Chapter 10 – Status and Institutional Structure of Tribunals (Panels)

10.1 Introduction

As discussed in Chapter 9, the CMCRT has divided the discussion of the status and institutional structure of tribunals into two chapters. The previous chapter outlined representative options to improve the aspects of the current court martial system related to courts; this chapter will outline options to improve the status and institutional structure of panels within the court martial tribunal in order to improve the effectiveness, efficiency and legitimacy of the court martial system overall.

As canvassed in Chapter 7, there are aspects of the court martial system related to panels that challenge the effectiveness, efficiency and legitimacy of the court martial system. For instance, on efficiency, the CMCRT notes that when a General Court Martial is convened there is a human resource cost related to taking members away from their normal duties to act as finders of fact. Additional concerns arise relating to the fairness, and overall legitimacy, of panels. For example, junior ranking military members are not eligible to sit on a panel, regardless of the rank of the accused person, and since a panel is made up of military leaders, who are representatives of the same institution that is prosecuting the accused person and who may be influenced by their understanding of previous orders and direction, there may be a perception that the panel is unfair. Further, it is possible that members of the public, especially victims, may perceive military judges and military panels as ‘on the same team’ as the accused, and so more likely to treat him or her leniently or, even worse, allow the accused to escape with impunity.¹

As a preliminary consideration, to address the above noted challenges, the composition of panels within the current system could be open to all ranks, which would provide for a more representative panel and would likely be a more familiar model, making panels more intelligible and perceived as more fair. Additionally, a requirement for panel members to be drawn from the geographical area in the location of the court martial would result in a reduction of travel costs and would, therefore, make this aspect of the court martial system more financially proportionate.

In the event that further changes to panels were desired, this chapter discusses two representative options involving the potential for lay members to sit alongside a professional judge or the involvement of civilian juries. Each of the options discussed below could have a positive impact on the efficiency and legitimacy of the panel aspect of the court martial tribunal.

10.2 Option 1 – Lay Members of a Judicial Panel inside and outside of Canada

Under Option 1, two lay members would sit in military cases alongside a professional judge, both inside and outside of Canada.² As a group, these actors would constitute a judicial panel that would collectively determine the verdict and sentence in each case. The professional judge would preside over the trial, and would alone determine all questions other than the ultimate finding and sentence, which would be determined by the whole panel following deliberation. The professional judge would also be responsible for writing reasons that reflect the decisions of the judicial panel.

Under this option, lay members could be civilian part-time Governor in Council appointees for non-renewable, fixed terms.³ The lay members would not be subordinate to non-judicial authorities, including military authorities and would be removable only for cause on the recommendation of an inquiry committee, potentially similar to the current Military Judges Inquiry Committee.⁴ Under this option, the persons appointed as lay members would ideally be recently retired CAF members who had successfully undergone basic training and who were honourably released from the CAF, but in any case would have recent experience, expertise and interest in, and sensitivity to the CAF.⁵ To ensure that the lay members of the panel have the sufficient degree of military expertise, lay members of the panel could be required to have had at least 10 years in the CAF and be no more than 2 years post-retirement. Under this option, remuneration for lay members could be on a per diem basis, which could be similar to the per diem rates applicable to reserve force military judges or to deputy judges in the superior courts. Ideally, there would be a large pool of lay members appointed from across all geographic regions in Canada, so that lay members from the relatively local area could be assigned to any court martial in Canada.

Under this option, the purpose of having lay members on a judicial panel – to bring specialized understanding of matters of general military knowledge to the judicial panel in order to assist the panel in determining a finding and a sentence – would be explicitly provided for in law. Decisions to convict or acquit (or regarding any other ultimate finding⁶) and decisions about what sentence is to be imposed, would be determined by the unanimous votes of the two lay members and the presiding professional judge.⁷ All other decisions would be determined by the professional judge alone.

Under this option, lay members would only sit on cases involving uniquely military offences or civilian offences with a clear military nexus. As noted above in describing Option 1, it is estimated that essentially all courts martial would involve either uniquely military offences or civilian offences with a clear military nexus, so the panel involving lay members would be used at essentially every court martial.

10.2.1 Assessment of Option 1

It is assessed that relative to the current court martial system, implementation of this option would increase the effectiveness, efficiency, and legitimacy of the court martial system based on a likely increase in the proportionality of financial and human resources costs, the generation of accurate / correct outcomes, fairness, and intelligibility. However, it is also estimated that, under this option, there would likely be a decline in the universality of the court martial system, and in its ability to achieve timely outcomes.

It is estimated that, under this option, there would be a small increase in the proportionality of the financial and human resources costs of the court martial system as this option would draw upon lay members from the same geographic area as the place where a court martial is being held, and would see them paid accordingly on a per diem basis (reducing both travel and other significant compensation costs such as those associated with pensions, health care, etc., that must be taken into account when using military members to perform equivalent duties). However, savings might not be significant as, under this option, the 5-member panel model that is rarely used in the current system would be replaced by a 2-lay judge model that would be used in essentially every case under this option.

