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Part 1
The Sources and Scope of Canadian Military Law

This section describes the types of matters covered by military law and the people subject to it. It should first be noted that the federal government is granted exclusive jurisdiction over the "Militia, Military and Naval Service, and Defence" pursuant to Section 91(7) of the Constitution Act, 1867.1 In the exercise of this jurisdiction, Parliament established its first codification of military law regulating matters of national defence in 1868 with the Militia Act.2 The Naval Services Act3 and the Royal Canadian Air Force Act4 were subsequently enacted in the 1940's. Then following the Second World War Parliament reexamined all legislation applicable to the Canadian forces in Canada with the result that in 1950 the National Defence Act5 (the "NDA") was passed. The NDA remains the governing statute of the Canadian Forces.6 Since 1868, the above-noted statutory schemes have made it clear that Canadian troops are subject to ordinary laws that apply to all citizens and to the jurisdiction of civil courts. By joining the Canadian forces, however, they subject themselves to additional liabilities and responsibilities under Canadian military law. Many of their special responsibilities and duties are set out in the Queen's Regulations and Orders (QR&O's) Chapters 4 (officers) and 5 (non-commissioned members). The purpose of military law is to promote good order and a strict disciplinary standard within the services by providing for prosecution of military personnel determined to have contravened statutes or subordinate regulations. The importance of strict discipline as an operational requirement for any military organization has been long supported by policy-makers.

The NDA contains the Code of Service Discipline (the "CSD"), found in Part III with related provisions in Part VII.7 The CSD constitutes a complete code of military law applicable to persons under service jurisdiction. Section 60 deals with the jurisdiction of the CSD over persons. It should be noted that in addition to military personnel, the CSD also applies to civilians accompanying a unit of the Canadian Forces and alleged spies for the enemy.8 The CSD constitutes the basic framework which is filled in by the QR&O's9 , Canadian Forces Administrative Orders (the "CFAO's"), and a multitude of other orders issued at the command, base, and unit levels. Section 12 of the NDA provides the Governor in Council and the Minister of National Defence with the power to make regulations for the "organization, training, discipline, efficiency, administration, and government of the Forces", so long as such regulations are not inconsistent with the NDA. The QR&O's, promulgated under the authority conferred by Section 12, amplify the CSD and provide the authoritative manual for military law in Canada.

The CSD provides for specific military offences whose nature and penalty are detailed there. The offences contemplated include both strict disciplinary matters, such as insubordination or failure to carry out orders properly, and offences that mix disciplinary and criminal elements, such as striking an officer. Subsection 139(1) of the NDA outlines the scale of punishments for service offences as follows:

139.(1) The following punishments may be imposed in respect of service offences and each of those punishments is a punishment less than every punishment preceding it:

  1. imprisonment for life;
  2. imprisonment for two years or more;
  3. dismissal with disgrace from Her Majesty's service;
  4. imprisonment for less than two years;
  5. dismissal from Her Majesty's service;
  6. detention;
  7. reduction in rank;
  8. forfeiture of seniority;
  9. severe reprimand;
  10. reprimand;
  11. fine; and
  12. minor punishments.

Other provisions with respect to sentencing by courts martial may be found, inter alia, at sections 140-45. Suffice it to say that CMAC judges should not assume that the sentencing and the corrections systems prescribed by the Criminal Code and the Corrections and Conditional Release Act apply in respect of military offences. It is apparent that this Court cannot on appeal impose a sentence that the court martial could not have imposed. While section 215 of the NDA, which authorizes courts martial to suspend sentences, may allow the CMAC to suspend sentences where the court martial has not done so (a matter not yet determined by this Court) there is no provision for conditional sentences under the NDA. Parole systems are not necessarily the same as for civilian inmates: special military rules exist for release on supervision from military incarceration,10 although long-term military prisoners who are transferred to federal prisons become subject to civilian release systems.

Section 130 of the NDA incorporates as part of the CSD essentially all offences punishable under any federal statute, including the Criminal Code as well as those offences provided in Part VII of the NDA (otherwise triable in civil courts). It prescribes the punishment relevant to such offences, within the scope of military law. It also provides that the entire range of military offences remain applicable when a person subject to the CSD is outside the country. It should also be noted that section 70 excludes certain offences under the Criminal Code from being tried in a military tribunal if committed in Canada. These excluded offences are murder, manslaughter and abduction of a minor. However, service tribunals have jurisdiction to try these offences when they are committed outside Canada. Moreover, section 132 of the NDA provides that all laws of a foreign country where members are serving may be enforceable under Canadian military law. In short, then, military law encompasses a broad range of offences and punishments.

Furthermore, included in Appendix 1.3 to Volume IV of the QR&O's are the Military Rules of Evidence (the "MRE"). All evidence led before a court martial is subject to the rules of evidence contained in the MRE. The MRE apply strictly to the court martial form of trial and are not applicable to the summary trial. This body of rules generally includes the standard rules of evidence followed by Canadian criminal courts. The MRE were passed by the Governor in Council in 1959 to resolve prior complications with respect to the applicable rules of evidence. Before the passing of the MRE, the rules of evidence of the province in which the court martial trial was being held were followed, and where the trial was outside of Canada, the rules of evidence of the accused's home province were applicable. Such a regime caused judge advocates unnecessary difficulties, especially when trying cases overseas where reference books were rare.

1(U.K.), 30 & 31 Vict., c.3.

2S.C. 1868, c.40, which incorporated British laws relating to military discipline. As later amended these formed the basis for discipline in the Canadian Army until the adoption of the National Defence Act in 1950.

3S.C. 1944-45, c.23.

4R.S.C. 1940, c.15.

5Now cited as R.S.C. 1985, c.N-4.

6It should be noted that the enactment of the NDA ended any direct application of U.K. military law in Canada.

7See s. 2 of the NDA which provides a definition for "Code of Service Discipline".

8See ss. 60(1)(f) and (h) of the NDA.

9Art. 1.01 of the QR&O's provides that:

This publication shall be called the Queen's Regulations and Orders for the
Canadian Forces
and may be cited as QR&O.

See s.51 of the NDA regarding notification of all regulations and all orders and instructions issued to the Canadian Forces or relating to or in any way affecting an officer or non-commissioned member of the reserve force who is not serving with a unit or other element. The QR&O's are exempt from registration and publication in the Canada Gazette by virtue of ss.7(a) and 15(1)(e) of the Statutory Instruments Regulations, C.R.C. 1978, c.1509. QR&O's are available electronically at The only official version of the QR&O made under the authority of the National Defence Act is in electronic PDF format found on this web site.

10See Regulations for Service Prisons and Detention Barracks P.C. 1967-1703, 1967. (See QR&O's Vol. IV, Appendix 1.4).


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