The Canadian Military Justice System

The Structure of 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 system and it is subject to the same constitutional framework, including the Canadian Charter of Rights and Freedoms.^{Footnote 9} 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 10} and has recognized the military justice system as a “full partner in administering justice alongside the civilian justice system.”^{Footnote 11}

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 Code of Service Discipline

The Code of Service Discipline, contained in Part III of the National Defence Act,^{Footnote 12} is “[t]he foundation of Canada’s military justice system”.^{Footnote 13} It is “an essential ingredient of service life”^{Footnote 14} 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 15} The National Defence Act describes the Code’s purpose as the maintenance of the discipline, efficiency, and morale of the Canadian Armed Forces.^{Footnote 16} It has also been recognized as serving a public function “by punishing specific conduct which threatens public order and welfare.”^{Footnote 17} Additionally, the Code sets out the procedures and organization of service tribunals, the jurisdiction of various actors in the military justice system, the scale 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 18} Thus, service offences include many disciplinary offences that are unique to the profession of arms, such as disobedience of a lawful command,^{Footnote 19} absence without leave^{Footnote 20} and conduct to the prejudice of good order and discipline,^{Footnote 21} as well as the more conventional offences such as those found in the Criminal Code^{Footnote 22} and other Acts of Parliament. Members of the Regular Force of the Canadian Armed Forces are always subject to the Code of Service Discipline, 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.

Further, since the coming into force of Bill C-77, An Act to amend the National Defence Act and to make related and consequential amendments to other Acts^{Footnote 23} on 20 June 2022, the Code of Service Discipline now incorporates the concept of “service infractions”. A more complete discussion of service infractions and the associated summary hearings can be found in the following sections.

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The Two Tiers of the Military Justice System

During the reporting period, the military justice system had a tiered structure comprised of two types of service tribunals. Prior to 20 June 2022, the two tiers were summary trials and courts martial. After that date, the two tiers became summary hearings and courts martial. The Code of Service Discipline and the Queen’s Regulations and Orders for the Canadian Forces^{Footnote 24} outline procedures for the disposal of a charge by each type of service tribunal.

The following sections describe each tier of the military justice system. With the coming into force of Bill C-77, the summary trial system was retired, and the new summary hearing system came into effect. The summary hearing system is a non-penal, non-criminal process designed to address minor breaches of military discipline at the unit level. With this reform, courts martial alone have jurisdiction to try service offences. A more detailed description of the summary hearing system can be found below.

1. Summary Trials

The summary trial was the most common form of service tribunal prior to 20 June 2022. It allowed for relatively minor breaches of discipline to be tried and disposed of quickly at the unit level. Summary trials were presided over by commanding officers or their delegates, who were 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 25} All accused members were entitled to be assigned an assisting officer who aided the accused member in the preparation of their case, during the summary trial, and in the preparation of any post-trial request for review. As the Supreme Court of Canada observed about summary trials: “The procedures are straightforward and the powers of punishment limited in scope.”^{Footnote 26} This limitation reflected 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 was 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 had to be tried by court martial, those listed in article 108.07 of the 2019 Queen’s Regulations and Orders for the Canadian Forces could also be tried by summary trial. Military Judges^{Footnote 27} and other officers at or above the rank of colonel^{Footnote 28} could only by tried by courts martial.

For most offences that could be dealt with by way of a summary trial, the accused member had the right to elect a trial by court martial.^{Footnote 29} The election process was designed to provide the accused member with the opportunity to make an informed choice regarding the type of service tribunal that would try the matter.

Charges laid under the Code of Service Discipline must be dealt with as expeditiously as the circumstances permit.^{Footnote 30} Unless the accused member waived the limitation periods, they could not be tried by summary trial unless the charge was laid within six months after the day on which the service offence was alleged to have been committed, and the summary trial commenced within one year after that day.^{Footnote 31}

