Tuesday, November 11, 2014

Will the Supreme Court of Canada provide soldiers with equality of treatment

Supreme Court of Canada
The Moriarity case is no doubt the most important case in military law to reach the Supreme Court of Canada (SCC) since Généreux in 1992: R. v. Généreux, (1992) 1 S.C.R. 259. It is important because, as Professor Drapeau pointed out in his blog "The time has come", the SCC is given the opportunity to rule on the scope of application of the constitutionally entrenched Canadian Charter of Rights and Freedoms (the Charter) to military justice.

In Généreux, the issue was the constitutionality of a separate justice system for the military. The SCC upheld its constitutionality. This time, what is at stake is the scope of application of that separate system of justice as well as the extent of the application of the Charter rights to it. Should in peacetime the military justice system have jurisdiction to prosecute and try ordinary criminal law offences at the expense of fundamental Charter rights, the most fundamental and sacred one being the right to a trial by a jury?

S. 11(f) of the Charter guarantees to every accused the constitutional right to a jury trial, except for those who are tried before military tribunals. Instead an accused tried by a military tribunal is offered a panel of five military members who share the same institutional baggage and background. This is a poor substitute for a jury of 12 persons who come from all walks of life with different backgrounds. It is certainly easier to obtain a unanimous verdict, whether of guilt or innocence, from five than from twelve persons. What is crucial in a criminal trial is fairness and the application of the safeguards put in place to ensure that no innocent accused is found guilty.

Among some of these safeguards are independent prosecution and defence services. This is not what actually prevails in the Canadian military justice system. Both services operate under the supervision of the Judge Advocate General (JAG) who, as legal adviser to the minister of National Defence, is both part of the chain of command and the head of the legal chain of command. Lawyers within both services have their performance assessed by the JAG for purposes of salary increases, postings and promotions. Even if in fact it can be claimed that the members of the two services are independent in the exercise of their respective functions, there is always the possibility of an abuse. As Justice Cory of the SCC once said, if a system lends itself to possible abuses, it will likely be abused. In addition, it is important for the credibility of the military justice system that it be publicly and undoubtedly perceived as providing fair and impartial justice through independent prosecution and defence services.

From immemorial times the right to a jury trial has been a corner-stone of our system of criminal justice. It is one of the most sacred right in our system. As previously mentioned it has been constitutionally entrenched. It is fair to say that an accused is presumed to enjoy the benefit of this right. Therefore the derogation embodied in s. 11(f) is to be interpreted restrictively, especially in view of the right to equality of treatment under the law. The burden is on the claimant to prove that the derogation applies, that is to say that the military justice system, as it exists for the prosecution of ordinary criminal law offences, provides the usual guarantees of fairness and equitable treatment as well as compliance with the Charter rights. Comes into play in the equation the need to balance the right of a soldier to equality of treatment and to a trial by jury against the deprival and loss of such rights for the prosecution of ordinary criminal offences in peacetime when there is already an existing civilian system which ensures compliance with these Charter rights.

Justice (ret) Gilles Létourneau
Finally what is the point of trivializing serious crimes such as murder, aggravated sexual assaults, aggravated assaults causing grievous bodily harm or conspiracy to commit such crimes by downplaying them to the rank of mere disciplinary offences? Moreover s. 130 of the National Defence Act which imports the whole Criminal Code in the military Code of Service Discipline allows the military authorities to prosecute serious sexual assaults, for example, as a mere conduct prejudicial to good order and discipline contrary to section 129 of the Act. Here is another example of a possible abuse which unfortunately has become a reality. This possibility certainly does not incite victims of sexual aggressions to denounce the crime and believe in the military justice system.

In the absence of Parliament addressing these issues, it is time that the SCC pays close attention to the justice provided by military tribunals in relation to the prosecution and trial of ordinary criminal law offences because the impact for an accused is not only severe, but carries with it lasting consequences for him and his family.

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