Canada's Military Justice System is in a meltdown: will Government act?

Colonel-Maître Michel Drapeau and Hon. Gilles Létourneau, QC

in collaboration with:

Mr. Joshua Juneau and Stéfanie Bédard

Cognizant of the growing and persistent systemic flaws found in the military justice system as exposed by several official reports, as well as the cultural issues plaguing our military as recently reported by Canadian media, we are convinced of the urgent need to reinforce its trustworthiness, independence, and fairness. Recently, the military has faced an unprecedented crumbling of the organization as we know it, and the deep-rooted, systemic issues within the Canadian Armed Forces [CAF] are starting to be exposed to the civilian world.

(Click here to read the book)

Military Law and Operations (Print & ProView)

Dr. Chris Madsen

Publisher: Carswell (2021)

Dr. Chris Madsen’s book encompasses:

  • The historical background of Canadian military law
  • Legislative and civilian control over the armed forces
  • Courts martial
  • Domestic operations
  • UN operations
  • Rules of engagement
  • War crimes

Organized for easy reference, Military Law and Operations includes appendices containing key legislation and case law summaries, as well as comprehensive lists of courts martial and appeal cases summarized to provide quick access to charge and sentencing information plus military sentencing digests. Military Law and Operations is an indispensable resource for lawyers, military professionals, and academics in Canada and the United States.

MILITARY JUSTICE: A Very Short Introduction

Eugene R. Fidell

Publisher: Oxford University Press (2016)

This brief, 113-page book may appear, at first glance, to be a brief introduction to the subject of military justice, but that is deceiving. It is, in actuality, a solid book that has stripped away all superfluous information and gets down to the discussion from page one. It is, despite its size, deserving on a prominent place on the bookshelf of any serious researcher into the subject of military justice.

Military Justice in the Modern Age

Edited by Alison Duxbury and Matthew Groves

Publisher: Cambridge University Press (2016)

Military justice systems across the world are in a state of transition. These changes are due to a combination of domestic and international legal pressures. The domestic influences include constitutional principles, bills of rights and the presence of increasingly strong oversight bodies such as parliamentary committees. Military justice has also come under pressure from international law, particularly when applied on operations. The common theme in these many different influences is the growing role of external legal principles and institutions on military justice.

Military Justice in the Modern Age provides insights from both scholars and practitioners on reforms to military justice in individual countries (including the UK, Canada, the Netherland and Australia) and in wider regions (for example, South Asia and Latin America). IUt also analyzes the impact of ‘civilianization’, the changing nature of operations and the decisions of domestic and international courts on efforts to reform military justice.

Military Justice in Action: Annotated National Defence Legislation

Hon. Justice (retired) Gilles Létourneau, QC, and Professor Michel W. Drapeau

Publisher: Carswell (2015)

In an earlier era, there were two things you could count on in a book about military justice. First, you could rest assured that it would have a long shelf life because the
area was highly stable. Second, you were unlikely to find any reference to developments in other countries. Those days are gone forever, and the Second Edition of Justice Létourneau’s and Professor Drapeau’s excellent treatise is Exhibit A.

Canadian military justice has been in motion, essentially nonstop, since the Supreme Court of Canada’s landmark decision in The Queen v. Ge´ne´reux in 1992.
Fundamental issues of judicial independence, election of forum, personal jurisdiction and subject matter jurisdiction have been the subject of judicial examination by the
Court Martial Appeal Court and in some instances by the Supreme Court of Canada. Additionally, Parliament has arguably paid more attention to military justice in the
last twenty years than it perhaps did in the preceding century. These legal developments have been the result of a remarkable continuing conversation between the
branches of Canadian government, and have demonstrated the robustness of democratic institutions and their ability to adapt to the evolving expectations ofCanadians,
both civilians and military personnel. This is as it should be, given the country’s selfless commitment to making the Canadian Forces available for peacekeeping and
other operations around the globe. (Eugene R. Fidell)

Introduction to Military Justice" an Overview of Military Penal Justice System and its Evolution in Canada

Initiation à la Justice Militaire: un tour d'horizon du système de justice pénale militaires et de son évolution au Canada

Gilles Létourneau

Publisher: Wilson Lafleur Ltée (2012)

The penal military justice has been standing from time immemorial. From a formerly expeditions and drastic justice, it has become over time, not unlike our criminal law, more humane and respectful of human rights. The
change has been brought about by various Charters of rights and freedoms, judicial decisions, International Conventions enacted to protect individuals groups devoted to the protection of human rights and, at least in demo
cratic societies, a general awareness of the priceless and transcendent values of liberty and human dignity.

French politician Georges Clemenceau, who served as Prime Minister of France twice (1906 -1909 and 1917-1920), critically and acerbically said that “military justice is to justice what military music is to music.”

If that statement needs to be tempered nowadays, one fact, however, remains: military justice is a justice of an exceptional nature which, in many respects, departs from the common law applicable to persons who
are not members of the military.

This is also true of Canadian penal military justice. In addition, as we shall see, our penal military justice system mitigates the right to equality before and under the law as well as the right to equal protection and benefit
of the law guaranteed by section 15 of the Canadian Charter of Rights and Freedoms (Charter).

The Canadian penal military justice exhibits, among others, the following features: it possesses its own system of prosecution and defence and its own tribunals whose jurisdiction obtains as much in Canada as it does

As a starting point to this overview of the military criminal justice system, it is imperative that we embark upon a review of the jurisdiction of
Canadian service tribunals.

Another Kind of Justice

Dr. Chris Madsen

Publisher: UBC Press (1999)

Another Kind of Justice is the first historical survey of Canadian military law, providing valuable insights into military justice in Canada, the purpose of military law, and the level of legal professionalism within the Canadian military.

Drawing on a wide range of materials, Chris Madsen traces the development of military law from 1867 to 1998. After delving into the British roots of Canadian military law, he brings his discussion right up to date with analysis of recent sexual discrimination cases and the Somalia inquiry. He explains how military law has served a strictly functional purpose in maintaining discipline, and how it claims its legitimacy and distinct status in relation to civil law. It becomes clear that military law has responded to pragmatic needs in reactive rather than a planned manner.

Another kind of justice describes the statutes and regulations that govern Canada’s armed forces, the institutions responsible for overseeing military law, and how knowledge about military law is disseminated. Madsen concludes that longstanding organizational problems and training deficiencies bear some responsibility for the unfortunate behaviour of Canadian soldiers in Somalia.