Annual Report 2025-2026 Director of Defence Counsel Services

Overview

1. This report covers the period from 1 April 2025 to 31 March 2026. It is prepared in accordance with Article 101.11(4) of the Queen’s Regulations and Orders for the Canadian Forces (QR&O), which prescribes the legal services performed by the Director of Defence Counsel Services (DDCS). Article 101.11(4) requires that the DDCS report annually to the Judge Advocate General (JAG) on the provision of legal services and the performance of other duties undertaken in furtherance of the mandate of Defence Counsel Services (DCS).

Role of Defence Counsel Services

2. Pursuant to section 249.17 of the National Defence Act (NDA), individuals who are “liable to be charged, dealt with and tried under the Code of Service Discipline” have the “right to be represented in the circumstances and in the manner prescribed in regulations.” DCS is the organization responsible for representing these individuals.

3. Pursuant to section 249.18 of the NDA, the Minister of National Defence (MND) appoints the DDCS. Section 249.2 provides that the DDCS acts under the “general supervision of the Judge Advocate General” and makes provision for the JAG to exercise this role through “general instructions or guidelines in writing in respect of Defence Counsel Services.” Subsection 249.2(3) of the NDA places upon the DDCS the responsibility to ensure that any general instructions or guidelines issued by the JAG are made available to the public. No directive was issued this year.

4. The DDCS is statutorily mandated pursuant to section 249.19 of the NDA to provide, supervise, and direct the provision of services by DCS. These services are divided in two categories: “legal advice” of a more general nature often delivered through the duty counsel line and “legal representation” typically involving assigned counsel representing an accused before a Court Martial (CM), the Court Martial Appeal Court of Canada (CMAC) or the Supreme Court of Canada (SCC). Historically and occasionally, counsel have also appeared before provincial Mental Health Review Boards and the Federal Court.

5. Legal advice is provided in situations where persons subject to the Code of Service Discipline (CSD) are:

1. the subject of investigations under the CSD, summary investigations or boards of inquiry, often at the time when they are being asked to provide a statement or otherwise act contrary to their interests;
2. arrested or detained, in the 48-hour period within which the custody review officer must decide as to the individual’s release from custody;
3. seeking advice of a general nature in preparation for a Summary Hearing;
4. considering an application before a Commanding Officer to vary any conditions imposed upon them;
5. considering or preparing a Request for Review of the finding or sanction resulting from a Summary Hearing;

6. Legal representation by assigned counsel is provided in situations where:

1. custody review officers decline to release an arrested individual, such that a pre-trial show cause hearing before a Military Judge (MJ) is required;
2. individuals request or require a judicial review of release conditions imposed by a custody review officer;
3. there are reasonable grounds to believe that an accused is unfit to stand trial;
4. charges against individuals have been preferred to CM;
5. individuals apply to a MJ to vary an intermittent sentence or the conditions imposed by a CM or to a judge of the CMAC in the case of conditions imposed by that Court;
6. individuals are appealing to the CMAC or to the SCC, or have made an application for leave to appeal and the Appeal Committee, established in QR&O, has approved representation at public expense;
7. the MND is appealing to the CMAC or the SCC, in cases where individuals wish to be represented by DCS.

7. The statutory duties and functions of DCS are exercised in a manner consistent with our constitutional and professional obligations to act solely in the best interests of the client. Where demands for legal services fall outside the DCS mandate, individuals are advised to seek civilian counsel at their own expense.

8. DCS does not have the mandate to represent accused members at Summary Hearings. However, the chain of command may obtain legal advice from the unit legal advisor, usually a Deputy Judge Advocate, with respect to the propriety of the infraction(s) and the conduct of the summary hearing process.

Update on Legislative Reform

9. Bill C-11, An Act to amend the National Defence Act and other Acts (Military Justice System Modernization Act) is at the report stage in the House of Commons. The first reading was completed on 26 September 2025, the second reading was completed on 10 October 2025, and the Consideration in Committee was completed on 9 February 2026, in the House of Commons. The proposed Bill seeks to remove domestic Criminal Code (Cr.C.) sexual offences (CCSOs) from CM and have them investigated and prosecuted in the civilian criminal justice system. CCSOs occurring outside of Canada will remain within the jurisdiction of CM. If CCSOs are prosecuted in civilian criminal courts, persons accused (those subject to the CSD) will no longer be entitled to representation by DCS counsel – an issue of access to justice.

