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 criminal justice system and is subject to the same constitutional framework, including the Canadian Charter of Rights and Freedoms. 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 24} and has recognized the military justice system as a “full partner in administering justice alongside the civilian justice system.”^{Footnote 25}

The Code of Service Discipline

The Code of Service Discipline, contained in Part III of the National Defence Act, is “[t]he foundation of Canada’s military justice system.”^{Footnote 26} It is “an essential ingredient of service life”^{Footnote 27} 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 28} The National Defence Act describes the Code of Service Discipline’s purpose as the maintenance of the discipline, efficiency, and morale of the Canadian Armed Forces.^{Footnote 29} It has also been recognized as serving a public function “by punishing specific conduct which threatens public order and welfare.”^{Footnote 30} The Code of Service Discipline sets out the procedures and organization of courts martial and summary hearings, 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 31} Thus, service offences include many disciplinary offences that are unique to the profession of arms, such as disobedience of a lawful command,^{Footnote 32} absence without leave^{Footnote 33} and conduct to the prejudice of good order and discipline^{Footnote 34} , as well as the more conventional offences such as those found in the Criminal Code,^{Footnote 35} 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 specified circumstances which include when they are in uniform or when they are present on a defence establishment.

Further, since the introduction of the new system of summary hearings during the previous reporting period, the Code of Service Discipline now incorporates the concept of “service infractions,” which are discussed in greater detail below.

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The Two Tiers of the Military Justice System

The military justice system has a tiered structure comprised of two types of procedures for addressing misconduct through service offences and service infractions. The Code of Service Discipline and the Queen’s Regulations and Orders for the Canadian Forces^{Footnote 36} outline procedures for the disposal of a charge.

The following sections describe each tier of the military justice system: courts martial and summary hearings. Courts martial are military courts, presided over by military judges that try service offences under the Code of Service Discipline. Summary hearings are non-penal, non-criminal processes designed to address minor breaches of military discipline at the unit level. The summary hearing system was introduced in June 2022, concurrent to the retirement of the former summary trial system.

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. They 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 37}

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 a 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 to the member, or by civilian counsel at their own expense.^{Footnote 38}

Appeal of a Court Martial Decision

Decisions made at court martial may be appealed to the Court Martial Appeal Court of Canada.^{Footnote 39} The Court Martial Appeal Court of Canada is composed of civilian judges who are designated 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 40} 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 41}

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The Summary Hearing System

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.

Service Infractions

Service infractions are breaches in military discipline defined in the Queen’s Regulations and Orders for the Canadian Forces^{Footnote 42} 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 relates 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 43} The second category is composed of infractions related to military service. These cover breaches 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 44} The final category deals with infractions related to drugs and alcohol. This includes behaviour such as the possession of an intoxicant or use of a drug, such as cannabis, while on duty.^{Footnote 45}

Summary Hearings

Summary hearings can only be held to deal with service infractions^{Footnote 46} and may be held anywhere the Canadian Armed Forces operate.^{Footnote 47} They are conducted by an officer which must be at least one rank above the member charged with the infraction.^{Footnote 48} However, officers may be precluded from conducting a hearing in certain circumstances which are listed in the National Defence Act.^{Footnote 49}

The Officer Conducting the Summary Hearing (OCSH) may be a superior commander, a commanding officer, or a delegated officer. Where it is determined that the member has committed a service infraction, the status of the OCSH conducting the hearing will impact the sanctions that are available.^{Footnote 50}

In order to conduct a summary hearing, an OCSH must successfully complete the Military Justice at the Unit Level training course and exam to be certified by the Judge Advocate General. During the reporting period, close to 4,500 people successfully completed the requisite training and over 15,000 people have completed it since the training’s introduction in 2022.

Summary hearings are generally open for the public to attend. However, in certain circumstances, they may be closed 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 51}

At the start of the hearing, the OCSH will take an oath or make a solemn affirmation^{Footnote 52} 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 53} 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 54}

Summary hearings are conducted in accordance with the principles of Canadian administrative law, particularly the principles of procedural fairness and natural justice.^{Footnote 55}   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 56}

Unlike at a court martial or in the retired summary trial system, the standard of proof at a summary hearing is on a balance of probabilities.^{Footnote 57} 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 58} However, it is insufficient for the 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 59} 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 authorized sanctions. Prior to doing so, they must allow the member to make representations regarding the sanction that will be imposed.^{Footnote 60} 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 61}

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 allowances for no more than 18 days, and minor sanctions.^{Footnote 62} 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 63} Sanctions may be combined so that, for example, a member may be sanctioned to both a reprimand and a deprivation of pay and allowance.^{Footnote 64}

The status of the OCSH (i.e., whether the officer is a superior commander, commanding officer, or delegated officer) impacts which of these sanctions are available. A superior commander may impose any sanction,^{Footnote 65} whereas a commanding officer may not impose a sanction more severe than a reprimand.^{Footnote 66} A delegated officer may only impose a minor sanction and/or a sanction of deprivation of pay and allowance for no more than 7 days.^{Footnote 67}

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 68} A review authority is normally the superior of the officer who conducted the hearing.^{Footnote 69} Alternatively, a review authority may undertake a review of the decision on their own initiative.^{Footnote 70} 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 71}

Following the review, the review authority may leave the decision unchanged, quash entirely or part of the decision,^{Footnote 72} substitute one or more findings,^{Footnote 73} substitute one or more sanctions,^{Footnote 74} or commute, mitigate, or remit the sanction(s).^{Footnote 75} 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.