It is also assessed that this option could create a lower possibility of achieving timely outcomes within the court martial system, as it could conceivably take more time to schedule a trial that fits within the schedule of the judge and two lay members who make up the judicial panel than within the schedule of the one judge who presides most commonly within the current system.

Further, it is assessed that, under this option, there would likely be a significant increase in the generation of accurate / correct outcomes. This effect would be achieved by having lay members with military expertise involved in the decision-making processes of essentially all cases, thereby ensuring that military expertise is incorporated into the outcome⁸ and that professional judges are exposed in every case to input of lay judges with recent, direct military experience.

Under this option, it is also assessed that the universality of the court martial system might decrease as the court martial system could not necessarily operate across the full spectrum of operations, since lay members might not be as easily deployable to theatres of operations as judges and panel members are in the current system. If this option was to be pursued, there could be ways to mitigate this potential decrease in universality by permitting judge alone trials for courts martial overseas or by holding the trial in Canada.

It is estimated that, under this option, there is a high possibility of the court martial system being perceived as more fair. This increase may be achieved because lay members would be civilians who are fully independent of the CAF, and would more clearly have nothing to gain or lose from any decisions that they make in respect of CAF members who appear before them. To many observers, the mere fact that decision-makers in the court martial system wear uniforms and are part of the CAF leads to the conclusion that the decision-makers cannot act fairly – and this option would alleviate this concern altogether by eliminating the panel/jury concept entirely.

It is assessed that this option may slightly increase the intelligibility of the court martial system. It must be noted that this option would be far less familiar to the public because the concept of using “lay members” to adjudicate in criminal trials is completely foreign to Canadian law.⁹ However, in spite of this lack of familiarity, it is assessed that this option would be both comprehensible and defensible to the public, since the public understands and accepts the overwhelming importance that independence has for those who judge criminal trials (as reflected within section 11(d) of the Charter), and since the public seems to acknowledge that independence is much more in issue for those who are part of the CAF than those who are civilians outside of the CAF, and over whom the CAF has not control or authority. Furthermore, the British legal tradition, from which the Canadian common law tradition has evolved, has historically used and continues to use lay judges (magistrates) who judge alone in lower-level criminal trials,¹⁰ and lay judges or something akin to lay members are used in many other places under Canadian law.¹¹

10.3 Option 2 – Jury Trials inside of Canada and judge-alone trials outside of Canada

Under Option 2, where a trial is being held in Canada, all accused military personnel would have a right to a jury trial under substantially similar circumstances as within the civilian criminal justice system.¹² Where a trial is being held outside of Canada, there would be no right to a jury trial and trials would proceed by judge alone.

This option would provide for the creation of a federal jury¹³ in each case and would create the possibility of differently composed juries from province to province if it were decided to incorporate different provincial jury eligibility laws depending on the location of a trial.¹⁴ Further, this option could mirror the scheme provided for in the Criminal Code and civilian common law relating to the selection of jurors, challenges for cause, challenges to the array, peremptory challenges, and all other matters relevant to the use of a jury in a criminal trial.

10.3.1 Assessment of Option 2

It is assessed that relative to the current court martial system, implementation of this option would increase the efficiency and legitimacy of the court martial system based on a likely significant increase in the proportionality of financial and human resources costs and an increase in fairness and intelligibility.

It is estimated that this option would likely increase the proportionality of financial and human resource costs of the court martial system and could result in significant long-term financial and human resource savings for the government, since the cost of employing jurors would effectively be borne by the jurors themselves (who only are paid a nominal amount during their jury service) rather than by the government (who would otherwise pay a salary to panel members within the current court martial system). However, some additional time costs would be incurred by the Court Martial Administrator (or any other position that serves a “registrar-type function) who would likely need to liaise with justice officials from each province to (ideally) leverage their information management practices for identifying jurors.

It is assessed that this option would have a significantly negative impact on timely outcomes in the court martial system. Recent data suggests that criminal trials in Canadian Superior Courts (the only place where criminal jury trials are held) take, on average 565 days from first appearance to conclusion, and an average of 15 appearances (although some portion of this delay is attributable to preliminary inquiries in the civilian criminal justice system).¹⁵ It could be reasonably expected that jury trials within the court martial system would take at least as long. This delay could make it virtually impossible for the system to produce suitably timely outcomes in any cases involving a jury.

It is also estimated that this option would have a positive effect on the generation of accurate / correct outcomes in criminal law matters. Canadian jurisprudence has long recognized that juries are “a cornerstone of Canadian criminal law”¹⁶, of the Canadian criminal justice system, that they represent “the citizen's ultimate protection against oppressive laws and the oppressive enforcement of the law,”¹⁷ and that Canada has “a centuries-old tradition of juries reaching fair and courageous verdicts.”¹⁸ However, this option could deprive the court martial system of useful military expertise, since both inside and outside of Canada, there would be no guarantee that such expertise would be present within the tribunal. This could have a negative impact on the generation of accurate / correct outcomes.

