Chapter Two — The Canadian Military Justice System: Structure and Statistics

Canada’s Military Justice System

Canada’s military justice system operates in parallel with its civilian criminal justice counterpart and 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.^{Footnote 1} On several occasions, the Supreme Court of Canada has affirmed the requirement for a separate, distinct military justice system to meet the specific needs of the Canadian Armed Forces^{Footnote 2} and has recognized the military justice system as a “full partner in administering justice alongside the civilian justice system.”^{Footnote 3}

The military justice system is designed to promote the operational effectiveness of the Canadian Armed Forces by contributing to the maintenance of discipline, efficiency, and morale, while ensuring that justice is administered fairly and with respect to the rule of law.

The Structure of the Military Justice System

The Code of Service Discipline

The Code of Service Discipline, which is contained in Part III of the National Defence Act,^{Footnote 4} is “[t]he foundation of Canada’s military justice system.”^{Footnote 5} It is “an essential ingredient of service life”^{Footnote 6} that “defines the standard of conduct to which military personnel and certain civilians are subject and provides for a set of military tribunals to discipline breaches of that standard.”^{Footnote 7} The Code of Service Discipline's purpose is amplified by the National Defence Act which is to maintain the discipline, efficiency and morale of the Canadian Armed Forces^{Footnote 8} and it “serves a public function as well by punishing specific conduct which threatens public order and welfare.”^{Footnote 9} It also sets out the procedures and organization of service tribunals, the jurisdiction of various actors in the military justice system, the powers of punishment, and the post-trial review and appeal mechanisms.

The term “service offence” is defined in the National Defence Act 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.”^{Footnote 10} Thus, service offences include many disciplinary offences that are unique to the profession of arms, such as disobedience of a lawful command,^{Footnote 11} absence without leave,^{Footnote 12} and conduct to the prejudice of good order and discipline,^{Footnote 13} as well as the more conventional offences such as those found in the Criminal Code^{Footnote 14} and other Acts of Parliament. Members of the Regular Force of the Canadian Armed Forces are subject to the Code of Service Discipline everywhere and at all times, whereas members of the Reserve Force are subject to the Code of Service Discipline only in the circumstances specified by section 60 of the National Defence Act.

The Two Tiers of the Military Justice System

During the reporting period, the military justice system had a tiered tribunal structure comprised of two types of service tribunals: summary trials and courts martial. The Queen’s Regulations and Orders for the Canadian Forces^{Footnote 15} outline procedures for the disposal of a charge by each type of service tribunal.

The following sections describe the two tiers of the military justice system. However, with the implementation of An Act to amend the National Defence Act and to make related and consequential amendments to other Acts,^{Footnote 16} the summary trial process will become a non-penal, non-criminal summary hearing process designed to address minor breaches of military discipline at the unit level. With this reform, courts martial alone will have jurisdiction to decide service offences. A more detailed description of the work undertaken during the reporting period to enable the implementation of Bill C-77 can be found in Chapter 4.

Summary Trials

The summary trial is the most commonly used form of service tribunal. It allows for relatively minor breaches of discipline to be tried and disposed of quickly at the unit level. Summary trials are presided over by commanding officers or their delegates, who are trained and certified by the Judge Advocate General as qualified to perform their duties as presiding officers in the administration of the Code of Service Discipline.^{Footnote 17} All accused members are entitled to be assigned an assisting officer who will aid the accused member in the preparation of their case, during the summary trial,^{Footnote 18} and in the preparation of any post-trial request for review.^{Footnote 19} “The procedures [at summary trial] are straightforward and the powers of punishment limited in scope.”^{Footnote 20} This limitation reflects both the relatively minor nature of the offences involved, and the intent that the punishments be primarily corrective in nature.

The jurisdiction at summary trial is limited by factors such as the rank of the accused and the offence or offences charged. All service offences may be tried by court martial, and while some offences must be tried by court martial, those listed in article 108.07 of the Queen’s Regulations and Orders for the Canadian Forces may also be tried by summary trial. Military judges^{Footnote 21} and other officers at or above the rank of colonel,^{Footnote 22} can only by tried by courts martial.

For the majority of offences that can be dealt with by summary trial, the accused member will have the right to elect a trial by court martial.^{Footnote 23} The election process has been designed to provide the accused member with the opportunity to make an informed choice regarding the type of service tribunal that will try the matter.

