[Military] law which is built upon no settled principles, but is entirely arbitrary in its decisions, is, in truth and reality, no law</em>.” (Sir Matthew Hale SL (1609-1676), English barrister, judge, jurist and legal philosopher)
This website is dedicated to the reform and modernization of Canada’s military justice system.
The first step in any meaningful change is knowledge of the history and evolution of the current system. This section of the website is an effort to add to and develop a body of knowledge about military justice in general, and Canadian military justice in particular. Please visit often as this site is constantly undergoing change, addition and revision.
I have left the titles in their original text and have not converted them to modern English so that researchers can see, and refer to, the titles in an academically acceptable format. (Tim Dunne, CD)
Military law which is built upon no settled principles, but is entirely arbitrary in its decisions, is, in truth and reality, no law.”
(Sir Matthew Hale SL (1609-1676), English barrister, judge, jurist and legal philosopher)
This website is dedicated to the reform and modernization of Canada’s military justice system.
The first step in any meaningful change is knowledge of the history and evolution of the current system. This section of the website is an effort to add to and develop a body of knowledge about military justice in general, and Canadian military justice in particular. Please visit often as this site is constantly undergoing change, addition and revision.
I have left the titles in their original text and have not converted them to modern English so that researchers can see, and refer to, the titles in an academically acceptable format. (Tim Dunne, CD)
tdunne(at)duncom(dot)ca
- Click the topic to access the document
Full-text translation of the 1215 edition of Magna Carta
(Provided courtesy of the British Library)
The Petition of Right
7 June 1628
The petition sought recognition of four principles: no taxation without the consent of Parliament, no imprisonment without cause, no quartering of soldiers on subjects, and no martial law in peacetime. (source: https://www.britannica.com/topic/Petition-of-Right-British-history)
Anima’Diversions of Warre or a Militarie Magazine of the Truest Rules and Ablest Instruction for the Managing of Warre, Composed of the Most Refined Discipline, and Choice Experiment that the Late Netherlandish and Swedish Warres Produced
(Link to University of Michigan Library)
Robert Ward
Gentleman and Commander
1639
The Articles of War of King Gustavus Adolphus for the Swedish Army in the Thirty Years War
(Extracted from Robert Ward’s “Anina’Diversions of Warre . . .” (above)
1639
The English Bill of Rights
1689
ARTICLES OF WAR: The Royal Navy 1749
ARTICLES OF WAR: The Royal Navy 1757
This document is taken from the website for HMS Richmond and enumerates the 35 Articles of War of that time.
1757
Royal Proclamation of 1763
King George III
A Treatise on Courts Martial
Stephen Payne Adye
First Lieutenant
Royal Regiment of Artillery
1769
ARTICLES OF WAR: an Act for Establishing Rules and Articles for the Government of the Armies of the United States
This is interesting as a historical reference, to show the content of the Articles of War of the U.S. Army.
10 April 1806
An Essay on Military Law and the Practice of Courts Martial (second edition)
The Hon. Alexander Fraser Tytler (Formerly Judge-Advocate of North Britain)
1806
The Report from His Majesty’s Commissioners for Inquiring into the System of Military Punishments in the Army
His Majesty’s Stationery Office
1836
Remarks on Military Law and the Punishment of Flogging
Sir Charles J. Napier
1837
A Historical Sketch of Military Punishments, in as far as Non-Commissioner Officers and Private Soldiers
Henry Marshall
Deputy-Inspector-General of Army Hospitals
1843 (?)
The U.K. Naval Discipline Act (1866)
An Act Respecting the Militia and Defence of the Dominion of Canada 1868 (The Canadian Militia Act)
The Military Forces of the Crown (Part 1)
Charles M. Clode
1869
The Military Forces of the Crown (Part 2)
Charles M. Clode
1869
The Administration of Justice under Military and Martial Law
Charles M. Clode
London
1872
(This is an earlier version of Clode’s work, The Administration of Justice under Military and Martial Law as applicable to . . ., dated 1874)
The Administration of Justice under Military and Martial Law as Applicable to the Army, the Navy, the Marines, and Auxiliary Forces
Charles M. Clode
1874
Observations of the Origin of the Trial by Council of War or the Present Court-Martial
G. Norman Lieber
Judge Advocate – U.S. Army
1876
The Canadian Militia Act (1883)
Manual of Military Law (1907)
British Army publication
Historical Sketch of Military Law
Ridley McLean
Journal of Criminal Law and Criminology Vol 8 Issue 1
1917
Canadian Military Service Act (1917)
Proclamations and Orders-in-Council (Ottawa – 1917)
Pages 107-119
Canadian Military Service Act: Manual for the Information and Guidance of Tribunals in the Consideration and Review of Claims for Exemption.
