About Court Martial Cases

November 28, 2016 — Ottawa — National Defence / Canadian Armed Forces

Military Justice System

Canada’s military justice system is a separate and parallel system of justice that forms an integral part of the Canadian legal mosaic. It shares many of the same principles as the civilian criminal justice system, and it is subject to the same constitutional framework including the Charter.

While the military justice system is equal in status to the civilian justice system, it differs with respect to some of its objectives. In addition to ensuring that justice is administered fairly and with respect for the rule of law, the military justice system is also designed to promote the operational effectiveness of the Canadian Armed Forces (CAF) by contributing to its maintenance of discipline, efficiency, and morale. These objectives give rise to many of the differences that properly distinguish the military justice system from the civilian justice system.

Code of Service Discipline

The Code of Service Discipline, Part III of the National Defence Act (NDA), is the foundation of the Canadian military justice system. It sets out disciplinary jurisdiction and provides for service offences that are essential to the maintenance of discipline and the operational effectiveness of the CAF. It also sets out punishments and powers of arrest, along with the organization and procedures of service tribunals, appeals, and post-trial review. CAF members can also be tried for offences committed contrary to the Criminal Code and any other Act of Parliament as set out in the Code of Service Discipline.

Jurisdiction

In situations where both civilian or military tribunals have jurisdiction to try a CAF member for offences under the Criminal Code or other Acts of Parliament, the choice of venue will depend on:

• whether those investigating the matter (e.g., the civilian or military police) engage the civilian or military prosecutors; and,
• whether the prosecutor seized of the case is of the view that it should proceed in their respective jurisdiction. 

Consultation may occur between civilian and military prosecution services concerning the selection of the appropriate jurisdiction. The Director of Military Prosecution’s policy directives encourage such discussion and provide criteria to guide that decision. For example:

• the degree of military and civilian community interest in the case;
• the views of the victim (when applicable); and
• whether the matter was investigated by military or civilian personnel and the views of the investigative agency.

In any event, cases will only proceed to trial by court martial if a military prosecutor is of the view that there is a reasonable prospect of conviction (i.e., how strong the case is likely to be when presented at court martial based on the evidence available) and that it is in the public interest to proceed. The determination of the public interest is also subject to the assessment of criteria such as:

• the effect on the maintenance of good order and discipline in the CAF;
• the seriousness of the alleged offence;
• the views of the victim (when applicable);
• significant mitigating or aggravating circumstances; and
• the prevalence of the alleged offence in the unit or military community at large and the need for general and specific deterrence.

Courts Martial

The military justice system is comprised of two types of service tribunals: summary trials and courts martial. Courts martial are formal military courts presided over by a military judge and are designed to deal with more serious offences. Courts martial are conducted in accordance with rules and procedures similar to those of civilian criminal courts and have 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.

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 from the Directorate of Defence Counsel Services at no cost, or by civilian counsel at his or her own expense. The accused can also choose not to be represented by a lawyer.

Types of Courts Martial

The NDA provides for two types of court martial: General and Standing. These courts martial can be convened anywhere, in Canada and abroad. The General Court Martial is composed of a military judge and a panel of five CAF members. The panel is selected randomly by the Court Martial Administrator and is governed by rules that reinforce its military character. At a General Court Martial, the panel serves as the trier of fact while the military judge makes all legal rulings and imposes the sentence. Panels must reach unanimous decisions on any finding of guilt. At a Standing Court Martial, the military judge sits alone, makes any of the required findings and, if the accused person is convicted, imposes the sentence. 

Sentences

The Code of Service Discipline prescribes the scale of punishments which can be handed down and ranges from minor punishment up to and including life in prison. The maximum sentence a military judge can award for any particular offence is generally prescribed by law and depends on the severity of the offence with which the accused has been charged. Other forms of punishment include fines, reprimands, reduction in rank, dismissal and detention. 

A military judge can sentence prison terms in both military and civilian institutions. For terms under two years, sentences can be served at either the Canadian Forces Service Prison and Detention Barracks in Edmonton, Alberta or a provincial prison. Prison terms of two or more years would be served at a federal penitentiary. CAF offenders can serve part of a term in the Canadian Forces Service Prison and Detention Barracks before being transferred to a civilian facility.

Appeal of Decisions

Decisions made at courts martial may be appealed to the Court Martial Appeal Court. The Court Martial Appeal Court is composed of civilian judges who are designated from the Federal Court of Canada and the Federal Court of Appeal, or appointed from the Superior Courts and Courts of Appeal of the provinces and territories. 

Court Martial Appeal Court decisions may be appealed to the Supreme Court of Canada on any question of law on which a judge of the Court Martial Appeal Court dissents, or on any question of law if leave to appeal is granted by the Supreme Court of Canada

Open to the public

Court martial proceedings are required, by law, to be open to the public just as are criminal cases in the civilian justice system. However, a court martial may order that the public be excluded during the whole or any part of its proceedings if the court martial considers that it is necessary:

• in the interest of public safety;
• to maintain order or administration of justice; or
• to prevent injury to international relations.

The Office of the Chief of Military Judge posts all upcoming courts martial online as well as all court martial decisions.

Privacy Concerns

In certain cases a complainant’s identity may be protected due to privacy concerns. At courts martial a military judge may order a publication ban to prevent the identification of a complainant or the military judge may exclude the public during the testimony of the complainant or any other witness.

Pay

CAF members are entitled to pay throughout court martial proceedings, including while in civil custody and awaiting trial by a civilian tribunal. If convicted by a civilian court, a CAF member would forfeit one day’s pay for each day spent in custody awaiting trial as detailed in the Queen’s Regulations & Orders.

Criminal Record

Members of the CAF who are convicted of an offence at court martial will have a criminal record. Depending on the offence, a conviction may also be entered into the Canadian Police Information Centre (CPIC) database to allow policing agencies across Canada to access information for law enforcement purposes.

Career Implications

Outside a disciplinary sentence handed down by a military judge at a court martial, the CAF has career administrative actions to determine a CAF member’s suitability for continued employment. As part of this process, an administrative review may consider the evidence supporting a charge, in addition to the CAF member's entire period of service, their leadership role, and any previous conduct or performance deficiencies. 

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Associated Links

• The Code of Service Discipline and Me
• Office of the Chief Military Judge
• The CAF Court Martial System
• Judge Advocate General (JAG)
• National Defence Act
• Canada's Court Martial System

Contacts

Media Relations
Department of National Defence
Phone: 613-996-2353
Toll-Free: 1-866-377-0811
Email: mlo-blm@forces.gc.ca