Court Martial Appeal Court  of Canada

Court Martial Appeal Court of Canada

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History of the Court Martial Appeal Court of Canada

This Court hears appeals from military courts which are known as courts martial. The courts martial have power to try military personnel, and civilians accompanying such personnel abroad, for crimes and offences against the Code of Service Discipline.

The Canadian system of courts martial was based on British practice going back to about the 16th century. British laws concerning military discipline applied in Canada during the colonial period and were subsequently adopted by an independent Canada and applied as part of our law until after the Second World War. Traditionally courts martial were conducted by military personnel and there was no right of appeal to any tribunal outside the military.

After the Second World War, Canada, the United States, and the United Kingdom all took steps to provide some means of appeal from military courts to a civilian tribunal. In 1950, amendments to the National Defence Act created the Court Martial Appeal Board. This Board was to be chaired by a judge of the Exchequer Court (the predecessor of the Federal Court of Appeal and of the Federal Court) or a judge of some other superior court, and to have two or more other members who were to be either active or retired superior court judges or barristers of at least five years standing. The first chairman was Hon. John C.A. Cameron, a judge of the Exchequer Court. The Board could hear appeals from courts martial by service personnel, against convictions or against the legality of sentences. There was a further possibility of appeal to the Supreme Court of Canada on matters of law, with leave where the members of the Board were unanimous, or as of right where one member dissented. Thus for the first time in Canadian military law there was a system of appeal for service personnel to an outside tribunal, roughly analogous to the civilian system of justice. The Minister of National Defence (representing the Crown before courts martial) had no right of appeal.

The next step in "civilianising" the appeal process came in 1959 when Parliament replaced the Court Martial Appeal Board with the Court Martial Appeal Court. The Court was made a superior court of record and its head was designated as President. It was to be composed solely of superior court judges, to be designated by the Governor-in Council from the Exchequer Court or from superior courts of the provinces. Its jurisdiction remained essentially the same as that of the Board, and Mr. Justice Cameron became the first President of the Court. He was succeeded in 1964 by Mr. Justice Hugh Gibson of the Exchequer Court, who was in turn succeeded in 1982 by Mr. Justice Patrick Mahoney of the Trial Division of the Federal Court of Canada (which had replaced the Exchequer Court in 1971). By statute the title of the head of the Court was changed in 1984 to that of Chief Justice of the Court Martial Appeal Court and Mr. Justice Mahoney became the Court's first Chief Justice. He was succeeded in 1994 by Mr. Justice Barry L. Strayer of the Federal court of Appeal who acted as the Court's second Chief justice until April 2004. On September 17, 2004, Mr. Justice Edmond P. Blanchard of the Federal Court was appointed Chief Justice of the Court Martial Appeal Court.

The next major development came in 1991 amendments to the National Defence Act which altered the jurisdiction of the Court and made it more closely analogous to other civilian courts of criminal appellate jurisdiction. Until that time the power of the Court to vary sentences was limited to referring the matter to the Minister of National Defence for review. Moreover, the Crown had no right of appeal in respect of either conviction or sentence. In 1991 the Court was given full powers to review the severity of sentences and to substitute new sentences. Further, the Crown, as represented by the Minister of National Defence, was given the right to appeal both sentence and conviction. In the case of either the Crown or the individual, an appeal against sentence can be brought only with leave of the Court. Appeals to the Supreme Court of Canada remain available on the same basis as before.

Other modern developments have affected the work of the Court. The advent of the Canadian Charter of Rights and Freedoms in 1982 has resulted in many more constitutional issues being raised before the Court. The Charter has also impacted on the work of the military courts, requiring in them a greater degree of institutional independence from the command structure of the Canadian Forces. Among other changes prompted by Charter challenges before the court are amendments to the National Defence Act providing an accused person a choice as to the mode of trial in specified circumstances.

(For more information see Overview of Canadian Military Law and Courts Martial.)


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