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History and Overview of Canadian Military Justice System

History

The Sources and Scope of Canadian Military Law

Trial of Offences at First Instance

 

History

Until the end of World War II, the Canadian military justice system was essentially identical to the British military justice system. Traditionally, courts martial were conducted by military personnel with no right of appeal to any tribunal outside the military.

Following the Second World War, Canada, the United States, Australia, New Zealand and the United Kingdom all took steps to provide some means of appeal from military courts to a civilian tribunal.

     The Court Martial Appeal Board

In 1950, through amendments to the National Defence Act Parliament created the Court Martial Appeal Board. The Chairperson was a judge of the Exchequer Court (the predecessor of the Federal Court of Appeal and the Federal Court) or a judge of a superior court of a province. It had two or more other members who were either active or retired superior court judges or barristers of at least five years’ standing.

The Board could hear appeals from courts martial by service personnel, against convictions or against the legality of sentence. The legislative scheme contemplated appeals to the Supreme Court of Canada, with leave, on matters of law from unanimous decisions of the Board and, as of right, where one member of the Board dissented. The Minister of National Defence (representing the Crown before courts martial) had no right of appeal.

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 next step in "civilianising" the appeal process came in 1959 when Parliament, through amendments to the National Defence Act, replaced the Court Martial Appeal Board with the Court Martial Appeal Court of Canada. The Court became a superior court of record. Its head was designated as President and, it was to be composed solely of superior court judges designated by the Governor-in Council from the Exchequer Court or from superior courts of the provinces. In its early years, its jurisdiction remained essentially the same as that of the former Court Martial Appeal Board.

     Statutory and Jurisprudential Evolution of the Court Martial Appeal Court of Canada

The military justice system has been profoundly impacted by the enactment of the Constitution Act, 1982 and its accompanying Charter of Rights and Freedoms. The Charter, which recognizes the constitutional role of the military justice system in s. 11(1)(f), has resulted in significant legislative and jurisprudential developments. Amendments to the National Defence Act, post-1982, have resulted in, among other changes: a greater degree of institutional independence of the courts martial from the command structure of the Canadian Forces (ss. 165.21, 165.231); codification of the fundamental purposes and objectives of sentencing by service tribunals (ss. 203.1 to 203.4); providing an accused person a choice as to the mode of trial in certain circumstances (s. 162.1); permitting the Court Martial Appeal Court of Canada the right to vary sentences (s. 240.1); and granting the Crown rights of appeal (s. 230.1).

The Sources and Scope of Canadian Military Law

The Canadian Charter of Rights and Freedoms recognizes the existence of the military justice system, including trial by courts martial, appeals to the Court Martial Appeal Court of Canada and the Supreme Court of Canada as an equal partner in the Canadian judicial system operating in parallel with the civilian criminal law system. This concurrent or parallel role of the military justice system is reflected in legislative enactments such as s. 11(1)(f) of the Charter and s. 59(1)d) of the Judges Act which accords a seat at the Canadian Judicial Council to the Chief Justice of the Court Martial Appeal Court of Canada and, very importantly, the post-Charter decisions of the Supreme Court of Canada in R. v. Stillman, 2019 SCC 40; R. v. Cawthorne, 2016 SCC 32; R. v. Moriarty, 2015 SCC 55; R. v. Généreux, [1992] 1 S.C.R. 259; and R. v. Forster, [1992] 1 S.C.R. 339.

The purpose of military law is to promote justice, assist in maintaining good order and discipline in the armed forces, promote efficiency and effectiveness in the armed forces, and thereby strengthen national security. The source of military jurisdiction is found in the Constitution Act, 1867, the Constitution Act, 1982, the National Defence Act and in other statutes, as well as in domestic and international law. International law includes, of course, the law of war and armed conflict, which address such issues as declarations of war, acceptance or surrender, and the treatment of prisoners of war, military necessity, proportionality and the prohibition of certain weapons. It includes principles of international humanitarian law.

