ARCHIVED - Chapter 1: Discipline and the Military Justice System

1.1 Discipline

Discipline is the foundation of a professional military, and is critical to the success of CF operations. It is instilled by training and leadership, and is supported by the law. Proper discipline serves to ensure that all members of the CF respect the chain of command and follow their assigned orders even in the face of danger, that the use of force by the military is appropriately directed and controlled, and that all members of the military share and uphold a common set of institutional and ethical values. If a military force lacks discipline, or if disciplinary issues are not addressed appropriately, then the ability of that force to achieve its missions on behalf of the Government will be seriously compromised.

Commanders in the CF are legally responsible to execute the tasks assigned to them by the Government through the Chief of the Defence Staff. These commanders are responsible for ensuring the success of military missions, promoting the well-being and discipline of the CF members under their command, and properly managing the equipment and resources entrusted to them for defence purposes. Individual CF members are, in turn, legally responsible for promptly carrying out the lawful orders of their commanders.

To fulfil their respective roles, commanders and subordinate CF members must understand and respect the legal framework in which they operate, as well as the scope and importance of lawful orders. The success of military missions relies upon a well-educated and trained force that responds immediately to lawful direction and executes its tasks in an efficient manner. Discipline plays a central role in this regard, since failure to follow the rules or lawful orders can be detrimental to mission accomplishment and can put the lives of CF members and others at risk.

Maintaining discipline requires that military personnel be trained and held to high standards of both conduct and performance, and that the chain of command be accountable for maintaining these standards through leadership. Accordingly, the CF provides commanders at all levels with leadership training throughout their careers, and provides general training on discipline and military justice to all members on a progressive basis from the earliest stages of their service. Such training promotes a common understanding of the need for discipline, and reinforces that every CF member has a role to play in maintaining it.

While training and leadership are central to the maintenance and enforcement of discipline, the chain of command must also have a legal mechanism that it can employ to investigate and sanction those disciplinary breaches that require a formal response. In the CF, that mechanism is called the military justice system.

1.2 The Military Justice System

The military justice system is a separate yet parallel system of justice within the Canadian legal framework. It is distinct from, but similar in many ways to, the civilian criminal justice system. It is expressly recognized in, and subject to, the Canadian Charter of Rights and Freedoms³ and finds its legislative authority in the Code of Service Discipline (CSD) at Part III of the NDA.

The Supreme Court of Canada (SCC) has, on more than one occasion, recognized and confirmed the requirement for a separate system of military justice to maintain and enforce discipline.⁴ A clear articulation of the court's view on this point was expressed by then-Chief Justice Lamer in the 1992 case of R v. Généreux:

This excerpt touches upon several key themes with regard to military justice. First, by dealing quickly and fairly with “matters that pertain directly to the discipline, efficiency and morale of the military”, CF commanders enhance the operational effectiveness of the CF. Disciplined troops are well-trained, organized, highly motivated, and immediately responsive to direction, and the CF can only achieve the operational goals set by the Government of Canada when those conditions are met. If discipline breaks down, a military force cannot be relied upon to fulfil its critical mandate on behalf of the state.

If CF members break the rules, but are not held to account for their actions, it can negatively affect morale in the unit, and this is intimately tied to discipline and efficiency. The vast majority of members, who strive to uphold discipline and adhere to shared institutional values, may feel that the system has failed them by not dealing with the rule-breakers. The rule-breakers may be emboldened by this lack of response, and the disciplinary issues may worsen. Finally, others in the unit may perceive that the chain of command is condoning the actions in question, and decide to break the rules themselves. When military members fail to follow orders, then tasks cannot be carried out properly or efficiently, and this jeopardizes the success of the military mission. Lack of discipline begets further disciplinary problems, and a troublesome cycle is set in motion.

Second, the SCC notes that, “breaches of military discipline must be dealt with speedily and, frequently, punished more severely than would be the case if a civilian engaged in such conduct.” In this, the court recognizes that the negative impact of a CF member breaking the law (particularly during an overseas operation) is often disproportionately worse than if a civilian were to break that same law at home in Canada. While sleeping on the job or ignoring a supervisor's instructions might have negative career repercussions for a civilian, the same behaviour by a military member could result in death and mission failure. The military justice system allows commanders to address these realities on the spot, before disciplinary problems spread, or serious harm occurs.

Third is the notion that, “[r]ecourse to the ordinary criminal courts would, as a general rule, be inadequate to serve the particular disciplinary needs of the military”. This statement applies equally to service offences with a purely military character (such as the above examples of sleeping on duty or disobedience of a lawful command), as well as to service offences involving the Criminal Code or other federal legislation, charged under section 130 of the NDA. All such offences have a uniquely corrosive effect on military discipline and are therefore best handled by the expertise resident in the military justice system. Presiding officers bring an intimate understanding of the needs of unit discipline to the summary trial, while military prosecutors, military defence counsel and military judges can charge, defend and try service offences with an understanding of the military context that does not exist in the civilian system.

Possible delay in proceedings is also a concern. The negative effects on discipline that arise when an incident occurs would be further compounded if the military found itself unable to investigate, charge and try an accused member in a timely way. This could occur, for example, if the accused and witnesses were all deployed overseas, with no direct recourse to Canadian law enforcement or civilian courts. Delaying proceedings until the end of the deployment would have a serious effect on morale and discipline among deployed troops, while bringing CF members back during operations to work their way through an already overburdened civilian court system would have a real and detrimental impact on the ability of the CF to achieve Canada's international objectives.

As the SCC has recognized, the military justice system provides the answer to these concerns. It is portable, deployable, and tailored to the particular needs of the military. CF commanders are trained, and empowered with the legal authority to compel military personnel to carry out orders, and they have the legal means to expeditiously proceed against those who fail to comply - regardless of where the alleged offence occurs. Likewise, military judges are ready and able to deploy wherever charges must be heard by court martial. The laws and regulations applicable to the military justice system, found principally in the NDA and the Queen's Regulations and Orders for the Canadian Forces (QR&O), provide the legal basis for CF commanders to fairly carry out their disciplinary responsibilities, and they are constantly monitored to ensure that the rights of CF members are respected.

Footnotes

³ Subsection 11(f) of the Charter states that any person charged with an offence has the right … “except in the case of an offence under military law tried before a military tribunal, to the benefit of trial by jury where the maximum punishment for the offence is imprisonment for five years or a more severe punishment.”

⁴ Mackay v. The Queen, [1980] 2 S.C.R. 370 and R. v. Généreux, [1992] 1 S.C.R. 259

⁵ R v. Généreux, [1992] 1 S.C.R. 259 at 293.