Charges laid under the Code of Service Discipline must be dealt with as expeditiously as the circumstances permit.^{Footnote 24} Unless the accused member waives the limitation periods, they may not be tried by summary trial unless the charge is laid within six months after the day on which the service offence is alleged to have been committed, and the summary trial commences within one year after that day.^{Footnote 25}

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

A member of the Canadian Armed Forces found guilty of a service offence at summary trial has the right to request that a review authority review the finding rendered, the punishment imposed, or both.^{Footnote 26} A review authority may also, on their own initiative, undertake a review of the finding and/or punishment.^{Footnote 27} As provided for under articles 108.45 and 116.02 of the Queen’s Regulations and Orders for the Canadian Forces, a review authority is typically a more senior officer in the chain of command of the officer who presided over the summary trial. A review authority may quash any findings of guilty made at summary trial, substitute any finding of guilty or punishment, or may mitigate, commute or remit any punishment imposed at summary trial.^{Footnote 28} Before making any determination, a review authority must obtain legal advice.^{Footnote 29}

Courts Martial

A court martial is a formal military court presided over by a military judge who possesses all of the constitutional hallmarks of independence. It is designed to deal with more serious offences and has powers of punishment up to and including imprisonment for life. Courts martial are conducted in accordance with rules and procedures similar to those of civilian criminal courts, while taking into account the unique requirements of the military justice system. Courts martial exercise 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.”^{Footnote 30}

Courts martial, like summary trials, may take place anywhere in Canada and abroad. The National Defence Act 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 Canadian Armed Forces members. The panel serves as the trier of fact and decides on any finding of guilt. In the event of a guilty finding, it is the military judge who determines the sentence or directs that the offender be discharged absolutely. At a Standing Court Martial, the military judge sits alone, makes any required findings and, if the accused person is found guilty, imposes the sentence or directs that the individual be discharged absolutely.

At court martial, the prosecution is conducted by a military prosecutor under the authority of the Director of Military Prosecutions. The accused is entitled to be represented by defence counsel assigned by the Director of Defence Counsel Services at no cost or by civilian counsel at their own expense.^{Footnote 31}

Appeal of a Court Martial Decision

Decisions made at court martial may be appealed to the Court Martial Appeal Court of Canada.^{Footnote 32} The Court Martial Appeal Court of Canada is composed of civilian judges who are appointed by the Governor in Council from the Federal Court of Appeal, the Federal Court, or from the superior courts and courts of appeal of the provinces and territories. Court Martial Appeal Court of Canada decisions may be appealed to the Supreme Court of Canada on any question of law on which a judge of the Court Martial Appeal Court of Canada dissents, or on any question of law when leave to appeal is granted by the Supreme Court of Canada.

Statistics

The statistics provided in this chapter reflect the quantitative data collected on the military justice system over the 2021/22 reporting period. This reporting period marks the second full reporting period affected by the COVID-19 pandemic. During the last reporting period it was noted that there was a significant decrease in the number of summary trials and courts martial. It is reasonably likely that this decrease can be attributed to the measures taken by the Department of National Defence and the Canadian Armed Forces to protect the health and well-being of its members and prevent the spread of the virus such as: limiting the number of personnel in the workplace; restricting social gatherings; and transitioning from in person to online training. This reporting period saw the easing of some of these measures and a corresponding increase in the number of both summary trials and courts marital. Overall, as compared to the last reporting period, the number of summary trials increased by approximately 35% and courts martial increased by approximately 29%.

Summary Trials

Number of Summary Trials 

During this reporting period, 388 summary trials and 48 courts martial were conducted. Summary trials comprised 89% of service tribunals held during the reporting period. Summary trials continued to be the most widely used form of service tribunal in the Canadian Armed Forces.

Figure 2-1 shows the number of summary trials and courts martial held over the last two reporting periods as well as the corresponding percentage of cases tried by each type of service tribunal. Figure 2-2 shows the total number of summary trials by reporting period since 2017/18.

Figure 2-1: Distribution of Service Tribunals

Figure 2-2: Number of Summary Trials^{Footnote 33} 

Figure 2-3 shows the total number of summary trials held over the last two reporting periods by organization. Figure 2-4 specifically illustrates the number of summary trials held since the 2017/18 reporting period within the following five commands: the Canadian Army, the Royal Canadian Navy, the Royal Canadian Air Force, Military Personnel Command, and the Canadian Joint Operations Command.