J. de LABROQUERIE TACHE
Printer to the King’s Most Excellent Majesty
Ottawa — 2nd MARCH, 1918.
INSTRUCTIONS RELATING TO NAVAL COURTS, 1919
(Generously provided by the Navy Museum of Halifax)
Courts-Martial in Europe: Report on Disciplinary System System and Courts-Martial in the 33rd Ill Division — A E F
Nathan William MacChesney
1920
Statute of Westminster,1931. [22 GEO.5. CH.4.]
Handbook of Canadian Military Law
Burrell M. Singer and Lieutenant-Colonel R.J.S. Langford
1941
The Law of Belligerent Occupation
The Judge Advocate General’s School
United States Army
Ann Arbor, Michigan
1 June 1944
The United Nations War Crimes Commission (1948) Vol III
U.S. Uniform Code of Military Justice
1949
House of Commons debates: First, Second and Third Readings of The National Defence Act (1950)
The National Defence Act (1950) (This is the text of the original NDA)
Canadian Military Law
Brigadier W.J. Lawson
Judge Advocate General
The Canadian Bar Review – VOL. XXIX MARCH 1951 NO . 3
The Army Lawyer: A History of the [U.S. Army] Judge Advocate General’s Corps
Library of COngress
1975
The Trail of Discipline: The Historical Roots of Canadian Military Law
Lieutenant-Colonel R.A. MacDonald
Director of Law/Human Rights and Information
From: Canadian Forces JAG Journal Volume 1
1985
Military Law under the Charter
David J. Corry
Osgoode Hall Law Journal
Volume 24, Number 1 (Spring 1986) Article 3
Canadian Military Justice: Summary Proceedings and the Charter
Kenneth W. Watkin
October 1990
Military Justice: from Oxymoron to Aspiration
Janet Walker, CD
Osgoode Hall Law Journal Vol 32 No 1
1994
National Defence Act: Reform of the Military Justice System
Prepared by: Michel Rossignol Political and Social Affairs Division
Library of Parliament – Research Branch.
Revised 22 January 1997
Parliament, prerogative and Military Law: Who Had Legal Authority over the Army in the later Nineteenth Century?
G.R. Rubin
The Journal of Legal History
1997
Report of the Special Advisory Group on Military Justice and Military Police Investigation Services
(Dickson Report)
14 March 1997
What alternative punishment is there? Military Executions during World War I
Gerard Christopher Oram
MPhil, BA, PGCE
August 2000
Armed Forces Discipline Act
United Kingdom
2000
British Military Law and the Death Penalty (1868-1918)
Gerard Christopher Oram
Crime, Histoire & Sociétés / Crime, History & Societies 2001 ,
United Kingdom Military Law: Autonomy, Civilianisation, Juridification.
G.R. Rubin
The Modern Law Review Limited 2002 (MLR 65:1, January).
Published by Blackwell Publishers,
36 108 Cowley Road, Oxford OX4 1JF, and
350 Main Street, Malden, MA 02148, USA.
1 January 2002
The British Navy Rules: Monitoring and Incompatible incentives in the Age of Fighting Sail
Douglas W. Allen
Simon Fraser University
2002
Leadership in the Canadian Forces: Conceptual Foundations:
This book is the authoritative guidance for the training, education and practice of leadership doctrine in the Canadian Forces. (Chapter three, pages 36 to 44, are entitled “Leadership and the Law”.
2005
San Remo Manual on International Law Applicable to Armed Conflicts at Sea
By International Institute of Humanitarian Law
2005
Australian Government Response to the Senate Foreign Affairs, Defence and Trade References Committee
‘Report on The Effectiveness of Australia’s Military Justice System’
October 2005
External Review of the Canadian Military Prosecution and Defence Counsel Services
Bronson Consulting Group
6 Monkland Avenue
Ottawa, Ontario, K1S 2Y9
Prosecution Services report is dated 31 March 2008, and Defence Counsel Services report is dated 15 September 2008
(the report of the Defence Counsel Services begins on page 124)
Canadian Armed Forces Military Administrative Law Manual
1 October 2008
Canadian Military Doctrine
April 2009
Canadian Military Doctrine is the Canadian Forces capstone doctrine publication that specifies the roles and missions assigned to the CF; describes the fundamentals of warfare; provides guidance for command, control and organization of the CF; authorized command relationships and the authorities that military commanders can use; and formulates guidelines for operational activities embodied in strategic policy. It also provides the CF doctrinal basis for interdepartmental and interagency action in the rapidly emerging concepts of whole of government operations and the comprehensive approach strategy.
