Chapter 2: History of Summary Proceedings

SECTION 1 - GENERAL

1. In 1997, the Special Advisory Group concluded that the existence of a strong chain of command is absolutely essential to any efficient and disciplined armed force. The Special Advisory Group stated:

"…[t]he CO is at the heart of the entire system of discipline." By statute, regulation, custom and practice of the service, the CO has been given authority…to conduct summary proceedings or recommend the matter for court martial.1

2. The importance of the role of the chain of command, and more specifically the CO, in the maintenance of discipline is highlighted in a historical review of the development of the summary trial system. It is by reviewing the historical basis for summary trial proceedings that a true understanding can be reached of why unique powers of trial have been concentrated in the hands of superior commanders, COs and delegated officers.

SECTION 2 - EARLY SUMMARY PROCEEDINGS

3. A form of military tribunal “for the trial of military offenders appears to have co-existed with the earliest history of armies”.2 Under Roman military law, which was largely customary, disciplinary jurisdiction was exercised at various levels of command. The commanding general (Consul, Praetor or Dictator), lieutenant-generals, military tribunes, centurions and principals all had the power to impose punishments on subordinates. The scale of punishments included death, corporal punishment, dismissal with disgrace, reduction in rank and deprivation of pay.3

4. Among early Germanic tribes judicial proceedings were conducted by the Counts during peace and by the Duke or military chief, through delegation to priests, during times of war. Later there developed courts of regiments conducted by the Colonel or a delegated officer. The judicial authority of the delegated officer was demonstrated by a staff or mace called the regiment.4

5. The first written military codes of Europe were civil as well as military, as the military commanders in war were also the civil leaders in peace.

SECTION 3 - OUR ROOTS

General

6. Since Canadian policy, well into World War II, was to adopt British military law, the history of British military law is, in effect, the early history of the Canadian military justice system. The military law applicable to the British land and air forces developed in a different manner than the law applied to its naval forces.5

The Land Forces

7. Middle Ages to Mutiny Act. During the Middle Ages there was often no clear distinction between civilian and military jurisdiction. The control of English feudal armies was exercised under courts of chivalry, curia militaris, which were brought to England by William the Conqueror in 1066. Even before the use of courts of chivalry had declined there was an increased use of military courts authorized by various Articles of War.6 These councils of war eventually evolved into the modern court martial.7 The English Military Code of 1666 provided for three types of courts: a General Courts Martial, a Regimental Court and a Detachment with the power of a Regimental Court. The Regimental Court was set up for the trial of soldiers by their officers, but did not have jurisdiction over offences “punishable with life or limb”.8

8. During the 17th century there was considerable conflict between the English monarchs and Parliament over the maintenance of armed forces in England in peacetime. This conflict resulted in the signing of a Bill of Rights which, among other things, outlawed the keeping of a standing army within the country in times of peace without the consent of Parliament. In 1689, the question of the disciplining of military forces was again brought to the forefront when troops mutinied to join the forces of James II in Scotland. To address this problem the British Parliament quickly passed the first Mutiny Act9. This Act has been described as the first permanent code of military law.10

9. The pre-amble to the Mutiny Act is particularly instructive in that it indicates an understanding by Parliament that military justice had to be summary in nature. That preamble stated in part:

… according to the knowne and established Lawes of the Realm Yet nevertheless it being requisite for retaining such Forces as are or shall be Raised dureing this Exigence of Affaires in their Duty That an exact Discipline be observed and that Soldiers who shall Mutiny or Stirr up Sedition or shall Desert Their Majesties Service be brought to a more Exemplary and speedy Punishment then the usuall Formes of Law will allow... (emphasis added)

The Mutiny Act recognized that discipline had to be exact, and military offenders needed to be brought to trial promptly.

10. Mutiny Act to 1879. Throughout the 18th century and well into the 19th century the discipline of military forces was governed by a combination of the Mutiny Act and Articles of War. In 1803, the Articles of War were given a statutory basis.11 The three main types of military courts were: the General Courts Martial, the District Courts Martial and the Regimental Courts Martial.

