Chapter 3: The Canadian Military Justice System: Structure and Year in Review

This chapter describes the structure of the Canadian military justice system and focuses on key aspects and statistics of the administration of military justice at summary trial and court martial.3

Canada’s 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 as 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).4

While the military justice system is equal and not subservient to the civilian justice system, it differs from its civilian counterpart in respect of some of 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 objectives 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 instill and maintain discipline. This particular need for discipline in the CAF is the raison d’être of the military justice system. Indeed, 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 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 Code of Service Discipline.” Thus, service offences include 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, then 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, then 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 tribunal: summary trials and courts martial. The QR&O outline procedures for the disposal of a charge by each type of service tribunal.

Summary Trials

The summary trial is the most common form of service tribunal. It allows for less serious 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.

During the reporting period, 827 summary trials were held, representing 92.20% of all military justice proceedings (See Annex A for detailed statistics); this is a decrease in comparison to the last reporting period and the lowest number of summary trials reported since the 2000-01 reporting period. This decrease of 335 summary trials in comparison to the last reporting period is coupled with a decrease of 624 charges in the overall number of charges disposed of at summary trial. In particular, the number of charges for disobedience of a lawful command, contrary to section 83 of the NDA, declined from 62 in the last reporting period to 31. Similarly, the number of charges for absence without authorized leave, contrary to section 90 of the NDA, declined from 667 to 459. Most significantly, the number of charges for conduct to prejudice of good order and discipline contrary to section 129 of the NDA declined from 711 to 391. The court martial decision in R. v. Brideau, 2014 CM 1005, which clarified the law with respect to negligent discharges (which are generally charged under section 129 of the NDA), along with a reduction in the number of troops on pre-deployment training and a change in international operations from ground- to air-centric operations all likely contributed to the reductions in summary trials and charges.

After a charge is laid by an authorized charge layer, 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 behavior, absence without leave, or drunkenness), an accused person has a right to be offered an election to be tried by court martial. The election process was designed to provide the accused with the opportunity to make an informed choice regarding the type of trial to be held, bearing in mind that an accused who elects not to be tried by court martial is, in effect, waiving the right to be tried by that form of trial with full knowledge of the implications. There are many differences between summary trials and courts martial. Courts martial are more formal and provide the accused more procedural safeguards than those available at summary trial, such as the right to be represented by legal counsel. The election process was designed to provide the accused a reasonable opportunity to be informed about both types of trial in order to decide whether to exercise the right to be tried by court martial and to communicate and record the choice.

During the reporting period, accused members elected trial by court martial 53 times out of the 295 cases in which an election was offered (17.97%). This rate of election to trial by court martial represents another consecutive increase. During the 2013-2014, 2012-2013 and 2011-2012 reporting periods, members respectively elected trial by court martial 15.68%, 14.20% and 8.93% of the time when an election was offered. This trend was identified during the last reporting period and this continued increase signals the need for an in-depth study of its cause. Consideration will be given as to what mechanisms should be used during the upcoming reporting period to obtain clarity on this continued increase.

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.

During the last reporting period, 40 cases were directly referred to court martial, including one where the presiding officer found in his pre-trial determinations that he did have not sufficient powers of punishment to try the accused5. This is a decrease from last year when 48 cases were directly referred to the DMP.

The disposition of charges by summary trial is meant to occur expeditiously. Accordingly, other than for two civil offences for which the limitation period is six-months6, 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 less serious nature of the offences involved, and the intent that the punishments be primarily corrective in nature.

Review of a Finding Made and/or Sentence Imposed at Summary Trial

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/or punishment imposed at summary trial may also be reviewed on the independent initiative of the CAF. A review authority is a more senior officer in the chain of command of the officer who presided over the summary trial, as designated by the QR&O. Review authorities must obtain legal advice before making any determination.

During the reporting period, reviews were conducted based on a request for review made by a member found guilty at summary trial or on a review authority’s own initiative 19 times based on finding, 15 times based on sentence, and 15 times based on both finding and sentence. The results of these reviews were as follows: 16 of the original decisions were upheld; 23 findings were quashed; 2 punishments were substituted; and, 8 punishments were mitigated, commuted or remitted. Given the decrease in number of summary trials held, the number of reviews during this reporting period (49) compared to the number of reviews during the last reporting period (46) reflects an increase from 3.9% to 5.9% in terms of percentage.7 This increase, similarly to the increase in court martial election, signals the need for an in-depth study of its causes. Likewise, consideration will be given as to what mechanisms should be used during the next reporting period to obtain clarity on this increase.

Summary Trial Database

During this reporting period, significant efforts were made to continue to validate and improve the accuracy of data within the existing summary trial database, which provides essential information to assist in the superintendence of the administration of military justice. For instance, with a view to minimizing the risk of misrepresenting any statistics reported, as noted in the 2013-14 Annual Report, NDA section 129 offences (conduct to the prejudice of good order and discipline), which were previously reported using broad classifications such as offences of a sexual nature, are no longer reported that way since it is difficult to identify these offences on a Record of Disciplinary Proceedings with reliable precision. In contrast, NDA section 129 offences arising from the negligent discharge of a weapon can be easily identified from the particulars set out in the RDP and are included in the report.

