Chapter 6 – The Theoretical Basis for a Court Martial System

6.1 Introduction

As noted in Chapter 1, the purpose of the Court Martial Comprehensive Review is to conduct a legal and policy analysis of all aspects of the Canadian Armed Forces’ court martial system and, where appropriate, to develop and analyse options to enhance the effectiveness, efficiency, and legitimacy of that system.

Since the concepts of “effectiveness”, “efficiency”, and “legitimacy” all refer or relate to an ability to produce a desired result or to an underlying purpose, the CMCRT cannot assess these attributes within the current court martial system, or any options to enhance the current system, without first understanding the desired results that the court martial system is intended to produce.

The focus of this chapter, therefore, will be on developing and describing a theoretical model as a basis for answering important questions related to the purpose and design of a court martial system. What should the system be intended to do? What principles must animate the system, and what features must it possess, if it is to accomplish its intended purpose? The answers to questions such as these then provide a frame of reference – to be used in subsequent chapters – for assessing the current system and any options to enhance the system.

Ultimately, in any effective national military force, the laws, regulations, and orders that govern the armed forces must support the government’s ability to control and use the armed forces in furtherance of state objectives. This is the purpose for circumscribing military power and authority in law – to ensure that the armed forces will be both subordinate to the government that directs its use, and that it will be effective in responding to the government’s need when called upon. The laws, regulations, and orders that apply in respect of military justice systems are no exception, and must also ultimately support the government’s ability to control and use the armed forces whenever and wherever this is required in furtherance of national interests.

As will be described below, the Canadian government,¹ Parliament,² Canadian courts,³ CAF leaders,⁴ and successive JAGs⁵ have collectively asserted that the goal of Canada’s military justice system is to fulfill both a disciplinary purpose and a public order and welfare purpose as a means of enabling the government to control and use the armed forces whenever and wherever necessary.

The current summary trial system is primarily focused on achieving the disciplinary purpose of the military justice system, although it can incidentally have an ability to reinforce the public order and welfare purpose of the system in at least some cases through its limited jurisdiction over some ordinary criminal offences and its ability to impose penal and criminal consequences on offenders. Under circumstances such as those set out in Assumption 1 (see Chapter 1), where a CAF summary discipline system would not have jurisdiction to deal with criminal offences or to impose true penal consequences, such a system could be seen as only addressing the disciplinary purpose of the military justice system.

The court martial system, in theory, should be focused on achieving both the disciplinary and the public order and welfare purposes of the military justice system, although the extent to which it addresses each purpose will vary depending on the circumstances of each case.

The court martial system will need to be grounded in three principles if it is to achieve its ultimate purpose of enabling the government to effectively control and use the armed forces: effectiveness, efficiency, and legitimacy. Each of these principles can be supported by a variety of features that, when present in the court martial system, strengthen the system’s ability to achieve its ultimate purpose.

6.2 The Purpose of Canada’s Military Justice System

In the analysis that will follow, the CMCRT will attempt to elaborate the purpose of Canada’s military justice system, and then, more specifically, the purpose of Canada’s court martial system. This analysis is theory-based; when compared with actual practice, results, and perceptions of the current system – particularly from the users of the system – it may appear aspirational in its contemplation of an “ideal” court martial system. The CMCRT will identify what it sees as the fundamental purposes of these systems, by reference to what the systems have tried to accomplish, and by reference to its assessment of what the systems should strive to achieve.

The overarching purpose of the Canadian Armed Forces is to use military power in furtherance of national objectives, both in Canada and around the world.⁶ The military justice system must support this purpose. Therefore, the CMCRT assesses that the fundamental purpose of the military justice system is to contribute to the maintenance of an operationally effective fighting force that can be used and controlled by the Canadian government in support of state objectives.⁷ This first-order purpose is, ultimately, the same one that military laws, regulations, and orders generally strive to achieve, so the laws, regulations, and orders that pertain to the military justice system should be no exception.

This characterization of the fundamental purpose of the military justice system as a tool for supporting the government’s ability to control and use the armed forces is consistent with existing authorities. It also helps to provide the basis for a coherent analytical framework for thinking about military justice in a way that acknowledges what the CMCRT proposes to be the two supporting purposes of the system.

The first supporting purpose is about discipline – without which it would be difficult if not impossible for the government to control and use its armed forces. As the Chief of the Defence Staff has explained, “[d]iscipline offers the means by which an armed force carries out its mandate on behalf of the State.”⁸ The term “discipline”, in this military context, means “the habit of obedience to lawful orders, even in situations of grave peril to the person who is subject to the order,”⁹ or “an instilled pattern of obedience, willingness to put other interests before one’s own, and respect for and compliance with lawful authority.”¹⁰

As one historian has noted, “soldiers who ignore, eschew, or overstep the laws, regulations, and orders governing the armed forces face the full wrath of a military justice system, which is designed for the main purpose of enforcing discipline and ensuring expected behaviour in battle.”¹¹ More recently, a unanimous Supreme Court of Canada found that the current purpose of the “overall system of military justice” is “to maintain the discipline, efficiency and morale of the military.”¹²

For the sake of simplicity, the CMCRT will refer to this purpose for the military justice system as the “disciplinary” purpose. It is logical that a military justice system should strive to achieve a disciplinary purpose, since discipline is an inherently desirable quality within an armed force. A more obedient military that acts uniformly and rapidly in compliance with governmental and internal directives will inevitably be more effective in advancing national interests than a military that is less obedient, and less swift in its compliance with governmental and internal directives. Thus, a system (like a military justice system) that is capable of promoting internal discipline will likely contribute positively to the overall effectiveness of the armed forces. Discipline also ensures that the armed forces will be subject to civilian control in a free and democratic society.

The goal of preserving public order and welfare among military personnel (or contributing to respect for the law and the maintenance of a just, peaceful and safe society among military personnel) also supports the more fundamental purpose of ensuring that the armed forces are capable of being used and controlled by the government, whenever and wherever they are needed.¹³ For instance, it arguably becomes easier for an armed force to train and prepare for the full spectrum of military operations when certain conditions – including the existence of a just and safe environment within which this training and preparation can take place – are first satisfied. Preserving public order and welfare among military personnel also contributes more generally to the rule of law.

