Welcome to the website for Canadian military justice reform.
Canadian military justice is a product of seventeenth century England. In many ways it continues to reflect its medieval beginnings with its emphasis on summary trials, or military justice dispensed by commanding officer (CO). While Bill C-77 (An Act to amend the National Defence Act and to make related and consequential amendments to other Acts) received Royal Assent on 21 June 2019, the Judge Advocate General took another three years, until 20 June 2022, to prepare the provisions of the Act for implementation. In addition to the Declaration of “Victims Rights, the Summary Hearing process, and other key changes to the Military Justice System” remained in abeyance, including retaining the summary trial process in which the Commanding Officer, with only several hours training in military justice as part of a much larger series of presentations about the legal aspects of service in this appointment, retained the authority to conduct summary trials and impose punishments up to and including 30 days incarceration and a criminal record for a non-criminal military infraction. A number of Canadian Forces’ members were sentenced to detention for the three years following Royal Assent to Bill C-77. However, the accused is not permitted to be represented by a lawyer and there is no transcript taken of the proceedings, so there can be no appeal.
In any other part of Canadian society this would be a denial of the most fundamental human rights.
Bill C-77 removed the potential for a criminal record from the list of punishments that an accused could face. This piece of legislation finally extended the protections and safeguards comparable to the Canadian Victims Bill of Rights to victims of crime committed by military members.
But . . .
Apart from the occasional news item, Canadian military justice is not considered to be a mainstream legal issue in Canada. It has been said that Canadian military justice benefits from “security through obscurity.”
We wish to change this.
We wish to inform the Canadian public about military justice in an effort to contribute to a public debate about its role as part of the Canadian legal mosaic.
We wish to remind the components of Canada’s military justice system; that they are not independent of Canadian values and expectations; and that they are funded by Canadian taxpayers, so they have responsibilities to Canadians to provide a justice system that is fair and equitable for all. The Judge Advocate General, the Military Police and the Canadian Forces Grievance system still have a long way to go to meet the standards of Canadian Common Law and procedural fairness.
We also advocate for a public and independent inquiry to determine if the Canadian military justice system is still a requirement for the Canadian Armed Forces in Canada, in peacetime.
And, we advocate for permanent oversight of the court martial process, Military Police, Canadian Forces National Investigation Service, and the Grievance Administration organization. Currently, these agencies are required to submit to review only once every seven years, leaving the accused open to systemic abuse.
In the past, such issues were examined internally by the Judge Advocate General branch, such as the recent Comprehensive Review of the Court Martial process ordered by the JAG at that time, Major-General Blaise Cathcart. The four-member panel traveled much of the world to research how other nations manage their military justice systems. The massive and expensive two-volume report was rejected by the current Judge Advocate General, Commodore Geneviève Bernatchez, turning it into nothing more than a waste of space on an Ottawa bookshelf and a waste of bandwith on the JAG website.
Former French Prime Minister Georges Clemenceau famously said that military justice is to justice as military music is to music. More accurately, military justice is to justice as crystal meth is to apples. Clemenceau also noted that war is too important to be left to the generals. Then perhaps, military justice is too important to be left to military lawyers.
Some of the areas that need to be addressed include letters that are classified and protected by “solicitor-client privilege” prepared by legal officers about a Canadian military member investigated by the Military Police whose investigation has not discovered any wrongdoing. The letters can state, in effect, that the subject of a Military Police investigation has “escaped formal military discipline” and suggest administrative measures against the military member. This action is not replicated in any other jurisdiction in Canada. Crown prosecutors do not recommend administrative measures to employers following the conclusion of a criminal investigation. These letters violate the accused’s right to the presumption of innocence guaranteed under section 6(1)(a) of the criminal code, section 11(d) of the Canadian Charter of Rights and Freedoms, and the principles of natural law as it exists in Canada. Shielding these letters behind a wall of privilege denies the accused the capability to contest its content and its impact, and have the effect of shredding the military member’s career. Canadian Crown prosecutors are not known to place documentation on the employment files of Canadians. Simply stated, this is wrong, unethical, and immoral.
With its roots in the Thirty Years War, the English Civil War and the Mutiny Act of 1689, contemporary Canadian military justice has grown and evolved into what it is today, without the benefit of public discourse about its need and its role in modern Canada. In the beginning, it was used to keep order among the soldiers and sailors, many of whom were involuntarily “pressed” into service to fight the king’s wars. Summary justice on the battlefield was necessary to expedite the discipline to keep the fighting forces engaged in the battle. It could take weeks to months to return a soldier or sailor home to England to be tried for infractions of the king’s Articles of War.
Today’s Canadian Armed Forces is a volunteer force and personnel can be returned to Canadian soil from virtually anywhere in 24 hours. This leads to questions about the relevance of military justice in 21st century Canada.
Should Canada follow the example of a growing number of nations which have decided to abandon military justice in peacetime?
We are a growing community of concerned Canadians who believe that the National Defence Act must change to accord all members of the Canadian Armed Forces the same rights and freedoms that protect all other residents of Canada, including citizens, visitors, and those seeking refuge in Canada from oppression. Our sailors, soldiers and air force personnel must also enjoy the same rights and freedoms that they are mandated to protect, even if doing so places them in harm’s way.
We hope this site will ultimately become the one-stop location for information about the military legal branch, the Military Police, the Court Martial Appeal Court and military-related decisions of the Federal Court and the Supreme Court of Canada.
Tim Dunne, CD
National defence act
Judge Advocate General
The Office of the Judge Advocate General oversees the administration of military justice; offers legal advice to the Governor General and the Minister, at bases and wings, and throughout the Department of National Defence.
military police and Provost marshal
The Canadian Forces Provost Marshal is the advisor to the Chief of the Defence Staff on policing matters and Commander of the Canadian Forces Military Police.
Court Martial appeal court
The Court Martial Appeal Court of Canada (CMAC) was created
in 1959 and hs jurisdiction to hear appeals of decisions from Courts Martial,
which are military courts established under the National
Defence Act (NDA).