With a view to validating accuracy of the existing summary trial database, manual reviews of the Records of Disciplinary Proceeding for the last three reporting periods and this reporting period were conducted. The revised statistics, inclusive of Records of Disciplinary Proceedings received after the publication of the JAG Annual Report for their respective years, can be found at Annex A and B.8 The manual review disclosed that the current summary trial database was not completely accurate. In response, resources and priorities for the ongoing development of an improved database were increased. The new database is expected to be in place during the next reporting period.

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, 70 courts martial were held, representing 7.80% of service tribunals.9 This is a small increase of 3 courts martial in comparison to the last reporting period. 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.10

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. These courts martial can be convened anywhere, in Canada and abroad. The General Court Martial (GCM) 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 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 any finding of guilt. At a Standing Court Martial (SCM), the military judge sits alone, makes any of the required findings and, if the accused person is convicted, imposes the sentence. During this reporting period, 9 GCM and 61 SCM were convened across Canada.

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 (the Minister) 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. During the reporting period, 7 decisions were rendered by the CMAC, including 1 decision on an application for release pending appeal. In addition, 2 appeals were started but not pursued by the Minister and 2 by the convicted person. A total of 9 cases are also held in abeyance pending a Supreme Court of Canada (SCC) decision on the same constitutional question raised by those cases. During the reporting period, 7 new notices of appeal were filed with the CMAC. Out of the 7 applications, 5 were initiated by the convicted person and 2 by the Minister.

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. During this reporting period 4 requests for leave to appeal to the SCC were made; 3 made by convicted persons were granted and 1 by the DMP was dismissed without costs.

Statistics Reported

Annex A includes statistics for matters not previously reported on in previous reports. Suspended sentences of imprisonment and detention at court martial were previously not reported discretely, and were included in the reported numbers of sentences of imprisonment and detention. Annex A now includes separate statistics for suspended sentences of imprisonment and detention. Furthermore, appeals reporting have now been subdivided into CMAC statistics and SCC statistics.

Sexual Misconduct

In the 2013-14 Annual Report, it was noted that summary trial statistics related to "offences of a sexual nature" (pursuant to NDA section 129 – conduct to the prejudice of good order and discipline) were not included in the breakdown of section 129 offences following the 2009-2010 Annual Report. It was identified that this type of offence is typically set out on a Record of Disciplinary Proceedings with brief particulars that do not necessarily capture all of the alleged circumstances. Since it is difficult to identify these offences on an Record of Disciplinary Proceedings with reliable precision, and in order to minimize the risk of misrepresenting any statistics reported, it was decided to omit the breakdown of these NDA section 129 offences. Alternatives to obtain statistics with reliable precision for offences related to sexual misconduct that are disposed of at summary trial will be examined during the next reporting period.

In contrast, sexual misconduct offences disposed of at court martial can be accurately identified and reported. In particular, during the reporting period, 19 charges of sexual assault and 18 charges of breach of trust (sexual in nature) were disposed of at court martial.11 One charge of criminal harassment (sexual in nature) was also prosecuted at court martial. Finally, a total of 3 charges of possession of child pornography and 2 charges of access to child pornography were disposed of at court martial during the reporting period.

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, as chosen by 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, discrepancies between the language chosen for proceedings by the accused person and the language used to particularize offences on the Records of Disciplinary Proceedings were found in 13 cases. In addition, the manual review of Records of Disciplinary Proceedings disclosed 8, 15 and 23 cases with the same discrepancy for the 2013-2014, 2012-2013 and 2011-2012 reporting periods, respectively. Notwithstanding these discrepancies, there were no reports during this reporting period, nor the previous three reporting periods, of an accused person tried by a service tribunal other than in the official language of their choice. Further study will be carried out to determine the impact of these discrepancies on the language rights of the accused persons.


Footnotes

3 The statistics reported at annex A and discussed in this report are the statistics as of 20 May 2015. Statistics from the 2013-2014 reporting period found at annex A have been updated, compared to those reported in last year’s annual report, in order to reflect new data received as a result of late reporting. A manual review of all Records of Disciplinary Proceedings for the 2014-2015, 2013-2014, 2012-2013 and 2011-2012 reporting periods was conducted and the updated statistics for these respective years can be found at annexes A and B.

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

5 Pursuant to article 108.16(1)a.iii of the Queen’s Regulations and Orders for the Canadian Forces, before commencing a summary trial, an officer having summary trial jurisdiction shall, as part of pre-trial determinations, determine if his or her powers of punishment are inadequate having regard to the gravity of the alleged offence.

6 See note B at article 108.16(1)a.iii of the Queen’s Regulations and Orders for the Canadian Forces.

7 The number of reviews reported includes reviews requested by the accused person and those initiated by the CAF.

8 Statistics for the 2013-2014 and 2014-2015 reporting period can be found at Annex A and those for 2011-2012 and 2012-2013 can be found at Annex B.

9 There were 70 courts martial and 71 accused (1 joint trial).

10 See section 179 of the NDA.

11 Out of those 19 charges of sexual assault and 18 charges of breach of trust respectively, 11 (of 19) and 18 (of 18) were in relation to the same accused person in the same trial. The accused was found guilty of 10 counts of sexual assault and 15 counts of breach of trust; see R. v. Wilks, 2013 CM 3032 and R. v. Wilks, 2014 CM 3008.

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