Chapter 3: Framework of the Canadian Military Justice System

SECTION 1 - GENERAL

1. The purpose of this chapter is to provide a broad outline of the Canadian military justice system including its legal basis, jurisdiction, types of tribunals and procedures.

SECTION 2 - LEGAL BASIS FOR THE CANADIAN MILITARY JUSTICE SYSTEM

Canadian Constitution

2. Under the Canadian Constitution, the Parliament of Canada has exclusive authority to make laws relating to the “militia, military and naval service and defence.”¹ Therefore, Canadian constitutional law accords the Federal Parliament the right to make laws relating to military justice.

National Defence Act (NDA)

3. Using its constitutional authority, the Parliament of Canada has over time enacted a number of laws governing the armed forces raised by Canada. The NDA is the law currently in force and sets out, among a number of matters, the organization of the Department of National Defence (DND) and the CF as well as the particulars of the Canadian military justice system.

4. The Code of Service Discipline is a central part of the NDA and comprises approximately one-half of the Act.² The Code of Service Discipline sets out the foundation of the Canadian military justice system including disciplinary jurisdiction, service offences, punishments, powers of arrest, organization and procedures of service tribunals, appeals, and post-trial review.

Regulations and Orders

5. Under the NDA, there is authority for the Governor-in-Council and the Minister to make regulations for the organization, training, discipline, efficiency, administration and good government of the CF and generally for carrying the purposes and provisions of the NDA into effect.³ The QR&O have been made pursuant to this authority. Volume II of QR&O is dedicated to disciplinary matters and prescribes in greater detail the jurisdiction, organization and procedures of the Canadian military justice system.

6. The NDA also authorizes the CDS to issue orders and instructions to give effect to the decisions and carry out the directions of the Government of Canada.⁴ The Canadian Forces Administrative Orders (CFAOs) and Defence Administrative Orders and Directives (DAODs) have been made pursuant to this authority. A number of these orders and directives bear upon the military justice system.

7. Orders and instructions dealing with disciplinary matters may be issued at different levels throughout the chain of command.⁵ All members have a duty to be familiar with and follow orders and instructions issued by the chain of command.⁶ The failure of members to comply with these orders and instructions could lead to charges being laid and disposed of under the military justice system.

Constitutional and Judicial Recognition of the Canadian Military Justice System

8. In 1982 the existence and validity of the Canadian military justice system was implicitly recognized by the Charter, which forms part of the Constitution of Canada. Section 11 (f) of the Charter recognizes the right of a person charged with an offence to a jury trial “except in the case of an offence under military law tried before a military tribunal.”

9. The Supreme Court of Canada has on two separate occasions, in 1980 and 1992, recognized the constitutional validity of a separate military justice system.⁷

SECTION 3 - FUNDAMENTALS OF THE CANADIAN MILITARY JUSTICE SYSTEM

Types of Service Tribunals

10. The NDA creates a two-tier system of military justice. The first tier, where most disciplinary matters are dealt with, is the summary trial system. The second tier of the military justice system is the formal court martial system. The term service tribunal means either an officer presiding at a summary trial, or a court martial.⁸

Summary Trials

11. The summary trial is the overwhelmingly predominant and most important form for the trial of disciplinary proceedings. Where a member is charged with a service offence, a summary trial permits the case to be tried and disposed of, as a general rule, at the unit level. Summary trials are presided over by superior commanders, Commanding Officers (COs) of bases, units or elements, or delegated officers. There is no requirement for presiding officers at summary trials to be legally trained. However, the CDS has put in place measures to ensure that before assuming their duties presiding officers are trained in accordance with a curriculum established by the Judge Advocate General and certified by the JAG as qualified to perform those duties. As a general rule, members facing a summary trial are not represented by a lawyer, although they are entitled to an assisting officer. The procedures at a summary trial are straightforward and the powers of punishment are limited in scope. For example, the maximum punishment that can be imposed by a CO presiding at a summary trial is detention for 30 days.⁹

12. The three types of summary proceedings are summary trial before a superior commander, summary trial before a CO and summary trial before a delegated officer. For a complete discussion of the history of summary proceedings, see Chapter 2, History of Summary Proceedings.