A number of authorities and factors suggest that the military justice system does or should also serve a public function. A majority of the SCC in R v Généreux observed that, “[a]lthough the Code of Service Discipline is primarily concerned with maintaining discipline and integrity in the Canadian Armed Forces, it does not serve merely to regulate conduct that undermines such discipline and integrity. The Code serves a public function as well by punishing specific conduct which threatens public order and welfare.”¹⁴ Similarly, Parliament seemed to intend for the military justice system to also serve a public order and welfare purpose when it enacted recent legislation amending the National Defence Act. When the relevant provision comes into force, it would pronounce two equally fundamental purposes of sentencing within the military justice system – namely, “to promote the operational effectiveness of the Canadian Forces by contributing to the maintenance of discipline, efficiency and morale,” and, “to contribute to respect for the law and the maintenance of a just, peaceful and safe society.”¹⁵ This second fundamental purpose of sentencing within the military justice system mirrors, almost identically, a provision of the Criminal Code that articulates the fundamental purpose of sentencing within Canada’s civilian criminal justice system.¹⁶

As these authorities suggest, the military justice system also srves a public function that is distinct from its function in contributing to the maintenance of internal military discipline, since the military justice system (at least in its effects)¹⁷ does things that civilian criminal justice systems also typically do, such as protect the public from threats to public peace and safety that may be posed by offenders. For instance, a court martial – like a civilian criminal court – can try a person subject to the CSD for ordinary criminal offences even in the absence of a military nexus (s 130), can sentence an offender under the NDA to periods of imprisonment of up to imprisonment for life (s 139(1)(a)). Courts martial can also issue weapons prohibition orders (s 147.1), DNA identification orders (ss 196.11-196.25), orders that a person who was found not responsible on account of mental disorder be detained in custody in a hospital (s 202.16), and orders requiring offenders to comply with the provisions of the Sex Offender Information Registration Act (sections 227-227.21). All of these powers of a court martial seem to serve public order and safety purposes as much as they serve internal military discipline purposes.

For the sake of simplicity, the CMCRT will refer to this additional purpose for the military justice system as “the public order and welfare” purpose.

Regardless of how one characterizes the fundamental purpose of the military justice system, summary trials and courts martial (and indeed, every other aspect of the military justice system) should help to support the purpose of the system as a whole, but they may do so in different ways, and may therefore have different particular purposes from one another.

As noted above, in Chapter 2, Canada’s military justice system, created within Part III (the “Code of Service Discipline”) of the National Defence Act, and associated Queen’s Regulations and Orders for the Canadian Forces, currently has at its centre two types of service tribunals – summary trials and courts martial – that can try service offences committed by military personnel. Summary trials are restricted in jurisdiction to less serious offences, while courts martial tend to deal with more serious offences. Summary trials are conducted by non-judicial military officers, generally from within an accused person’s chain of command. Courts martial, in contrast, involve the participation of qualified lawyers: military prosecutors, military (or civilian) defence counsel, and professional military judges. The number of summary trials conducted in a given year is typically between ten and forty times greater than the number of courts martial conducted in the same year.¹⁸ The overwhelming majority of proceedings within the military justice system occur at the summary trial level.

Although there are many other distinctions between summary trials and courts martial, they do not need to be described in detail here. It is sufficient to note that Canada’s military justice system consists of two different types of service tribunals, that involve different actors, and that deal with a vast spectrum of offences that can range from very minor offences involving breaches of military discipline (such as brief periods of absence without leave), on the one hand, to very serious offences involving criminal misconduct (such as war crimes, sexual assault, murder, and criminal negligence causing death) on the other hand.

Since the scope of the CMCRT’s review includes only the court martial system, and not the military justice system as a whole, it will be necessary to look with greater specificity at the purpose of the court martial system so that meaningful analysis of that system’s effectiveness, efficiency, and legitimacy can be undertaken. However, some important contextual information can be obtained by first considering briefly the purpose of the summary trial system.

6.2.1 The Purpose of a Summary Discipline System

The purpose of summary proceedings, as they exist today, is articulated at QR&O 108.02: “to provide prompt but fair justice in respect of minor service offences and to contribute to the maintenance of military discipline and efficiency, in Canada and abroad, in time of peace or armed conflict.” The CMCRT accepts this purpose, and considers that it would remain a valid purpose for any reformed summary discipline system that is similar in principle to the system proposed within Bill C-71 (see Assumption #1, described in Chapter 1), except that the purpose would relate to minor “infractions” rather than minor “service offences.”

In looking at the stated purpose of the summary trial system, it seems to support the disciplinary purpose of the military justice system more than the public order and welfare purpose. The phrase “contribute to the maintenance of military discipline and efficiency” does not connote a jurisdiction to deal with matters that present an immediate threat to the public, or that are of an immediate public concern, but rather with matters that are of a relatively local, internal CAF concern.

Some indication about the purpose of the summary trial system can also be inferred by identifying the key actors within the system: commanders and commanding officers.

The Chief of the Defence Staff reminds COs that “[t]he responsibility to maintain discipline falls most directly on a unit Commanding Officer (CO). This is the reason for the concentration of legal authority and powers at the CO level.”¹⁹ The CDS also notes in his Guidance to Commanding Officers, “you [Commanding Officers] occupy a level of command where it is still possible for you to know by name all of your officers, warrant officers, soldiers, sailors, airmen and airwomen. When subordinates are known by their COs, it will shape their spirit, instil cohesion, and enable them to achieve what might otherwise be considered impossible.”²⁰ Unit COs are in many ways at the most critical juncture in any CAF chain of command – high enough in the chain to understand and implement tactical, operational, and strategic direction, but sufficiently close to the tactical and sub-tactical level personnel to be able to influence their discipline, efficiency, and morale through effective leadership. This is why numerous external experts have observed that “[t]he commanding officer is at the heart of the entire system of discipline.”²¹

Viewed through the lens of professional military leadership, summary trials represent a kind of locally-administered professional discipline tribunal – similar but not identical to the professional bodies that regulate the conduct of doctors, lawyers and teachers in Canada: a senior member of the profession of arms (who presides at a summary trial) determines when another member in the unit has fallen below of expected standards of conduct, and then determines what sanction should be imposed in order to maintain the profession’s standards. Although most civilian professional discipline tribunals in Canada are slightly different from one another, summary trials perform many of the same functions as these tribunals do within other self-regulating professions by allowing members of the profession to enforce the standards that govern all members’ professional conduct.