11. The Regimental Courts Martial was the most summary of the courts, as it did not have to be authorized by a Royal Warrant. Instead, the Colonel (CO) convened it under the authority of Articles of War first issued in 1672. The Regimental Court consisted of five officers (three officers could be used) and could sentence a soldier to corporal punishment, imprisonment for a period of 42 days and to forfeiture of pay. The sentence had to be confirmed by the CO.12

12. During the latter half of the 19th century the summary powers of COs were further increased. This was the result of public pressure over the poor conditions of service of the rank and file as evidenced during the Crimean War and the problems with recruiting.13 As R.A. Skelly wrote:

In general the tendency for much of the second half of the century was to extend the army officer's authority to mete out punishments of this nature. A similar process extended the summary jurisdiction of civilian magistrates, and the reasons in both cases were similar. Summary powers were increased to ease the burden on military courts, to speed the process of justice, and to provide alternative methods of punishment to imprisonment.14

13. It was these military tribunals and summary proceedings that were in existence in 1868 when the Canadian Parliament passed the Militia Act15 adopting the Articles of War under British military law to govern Canada's armed forces.

14. The Army Discipline and Regulation Act, 1879 to End of World War II. The period from 1879 to 1945 was marked by a steady growth of the summary powers of military commanders. The increased use of summary punishments and an expanded summary jurisdiction for COs continued the swing away from the use of courts martial started in the mid-19th century. In general, punishment became milder as there developed an increased sense of humanity for the individual soldier within the army, a response to public pressure and the exigencies of voluntary recruitment.16

15. The Army Discipline and Regulation Act, 187917 was enacted to amalgamate the Mutiny Act and the Articles of War. Two years later that Act itself was repealed and replaced by the Army Act of 1881.18 In these Acts the jurisdiction of military law was expanded to include most civil offences committed by soldiers in England.19

16. The Army Discipline and Regulation Act, 1879 gave the CO broad powers to impose summary punishments. The CO had the power to investigate charges against officers or non-commissioned soldiers. Where the case involved a soldier it could be dealt with summarily by the CO. That officer could impose imprisonment, with or without hard labour (7 days); for an offence of drunkenness, a fine (10 shillings); deduction from ordinary pay; and minor punishments. The Act also provided for the right of a soldier to request to be tried by district court martial in any case where the punishment to be imposed would involve imprisonment, a fine or deduction from pay.20

17. The legislation of 1879, marked the beginning of two levels of trial under British military law: summary proceedings and courts martial. From this point on the two service tribunals were to develop along considerably different lines. The court martial was used to try more serious offences and to offer a safety valve for soldiers who preferred not to be tried by their COs. The summary trial remained an informal process and eventually became the primary service tribunal used to maintain discipline in the British and Canadian Armies.

18. Expansion of Summary Powers. The expansion of the summary powers of COs did not end with the legislative reforms of 1879 and 1881. By 1894, the power of the CO to impose imprisonment had been increased from 7 to 14 days.21

19. In 1906 the punishment of detention was introduced. It was to be imposed instead of imprisonment, to those personnel who were to be retained in the Army. At the same time the power of the CO to impose imprisonment was changed to the power to impose detention.22 By 1910 the amount of detention that could be awarded by a CO was increased from 14 days in ordinary cases (21 days for absence without leave) to 28 days for all cases.23 By 1921 the Regimental Courts Martial was abolished.24

20. By 1929, general officers had been given summary powers over officers below the rank of field officer (captain and below) or a warrant officer. This summary proceeding was the forerunner of the present day trial by superior commander.25 This type of summary proceeding was developed to allow for the trial of a junior officer or warrant officer who committed an offence “which is not serious but yet cannot be overlooked”.26

21. It was the system of summary proceedings developed by 1929 that was used by the British Army during World War II. By virtue of the various Militia Acts passed by the Parliament of Canada, it was also those summary proceedings that applied to the Canadian Army during that war.27

The Air Force

22. The history of military law relating to the air force is brief, in keeping with the recent origins of such military forces. During World War I, Canadian air force personnel flew with British units. The discipline of British air units was governed by the Air Force (Constitution) Act 191728 which included the Air Force Act. The Air Force Act was basically a re-wording of the Army Act provisions to comply with Air Force terminology. Since that time the military law applicable to British air forces has remained virtually identical to the law governing the British Army.29

