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Canadian Military Justice System
According to the DND Press Release the proposed changes will reinforce the “disciplinary nature of the summary trial process for dealing with minor service misconduct”. All the proposed changes address the very reforms which have been clamored for by a number of reform-minded individuals such as Gilles Létourneau and Michel Drapeau.
The text of Bill C-71 – An Act to Amend the National Defence Act and the Criminal Code can be found here. Bill C-71
First and foremost, the proposed legislation will create, in Regulations “Disciplinary Infractions” that can be tried by summary trials.
- · Section 162.4 stipulates that disciplinary infraction may only be tried by summary trial.
- · Section 162.5 stipulates that a disciplinary infraction is NOT a 'service offence' under the National Defence Act. It also does not constitute an offence for the purposes of the Criminal Records Act.
Second, the legislation will provide for a scale of sanctions and principles applicable to sanctions in respect to disciplinary infractions.
- · Section 162.7 stipulates that the only sanctions that may be imposed in respect to a disciplinary infraction is: a) reduction in rank; b) severe reprimand; c) reprimand; d) deprivation of pay and allowances for not more than 18 days; and e) minor sanctions to be prescribed in Regulations.
This means that an accused can no longer be committed to detention by an officer presiding at a summary trial.
Third, it will provide for a six-month limitation period in respect of summary trials.
- · Section 163.4 stipulates that no person may be tried by summary trial unless the summary trial commences within six (6) months after the day on which the disciplinary infraction is alleged to have been committed.
The current summary trial process is a judicial procedure normally presided over by Commanding Officers during which the accused has no right to counsel, there are no rules of evidence, there are no record of proceedings and there is no right to appeal and where a conviction can lead to a sentence of detention and the creation of criminal record.
Bill 71 constitutes a most welcomed major overhaul and amendment to the summary trial process. If and when enacted, the National Defence Act would no longer authorizes a summary trial to award a punishment of detention or any other penalty giving rise to the creation of a criminal record. This would bring the summary trial process in compliance with the Charter of Rights and Freedom.
In anticipation of a General Federal Election scheduled for this coming October, the Canadian Parliament will adjourn it operations within a fortnight or less. This means that B C-71 will more than likely die on the Order Paper. One can only hope, however, that the succeeding government will find it appropriate to re-introduce a similar Bill during the next Parliamentary Session.