Chapter 13 – Options: Offences

13.1 Introduction

The constitutionality of the current substantive body of service offences within the court martial system cannot be disputed and is not seriously in questions having been recently unanimously affirmed by the Supreme Court of Canada in Moriarity.¹ As discussed in Chapter 7, the substantive body of service offences is effective in achieving the purposes of the court martial system. However, the current body of service offences is assessed as inefficient because it permits ordinary civilian offences to be tried in a system that is 30 times more costly than a suitable alternative. This aspect of the current body of service offences is currently resulting in disproportionate financial and human resource costs in as many as 25 court martial trials per year.² Relating to military offences, the current body of service offences is assessed as efficient as there is no alternative to the existence of this jurisdiction without permitting a total failure to achieve the court martial system’s purposes through impunity for uniquely military offences. Additionally, concerns were raised relating to the fairness, transparency, and intelligibility of the substantive body of service offences, particularly related to the current system’s jurisdiction over ordinary criminal offences. Overall, there are some legitimacy concerns relating to the existence of jurisdiction to deal with ordinary criminal offences within the current body of service offences, but no such concerns relating to the existence of jurisdiction to deal with uniquely military offences.

This chapter describes three representative options to change the body of service offences over which a court martial system has jurisdiction.

As a preliminary consideration, given Assumption # 1, all of these options could include the removal from the NDA of all service offences where the targeted misconduct is not likely to be criminal in nature or deserving of a penal sanction.³ Examples of offences that could be repealed include drunkenness (section 97), quarrels and disturbances (section 86), and false statement in respect of leave (section 91).

13.2 Option 1: Jurisdiction in Canada over uniquely military offences, and civilian offences only where there is a clear military nexus and with civilian prosecutor’s consent; jurisdiction outside of Canada over all offences.

Under Option 2, courts martial would have jurisdiction in Canada over uniquely military offences, and civilian offences only where there is a clear military nexus (established either through a clearly articulated test or a specifically enumerated list of offences) and where civilian prosecution authorities have consented to the charges being prosecuted at a court martial. Outside of Canada, courts martial would have jurisdiction over all offences committed by military personnel.

Under this option, where misconduct takes place in Canada that may be characterized both as a civilian criminal offence and as a service offence with a nexus to the military, the consent of the civilian prosecution authorities would be required to deal with the matter in the court martial system.⁴ The civilian prosecution authorities would be required to consider the views of the victim (as to which system the victim wishes charges to proceed within) prior to granting consent for an offence to proceed within the court martial system. If consent is not granted, then civilian prosecution authorities would still have the responsibility to determine whether to prosecute the case in the civilian criminal justice system, or to not prosecute the offence at all.

13.2.1 Assessment of Option 1

It is assessed that relative to the current court martial system, this option could increase the increase the generation of accurate / correct outcomes, transparency, and intelligibility. However, it is also estimated that this option, like the current court martial system – by providing for military jurisdiction to deal with offences that could otherwise be dealt with in the civilian criminal justice system – would require disproportionate financial and human resource costs and could be perceived by some as not fair.

It is estimated that, under this option, the substantive body of service offences would continue to provide for disproportionate financial and human resource costs as Option 1 would continue to permit a significant number of (civilian criminal) offences to be dealt within the court martial system that could otherwise be dealt with in the larger and more localized civilian justice system. For each court martial that takes place instead of a civilian criminal trial, military personnel would be required to fill certain positions associated with the administration of the court martial (e.g.: officer of the court; escorts for the accused; etc.) – as is the case with the current court martial system.

It is assessed that Option 1 could increase the generation of accurate / correct outcomes. First, as a result of requiring case-specific routing of charges, by virtue of both a nexus test and the requirement for civilian prosecutorial consent to proceed with civilian offences within the court martial system, the appropriate degree of military or criminal expertise will be brought to bear in every given case. However, where civilian criminal offences would be capable of being dealt with by courts martial under this option, there is a possibility that less accurate / correct outcomes on civilian criminal charges will be reached in the court martial system than in the civilian criminal justice system. Furthermore, military judges’ adjudication expertise under this option would remain lower than that of judges in the civilian criminal justice system due to the significantly lower volume of cases that each military judge would deal with in the court martial system.

It is assessed that, under Option 1, the court martial system could be perceived by some individuals as being unfair, since not all accused persons would be dealt with through the same criminal procedure in respect of certain ordinary civilian criminal offences.⁵ This situation would likely increase the perception that military personnel are not regarded as equal before the law.

Unlike in the current system (where concurrent jurisdiction can create confusion over when and how court martial jurisdiction will be exercised), transparency and intelligibility could be improved under Option 1 because there would be a clearly articulated nexus-test or a specifically enumerated list of offences over which courts martial could exercise jurisdiction to determine when offences will be handled by the court martial system. Transparency could suffer under this option if civilian prosecution authorities frequently and without publicly articulated reasons withhold consent to prosecute in the court martial system, since this situation would make jurisdictional decisions obscure to the public. It should be noted that during oral arguments before the Supreme Court of Canada in R v Moriarity⁶ the Director of Military Prosecutions explained to how issues of concurrent jurisdiction over ordinary civilian criminal offences are resolved, informally, through discussions with his civilian counterparts. In its unanimous judgement in Moriarity the Court did not identify any concerns relating to this particular aspect of concurrent jurisdiction.