An additional indicator of the purpose of the summary trial system can be seen by looking at the punishments that may be imposed on an offender at a summary trial. These punishments are generally corrective and disciplinary in nature, are often leadership-related, and are limited to those which fall on the lower end of the severity scale. For instance, in describing the punishment of detention, note A to QR&O 104.09 provides as follows:

In keeping with its disciplinary nature, the punishment of detention seeks to rehabilitate service detainees, by re-instilling in them the habit of obedience in a structured, military setting, through a regime of training that emphasizes the institutional values and skills that distinguish the Canadian Forces member from other members of society.

Similarly, in describing minor punishments, note B to QR&O 104.13 explains that “[t]he goal of minor punishments is to correct the conduct of service members who have committed service offence [sic] of a minor nature while allowing those members to remain productive members of the unit.”

All of the above discussion relating to the purpose of summary trials, as they exist today, suggests that these trials are primarily intended to achieve the disciplinary purpose of the military justice system. That is not to say, however, that summary trials are incapable of also contributing to the achievement of the military justice system’s public order and welfare purpose.

For instance, although the punishment of detention at summary trial is disciplinary in nature, it is still a form of incarceration that segregates an offender from society for the duration of the punishment – so this punishment could reinforce public safety in the same way as would a punishment of imprisonment under the Criminal Code. Additionally, regulations currently permit summary trials to deal with certain ordinary civilian criminal offences under section 130 of the NDA,²² which suggests that the summary trial system is likely intended to achieve the same kind of public order and welfare purpose as civilian criminal courts that would otherwise deal with such offences.

However, when one considers previously contemplated reforms to the summary trial system (see Assumption #1, described in Chapter 1) that would remove both the jurisdiction to deal with criminal matters, and the jurisdiction to impose true penal consequences, from the summary trial system, it becomes arguable that – at that point – the system would only exist to serve a disciplinary purpose. Without any power or jurisdiction to uphold public order and welfare (by trying criminal offences and by imposing punishments that protect the public) and with the removal of the punishment of detention, the summary discipline system would no longer have any capacity to directly or incidentally achieve a public order and welfare purpose.

This understanding of the summary trial system can help one to make better sense of academic or judicial suggestions that the military justice system is primarily concerned with the maintenance of discipline,²³ since the summary trial system – which has an almost-exclusively disciplinary purpose – deals with at least 90% of the total volume of cases within the military justice system. Thus, from a purely mathematical perspective, it is entirely correct to suggest that the military justice system is primarily about the maintenance of military discipline, since the military justice system is mostly about summary trials, at least in terms of the system’s throughput.

6.2.2 The Dual Purposes of the Court Martial System

Unlike the summary trial system, the court martial system does not have a separately enunciated purpose within any statute or regulation. Given the assumed changes to the summary trial system (see Assumption 1), it is clear that one of the purposes of the court martial system is to support the Government’s ability to control and use the CAF by promoting respect for the law and the maintenance of a just, peaceful, and safe society – a public order and welfare purpose, which, under Assumption 1, the court martial system is uniquely able to achieve. That said, any misconduct by military personnel can also represent indiscipline,²⁴ so the court martial system must also support the disciplinary purpose of the military justice system as well.

6.2.3 The Public Order and Welfare Purpose of the Court Martial System

To a certain extent, a sense of the purpose of the court martial system can be gained by considering the maximum punishments that can be imposed at a court martial. By virtue of section 139 of the NDA, the maximum punishment that can be imposed by a court martial is imprisonment for life. Furthermore, with one narrow exception,²⁵ every uniquely military offence provided for under sections 72-129 of the NDA is punishable by a maximum punishment of at least imprisonment for less than two years (i.e.: two years less a day), and many of these offences carry a maximum punishment of imprisonment for life.

Such punishments can only be imposed through a process that respects all of the guarantees and rights that are contained within section 11 of the Charter, including the right to a fair trial by an independent and impartial tribunal. Practically speaking, this means that only a judge who possesses all of the hallmarks of judicial independence – such as a judge presiding in a court of criminal jurisdiction with secure tenure, financial security, and administrative independence – can impose a punishment of imprisonment.²⁶

The potential for courts martial to impose punishments of imprisonment strongly suggests that one purpose of a court martial is the same as the purpose of other proceedings wherein punishments of imprisonment are imposed. The overwhelming majority of such proceedings in Canada are criminal trials that serve public order and welfare purposes.²⁷

As with the summary trial system, further indications of the public order and welfare purpose of the court martial system can be inferred by considering the identity of the key actors within the system. Members of an accused person’s chain of command play a small role in the court martial system: unit personnel may still be the charge-layers in cases that proceed to court martial (although cases wherein independent members of the National Investigation Service lay charges are far more common at court martial than at summary trial); a unit CO initiates an application for disposal of a charge at court martial; a more senior referral authority refers the charges to the DMP; and, during a court martial, unit personnel serve as escorts for the accused person, officers of the court, and provide some general logistical and administrative support to the court martial.

However, the central actors at any court martial are the military judge, the military prosecutor, and defence counsel (who are most often military). These individuals are legal professionals whose qualifications and functions are almost identical to those of judges, prosecutors, and defence lawyers, respectively, in civilian criminal courts. These key participants in a court martial are individuals who are less directly connected to an accused person than the person’s CO, and whose functions in the justice system go beyond the promotion of military discipline.

In terms of prosecutions, for instance, the Court Martial Appeal Court has observed that “the role played by the DMP is similar to that exercised by the Attorney General,”²⁸ who prosecutes offences in the public interest. Military prosecutors must consider the public interest in exercising their functions. This includes the interests of the Canadian Armed Forces as a primary – but certainly not exclusive – factor.²⁹ The examination of broader public interest considerations by military prosecutors suggests that they are intended to contribute – at least in part – to a public order and welfare purpose within the court martial system.

