Tribunals and Courts - Court Martial Comprehensive Review – Interim Report

In Canada, courts martial currently have a number of features that make them different from civilian criminal courts:

• Military judges, who are uniformed officers in the Canadian Armed Forces with at least ten years of commissioned service and ten years of experience as lawyers, preside at courts martial;
• There are no juries at courts martial. Instead, if the accused person chooses to be tried by a “General Court Martial”, then there is a panel of 5 senior military members who determine the facts and who make findings of guilty or not guilty based on a requirement for unanimity;
• The military judge presides without a panel if the accused person chooses to be tried by a “Standing Court Martial”;
• Courts martial are a kind of judicial “event” created on a case-by-case basis to deal with a particular set of charges. There is no permanent military court;
• Courts martial have extra-territorial jurisdiction and can be held wherever the CAF is deployed; and
• Typically, there are far less courts martial held in a given period than civilian criminal trials. For instance, between 2010 and 2016, there were no more than 70 courts martial in a given year, distributed between 3 to 4 military judges. In Ontario’s civilian criminal justice system, there were 217,356 criminal cases initiated in the Ontario Court of Justice between April 1, 2015 and March 31, 2016.

In Canada, the similarities between courts martial and civilian criminal courts include:

Courts martial are very similar to civilian criminal courts:

• Military judges must meet the same basic qualifications as federally-appointed civilian judges by having at least ten years of experience as lawyers;
• Military judges are appointed by the Governor in Council through a process that mirrors the one for appointing civilian judges;
• Military judges enjoy the same constitutional independence as civilian judges such as financial security, security of tenure, and administrative independence;
• Courts martial, in many respects, have the same powers, rights, and privileges — including the power to punish for contempt — as a superior court of criminal jurisdiction;
• Military judges (rather than the panel) always determine the sentence, just as civilian judges (rather than the jury) always determine the sentence in Canada.

In thinking about what type of tribunal or court should deal with military offences, it might be helpful to understand a little about how some other countries deal with military offences.

United Kingdom: In the United Kingdom, the Court Martial is a permanent court for dealing with military offences. Judges of the Court Martial are civilian judges who are not members of the armed forces, and who also preside as civilian judges in civilian criminal courts. However, there is a “Board” of between 3 and 7 senior military personnel, who determine findings of guilty or not guilty based on a simple majority vote within the Board. The Board also determines the sentence based on a simple majority vote. The 5 judges of the court martial preside over approximately 500 courts martial each year.

United States: In the United States, military offences are dealt with at courts-martial, which are convened by senior officers in an accused person’s chain of command. The military judges who preside at courts-martial are officers and lawyers, and are regularly posted into and out of these judicial positions. A “panel” of military personnel that typically includes at least 3 members and not more than 12 members, is responsible for both determining the verdict and the sentence (in the event of a guilty verdict). Members of the panel are identified by the senior officer who convenes the court-martial.

Australia: In Australia, military offences are dealt with either by a Defence Force Magistrate (a uniformed military judge presiding alone) or a Court Martial (a uniformed military judge presiding with a panel of 3 or 5 senior military personnel). In the case of a Court Martial, both the finding and the sentence are determined by a majority vote of the members of the panel.

Netherlands: In the Netherlands, a specialized Chamber of the civilian criminal court has been established to deal with military offences. Within the military Chamber of the court, instead of having 3 civilian judges presiding together, there are 2 civilian judges who preside alongside a military officer as the third judge.

France: In France, no uniquely military court exists in peacetime. All offences committed by military personnel are tried in a specialized civilian criminal court, by civilian judges who have received training about and exposure to the armed forces. However, unlike in ordinary French criminal courts, the Minister of Defence must provide advice to the prosecutors before they can proceed with a trial. In times of war, military tribunals are immediately activated. If a state of emergency is declared, then the government may also declare that military tribunals are activated. These military tribunals operate distinctly from the ordinary civilian courts, and involve a group of 2 civilian judges and 3 military members who determine the verdict and sentence.

Some people believe that military personnel can never be trusted to judge other military personnel. They believe that such a court martial system is not legitimate because the military personnel who are involved in the court martial process will either be too harsh in their decisions (which harms fairness and due process rights for accused persons), or they will be too lenient in their decisions (to shield their troops from punishment for misconduct, or to cover up things that may reflect badly on the leaders of the armed forces).

Some people believe that members of a military must be involved in judging other military personnel in order for a court martial system to promote operational effectiveness within the military, and to be legitimate. They believe that it is almost impossible for non-military personnel to understand the unique obligations of military members, the importance of discipline to an armed force, and the complex environments within which military offences take place. They also believe that a decision made by military members at a court martial has more force in shaping the conduct of offenders and other military personnel than a decision made by one or more civilians from outside of the military community.