Figure 2-3: Number of Summary Trials by Organizations

Figure 2-4: Number of Summary Trials for the Canadian Army, the Royal Canadian Navy, the Royal Canadian Air Force, the Military Personnel Command, and the Canadian Joint Operations Command 

In this reporting period, the Canadian Army held a total of 196 summary trials as compared to 158 in the previous reporting period. This is an increase of 38 summary trials, or approximately 24%.

Since 2017/18, the Royal Canadian Navy has seen a steady decrease in summary trials. During this reporting period, there were a total of 48 summary trials, as compared to 61 in the previous reporting period. This is a decrease of approximately 21%.

The Royal Canadian Air Force conducted 56 summary trials in this reporting period, which is an increase of 12% from the 49 held during the last reporting period.

In this reporting period, 42 summary trials were conducted within the Military Personnel Command, compared to 22 in the previous reporting period. This represents an increase of approximately 90%.

Finally, the Canadian Joint Operations Command held 30 summary trials in comparison to 28 in the previous reporting period. This represents an increase of approximately 7%. Since 2017-18, the number of summary trials held by the Canadian Joint Operations Command summary has varied, displaying no significant pattern of increase or decrease.

Number of Charges Disposed of at Summary Trial^{Footnote 34}

In this reporting period, there were a total of 502 charges disposed of at summary trial compared to 477 during the 2020/21 reporting period. Figure 2-5 shows the total number of charges disposed of at summary trial since 2017/18, and demonstrates a consistent decrease until the 2020/21 reporting period and a slight increase in this reporting period.

Figure 2-5: Number of Charges Disposed of at Summary Trial

The most commonly charged service offences disposed of at summary trial are under section 90 of the National Defence Act, absence without leave and under section 129, conduct to the prejudice of good order and discipline.^{Footnote 35} These charges account for 80% of all charges disposed of by summary trial.

In consideration of the past 5 reporting periods, there has been a consistent decrease in the total number of charges reported for absence without leave. In the current reporting period the total number was 146, compared to 153 in the 2020/21 reporting period.

In this reporting period, there were a total of 253 charges for the offence of conduct to the prejudice of good order and discipline. This reporting period saw a significant increase in the number of charges from the 180 charges reported in the 2020/21 reporting period. Figure 2-6 shows the number of charges for absence without leave and conduct to the prejudice of good order and discipline between 2017/18 and 2021/22.

Figure 2-6: Number of Charges for Conduct to the Prejudice of Good Order and Discipline and Absence without Leave

Number of Elections to be Tried by Court Martial

Pursuant to article 108.17 of the Queen’s Regulations and Orders for the Canadian Forces, an accused person will be offered an election to be tried by court martial, unless the following two criteria are met:

• each offence with which the individual has been charged is one of the following: insubordination, drunkenness, absence without leave, quarrels and disturbances, and conduct to the prejudice of good order and discipline (where the offence relates to military training, maintenance of personal equipment, quarters or work space, or dress and deportment); and,
• the circumstances surrounding the commission of the offence are so minor in nature that the presiding officer concludes that a punishment of detention, reduction in rank, or a fine in excess of 25 percent of monthly basic pay would not be warranted if the accused person were found guilty of the offence.

During this reporting period, a total of 88 elections to be tried by court martial were offered to accused persons. Out of the 88 elections offered, 57 accused persons elected to be tried by summary trial, which represents 65% of the total elections offered. The remaining 31 accused persons elected to be tried by court martial, which represents 35% of the total elections offered. The percentage of accused persons electing to be tried by court martial has increased by 7% from the 2020/21 reporting period.

Figure 2-7 represents the percentage of accused members who elected to be tried by court martial over the past five reporting periods.

Figure 2-8 shows the number of summary trials completed over the past five reporting periods where the accused person was offered an election to be tried by court martial, as well as the number of summary trials completed where no election was offered.

Figure 2-9 shows the percentage of summary trials completed over the past five reporting periods over the past five reporting periods where an accused person was offered an election and elected to be tried by summary trial.

Figure 2-7: Percentage of Accused Electing to be Tried by Court Martial

Figure 2-8: Number of Summary Trials Completed where Election Offered and Not Offered^{Footnote 36} 

Figure 2-9: Number of Summary Trials Completed where Accused Offered an Election, expressed as a Percentage

Waiver of Limitation Periods for Summary Trials 

In order for charges to be dealt with at summary trial a charge must be laid against an accused person within six months from the date on which the service offence is alleged to have been committed, and the summary trial must commence within one year of that date.^{Footnote 37} An accused person has the right to waive one or both of these limitation periods.^{Footnote 38}

In this reporting period, there were 29 waivers offered to accused persons, a decrease of 26 from the 2020/21 reporting period. Of the 29 waivers offered, the accused person chose to waive one or both of the limitation periods in 20 cases.

