Chapter 2: A Military Justice Primer

BACKGROUND1

The ultimate role of the CF is to apply force – or to threaten to apply force – to the extent of doing violence to destructive levels on behalf of, and in the interest of, the state. In support of this critical role, the CF has at its disposal a myriad of lethal and destructive weaponry. In light of this, it is important that such an armed force be closely controlled and highly disciplined.2

In order to fulfil their role properly, CF members must be willing to suppress their own personal interests, including ultimately their interest in preserving their own lives, in favour of the overall interests of the state as expressed by the lawful orders of their superior officers. Such orders will often include orders to go into combat and therefore to place one's own life in jeopardy. In this respect, the purpose of military justice has been aptly described by DesRoches J. as follows:

Military justice must not only promote good order but also high morale and discipline. In this way it has a more positive purpose than law in the purely civilian context. Discipline is defined as instant obedience to lawful orders, and the most essential form of discipline in the military environment is self-discipline - a person's willingness to carry out his or her assigned duties regardless of the danger, or lack of immediate supervision.3

The need to maintain a disciplined military force is not only self-evident but it is also enshrined in law.4 CF discipline serves the following three important purposes:5

THE CODE OF SERVICE DISCIPLINE

Military discipline is much more intrusive than even the discipline exercised in paramilitary organizations such as police forces. This is reflected in the Code of Service Discipline, which prescribes a complete and expansive system of military justice. Unlike the Criminal Code, which seeks primarily to regulate society, this Code regulates the conduct of the persons to whom it applies in support of its primary aim of achieving and maintaining discipline. It also sets out a complete legal system for the prosecution, trial and defence of offenders.

The military justice system is of necessity a portable and expeditious system of justice that applies equally in peacetime and wartime. Its intrusiveness is reflected in the service offences otherwise unknown to civilian criminal law (e.g., poor dress and deportment on parade, absence without leave, insubordination). Its expansiveness is reflected by the fact that

The Code of Service Discipline establishes two categories of service tribunal: the summary trial and the court martial.9

SUMMARY TRIALS10

The summary trial11 is designed

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.12

The summary trial deals with disciplinary matters that are relatively minor in nature but that, nonetheless, have an important impact on discipline and efficiency. The large majority of charges under the Code of Service Discipline are disposed of by summary trial, thus making it the predominant service tribunal.

There are three types of summary trials: summary trial by commanding officer,13 summary trial by delegated officer14 and summary trial by superior commander.15

While it is apparent that the officers presiding at summary trials are not legally trained, before they are permitted to exercise their summary trial power and authority, they must be certified by JAG as being qualified to so do.16 Generally, accused persons at a summary trial are not represented by a lawyer;17 however, they are entitled to an assisting officer.18 One of the DDCS services is the provision of legal advice of a general nature to assisting officers or accused persons respecting the summary trial process.19

In keeping with its summary nature, the Military Rules of Evidence20 (MRE) do not apply21 at a summary trial, and trial procedures are straightforward in nature.22 Moreover, the powers of punishment of the presiding officers are limited in scope.23 Nonetheless, the rules and procedures governing the conduct of summary trials are designed to ensure that the process is fair.24 The primary features designed to achieve fairness in a summary trial are as follows:

An accused to be tried by summary trial has the right to elect30 trial by court martial in all but the two following circumstances:31

Prior to deciding the mode of trial, the accused must be given a reasonable period of time – not less than 24 hours – to consider the decision and to consult with a lawyer.35 While the accused is at liberty to consult with a civilian lawyer at his or her own expense, DDCS lawyers are available for such consultations.36 However, unlike the court martial, DDCS lawyers are not available to represent the accused at a summary trial.

COURTS MARTIAL

A court martial is a formal military court of record37 over which a military judge presides.38 The powers of punishment39 open to a court martial greatly exceed those available to a presiding officer at a summary trial. Court martial procedures40 are formal and quite similar to those followed by civilian criminal courts. A lawyer from the Directorate of Military Prosecutions conducts the prosecution. Persons to be tried by court martial are entitled to the services of and representation by a DDCS lawyer free of charge,41 or they may retain a civilian lawyer at their own expense or, where qualifying criteria are met, with the assistance of a provincial legal aid plan.

There are two types of court martial:

General Courts Martial and Standing Courts Martial may try any person subject to the Code of Service Discipline44 and may impose any punishment in NDA subsection 139(1), including imprisonment for life.

Standing Courts Martial are presided over by a military judge sitting alone45. General Courts Martial are analogous to trial by judge and jury in a civilian criminal court. They are composed of a military judge and a panel of five members46. The panels consist entirely of officers, unless the accused is a non-commissioned member – in which case the panels must include two non-commissioned members of the rank of warrant officer or above47. The panels are responsible for making the finding respecting guilt, and the presiding military judge is responsible for making legal rulings and for imposing the sentence.

For many offences, the person accused can elect between a General Court Martial and a Standing Court Martial. Offences punishable by imprisonment for less than two years, or by a lower punishment on the scale, will be tried by Standing Court Martial. Those punishable by imprisonment for life will be tried by General Court Martial, unless prosecution consents to a Standing Court Martial. For other offences, the accused can generally elect between Standing and General Court Martial48.

ASSISTANCE AND ADVICE TO AND REPRESENTATION OF THE ACCUSED

When an accused is charged with an offence he or she is entitled to the services of an assisting officer.49 While assisting officers are not – save for a very few exceptions50– legally trained, it is their role to provide advice and assistance to the accused. It is the assisting officer's duty and responsibility

The assisting officer provides assistance and information to the accused respecting the preparation for and conduct of the summary trial.53 As noted in Chapter 1, either the assisting officer or the accused may consult with a DDCS lawyer on general legal matters with respect to the summary trial54 and to the making of the election to be tried by summary trial or court martial.