23. The Royal Canadian Air Force was created on April 1, 1924 pursuant to an Order in Council passed under the authority of the Air Board Act.30 That Order in Council provided that discipline would be maintained in accordance with the British Air Force Act, except where it was inconsistent with the applicable Order in Council. In 1940, a separate Royal Canadian Air Force Act31 was enacted. However, it also incorporated the disciplinary provisions of the British Air Force Act.32

The Navy

24. General. British naval law developed in a pattern similar to the law applicable to the land forces with two main exceptions. First, there was not the same conflict with Parliament over the control of discipline in the Navy. This situation was, to a large extent, a result of the lack of threat that the Navy posed to Parliament, since as a blue water navy it was primarily tasked with extending military power outward from Britain.33 Secondly, the military commander was given considerably more power and independence in enforcing discipline than any army counterpart. The greater powers given to the naval commander were a direct result of the independent employment of naval forces away from Britain itself. This tradition of having greater independent powers available to naval commanders was to cause some problems when the amalgamation of Canada's military law was undertaken in 1950.

25. Early Naval Law. In the early years of Britain's naval history the disciplinary system mirrored that of the land forces. Articles of War governed the maintenance of discipline. The trial of offenders was initially conducted under the authority of the Office of the Lord High Admiral, then by councils of war and finally by courts martial during the 16th Century.34 Legislatively, the navy was governed by An Ordanance and Articles Concerning Martial Law for the Government of the Navy35 enacted in 1645, and subsequently by an Ordinance known as the Duke of York's fighting instructions.36

26. A number of consolidations and amendments took place over the next two centuries. The Regulations of 1731 provided for the manner of conducting courts martial and set out Articles of War to be read to the ship's company once per month. Included in those Articles of War was the power of the captain of the ship to summarily punish seamen (not officers). The limit of the captain's summary powers was “twelve lashes on the bare back...according to the ancient practice of the sea”.37

27. As was indicated by Clode in The Administration of Justice under Military and Martial Law,38 the great distinction between naval and army courts in the 19th century was the broad power that the former possessed to order the immediate execution of sentences with little supervision from higher authority.

28. By the nineteenth century the navy was feeling the same pressures as the army concerning the need to reform its disciplinary system. In 1860, the English Parliament passed the Naval Discipline Act, 186039 which, after repeated amendments, was replaced by a new Naval Discipline Act, 1866.40 The CO had jurisdiction over all offences except capital offences and those committed by officers. The punishments that could be awarded at summary proceedings included imprisonment for three months for deserters, imprisonment for six weeks for all other offenders and solitary confinement for up to 10 days.41

29. The Twentieth Century. The Naval Discipline Act, 1866, as it was amended over the years, remained the basis of Canadian naval discipline until 1944, when Canada introduced its own naval disciplinary code. However, while the Naval Service Act, 194442 finally placed a Canadian stamp on the legal affairs of the navy, the Act was really an outright adoption of the provisions of the British Naval Discipline Act, 1866.

30. The Naval Service Act, 1944 provided for two types of military tribunals, the Courts Martial and the Disciplinary Court, and a summary trial before the CO. The CO could only try non-capital offences. The CO's jurisdiction extended to men, ratings (junior NCMs), petty officers, chief petty officers and subordinate officers (midshipmen and officers undergoing training). The punishments which a CO could award included imprisonment in a penitentiary or other than in a penitentiary for a maximum of three months, detention for three months, dismissal, reduction, solitary confinement in a cell or under canvas, and more minor punishments.43 The punishment imposed depended upon the rank of the accused. The CO could also delegate the summary powers to another officer; however, the type and duration of the punishment awarded depended on the rank of the designated officer.44

31. There was no right to elect court martial. Instead, certain of the more serious punishments (including imprisonment, dismissal, detention, disrating etc.) required a punishment warrant to be approved by a senior officer.45 The regulations also provided that an accused's Divisional Officer, or another officer, be appointed to assist the accused before and during the trial.46