However, as Option 1 would clearly articulate a rule on how to deal with concurrent jurisdiction, it is assessed that Option 1 could increase transparency. Additionally, intelligibility could be increased as, under this option, there would be a manifestly rational connection between the offence and the form of trial, and civilian control and oversight, would likely be more familiar to the broad public. Additionally, the requirements for a nexus and for civilian prosecutors to consent to military jurisdiction over ordinary civilian criminal offences are easy for the public to understand in a society that values democratic control over the armed forces and supremacy of the civilian law.

13.3 Option 2: Jurisdiction only over uniquely military offences inside of Canada; jurisdiction over all offences outside of Canada

Under Option 2, courts martial would have jurisdiction over uniquely military offences regardless of whether they are committed inside or outside of Canada by military personnel. However, courts martial would not have jurisdiction over any ordinary civilian criminal offences that are committed in Canada. Courts martial would continue to have jurisdiction over all civilian criminal offences that are committed outside of Canada by military personnel. There would be no requirement for the consent of civilian prosecution authorities to proceed with a military prosecution in any case.

13.3.1 Assessment of Option 2

It is assessed that relative to the current court martial system, implementation of Option 2 would increase the legitimacy of the court martial system based on a likely increase in fairness, transparency, and intelligibility. However, it is also assessed that this option – by providing for military jurisdiction to deal with such a small set of civilian offences within a system that cannot easily achieve an economy of scale – would not likely support proportionate financial and human resource costs.

It is estimated that this option could increase the proportionality of financial and human resource costs of the current court martial system. As Option 3 would generally ensure that in cases where an ordinary civilian criminal offence can be dealt with through the larger, more localized civilian criminal justice system, then the offence would be dealt with in that system at far less cost. Option 3 would permit some civilian offences (that take place outside of Canada to be dealt with in the more expensive court martial system, but it is assessed that this would generally be a very low number of cases. This option would continue to result in the court martial system dealing with far fewer cases than the civilian criminal justice system, which means that it would be difficult for the court martial system to achieve an economy of scale that optimizes economic efficiency. However, by ensuring that only a relatively small number of uniquely military and extra-territorial civilian offences are dealt with in the more expensive court martial system, this option could reduce the total number of cases that are likely to be tried in the more expensive court martial system. Option 3 could improve the proportionality of financial and human resource costs by prohibiting most cases that could be tried in the civilian criminal justice system from being tried in the court martial system.

It is assessed that this option could create a potential for a decrease in the generation of accurate / correct outcomes, mostly in the case of ordinary civilian offences that take place outside of Canada and that are tried in the court martial system. Given the low volume of anticipated cases of civilian offences committed outside of Canada, there would likely be minimal development of adjudicating and criminal law expertise for military judges, prosecutors, and defence counsel. Specifically, for military judges who are members of the CAF, this option has the potential to inhibit the development of criminal law expertise, as the judges would deal almost exclusively with military cases, and may struggle to deal with cases involving civilian offences committed outside of Canada when these cases materialize from time to time. This option – by reducing the overall caseload of military judges within the court martial system – could also decrease their adjudication expertise.

It is estimated that this option would increase perceptions of fairness, transparency, and intelligibility as jurisdiction would mostly be limited to uniquely military offences, and all military personnel accused of committing civilian offences in Canada would be treated equally under the law through processes that take place in the civilian criminal justice system. In cases where military personnel who commit civilian offences outside of Canada are tried within the court martial system, it is assessed that this situation would not generally be perceived as unfair, since an obvious alternative would be for the individuals to be tried under (often less favourable) foreign law, by foreign courts. Because there would need to be a direct military connection between the offence and the court martial system’s jurisdiction, or a foreign dimension to the offence that would put it outside of the normal jurisdictional reach of Canadian civilian courts, this option would likely be comprehensible to the broad public.

13.4 Option 3: Jurisdiction only over uniquely military offences, both inside and outside of Canada; civilian criminal justice system has extra-territorial jurisdiction.

Under Option 3, the court martial system would only have jurisdiction over uniquely military offences committed by military personnel, both inside and outside of Canada. The civilian criminal justice system would be provided with extra-territorial jurisdiction in respect of civilian offences committed outside of Canada by military personnel.⁷

If required, this option could include authority for civilian courts to sit outside of Canada.⁸ This option would also provide for a robust civilian deployable investigative capacity – for instance, from the RCMP – with proficiency in conducting ordinary (civilian) criminal investigations.

13.4.1 Assessment of Option 3

It is assessed that relative to the current court martial system, implementation of Option 3 would increase the legitimacy of the court martial system based on a likely increase in fairness, transparency, and intelligibility. - However, the CMCRT also assesses that this option – by providing for military jurisdiction to deal with such a small set of offences within a system that cannot easily achieve an economy of scale – would not likely support proportionate financial and human resource costs.