An accused to be tried by court martial is entitled to both a lawyer and an adviser.55 As stated previously, the lawyer may be civilian counsel retained at the personal expense of the accused or may be a DDCS lawyer at no cost to the accused. The adviser's role is to assist the accused, prior to and during trial, on any technical or specialized aspect of the case.56


Footnotes

1 For a lengthier and more in-depth discussion of military justice and discipline, see Chapter 1 of the JAG publication Military Justice at the Summary Trial Level.

2 The Canadian Forces adopts the following Concise Oxford Dictionary definition of discipline:

n. 1. a. a control or order exercised over people…esp. …military personnel… b. the system of rules used to maintain this control.
v.tr. 1. punish, chastise. 2. bring under control by training in obedience; drill.

3 R. v. Stewart, 5 CMAR 205, at 212.

4 Ibid. See also MacKay v. The Queen, [1980] 2 SCR 370, at 399, and R. v. Généreux, [1992] 1 SCR 259, at 293.

5 JAG publication, Military Justice at the Summary Trial Level, c. 1, para. 33.

6 NDA s. 130.

7 NDA NDA s. 132.

8 MacKay, supra, at 399; Généreux, supra, at 293.

9 NDA s. 2.

10 For a thorough discussion of the summary trial, see the Judge Advocate General publication Military Justice at the Summary Trial Level.

11 See a definition of "summary trial" at NDA s. 2.

12 QR&O art. 108.02.

13 See a definition of "commanding officer" at NDA ss. 160 and 162.3 and QR&O arts. 101.01 and 1.02 (definitions).

14 See a definition of "delegated officer" at QR&O art. 108.03; see also QR&O art. 108.10.

15 See a definition of "superior commander" at NDA s. 162.3.

16 See QR&O art. 101.09 for commanding officers and superior commanders, and see QR&O art. 108.10(2) for delegated officers.

17 Neither the NDA nor the QR&Os explicitly permits or prohibits the presence of lawyers at summary trials. Should the accused request a lawyer at a summary trial, the presiding officer has discretion either: (a) to permit or deny the request; or (b) to apply for disposal of the charges by court martial (Note B to QR&O art. 108.14). In this respect, some guidance is given to the presiding officer at Note C to QR&O art. 108.14.

18 QR&O arts. 108.03 and 108.14 for a definition of "assisting officer".

19 QR&O art. 101.20(2)(c).

20 The Military Rules of Evidence (MRE), made pursuant to NDA subs. 181(1), are the rules of evidence governing court martial proceedings and all other hearings and proceedings over which a military judge presides. They are found at The Consolidated Regulations of Canada 1978, Chapter 1049, as amended by SOR/90-306, and at Appendix 1.3 to QR&O Volume IV.

21 QR&O art. 108.21(1).

22 QR&O arts. 108.20 and 108.21. For a complete discussion of summary trial procedures, see Chapter 13 of the JAG publication Military Justice at the Summary Trial Level.

23 See NDA subs.139(1) and QR&O art. 104.02 for the scale of permissible punishments in respect of service offences. The maximum punishment that a commanding officer may impose is detention for 30 days, reduction in rank by one rank and a fine in the amount of 60% of monthly basic pay (QR&O art. 108.24); the maximum punishment that a delegated officer may impose is a reprimand and a fine in the amount of 25% of monthly basic pay (QR&O art. 108.25); and the maximum punishment that a superior commander may impose is a severe reprimand and a fine in the amount of 60% of monthly basic pay (QR&O art. 108.26).

24 While there is no one definition of procedural fairness, it is generally accepted that in order to be fair in a legal sense the common law rules of natural justice, freedom from bias on the part of the decision maker, and the meaningful and informed participation by the person in the proceedings must be followed throughout the process.

25 QR&O art. 108.20(2).

26 QR&O art. 108.15.

27 QR&O art. 108.20.

28 QR&O art. 108.30.

29 See Note B to QR&O art. 108.20 for the guidance given presiding officers on the meaning of "reasonable doubt".

30 For a lengthier discussion of the election, see DND publication A-LG-050-000/AF-001 – The Election To Be Tried By Summary Trial or Court Martial.

31 QR&O art. 108.17(1).

32 QR&O art. 108.17(1)(a).

33 QR&O art. Both elements must be present at the same time.

34 QR&O art. 108.17(1)(b).

35 QR&O arts. 108.17(2)(b) and 108.18.

36 QR&O art. 101.20(2)(d).

37 NDA subs. 179(1).

38 See NDA s. 165.21 – 165.27 respecting appointment of military judges.

39 See NDA subs. 139(1) and QR&O Chapter 104 respecting punishments under the Code of Service Discipline.

40 Court martial procedures are exhaustively set out at QR&O art. 112.05.

41 QR&O art. 101.20(2)(f).

42 See NDA ss. 166 – 168.

43 See NDA ss. 173 – 175.

44 ss. 166 and 173, respectively.

45 NDA ss. 174 and 177, respectively.

46 NDA subss. 167(1).

47 NDA subss. 167(7) and 170(4), respectively.

48 NDA, ss. 165.191 to 165.193..

49 QR&O art. 108.14(1).

50 For example, a lawyer engaged in the practice of law who is also a member of a reserve unit.

51 QR&O art. 108.14(4).

52 QR&O art. 108.14(5).

53 For a more complete discussion of the role and responsibilities of the assisting officer see the JAG publication Military Justice at the Summary Trial Level and the DND publication A-LG-050-000/AF-001 – The Election To Be Tried By Summary Trial or Court Martial.

54 Such advice will typically concern the accused's rights and entitlements before, during and after the summary trial.

55 QR&O art. 101.22(1).

56 QR&O art. 101.22 (1)(b).

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