SECTION 4 - THE NATIONAL DEFENCE ACT - 1950

32. Post War Review. Dissatisfaction with the military justice system, caused largely by the influx of a large numbers of civilians into the armed forces during World War II, prompted a post war review of military law in the United Kingdom, the United States of America and Canada.47 DND made a careful study of the existing legislation. New legislation known as the National Defence Act (NDA) brought within its ambit all three Canadian services and provided a single Code of Service Discipline. Included among other changes was one terminating the application of the United Kingdom statutes, and extended the powers of summary punishment of COs.48

33. The NDA, as enacted in 1950, provided for three types of courts martial: the General Courts Martial, the Disciplinary Courts Martial and the Standing Courts Martial.49 A fourth court martial, the Special General Courts Martial, was added in 1969. The passage of the NDA also marked the end of the largely independent status of naval law.

34. The most difficult task in preparing a unified Code of Service Discipline was resolving the different summary jurisdiction and powers of punishment available to military commanders. The final solution represented a compromise, which resulted in a reduction of the summary powers of naval COs, but an increase in the summary jurisdiction of military commanders overall.

35. Despite initial attempts to introduce a separate naval summary trial system,50 the final legislation established three types of summary trials: trial by CO, trial by delegated officer and trial by superior commander. This judicial structure had elements of both the old Navy (increased punishment-90 days detention, assisting officer, punishment warrants, trial of subordinate officers) and Army (trial by superior commander, right to elect court martial) proceedings.

36. Naval COs lost their power to summarily award a punishment of imprisonment. However, this loss was mitigated somewhat in 1959 by amendments to regulations governing service incarceration where the conditions of imprisonment and detention were made identical.51 The considerable increase in the power of army and air force COs to award detention (28 to 90 days) appears to have been largely a result of the need to reconcile powers of punishment of the various services. However, there is reference in background material to the Act that the increased summary powers were needed for the army because of the negative effect that holding courts martial had on operational effectiveness during World War II.52

37. 1950 to the Charter. During the first 30 years of the NDA there were only two major changes to the summary trial system. In 1952, delegated officers were given the authority to impose up to 14 days detention.53 This increase in punishment from a maximum punishment of a fine of $100,54 continued the expansion of summary powers of military commanders.

38. The second change to the summary trial system involved the right to elect court martial. In 1959, in anticipation of the enactment of the Canadian Bill of Rights55 the regulations were amended to expand the right to elect court martial to include any member charged with a service offence that was also a criminal offence under civilian criminal law.56 Previously, the right to elect court martial under the NDA (but not under the Army Act) had only been available to NCOs (i.e. not privates). The time at which the right to elect court martial was extended to the accused was changed from the end of the trial (after hearing the evidence) to the beginning of the hearing.57 This made the right to elect court martial appear to be more of a form of waiver than a form of appeal.

39. Post Charter. In early 1982, in anticipation of the enactment of the Charter, a Charter Working Group was formed at NDHQ to study the effect of the Charter on the CF and to make recommendations for changes to the Code of Service Discipline and the regulations. The study by the Charter Working Group resulted in two series of amendments to military law. These changes were made in order to achieve a balance between the “Charter rights of individuals and the need to maintain the operational effectiveness of the CF”.58

40. The first group of amendments, occurring in December 1982 and January 1983, involved changes to QR&O. Those changes were primarily to pre-trial and summary trial procedures. Among the changes was a further expansion of the right to elect court martial to include any offence where the presiding officer considers that, if the accused were found guilty, a punishment of detention, reduction in rank or a fine in excess of $200 would be appropriate. In many respects this expansion of the right to elect court martial was a return to the election procedures previously available under the Army Act.

41. In addition, the power that a delegated officer had to impose a punishment of 14 days detention was removed. This was done to increase the right to elect court martial and therefore to expand access to a legal counsel in cases where detention or a substantial fine might be imposed. In consultation with operational commanders at the time it was decided that delegated officers were not to be given the authority to provide an accused the right to elect court martial. From the operational commander's point of view, the first option was preferable.59 As a result only the CO retained the power to impose detention.60

42. The summary trial procedure was also made more detailed by providing for an adjournment to allow the accused to prepare the defence and giving the accused an opportunity to admit to the statement of particulars of the offence.61 The second group of Charter-driven amendments occurred in 1986 and involved amendments to both the NDA and QR&O.

