Chapter Two: Military Justice and the Court Martial System
The nature of the operational missions entrusted to the CAF requires the maintenance of a high degree of discipline among CAF members. Parliament and the SCC have long recognized the importance of a separate military justice system to govern the conduct of individual soldiers, sailors and air force personnel, and to prescribe punishment for disciplinary breaches. In 1980 and 1992 the SCC in MacKay v the QueenFootnote 7 and R v Généreux,Footnote 8 unequivocally upheld the need for military tribunals to exercise their jurisdiction in order to contribute to the maintenance of discipline, and associated military values, as a matter of vital importance to the integrity of the CAF as a national institution.
These principles were unanimously reaffirmed by the SCC in 2015 in R v Moriarity: “I conclude that Parliament’s objective in creating the military justice system was to provide processes that would assure the maintenance of discipline, efficiency and morale of the military.”Footnote 9 In Moriarity, the SCC also reinforced that “… the behavior of members of the military relates to discipline, efficiency and morale even when they are not on duty, in uniform, or on a military base.”Footnote 10
These views were directly in line with earlier comments by Chief Justice Lamer in Généreux that the Code of Service Discipline (CSD) “does not serve merely to regulate conduct that undermines such discipline and integrity. The CSD serves a public function as well by punishing specific conduct which threatens public order and welfare” and “recourse to the ordinary criminal courts would, as a general rule, be inadequate to serve the particular disciplinary needs of the military. In other words, 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 in the CAF. There is thus a need for separate tribunals to enforce special disciplinary standards in the military.”Footnote 11
Following Moriarity, the SCC delivered another unanimous decision related to the military justice system. In 2016, the SCC confirmed in the case of R v CawthorneFootnote 12 that the authority conferred to the MND over appeals was in compliance with the Canadian Charter of Rights and Freedoms (Charter). This decision not only confirmed the organizational structure of the CMPS but also was important for all prosecution services across Canada as the court touched upon the concept of prosecutorial independence and abuse of process.Footnote 13 This clearly shows that the military justice system is a legitimate and respected parallel justice system within the broader Canadian legal mosaic.
On 26 July 2019, the SCC ruled yet again, in R v Stillman, that section 130(1)(a) of the NDA is constitutional finding it consistent with section 11(f) of the Charter.Footnote 14 In its decision, the SCC further seized the opportunity to summarize and affirm its prior jurisprudence relating to the military justice system. Amongst other things, the SCC recalled its decision in Mackay v The Queen which recognized the constitutionality of section 130(1)(a) as a valid exercise of Parliament’s power under section 91(7) of the Constitution Act, 1867.Footnote 15 The SCC also reemphasized its decision in Généreux, which recognized the uniqueness of the military justice system as an essential mechanism to properly perform the public function of “maintaining discipline and integrity in the Canadian Armed Forces.”Footnote 16 Finally, the SCC upheld its decision in Moriarity, and refused to require a military nexus when charging a service member under section 130(1)(a) other than “the accused’s military status.”Footnote 17
Courts martial are formal military courts presided over by independent military judges. These tribunals are similar in nature to civilian criminal courts and are designed to deal predominantly with offences that are more serious in nature. Courts martial are conducted in accordance with rules and procedures similar to those followed in civilian criminal courts, while maintaining the military character of the proceedings. This chapter provides a basic overview of the court martial system. For further information regarding the court martial process, please refer to Table 2-1.
Table 2-1: Additional Facts about the Court Martial System
|Purpose of the Military Justice Syste||The purpose of the military justice system is to contribute to the operational effectiveness of the CAF by maintaining discipline, efficiency and morale.|
|Jurisdiction of the Military Justice System||Courts martial only have jurisdiction over those persons who are subject to the CSD. When a person joins the CAF, they remain subject to all Canadian laws but also become subject to the CSD. Therefore, members of the CAF are subject to the concurrent jurisdiction of both the civilian and the military justice system.|
|Requirement for Pre-charge Legal Advice||
In the majority of cases, the person authorized to lay a charge in the military justice system must first obtain pre-charge legal advice concerning the sufficiency of the evidence, whether or not a charge should be laid, and the appropriate charge.