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 had the right to request that a review authority review the finding rendered, the punishment imposed, or both.^{Footnote 32} A review authority could also, on their own initiative, undertake a review of the finding and/or punishment.^{Footnote 33} As provided for under articles 108.45 and 116.02 of the 2019 Queen’s Regulations and Orders for the Canadian Forces, a review authority was typically a more senior officer in the chain of command of the officer who presided over the summary trial. A review authority could quash any findings of guilty made at summary trial, substitute any finding of guilt or punishment, or could mitigate, commute, or remit any punishment imposed at summary trial.^{Footnote 34} Before making any determination, a review authority had to obtain legal advice.^{Footnote 35}

2. Courts Martial

A court martial is a formal military court presided over by a military judge who possesses all the constitutional hallmarks of judicial independence. It is designed to deal with more serious offences and a military judge 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 36}

Courts martial 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 37}

Appeal of a Court Martial Decision

Decisions made at court martial may be appealed to the Court Martial Appeal Court of Canada.^{Footnote 38} 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.^{Footnote 39} 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.^{Footnote 40}

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The Retirement of the Summary Trial System and the Introduction of Summary Hearings

On 20 June 2022, Bill C-77 came into force, an event that had several significant implications for the military justice system. This section focuses on one of those implications: the retirement of the summary trial system and the introduction of the summary hearing system.

As a result of this change, all service offences that were committed following the date of coming into force of Bill C-77 must now be dealt with by a court martial.^{Footnote 41} Service offences that predate the coming into force are still subject to the previous regime if charges were laid prior to 20 June 2022. These proceedings are subject to the limitation periods discussed above and the member’s election for court martial.^{Footnote 42}

When the summary hearing system was introduced, the second tier of the military justice system changed from a quasi-penal system to a non-penal system. The summary hearing system only deals with service infractions,^{Footnote 43} which are minor breaches of discipline. Correspondingly, the sanctions which may be imposed at a summary hearing are also less serious than those that were available at summary trial. Additionally, there are fewer limitations as to who may preside over a summary hearing compared to a summary trial.

It should also be noted that the coming into force of Bill C-77 has had implications for the military justice system beyond the introduction of a new type of summary proceeding. Crucially, it also represented an important step in responding to the recommendations of the report of the Third Independent Review Authority to the Minister of National Defence prepared by the Honourable Morris Fish.^{Footnote 44} The report made 107 recommendations to improve the military justice and grievance systems, all of which were accepted in principle by the Minister of National Defence. The coming into force of Bill C-77 has resulted in ten of those recommendations being either fully or partially implemented, including recommendations to strengthen the independence of key military justice system actors and provide victims and survivors of service offences with enhanced protections through the Declaration of Victims Rights.

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The Summary Hearing System

a. Purpose

The summary hearing system aims to improve the chain of command’s ability to address minor breaches of military discipline fairly and efficiently at the unit level. This process enhances the responsiveness and efficiency of the military justice system, thereby contributing to the operational effectiveness of the Canadian Armed Forces.

b. Infractions

Service infractions are breaches in military discipline defined in the Queen’s Regulations and Orders for the Canadian Forces^{Footnote 45} that are generally less serious than the misconduct covered by service offences. There are currently three categories of service infractions.

The first category of infractions is related to property and information and covers acts or omissions such as unauthorised possession of public property and failure to disclose a conflict of interest.^{Footnote 46} The second category is composed of infractions related to military service. These cover breeches of discipline such as unauthorised discharge of a firearm and other behaviour that adversely affects the discipline, efficiency, or morale of the Canadian Armed Forces.^{Footnote 47} The final category is infractions related to drugs and alcohol. This category includes behaviour such as the possession of an intoxicant or use of a drug, such as cannabis, while on duty.^{Footnote 48}

c. Hearings

Summary hearings can only be held to deal with service infractions^{Footnote 49} and may be held anywhere the Canadian Armed Forces operate.^{Footnote 50} They are conducted by an officer which must be at least one rank above the member charged with the infraction.^{Footnote 51} However, officers may be precluded from conducting a hearing in certain circumstances listed in the National Defence Act.^{Footnote 52}

The Officer Conducting the Summary Hearing (OCSH) may be a superior commander, a commanding officer, or a delegated officer. Where the hearing determines that the member has committed a service infraction, the status of the OCSH conducting the hearing will impact the sanctions that are available.^{Footnote 53}

