In a comment posted under a recent blog highlighting the Need for Restorative Justice for Members of the Canadian Military, the author brings his support to summary trials as they exist in the Canadian military justice system. Unfortunately he skirts around and fails to address the main issue raised by the text that he criticizes. That fundamental issue is the investigation, the prosecution and the trial of ordinary criminal law offences by the military justice system.
Let me first say that, in the civilian justice system, determination of the guilt or innocence of a person accused of committing a crime is normally done through an adversarial process before a legally trained judge. In the Canadian military justice system, summary trials derogate from that process to the detriment of the accused: the process is inquisitorial and led by a commanding officer who is not legally trained. The author of the comment seems to find comfort for an inquisitorial process in the fact that this is done in a disciplinary context.
With respect, ordinary criminal law offences are not disciplinary in nature. Nor is the enforcement of criminal law. Indeed the enforcement of criminal law is done for the protection of the public. The process aims at not only protecting the public in general, but also the victims of the crimes and the accused by offering the latter a fair trial governed by numerous rules that summary trials either ignore, flout or despise.
I confess I was stunned when I read from the author’s comment that presiding officers’ knowledge of the accused is a virtue because they can “more appropriately tailor a sentence that would fit the offender”. In order to get to the sentence, you must first have a fair trial. At trials before civilian courts, judges make an objective determination of the guilt or innocence of the accused on the basis of the evidence presented to them, not a subjective one on the basis of their knowledge of the accused. The same goes for the sentence.
Summary trials should not open the door to the possibility that an accused charged with an ordinary criminal law offence be found guilty because the presiding officer, with little knowledge of the law, knows him or her and thinks that he or she is likely to have committed it. It is no solace for the accused that he or she be given a light sentence if he or she is innocent, especially as there is no right to appeal the conviction to a judicial tribunal.
Speaking of appeal, the author of the comment says that there is no right of appeal because there is no accurate transcript and “besides, strictly speaking, there is no constitutional right to an appeal”. Yet such right of appeal exists for ordinary criminal law offences prosecuted before civilian courts. Why should persons charged with such offences before military tribunals and convicted pursuant to a summary trial be denied such right? How fair is such a system? With respect I fail to see the merit of the argument that there is no constitutional right to an appeal when such right has been statutorily given to those prosecuted before civilian courts and denied for the same offence prosecuted before military courts.
The author points out that the number of summary trials has diminished. This is news to me because for the years 2012 to 2014 the JAG failed to comply with his statutory obligation to file an annual report on the administration of military justice. The reduction in numbers is most welcome although, as the system stands, one summary trial with respect to ordinary criminal law offences is one too many.
The investigation, prosecution and trial of ordinary criminal law offences committed by or against members of the Canadian military should return to the civilian justice system. In this way members of the military would be given the equality of treatment and the equal protection of the law that they deserve.