Chapter 1: The Purpose of Military Justice

SECTION 1 - MILITARY LAW AND THE MAINTENANCE OF DISCIPLINE

After the organization of troops, military discipline is the first matter that presents itself. It is the soul of armies. If it is not established with wisdom and maintained with unshakeable resolution you will have no soldiers. Regiments and armies will only be contemptible, armed mobs, more dangerous to their own country than to the enemy....
Maurice de Saxe: Mes Reveries, 1732

Defining Law

1. The function of law has been described as follows:

Law essentially serves two functions in modern, western, industrial society. First, it serves to regulate the affairs of all persons, be they individuals, corporations or governments. Secondly, law acts as a standard of conduct and morality, variously directed at individuals and groups, businesses and governments. In short, through both of these functions, the law seeks to promote and achieve a broad range of social objectives.1

2. In effect the law is the means by which social interaction is regulated. The law provides stability, predictability and a means by which activity contrary to the wishes of society can be controlled. Laws not only set out the structural framework upon which governance is built; they also identify the core values of a society.2 In addition, this legal framework provides for courts and administrative tribunals, which are empowered to regulate disputes between our society and its citizens (e.g. the criminal law) and between the citizens themselves (e.g. civil law suits).

3. As part of our legal heritage, dispute resolution and other interaction within society are governed by principles of fairness wherein citizens are provided a meaningful opportunity to be heard, and to have disputes resolved by impartial arbitrators. The degree of fairness and impartiality of the arbitrator is dependent upon the nature of the decision being made. For example, criminal proceedings, where the liberty of the accused may be at stake, require the highest degree of fairness and impartiality, while administrative processes, where the liberty of an accused is not at stake, do not have to meet as high a burden. These principles of fairness are guaranteed in the Canadian Charter of Rights and Freedoms (the Charter)3 and under the common law.

Types of Law in Canada

4. The supreme law of Canada is contained in our Constitution. There are three subsidiary types of law: judicial decisions (otherwise known as the common law), statutory law and the exercise of the executive authority of government through the Crown Prerogative. Statutes are the single most important source of law. The enactment of a law by Parliament is in many ways the ultimate political act as it serves as a record of the decisions made by democratically elected officials. Indeed the use of the word Act in the title of the National Defence Act (NDA) conveys that very meaning. Legislation passed by Parliament serves a two-fold purpose: first, it constitutes one of the means by which elected officials regulate social conduct; second, it provides a vehicle for the injection of societal values into that conduct. The link between political control and the law is reflected in the term The Rule of Law (De Lex Regula).

The Military and the Law

5. Since the government controls the military it should not be surprising to find out that laws regulate it. The military in a democracy is unique in that the most physically destructive power of the state is concentrated in the hands of a relatively small number of non-elected government officials. This unique status inevitably leads to a large number and variety of laws designed not only to control the armed forces, but also to assist in ensuring that the values of broader society are maintained within the social fabric of the military. Indeed one of the true dangers to any civilian government is an armed force that it does not adequately control, and which does not identify with broader societal goals.

The Political-Legal Interface Affecting Armed Service

6. Armed service for the state is a highly regulated activity. The organization of the military is reflected in our Constitution and the NDA. Control is exercised over the armed forces through the application of the NDA, its Code of Service Discipline, and the regulations, orders and instructions that flow from the Act. That is not to say that the political control that is exercised over the armed forces is limited to the written law of the NDA. There is also executive authority to issue binding direction under the Crown Prerogative. In addition, the Minister of National Defence (MND) exercises daily control over military activities. However, the NDA, as an organizational document, sets out the fundamental framework upon which civilian political control of the military, in Canada, is based.

The Effect of International Law on Armed Service

7. The laws that govern military activity are not solely domestic in origin. International law serves the same purpose as its domestic counterpart. It regulates the affairs between states and acts as a standard of conduct and morality. Therefore, international laws such as the Charter of the United Nations, the Hague Conventions governing naval, land and air operations, the Geneva Conventions and Additional Protocols I & II to the Geneva Conventions reflect the standard of conduct required of military forces.4 These laws bind the Canadian Forces (CF) in the conduct of its operations in the international arena either by customary law, or because the government has signed and ratified the relevant treaties and conventions. Customary international law reflects the practices of nations against which the actions of a particular country or its armed forces will be judged. The military, its officers and non-commissioned members (NCMs) being agents of the state, is bound by Canada to follow the provisions of international law when conducting military operations.

8. The international treaties and obligations do not solely relate to armed conflict. The Charter of the United Nations, the Convention of the Prevention and Punishment of the Crime of Genocide, 1948, the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 1984 as well as number of other treaties relating to the establishment and enforcement of international human rights standards bind the CF.5

9. Many of these international obligations are incorporated directly into domestic legislation. For example, the Geneva Conventions Act6 clearly gives effect to these international treaties on a domestic level. Similarly, the provisions against torture and inhumane treatment found in the 1984 Torture Convention are reflected in section 269.1 of the Criminal Code. Since the criminal laws of Canada are incorporated into military law by virtue of section 130 of the NDA members of the CF who torture persons under their control are subject to penal consequences.7

The Constitutional Status of Military Force in Canada

10. The constitutional basis for the existence of an armed force in Canada is found in the Constitution Act, 1867 which provides as follows:

91. ...the exclusive Legislative Authority of the Parliament of Canada extends to...
7. Militia, Military and Naval Service, Defence

It is pursuant to this authority that the NDA has been enacted.