     Exclusive jurisdiction of the Federal Government

The federal government is granted exclusive jurisdiction over the "Militia, Military and Naval Service, and Defence" pursuant to subsection 91(7) of the Constitution Act, 1867 (UK).Following a series of Acts applicable to various branches of the military, the National Defence Act was promulgated in 1950 and remains the governing statute of the Canadian Forces. Canadian troops are subject to ordinary laws that apply to all citizens and to the jurisdiction of civil courts. However, members of the Canadian Forces, as well as civilian personnel accompanying Canadian Forces units, attending Canadian Forces training and education institutions, or otherwise serving with the Canadian Forces, are also subject to additional liabilities and responsibilities under Canadian military law.

The Queen’s Regulations and Orders (also known as QR&O) apply to any person subject to the Code of Service Discipline. The Queen’s Regulations and Orders were created for the organization, training, discipline, efficiency, administration, and government of the Canadian Armed Forces.

In addition to the strictly military offences set out in the National Defence Act, all offences punishable under any federal statute, including the Criminal Code and the Controlled Drugs and Substance Act, are incorporated as part of the Code of Service Discipline.

Courts martial have exclusive jurisdiction to try all alleged offences, including military and criminal law offences, committed abroad, by those covered by the Code of Service Discipline. For offences allegedly committed in Canada, courts martial have exclusive jurisdiction over strictly military offences and concurrent jurisdiction with provincial criminal courts over all non-military offences, with the exception of murder, manslaughter and abduction of a minor. If allegedly committed in Canada, those latter three offences must be tried before a civilian criminal court.

Parole systems are not necessarily the same as for civilian inmates: special military rules exist for release on supervision from military incarceration. However, long-term military prisoners transferred to federal institutions, are subject to civilian release systems.

Trial of Offences at First Instance

The military justice system has two first instance tribunals: summary trials and courts martial. Both tribunals can be held in Canada or wherever the Canadian Forces are deployed.

Although commanding officers determine whether summary trial is an appropriate method of proceeding, in most cases an accused person retains the right to elect to be tried by court martial or summary trial.

     Summary Trial

Proceedings against an accused person may proceed by way of summary trial for a majority of service offences, particularly minor offences for which the limited range of punishment available is adequate relative to the gravity of the offence. Summary trials allow a military commander to effectively provide prompt but fair justice.

         Review of Summary Trial Decisions

A person found guilty of a service offence at summary trial may request that their commanding officer, or that officer’s superior, either set aside the finding of guilt or alter the sentence on the ground that it is too severe. A request for review must be made in writing within 14 days of the termination of the summary trial. A person dissatisfied with the outcome of the review may seek judicial review before the Federal Court.

If a person requesting review of a summary trial decision requires assistance, that person’s commanding officer shall appoint an officer or non-commissioned member above the rank of sergeant to assist in the preparation of the request.

     Trial by Court Martial

Courts martial are formal military courts presided over by independent military judges. These courts are similar in nature to civilian criminal courts and are designed to deal with offences that are more serious in nature.

The National Defence Act provides for two types of court martial: General and Standing. These courts martial can be convened anywhere, including in austere and hostile environments, both in Canada and abroad, in times of peace and during armed conflicts.

A General Court Martial is composed of a military judge and a panel of five Canadian Armed Forces members, who are selected randomly by the Court Martial Administrator. This panel serves a function similar to that of a jury in the civilian courts. It is the trier of fact while the military judge is the trier of the law. The military judge makes all legal rulings and imposes the sentence. In order to find an accused guilty of the offence charged the panel members must be unanimous and they must be satisfied of the accused’s guilt beyond a reasonable doubt. These two features, unanimity and proof beyond a reasonable doubt, are also required of juries in the civilian criminal justice system.

At a Standing Court Martial, the military judge presides alone and makes all legal and factual findings. In the event an accused is found guilty by a Standing Court Martial, the judge imposes the sentence.

         Appeals from Courts Martial

Decisions of a court martial, whether Standing or General, may be appealed to the Court Martial Appeal Court of Canada. The Court Martial Appeal Court of Canada is composed of civilian judges, designated from the Federal Court, the Federal Court of Appeal, and superior and appellate courts of criminal jurisdiction of the provinces and territories.

The decisions of the Court Martial Appeal Court of Canada may be appealed to the Supreme Court of Canada from conviction, acquittal or sentence, as of right, where a justice of the Court Martial Appeal Court of Canada dissents on a question of law. In all other cases, leave is required.

Date modified: 2020-06-04