Chapter 3: The Canadian Military Justice System
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 to meet the specific needs of the Canadian Armed Forces (CAF).7
The military justice system differs from its civilian counterpart in its objectives. In addition to ensuring that justice is administered fairly and 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 justice system from the civilian system.
The ability of the CAF 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 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 requirements articulated by Canada’s highest court.
The Structure of the Military Justice System
The Code of Service Discipline and Service Offences
The Code of Service Discipline (CSD), 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 and powers of arrest, along with the organization and procedures of service tribunals, appeals, and post-trial review.
The term "service offence" is defined in the NDA as “
an offence under this Act, 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.
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 or, where the matter is minor in nature, at the unit level.
The authorities and powers vested in Military Police members, such as peace officer status, are conferred by the NDA, the Criminal Code and the Queen’s Regulations and Orders for the Canadian Forces (QR&O). Amongst other duties, Military Police members conduct investigations and report on service offences that were committed, or alleged to have been committed by persons subject to the CSD. Military Police members maintain their professional independence in carrying out policing duties 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 legal advice 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 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 each type of service tribunal.
The summary trial is the most common form of service tribunal. During the reporting period, 1128 summary trials were held, representing 94% of all military justice proceedings (See the Annex 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 Judge Advocate General 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, then, 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, or 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.
During the reporting period, accused members elected trial by court martial 66 times out of the 404 cases (16.34%) in which an election was offered. This is an increase in the rate of elections taken from that reported in previous reporting periods; further analysis will be required.
The jurisdiction of a summary trial is limited by such factors as: the rank of the accused, the type of offence the accused is 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 matter 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 summary trial are straightforward and the powers of punishment are limited. This limitation 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 must obtain legal advice before making any determination.
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, 67 courts martial were held, representing 6% 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 [their] jurisdiction.”8
At a court martial, the prosecution is conducted by a military prosecutor authorized by the Director of Military Prosecutions. The accused is entitled to be represented by 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 court martial: General and Standing. The General Court Martial is composed 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 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 to the Court Martial Appeal Court of Canada (CMAC). The CMAC is composed 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 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
An accused may, pursuant to the Official Languages Act, choose to have his or her summary trial conducted in either English or French. Note A to QR&O 108.16 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 do 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, there were no reports of an accused person tried by a service tribunal other than in the official language of their choice.
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