The same reasoning could be applied to military judges. Their independence from the rest of the CAF makes them far more identifiable as members of the judicial profession than as members of the profession of arms.³⁰ They preside in judicial robes with medals, providing the only visible cue to their military status. In rendering their decisions, they purport to speak on behalf of the ideals of “justice” or “military justice,” and do not purport to represent the interests of the military chain of command – although they may consider these military interests alongside other factors.

In this sense, by looking at information (pertaining to qualifications, independence, and roles) about the decision-makers in a court martial, one can infer that one purpose of a court martial is to contribute to respect for the law and the maintenance of a just, peaceful and safe society in the same way that any other criminal court would contribute to these ideals. This, in turn, suggests that one purpose of the court martial system is to support the Government’s ability to control and use the CAF through the achievement of a public order and welfare purpose.

6.2.4 The Disciplinary Purpose of the Court Martial System

In addition to supporting a public order and welfare purpose within the military justice system, the court martial system also works to achieve a disciplinary purpose. Just as summary trials can sometimes reinforce discipline while also having positive effects on public order and welfare, the court martial system can also sometimes achieve both purposes.

For instance, a single court martial trial may involve charges that are a combination of ordinary civilian criminal offences (such as trafficking in narcotics), uniquely military offences that are predominantly disciplinary in nature (such as absence without leave), and uniquely military offences that are more criminal-like in character (such as negligent performance of a military duty). In such a case, elements of both a public order and welfare purpose and a disciplinary purpose could be present at the trial – to greater or lesser degrees – depending on the offences that are the focus of the trial at any given time. The extent to which one purpose predominates within the court martial system depends on the circumstances of the individual case.

Even in cases involving only ordinary civilian criminal offences, it may be possible for a court martial to serve both a public order and welfare and a disciplinary purpose, by – for instance, contributing to increased morale among military members who see justice being done very visibly within their own community in respect of misconduct that they feel should be condemned. In this sense, effectively achieving a public order and welfare purpose would lead to the promotion of morale among those who are aware of the outcomes in a way that reinforces the court martial system’s disciplinary purpose.

Looking at the issue from a different perspective, it is possible that a single punishment imposed by a court martial could work to achieve both purposes of the court martial system. For instance, the same punishment of imprisonment that is imposed by a military judge can have both a general deterrent effect that strengthens public order and welfare (by discouraging the commission of offences), and a positive disciplinary effect (by encouraging members of the CAF to cultivate a habit of obedience to lawful authority). As a matter of theory, it is hard to argue with the proposition that measures taken in respect of CAF members as a means of strengthening public order and welfare could also strengthen discipline.

Within the current court martial system, some cases may involve an exclusively disciplinary purpose. This might be the case, for instance, where a matter involving relatively minor disciplinary charges is referred for trial by court martial solely because an accused person has elected to be tried by court martial, or because the accused person is of a senior rank in respect of which no jurisdiction to proceed by summary trial exists.

For all of these reasons, the CMCRT has concluded that the court martial system must exist in order to serve both a public order and welfare purpose, and a disciplinary purpose, within a broader military justice that also serves both of these purposes.

6.3 Developing a Purpose-Driven, Principled Basis for the Court Martial System

It is now possible to consider in more detail what principles this system must be founded upon, and what features and elements must be present in the system in order for it to be capable of achieving its ultimate purpose. Once these principles and features have been identified and explained, they will be used in subsequent chapters as the basis for assessing the current court martial system, and any options for enhancing the system.

6.3.1 1st Level – Principles Needed to Achieve the Court Martial System’s Purpose

A graphical representation of the purpose and principles of the court martial system would look like this:

1. Effectiveness. The court martial system must clearly be effective in supporting the government’s ability to both control and use the CAF. Since this is the ultimate purpose of the court martial system, the court martial system must actually and successfully contribute to this purpose of the system by promoting public order and welfare and/or by promoting discipline, efficiency, and morale within the CAF.

To the extent that the court martial system strives to contribute to the maintenance of discipline, efficiency, and morale of the CAF, it facilitates the government’s ability to use the CAF whenever and wherever needed. The CMCRT takes it as a given that a disciplined, efficient force with high morale can be employed across a wider range of missions, and with higher degrees of success, than an undisciplined and inefficient force that suffers from morale problems. Thus, by supporting these contributors to operational effectiveness within the CAF, the court martial system would promote the government’s ability to use the CAF as required in furtherance of state objectives.

To the extent that the court martial system strives to contribute to respect for the law and the maintenance of a just, peaceful and safe society, it facilitates the government’s ability to control the CAF. Controlling the CAF involves ensuring that the armed forces are ultimately subordinate to civil authorities, and that the armed forces respects all laws and other lawful directions that are communicated to members of the armed forces, especially in situations where the armed forces may be called upon to use violence in furtherance of state objectives. History (and to a certain extent, contemporary affairs in different places around the world) suggests that armed forces which exist within, and contribute to, just, peaceful, and safe societies can be controlled by civil governments with more certainty and stability that armed forces that exist apart from and outside of the rules of such societies. In this sense, by striving to achieve a public order and welfare purpose, the court martial system supports basic concepts of democratic control over the armed forces which form the foundation of the government’s ability to control the CAF.

The different features that the court martial system would need to possess in order to effectively promote public order and welfare, and the discipline, efficiency, and morale of the CAF, are discussed in more detail in the following section.

2. Legitimacy. In order to maintain the confidence of those who are the “users” of the court martial system, those who are subject to the system, and the broader public that requires its armed forces to show respect for the law and to contribute to the maintenance of a just, peaceful, and safe society, the court martial system must be, and must be perceived to be, a legitimate system. In order to be legitimate, the system and the way that the system is used must be both lawful, and generally accepted as a proper and appropriate exercise of government power, as seen from within and outside of the CAF.