Courts Martial

13. A court martial, as the name suggests, is a formal military court presided over by a legally qualified military judge. The procedures followed by a court martial are formal and similar to those followed by civilian criminal courts. Members facing a court martial are entitled to a lawyer free of charge from the Director of Defence Counsel Services (DDCS).¹⁰ The prosecution is conducted by a legally-qualified officer from the Canadian military. An accused member may also retain a civilian lawyer at the member's own expense or where qualifying criteria are met, funded by a provincial legal aid plan. The powers of punishment open to a court martial exceed those available to an officer presiding at a summary trial.

14. There are two types of courts martial:

1. General Courts Martial; and
2. Standing Courts Martial.

15. General Courts Martial consist of a military judge and a panel of members, respectively analogous to a judge and jury in a civilian criminal court. The panel consists of five members, and is comprised entirely of officers unless the accused member is an NCM.¹¹ In that case, the panel must include two NCMs of the rank of warrant officer or above.¹² The panel is responsible for making a finding on the charges (i.e. guilty, not guilty, etc.) and the military judge is responsible for making legal rulings and imposing sentence.¹³

16. A General Courts Martial may impose any punishment authorized by the NDA, including imprisonment for life.¹⁴

17. Unlike General Courts Martial, Standing Courts Martial are presided over by a military judge sitting alone.¹⁵ The military judge makes both a finding on the charges and imposes sentence if there is a finding of guilt.

18. A Standing Courts Martial may impose any punishment authorized by the NDA, including imprisonment for life.¹⁶

19. Both General and Standing Courts Martial may try a civilian who is subject to the Code of Service Discipline.¹⁷ For example, civilians accompanying members on foreign postings are subject to the Code of Service Discipline. When trying a person other than an officer or a non-commissioned member, the powers of punishment of both General and Standing Courts Martial are limited to a fine or imprisonment.¹⁸

Jurisdiction Over Persons

20. The Code of Service Discipline applies to a broad range of persons. While the Code of Service Discipline primarily applies to CF members, civilians do on occasion become subject to Canadian military law, such as when they accompany units or other elements on service or active service.¹⁹ However, for the most part, it is the officers and non-commissioned members of the regular and reserve forces that are liable to be dealt with by court martial and summary trial.²⁰

21. In the case of courts martial, jurisdiction over the person arises when an individual becomes subject to the Code of Service Discipline. Both types of courts martial have jurisdiction overany person who is liable to be charged, dealt with and tried for having committed a service offence.²¹ Any person includes both military and civilian personnel.

22. Officers and non-commissioned members of foreign armed forces who are seconded or attached to the Canadian Forces are also subject to the Code of Service Discipline.²²

23. In the case of a summary trial, jurisdiction over the person is limited to military personnel. Civilians charged with service offences are not subject to summary trial.²³

24. Furthermore, jurisdiction over the person in a summary trial varies with the type of summary trial. A CO may try only officer cadets or NCMs who are below the rank of warrant officer.²⁴ A delegated officer may try only NCMs below the rank of warrant officer.²⁵ Members above the rank of sergeant and below the rank of lieutenant-colonel are subject to summary trial only by a superior commander.²⁶ For a full discussion on the subject see Chapter 11, Jurisdiction and Pre-Trial Determination.

Jurisdiction Over Offences

25. A service offence is an offence under the NDA, the Criminal Code or any other Act of Parliament committed by a person while subject to the Code of Service Discipline.

26. The Code of Service Discipline includes a number of offences that are uniquely military in nature.²⁷ Examples of such offences include misconduct in the presence of the enemy, mutiny, disobedience of a lawful command, desertion, absence without leave, drunkenness, negligent performance of duty and conduct to the prejudice of good order and discipline.