Summary hearings are generally open for the public to attend. However, they may be closed in certain circumstances, including where classified information will form part of the evidence, or where information that may impact an individual’s safety or security arises as part of the evidence.^{Footnote 54}

At the start of the hearing, the OCSH will take an oath or make a solemn affirmation^{Footnote 55} before asking the member charged with the infraction three preliminary questions: did the member have adequate time to prepare, does the member wish to challenge the capacity of the officer to hold the summary hearing, and does the member wish to admit to any of the details of the charge.^{Footnote 56} The OCSH must ensure that a member had adequate time to prepare and is required to adjourn the hearing if the first question is answered in the negative.^{Footnote 57}

Summary hearings are conducted in accordance with the principles of Canadian administrative law, particularly the principles of procedural fairness and natural justice.^{Footnote 58} As such, the member charged with the service infraction must be given the opportunity to request the presence of witnesses, present evidence, and make representations at all stages of the hearing.^{Footnote 59}

Unlike a court martial or summary trial, the standard of proof at a summary hearing is on a balance of probabilities.^{Footnote 60} A member will, therefore, be deemed to have committed a service infraction if “it is more likely than not that the alleged event occurred.”^{Footnote 61} However, it is insufficient for OCSH to simply state that it is more likely than not that the member committed the infraction. To be a valid determination, the decision of the OCSH must be “transparent, intelligible, and justified.”^{Footnote 62} As such, the OCSH must provide the reasons underpinning their determination.

Should the member be found to have committed a service infraction, the OCSH must impose one, or a combination of, the authorised sanctions. Prior to doing so, they must allow the member to make representations regarding the sanction that will be imposed.^{Footnote 63}

Finally, after imposing a sanction, the OCSH must provide written reasons to the member and to their commanding officer no later than three days following the hearing.^{Footnote 64}

d. Sanctions

The National Defence Act enumerates the sanctions available when a member is found to have committed a service infraction. These are (from most severe to least severe): reduction in rank, severe reprimand, reprimand, deprivation of pay and deprivation of allowances for no more than 18 days, and minor sanctions.^{Footnote 65} These sanctions may be combined so that, for example, a member may be sanctioned to both a reprimand and a deprivation of pay.^{Footnote 66}

The minor sanctions are defined in the Queen’s Regulations and Orders for the Canadian Forces and include confinement to ship or barracks for no more than 14 days, extra work and drill for no more than 14 days, and the withholding of leave for no more than 30 days.^{Footnote 67}

The status of the OCSH (i.e., whether the officer is a superior commander, commanding officer, or delegated officer) impacts which of these sanctions is available. A superior commander may impose any sanction,^{Footnote 68} whereas a commanding officer may not impose a sanction more severe than a reprimand.^{Footnote 69} A delegated officer may only impose a minor sanction and/or a sanction of deprivation of pay and deprivation of allowances for no more than 7 days.^{Footnote 70}

e. Reviews

A member who has been found to have committed a service infraction may request a review of the decision by applying in writing to a review authority within 14 days following receipt of the written reasons.^{Footnote 71} A review authority is normally the superior of the officer who conducted the hearing.^{Footnote 72} Alternatively, a review authority may undertake a review of the decision on their own initiative.^{Footnote 73} In both cases, a review authority must obtain legal advice from a legal officer of the Office of the JAG prior to conducting the review.^{Footnote 74}

Following the review, the review authority may leave the decision unchanged, quash the entirety or part of the decision,^{Footnote 75} substitute one or more findings,^{Footnote 76} substitute one or more sanctions,^{Footnote 77} or commute, mitigate, or remit the sanction(s).^{Footnote 78} A member who is unsatisfied with the outcome of the review can only seek further redress by filing an application for judicial review before the Federal Court of Canada.

f. Policy and Training

The implementation of the summary hearing system has been accompanied by the introduction of additional policy guidance, in particular, the Military Justice at the Unit Level Policy. The new policy complements the legislative framework by providing units with clear, accessible direction on all aspects of how to apply the new procedure, including the investigatory and charge laying stages, as well as the conduct of the summary hearing itself. In addition, the Canadian Armed Forces have introduced new training to ensure that participants are familiar with the summary hearing system. The successful completion of the course is necessary to qualify to conduct a summary hearing.