Further, it is assessed that this option could maintain the current system’s universality and could operate across the full spectrum of operations as the provision for judge-alone trials allows for a court martial to continue to take place outside of Canada where it could be difficult or impossible to empanel a jury.

Lastly, it is assessed that this option may be perceived as more fair and intelligible, to the broader public and the CAF, compared to the current court martial system, as accused military personnel in Canada would have the same right to a jury trial as any other Canadian under almost all circumstances. Although s. 11(f) of the Charter specifically contemplates that a civilian jury trial would not be offered under military law, the concept of a jury in a criminal trial is more familiar and comprehensible than the concept of the military panel, to both the broader Canadian public and the CAF public, thereby making it more intelligible. However, some may still perceive that the system is less fair due to the differential access to a jury that would exist for offences committed inside and outside of Canada. Furthermore, the fact that military personnel would be entitled to a trial by a jury composed of different groups of people from province to province¹⁹ could also lead to perceptions of unfairness.

Footnotes

¹ See above, Chapter 9 (Tribunals).

² See above, Chapter 5 (Comparative), at sections 5.2.8 (Finland), 5.2.10 (The Netherlands), and 5.2.11 (Singapore and Israel) for examples of jurisdictions that use this type of lay member on a judicial panel. Similarly, see section 5.2.3 (New Zealand) for an example of a jurisdiction where lay members and judges determine sentence together.

³ This model would be equivalent to many other federal boards and tribunals that use part-time Governor in Council appointees.

⁴ National Defence Act, RSC 1985, c N-5, s. 165.31.

⁵ See for instance, the Canadian Human Rights Act, RSC 1985, c H-6, s 48.1(2): “Persons appointed as members of the Tribunal must have experience, expertise and interest in, and sensitivity to, human rights”; the CMCRT acknowledges that this option could also accommodate serving military members to act as lay members of a judicial panel. However, the CMCRT assesses that this change would not achieve the same benefits as discussed in Option 1 providing for recently retired military members.

⁶ Such as a finding that a person is not responsible on account of mental disorder.

⁷ In New Zealand and in the United Kingdom, the sentence is determined by the judge and the board/panel. See above, Chapter 5 (Consultation), at sections 5.2.3 (New Zealand), 5.2.5 (United Kingdom) and 5.2.11 (Israel and Singapore).

⁸ Consultation suggests that military judges sometimes also appear to be lacking military expertise (e.g. due to the time they have been appointed on the bench or to their lack of combat experience. See above, Chapter 4 (Consultation), at sections 4.5.3 (CANSOFCOM), 4.5.4.1.1 (2 Can Div Pers Svcs – CO) and 4.5.4.2.1 (4 CDSG & 2 CMBG).

⁹ Criminal trials in Canada do not involve lay judges akin to Magistrates who preside over minor criminal matters at Magistrates Court in the United Kingdom or lay judges who preside alongside professional judges in criminal trials in many European countries. By contrast, justices of the peace and members of boards and tribunals do not necessarily have formal legal training. (e.g. Veterans Review and Appeal Board).

¹⁰ See Courts and Tribunal Judiciary, online: <https://www.judiciary.gov.uk/about-the-judiciary/who-are-the-judiciary/judicial-roles/magistrates/>.

¹¹ For instance, lay members sit on professional disciplinary bodies such as the Law Society Tribunal for the Law Inside of Canada, jurors would be drawn from civilian society. If military cases were to be held in civilian criminal courts, the ordinary jury process would run its course. If military cases were to be held in the Permanent Military Court, the NDA would provide that the jury shall be selected according to the procedures of applicable in the province where the case is being heard. See Society of Upper Canada, online: <https://lawsocietytribunal.ca/Pages/tribunalmemberbio_en.aspx>.

¹² See above, Chapter 13 (Offences).

¹³ This federal jury for trials of military offences would be provided for pursuant to the federal government’s constitutional power to regulate the Militia, Military and Naval Service, and Defence under s. 91(7) of the Constitution Act, 1867 (UK), 30 & 31 Vict, c 3, reprinted in RSC 1985, Appendix II, No. 5.

¹⁴ In some provinces, such as Ontario, military members may be disqualified to serve as jurors, in others (such as Quebec) they may request to be exempted from jury duty, while in others they may neither be disqualified nor exempted from jury duty.

¹⁵ Ashley Maxwell, Adult criminal court statistics in Canada, 2014/2015, (Ottawa: Canadian Centre for Justice Statistics – Statistics Canada, 2017), at 11, online: <http://www.statcan.gc.ca/pub/85-002-x/2017001/article/14699-eng.pdf>.

¹⁶ R v Find, 2001 SCC 32, at para 1.

¹⁷ R v Morgentaler, [1988] 1 SCR 30, at 78.

¹⁸ R v G (RM), [1996] 3 SCR 362, at para 13.

¹⁹ If it is decided to incorporate the different provincial laws of jury eligibility such that the law in the province where a trial is being held would always apply to a trial by court martial.