General Instructions in Respect of Delay in the Court Martial Process
Judge Advocate General Policy Directive: # 013/01
Original Date: 30 Mar 01
Subject: General instructions in respect of delay in the court martial process
Cross Reference: Sections 165.17 (2) and 249.2 (2) of the NDA
1. This General instruction is issued to both the Director of Military Prosecutions (DMP) and the Director of Defence Counsel Services (DDCS) pursuant to my authority under sections 165.17 (2) and 249.2 (2) of the National Defence Act.
2. The purpose of this General instruction is to highlight the institutional requirement for the delivery of prompt but fair justice within the military justice system generally and in the court martial process in particular.
3. Institutionally, the requirement for prompt justice is directly related to a commander's obligation to maintain morale, efficiency and discipline within the units, formations and elements under command. The military justice system is one of the key tools available to commanders in satisfying this obligation.
4. The unique role of the military justice system was expressly recognized by the Supreme Court of Canada in the 1992 Généreux decision where it was stated:
"To maintain the Armed Forces in a state of readiness, the military must be in a position to enforce discipline effectively and efficiently. Breaches of discipline must be dealt with speedily and, frequently, punished more severely than what would be the case if a civilian engaged in such conduct."1
5. Parliament has also recognized the importance of the military justice system dealing with breaches of discipline promptly through the enactment of section 162 of the National Defence Act, which states:
"Charges under the Code of Service Discipline shall be dealt with as expeditiously as the circumstances permit".
6. In addition to the institutional requirements for expeditious justice, the Canadian Charter of Rights and Freedoms (Charter) imposes constitutional obligations on the military justice system to dispose of charges in a reasonable time. Section 11 (b) clearly states that:
"Any person charged with an offence has the right … (b) to be tried within a reasonable time".
7. The Charter also guarantees the more general right under section 7 that:
"Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice".
8. Recognizing that expeditious justice is an expectation within the military justice system, both DMP and DDCS must exercise their authorities and discretion in a manner that is consistent with the military expectation of expeditious justice.
9. To this end, DMP and DDCS must ensure that the allocation of resources and court scheduling, particularly in cases involving breaches of discipline in an operational setting, reflects the military requirement for expeditious justice.
10. Specifically, and due to the particular need for discipline to be seen to be enforced within operationally deployed units, particular emphasis must be placed on the conduct of courts martial in theatre where the breach of discipline occurs in theatre. This instruction is made recognizing that the current Canadian Forces policy of six month rotations, coupled with factors outside the control of either DMP or DDCS, will make in-theatre courts martial difficult in certain cases.
Jerry S.T. Pitzul
1 R. v. Généreux (1992), 70 C.C.C. (3d) 1 (S.C.C.)
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