Results by Charge at Summary Trial

The findings at summary trial, by charge, have remained relatively consistent over the last five reporting periods. This reporting period saw an increase in the percentage of guilty findings, from approximately 87% in the 2020/21 reporting period, to approximately 90% in this reporting period. Although the number of not guilty findings has decreased from 43 to 40, not guilty findings made up approximately 8% of findings in this reporting period as opposed to approximately 9% in the previous reporting period. A complete breakdown of the total number of findings by charge and the corresponding percentages for the last two reporting periods can be found at Figure 2-10.

Figure 2-10: Findings by Charge

Punishments and Absolute Discharges at Summary Trial

In this reporting period, there were a total of 467 punishments and absolute discharges imposed at summary trial.^{Footnote 39} Fines and confinement to ship or barracks continued to be the most commonly imposed punishments. Figure 2-11 shows the number of absolute discharges and punishments by type that were imposed at summary trial for the last two reporting periods as well as the corresponding percentages.

Figure 2-11: Punishments and Absolute Discharges at Summary Trial

In this reporting period, the punishment of detention was imposed 1 time. This number is consistent with the previous reporting period, where 2 punishments of detention were imposed, and none were suspended. An overview of the number of punishments of detention imposed at summary trial over the last five reporting periods can be found in Figure 2-12.

Figure 2-12: Total Punishments of Detention

Summary Trial Reviews

In the current reporting period, a total of 29 summary trials were reviewed pursuant to article 108.45 (requests by members found guilty at summary trial) and article 116.02 (on the review authority’s own initiative) of the Queen’s Regulations and Orders for the Canadian Forces. This represents approximately 8% of the 388 summary trials conducted in this reporting period. The number also represents a consistency with the 8% which is the percentage of reviews conducted during the 20-21 reporting period. Of the reviews, 11 were based on findings, four were based on sentencing, and 14 were based on both findings and sentencing. Figure 2-13 shows the percentage of cases for which a review has been conducted since 2017/18.

Figure 2-13: Percentage of Summary Trials Reviewed

In relation to a review, a review authority can render one of the following decisions: to uphold the presiding officer’s decision; to quash a guilty finding; or to substitute a finding or punishment imposed at a summary trial. In this reporting period, review authorities quashed 76% of the findings for which a review was undertaken. Additionally, review authorities upheld 17% of the decisions of presiding officers. A complete breakdown of all decisions of review authorities for the past two reporting periods can be found at Figure 2-14.

Figure 2-14: Decisions of Review Authority

Code of Service Discipline Offences - Sexual Misconduct

At the summary trial level, charges connected to sexual misconduct, which do not meet the threshold of a sexual offence in the Criminal Code, are most frequently charged under section 129 of the National Defence Act, conduct to the prejudice of good order and discipline. This includes but is not limited to behaviours such as sexual harassment and the sharing and displaying of inappropriate materials such as comments, videos or photos of a sexual nature.

In the current reporting period, there were a total of 26 charges for the offence of conduct to the prejudice of good order and discipline in relation to sexual misconduct, compared to 22 charges in the previous reporting period. Of these 26 charges, 24 resulted in a guilty finding and 2 in a finding of not guilty. Furthermore, of these 26 charges: 20 were related to verbal comments of a sexual nature; 5 related to physical acts of a sexual nature; and 1 related to displaying materials of a sexual nature.

Language of Summary Trials

Pursuant to article 108.16 of the Queen’s Regulations and Orders for the Canadian Forces, accused persons have the right to be tried in the official language of their choice. The presiding officer must be able to understand the language in which the proceedings are to be conducted without the assistance of an interpreter.

In this reporting period, 73% of summary trials were conducted in English and 27% were conducted in French. These numbers are consistent with the previous reporting period. Figure 2-15 shows the total number of summary trials conducted in both English and French for the past two reporting periods.

Figure 2-15: Language of Summary Trials

Timelines for Summary Trials

The purpose of summary trials is to provide prompt and fair justice in respect of minor breaches of discipline. As such, these trials are required to begin within one year of the date on which the offence is alleged to have occurred, unless this limitation period is waived by the accused person.^{Footnote 40}

This reporting period saw 388 summary trials completed, and the average time from the alleged offence to the conclusion of the summary trial was approximately 94 days. Of these 388 summary trials, 231 concluded within 90 days of the alleged offence, representing approximately 60% of all summary trials for the reporting period. Further, approximately 86% of summary trials were concluded within 180 days of the alleged offence. Figure 2-16 shows a breakdown of the number of days from the alleged offence to the conclusion of the summary trial.