43. In terms of summary trials there were two main changes. First, the power of a CO to try cases where that officer had carried out or directly supervised the investigation, or had issued a search warrant, was restricted to situations where it was not practical for another CO to hear the case (eg. a ship at sea).62

44. Secondly, the accused was expressly given the right to be represented by an assisting officer. The regulations were amended to set out the duties of the assisting officer and provide for their involvement in the summary trial. However, the notes to QR&O indicated that the presiding officer had the discretion to allow legal counsel to participate at a summary trial.63

SECTION 5 - SUMMARY TRIAL REFORM IN THE 1990s

45. The summary trial process came under increasing scrutiny at the beginning of the 1990s. This interest in summary trial proceedings was a direct result of concern over the constitutionality of the summary trial process as a result of the Charter. A Summary Trial Working Group was tasked with conducting an extensive review of the constitutionality of the summary trial system. The report approved by Armed Forces' Council in May 1994 made fifty-nine recommendations. The broad ranging recommendations included restricting presiding officers' jurisdiction over service offences, refining the punishments available at summary trial, expanding the right to elect court martial and improving compliance with the requirements of procedural fairness.64

46. Prior to the implementation of the recommendations contained in the Working Group report a number of disciplinary incidents arising from military operations prompted the appointment of a Special Advisory Group to: “…assess the Code of Service Discipline, not only in light of its underlying purpose, but also the requirement for portable service tribunals capable, with prompt but fair processes, of operating in time of conflict or peace, in Canada or abroad”.65

47. The Special Advisory Group reviewed the summary trial system in respect of jurisdiction, powers of punishment, officer training, assistance to the accused, impartiality of presiding officers and the creation of a record at summary trial proceedings. After commenting on a number of recommendations addressed in the Summary Trial Working Group report, and other studies and proposals the Special Advisory Group concluded,66 in part, that:

  1. the maintenance of effective discipline by the established chain of command continues to be a prime prerequisite for a competent and reliable military organization;
  2. the main instrument of this disciplinary process is the traditional summary trial process, which permits the chain of command to administer discipline and justice in a swift, decisive and final manner, both under combat circumstances in times of war, and in training circumstances in times of peace;
  3. not withstanding the imperative for discipline in military organizations, Canada is founded upon the supremacy of the Rule of Law, especially characterized by the Charter, which must be fully respected in the application of disciplinary measures within the military justice system; and
  4. in recent years the application of military discipline with the CF has been overly cautious and inconsistent because of concerns by COs about the uncertainties over the effect of the Charter.67

48. Of particular concern for the Special Advisory Group was the need for additional training for presiding officers, both to ensure that those officers properly fulfilled their duties and to provide confidence to NCMs that presiding officers are familiar with the rights of accused members. Therefore the Special Advisory Group recommended increased training and education for presiding officers to ensure that they are knowledgeable about their roles in the military justice system and competent to perform them and such officers should be certified by the JAG to preside at summary trials.

49. In addition to the Special Advisory Group Report, the Report of the Somalia Commission of Inquiry68 and other reports and studies69 have led to a review of the NDA and QR&O. The resulting amendments to that legislation incorporated the recommendations contained in the Special Advisory Group Report and responded to the recommendations of the Somalia Commission.

SECTION 6 - CONCLUSION

50. A common thread throughout the long history of the military justice system has been the requirement for a trial system that is more expeditious and less complicated than the courts found in the civilian system. An essential part of the military justice system has been the concentration of disciplinary power in the hands of military commanders. Regardless of whether the proceeding has been termed as a tribunal, council of war, Regimental Courts Martial, summary investigation or summary trial, it has been the military commander, primarily at the level of the CO, who has administered discipline in the armed forces.

51. It is evident from the review of the evolution of summary trial proceedings in the 19th century that they were developed to fulfil a two-fold purpose. First, summary trials met the traditional need for a responsive and administratively simple means of dealing with disciplinary offences. Secondly, summary trials were designed to be a fair proceeding, particularly in terms of the level of punishments imposed on an offender.