At a very practical level, the principle of legitimacy is necessary in order to provide the government with a full ability to control and use its armed forces, because foreign states and the international community might restrict or otherwise limit the CAF’s ability to participate in missions abroad if Canada’s court martial system were not seen as a legitimate accountability mechanism for preventing or dealing with serious misconduct. Such a situation would also likely put Canada in breach of obligations that have been taken on under international law, such as the obligation to repress grave breaches of the laws of armed conflict.³¹

Legitimacy within the court martial system is also necessary in order to promote the degree of (both Canadian and local foreign) public support that is essential to the success of any operations by the CAF. Any indicators of illegitimacy within the court martial system, in contrast, could hamper the government’s ability to control and use the CAF by, for instance, harming morale and fostering mistrust between subordinates, superiors, and court martial system officials, or by creating recruiting and retention problems (among those who perceive the court martial system as an oppressive exercise of government power that deters them from joining or remaining in the CAF).

The different features that the court martial system would need to possess in order to legitimately promote public order and welfare, and the discipline, efficiency, and morale of the CAF, are discussed in more detail in the following section.

3. Efficiency. Government resources – and, more particularly, resources dedicated to national defence and national security – are finite, and every expenditure on one government program or commitment likely decreases the overall amount of funding that might otherwise be available for different programs and commitments – including programs and commitments that could more directly facilitate control and use of the armed forces. Thus, a court martial system must be efficient. An efficient system is one that produces positive results in support of its purposes without expending disproportionate resources. It is not enough for a court martial system to be effective in producing a desired result, or to be legitimate, if the system incurs excessive costs in doing so. Instead, the government should expect efficiency within the court martial system, so that the system’s benefits (in terms of reinforcing the government’s ability to control and use the CAF) are produced at a reasonable and proportionate cost.

While some of the data that contributes to measurements of efficiency is quantitative, the notion of proportionality (and therefore of efficiency) must be assessed qualitatively. The goals of a system may, from a qualitative perspective, be sufficiently important as to warrant the expenditure of additional resources that might, to other perspectives, appear excessive.

The different features that the court martial system would need to possess in order to efficiently promote public order and welfare, and the discipline, efficiency, and morale of the CAF, are discussed in more detail in the following section.

Interconnections between Principles. The CMCRT notes that there can be numerous points of overlap and connection between each of the above three principles. On the one hand, a system must be efficient, to at least a certain degree, if it is to be accepted as legitimate by the public as a proper and appropriate exercise of government power. On the other hand, the extent to which a system is legitimate could have a real effect on how efficient the system is, since the need to expend otherwise available resources on litigation and public relations efforts could increase as public trust in the lawfulness and appropriateness of a system decreases. These same kinds of connections can be traced between effectiveness and efficiency, and between effectiveness and legitimacy. Thus, while the CMCRT sees a value in trying to separately identify the relevant principles that should form the basis of the court martial system, it is acknowledged that in many cases, the lines between each of these key principles can be blurred.

Additionally, it must be accepted that trade-offs will often exist between principles, and that a systemic change to strengthen one principle may come at the expense of a weakening another principle. For instance, a law reform option that eliminated altogether the possibility of appeals might significantly increase systemic efficiency (by achieving final outcomes more quickly and at less expense), but might seriously compromise legitimacy (by offending community notions of fairness). Therefore, from a system design perspective, it is desirable to seek an appropriate balance within the system between principles of effectiveness, efficiency and legitimacy, while recognizing the unlikelihood of finding a single design option that provides for the maximization of all three principles.

6.3.2 2nd Level – Features within the Court Martial System to Support Key Principles

Based on the above descriptions of the concepts of effectiveness, efficiency, and legitimacy, the CMCRT has attempted to further identify the constituent features or elements of each of these concepts that support the three core principles. This effort has led to the identification of 12 key features that – to the extent that they are present within the court martial system – will support the system’s effectiveness, efficiency, and legitimacy.

Because many of the features within a court martial system are capable of supporting more than one principle, a complete graphical representation of the relationships between the purposes, principles, and features of the court martial system is included in Annex AA.

1. Proportionate Financial and Human Resource Costs – money and personnel resources invested in operating the court martial system should be proportionate to the benefits that the system generates. This feature is primarily needed to support the principle of efficiency, but it can also support the promotion of effectiveness (by ensuring that government resources are not spent unnecessarily on the court martial system, potentially making such resources available for the conduct of military training and operations) and legitimacy (by promoting public confidence in the court martial system as an economically appropriate means of dealing with military offences).

2. Timely Outcomes – the court martial system should be capable of producing timely outcomes in the majority of cases. In order to produce timely outcomes, the court martial system would likely need to be built upon a set of expeditious processes, wherein the procedural complexity involved at any stage of proceedings would be proportionate to the seriousness of the interests that are at stake in the proceedings. A system that produces timely outcomes would mostly support the principle of efficiency (because the time invested in dealing with a case would be proportionate to the benefits gained from dealing with the case) and the principle of effectiveness (because swift administration of justice would minimize distractions from the operational focus of unit personnel, and would encourage respect for the law among those who see justice being done swiftly). To a certain extent, a system that produces timely outcomes might also support the principle of legitimacy, since proceedings can begin to look unfair from all perspectives (i.e.: from the perspectives of victims, accused persons, witnesses, and society as a whole), and could become unconstitutional, if the proceedings are not concluded within a reasonable time frame.

3. Scalable – the court martial system should be capable of expanding and contracting in order to meet changing needs, ranging from those that exist during peacetime domestic operations, to those that would emerge during situations involving large-scale expeditionary operations involving all components of the CF.

The size of the CAF, the pace and nature of operations conducted by the CAF, and the demographic groups from which new CAF members are drawn are just a few of the many factors that could have significant impacts on the volume of proceedings that would need to flow through the court martial system in a given period. Since all of these factors are arguably very dynamic in a military environment, it is important to have mechanisms within the court martial system that permit the system to rapidly adapt to large changes in the volume of cases that proceed within the system.

This feature would contribute to the principles of efficiency (because the system would be built just-to-size, with capability for expansion or contraction only as needed), and effectiveness (because the system would be designed to ensure that appropriate cases can always be processed within the system, because impunity gaps would never result from unanticipated increases in the volume of cases within the system).