Figure 2-16: Number of Days from Alleged Offence to the Conclusion of the Summary Trial for Reporting Period 2021/22^{Footnote 41}

Once a charge is laid by the appropriate authority and is referred to a presiding officer, the presiding officer may be required to obtain legal advice before commencing the summary trial.^{Footnote 42} Once legal advice has been received from the unit legal adviser, the presiding officer may commence the summary trial.

Over the past five reporting periods, the average time between the laying of a charge to the conclusion of the summary trial has fluctuated, reaching a low average of 15 days in the 2017/18 reporting period. The time it took during the current reporting period to hold a summary trial was on average 10 days less than the last reporting period. The current reporting period shows an average of 28 days from charge laid to summary trial. Figure 2-17 shows the average time from charge laid to the conclusion of the summary trial over the last five reporting periods.

Figure 2-17: Average Number of Days from Charge Laid to Summary Trial

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Courts Martial^{Footnote 43}

Number of Courts Martial

During this reporting period, 48 courts martial were conducted, representing approximately 11% of all trials held by service tribunals. This is an increase of 14 courts martial from the previous reporting period. Figure 2-18 demonstrates the number of courts martial by year since 2017/18.

Figure 2-18: Number of Courts Martial

Results by Case at Court Martial

Of the 48 courts martial held during this reporting period, 33 cases resulted in a finding of guilty on at least one charge; 14 cases resulted in a finding of not guilty of all charges or a stay of proceedings; 1 case the accused was found not criminally responsible on account of a mental disorder; 0 cases resulted in a termination of proceedings; and 0 cases resulted in all charges being withdrawn. Figure 2-19 shows the disposition by case over the past two reporting periods.

Figure 2-19: Disposition of Cases at Court Martial

Director of Military Prosecutions Case Management

Referrals

During this reporting period, the Director of Military Prosecutions received a total of 91 referrals or requests for charges to proceed for trial by court martial, an increase of 15 cases from the previous reporting period. There were 14 cases carried over from the previous reporting period resulting in a total of 105 referrals dealt with in 2021/22. This number represents a decrease of 15% when compared to the 123 referrals processed in the previous reporting period.

Figure 2-20 shows the number of referrals received by the Director of Military Prosecutions over the last five reporting periods and the number of referrals processed within each respective reporting period.

Figure 2-20: Number of Referrals

Preferrals and Non-Preferrals

During this reporting period, the Director of Military Prosecutions proceeded with charges or preferred charges in 51 cases for trial by courts martial and there were 21 cases where the Director of Military Prosecutions did not proceed with or prefer any charges. The percentage of cases preferred for trial by court martial in this reporting period was 71%. Although the number of cases preferred represents a slight decrease from the 2020/21 reporting period in which 55 cases were preferred, the percentage of preferrals has decreased by 6%.

Figure 2-21 illustrates the number of cases preferred by the Director of Military Prosecutions and the number of files where no charges were preferred over the past five reporting periods.

Figure 2-21: Number of Preferrals and Non-Preferrals^{Footnote 44} 

Punishments at Court Martial

Figure 2-22 breaks down the punishments imposed by courts martial over the past two reporting periods. The most common punishments imposed continues to be fines, followed by severe reprimands.

Figure 2-22: Punishments at Courts Martial

Code of Service Discipline Offences - Sexual Misconduct

During this reporting period, a total of 18 completed courts martial (or approximately 38% of all courts martial) dealt with allegations of sexual misconduct. Of those, 7 cases resulted in a finding of guilty; 10 cases resulted in a finding of not guilty or a stay of proceedings; 1 case the accused was not criminally responsible; 0 cases resulted in a termination of proceedings; and 0 cases resulted in all charges being withdrawn by the Director of Military Prosecutions.

In the previous reporting period, a total of 14 courts martial (or approximately 41%) dealt with charges of sexual misconduct, with 9 resulting in a finding of guilt. This reporting period saw an increase of 17% in the number of courts martial dealing with sexual misconduct. Figure 2-23 sets out the sexual misconduct cases by result at courts martial during this reporting period.

Figure 2-23: Sexual Misconduct Cases by Result at Courts Martial