Military prosecutors provide pre-charge legal advice to all cases investigated by the CFNIS. In some cases, military prosecutors will also assist legal officers with the OJAG by providing pre-charge legal advice in cases investigated by those members of the military police who are not a part of the CFNIS as well as by unit investigators.
|Custody Review Process||If a person is arrested under the CSD they may be released by the person making the arrest or by a custody review officer. If the individual is not released, the matter will go before a military judge to determine if the individual is to be released, with or without conditions, or if they are to remain in custody. Military prosecutors represent the CAF at all custody review hearings which are held before a military judge.|
|Disclosure Obligations||Accused persons in the military justice system have the constitutional right to make full answer and defence. Therefore, military prosecutors must disclose all relevant information to the accused, including both inculpatory and exculpatory evidence, whether or not the prosecution intends to introduce it at court martial.|
Under the NDA, military judges have a wide variety of sentencing options available for those members found guilty at court martial. Aside from fines and periods of imprisonment which are also available in the civilian justice system, military judges are able to sentence offenders to dismissal with disgrace, dismissal, reprimands, detention, reduction in rank and minor punishments.
In addition, new provisions added to the NDA, effective 1 September 2018, allow military judges to grant absolute discharges, an order that the offender serve his or her sentence intermittently, as well as an order to suspend the execution of any sentences of imprisonment or detention.
The court martial system has many features in common with the civilian justice system. For example, the Charter applies to both the military justice system as well as the civilian justice system. As such, in both systems of justice, the accused person is presumed innocent until the prosecution has proven his or her guilt beyond a reasonable doubt.
Additionally, courts martial are independent and impartial tribunals whose hearings are open to the public. Before a court martial takes place, it is announced in the Routine Orders of the base where it is to occur and the media is notified. Once a court martial is completed, the results are communicated publicly through a variety of means, including through social media.
Statutorily, pursuant to section 179 of the NDA, courts martial have the same rights, powers and privileges as superior courts of criminal jurisdiction with respect to all “matters necessary or proper for the due exercise of its jurisdiction”, including the attendance, swearing in, and examination of witnesses, the production and inspection of documents, and the enforcement of their orders.
There are two types of courts martial provided for under the NDA: General Courts Martial (GCM) and Standing Courts Martial (SCM). A GCM is comprised of a military judge and a panel of five CAF members. The panel is selected randomly by the Court Martial Administrator and is governed by rules that reinforce its military character. At a GCM, the panel serves as the trier of fact while the military judge makes all legal rulings and imposes the sentence. Panels must reach unanimous decisions on the ultimate finding as to whether an accused is guilty beyond a reasonable doubt.
An SCM is conducted by a military judge sitting alone, who is responsible for the finding on the charges and imposing a sentence if the accused is found guilty.
At a court martial, the prosecution is conducted by a legal officer appointed by the DMP. In determining whether to prefer a matter for trial by court martial, military prosecutors must conduct a two-stage analysis. They must consider whether there is a reasonable prospect of conviction should the matter proceed to trial and whether the public interest requires that a prosecution be pursued. This test is consistent with those applied by Attorneys General throughout Canada and by prosecution agencies elsewhere in the Commonwealth.
In contrast with the public interest analysis applied elsewhere, the military justice system must take ad-ditional factors into account, such as:
- the likely effect on public confidence in military discipline or the administration of military justice;
- the prevalence of the alleged offence in the unit or military community at large and the need for general and specific deterrence; and
- the effect on the maintenance of good order and discipline in the CAF, including the likely impact, if any, on military operations.
Information relating to these and other public interest factors comes, in part, from the commanding officer of the accused, when they send the matter to their next superior officer in matters of discipline. That superior officer may also comment on public interest factors when referring the matter to the DMP.
An accused person tried by court martial is entitled to legal representation by or under the supervision of the Director of Defence Counsel Services. This legal representation is provided to an accused person at no cost. An accused person may also choose to retain a lawyer at their own expense.
In most cases, the accused person has the right to choose between trial by GCM or SCM. However, for the most serious offences, a GCM will generally be convened while an SCM will be convened for less serious offences.
Both an offender convicted by court martial and the MND have a right to appeal court martial decisions to the CMAC, a court comprised of civilian judges who are designated from the Federal Court of Canada and the Federal Court of Appeal, or appointed from the Superior Courts and Courts of Appeal of the provinces and territories.
CMAC decisions may be appealed to the SCC on any question of law on which a judge of the CMAC dissents, or on any question of law if leave to appeal is granted by the SCC.
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