11. Constitutional recognition is also given to the military in the Charter that provides as follows:

11. Any person charged with an offence has the right
(f) except in the case of an offence under military law tried before a military tribunal, to the benefit of trial by jury....

12. This specific reference to military law in a constitutional document confirms the constitutional validity of the separate system of military justice. In addition, the Supreme Court of Canada has acknowledged the validity of the military justice system in two cases: MacKay v. R.8 and R. v. Genereux.9

The Legislative Control of the Canadian Forces

13. A review of the NDA gives a clear indication of the pervasive impact that the law has on the organization, command and control of the military. The whole existence of the CF, and the authority of its officers to command, is dependent upon that law. For example, the composition of the armed forces, their organization into units and other elements, the appointment of a Chief of Defence Staff, the enrolment of officers and NCMs and their authority to exercise command, and service members' obligations and terms of service are all provided for in the NDA.10 The Act also authorizes the making of regulations known as Queen's Regulations and Orders (QR&O), and the issuance of orders and instructions for the control and administration of the armed forces.11

14. The NDA makes extensive provision for a system of discipline. The Code of Service Discipline contained within the NDA and QR&O prescribes service offences; provides for summary trials and courts martials; and outlines trial and appeal procedure. The fact that the appellate courts, the Courts Martial Appeal Court (CMAC) and ultimately the Supreme Court of Canada, are staffed by civilian judges reflects the importance given to the supervisory role over the military justice system by civilian institutions. In addition, the Federal Court of Canada and the provincial superior courts have a residual authority to provide judicial review. The decisions of these civilian courts help ensure that the essential legal principles afforded to Canadians by our civilian courts are reflected in its interpretation of military law.

15. The NDA and QR&O also address the values and basic principles of service life which distinguish the military from civilian society. These principles include:

  1. duty: An unlimited liability for service combined with a requirement to be present for duty when ordered;
  2. obedience to authority: The obligation to obey all lawful commands, including those which might lead to death or serious injury and the potential to be penalized for failing to do so;12
  3. subordination to those in authority;13
  4. enforcement of discipline;14 and
  5. welfare of subordinates.15

16. The law is not solely about enforcing obedience in a hierarchical fashion. It also recognizes an obligation on members to promote the welfare, efficiency and good discipline of subordinates; to not rebuke any member in the presence of a subordinate except when absolutely necessary for the maintenance of discipline; and to not do or say anything which would cause subordinates to be discouraged or dissatisfied with the service.16 The mechanisms to lodge complaints when the treatment of subordinates does not meet the high standards imposed by military law include the formal redress of grievance procedure as well as the right to complain personally to the Commanding Officer (CO).

Procedural Fairness

17. Every military commander knows the importance of not only treating subordinates fairly, but also of being perceived to be fair. A lack of fairness on the part of a superior can seriously undermine cohesion, morale and discipline of subordinates thereby impacting negatively on unit effectiveness. However, if ten military commanders each have their own idea of what constitutes procedural fairness, subordinates could ultimately be unfairly treated through a lack of consistency. It should therefore come as no surprise that military law, as a vehicle for regulating relationships between members of military society, must concern itself with the issue of fairness. Fairness is not only fundamental to the disciplinary process, but is also a foundation of the handling of grievances and the conduct of investigations. Many CF policies such as release, investigation of harassment complaints and the administration of sexual misconduct cases reflect these fairness principles.

18. At law fairness is most often expressed in concepts such as the right to reasons for a decision, the making of oral or written submissions, rules of evidence, provision of information, notice of any career action or charges and right to counsel. The level of fairness provided depends upon: the effect of any action taken against a member of the society, the relationship between the individual and the decision making body, and the nature of the decision. If someone is to be imprisoned or detained they have a right to a higher standard of procedural fairness, such as that found at court martial. The threat of losing employment attracts a lower standard of procedural fairness, as exists in administrative action. Some administrative decisions require no procedural fairness at all.17 Procedural fairness is a legal doctrine that applies to the decision making process and existed prior to the enactment of the Charter. It is often associated with the terms natural justice and fundamental justice. The principle of procedural fairness is reflected in a number of the provisions in the Charter.18

Rights and Obligations of Military Service

19. A Canadian serving in the Armed Forces does not give up the rights and obligations of Canadian citizenship. As was affirmed by the Supreme Court of Canada in MacKay v. R:

...it is a fundamental constitutional principle that a soldier does not, by virtue of joining the armed forces and the consequent military character he assumes, escape the jurisdiction of the civil courts of this country. Accordingly, the ordinary law that applies to all citizens also applies to members of the armed forces but by joining the armed forces those members subject themselves to additional legal liabilities, disabilities and rights, that is to say Canadian military law.19

20. Members remain protected by the rights set out in the Charter. The following passage from the 1997 Leadership Report highlights the importance of ensuring common social values and rights are respected and protected in military society:

The record of modern warfare clearly demonstrates that military effectiveness depends upon armed forces being integral parts of the societies they serve, not being isolated from them. The society in which and for which the CF serve is in the process of rapid legal, economic and social change. As a result, the Forces must respect women's rights, reject discrimination based on race or sexual orientation and conform to other Canadian legislation reflecting evolving social values.20

