Military cops and prosecutors too slow to charge and try cases, says auditor general

The wheels of military justice grind too slowly - and that has led to at least 10 cases being tossed out in the span of a year, says Canada's auditor general.

Criticism comes as DND ramps up prosecution of sexual misconduct cases

The latest report from Auditor General Michael Ferguson, shown on Parliament Hill last fall, criticizes the Canadian military justice system and found time limits for handling cases are rarely enforced. (Adrian Wyld/Canadian Press)

The wheels of military justice grind too slowly — and that has led to at least 10 cases being tossed out in the span of a year, says Canada's auditor general.

The targets of Michael Ferguson's criticism run the gamut from military police right through the court martial system. He suggested no one seems to be in a hurry in the military justice system because time limits are rarely enforced.

"In our opinion, it often took too long to decide whether charges should be laid and to refer cases to prosecutors," said the auditor's spring report, released Tuesday.

"Prosecutors did not meet their time standards for making decisions to proceed to court martial. Where they did proceed, it took too long to schedule the court martial."

At least one of the courts martial cases dropped over the past year because of unacceptable delays involved assault. Seven other cases were halted before they came to trial because of the "staleness of the offences," and the last two were abandoned because military police took too long to refer them to prosecutors.

The charges in those nine instances included drunkenness, drug possession, drug usage, insubordination and using insulting language with a superior, among other things, according to Maj. Doug Keirstead, a spokesman for the Office of the Judge Advocate General.

The Canadian military has long maintained a justice system separate from civilian courts. Its purpose is to maintain discipline in the ranks.

The AG's findings are significant on two levels.

Amid a crackdown on sexual misconduct, efforts have been stepped up to prosecute offenders and encourage victims to come forward.

Also, the Liberal government recently announced an overhaul of the military justice system, decriminalizing some offences and making other changes intended to streamline the court process.

It also intends to give victims a greater say in the process.

"We have already started to make improvements," said Defence Minister Harjit Sajjan. 

Delays at every level

The auditor looked at 117 summary trial cases and 20 courts martial cases that took place in 2016–17. There were delays at each level — particularly with summary trials, which the military says are meant to deliver swift justice for infractions.

When it comes to investigating criminal offences, Ferguson aimed his criticism at military police, which have a 30-day time limit for deciding whether to lay charges.

Auditor General Michael Ferguson released his spring audit Tuesday in Ottawa 0:40

The majority of the summary trial cases examined by the auditor took longer and no one could explain why.

"We found that 12 of the 18 cases took more than 30 days to investigate, with no written justifications for any of those 12 cases," said the report.

It was even worse when it came to courts martial cases. Military police investigated 16 of the 20 cases reviewed by the auditor.

"We found that all of these investigations took longer than the 30-day time standard to complete. The investigations in these 16 cases took an average of six months to complete, including two cases that took longer than a year," said the report.

"Despite the Military Police's internal policy, we found no written justifications for any of these 16 cases that took more than 30 days to investigate."

After charges were laid, it took prosecutors three months to decide whether a court martial was warranted and an average five more months to get a trial date set.

The average time to complete cases was 17 months, the report said. 

No case management system

Part of the overall problem, the auditor says, is that the military does not have a case management system that tracks progress and completion of cases.

Ferguson recommended that change and pointed out that much of what he is complaining about now was brought to the attention of National Defence 10 years ago in two independent studies.

He said departments are quick to agree with audit and review findings, but slow to actually do something.

"I've gotten to the point where, 'That's nice, that's a first step' ... we hear that from every department," Ferguson said. "What's important is that we start to see results that show there are changes."

The auditor also questioned how much sway the Judge Advocate General has over the allocation of military lawyers, both prosecution and defence.

The director of military prosecutions and the director of defence counsel services are both appointed independently by the defence minister.

Ferguson said they "do not control their resources independently" and that "presented a risk to the independence of these two primary positions."

About the Author

Murray Brewster

Defence and security

Murray Brewster is senior defence writer for CBC News, based in Ottawa. He has covered the Canadian military and foreign policy from Parliament Hill for over a decade. Among other assignments, he spent a total of 15 months on the ground covering the Afghan war for The Canadian Press. Prior to that, he covered defence issues and politics for CP in Nova Scotia for 11 years and was bureau chief for Standard Broadcast News in Ottawa.