and requirements of section 20 of the Official Languages Act.

Access to Documents, Exhibits or Other Thing During the Proceedings of the Court Martial

7.          Pursuant to the military judges’ powers, duties and functions and inherent powers vested in them as well as namely section 179 of the National Defence Act, the military judge presiding at a trial has exclusive custody and control over all documents, exhibits or things that are submitted and admitted as evidence during the court proceedings. The issues respecting the access to documents during the time the proceedings of courts martial or other hearings are conducted are governed by the military judge presiding at the trial or hearing.

Access to Documents After the Court Martial or the Other Hearing Is Held

8.         Pursuant to reference B, the CMA is responsible to maintain a record for each court martial or hearing held before a military judge and to retain the recordings and the minutes of proceedings. Courts martial are ad hoc courts and not established as a standing or a permanent court. Consequently, the CMA performs many quasi-judicial duties and meets his or her obligations, including those amongst other duties, requiring the CMA to convene a court martial after the prosecutor prefers a charge by signing a charge sheet. While the CMA performs his or her duties and functions in a manner that protects the integrity of the institutional and administrative independence of the OCMJ, the CMA and his or her personnel other than military judges, are not established administratively and set up legally in the same manner as the Federal Court or the Court Martial Appeal Court. These courts are governed by the Courts Administration Service Act (S.C. 2002, c. 8) since 2002. The services provided by the CMA are similar but not identical to the services provided by a registrar of a permanent civil court.

9. Where a court martial has terminated its proceedings in respect of an accused or an offender, the CMA then becomes the officer responsible for the custody and control of the following records, namely:

a)      the exhibits that were adduced into evidence at court martial or hearing;

b)      the record of each court martial or hearing held before a military judge; and

c)      the minutes of proceedings, which are certified in accordance with QR&O art. 112.66, including the electronic database of the recording of the proceedings of the court martial or other hearing.

Request to Access for a Document, Exhibit or Other Thing

10.       Where an applicant makes a request to obtain one or more of the records described in paragraph 9, the applicant is required to submit a written request to one of the following persons with sufficient detail to enable the officer to identify the record:

a)      to the CMA, by providing the required information on the attached form at Annex A, specifying the reasons for the request and forwarding the request to the CMA at one of the following e-mail addresses:

+CMA-ACM@CMJ@Ottawa-Hull; or dnd.cma-acm.mdn@forces.gc.ca;

b)      in accordance with the Access to Information Act, to the Director of Access to Information of the Department of National Defense/Canadian Forces, by completing and submitting the form titled ‘Access to Information Request’ with the applicable fee prescribed by the Access to Information Act and its regulations.

11.       Where a request is made under subparagraph 10 a), the CMA examines the issue on the basis of the information provided by the applicant. The CMA may accept or deny the request in its entirety or in part. The CMA provides the reasons for the partial acceptance or denial of the request. In addition, because of the information contained in the document sought by the applicant, the CMA may also inform him or her that it would be more appropriate for the applicant to submit a formal request pursuant to the Access to Information Act or the Privacy Act.

Publication Ban Orders and Other Judicial Orders

12.        In accordance with statutory provisions and the common law (this is inherent to the judges’ jurisdiction), some orders rendered by military judges may restrict the open court principle. For instance, the power to exclude the public, to issue a sealing or confidentiality order, or an anonymity order may be issued.

13.        In addition, publication ban orders made by a military judge may restrict the publication of a part or of the entirety of the case before the court. In these cases, when the request is made after the court martial or other hearing terminated its proceedings, the Court Martial Administrator (CMA) will inform the applicant of the nature of the order and of the fact that the order restricts its publication. The CMA will:

a)      provide or forward, as appropriate, an explanation together with a form titled  ‘Undertaking – for Compliance with an Order Made by a Military Judge’ set out at Annex B in which the applicant must read, comprehend and sign before a witness that the information contained in the documentation is subject to the order and that the applicant understands his or her compliance obligations; and

b)      warn the applicant that publication, broadcasting or transmitting in any way the information governed by the publication ban could be a violation of the law.

14.       The applicant will then be required to forward to the CMA the undertaking form duly dated and signed. Upon receipt of the form duly signed in the presence of a witness, the CMA will action the request.

Preparation of the Minutes of Proceedings

15.        The minutes of the proceedings of courts martial and other hearings that are not the subject of an appeal before the Court Martial Appeal Court (CMAC) are prepared when the personnel resources at the OCMJ and efficient operation of the Office allows. 

16.         Courts martial and other hearings use a digital audio recording system. Copyright in audio recordings shall vest in and remain the property of Her Majesty the Queen in Right of Canada. Broadcast or distribution in whole or in part of any digital audio recording of a court martial or hearing cannot be done without the written consent of one the following persons:

1.     the military judge presiding at the trial when the court has jurisdiction over a case; or

2.     the CMA when the proceedings of the court martial or hearing are terminated.