Limitation of Rights

21. What does change, however, is the degree to which some of the rights provided to all Canadians apply to members of the CF. For example, under s.11(f) of the Charter the right to a jury trial is not available in the case of an offence under military law tried before a military tribunal. Some military tribunals consist of a panel of military members. Similarly, Section 2 of the Charter states that everyone has the right of freedom of association, freedom of peaceful assembly, freedom of thought, belief, opinion and expression. However, QR&O reflect legal restrictions on the public communication of information and candidature for office. Each of these restrictions is based on a unique military requirement for the limitation of communication or freedom of association. The restriction on involvement in political activities is based on the need to ensure nothing affects the actual or perceived political neutrality of the CF. The military is such a potentially influential force in society that the armed forces, and those serving in it, cannot influence or be seen to influence the outcome of political activities such as elections, other than by their right to vote.

22. The need to be apolitical in terms of outward appearances may at first glance seem to be at odds with the requirement that the CF be responsive to the needs of political leaders. The answer is found in the nature of the political interest that is to be institutionally protected. Service authorities have a responsibility to follow political direction and to advise the MND and other government officials on the proper use of the armed forces. However, that political involvement is subservient in nature. In contrast, the outward involvement in political campaigning, or running for office, carries with it a controlling function which falls outside the realm of military service.

Balancing Rights and Limitations

23. Even though a member cannot take an active part in many political activities, a member can vote, attend political meetings and run for minor political office. The rights normally attached to Canadian citizenship are limited where they are inconsistent with the basic obligations of military service. This weighing of rights is provided for under Canadian law. Section 1 of the Charter states:

The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society. (emphasis added)

24. In a similar fashion equality rights, such as the protection under the Canadian Human Rights Act against discrimination on the basis of disability can be justified where there is a bona fide occupational requirement.21 In respect of the military such discrimination has, in certain cases, been justified on the basis of universality of service, which is another way of expressing the unlimited liability to serve or universality of service principle.

25. The key to justifying the limitation on the constitutional rights of a service member is identifying the core principles, or tenets, of military service. The balancing process between enabling soldiers to enjoy the rights of fellow citizens, and protecting the core values of military service (unlimited liability, obedience, etc.) is an important undertaking in a democracy. Should the values of military service be undermined the armed forces could become ineffective and ill disciplined. If military values are upheld to the exclusion of the rights enjoyed by other citizens the members of the military would become isolated from their fellow citizens. Taken to its extreme a military force that does not enjoy, or identify with, the rights and values that underpin civilian society would quickly become a danger to that society.

The Law and Ethics

26. The law cannot be considered in isolation from the ethical obligations of leadership and military service. In considering the scope of ethics the following two definitions are helpful:

ethical
1. a set of moral principles; relating to morals, esp. as concerning human conduct;....
2. morally correct; honourable. 22
moral
1. Concerned with goodness or badness of human character or disposition, or with the distinction between right and wrong,...concerned with accepted rules and standards of human behaviour; virtuous in general conduct (of rights, etc.) founded in moral law...-law, conditions to be satisfied by any right course of action. 23

27. Ethics and morals are very much about regulating conduct. Ethical and moral behaviour incorporate the obligation to adhere to the law and obey orders issued by lawful authorities. The requirement to obey the law, enforce the law, be committed to the law and maintain discipline is consistent with, and in fact an integral part of, ethical military conduct.

28. However, there are exceptional circumstances when direction is so immoral that it must be disobeyed. For example, the obligation to disobey a manifestly unlawful order. In the words of the Supreme Court of Canada (Finta v. The Queen24) a manifestly unlawful order is “an order which shocks the conscience of every reasonable, right thinking person”. The law provides an essential reference point for members in guiding ethical behaviour.

SECTION 2 - DISCIPLINE

Role of the Armed Forces

29. It is evident that discipline and law are intertwined.25 The ultimate role of the armed forces is to apply force, or the threat of force, in the furtherance of the interests of the state. It is significant that this role is related to the application of violence, because it is the potential destructive power of these forces which requires that they be more closely controlled than other segments of society. As has been discussed, the Government of Canada, as empowered by Parliament maintains ultimate control over the use of sanctioned violence in Canada. However, the responsibility for actual training and on site deployment of the armed forces has been placed in the hands of military officers and NCMs. For members of the military the control exercised within military society is referred to in terms of the maintenance of discipline.

Why Armed Forces Fight

30. In order to fulfil the role of an armed force, military leaders must be able to train and motivate personnel under their command to fight. This readiness to fight, whether willingly or otherwise, requires that the members of the armed forces often suppress their own interests including, ultimately, the preservation of their own lives. It has been determined that the factors affecting the motivation of soldiers to fight are primary group allegiances (group cohesion and buddy loyalties), unit esprit, manpower allocation, socialization, training, discipline, leadership, ideology, rewards, pre-conceptions of combat, combat stress and combat behaviour (including self-preservation).26

31. However, it is identification with being a member of an armed force which ultimately causes soldiers to fight.27 Research has confirmed the findings of a study conducted at the end of World War II, known as the Stouffer study. The Stouffer study drew the following conclusion:

We are forced to the conclusion that personal motives and relationships are not uniquely determinate for organization in combat...officers and men must be motivated to make the organization work, but not all of them have to be so motivated, nor must they all agree on details of social philosophy or be bound by ties of personal friendship in order for a functioning organization to exist. To put it another way, the best single predictor of combat behaviour is the simple fact of institutionalized role: knowing that a man is a soldier rather than a civilian. The soldier role is a vehicle for getting a man into the position in which he has to fight or take the institutionally sanctioned consequences.28

The maintenance of discipline performs an essential role in socializing its members in the institutional values.

