ARCHIVED - Chapter 3: The Canadian Military Justice System - 2012-13

Canada’s military justice system is a separate and parallel system of justice that forms an integral part of the Canadian legal mosaic. It shares many of the same underlying principles with the civilian criminal justice system, and it is subject to the same constitutional framework including the Canadian Charter of Rights and Freedoms (Charter). Indeed, the military justice system is expressly recognized in the Charter. On more than one occasion, the Supreme Court of Canada has directly addressed the requirement for a separate, distinct military justice system and has each time upheld the requirement for this type of justice system in the Canadian Armed Forces (CAF).⁵

The military justice system differs from its civilian counterpart in its objectives. In addition to ensuring that justice is administered fairly with respect for the rule of law, the military justice system is also designed to promote the operational effectiveness of the CAF by contributing to the maintenance of discipline, efficiency, and morale. These dual objectives of discipline and fairness give rise to many of the substantive and procedural differences that properly distinguish the military system from the civilian system.

The ability of Canada’s military to operate effectively depends on the ability of its leadership to instil and maintain discipline. While training and leadership are central to the maintenance of discipline, the chain of command must also have a legal mechanism that it can employ to investigate and sanction disciplinary breaches that require a formal, fair, and prompt response. As the Supreme Court of Canada observed in 1992, in R. v. Généreux, “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. […] There is thus a need for separate tribunals to enforce special disciplinary standards in the military.” The military justice system is designed to meet those unique needs articulated by Canada’s highest court.

The Structure of the Military Justice System

Code of Service Discipline and Service Offences

The Code of Service Discipline (CSD), set out at Part III of the National Defence Act (NDA), is the foundation of the Canadian military justice system. It sets out disciplinary jurisdiction and describes service offences that are essential to the maintenance of discipline and operational effectiveness. It also sets out punishments, powers of arrest, along with the organization and procedures for service tribunals, appeals, and post-trial review.

The term “service offence” means “an offence under the NDA , the Criminal Code, or any other Act of Parliament, committed by a person while subject to the CSD.” Thus, service offences include many disciplinary offences that are unique to the profession of arms, such as disobedience of a lawful command, absence without leave, and conduct to the prejudice of good order and discipline, in addition to more conventional offences that are created by the Criminal Code and other Acts of Parliament. The diverse scope of service offences that fall within the CSD permits the military justice system to foster discipline, efficiency and morale, while ensuring fair justice within the CAF.

Members of the Regular Force of the CAF are subject to the CSD everywhere and at all times, whereas members of the Reserve Force are subject to the CSD only in the circumstances specified in the NDA. Civilians may be subject to the CSD in limited circumstances, such as when accompanying a unit or other element of the CAF during an operation. In this reporting period, a court martial decision confirmed that the NDA provisions subjecting civilians to the CSD are not unconstitutional and do not infringe the rights conferred by the Charter.⁶

Investigations and Charge Laying Process

If there are reasons to believe that a service offence has been committed, an investigation is conducted to determine whether there may be sufficient grounds to lay a charge. If the complaint is of a serious or sensitive nature, the Canadian Forces National Investigation Service (CFNIS) will examine the complaint and investigate as appropriate. Otherwise, investigations are conducted either by Military Police (MP) or, where the matter is minor in nature, at the unit level.

The authorities and powers vested in MP members are conferred by the NDA, the Criminal Code and the Queen’s Regulations and Orders for the Canadian Forces (QR&O). Amongst other duties, MP conduct investigations and report on criminal and service offences that were committed, or alleged to have been committed by those persons subject to the CSD. MP members maintain their professional independence and, as such, are not influenced by the chain of command in order to preserve and ensure the integrity of all investigations.

If a charge is to be laid, an officer or non-commissioned member having authority to lay a charge, which includes members of the CFNIS, is required to obtain advice from a JAG legal officer before laying a charge in respect of an offence that is not authorized to be tried by summary trial, is alleged to have been committed by an officer or a non-commissioned member above the rank of sergeant or, if a charge were laid, would give rise to a right to elect to be tried by court martial. The legal advice must address the sufficiency of the evidence, whether or not in the circumstances a charge should be laid and, where a charge should be laid, the appropriate charge.

The Two Tiers of the Military Justice System

The military justice system has a two-tiered tribunal structure comprised of two types of service tribunals: summary trials and courts martial. The QR&O outline procedures for the disposal of a charge by summary trial or by court martial.

Summary Trials

The summary trial is the most common form of service tribunal. During the reporting period, 1210 summary trials were held, representing 95% of all military justice proceedings (See Annex A for a detailed statistical review). The summary trial process allows for relatively minor service offences to be tried and disposed of quickly and at the unit level.