Appeal Made Before the Court Martial Appeal Court – Minutes of the Proceedings

17.        Where a Notice of Appeal referred to in section 232 of the National Defence Act is served on the CMA, the minutes of the proceedings of the court martial are prepared in accordance with QR&O article 112.66 within the time prescribed by the Court Martial Appeal Court Rules.

18.        The CMA causes the Record to be made in accordance with the obligations prescribed in sections 6 and 6.1 of the Court Martial Appeal Court Rules.        

19.        After having been served with a Notice of Appearance from the Appellant or the Respondent, the CMA provides as soon as possible to each legal counsel of record who acted at the court martial, a copy (in paper format) of the minutes of the proceedings of the court martial.

20.        As the minutes of the proceedings in digital audio recording format cannot be certified by the applicable court reporter or by the presiding military judge in respect of his or her decisions as an accurate reflection of the proceedings in accordance with reference C, a copy of the audio digital recording cannot be forwarded or sent to a person other than a legal counsel who represented a party or is a self-represented party who:

a)      appeared at the trial; or

b)      made an appeal or an application for leave to appeal before the CMAC

21.         The use of all digital recordings is also subject to any order that may be made by a military judge and to any common law or statutory restriction on publication applicable to a particular proceeding.

Administrative Documents Held by the CMA

22.         The CMA, who is the manager and supervisor of the personnel of the OCMJ – other than military judges (reference D), also executes many other financial and administrative duties. These documents do not relate to courts martial’s files or other hearings. Therefore, the documents of this nature are considered administrative documents.

Review of the Policy

 22.        The current Policy is coming into force when the Policy is issued by the CMA and published on the OCMJ Website. The Policy takes into account the Federal Court decision referred to at reference E. According to administrative experience that will be gained gradually, the Policy will be reviewed and amended, as required.

 

(original signed by)

M.S. Morrissey

Court Martial Administrator

 

Annexes

Annex A

Request for a Document, Exhibit or  Other Thing Connected With Any Proceeding

Annex B

UNDERTAKING – FOR COMPLIANCE WITH AN ORDER MADE BY A MILITARY JUDGE

TO:  The Court Martial Administrator

1.          Further to my request for a document, exhibit or other thing connected with any judicial proceedings related to :

______________________________________________________________________________

(name of the person subject to the judicial proceedings)

the undersigned acknowledges that, by returning this undertaking signed by me to the Court Martial Administrator (CMA) of the Office of the Chief Military Judge, the following document(s) or information will be reviewed and considered for release by the CMA.  If approved, the following requested documents will be provided to me:

______________________________________________________________________________

______________________________________________________________________________

2.          I also acknowledge that the information contained in the above-mentioned documents is subject to the following court order:

______________________________________________________________________________

(Describe the type of order, such as publication bans, and specify in full letters the order made by the military judge)

______________________________________________________________________________

______________________________________________________________________________

______________________________________________________________________________

______________________________________________________________________________

3.          As a result of this order, publication, broadcasting or transmitting in any way the information governed by the publication ban could be a violation of the law.  I read the above-mentioned order described in paragraph 2 and I fully understand my compliance obligations resulting from the court order.

4.         I am returning the original signed undertaking to the CMA for maintenance and safekeeping with other court documentation.

Undertaking – Publication ban orders: I understand that failure to comply with the publication ban order made by the military judge could be a violation of the law.

Pursuant to sections 179 and 302 of the National Defence Act, every person who fails to comply with an order, (and in particular displays contempt, in any other manner whatever, at any proceeding under Part II, III, or IV of the National Defence Act,) is guilty of an offence of contempt and liable, on summary conviction, to a fine of not more than five hundred dollars or to imprisonment for a term of not more than six months or both.

In addition, pursuant to section 486.6 of the Criminal Code, every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) of the Criminal Code (Order Restricting Publication) is guilty of an offence punishable on summary conviction.  Section 787 of the Criminal Code provides that, unless otherwise prescribed by law, everyone convicted of an offence punishable by summary conviction is liable to a fine of not more than five thousand dollars or to a term of imprisonment not exceeding six months or both.

APPLICANT

___________________________________________________________________

(Print service number and rank, name and initials or, for civilians: full name of the person signing the undertaking)

______________________________________________________,

(Unit address and location, or for civilians: civic address, telephone number

and e-mail address of the person signing the undertaking)

______________________________________________________,

(Signature of requester)

__________________________

(Date)

WITNESS

___________________________________________________________________

(Print service number and rank, name and initials or, for civilians: full name of the witness)

______________________________________________________,

(Unit address and location, or for civilians: civic address, telephone number

and e-mail address of the witness)

______________________________________________________,

(Signature of the witness)

__________________________

(Date)

NOTE:  Return the original signed undertaking to:

The Court Martial Administrator
Office of the Chief Military Judge
National Defence Headquarters
Ottawa, Ontario K1A 0K2

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