Equal Justice: Reforming Canada’s System of Courts Martial
Final Report: A Special Study on the provisions and operation of An Act to amend the National Defence Act (Court Martial) and to make a consequential amendment to another Act, S.C.2008, c. 29
The Honourable Joan Fraser Chair
The Honourable Pierre Claude Nolin Deputy Chair
Standing Senate Committee on Legal and Constitutional Affairs
May 2009
Sui Not-So Generous: The unconstitutionality of Canadian Court Martial Jury Trials
Lieutenant (Navy) Mike Madden
Appeal — Review of Current Law and Law Reform Vol. 14
University of Victoria (Law)
2009
Understanding Military Justice: a guidebook
Mindia Vashakmadze
Geneva Centre for the Democratic Control of Armed Forces
2010
Rule of Law Handbook: a Practitioner’s Guide for Judge Advocates
The Judge Advocate General’s Legal Center and School, U.S. Army
Center for Law and Military Operations
Charlottesville, Virginia 22903
2011
Solicitor-Client Privilege: Challenges for the 21st Century
A discussion paper for the Canadian Bar Association
by Professor Adam Dodek
University of Ottawa
February 2011
Supporting the Troops: Fairness for Canada’s Soldiers
A critical analysis of Bill C-41, An Act to amend the National Defence Act and to make consequential amendments to other Acts.
British Columbia Civil Liberties Association
2011
Report of the Second Independent Review Authority to
The Honourable Peter G. MacKay Minister of National Defence
The Honourable Patrick J. LeSage, C.M., O.Ont., Q.C.
December 2011
Canada’s Military Justice System
Colonel Michael Gibson, CD, BA, LlB, MSc, LlM
At the time he wrote this article, Colonel Gibson was Deputy Judge Advocate General-Justice.
He was responsible for military justice policy, legislative reform and strategic initiatives concerning Canadian military justice.
Was originally published in Canadian Military Journal, volume 12, number 2 – Spring 2012
Brewed in Blood: Military Justice and Hydra’s Many Heads
Peter Way
University of Windsor
12 April 2012
Legislative Overview of Bill C-15: An Act to Amend the National Defence Act and to make Consequential Amendments to Other Acts
Erin Shaw and Dominique Valiquet
Library of Parliament
2012 (revised in 2013)
The Impact of Military Justice Reforms on the Law of Armed Conflict: How to Avoid Unintended Consequences
Victor Hansen
21 Michigan State International Law Review 229 (2013)
New England Law | Boston Research Paper No. 14-03
45 Pages Posted: 12 Feb 2014 — Last revised: 5 Mar 2014
New England Law | Boston
Date Written: August 21, 2013
‘Anglo-American’ Military Justice Systems and the Wave of Civilianization: Will Discipline Survive?
Lieutenant-Colonel S.S. Strickey of the Office of the Canadian Judge Advocate General asks whether discipline will survive as a result of what he calls civilianization of military justice.
Cambridge Journal of International and Comparative Law (2)4
27 March 2014
Military Justice: Proposals for a fair and independent Military Justice System
U.K. National Council for Civil Liberties
June 2014
Independence, impartiality and competence of the judiciary, including military courts
Presentation by Arne Willy Dahl at expert consultation organized by the Office of the UN High Commissioner for Human Rights
Geneva
Monday, 24 November 2014
Summary of the discussions held during the expert consultation on the administration of justice through military tribunals and the role of the integral judicial system in combating human rights violations
United Nations High Commissioner for Human Rights
29 January 2015
External Review into Sexual Misconduct and Sexual Harassment in the Canadian Armed Forces
Justice Marie Deschamps, C.C. Ad.E.