52. The requirement for summary proceedings in the military was recognized by the British Parliament with the passage of the Mutiny Act in 1689. That requirement was confirmed by the Canadian Parliament in 1950 with the passage of the NDA. The enactment of the Charter caused the Government to make changes to the summary trial process in order to adequately protect the rights of individual service members, while maintaining the operational effectiveness of the CF. The essential role of summary proceedings and the requirement for the chain of command to maintain discipline has continued with the 1999 amendments to the military justice system.


Footnotes

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

2 W. Winthrop, Military Law and Precedents, 2 ed. (Washington: General Printing Office, 1920) at 45.

3 C.E. Brand, Roman Military Law (Austin: University of Texas Press, 1965) at 103-107. While in camp the commanding general sat in a judgment seat known as the tribunal.

4 Winthrop, Military Law and Precedents at 20-21.

5 K.W. Watkin, LCol, "Canadian Military Justice: Summary Proceedings and the Charter", (1990 LLM thesis) at 35.

6 Articles of War were codes of discipline issued on a regular basis for the purpose of controlling the army.

7 Winthrop, Military Law and Precedents at 9-21.

8 C.M. Clode, The Administration of Justice Under Military and Martial Law, 2 ed. (London: John Murray, 1874)at 14.

9 An Act for Punishing Officers or Soldiers who shall Mutiny or Desert Their Majestyes Service 1689, (U.K.) 1 Will. & Mary c. 5. See R.A. MacDonald, "The Trail of Discipline: The Historical Roots of Canadian Military Law" (1985) 1 C. F. JAG J. 1 at 12.

10 W.J. Lawson, "Canadian Military Law" in The Canadian Bar Review, vol. 29, March 1951, 241 at 243.

11 Clode, The Administration of Justice at 58-59.

12 Mutiny Act, s. 10.

13 Skelly, The Victorian Army At Home (Montreal: McGill-Queen's University Press, 1977) at 17.

14 Id. at 140. Articles of War (1873), art. 32, 50, 77. See Clode, The Administration of Justice, Appendix C at 262, 267-268, 273. The increase in summary jurisdiction did not necessarily mean that the punishments were still not harsh (eg. 7 days confinement to barracks for leaving a brush out on kit display). However, the punishments were considerably less severe than might be awarded by a court martial. See Skelly, The Victorian Army At Home at 139-140, 145-150.

15 An Act respecting the Militia and Defence of the Dominion of Canada, S.C. 1868, c. 40.

16 Skelly, The Victorian Army At Home at 141.

17 Army Discipline and Regulation Act, 1879 (U.K.) 42 & 43 Vict. c.33.

18 Army Act, 1881, (U.K.) 44 & 45 Vict., c. 58.

19 M.L. Friedland, Double Jeopardy (Oxford: Clarendon Press, 1969) at 348.

20 Army Discipline and Regulation Act, 1879, s. 46.

21 Manual of Military Law 1894, (London: H. M. Stationary Office, 1984) at 40.

22 Manual of Military Law 1914, (London: H. M. Stationary Office, 1914), The Army (Annual)Act, 1913, s. 44 at 418.

23 Manual of Military Law, 1914 at 424.

24 W.C. Rigby, "Military Justice in the British Commonwealth" (1942) Fed. Bar Rev. Journal 291 at 324-325.

25 Manual of Military Law at 472-473. (Army Act, s. 47).

26 Id. at 473, note 1. The use of summary proceedings avoided the stigma of being tried by court martial.

27 K.W. Watkin, LCol, "Canadian Military Justice: Summary Proceedings and the Charter", (1990 LLM Thesis) at 46.

28 The Air Force (Constitution) Act, 1917, (U.K.) 7 & 8 Geo. V, c. 51. The Air Force Act formed the Second Schedule to the Air Force (Constitution) Act, 1917.