4. Deterrence of Misconduct by Military Personnel – the court martial system must be capable of deterring, and must actually deter, misconduct by military personnel in furtherance of both the public order and welfare and disciplinary purposes of the military justice system.

In order for the court martial system to be capable of achieving deterrence, a number of conditions within the system would first need to be met:

• Would-be offenders are somewhat rational actors whose behaviours are guided by reason;
• Would-be offenders know what conduct is prohibited, and what consequences the law may impose on offenders;
• There would be some probability that offenders would be detected, tried, and convicted; and,
• Both the punishments that are prescribed by law, and those that are actually imposed, are above a certain level of perceived severity, so as to make the possible punishment for an offence more costly to an individual than any gains that the individual would realize by committing the offence.

In other words, the court martial system would need to create, in the minds of rational and informed would-be offenders, a perception that their misconduct is at least somewhat likely to be detected, and a perception that the punishments for proven misconduct are somewhat likely to be more costly than the expected benefits of committing an offence. This deterrence feature most directly contributes to the principle of effectiveness, by reducing undesirable misconduct.

5. Rehabilitation of Military Personnel who Engage in Misconduct – the court martial system should include punishments or other alternative measures (e.g.: training, re-education, or treatment measures) that are designed to return a military wrongdoer to military and/or civilian society more equipped to abide by the law. This feature supports the principle of effectiveness, by providing military wrongdoers with the tools that they need in order to conduct themselves in more socially- and professionally-accepted ways, and in compliance with the law.

6. Protection of the Public from Military Personnel who Engage in Misconduct – the court martial system should help to reduce or eliminate dangers to the public that military wrongdoers can represent.

The public, in this sense, includes the CAF, the broader Canadian public, the local public in a foreign place wherein the CAF operates, and the international public. In order to successfully protect the public, the court martial system would need to separate military wrongdoers from society when necessary (at any time before, during, or after being tried for a military offence), and submit these military wrongdoers to appropriate supervision when necessary.

This feature mainly supports the principle of promoting effectiveness (by helping to ensure that disciplined and law-abiding military personnel are free to conduct operations without internal threats from wrongdoers in their midst, and by isolating potential sources of indiscipline within the CAF).

7. Community Condemnation of Misconduct by Military Personnel – the court martial system should culminate in processes that are capable of expressing (military and/or civilian) community condemnation of actions or omissions by those who have chosen to seriously deviate from the community’s expected standards of conduct. This condemnation should appropriately stigmatize offenders for their misconduct. A condemnation feature within the court martial system best supports the principle of effectiveness by reinforcing expected standards of conduct, and by placing community value on the importance of respecting those standards.

8. Generation of Accurate / Correct Outcomes – with respect to any charge or trial, there are two hypotheses in issue: first, an offence was committed; and, second, the accused is the person who committed the offence. The court martial system should be designed and structured to foster high rates of accuracy in assessing these hypotheses so that only those who have actually committed offences (i.e.: those who are factually guilty) are convicted of these offences.

Given the unique military environment in which military offences can be committed, and the unique demands of service in the armed forces, the court martial system should facilitate understanding of these military realities as a means of promoting accurate decision-making within the system.

Additionally, given the underlying criminal or penal nature of many of the military offences that lead to courts martial, the court martial system should also incorporate extensive criminal law and adjudicative expertise – again, to promote accurate decision-making in respect of military offences.

Finally, to a certain extent it should be recognized that the possibility of reaching accurate / correct outcomes will generally be increased through a system that includes, promotes, or requires, where appropriate, mechanisms allowing for collaborative, deliberative decision-making (such as in a jury trial, or as is seen at the Court of Appeal level in Canada’s judicial system, where panels of three or more judges preside together). Where such decision-making features are present, it has been suggested that a number of accuracy-based benefits can be realized that leverage the pooled knowledge, recollection, and viewpoint of each decision-maker.³²

This accuracy feature within the court martial system most supports the principle of effectiveness (by assisting in the accurate conviction of wrongdoers, and the accurate acquittal of law-abiding military personnel), although it also supports the principle of legitimacy (since the system would not be perceived as appropriate for its purpose if it notoriously arrived at incorrect results).

9. Universality – the court martial system must be capable of achieving its effects across the full spectrum of locations (inside and outside of Canada) and environments (from peacetime training environments to full-scale armed conflicts) in which the CAF operates.

Thus, the court martial system would need jurisdiction to deal with military offences committed both inside and outside of Canada. The system would also therefore need a deployable investigative capacity that is capable of investigating offences that take place outside of Canada, in addition to a domestic Canadian investigative capacity. The system would need to incorporate rules of evidence and procedure that allow for and facilitate the use of evidence collected in foreign jurisdictions. Finally, the positive effects that the court martial system strives to produce would need to be capable of being demonstrated both in Canada and in any place where the CAF operates, for the benefit of Canadian and local populations who are affected by CAF operations – and who are especially affected by any misconduct involving CAF members.

This feature of universality is equally essential in order to support the principle of effectiveness (by ensuring that the court martial system can reach, influence, and shape the conduct of military personnel wherever they may be) and the principle of legitimacy (by demonstrating to the international community, to Canadians, and to locally-affected populations that Canada appropriately holds CAF members to account for misconduct no matter where such misconduct takes place).

10. Fairness – the court martial system must be, and be generally perceived as, fair from the perspectives of all relevant stakeholder groups (including victims, accused persons, witnesses, and community members) in order to accomplish its purpose.

Fairness is about more than simply complying with legal and constitutional principles, since a process can be lawful but still raise concerns about fairness (for example, when a harsh – but not cruel or unusual – mandatory minimum punishment is imposed on a sympathetic offender), just as a process can include a minor element of unlawfulness, while still ultimately being fair (for example, when an unreasonable police search without legal authority yields highly reliable evidence that is admitted at trial). The notion of fairness, in this sense, is therefore primarily concerned with reflecting societal values: the court martial system needs to function in a manner that is consistent with society’s expectations of the way that people who are involved in criminal and penal proceedings should be treated. If the system and its procedures offend the conscience of any significant number of stakeholders, then fairness within the system will be compromised.

