Canada’s military justice system operates outside the purview of many Canadians, whose taxes fund its operations, as well as those of the Department of National Defence (DND) and the Canadian Armed Forces (CAF). The Canadian military’s justice system operates separately from and independently of the Canadian civilian justice system and, as a consequence, is largely invisible to the general Canadian public.
R v Sussex Justices, Ex parte McCarthy ([1924] 1 KB 256, [1923] All ER Rep 233) is an English case that dealt with the impartiality and recusal of judges. It is the root of the principle that the mere appearance of bias is sufficient to overturn a judicial decision and led to the aphorism “Not only must Justice be done; it must also be seen to be done.”
To many, both military and civilian, entering a court martial is like entering a different world. Courts martial have their own rules and are administered, adjudicated, attended and argued by military personnel in uniform. Members of the public are normally welcome to attend courts martial and interested members of the community should make an effort to do so to ensure that justice is, indeed, seen to be done.
This website is dedicated to opening the doors and drawing back the drapes on Canada’s military justice system, to contributing to an increased public awareness of this system, and to promoting a public discussion and dialogue.
Canada’s Military Justice System
The National Defence Act
The National Defence Act (NDA) is the principal enabling act for the organization, operation and funding of the Canadian Armed Forces. The NDA is explained in the four-volume Queen’s Regulations and Orders (QRO) (http://www.forces.gc.ca/en/about-policies-standards-queens-regulations-orders/index.page). QRO volume I comprises the administrative regulations of the Canadian Armed Forces; volume II deals with the disciplinary elements of military law; volume III comprises the financial regulations; and volume IV contains appendices.
The Code of Service Discipline (CSD), lists the various offenses and infractions for which each member of the Canadian military is responsible, is contained within QRO volume II.
Originally, the QROs were amplified and explained in Canadian Forces Administrative Orders (CFAOs), but over the past several years they are being superseded by Defence Administrative Orders and Directives (DAODs) (http://www.forces.gc.ca/en/about-policies-standards-defence-admin-orders-directives/alphabetical-listing.page), manuals, standard operating procedures (SOPs) or other instruments, or are being cancelled completely with no replacement.
The Canadian military justice system
The Office of the Judge Advocate General (JAG) for the Canadian Forces is, in effect, DND’s and the CAF’s in-house legal department. The JAG is the acronym for both the senior legal officer and the branch which the incumbent commands and for which the incumbent is responsible. The JAG branch “provides legal advice to commanders at bases and wings, provides lawyers who defend [and prosecute] accused persons at courts martial, teaches courses to other CF members or advises a commanding officer in an operational theatre to uphold the ethical and legal principles established by both the Canadian Forces and the Government of Canada.” (Canada’s Military Justice System, 2013)
The policies, procedures and documentation of the Department of National Defence states that “The military justice system is designed to promote the operational effectiveness of the Canadian Armed Forces (CAF) by contributing to the maintenance of discipline, efficiency and morale, and to contribute to respect for the law and the maintenance of a just, peaceful and safe society.” (Canada’s Military Justice System, 2013)
Canada’s military personnel are subject to the condition of unlimited liability, which requires them to accept that their duties and responsibilities may place them in physical and mental jeopardy, even risking injury or death, both domestically and on international deployments and assignments. This mandates the necessity for discipline and for cohesion of military units.
The DND policy notes that the “operational reality of the military has specific implications that hold military members to a higher standard than what would be expected of a civilian.” (Canada’s Military Justice System, 2013) Therefore, the DND stipulates that it needs a separate justice system to enforce the CAF’s disciplinary standards.
Officials of Canada’s military justice system assert that “it must be fair, just and operate transparently. The CAF is dedicated to ensuring that persons subject to the Code of Service Discipline are afforded their right to a fair trial as guaranteed by the Canadian Charter of Rights and Freedoms.” (Canada’s Military Justice System, 2013)
Military disciplinary tribunals
The military justice system employs a two-tiered tribunal structure: summary hearings and courts martial.
Summary Hearings
Summary hearings deal with relatively minor service offences and are adjudicated by a military commander to discipline offenders quickly and easily, enabling a member to return to duty as soon as possible.
Bill C-77 (2019) received Royal Assent on 21 June 2019 by Her Excellency Governor General Julie Payette. This Act achieves several objectives: it entrenches victims’ rights in the National Defence Act and it replaced summary trials with summary hearings which removed detention and the possibility of a criminal record from the list of punishments for minor offences. (https://www.parl.ca/LegisInfo/BillDetails.aspx?Language=E&billId=9847536)
Courts Martial
Courts martial are designed to deal with more serious offences and, as explained in the JAG website, are conducted in accordance with rules and procedures similar to those of civilian criminal courts, and have many of the same rights, powers, and privileges as a superior criminal court.
Military judges preside over courts martial.
Canada’s military justice system conducts two types of court martial: General and Standing.
A General Court Martial comprises a military judge and a panel of five CAF members, who are selected randomly by the Court Martial Administrator. This panel serves a similar function to that of a jury in the civilian courts, as the trier of facts, while the military judge makes all legal rulings and imposes the sentence. Findings of guilt must be determined unanimously by the members of a court martial panel.
In a Standing Court Martial, the military judge presides alone, makes any of the required findings, and if the accused person is convicted, the judge imposes the sentence.
Courts martial can be convened anywhere, including in austere and hostile environments.
Court martial decisions may be appealed to the Court Martial Appeal Court (CMAC). The CMAC is composed of civilian judges, who are designated from the Federal Court of Canada, the Federal Court of Appeal, and superior courts of criminal jurisdiction of the provinces and territories. Decisions by the CMAC may be appealed to the Supreme Court of Canada under certain circumstances.
Independent Review
Parliament requires the Minister of National Defence to regularly conduct independent reviews of the National Defence Act to ensure the military justice system continues evolving and reflects current Canadian legal standards and values.
References
An Act to amend the National Defence Act and to make related and consequential amendments to other Acts: https://www.parl.ca/LegisInfo/BillDetails.aspx?Language=E&billId=9847536
Canada’s Court Martial System. (11 June 2018). Revrieved from the Department of National Defence and the Canadian Armed Forces: http://www.forces.gc.ca/en/about-reports-pubs-military-law/court-martial-system.page
Canada’s Military Justice System. (25 October 2013). Retrieved from Department of National Defence and the Canadian Armed Forces: http://www.forces.gc.ca/en/news/article.page?doc=canada-s-military-justice-system/hnea75sh
Webmaster: Tim Dunne, CD
Major (retired)
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