29 McDonald, "The Trail of Discipline: The Historical Roots of Canadian Military Law" at 19.

30 The Air Board Act, S.C. 1919, c. 11.

31 Royal Canadian Air Force Act, S.C. 1940, c. 5.

32 McDonald, "Trail of Discipline: Historical Roots of Canadian Military Law", at 20.

33 See C.G. Reynolds, Command of the Sea: The History and Strategy of Maritime Empires (New York: William Morrow & Co. Inc., 1974) at 12-13 for an explanation of the role of a "blue water" navy.

34 McDonald, "The Trail of Discipline: The Historical Roots of Canadian Military Law" at 3-4.

35 Lord's Journal, vii, 255.

36 Clode, The Administration of Justice at 42.

37 Id. at 43, n. 2.

38 Id. at 48.

39 Naval Discipline Act, 1860 (U.K.), 23 & 24 Vict., c. 124.

40 Naval Discipline Act, 1866 (U.K.), 29 & 30 Vict., c. 109.

41 McDonald, "The Trail of Discipline: The Historical Roots of Canadian Military Law", at 7.

42 Naval Service Act, 1944, S.C. 1944-45, c. 23.

43 King's Regulations Canadian Navy, art. 14.43, Table II.

44 K.R.C.N., art. 14.09.

45 K.R.C.N., art. 14.37.

46 K.R.C.N., art. 14.20.

47 William T. Generous Jr., in his book Sword and Scales (Washington: National University Publications, 1973) at 15, indicates that the dissatisfaction centred on the harsh and inconsistent punishments that "grossly inexperienced" court members imposed on accused persons. He also indicates that "citizen-soldiers lawyers" were particularly concerned about improper command influence. See also D.A. Schlueter, "The Courts Martial: An Historical Survey" at 157-158, where it is indicated that significant American concern with the military justice system began in World War I.

48 J. H. Hollies, "Canadian Military Law" (1961) 13 Mil. Law Rev. 69 at 70.

49 This court was created and intended to be used only in times of emergency and was removed in 1967.

50 See Special Committee on Bill No.133, An Act Respecting National Defence, "Minutes of Proceedings and Evidence" at 217-219.

51 See QR&O, Vol. II, Appendix XVI.

52 National Defence Act: Explanatory Material, dated November 1, 1950, at 136.

53 As Lieutenant-Colonel McDonald states in. "The Trail of Discipline: The Historical Roots of Canadian Military Law" at 24: “...COs were given authority to delegate powers of punishment of up to 14 days detention. Unfortunately, while committee debates on the NDA amendments in 1952 discuss the nature of the delegation authorized under the amendments they do not provide any insight into the requirement for the increased power”.

54 King's Regulations (Army), art. 108.11, Table.

55 Canadian Bill of Rights, S.C., 1960, c. 44.

56 B. Starkman, "Canadian Military Law: The Citizen as Soldier" (1965) 18 Can. Bar Rev. 414 at 430-431.

57 Hollies, Canadian Military Law at 77.

58 Statement by the Chief of Defence Staff contained in CF Supplementary Orders announcing changes to QR&O. CFSO 48/86 para. 9.

59 McDonald, "The Trail of Discipline: The Historical Roots of Canadian Military Law" at 26.

60 In effect the disciplinary system returned the delegated officers to the status they held during World War II (under the Army Act) and immediately after the enactment of the NDA (up to 1952).

61 QR&O 108.13, 108.29, 110.05.

62 NDA s. 141 (1.1).

63 QR&O 108.03.

64 The Summary Trial Working Group Report was based in large part on a 1990 LLM thesis by LCol K.W. Watkin entitled "Canadian Military Justice: Summary Proceedings and the Charter".

65 Report of the Special Advisory Group on Military Justice and Military Police Investigation Services, March 14, 1997, at 1.

66 These studies included the Summary Trial Working Group Report, various proposals made by the office as the Judge Advocate General, the Friedland Report and an internal study commissioned by the Special Advisory Group.

67 Report of the Special Advisory Group on Military Justice and Military Police Investigation Services, March 14, 1997, at preamble ii.

68 Dishonoured Legacy: The Lessons Learned of the Somalia Affair (Minister of Public Works and Government Services, 1997).

69 For example, M.L. Friedland, Controlling Misconduct in the Military (Minister of Public Works and Government Services, 1997).

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