Institutional Values in Armed Forces

32. Military institutional values such as liability for 24 hours service, subjection to military discipline and the inability to resign, strike or negotiate working conditions, has been contrasted with the civilian occupational model wherein self-interest has a greater priority than the employing institution.29 This contrast between military institutional values, and civilian occupational values is not unlike the balancing of rights and obligations, which arises in respect of section 1 Charter analysis. It is clear that one of the factors which distinguishes the military institution from the civilian occupation is the subjugation of members of the armed forces to military discipline and law.

Defining Discipline

33. Discipline has traditionally been considered to be the soul of the armed forces. To discipline someone is to “1. Punish, chastise. 2. bring under control by training in obedience; drill”.30 Discipline serves a threefold purpose:

  1. ensuring members carry out assigned orders in the face of danger;
  2. controlling the armed forces so that it does not abuse its power; and
  3. assisting in assimilating a recruit to the institutional values of the military.

34. Discipline does not simply consist of the imposition of punitive sanctions. The maintenance of discipline in Canada's modern armed forces relies on a blend of both collective discipline (imposed discipline of recruit camp) and self-discipline (individual acceptance of the requirement to obey). Within each of the Army, Navy and Air Force the nature of military service may require a different blend of collective and self-discipline. The maintenance of discipline, and in particular the development of self-discipline, requires that a positive role be played by military leaders.

35. The essence of discipline is found in the Mainguy Report, which inquired into disciplinary problems in the Canadian Navy in 1949:

When we come to deal with discipline, we shall only point out that the only discipline which in the final analysis is worthwhile is one that is based upon pride in a great service, a belief in essential justice, and the willing obedience that is given to superior character, skill, education and knowledge. Any other form of discipline is bound to break down under stress. (emphasis added)31

36. A good leader will maintain discipline by means of personal example, skill, integrity and knowledge. The term essential justice is closely related to legal concepts such as natural justice or fundamental justice.32 What essential justice means is ensuring subordinates have an opportunity to be heard, and to deal consistently with any grievances or problems; in other words, to be fair. The Code of Service Discipline is used when the more positive means of ensuring a habit of obedience have been unsuccessful. It is readily apparent that the authority to command, fairness and the ability to sanction behaviour inconsistent with the institutional values of the military, all integral parts of military law, are essential to the development of the habit of obedience so necessary for the creation of an effective armed force.

Unique Aspects of Military Discipline

37. The high level of control that must be placed on an armed force has a unique effect on the maintenance of military discipline. An essential feature of military discipline is that it is meant to be intrusive. As a means of socializing members of the armed forces, and particularly recruits, military control of the member's life must be much more pervasive than the control exercised by civilian society over its members. The intrusiveness of the disciplinary process is reflected in the scope of the Code of Service Discipline. That Code includes not only offences which are found in the civilian criminal law, but also offences such as absence without leave, mutiny, insubordination and ill-treating subordinates which are not subject to punitive sanction in civilian life. The broader scope of military law and the unique requirements of discipline were acknowledged by the Supreme Court of Canada in MacKay v. R.

Without a code of service discipline the armed forces could not discharge the functions for which they were created. In all likelihood those who join the armed forces do so in time of war from motives of patriotism and in time of peace against the eventuality of war. To function efficiently as a force there must be prompt obedience to all lawful orders of superiors, concern, support for, and concerted action with, their comrades and a reverence for and a pride in the traditions of the service. All members embark upon rigorous training to fit themselves physically and mentally for the fulfilment of the role they have chosen and paramount in that there must be rigid adherence to discipline.

Many offences which are punishable under civil law take on a much more serious connotation as a service offence and as such warrant more severe punishment. Examples of such are manifold such as theft from a comrade. In the service that is more reprehensible since it detracts from the essential esprit de corps, mutual respect and trust in comrades and the exigencies of the barrack room life style. Again for a citizen to strike another a blow is assault punishable as such but for a soldier to strike a superior officer is much more serious detracting from discipline and in some circumstances may amount to mutiny. The converse, that is, for an officer to strike a soldier is also a serious service offence. In civilian life it is the right of the citizen to refuse to work but for a soldier to do so is mutiny, a most serious offence, in some instances punishable by death. Similarly a citizen may leave his employment at any time and the only liability he may incur is for breach of contract but for a soldier to do so is the serious offence of absence without leave and if he does not intend to return the offence is desertion.33

38. Since the habit of obedience requires a compliance with all but unlawful orders no breach of orders can be overlooked. Failure to comply with even minor orders and regulations involves a lack of respect for authority. The degree to which military law provides sanctions against failures to comply with authority is reflected in section 129(2) of the NDA. That section states that a contravention of the provisions of that Act; any regulations, orders or instructions published for the general information and guidance of the CF; and any general, garrison, unit, station, standing, local or other orders is deemed to be prejudicial to good order and discipline. Conviction for an offence under section 129 of the NDA is punishable by Dismissal with Disgrace from Her Majesty's Service or to less punishment.