27. Where an offence is committed by a person subject to the Code of Service Discipline under the Criminal Code or other Federal Law, the NDA provides jurisdiction to deal with the matter in the military justice system.²⁸ Such offences are service offences under section 130 of the NDA.²⁹

28. Where offences under the Criminal Code or other Federal laws are dealt with under the military justice system, the place of the offence becomes an important factor. Where such an offence is committed on Canadian territory, as a general rule the civilian justice system and the military justice system have concurrent jurisdiction to prosecute the matter. However, certain criminal offences that are committed in Canada cannot be prosecuted in the military justice system. These offences include murder, manslaughter and child abduction.³⁰

29. Any offence under the Criminal Code or other Federal law, allegedly committed by a person subject to the Code of Service Discipline outside Canada (including murder, manslaughter and child abduction) can be dealt with under the military justice system.³¹

30. An offence committed by a person subject to the Code of Service Discipline under the law of a foreign territory can also be dealt with as a service offence.³²

31. The jurisdiction to try offences is limited at the summary trial level. Offences of a military nature that a CO or superior commander are authorized to deal with at a summary trial are prescribed by the QR&O.³³ A very limited number of offences that are breaches of the Criminal Code or Controlled Drugs and Substances Act can be tried by a CO or superior commander.³⁴ Furthermore, a CO may delegate his authority to try the uniquely military offences referred to in QR&O 108.07 but not the civil offences referred to in QR&O 108.07 (3).³⁵ The jurisdiction of a delegated officer to try offences may be further limited through th e written delegation of authority by the CO. For example, a CO may say that a delegated officer may not try the offence of absent without leave unless the accused is below the rank of sergeant³⁶. For a full discussion of these matters, see Chapter 11, Jurisdiction and Pre-Trial Determinations.

Limitations On Jurisdiction

32. As a general rule, a person who is subject to the Code of Service Discipline at the time of the alleged commission of an offence continues to be liable to be charged, dealt with and tried at any time under the Code of Service Discipline.³⁷ There are two exceptions to this rule.

33. The first exception relates to offences resulting from violations of the Criminal Code, other Federal law, or a foreign law. If the act or omission that constitutes the offence would have been subject to a limitation period had it been dealt with other than under the Code of Service Discipline, that limitation period applies.³⁸ For example, under the Criminal Code proceedings cannot be instituted for summary conviction offences more than six months after the subject-matter of the proceedings arose.³⁹ Therefore, a charge laid under section 130 of the NDA, that consists of a summary conviction offence under the Criminal Code, would be statute-barred if the charge were laid more that six months after the subject-matter of the charge arose.

34. The second exception relates to summary trials. A summary trial must begin before the expiry of one year after the day on which the offence is alleged to have been committed.⁴⁰

Arrest

35. The NDA specifies the circumstances under which a person may be arrested. A person may be arrested if that individual:

1. has committed, is found committing or is believed on reasonable grounds to have committed a service offence; or
2. is charged with having committed a service offence.⁴¹

36. It should be noted that the power to arrest relates to a service offence. Thus, the NDA only authorizes the arrest of persons who are or were subject to the Code of Service Discipline.

37. Where circumstances exist that justify an arrest for the commission of a service offence, the NDA grants powers of arrest without a warrant to officers, NCMs and Military Police.⁴² COs and delegated officers are authorized to issue warrants for the arrest of persons with respect to the commission of service offences.⁴³ For a complete discussion of this subject, see Chapter 6, Arrest.

Pre-Trial Custody

38. Where a person has been arrested with respect to the commission of an offence, the NDA addresses the circumstances in which that person can be retained in custody pending trial. There is a general obligation on a person making an arrest to release a person as soon as is practicable, unless the person making the arrest believes on reasonable and probable grounds that it is necessary that the person under arrest be retained in custody having regard to all the circumstances, including:

1. the gravity of the offence alleged to have been committed;
2. the need to establish the identity of the person under arrest;
3. the need to secure or preserve evidence of or relating to the offence alleged to have been committed;
4. the need to ensure that the person under arrest will appear before a service tribunal or civil court to be dealt with according to law;
5. the need to prevent the continuation or repetition of the offence alleged to have been committed or the commission of any other offence; and
6. the necessity to ensure the safety of the person under arrest or any other person.⁴⁴

39. A decision to retain a person in custody must be reviewed by a custody review officer as soon as practicable and no later than 48 hours after the person's arrest.⁴⁵

40. If the custody review officer does not direct the release, the person in custody must be taken before a military judge to determine whether that person should be retained in custody.⁴⁶

41. The decision of a military judge to release or retain a person in custody may be reviewed by the Courts Martial Appeal Court.⁴⁷ For a full discussion of this subject, see Chapter 7, Pre-Trial Custody.

