The Structure of Canada’s Military Justice System
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 (Charter).Footnote 24 On several occasions, the Supreme Court of Canada has recognized the requirement for a separate, distinct military justice system to meet the specific needs of the Canadian Armed ForcesFootnote 25 and has recognized the military justice system as a “full partner in administering justice alongside the civilian justice system.”Footnote 26 The military justice system differs from its civilian counterpart with respect to some of its objectives. As the Supreme Court of Canada stated in R v Edwards: “Canada’s system of military justice […] takes account of the military context, and specifically of the legislative policies of maintaining ‘discipline, efficiency and morale’ in the Forces and ‘public trust in […] a disciplined armed force.’”Footnote 27 These different purposes give rise to many of the substantive and procedural differences that properly distinguish the military justice system from the civilian justice system.
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 28 It is “an essential ingredient of service life”Footnote 29 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 30 It has also been recognized as serving a public function “by punishing specific conduct which threatens public order and welfare.”Footnote 31 The Code of Service Discipline sets out the procedures and organization of summary hearings and courts martial, the jurisdiction of various actors in the military justice system, the scale of punishment, and the post-trial review and appeal mechanisms.
The Two Types of Military Justice Procedure
The military justice system is comprised of two types of procedures for addressing misconduct. The Code of Service Discipline and the Queen’s Regulations and Orders for the Canadian ForcesFootnote 32 outline procedures for the disposal of a charge. The following sections describe each type of military justice procedure: summary hearings and courts martial. Courts martial are military courts, presided over by military judges, which try service offences under the Code of Service Discipline. Summary hearings are non-penal, disciplinary proceedings based on principles of administrative law that are designed to address minor breaches of military discipline at the unit level. Characterizing a disciplinary incident as either a service infraction or a service offence depends on an analysis of several factors, including the impact on operations, the complexity of the matter and other public interest considerations.
The Summary Hearing System
The summary hearing system provides commanders with a fair and efficient means to address minor breaches of military discipline at the unit level. While still ensuring that persons charged benefit from a procedurally fair process, investigations and hearings require relatively little in the way of time and resources. By minimizing the impact on operational tempo, the summary hearing system is more efficiently employed by units both in garrison and when deployed, improving their operational readiness.
Service Infractions
Service infractions are breaches of military discipline as defined in the Queen’s Regulations and Orders for the Canadian ForcesFootnote 33 and 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 unauthorized possession of public property and failure to disclose a conflict of interest.Footnote 34 The second category is composed of infractions related to military service. These cover breaches of discipline such as unauthorized discharge of a firearm and other behaviours that adversely affects the discipline, efficiency, or morale of the Canadian Armed Forces.Footnote 35 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 36
Summary Hearings
Summary hearings can only be held to deal with service infractionsFootnote 37 and may be held anywhere that the Canadian Armed Forces operate.Footnote 38 They are conducted by an officer who must be at least one rank above the member charged with the infraction.Footnote 39 However, officers may be precluded from conducting a hearing in certain circumstances which are listed in the National Defence Act.Footnote 40
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 range of sanctions that are available.Footnote 41 In order to conduct a summary hearing, an OCSH must successfully complete the Military Justice at the Unit Level training course and exam and be certified by the Judge Advocate General.
Summary hearings are generally open to the public to attend. However, in certain circumstances, they may be closed if classified information will form part of the evidence, or if information that may impact an individual’s safety or security arises as part of the evidence.Footnote 42 At the start of the hearing, the OCSH will take an oath or make a solemn affirmationFootnote 43 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 OCSH to conduct the summary hearing, and does the member wish to admit to any of the details of the charge.Footnote 44
Summary hearings are conducted in accordance with the principles of Canadian administrative law, particularly the principles of procedural fairness and natural justice.Footnote 45 As such, a member charged with a 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 46 Unlike at a court martial, the standard of proof at a summary hearing is on a balance of probabilities.Footnote 47 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 48 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 49 As such, the OCSH must provide in writing 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, the OCSH must allow the member to make representations regarding the sanction to be imposed.Footnote 50 Finally, after imposing a sanction, the OCSH must provide written reasons to the member and to their commanding officer.Footnote 51
Sanctions
The National Defence Act enumerates the sanctions available when a member is found to have committed a service infraction. These sanctions 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 52
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 53 Sanctions may be combined so that, for example, a member may be sanctioned to both a reprimand and a deprivation of pay and allowances.Footnote 54
Reviews of Summary Hearing Decisions
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 55 A review authority is normally the superior in matters of discipline of the officer who conducted the hearing.Footnote 56 Alternatively, a review authority may undertake a review of the decision on their own initiative.Footnote 57 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 58 Following the review, the review authority may leave the decision unchanged, quash it entirely or in part,Footnote 59 substitute one or more findings,Footnote 60 substitute one or more sanctions,Footnote 61 or commute, mitigate, or remit the sanction(s).Footnote 62 A member who is unsatisfied with the outcome of the review can seek further redress by filing an application for judicial review before the Federal Court of Canada.
The Court Martial System
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 service 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 operational requirements of the Canadian Armed Forces. 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 63
Courts martial may take place anywhere in Canada or abroad. The National Defence Act provides for two types of court martial: General and Standing. A 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 while the military judge makes any required legal findings. In the event of a guilty finding, the military judge 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 of fact and law 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 64
Service Offences
The term “service offence” is defined in the National Defence Act as “an offence under this Act, the Criminal Code,Footnote 65 or any other Act of Parliament, committed by a person while subject to the Code of Service Discipline.”Footnote 66 Thus, service offences include many offences that are unique to the profession of arms, such as disobedience of a lawful command,Footnote 67 absence without leave,Footnote 68 and conduct to the prejudice of good order and discipline,Footnote 69 as well as more conventional offences such as those found in the Criminal Code,Footnote 70 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 and some civilians are subject to the Code of Service Discipline only in the circumstances specified by section 60 of the National Defence Act.
Appeals of Court Martial Decisions
Decisions made at a court martial may be appealed to the CMAC.Footnote 71 The CMAC is composed of civilian judges from the Federal Court of Appeal, the Federal Court, from the superior courts, or courts of appeal of the provinces and territories who are appointed by the Governor in Council.Footnote 72 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 when leave to appeal is granted by the Supreme Court of Canada.Footnote 73