Canada’s Military Justice System

Background

1. Canada's military justice system operates parallel to its civilian criminal justice counterpart and shares many of the same underlying principles, including being subject to the same constitutional framework. The Supreme Court of Canada (SCC) has regularly recognized the requirement for a separate, distinct military justice system to meet the specific needs of the Canadian Armed Forces (CAF)^{Footnote 1} and has recognized the military justice system as a "full partner in administering justice alongside the civilian justice system."^{Footnote 2}

The Code of Service Discipline

2. The Code of Service Discipline (CSD), contained in Part III of the National Defence Act (NDA),^{Footnote 3} is "[t]he foundation of Canada's military justice system."^{Footnote 4} It is "an essential ingredient of service life"^{Footnote 5} that "defines the standard of conduct to which military personnel and certain civilians are subject and provides for a set of military tribunals to discipline breaches of that standard."^{Footnote 6} "To maintain the CAF in a state of readiness, the military must be in a position to enforce internal discipline effectively and efficiently. Breaches of military discipline must be dealt with speedily and, frequently, punished more severely than would be the case if a civilian engaged in such conduct."^{Footnote 7} It has also been recognized as serving a public function "by punishing specific conduct which threatens public order and welfare."^{Footnote 8} The CSD sets out the procedures and organization of courts martial and summary hearings, the jurisdiction of various actors in the military justice system, the scale of punishments and sanctions, and review and appeal mechanisms.
3. Members of the Regular Force of the CAF are always subject to the CSD, whereas members of the Reserve Force and some civilians are subject to the CSD only in the circumstances specified by section 60 of the NDA. Subject to these jurisdictional limitations, CAF members remain liable to be charged for service offences committed while subject to the CSD, even after release.

The two tiers of the military justice system

4. The military justice system is comprised of two sets of procedures: service offences are tried by court martial, while service infractions are administered by the chain of command at a summary hearing. The rules which govern these processes are set out in the CSD and the Queen's Regulations and Orders (QR&O).^{Footnote 9} Characterizing a disciplinary incident as either a service infraction or service offence depends on an analysis of several factors, including the seriousness and/or sensitivity of the matter, the complexity of the case and other public interest considerations.

Courts Martial

5. A court martial is a formal military court presided over by a military judge who possesses all the constitutional hallmarks of judicial independence.^{Footnote 10} Military judges have powers of punishment up to and including imprisonment for life. Courts martial are conducted in accordance with rules and procedures similar to those of civilian criminal courts, while taking into account the unique requirements of the CAF. They exercise the same rights, powers, and privileges as a superior court of criminal jurisdiction with respect to all "matters necessary or proper for the due exercise of [their] jurisdiction."^{Footnote 11} Courts martial may take place anywhere in Canada or where the CAF operates abroad.
6. Courts martial only deal with service offences. The term "service offence" is defined in the NDA as "an offence under this Act, the Criminal Code, or any other Act of Parliament, committed by a person while subject to the CSD."^{Footnote 12} Thus, service offences include many disciplinary offences that are unique to the profession of arms, such as disobedience of a lawful command,^{Footnote 13} absence without leave,^{Footnote 14} and conduct to the prejudice of good order and discipline,^{Footnote 15} as well as more conventional offences such as those found in the Criminal Code^{Footnote 16} and other acts of Parliament.
7. The NDA provides for two types of courts martial: General and Standing. A General Court Martial is composed of a military judge and a panel of five CAF members. The panel serves as the trier of fact and is responsible for making a finding on the charges. In the event of a guilty finding, it is the military judge who determines the sentence or directs that the offender be discharged absolutely. At a Standing Court Martial, the military judge sits alone, makes any required findings and, if the accused person is found guilty, imposes a sentence or directs that the individual be discharged absolutely.
8. At a court martial, the prosecution is conducted by a military prosecutor under the authority of the Director of Military Prosecutions. The accused is entitled to be represented by defence counsel assigned by the Director of Defence Counsel Services at no cost to the member or by civilian counsel at their own expense.^{Footnote 17}
9. Decisions made at court martial may be appealed to the Court Martial Appeal Court of Canada (CMAC).^{Footnote 18} The CMAC is composed of civilian judges who are appointed by the Governor in Council from the Federal Court of Appeal, the Federal Court, or from the superior courts and courts of appeal of the provinces and territories.^{Footnote 19} CMAC decisions may be appealed to the SCC on any question of law on which a judge of the CMAC dissents, or on any question of law when leave to appeal is granted by the SCC.^{Footnote 20}

The Summary Hearing System

10. The summary hearing system allows the chain of command to address minor breaches of military discipline fairly and efficiently at the unit level using a non-penal, administrative law-based process. This process enhances the responsiveness and efficiency of the military justice system, thereby contributing to the operational effectiveness of the CAF.
11. Charges dealt with at the summary hearing level are called service infractions, which are defined in the QR&O^{Footnote 21}and are not offences under the NDA.^{Footnote 22} Service infractions cover a broad range of misconduct such as unauthorized possession of public property, unauthorized discharge of a firearm, and possession of an intoxicant or use of a drug, such as cannabis, while on duty.
12. Summary hearings may be held anywhere the CAF operates, both domestically and abroad.^{Footnote 23} Summary hearings must commence within six months of the date when the alleged infraction took place.^{Footnote 24}
13. The officer conducting the summary hearing (OCSH) may be a superior commander, a commanding officer, or a delegated officer. The status of the OCSH determines what sanctions are available to them, which range in severity from confinement to barracks and stoppage of leave up to reduction in rank.^{Footnote 25}
14. Summary hearings are conducted in accordance with the principles of Canadian administrative law, particularly the principles of procedural fairness and natural justice.^{Footnote 26} As such, the member charged with the service infraction must be given the opportunity to request the presence of witnesses, present evidence, and make representations at all stages of the hearing.^{Footnote 27} Unlike at courts martial which use the criminal law standard of proof "beyond a reasonable doubt", the standard of proof at a summary hearing is a "balance of probabilities."^{Footnote 28}
15. A member who has been found to have committed a service infraction may request a review of the decision by applying in writing to a review authority within 14 days following receipt of the written reasons.^{Footnote 29} Alternatively, a review authority may undertake a review of the decision on their own initiative.^{Footnote 30} In both cases, a review authority must obtain legal advice prior to conducting the review.^{Footnote 31} A member who is unsatisfied with the outcome of the review can only seek further redress by filing an application for judicial review before the Federal Court at their own expense, in accordance with the Federal Court Act.

Conclusion

16. Canada's military justice system enables operations by providing command teams with a fair and efficient process with which to restore unit cohesion. By having an internal disciplinary system with rules which protect the integrity and fairness of these processes, the CAF remains a lawful, disciplined armed force that is ready to fight.