Sections of the Strengthening Military Justice in the Defence of Canada Act to come into force September 1, 2018
As stated by the Supreme Court of Canada in the recent decision of R. v. Moriarity, the purpose of Canada’s military justice system is “to maintain discipline, efficiency and morale in the military”. To achieve this purpose it must operate expeditiously and fairly, remaining consistent with Canadian law, including the Canadian Charter of Rights and Freedoms ( Charter ). If the military justice system is to remain both relevant and legitimate, it must evolve with the law while remaining responsive to its core mandate.
Modifying the Military Justice System
On September 1, 2018, sections of the Strengthening Military Justice in the Defence of Canada Act (the Act), amending provisions of the National Defence Act (NDA), will come into force, along with related provisions amending the Queen’s Regulations and Orders for the Canadian Forces (QR&O).
The QR&O are made pursuant to the NDA. In accordance with provisions of the NDA, the QR&O provide regulations and orders, made under the authority of the Governor in Council, the Minister of National Defence, the Treasury Board and the Chief of the Defence Staff, concerning topics such as the organization, training, discipline, efficiency, administration and good government of the Canadian Forces. When the NDA is amended, it is typically necessary to make corresponding amendments to the QR&O in order to harmonize the regulations and legislation.
The legislative and regulatory amendments coming into force on September 1, 2018 effectively implement the Government of Canada’s response to recommendations related to military justice made by the late Right Honourable Antonio Lamer and by the Standing Senate Committee on Legal and Constitutional Affairs. They address matters related to military justice, such as those concerning sentencing including victim impact statements and restitution orders, summary trials, suspension of imprisonment or detention, composition of a General Court Martial panel, limitations on the power to arrest without warrant, review of directions on release from custody by military judges, and criminal records.
November 2003: Lamer Report
- The First Independent Review of portions of the NDA was conducted by the late Right Honourable Antonio Lamer, former Chief Justice of the Supreme Court of Canada.
- The Lamer report was tabled in Parliament in 2003 and made recommendations related to military justice, the grievance process, military police and the Military Police Complaints Commission.
May 2009: Senate Committee on Legal and Constitutional Affairs
- Report made recommendations related to the military justice system.
June 19, 2013: The Act received Royal Assent
- Certain provisions relating to the security of tenure of military judges and the appointment of reserve force military judges came into force.
- October 18, 2013 - Amendments to the NDA and QR&O, related to the administration of justice, came into force.
- June 1, 2014 - Further amendments to the NDA and QR&O, related to the administration of justice, came into force.
- September 1, 2018 - The majority of the remaining sections of the Act, relating to military justice, as well as corresponding amendments to the QR&O, will come into force.
The amendments to the NDA and QR&O introduce into the military justice system a number of changes improving its flexibility, efficiency and legitimacy. Below are some of the significant amendments:
Changes at Court Martial
Courts martial are the sole service tribunals with the jurisdiction to try certain serious service offences. Certain other charges allow an accused person to elect to be tried by court martial. A court martial may also try a matter if a limitation period has expired.
- Victim Impact Statements will allow victims at courts martial to have their voices heard and their statements will become part of the body of evidence that the court must consider when determining a sentence.
- A court martial may order that an offender make restitution in cases of damage to property, or bodily or psychological harm.
- Distinctions based on rank will be reduced regarding the composition of a General Court Martial panel by expanding the pool of Canadian Armed Forces (CAF) members eligible to serve on a panel.
- The minimum rank of the senior member of the panel is reduced from colonel to lieutenant-colonel.
- Sergeants may serve on a panel.
Changes at Summary Trial
The summary trial is the most common form of service tribunal. It allows for less serious service offences to be tried and disposed of quickly at the unit level.
- 6-month limitation period within which charges must be laid.
- An accused person may waive both the 6-month charge limitation period, as well as the preexisting 12-month limitation period within which a summary trial must commence.
- Lieutenant-colonels may be tried by summary trial by superior commanders holding the rank of colonel and above.
- Military judges may not be tried by summary trial – protecting the perception of their judicial independence.
- Superior commanders may impose minor punishments for officer cadets, such as confinement to barracks, extra work and drill, and stoppage of leave.
Purposes, Objectives and Principles of Sentencing
Enumerated in the NDA and reflecting similar provisions found in the Canadian Criminal Code, these concepts will guide service tribunals when determining just sentences that take into account the unique demands of military discipline.
Flexible Sentencing Options
New and enhanced sentencing options allow a service tribunal to balance the interests of justice with the specific circumstances of an offender.
- Service tribunals may absolutely discharge an offender or order that they serve a sentence of detention intermittently.
- A service tribunal’s ability to suspend a sentence of detention has been enhanced through the addition of conditions.
- Intermittent and suspended sentence orders may be reviewed.
- Power to arrest a member without a warrant is limited.
- A direction to release a person from custody, with or without conditions, may be reviewed by a military judge.
- Charges must be laid as expeditiously as the circumstances permit against a person who is retained in custody, or released from custody with conditions, thereby providing greater protection of individual liberty interests.
- Specific service offences, which result in punishments below a certain threshold, no longer result in a criminal record.
In the months leading up to the coming into force date, the CAF, in conjunction with the Judge Advocate General, will ensure that commanding officers, presiding officers and other members playing key roles in the military justice system will receive the training necessary to understand the changes to the system and to discharge their duties as of September 1, 2018.
These amendments to the NDA and QR&O are the culmination of a complex process, requiring years of effort and cooperation by numerous stakeholders within the CAF and the Department of National Defence. The improvements in fairness and flexibility introduced by these amendments enhance the effectiveness, efficiency and thus the legitimacy, of the Canadian military justice system. A military justice system reflective of Canadian values is one that will help the CAF promote a culture of leadership, respect, and honour – cornerstones of Canada’s Defence Policy, Strong, Secure, Engaged. The military justice system is an indispensable facet of the CAF; its enhancement and modernization will enable the CAF to accomplish its many vital objectives, both at home and abroad.
Department of National Defence
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