27 March 2015
An Overview of Canada’s Military Justice System
13 January 2016
Court Martial Review
Canadian Bar Association
Military Law Section
March 2017
Behind the Times: Modernizing Canadian Military Criminal Justice
By Justice Gilles Létourneau and Colonel-Maitre Michel Drapeau
As was said by The Right Honourable Chief Justice of Canada in 2004, Canadians are privileged to live in a peaceful country. Much of the collective sense of freedom and safety comes from our community’s commitment to a few key values: democratic governance, respect for fundamental rights as well as the rule of law and accommodation of differences. The commitment to these values must be renewed on every occasion and the institutions that sustain them must be cherished. Among those who valiantly uphold these values and institutions are the soldiers, men and women, of the Canadian Armed Forces who put their lives on the line to protect and defend the country and what Canadians stand for. Many recognise that gratitude is owed to them, but few acknowledge, let alone are prepared to remedy the fact that they have been deprived of important legal rights by failing to reform and modernise the antiquated military justice system. Canadian soldiers and civilians tried in Canada before military ‘courts’, including summary trials, courts martial and other quasi-judiciary or administrative proceedings, are subject to a different treatment that denies them some of the fundamental rights Canadians are proud of and committed to.
30 March 2017
Court Martial Comprehensive Review–Interim Report
This report was undertaken with great fanfare by former Judge Advocate General Blaise Cathcart, but was not adopted by his successor, Commodore Geneviève Bernatchez.
21 July 2017
(It is provided here as a research and historical resource)
Director of Military Prosecutions Policy Directive Directive #: 014/03 – Date: 7 March 2003 (Updated: 15 December 2017)
Policy regarding media relations
2018 Spring Report of the Auditor General of Canada to the Parliament of Canada
Report 3—Administration of Justice in the Canadian Armed Forces
2018 Fall Reports of the Auditor General of Canada to the Parliament of Canada
Report 5—Inappropriate Sexual Behaviour—Canadian Armed Forces
Understanding Military Justice: A Practice Note
Mindia Vashakmadze
The Geneva Centre for the Democratic Control of Armed Forces
Geneva 2018
2018-2021 Office of the JAG Strategic Direction
March 2018
Bill C-77 and the Quiet Revolution in Military Justice
Jeffrey N. Westman
ABlawg
University of Calgary
Faculty of Law
26 July 2018
A Conversation with the Director of Military Prosecutions
Colonel Bruce MacGregor
Director of Military Prosecutions
PowerPoint presentation slides in PDF format (black and white)
To the Royal United Services Institute of Nova Scotia
27 August 2018
Domestic Operational Law 2018 Handbook for Judge Advocates (2018)
(United States Army) Center for Law and Military Operations (CLAMO)
The Judge Advocate General’s Legal Center and School
Charlottesville, Virginia
22903-1781
September 2018
Military Court Systems: Can They Still be Justified in This Age?
The Honourable Justice Logan, RFD[1]
18th Commonwealth Magistrates and Judges Association Triennial Conference, Brisbane
10 September 2018
Report on the Military Judges Compensation Committee 2018
Manual for Courts Martial
United States
(2019 EDITION)
An Examination of How the Canadian Military’s Legal System Responds to Sexual Assault
Dr. Elaine Craig
Dalhousie University – Schulich School of Law
29 May 2019
United Nations Special Rapporteur on the Independence of Judges and Lawyers (website)
CASE STUDY: Courts Martial of Master Corporal C.J. Stillman and Corporal Raphael Beaudry
- Court martial-decision relating to a plea in bar of trial
- Court martial-Reasons for Finding
- Court martial: Reasons for Sentencing
- Réponse à motion (en français)
- Court Martial Appeal Court decision
- Military Prosecution Service appeal of CMAC decision
- Mémoire en Réplique de l’Intimé (en français)
- Factum of the Intervener
- Supreme Court of Canada decision
The Australian Military and Its Justice System: Development , Organization and Disciplinary Structure
Dr. David H. Denton, RFD, QC
21 July 2019
“Fiat Justitia”: Implications of a Canadian Military Justice Decision for International Justice
Kenneth W. Watkin
30 September 2019
Canadian Journal of Law and Society
2020
Major Tim Dunne (retired)
5 January 2021
Chair: The Honourable Morris Fish
1 June 2021
Transcript of the Department of National Defence’s technical briefing on receipt of the Third Independent Review of the National Defence Act and the associated recommendations for the ongoing and necessary evolution of the Canadian Armed Forces Military Justice system
by “Senior Officials”
1 June 2021 – 11:30 a.m. EDT
National Defence Headquarters
Ottawa, Ontario
Examining The Contribution of the Judge Advocate General’s Corps to Unit Leadership in the US Army
Tom Rozman
7 June 2021
Report of the Independent External Comprehensive Review (The Arbour Report)
The Honourable Louise Arbour, C.C., G.O.Q.