39. If obedience cannot be ensured by willing compliance then it must be enforced by corrective action. In some cases the disciplinary problem can be addressed through administrative action. Minor breaches are usually dealt with by summary trial and result in the imposing of a minor punishment. It is by correcting the minor breaches that compliance with all lawful orders is ensured and discipline is maintained. In becoming disciplined members of the armed forces, the individuals conform to the institutional requirements of the military thereby making it more likely that they will fight when required to do so.

Responsibility for Maintaining Discipline

40. The essential requirement for, and intrusive nature of, discipline in the military is reflected in the wide-reaching responsibility for all members of the armed forces to ensure discipline is maintained. No member of the military can be a bystander or remain neutral as to whether other members respect and obey authority. The acquiescence to insubordinate behaviour is harmful to the creation and maintenance of a habit of obedience. The obligation on all members of the military to enforce military law (and thereby obedience to orders and instructions) is reflected in the requirement for all officers and NCMs to become acquainted with, observe and enforce the NDA, regulations, rules, orders and instructions that pertain to the performance of their duties.34 The maintenance of discipline is a function of leadership at all levels of command.

41. The responsibility which officers have to deal with breaches of discipline within their control reflects the unique status given to them at law. As M. Wakim states:

The expertise of the officer imposes upon him a special social responsibility. The employment of his expertise promiscuously for his own advantage would wreck the fabric of society. As with the practice of medicine, society insists that the management of violence be utilised only for socially approved purposes. Society has a direct, continuing, and general interest in the employment of this skill for the enhancement of its own military security.... The skill of the officer is the management of violence; his responsibility is the military security of his client, society. The discharge of the responsibility requires mastery of the skill; mastery of the skill entails acceptance of the responsibility. Both responsibility and skill distinguish the officer from other social types. All members of society have an interest in its security; the state has a direct concern for the achievement of this along with other social values; but the officer corps alone is responsible for military security to the exclusion of all other ends.35

42. As the persons responsible for the readiness and capability of the armed forces it is officers who must ensure that the habit of obedience, and therefore the discipline of subordinates, is maintained at a proper level. At the same time subordinates look to the persons whom they must obey in order to have disciplinary issues resolved.36

43. This special responsibility which is placed on commissioned officers has been acknowledged by the Supreme Court of Canada in both MacKay v. R37 and R v. Genereux. In R v. Genereux the court stated in respect to officers sitting on courts martial:

Their training is designed to insure that they are sensitive to the need for discipline, obedience and the duty on the part of members of the military and also to the requirement for military efficiency. Inevitably, the court martial represents to an extent the concerns of those persons who are responsible for the discipline and morale of the military.38

The special needs of military discipline prompted the court to go on to state:

Recourse to ordinary criminal courts would, as a general rule, be inadequate to serve the particular disciplinary needs of the military.39

44. All officers are required to report to the proper authority any infringement of the pertinent statutes, regulations, rules, orders and instructions governing the conduct of persons subject to the Code of Service Discipline when the officer cannot deal with the matter.

Commanding Officers

45. The authority to maintain discipline at the unit level is concentrated in the hands of the CO. COs not only have the powers of trial and punishment but can also authorize officers and NCMs to lay charges, can cause investigations to be conducted and issue search warrants. Further, COs can delegate powers of trial and punishment to delegated officers. The concentration of disciplinary authority at the level of the CO reflects the personal nature of leadership. The ability to command respect and to effectively control subordinates is based to a large part on the leadership ability of the officer.

46. The decision to centre disciplinary power in the hands of the CO reflects a balance between the level of responsibility and professional status of that officer on one hand and the degree of personal identification and control over subordinates on the other hand. Among the factors affecting the ability of personnel to fight, are primary group allegiances, unit esprit and leadership.40 Like leadership, primary group allegiances and unit esprit have a strong personal component. The effectiveness of these primary group allegiances is further enhanced “where the loyalty to the group is supplemented by commitment to a wider entity..”.41 In the CF this wider entity is embodied in the unit, examples of which are the ship, squadron and regiment. The enhancement of fighting effectiveness through primary group allegiance, unit esprit and leadership is most effective at the lower levels of the military structure where personal contact and allegiances are their strongest.

Non-Commissioned Members

47. All officers and NCMs are required to report to the proper authority infringements of the pertinent statutes, regulations, rules, orders and instructions governing the conduct of persons subject to the Code of Service Discipline. The obligation to report extends to the misdeeds of their superiors. For authorized officers and senior NCMs the obligation to report extends to the laying of formal accusations of breaches against service discipline in Part I (charge reports) of the Record of Disciplinary Proceedings (RDP).