Investigations and Searches

42. Where a complaint is made or there are other reasons to believe that a offence may have been committed, an investigation must be conducted as soon as practical to determine whether there are sufficient grounds to justify the laying of a charge.⁴⁸ In this context, a complaint means a report by any person, military or civilian, alleging that a service offence has been committed.

43. An investigation is intended, as a minimum, to collect all reasonably available evidence bearing on the guilt or innocence of the person who is the subject of the investigation.⁴⁹ If it is necessary to conduct a search as part of an investigation, QR&O set out a procedure for obtaining a military search warrant.⁵⁰ For a complete discussion on this subject, see Chapter 5, Powers of Investigation, Search and Seizure, and Inspection.

Laying of Charges

44. A charge is a formal accusation that a person subject to the Code of Service Discipline has committed a service offence. A charge is laid when it is reduced to writing in Part 1 (Charge Report) of the Record of Disciplinary Proceedings (RDP) and signed by a person authorized to lay charges.⁵¹

45. The following persons may lay charges under the Code of Service Discipline:

1. a CO;
2. an officer or NCM authorized by a CO to lay charges; and
3. an officer or NCM of the Military Police assigned to investigative duties with the CF National Investigation Service (NIS).⁵²

46. A person who lays a charge under the Code of Service Discipline must have an actual belief that the accused member has committed the offence and that belief must be reasonable.⁵³ For a full discussion on this subject see Chapter 8, Laying of Charges.

Role of the Canadian Forces National Investigation Service

47. The NIS plays an important role in the military justice system with respect to both the investigation and the laying of charges. The mandate of the NIS is to provide DND and the CF with an efficient, accountable, investigative and independent criminal investigation service in Canada and abroad in support of the military justice system.⁵⁴

48. The NIS will normally investigate offences of a serious and sensitive nature.⁵⁵ In general, a serious offence is an indictable or hybrid offence under a federal law or its equivalent offence under the NDA.⁵⁶

49. A sensitive offence is an offence where the accused or the victim is a senior officer (the rank of major or above) or civilian equivalent. An offence is also considered sensitive if it involves a CO or personnel in a position of trust or civilian equivalent. Offences that involve sensitive material, or instances which could bring discredit to DND, are also considered sensitive offences.⁵⁷

50. NIS investigations will normally be initiated when:

1. an investigation is passed to the NIS in accordance with Military Police Policies and Technical Procedures;
2. a Commander/CO requests NIS assistance;
3. a complaint is made directly to the NIS;
4. the NIS learns of an incident through an informant;
5. the NIS is tasked directly by the Canadian Forces Provost Marshal/Deputy Provost martial CF NIS Investigative Support; and
6. the NIS agrees to accept a case that would normally be within the purview of Base/Wing/local investigative personnel but the CF NIS has more expertise in the particular circumstance.⁵⁸

51. Prior to 30 November 1997, the NIS had no authority to lay charges under the Code of Service Discipline. Amendments to QR&O have specifically granted the NIS such authority.⁵⁹

52. A CO or superior commander who decides not to proceed with a charge laid by the NIS is required to communicate that decision along with the reasons for the decision to the NIS. If, after reviewing the decision and reasons, the NIS considers that the charge should be proceeded with, the NIS may refer the charge directly to a referral authority for disposal.⁶⁰

Conduct of a Summary Trial

53. The procedure for conducting a summary trial and receiving evidence is set out in Article 108.20 and 108.21 of QR&O. For a complete discussion of this matter, see Chapter 13, Conduct of a Summary Trial.