This feature of fairness mostly supports the principle of legitimacy (in that the population will believe the court martial system is appropriate for its purpose if there is widespread confidence in the fairness of the system), although it also supports the principle of effectiveness (since the morale of military personnel who are subject to the court martial system will tend to be higher if these people are satisfied that the system will be fair).

11. Transparency – the court martial system should operate in a manner that is transparent to both those inside and outside of the military community.

In order to achieve transparency, the system must be rule-based (rather than based on unchecked exercises of individual discretion), so that the way in which the system should function in any given case is capable of being known in advance.

Transparency also requires the system and its rules to be accessible and visible to anyone who is interested in learning about the system or observing it in action. In this sense, the rules that govern the system must be easily available for scrutiny, and court martial proceedings that take place within the system must be open to, and readily viewable by, the broader public.

Transparency within the court martial system supports the principle of legitimacy (since the population can only assess whether the system is suited for its purpose – and therefore an appropriate exercise of government power – if the population can easily and accurately see how the system works).

12. Intelligibility – the court martial system and the manner in which it functions should be intellectually intelligible to the broad public. In order to be intelligible, the system should incorporate several attributes:

• it should be somewhat familiar to the public (because people tend to understand more easily things that are familiar to them);
• it should be comprehensible to the public (in the sense that the rationale as to why the system exists and operates in a certain way should be based on articulated reasons that the public is capable of understanding); and,
• it should be defensible (in the sense that the reasons provided to explain why the system exists and operates in a certain way should be coherent, substantiated, and ultimately persuasive, so that the public is likely to both understand and accept the system).

The feature of intelligibility primarily supports the principle of legitimacy (by making it more possible or likely for the public to understand and accept that the system is an appropriate exercise of government power).

6.4 Conclusion

In assessing the current court martial system, or in developing options to enhance the system, a qualitative weighing and balancing of priorities must take place in order to determine how to achieve the most benefit with the least amount of compromise. As indicated in Chapter 5, above, there are a number of different examples of ways in which other countries have tried to achieve a balance that will work for the relevant government and armed forces, but this study has also reinforced the point that there is no one “best” way to design and operate a court martial system.

For instance, systems that rely heavily on the involvement of uniformed military actors may have greater potential to operate universally (across the full spectrum of military operations, at home and abroad) but less potential to be accessible (i.e.: familiar and comprehensible) to the civilian public. Similarly, systems that rely on complex rules of evidence may have higher potential to produce accurate outcomes, but less potential to produce timely outcomes. As these examples demonstrate, no one system can clearly generate maximum levels of every desirable benefit, just as the examples suggest that any change to a system has the potential to add some benefits, but to introduce new drawbacks.

In the chapters that follow, the CMCRT will assess the current court martial system by reference to the theory that has been elaborated in this chapter (see Chapter 7), and in reference to its elements, will describe and assess a number of different options for changes to the current court martial system that all have the potential to improve the system in some ways, but that all have at least some associated drawbacks (see Chapter 8).

Footnotes

¹ Online : <http://www.forces.gc.ca/en/news/article.page?doc=canada-s-military-justice-system/hnea75sh>.

² Bill C-15, An Act to amend the National Defence Act and to make consequential Amendments to Other Acts, SC 2013, c 24, s 62 [Bill C-15] (enacting both disciplinary and public order and welfare purposes as fundamental purposes of sentencing, at s 203.1 of the National Defence Act, RSC, 1985, c N-5 [NDA]).

³ R v Généreux, [1992] 1 SCR 259 [Généreux].

⁴ See, for instance, the testimony of Major-General Steve Noonan, before the American Response Systems to Adult Sexual Assault Crimes Panel, Transcript of Testimony, RSP Public Meeting at 167-172 (Sept. 24, 2013), online <http://responsesystemspanel.whs.mil/public/docs/meetings/20130924/24_Sep_13_Day1_Final.pdf>.

⁵ See, for instance, a recent interview with former JAG, Major-General Blaise Cathcart: Cristin Schmitz, “Q&A with Maj.-Gen. Blaise Cathcart”, The Lawyers Daily (7 May 2017) online: <https://www.thelawyersdaily.ca/articles/3117/q-a-with-maj-gen-blaise-cathcart>.

⁶ See, for instance, Canada, Department of National Defence, Strong, Secure, Engaged: Canada’s Defence Policy (Ottawa: Department of National Defence, 2017) at 59: “Canada must have a responsive and capable military. As an instrument of national power, the military is an important and unique capability that the Government of Canada can use to advance national interests, promote Canadian values, and demonstrate leadership in the world.”

⁷ See, for instance, Canada, Department of National Defence, Duty with Honour: The Profession of Arms in Canada, (Ottawa: Department of National Defence, 2009) at 13: “Conducting military operations remains the CF’s overriding purpose, however, and this shapes the fighting identity of Canada’s military professionals. It also delineates the profession’s responsibility to the government and to society, and dictates the expertise necessary for the success of operations.”

⁸ Canada, Department of National Defence, CDS Guidance to COs (Ottawa: Department of National Defence) at para 1001.1 [CDS Guidance to COs].

⁹ R v Ross, 2003 CM 52, at para 13.

¹⁰ R v Moriarity, 2015 SCC 55, at para 54 [Moriarity] (quoting with approval from the Respondent Crown’s factum).

¹¹ Chris Madsen, Another Kind of Justice: Canadian Military Law from Confederation to Somalia, (Vancouver: UBC Press, 1999) at 3 (emphasis added).

¹² R v Moriarity, supra note 10 at para 48.

¹³ See, for instance, Canada, Department of National Defence, Leadership in the Canadian Forces: Conceptual Foundations (Ottawa: Department of National Defence, 2005) at 41: “The traditional purposes of military discipline are to control the armed forces to ensure that it does not abuse its power, to ensure that members carry out their assigned orders efficiently and effectively – particularly in the face of danger.”

¹⁴ Généreux, supra note 3 at 281.

¹⁵ Bill C-15, supra note 2 (enacting these fundamental purposes at s 203.1 of the NDA, supra note 2).