10. On 20 November 2025, the DDCS addressed the Standing Committee on National Defence considering Bill C-11. The DDCS highlighted the need for DCS counsel to be independent from the JAG chain of command as well as for providing funding and/or representation for persons subject to the CSD prosecuted for a CCSO in the civilian criminal justice system.

The Organization, Administration and Personnel of Defence Counsel Services

11. During the reporting period, DCS operated out of the Asticou Centre in Gatineau, Québec and, in March 2026, re-located to 333 Laurier Avenue West, Ottawa, Ontario. Personnel operated throughout the year in a hybrid work posture.

Military Defence Counsel

12. The office consisted of the DDCS, the Assistant DDCS, and four Regular Force legal officers. In addition, the team included one Reserve Force legal officer working full time and six Reserve Force legal officers working part-time at various locations in Canada.

13. The JAG Chief of Staff informed the DDCS that 16 legal officers had listed DCS as one of their posting preferences for the next active posting season. In the reporting period, while no Regular Force legal officers were posted to DCS, one legal officer was posted out. Two Regular Force legal officer positions remain vacant.

Administrative Support

14. The administrative support consisted of two Administrative Assistants at the AS-01 level, and a Paralegal at the EC-03 level, which was upgraded from an EC-03 Paralegal to an EC-04 Paralegal level in October 2025.

Civilian Counsel

15. Under the NDA, the DDCS may contract civilian counsel to assist accused persons at public expense in cases where, having received the accused person’s request for representation by DCS, no uniformed counsel is able to represent the individual. Contracting of civilian counsel occurs for several reasons including a conflict of interest or a lack of capacity with DCS. During this reporting period, the DDCS contracted five civilian counsel to represent accused persons.

Funding

16. During this fiscal year, the following funds were expended: 

17. This amount is higher than the previous year primarily due to salary increases. Additionally, the budget is influenced by the unpredictability of the number, complexity, length of cases, and location of CM proceedings.

Services, Activities and Training

Duty Counsel Services

18. Legal advice is available to those who are under investigation, in custody or require military justice related advice. Duty counsel receives, on average, 10 to 15 calls per day. Legal advice is typically provided through our duty counsel telephone line which is distributed throughout the CAF and is available on the DCS website or through the Military Police (MP) and other authorities likely to be involved in investigations and detentions under the CSD. Legal officers rotate being duty counsel on a weekly basis while continuing with their daily caseload. There has been a notable increase in duty line calls seeking general advice with respect to Summary Hearings.

Court Martial Services

19. When facing a CM, accused persons: have the right to be represented by DCS counsel at public expense; may retain legal counsel at their own expense; or may choose not to be represented by counsel.

20. During this reporting period, 30 members requested representation by DCS counsel at CM. When combined with the 21 cases carried over from the previous reporting period, the caseload for this reporting period was 51 cases. 

21. Twenty-four cases were concluded within this reporting period. Of those 24 cases, 4 members represented by DCS counsel had their charges withdrawn or not preferred.

22. DCS counsel represented accused members in 20 CM during this reporting period. In 3 cases, the accused was found not guilty of all charges. In 17 cases, the accused was either found guilty or pled guilty to at least one charge

DCS Court Martial Cases

Results of Court Martial Cases Fiscal Year 2025-2026

23. This reporting period has seen a marked drop in the number of files proceeding to CM.

Notable Decisions from Courts Martial

24. In R v Christmas, 2025 CM 7003, the accused was charged with behaving in a disgraceful manner pursuant to section 93 of the NDA, drunkenness pursuant to section 97 of the NDA, and sexual assault (Cr.C.) pursuant to section 130 of the NDA. Prior to the trial, the accused applied to incorporate Indigenous cultural practices (Eagle feather oath, and smudging) into their CM. The MJ granted this application. This marked the first time in military justice history that such practices were incorporated. The accused was found not guilty of sexual assault and behaving in a disgraceful manner. The accused was found guilty of drunkenness and sentenced to a fine. 

25. In R v Daniel-Awong (7 October 2025), Kingston 202432 (SCM), the accused was charged with six Cr.C. offences pursuant to section 130 of the NDA, alleging extortion, sexual assault causing bodily harm, assault with a weapon, forcible confinement, uttering threats, and theft. Following a contested trial at CFB Kingston, the accused was acquitted of all charges.