48. The obligation to report breaches of military law is not intended to create an armed force filled with informers. It reflects a more positive goal of ensuring there is a universal acknowledgement by all members of the vigilance required to maintain discipline and foster respect for authority. Non-commissioned officers (NCOs) are the eyes, the ears and the backbone of the disciplinary process. While officers adjudicate and have a special responsibility for the maintenance of discipline it is NCMs who are tasked with building the habit of obedience through early intervention when resistance to, or non-acceptance of, authority is noted. As was stated in the 1997 Leadership Report:

In all armed forces, senior NCMs play an extremely important role in passing on values, instilling discipline and bolstering morale. For the CF, the complexity of current operations makes this even truer today than it was in the past.42

Accountability

49. The special responsibility which officers and senior NCMs have to maintain institutional standards means they will be held to a higher standard of accountability than lower ranking members of the military for the same breach of discipline. That is not to say that every transgression by an officer or senior NCM warrants formal disciplinary action. The greater number of decisions and an increased requirement to exercise discretion, which comes with higher rank, often enhances the likelihood that mistakes may be made. The corrective action which is taken must reflect the nature of the error made by the officer or senior NCM. However, challenges to authority, insubordination, ill treatment of subordinates, etc., normally take on an increasing severity the higher in rank of the accused member involved.

Threats to Discipline

50. It is understood that there will be individual breaches of discipline. The disciplinary process is designed to correct, and if necessary punish individual disobedience. The most significant threat to discipline is a group or systemic disobedience of the orders, direction, and standards of conduct established by the government through its military hierarchy. In a hierarchical organization like the military a break in the chain of willing obedience potentially could result in the existence of a physically destructive force outside the control or influence of the democratic government.

51. In its most obvious manifestation group disobedience is known as a mutiny. Mutiny is defined in section 2 of the NDA as:

collective insubordination or a combination of two or more persons in the resistance of lawful authority in any of Her Majesty's Forces or in any forces co-operating therewith.

Joining in a mutiny is a service offence. Similarly, anyone who causes or conspires; endeavours to persuade; does not suppress; or fails to report a mutiny is subject on conviction to life imprisonment. It is also an offence under section 53 of the Criminal Code to seduce a member of the CF from his duty and allegiance to Her Majesty.43

52. The control that the government exercises over military forces can be adversely affected when the requirement to obey regulations, rules, orders or instructions is weakened by a breakdown in discipline at any level in the chain of command. Indeed the term chain implies a link between various levels within the hierarchy. The importance of the chain of command and discipline was addressed in the 1997 Report of the Special Advisory Group on Military Justice and Military Police Investigation Services (the Special Advisory Group): Just as it is not possible to understand the military justice system unless it is directly related to the need for military discipline, so it must be recognized that all persons subject to the Code of Service Discipline have a CO to whom they are accountable in matters of discipline. Service members are required to obey the lawful orders and instructions of their superiors. COs are in turn responsible to their superiors for all matters of discipline within their units. At each level of the military hierarchy, there is an expectation that the person at the next higher level has the authority to hold subordinates accountable, and to impose disciplinary and administrative measures as a means of enforcing that accountability. Military justice and the chain of command are, therefore, closely intertwined.44

53. The failure to observe and enforce common standards, which are set at the national level, poses a threat to the discipline of the CF as a whole. There is room for differences between units, or distinctions based on rank. Competition and inter-unit rivalry can be powerful forces for creating unit cohesion. However, the acceptable distinctions must be carefully developed, and from an organizational point of view, tightly controlled. Most distinctions such as unit dress are clearly regulated and are based on all members of a unit being subject to rules established by a higher headquarters. The most obvious common obligation that exists for all members of the armed forces is to obey the Code of Service Discipline. The enforcement of that Code must not only be firm and fair, but also comprehensive and universal. There cannot be more than one standard of obedience in an armed force. In effect the law represents the unifying obligations of military service. Discipline is maintained by obeying lawful commands for the purpose of performing lawful duties.

Discipline and Change

54. There is a general perception that the changes that have occurred in Canadian society in the past decade, particularly since the enactment of the Charter, have placed unique strains on the CF. The development of new policies to meet the changing nature of civilian society is sometimes adversely received by members of the military. However, change, and resistance to change, are not recent phenomena. The following quote from the 1949 Mainguy Report reflects an attitude often heard in more modern times:

The times in which we live...are full of restlessness, uncertainty and change.... The social and economic uncertainties and changes, which affect Canada as they do the world and the general deterioration in the discipline of family life, which is one of the misfortunes of our times, press with particular intensity on the lives of our young men. It would be a miracle if the comparative isolation of men within the walls of a ship at sea should protect them from the disturbing influences that harass their companions and contemporaries on shore.45

55. Change is an inevitable and necessary part of military life. Members of the military often have led society in its acceptance of technological change. It should not be a surprise that the military must also deal with societal changes. If the military does not accept or reflect change in broader society it runs the risk of becoming isolated from that society. What is important for the military is to identify the core values of its society that cannot be altered without an unacceptable effect on discipline and in turn, operational effectiveness.

56. What leaders need to do is to ensure the acceptance of change by subordinates. The acceptance of change is best attained by the demonstration of a personal commitment to the change by the leaders; the provision of education on the value which the change provides to individual members and the military as a whole; and the enforcement of the policy should individual members become too resistant to the changes. The existence of change should be primarily seen as a leadership challenge, rather than a threat.

Law and Discipline

57. Law and discipline are clearly intertwined. Since the law is about organization and the regulation of society, and discipline relates to obedience to a higher authority, it is inevitable that the two concepts are so intimately connected. However, the writing of a law does not guarantee it will be either observed or enforced. There must be an additional ingredient for the attainment of discipline. The willing obedience to orders must be based on a commitment, a spirit and an ethos, on the part of the members of the armed forces.

