Chapter 8 – Introduction to Option Description and Analysis

This chapter introduces the following nine chapters, which will each deal with different and discrete subject areas that were considered as part of the CMCR.

Rather than presenting a series of holistic options within this report – that package together ways to improve courts, panels, prosecution and defence counsel services, offences, sentences, evidence laws, appeals, and processes for vulnerable groups, as if these subject areas were all rigidly connected to one another – the CMCRT has adopted a more “menu-based” approach to its description and analysis of options.

Thus, for most of the above subject areas that are under consideration by the CMCRT, the team has considered a series of representative options, each of which could be combined with different options relating to every other subject area that is under consideration. The options that are described in the nine chapters that follow could therefore be mixed and matched with one another in many different possible combinations.

In each of the following nine chapters, representative options that all have some potential to enhance the combined principles of effectiveness, efficiency, and legitimacy will be described. After the description of each option, a detailed assessment as to how the implementation of that option would affect the 12 key features (see Chapter 6 – The Basis for a Court Martial System) that contribute to effectiveness, efficiency, and legitimacy will be provided.

A few points should be made at the outset about how each option is described and assessed within this report.

To the greatest extent possible, every assessment is grounded in a source of information (e.g.: internal CAF consultation; comparative analysis of another country’s system, etc.) that has already been discussed in this report, or that is clearly identified within the option assessment (through a footnote, or other means).

In some cases, aspects of an assessment of an option are grounded in reason and common sense, as applied by the CMCRT in its consideration of a particular option.

Assessments of different options are often not precisely quantifiable. The impact of an option on features like timeliness or proportionality of human and financial resources can generally be quantified to a certain extent. However, the impact of an option on features like fairness or intelligibility cannot realistically be expressed in a precise quantitative form. Consequently, when assessing the impact of any particular option on any particular feature, the CMCRT has attempted to identify whether such an impact would have a positive or negative effect, and has in some cases also attempted to express the magnitude of the impact in general terms through qualifiers (e.g.: “small,” “significant,” etc.).

Just as it is often impossible to ascertain with quantified precision how an option would affect a particular feature, it is equally impossible to express what the net effect of an option would be across all features (and therefore across the combined principles of effectiveness, efficiency, and legitimacy) in a precisely quantified way. Consequently, after discussing each option’s anticipated impact on each feature in the chapters that follow, the CMCRT does not attempt to offer any globalized assessment or ranking of the various options; rather the CMCRT acknowledges that a decision-maker may value certain features or principles more than others, and that these value judgements would have an impact on any globalized assessment or ranking of options. That being said, each option discussed in the following 9 chapters would offer some increases across the combined principles of effectiveness, efficiency, and legitimacy.

The CMCRT does not purport to have canvassed every possible option to improve the court martial system, nor to have directly “imported” any particular option from any other system for consideration within the Canadian court martial system. Instead, the CMCRT has attempted to describe and analyze a wide spectrum of different representative options (including options that are more focused on military actors than civilian actors and vice-versa; including options that would expand the jurisdiction of the court martial system and options that would contract the jurisdiction of the system, etc.) in order to offer subsequent decision-makers a broad snapshot of the different kinds of ways through which particular aspects of the court martial system could be enhanced. The CMCRT deliberated at length about how to structure each of the options so that each one would clearly offer the potential for improvement from the status quo, but fully acknowledges that other options, or other variations of the options discussed in the following chapters, could also be successful in creating positive change within the court martial system.

As noted in the previous chapter, the options discussed will focus upon mainly on reducing or eliminating the most significant and commonly noted weaknesses within the current court martial system, including: that the system takes too long to achieve its effect; the perception that sentences are too lenient; that groups of key actors within the court martial system would benefit from greater criminal law, litigation, and military expertise; that the current system sometimes creates a kind of disciplinary role confusion between commanders and justice system actors; and the objectively high costs of the system relative to its output. Some of the options also aim to improve other aspects of the system in order to enhance the features that support the system’s effectiveness, efficiency, and legitimacy.

In each of the following nine chapters, representative options are described an assessed in “stand-alone” format. In other words, the CMCRT has provided assessments of each option in the abstract, detached from all considerations as to how other elements of the court martial system would be designed. This approach allows the CMCRT to objectively assess each option on its merits, in a way that is not dependent on complex combinations of choices about how each other aspect of the court martial system should be structured.

Within this report, the CMCRT does not make any recommendations, nor provide any legal advice, regarding any of the options discussed within this report. Keeping in mind the CMCRT’s Assumption #4 (Any proposed reforms must be patently constitutional, across the full spectrum of operations), it must be stressed that the options in the chapters that follow are discussed and analyzed strictly from a policy perspective, based upon criteria that were developed and described above, in Chapter 6.