It is estimated that, under this option, the court martial system could improve the proportionality of financial and human resources costs. First, Option 4 would always ensure that ordinary civilian criminal offences are dealt with through the larger, more localized civilian criminal justice system, at far less cost than if they were to be dealt with in the court martial system. This option would continue to result in the court martial system dealing with far fewer cases than the civilian criminal justice system, which means that it would be difficult for the court martial system to achieve an economy of scale that optimizes economic efficiency. However, by ensuring that no civilian offences can ever be dealt with in the more expensive court martial system, this option – while potentially leading to greater costs-per-case inside of the court martial system than the status quo – would ultimately be more economically efficient than the other options because it would prevent any civilian offence from being tried in the more expensive court martial system. Option 3 would improve the court martial system’s proportionate use of human and financial resource costs by prohibiting all cases that could be tried in the civilian criminal justice system from ever being tried in the court martial system.

It is assessed that this option could lead to a decrease in the generation of accurate / correct outcomes for military offences (tried by courts martial), but a potentially larger increase in the generation of accurate / correct outcomes for civilian offences (tried by civilian courts). This option – by significantly reducing the overall caseload of military judges within the court martial system to only cases involving uniquely military offences – would likely decrease their adjudication expertise. However, as civilian offences would be dealt with by the civilian justice system, it is assessed that, for these offences, there would be an increase in the generation of accurate / correct outcomes as the offences would be dealt with by judges with very high levels of criminal law and adjudicative expertise.

It is estimated that this option could increase perceptions of fairness, transparency, and intelligibility of the court martial system all military personnel accused of having committed a civilian offence, inside or outside of Canada, would be dealt with in the civilian criminal justice system, in a manner similar to all other civilian accused persons. Unlike the current system where concurrent jurisdiction can create confusion over when and how court martial jurisdiction will be exercised, under this option it would be very clear that courts martial have exclusive jurisdiction over uniquely military offences, and that civilian criminal courts have exclusive jurisdiction over civilian offences committed both inside and outside of Canada, thereby increasing transparency. Requiring all civilian offences committed by military personnel to be dealt with in the civilian justice system, it is estimated that this option would make the court martial system more familiar and comprehensible to the broad public. Further, it is estimated that the public would find it comprehensible to have a specialized court martial system if that system dealt only with uniquely military offences

However, it is estimated that this option could lead to a reduction in the system’s ability to be operable across the full spectrum of operations, as under this option it would be the civilian justice system that would have jurisdiction over all offences abroad, likely reducing the universality of the system. Because this option could require civilian courts to preside in dangerous, hostile, or austere environments outside of Canada, and because it is not completely clear that civilian courts would actually preside in such places, this option could result in a higher likelihood of impunity or jurisdictional voids for civilian crimes committed outside of Canada by military personnel.

Footnotes

¹ R v Moriarity, 2015 SCC 55.

² See Annex EE, ADM (RS) CM Review Presentation, slide 13. It should be noted that some of these charges may be in respect of ordinary civilian criminal offences that are laid under section 130(1)(b) of the National Defence Act, RSC 1985, c N-5, as offences that take place outside of Canada, and over which Canadian civilian courts tend not to have jurisdiction. It is for this reason that the CMCRT suggests disproportionate financial and human resource costs are currently being incurred in as many as 25 court martial trials per year based on exercises of court martial jurisdiction over offences that could potentially otherwise be tried by Canadian civilian criminal courts. It is also worth noting that Canadian civilian courts do have extraterritorial jurisdiction in respect of many ordinary civilian criminal offences that take place outside of Canada, including all offences listed under section 7 of the Criminal Code, RSC 1985, c C-46 [Criminal Code] and all offences under the Crimes Against Humanity and War Crimes Act, SC 2000, c 24, among others.

³ This is consistent with Assumption #1 discussed in Chapter 1 (Introduction), above, and with the observations of the CMCRT taken from internal and comparative consultation discussed in Chapter 4 (Consultation) and 5 (Comparative) respectively.

⁴ See above, Chapter 5 (Comparative), at sections 5.2.2 (Australia) and 5.2.5 (United Kingdom).

⁵ See above, generally, Chapter 3 (Past Studies) at section 3.4.3 (Popular media); Chapter 4 (Consultation) at section 4.5.5.2 (HMCS OTTAWA Crew) and Chapter 5 (Comparative) at sections 5.2.2 (Australia) and 5.2.5 (United Kingdom).

⁶ ‎3 SCR 485.

⁷ Similar language to what is in s 7(4.1) of the Criminal Code, supra note 2, would be used:

Notwithstanding anything in this Act or any other Act, every one who, outside Canada, commits an act or omission that if committed in Canada would be an offence against section 151, 152, 153, 155 or 159, subsection 160(2) or (3), section 163.1, 170, 171 or 173 or subsection 212(4) shall be deemed to commit that act or omission in Canada if the person who commits the act or omission is a Canadian citizen or a permanent resident within the meaning of subsection 2(1) of the Immigration and Refugee Protection Act.

⁸ See above, Chapter 5 (Comparative) at section 5.2.7 (Denmark) regarding Danish prosecutors.