SECTION 3 - MILITARY ETHOS

58. Ethos and discipline are closely related. Discipline has been referred to as the soul of an armed force. Ethos is defined as: “characteristic, spirit or attitudes of a community, etc. [Greek ethos character]”.46 The character or ethos of military society is what separates it from its civilian counterpart. Uniforms and weapons serve to visually and functionally separate the military from civilians. However, it is discipline that reflects the true nature of a military force. Without discipline a military force will at best be ineffective, and at its worst, in the words of Maurice de Saxe, “more dangerous to the country than to the enemy”.

Basic Principles

59. What then is the ethos which separates military service from civilian life? Some of the basic principles that separate the ethos of military service from civilian life are:

  1. Duty. The obligation to perform at all times any lawful duty is one of the defining principles of military service. The requirements of military service are significantly different than the expectations of civilian employment. The military often attempts to make accommodations for its members for personal and family reasons; however, at the end of the day the basic condition of service is to perform duties when required. The duty required to be performed is often phrased in terms of unlimited liability.
  2. Obedience to Authority. Every officer and NCM must obey the lawful orders of superiors in the chain of command. While leadership is very much a personality driven activity, the ultimate allegiance is not given to the individual officer or unit, but rather through the chain of command to the people of Canada as represented by their governing institutions in accordance with the Canadian Constitution and the Rule of Law.
  3. Subordination to those in Authority. The requirements to perform military duty and obey orders are premised on the performance of lawful duties and the receipt of lawful orders. The military is clearly an organ of the state. Members are agents of the state. As such the commitment of the military must be to the Rule of Law. Operations, both domestically and internationally, are conducted in accordance with the law. The obligation of Canada in international operations, whether it be acting in defence of the nation or on United Nations operations, is to enforce international legal standards. Similarly, domestic operations, such as the call out at Oka, Quebec in 1990, or the enforcement of fisheries legislation, involve the enforcement of domestic laws and the maintenance of the Rule of Law. In order to enforce the law credibly, the State, the armed force, and individual service members must obey the law. Similarly, within the military itself the authority to command is based upon law. The whole function of command and the issuance of orders is based on the premise that the instructions provided by officers and NCMs will be lawful. The leaders within the armed forces must not only issue lawful commands but they must also lead by example. In order to maintain respect for the law on the part of subordinates the leaders within an armed force must respect, obey and enforce the laws that govern military activity.
  4. Enforcement of Discipline. The obligation to perform lawful duties and obey lawful orders cannot be optional. The obedience of orders, regulations, and instructions be they verbal or in writing must be pervasive throughout an armed force. The laws governing service life will only truly have meaning when the leadership enforces them. The enactment of laws serves to identify many of the core values of a society. However, it is the willingness of the members of the society to enforce those laws which truly identifies the commitment to societal values. Discipline is the habit of obedience. Officers and NCMs must therefore be constantly vigilant in ensuring the required obedience is observed at all times. A failure to salute, incomplete performance of duties, poor dress or disrespectful language by subordinates may seem relatively minor on their own. However, if a superior, regardless of rank, fails to correct such action the habit of obedience has not been maintained. As one Regimental slogan states: “never pass a fault”.
  5. Welfare of Subordinates. In order for discipline to be truly effective there must be a willing obedience to orders. By promoting the welfare of subordinates a good leader helps cement not only the personal ties necessary for good discipline, but also helps to bond those subordinates to the organization as whole. One important principle in looking after the interests of subordinates is to ensure their problems are treated fairly and in a timely fashion. However, concern over the welfare of subordinates cannot be used as an excuse for not dealing with a breach of discipline. If the circumstances warrant it charges must be laid. Leadership can never become a popularity contest. The promotion of the wishes of an individual or even groups of individuals within a unit or sub-unit cannot become paramount to meeting the overall institutional goals of the military.

Articulating the Ethos of Military Service

60. The basic principles which form the spirit or ethos of military service are already written down in military law. While the law is clear and the obligation to obey the law is absolute, the simple existence of those laws will not guarantee a disciplined and effective armed force. The members of the military must be intimately acquainted with the principles behind those laws. The written law must be animated and become an integral part of all of the actions of the officers and NCMs of the armed forces. It is the belief in the principles and the commitment to obey and enforce them, which provides the character or spirit of a military force.

SECTION 4 - CONCLUSION

61. The law provides a standard of conduct and morality for all of society including military society. Such standards can be found in the Charter, the Criminal Code, the Canadian Human Rights Act and the NDA (the Code of Service Discipline). The CF is often deployed to areas of the world where law and order has broken down, or temptations are presented to adopt local standards of conduct. Members often need look no further than the Code of Service Discipline to determine what standard of conduct is expected of them. The habit of obedience demands the steadfast application of, and respect for, the laws of Canada, which govern military society by all members of that society.


Footnotes

1 Gerald Gall, The Canadian Legal System, (Toronto: Carswell, 1990) at 1.

2 These values can be found in the Canadian Charter of Rights and Freedoms (the Charter) contained in our Constitution, and federal statutes such as the National Defence Act and the Criminal Code of Canada.