¹⁶ See Criminal Code, RSC 1985, c C-34, s 718: “The fundamental purpose of sentencing is to protect society and to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society […]”.

¹⁷ In Moriarity, supra note 12, the Supreme Court of Canada concluded that in the context of a Charter s 7 overbreadth analysis, the purpose of the overall system of military justice is to maintain the discipline, efficiency and morale of the military. However, Moriarity cannot be interpreted as purporting to overrule Généreux. Rather, the SCC in Moriarity stated that Généreux does not settle the purpose of the challenged provisions (ss 117(f) and 130 of the NDA, supra note 2) in the context of the overbreadth analysis. In Moriarity, the SCC seemed to indicate that its statement of purpose in the Généreux case took into account both the CSD’s objective and its effects in a way that was unhelpful for the purposes of an overbreadth analysis. Généreux therefore remains good law in that the military justice system (at least in its effects) has a broader public function of punishing specific conduct which threatens public order and welfare. See Moriarity, supra note 10 at para 47 (wherein the SCC notes that “this statement of [a public purpose for the military justice system in Généreux] includes both the scheme’s objective and its effects in a way that is unhelpful for the purposes of an overbreadth analysis [under s 7 of the Charter]”).

¹⁸ In 2016-2017, for instance, there were 55 courts martial and 553 summary trials conducted in the CAF: Canada, Department of National Defence, Annual Report of the Judge Advocate General to the Minister of National Defence on the Administration of Military Justice in the Canadian Forces: A Review from 1 April 2016 to 31 March 2017 (Ottawa: Office of the Judge Advocate General, 2017).

¹⁹ CDS Guidance to COs, supra note 8 at para 1001.3 (emphasis added).

²⁰ Ibid at para 101.1.

²¹ Canada, Department of National Defence, Report of the Special Advisory Group on Military Justice and Military Police Investigation Services, presented to the Minister of National Defence on March 14, 1997, by the Right Honourable Brian Dickson, Lieutenant-General Charles Belzile, and Bud Bird (Ottawa: Department of National Defence, 1997), at 12; Canada, Department of National Defence, Report of the Second Independent Review Authority to The Honourable Peter G. MacKay, Minister of National Defence, by The Honourable Patrick J. LeSage (Ottawa: Department of National Defence, 2011), at 11.

²² See Queen Regulations and Orders for the Canadian Forces, art 108.07 [QR&O]. These offences are, in respect of the Criminal Code offences under sections 129 (Offences Relating to Public or Peace Officer), 266 (Assault), 267 (Assault with a Weapon or Causing Bodily Harm), 270 (Assaulting a Peace Officer), 334 (Punishment for Theft), where the value of what is stolen does not exceed five thousand dollars, 335 (Taking Motor Vehicle or Vessel Without Consent), 430 (Mischief), except mischief that causes actual danger to life, 437 (False Alarm of Fire). Additionally, in respect of the Controlled Drugs and Substances Act, an offence under section 4(1) (Possession of Substance) can also be tried at a summary trial.

²³ Supra notes 8, 9, and 11.

²⁴ See, for instance, R v Moriarity, supra note 12 at para 51: “The objective of maintaining ‘discipline, efficiency and morale’ is rationally connected to dealing with criminal actions committed by members of the military even when not occurring in military circumstances.” See also ibid at para 52: “Criminal or fraudulent conduct, even when committed in circumstances that are not directly related to military duties, may have an impact on the standard of discipline, efficiency and morale.”

²⁵ The offence of drunkenness under section 97 of the NDA, when committed by a non-commissioned member, who is not on active service (i.e.: who is not a member of the Regular Force, and who is not a member of the Reserve Force who is outside of Canada), is punishable by a maximum of 90 days detention. In all other cases, this offence is punishable by less than two years imprisonment.

²⁶ See generally R v Wigglesworth, [1987] 2 SCR 541, and Guindon v Canada, 2015 SCC 41.

²⁷ It is possible for punishments of imprisonment to be imposed in respect of regulatory (non-criminal) offences in Canada, but this is not commonplace.

²⁸ R v Wehmeier, 2014 CMAC 5, at para 31.

²⁹ Director of Military Prosecutions, “DMP Policy Directive 003/00 Post-Charge Review”, (17 May 2016) at para 4, online: <http://www.forces.gc.ca/en/about-policies-standards-legal/post-charge-review.page>.

³⁰ On this point, see the input received from a former Military Judge above, at Chapter 4 (Consultation), section 4.4.5 (LCol (ret’d) Perron), wherein the subject of military judges’ independence from key leaders within the CAF – even on matters such what pre-deployment readiness measures must be taken before conducting a court martial in a theatre of operations – is described.

³¹ Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts (Protocol I), 8 June 1977, 1125 UNTS 3 (entered into force 7 December 1979), art 86(1):

The High Contracting Parties and the Parties to the conflict shall repress grave breaches, and take measures necessary to suppress all other breaches, of the Conventions or of this Protocol which result from a failure to act when under a duty to do so.” See also ibid art 43(1), which requires that the armed forces of a Party to an armed conflict be “subject to an internal disciplinary system which, inter alia, shall enforce compliance with the rules of international law applicable in armed conflict.

³² See, for instance, Toby S Goldbach and Valerie P Hans, “Juries, Lay Judges and Trials” in Encyclopedia of Criminology and Criminal Justice, Gerben Bruinsma and David Weisburd, eds. (NY: Springer Science and Business Media, 2014) at 2720:

At its best, jury decision making embraces many of the features of deliberative democracy. Members of the jury hold a diverse set of viewpoints which can be brought forward and evaluated through reason-based discussion. Open discussion helps ensure that trial evidence is thoroughly evaluated, that rival explanations are examined, and that mistaken recollections are corrected. Through this process of deliberation and discussion, the jury reaches binding conclusions on the defendant’s guilt or innocence. Empirical studies on group decision making confirm some but not all of the predictions of deliberative democracy theory. Studies show that groups outperform individuals in recalling facts, in correcting errors, and in pooling information. However, studies also show that during the deliberative process, once jurors are made aware of the majority view, they will tend to move in that direction, regardless of whether the view is to convict or acquit.