26. In R v Ellison, 2025 CM 6002, the accused was charged with and later pled guilty to one count of fraud under $5,000 (Cr.C.) pursuant to section 130 of the NDA. The accused prescribed medications to a patient knowing that the patient was sharing their medication with another person. The CM imposed an absolute discharge, marking one of the few times that an absolute discharge was granted in the reporting period. 

27. In R v Fequet (22 July 2025), Halifax 202403 (SCM), the accused was charged with four service offences: drunkenness contrary to section 97 of the NDA and two counts of assault (Cr.C.) and one count of assault of a peace officer (Cr.C.) pursuant to section 130 of the NDA. The accused was alleged to have assaulted two sailors. When the MP arrived on scene, the accused was unconscious on the ground. As the MP attempted to roll him into the recovery position, the accused regained consciousness and struck one of the MP in the face. The MJ found that the accused’s actions were reflexive, finding him not guilty of assaulting the MP. The accused was acquitted of one assault charge and found guilty on the remaining two charges. The accused was sentenced to a reprimand and a fine in the amount of $3,500 for the offence of drunkenness, and an absolute discharge on the assault.

28. In R v Iredale, 2025 CM 5010, the accused faced a new trial following an SCC decision dismissing the defence appeal on judicial independence in R v Edwards, 2024 SCC 15. Following a General Court Martial, the accused was found not guilty of the three Cr.C. sexual assault charges pursuant to section 130 of the NDA and not guilty of one charge pursuant to section 129 of the NDA. The accused was found guilty of making two inappropriate comments pursuant to section 129 of the NDA. The accused was sentenced to a severe reprimand and a fine in the amount of $5,000.

29. In R v Brousseau (29 January 2026), Greenwood 202419 (GCM), the accused faced a new trial following a CMAC decision granting an appeal by the military prosecution. The General Court Martial panel subsequently found the accused not guilty of the sexual assault charge pursuant to section 130 of the NDA.

Legal Services at Appeal Courts

30. Where a person appeals their case and requests representation by DCS at public expense, they are required to make an application to the Appeal Committee, established under Article 101.19 of the QR&O, which assesses the merit of the appeal. Those who are responding to appeals by the MND may receive representation by DCS as a matter of right.

31. During this reporting period, the Appeal Committee underwent a change in membership. The Committee is composed of three members appointed by the MND, including one nominee each from the JAG, the Chief of the Defence Staff (CDS), and the DDCS. In this fiscal year, the MND appointed a new DDCS nominee to the Committee.

32. DCS applied for leave to appeal before the SCC in R v Kohlsmith, 2024 CMAC 8, leave to appeal to SCC refused, 41618 (3 April 2025) which was dismissed. DCS represented individuals in 5 CMAC appeals (2 appeals were filed by the MND and 3 were filed by the accused). 

Decisions from the Court Martial Appeal Court of Canada

Appeals by DCS

33. In R v Houde, 2025 CMAC 2, the CMAC allowed the appellant's appeal of his convictions on two charges of sexual assault and ordered a new trial, identifying significant errors in the trial judge's charge to the panel. The Court found that the trial judge's instructions improperly focused the panel's attention exclusively on the complainant's credibility. The panel instructions explained that believing the complainant inevitably leads to guilt, shifting the burden of proof to the accused and undermining the process of determining whether there is reasonable doubt. Additionally, the Court held that the trial judge's warning and comments on the photographic evidence were legally flawed because they invited the panel to disregard the photographic evidence if they did not believe it, rather than considering all of the evidence as a whole when assessing reasonable doubt.

34. In R v Allison, 2025 CMAC 3, the CMAC dismissed the appeal of the civilian spouse of a CAF member convicted of a Cr.C. offence of operating a conveyance in Belgium while impaired pursuant to section 130 of the NDA. The Court established that both the Cr.C. and the NDA apply to civilians accompanying the CAF abroad, regardless of the lawfulness of the conduct in Belgium. Furthermore, the Court rejected the appellant's submission—which relied on R v Wehmeier, 2014 CMAC 5. In Wehmeier, the CMAC held that civilians should only be tried in a military tribunal in exceptional circumstances. The CMAC reversed the Wehmeier decision finding that the later SCC decision in R v Anderson, 2014 SCC 41 requires considerable deference to prosecutorial discretion.