Sentencing and Punishment

54. The punishments that can be imposed in respect of service offences range from imprisonment for life to minor punishments. The scale of punishments, from the most severe to the least severe, is as follows:

1. Imprisonment for life;
2. Imprisonment for two years or more;
3. Dismissal with disgrace from Her Majesty's Service;
4. Imprisonment for less than two years;
5. Dismissal from Her Majesty's Service;
6. Detention;
7. Reduction in rank;
8. Forfeiture of seniority;
9. Severe reprimand;
10. Reprimand;
11. Fine; and
12. Minor punishments.⁶¹

55. Courts martial have the greatest powers of punishment. Subject to any maximum punishment ascribed to the offence in question, both General and Standing Courts Martial may impose any punishment provided for in the above scale of punishments.⁶² As noted previously, however, when a court martial tries a person other than an officer or non-commissioned member, it may not impose any punishment from the scale of punishments except imprisonment or a fine.⁶³

56. The powers of punishment of officers presiding at summary trials are more restricted. A CO presiding at a summary trial has powers of punishment ranging from 30 days detention to a minor punishment.⁶⁴ The NDA provides for similar, though less severe, powers of punishment for a delegated officer presiding at a summary trial. Although authorized by the NDA, QR&O do not permit a delegated officer presiding at summary trials to impose a punishment of detention.⁶⁵ A superior commander presiding at a summary trial is limited to imposing a punishment consisting of a severe reprimand, reprimand or a fine.⁶⁶ For a full discussion of this topic, see Chapter 14, Sentencing and Punishment.

Appeal and Summary Trial Review

57. Where a person has been tried by court martial, the NDA sets out the rights of appeal of both the offender and the Minister.⁶⁷ Such appeals are heard by the Courts Martial Appeal Court. The grounds of appeal may include:

1. the severity of the sentence, unless the sentence is one fixed by law;
2. the legality of any finding of guilty;
3. the legality of the whole or any part of the sentence;
4. the legality of a finding of unfit to stand trial or not responsible on account of mental disorder; or
5. the legality of certain dispositions made as a result of a finding of unfit to stand trial or not responsible on account of mental disorder (i.e. custody or treatment dispositions).⁶⁸

58. The Minister may also appeal with respect to the legality of the decision of a court martial that terminates proceedings on a charge or that in any manner refuses or fails to exercise jurisdiction in respect of a charge.⁶⁹

59. A notice of appeal from a decision of a court martial must be delivered within 30 days of the termination of the court martial proceedings.⁷⁰

60. Members found guilty of an offence after a summary trial may submit a request for a review pursuant to the QR&O. Such a review is not an appeal nor will it be heard by a formal court. The request for review is submitted to a review authority that, in most circumstances, is the next superior to whom the presiding officer is responsible in matters of discipline.⁷¹ The member found guilty of an offence at a summary trial may request a review authority to:

1. set aside the finding of guilty on the ground that it is unjust; and
2. alter any punishment on the ground that it is too severe.⁷²

61. A request for review under QR&O 108.45 must be in writing and delivered to the review authority within 14 days of the termination of the summary trial and a copy of the request must also be delivered to the officer who presided at the summary trial.⁷³ The review authority must review the summary trial and determine whether to set aside any finding made or alter any punishment imposed within 21 days of receipt of the application, unless the required circumstances arise for an extension of that time.⁷⁴ For a complete discussion of summary trial reviews, see Chapter 15, Request for Review.

Footnotes

¹ Constitution Act, 1867, s. 91(7).

² Pursuant to s. 2 of the NDA, the Code of Service Discipline consists of Part III of the NDA (ss. 60-249.26).

³ NDA s. 12.

⁴ NDA s.18(2).

⁵ For example, see QR&O 4.12 (Command Orders) and 4.21 (Standing Orders).

⁶ QR&O 4.02 and 5.01.

⁷ MacKay v. The Queen, [1980] 2 S.C.R. 370 and R. v. Genereux, [1992] 1 S.C.R. 259.

⁸ NDA s. 2.

⁹ NDA s. 163(3)(a).

¹⁰ QR&O 101.20(f).

¹¹ NDA ss. 167.

¹² NDA ss. 167(7).

¹³ NDA ss. 191-193.

