OPINION

Colonel Bruce MacGregor, the Canadian Armed Forces’ Director of Military Prosecutions (DMP), announced the appointment of Lieutenant-Colonel Mark Poland as a Special Prosecutor on 19 February. He will conduct a post-charge review of charges against Chief Military Judge Colonel Mario Dutil under the National Defence Act to determine if this matter will proceed to trial by court martial.

LCol Poland, a reserve (part time) infantry officer, is currently the commanding officer of the Royal Highland Fusiliers of Canada in Cambridge, Ontario. His appointment as Special Prosecutor is based on his civilian position as the Crown Attorney of the Waterloo Region with the Ontario Ministry of the Attorney General and his 18-year membership in the Law Society of Upper Canada.

The appointment of a Special Prosecutor may be considered where there may be an actual or perceived conflict of interest in the conduct of military prosecution duties that could adversely impact public confidence in the administration of military justice.

Col. MacGregor explained the rationale of the appointment of LCol Poland as Special Prosecutor to Frontline Defence: “As in the civilian justice system, no one is above the law and the appointment of Lieutenant-Colonel Mark Poland as a Special Prosecutor demonstrates that the Canadian Military Prosecution Service has the policies and processes in place to handle this unique case fairly, independently and impartially. In all cases, the accused is presumed innocent until proven guilty and this matter will continue to progress through the military justice system in accordance with the law.”

Similar to Crown prosecution services in other Canadian jurisdictions, the Canadian Military Prosecution Service is an independent office within the Canadian Armed Forces mandated to review cases referred for court martial, to decide which cases should proceed, and to prosecute those cases in the courtroom.

Within the Canadian Armed Forces, a Special Prosecutor must be a Canadian military officer who is a member in good standing of a provincial bar and who is not a member of the military’s Legal Branch.

LCol Poland’s appointment from outside the Canadian Military Prosecution Service provides an independent prosecutor to make the quasi-judicial decision whether the charges will proceed to court martial or if they are to be dismissed.

This finding results from a two-stage analysis: First, there must be a reasonable prospect of conviction; and, second, the public interest requires that a prosecution be pursued. This military policy is consistent with policies applied by Canadian Attorneys General and prosecution agencies throughout the Commonwealth.

The public interest factors of the Canadian military justice system, however, differ from other Canadian jurisdictions in several ways:

the anticipated effect on public confidence in military discipline or the administration of military justice;
the prevalence and deterrence of the alleged offence(s) within the Canadian military; and,
the maintenance of good order and discipline within the Canadian Armed Forces and any potential impact on military operations.

If the prosecutor decides to proceed with the charges, the first step is preparation of a charge sheet, which describes the offenses and identifies the relevant article(s) of the National Defence Act under which the charges are laid. The Court Martial Administrator convenes the court martial on receipt of the charge sheet.

Appointments of Special Prosecutors in Canada are relatively routine process to ensure procedural fairness if there is a potential perception of conflicts of interest between the prosecutorial decision maker and the accused or the victim.

Special Prosecutor for the Chief Military Judge