20 May 2022
The U.S. Military Moves Closer to Just Military Justice – But More Work Remains
Lieutenant-Colonel Rachel VanLandingham (USAF Ret.)
https://www.justsecurity.org/91004/the-u-s-military-moves-closer-to-just-military-justice-but-more-work-remains/
5 January 2024
Case Study: A Great Injustice
Parts 1 to 6 — 2 to 7 May 2022
Halifax Chronicle Herald
Part 1: How Canada’s military ruined an officer’s life and career — Monday, 2 May 2022
Part 3: Military police build case against an innocent man — Wednesday, 4 May 2022
Part 5: Damning secret memo tainted exemplary military career — Friday, 6 May 2022
Part 6: Military needs to apologize, learn from Dunne case, legal expert says — Saturday, 7 May 2022
. .
Military justice articles by Tim Dunne
Click on the title to access the article
from the Halifax Chronicle Herald
Order in the Court Martial (part one of the Canadian Military Justice Series) —The Charter of Rights and Freedoms, Canadian law and Canadian values are not a tide that lifts all boats equally. On their enrolment, personnel of the Canadian Armed Forces (CAF) forfeit many of their Charter rights and freedoms. Penalties for “infractions” are much more severe in the military context.
Charter rights are ignored in military justice system (part two of the Canadian Military Justice Series) —THE CHARTER makes no exceptions for Canada’s armed forces and our military personnel do not lose their rights as they take the Oath of Allegiance. But military personnel tried by summary trials are subjected to a modern version of medieval justice. They are denied the most basic and important rights the Charter guarantees to all Canadians.
Military justice system in need of reform (part three of the Canadian Military Justice Series) –Dawn Thomson was the subject of a cover story, Rape in the Military, in the May 25, 1998, issue of Maclean’s magazine, in which she recounted being sexually assaulted while assigned to the Royal Canadian Navy’s West Coast installation. The article also told of 13 other women who were sexually assaulted, suggesting a pattern of sexual abuse of servicewomen.
Canada’s Broken Military Justice (part four of the Canadian Military Justice series) — Canadian military law has a patchwork history. Nova Scotia passed its first Militia Act in 1758; New Brunswick followed in 1787; Lower Canada in 1803; Upper Canada in 1808 and, eventually, Canada enacted its first federal Militia Act in 1868. During the Boer War and both World Wars Canadian military personnel were subject to British military justice, the same system that executed 25 Canadians during the First World War. Canada’s National Defence Act (NDA) came into force in 1950.
Courts martial deny soldiers the very rights they defend (part five of the Canadian Military Justice series) —Canada’s military courts martial are unfair, unjust and un-Canadian. They deny Canadian soldiers the basic rights that other Canadians are guaranteed and that military personnel are called upon to defend.
Canadian military justice system shaken to its core (part six of the Canadian Military Justice series) —There is a maxim in the Canadian Armed Forces that corporals can be the military’s most formidable members. French Emperor Napoleon was nicknamed The Little Corporal. Adolf Hitler served in the First World War as a corporal. Paul Hellyer, architect of the unification of the Canadian Armed Forces in the late 1960s, served in the Second World War as a bombardier, or corporal in the Royal Canadian Artillery. And Robert J. Arrotta, a U.S. marine corporal, was the hero of the battle of Khe Sanh in Vietnam.
Military police costly, redundant in this day and age (part seven of the Canadian Military Justice series) — Police and the work they do are expensive. Statistics Canada has estimated the operating expenses of policing across Canada at more than $15 billion in fiscal year 2017-18. Canada’s military police (MPs) are responsible for about one per cent of this total. This sounds insignificant but, in this case, it approaches $150 million annually.
Is the Canadian public getting value for money? Is there a better way of doing business?
Military Justice System lost its moral legitimacy (part eight in the Canadian Military Justice series)
A commanding officer (CO) is both judge and jury and can punish the accused by up to 30 days detention; reduction in rank by one rank; a reprimand; a fine up to 60% of one month’s pay and minor punishments, such as confinement to barracks (another form of detention) and stoppage of leave. The accused may also be assigned a criminal record.