¹⁴ NDA ss. 139 and 166.

¹⁵ NDA ss. 174.

¹⁶ NDA ss. 139 and 173.

¹⁷ NDA s. 166 and 173. These sections state that the respective Courts Martial have jurisdiction over “any person who is liable to be charged, dealt with and tried on a charge of having committed a service offence”.

¹⁸ NDA s. 166.1 and 175.

¹⁹ NDA s. 60(1) and QR&O 102.09.

²⁰ A complete list of the persons subject to the Code of Service Discipline is contained in NDA ss. 60-65, and QR&O 102.

²¹ NDA s. 166.

²² NDA ss. 2, 60(1)(d) and 173.

²³ NDA ss. 163(1)(a) and 164(1)(a).

²⁴ NDA s. 163(1)(a).

²⁵ NDA s. 163(4) and QR&O 108.10(2)(b).

²⁶ NDA s. 164(1)(a).

²⁷ NDA ss. 73-129.

²⁸ NDA s. 130.

²⁹ In some cases there is an overlapping jurisdiction with the civilian criminal justice system.

³⁰ NDA s. 70.

³¹ NDA s. 130(1)(b).

³² NDA s. 132.

³³ QR&O 108.07(2).

³⁴ QR&O 108.07(3).

³⁵ QR&O 108.10(2)(c).

³⁶ QR&O 108.10(3).

³⁷ NDA s. 60(2) and s. 69.

³⁸ NDA s. 69(a).

³⁹ Criminal Code, s. 786(2).

⁴⁰ NDA s. 69(b).

⁴¹ NDA s. 154.

⁴² NDA s. 155-156.

⁴³ NDA s. 157.

⁴⁴ NDA s. 158(1).

⁴⁵ NDA s. 158.2. Pursuant to s. 153 of the NDA, a custody review officer means:

1. the officer who is the detained person's CO, or an officer who is designated by the CO; or
2. if it is not practical for the foregoing officers to act as a custody review officer, the officer who is the CO of the unit or element where the person is in custody or an officer who is designated by such CO.

⁴⁶ NDA s.159. The procedure to be followed at such a "show cause" hearing is set out in QR&O 105.27.

⁴⁷ NDA s. 159.9.

⁴⁸ QR&O 106.02(1).

⁴⁹ QR&O 106.03.

⁵⁰ QR&O 106.04-106.11.

⁵¹ QR&O 107.015. A copy of the RDP, the Provision of Information form and a completed sample of both appear at Annex B.

⁵² QR&O 107.02.

⁵³ QR&O 107.02, Note.

⁵⁴ Military Police Policies and Technical Procedures, (A-SJ-100-004/AG-000), Chapter 6, Annex A, para. 1.A copy of this document is attached at Annex C.

⁵⁵ Id. at para. 11.

⁵⁶ Id. at para. 6.

⁵⁷ Id. at para. 7.

⁵⁸ Id. at para. 15.

⁵⁹ QR&O 107.02.

⁶⁰ QR&O 107.12(3).

⁶¹ NDA s. 139.

⁶² NDA ss. 166-169.

⁶³ NDA ss. 166.1 and 175.

⁶⁴ NDA s. 163(3).

⁶⁵ QR&O 108.25. Section 163(4) of the NDA provides that a delegated officer may impose punishments ranging from detention to a minor punishment but excluding a reduction inrank. Furthermore, the maximum periodof detention that a delegated officer may impose pursuant to section 163(4) is 14 days. Although authorized by the NDA, the powers of punishment of a delegated officer set out in QR&O 108.25 do not include detention. A delegated officer is limited to imposing a reprimand, fine or other minor punishment.

⁶⁶ NDA s. 164(4).

⁶⁷ NDA ss. 230-230.1.

⁶⁸ NDA ss. 230-230.1.

⁶⁹ NDA s. 230.1(d).

⁷⁰ NDA s. 232(3).

⁷¹ QR&O 108.45(1) and (2).

⁷² QR&O 108.45(1).

⁷³ QR&O 108.45(4) and (5).

⁷⁴ QR&O 108.45(10)-(15).