Summary trials are presided over by members of the chain of command, who are trained and certified by the JAG as qualified to perform their duties as presiding officers in the administration of the CSD. All accused members are entitled to an assisting officer, who is appointed under the authority of a commanding officer to assist the accused in the preparation of his or her case and during the summary trial.

If it is determined that the accused can be tried by summary trial, except for cases involving a limited number of prescribed offences whose surrounding circumstances are sufficiently minor (for example, certain cases of insubordinate behaviour, absence without leave, and drunkenness), an accused person by right will be offered an election to be tried by court martial. Before exercising this right, the accused will have the opportunity to consult with legal counsel (from Defence Counsel Services) before making this election.

During the reporting period, accused members elected trial by court martial 39 times out of the 415 cases (9.4 %) in which an election was offered. The relatively low number of elections for trial by court martial is consistent with past years, and continues to be indicative of the perceived fairness of the summary trial process.

The jurisdiction of a summary trial is limited by such things as: the rank of the accused, the type of offence the accused was charged with and whether the accused has elected to be tried by court martial. In those cases that cannot be dealt with by summary trial, the matter is referred to the Director of Military Prosecutions (DMP), who determines whether the charge will be disposed of by court martial.

The disposition of charges by summary trial is meant to occur expeditiously. Accordingly, a presiding officer may not try an accused person by summary trial unless the trial commences within one year after the day on which the service offence is alleged to have been committed.

The procedures at a summary trial are straightforward and the powers of punishment are limited in scope. This restriction on the severity of punishments reflects both the relatively minor nature of the offences involved, and the intent that the punishments be primarily corrective in nature.

Review of Summary Trials

All offenders convicted at summary trial have the right to apply to a review authority for a review of the findings, the punishment imposed, or both. The findings and punishment imposed at summary trial may also be reviewed on the independent initiative of a review authority. The review authority is a more senior officer in the chain of command designated by the QR&O. Review authorities acting under QR&O 108.45 must obtain legal advice before making any determination on requests for review.

Courts Martial

The court martial – a formal military court presided over by a military judge – is designed to deal with more serious offences. During the reporting period, 64 courts martial were held, representing 5% of service tribunals. Courts martial are conducted in accordance with rules and procedures similar to those of civilian criminal courts and have the same rights, powers and privileges as a superior court of criminal jurisdiction with respect to all “matters necessary or proper for the due exercise of its jurisdiction.”⁷

At a court martial, the prosecution is conducted by a military prosecutor assigned by the DMP. The accused is entitled to have defence counsel assigned by the Directorate of Defence Counsel Services at no cost, or by civilian counsel at his or her expense. The accused can also choose not to be represented by a lawyer.

The NDA provides for two types of courts martial: General and Standing. The General Court Martial is composed of a military judge and a panel of five CAF members. The panel of CAF members is selected randomly and is governed by rules that enhance the specific character of military panels. At a General Court Martial, 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 any finding of guilt. At a Standing Court Martial, the military judge sits alone, makes any of the required findings, and if the accused person is convicted, imposes the sentence.

Appeal of a Court Martial Decision

Decisions made at courts martial may be appealed by the person subject to the CSD or the Minister of National Defence (or counsel instructed by the Minister) to the Court Martial Appeal Court of Canada (CMAC). The CMAC is composed of selected civilian judges who are designated from the Federal Court of Canada and the Federal Court of Appeal, as well as civilian judges of the Superior Courts and Courts of Appeal of the Provinces and Territories.

CMAC decisions may be appealed to the Supreme Court of Canada 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 Supreme Court of Canada.

Compliance with the Official Languages Act

In June 2012, the JAG undertook to the Chief of Military Personnel to include in JAG Annual Reports the military justice system’s regulatory framework which ensures that accused member be tried in their language of choice and to report on any service tribunal proceedings affected by non-compliance with the requirements of the Official Languages Act (OLA).

Note A to QR&O 108.06 states that an accused may, pursuant to the OLA, choose to have his summary trial conducted in either English or French. It further states that the presiding officer must be able to understand the official language in which the proceedings are to be conducted without the assistance of an interpreter and, should he or she determine that they so not have the required language ability, the officer should refer the charge to another officer who has the required ability. QR&O 107.07 prescribes the form of a Record of Disciplinary Proceedings, in which the language of the proceedings of the accused must be recorded.

A similar provision exists for courts martial. QR&O 111.02(2)(b) requires that orders convening a court martial must indicate the language of proceedings chosen by the accused.

During the reporting period, one case was reported in which an accused person received a copy of the convening order that was not in the official language of their choice. The accused was tried by court martial in their official language.

Footnotes

⁵ R. v. Généreux, [1992] 1 S.C.R. 259; Mackay v. R., [1980] 2 S.C.R. 370 at 399.

⁶ R. v. Wehmeier (2012), CM 1005 and 1006. The decision has been appealed to the Court Martial Appeal Court.

⁷ See s.179 of the NDA.