Appeals by the MND

35. In R v Calderon, 2026 CMAC 2, the CMAC dismissed the MND's appeal, affirming that a CM lacks jurisdiction to impose a driving prohibition order under the NDA for a dangerous driving conviction. The Court held that section 130(2)(b) of the NDA establishes maximum punishments rather than providing an additional menu of discretionary sentencing options from the Cr.C. or other federal legislation. The military and civilian justice systems operate distinct sentencing regimes, and because the NDA contains its own unique scale and provisions for punishments, MJs cannot import discretionary civilian penalties that are absent from the NDA like driving prohibitions. This interpretation is further supported by the legislative history of the NDA—such as the 2019 amendments to introduce absolute discharges and intermittent sentences—which would have been unnecessary if the prosecution's broad reading of incorporation were correct.

36. In R v Jacques, 2026 CMAC 3, the CMAC dismissed the MND's appeal, affirming the MJ's order to stay six fraud-related charges due to a breach of the respondent's right to be tried within a reasonable time protected under s. 11(b) of the Canadian Charter of Rights and Freedoms (Charter). The Court held that the 217-day delay stemming from the trial's adjournment to April 2024 was properly attributed to the prosecution, as the prosecution counsel was unavailable to proceed within the presumptive 18-month ceiling set by R v Jordan, 2016 SCC 27. The Court ruled that periods of delay during which the prosecution was unavailable do not constitute defence delay, even where the defence is also unavailable. Furthermore, the Court dismissed the cross-appeal as moot.

Decisions from the Supreme Court of Canada

37. In R v Kohlsmith, the SCC dismissed the applicant’s leave to appeal application alleging a breach of his Charter right to be tried within a reasonable time. The application challenged the MJ’s conclusion that the delay fell below the 18-month presumptive ceiling due to exceptional circumstances. At trial, the MJ found that both the rescheduling of the trial—bringing it to one day below the ceiling—and subsequent delays arising from evidentiary issues constituted exceptional circumstances and subtracted those periods from the net delay. The CMAC deferred to the MJ’s findings of fact and upheld the characterization of delay as exceptional.

Performance of other duties in accordance with Article 101.11(3) of QR&O

38. Pursuant to QR&O 101.11(3), the DDCS authorized DCS counsel to represent two members in civilian courts in relation to applications under s. 490 of the Cr.C. These applications concerned the return of property seized by the MP during the execution of a search warrant, and a request to extend the retention period for items seized under search warrant. One member was represented before the Québec Provincial Court on three separate occasions, whereas the other was represented before the Ontario Court of Justice on one occasion. The DDCS granted this authorization because courts martial lack jurisdiction to hear these applications and the MP could lay charges in the military justice system.

Activities

39. The DDCS:

1. participated in the Military Justice Forum meetings chaired by the JAG;
2. participated in the CMAC Bench and Bar meetings;
3. briefed at the Basic Legal Operations Courses at the Canadian Forces Military Law Centre;
4. responded to consultation requests on Bill C-11 from the Military Justice Modernization Division of the OJAG; and
5. appeared before the Standing Committee on National Defence considering Bill C-11 on 20 November 2025, NDDN-14.

40. The DDCS responded to consultation requests regarding the implementation of recommendations from independent reviews of the military justice system. Many of the recommendations have been reaffirmed and repeated by reviews over the past several years. The DDCS continues to support any change that enhances the rights of accused members, access to justice, and the independence of DCS.

Professional Development

41. Professional development opportunities have included ad hoc individual legal training, the OJAG Continuing Legal Education Conference and the National Criminal Law Program held in Vancouver, 7-11 July 2025.

Conclusion

42. Being my fourth report as DDCS, I convey that this year again, legal officers within DCS have provided outstanding legal services to members of the military community who requested our assistance. I am particularly proud of our legal officers who provided legal advice and travelled throughout Canada to protect the rights of our members who are being prosecuted under the NDA. All members of DCS are resilient individuals who ensure they maintain a healthy and balanced lifestyle so they may best serve their clients.  

43. The DDCS’ priority is to promote an inclusive environment where clients can establish a trusting solicitor-client relationship while ensuring that their defence counsel is professionally competent and independent from government. 

N. Ahmed
Colonel
Director of Defence Counsel Services

11 June 2026