3 A copy of the Canadian Charter of Rights and Freedoms is found in Annex A.

4 This body of law is explained in detail in the CF Publication The Law of Armed Conflict at the Operational and Tactical Level (B-GG-005-027/AF-020).

5 International human rights documents include: The Universal Declaration of Human Rights, 1948; The International Covenant on Economic, Social, and Cultural Rights, 1966; The International Covenant on Civil and Political Rights, 1966; The Optional Protocol to the International Covenant on Civil and Political Rights, 1966; The International Convention on the Elimination of All Forms of Racial Discrimination, 1966; The Convention on the Elimination of All Forms of Discrimination Against Women, 1979; The Convention on the Rights of the Child, 1989.

6 The Geneva Conventions Act, R.S.C. 1985 c. C-46.

7 It was this incorporation of international obligations, in particular the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, into domestic criminal and military law that enabled the prosecution of CF members in respect of incidents arising from the peace support mission in Somalia.

8 [1980] 2 S.C.R. 370.

9 [1992] 1 S.C.R. 259.

10 NDA s.14, 15, 17, 18, 19, 20, 23, 33.

11 NDA s.12.

12 QR&O 19.01.

13 QR&O 4.02, 5.01, 19.01, 19.015.

14 Id.

15 QR&O 4.02.

16 QR&O 4.02, 5.01, 19.13 and 19.14.

17 For example, issuing driver's licences.

18 See Chapter 4, Fairness and the Application of the Charter.

19 [1980] 2 S.C.R. 370 at 399.

20 1997 Report to the Prime Minister on the Leadership and Management of the Canadian Forces "Values and Ethics" (March 25, 1997) at 11.

21 Employment in particular jobs may not be limited to persons of a particular sex, religion, or national origin unless the employer can show that sex, religion, or national origin is an actual qualification for performing the job. The qualification is called a bona fide occupational requirement. Black's Law Dictionary, (St. Paul, Minn.: West Publishing Co., 1990) at 177.

22 The Concise Oxford Dictionary of Current English, (9th ed) (Oxford: Clarendon Press, 1995) at 463.

23 Id. at 883.

24 [1994] 1 S.C.R. 701.

25 The principle focus of this chapter is the relationship of military law to discipline. It should be noted that there are other important individual and social psychology dimensions of military discipline such as the differential nature of obedience and the sub-components of functional discipline. However, an in-depth analysis of these concepts is beyond the scope of the chapter and the intent of the manual.

26 Anthony Kellett, Combat Motivation: The Behaviour of Soldiers in Battle (The Hague: Kluwar Nijhoff Publishing, 1982).

27 Id.

28 Id. at 334.

29 Charles Moskos "Institutional and Occupational Trends in Armed Forces" in The Military: More Than Just a Job (London: Pergamon-Brassey's International Defence Publishers Inc., 1988) at 16-17.

30 The Concise Oxford Dictionary of Current English, (9th ed) (Oxford: Clarendon Press, 1995) at 385.

31 Report on Certain "Incidents" Which Occurred on Board H.M.C. Ships Athabaskan, Crescent and Magnificent and on Other Matters Concerning the Royal Canadian Navy (the Mainguy Report), October 1949 at 32.

32 See Chapter 4, Fairness and the Application of the Charter.

33 [1980] 2 S.C.R. 370 at 399.

34 QR&O 4.02, 5.01, 19.01.

35 M. Wakim, ed., War, Morality and the Military Profession, (Boulder, Colorado: Westview Press, 1979) at 17.

36We, reposing especial Trust and Confidence in you Loyalty, Courage and Integrity, do by these Presents Constitute and Appoint you to be an Officer in our Canadian Armed Forces. You are therefore carefully and diligently to discharge your Duty as such in the rank of Second Lieutenant or in such other Rank as We may from time to time hereafter be pleased to promote or appoint you to, and you are in such manner and on such occasions as may be prescribed by Us to exercise and well discipline both the Inferior Officers and Non-Commissioned Members serving under you and use your best endeavour to keep them in good Order and Discipline. And We do hereby Command them to Obey you as their Superior Officer, and you to observe and follow such Orders and Directions as from time to time you shall receive from us, or any your Superior Officer according to Law, in pursuance of the Trust hereby reposed in you”. (From Canadian Forces Officer Commissioning Scroll).

37 [1980] 2 S.C.R. 370.

38 [1992] 1 S.C.R. 259 at 295.

39 [1992] 1 S.C.R. 259 at 293.

40 Anthony Kellett, Combat Motivation: The Behaviour of Soldiers in Battle (The Hague: Kluwar Nijhoff Publishing, 1982) at 319-332.

41 Id. at 321.

42 1997 Report to the Prime Minister on the Leadership and Management of the Armed Forces "Values and Ethics" (March 25, 1997).

43 Also consider Criminal Code of Canada s.62.

44 Report of the Special Advisory Group on Military Justice and Military Police Investigation Services , March 14, 1997, at 9.

45 Report on Certain "Incidents" Which Occurred on Board H.M.C. Ships Athabaskan, Crescent and Magnificent and on Other Matters Concerning the Royal Canadian Navy (the Mainguy Report), October 1949 at 7.

46 The Concise Oxford Dictionary of Current English, (9th ed) (Oxford: Clarendon Press, 1995) at 463.

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