Tuesday, September 2, 2014

Selection process of the panel members of general courts martial in Canada: another needed reform

For years there were in Canada almost no hearing by a General Court Martial (GCM) composed of a military judge and a panel of five members. The military prosecution was the beholder of the right to choose the mode of trial for an accused facing charges for ordinary criminal law offences. Almost systematically it dismissed any request by accused for a GCM hearing.

In Nystrom v. R., 2005 CMAC 7, at paragraphs 64 to 85, the Court Martial Appeal Court of Canada (CMAC) expressed its deep concern about the then s.165.14 of the National Defence Act which gave the prosecution such a right. At paragraph 84, the  CMAC noted that from 2003 to 2005 there were between 120 and 125 trials before courts martial and none of them had taken place before a court composed of panel members assisted by a military judge. The CMAC found that the statistics pointed to "the virtually inescapable conclusion that the power under section 165.14 is being abused".

In a subsequent decision, Trepanier v. R.,  CMAC 3, the CMAC declared that the provision was unconstitutional because the right to choose the mode of trial is a tactical advantage which partakes of an accused's right to present full answer and defence and control the conduct of his or her defence. At paragraph 103, the CMAC was of the view that "to give the prosecution, in the military justice system, the right to choose the trier of facts before whom the trial of a person charged with serious Criminal Code offences will be held, as do section 165.14 and subsection 165.19(1) of the NDA, is to deprive that person, in violation of the principles of fundamental justice, of the constitutional protection given to offenders in the criminal process to ensure the fairness of their trial ".

As a result of the Trepanier decision the law was changed. The right to elect and choose the mode of trial was given to the accused. In addition, the trial of serious ordinary criminal law offences was mandatorily assigned to the GCM. Consequently the number of trials before GCM has been on the rise.

Originally the selection of the panel members of a GCM was made by the convening authority. Obviously the potential implication of the chain of command in the selection process cast doubts on its integrity. The selection process was changed and, while the authority to appoint the panel members is in the hands of the Court Administrator, the selection is made at random out of a list of eligible candidates.

On the one hand, the actual process is cumbersome, particularly so with the increasing number of GCM. Subsection 111.03 of The Queen's Regulations and Orders sets up a list of exclusions of candidates from office. Questionnaires are sent to potential members of the panel to ensure that they don't fall within the ambit of these exclusions. On the other hand, contrary to the selection of juries in civilian trials, the process leaves little room, if any, for the prosecution and the accused to assess and challenge the compatibility, neutrality, impartiality, knowledge and interest of the would-be members.  As a result of the existing process women are well under represented on the panels.

The military penal justice system allows for the trial of ordinary criminal law offences, including the most serious ones. Yet accused before military courts are given far less protection than the protection they would obtain before civilian courts. Ideally the trial of such offences should be returned to civilian courts. Failing that or until this happens, it is imperative that the existing selection process of panel members for GCM be modernized with a view to increasing its efficiency as well as its fairness for all the litigants. Not only justice would then be done, but would also appear to the general public to be done.

1 comment:

  1. Justice Létourneau writes that under the Canadian military penal justice system an accused is given far less protection that they would obtain before civilian courts. For instance, he argues that the current jury selection process used by the military is deficient provides a military accused with a sub-standard level of protection as compared with a civilian trial. I could not agree more. The differences are quite starting.

    • In a civil criminal trial, the Sheriff plays a key role in organizing the jury selection process. He issues jury summons to well over 100 prospects for jury service. On the other hand, we have no knowledge who in the military conducts the selection of jurors. We have no knowledge as to the procedure used by the military to determine the number of persons qualified to serve as a juror in a given criminal trial. We also have no knowledge whether the selection process used by the military ensures proportional representation of both sexes for jury service.

    • In a civil criminal trial, prospective jurors are drawn at random from the adult population at large. On the other hand, only a third of the military is eligible for jury service. Lieutenants, Second-Lieutenants, Officer-Cadets Sergeants, Master Corporals, Corporals, Privates which form 2/3 of the Canadian Forces are disenfranchised or disqualified for jury service.

    • In a civil criminal trial, Crown counsel, Defence counsel and the accused as well as the court staff are all present during selection of the actual jury made up of 12 persons. In the military, jury selection is done exclusively by military outside the courtroom; the military jury is made up of only five persons.

    • In a civil criminal trial, the Crown and Defence counsel are entitled to a number of preemptory challenges to prospective jurors. In a military trial, there is no such procedure although a previously appointed juror may be ‘challenged for cause” by either the Crown or Defence counsel.

    Truth be told, I have no quarrel with the current selection process used to assemble a panel serving on a General Court Martial convened to try an accused of a ‘disciplinary’ offence. In many respect, the constitution and organization of such a panel is very much akin to that found in most civilian professional oversight bodies (lawyers, accountants, surgeons, dentists, engineers etc.) However, it is very much ill-suited to try an accused for charges for ordinary criminal law offence. Worse, it subjects the military accused to a much lesser or lower standard of justice than that enjoyed by his civilian compatriots.

    The time has come to limit the jurisdiction of military tribunals to offences that should be properly contained in the Code of Service Discipline namely matters dealing with internal professional disciplinary matters not ordinary criminal law offences. This would ensure that in Canada, there should be one and only one penal justice system applicable to all living on our soil.


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