Tuesday, January 19, 2016

The monolith of Canadian military justice: blindness, deafness and general recalcitrance

In this interview conducted by laureate journalist Noémi Mercier for the French-language Actualité magazine following an international conference this past November on penal military justice systems held at the University of Ottawa for the first time in Canada, the United Kingdom Judge Advocate General, His Honor Judge Jeff Blackett, deplored the lack of independence and impartiality of the Canadian penal military justice. The following summarizes the essence of the interview with Judge Blackett and compares it with the prevailing situation in the Canadian system.

Resume of Judge Blackett Interview and comparison with the Canadian system

In his interview, Judge Blackett reiterated the known principle that justice must not only be done, but must also be seen to be done. And it does not appear to be done and equitable when a soldier appearing before a court martial is defended by a major, prosecuted by a colonel and also tried by a colonel.

Moreover the fact that Canadian military judges, including the Chief Military Judge, hold a rank (in fact a rank inferior to over 150 other serving officers in the military establishment), Judge Blackett said, compromises their independence and impartiality. He himself is a civilian judge not accountable to the military while the Canadian Judge Advocate General (JAG), notwithstanding his misleading title, is a military advocate, not a judge. [Oddly enough, his salary, as far as we can ascertain, is that of a federal judge.] Indeed the Canadian JAG is a military lawyer directly and uniquely accountable to the Minister of National Defence.

In addition the Canadian JAG supervises both the Prosecutions and the Defence Services. While the Canadian Director of Military Prosecutions is a military lawyer acting under the general supervision of the JAG, in the UK, as pointed out by Judge Blackett, the Prosecutions Service is independent: the Director of Military Prosecutions is a civilian. He is the one who decides to prosecute or not without referring to the military chain of command.

In the exercise of his functions, Judge Blackett added, the UK civilian Director of Military Prosecutions is assisted by military lawyers. Moreover civilian prosecutors are also involved in the majority of serious cases. As for defence counsel they are generally civilians. In the UK, since 2003, all judges of the court martial are civilian judges. In addition they sit one third of their time in a civilian court, something which, Judge Blackett says, reinforces their independence.

In Canada there is no formal mechanism in place to determine who of the civilian or the military authority will prosecute an ordinary criminal law offence. By contrast in the UK, as is the case in Australia, Judge Blackett reminds us that there is a Memorandum of Understanding between the civilian and the military prosecutions authorities addressing this issue among others.

Now all these deficiencies and lacuna plaguing the Canadian penal military justice and creating unfairness have been raised at home and on the international scene in numerous legal articles and before House and Senate Committees, but to no avail. It took over 19 years of costly court litigation to achieve partial independence of Canadian military judges while it was obvious in the early stages of that specific litigation that it was a mere matter of time before the existing law and regulations would have to be changed.

For more than 20 years the leaders of the Canadian military justice system have closed their eyes to the requirements of the Canadian Charter of Rights and Freedoms, the obvious lack of independence and impartiality of the system and the resulting unfairness for soldiers and civilians alike subject to the overarching Code of Service Discipline.

These leaders have turned a deaf ear to repeated calls for necessary and long overdue structural improvements and changes to the system. Their deliberate unresponsiveness and self-inflicted blindness have been detrimental to the Canadian penal military justice system and the persons subject to it.This is  not surprising, however. According to Judge Blackett, the British military reacted to military reforms in the very same recalcitrant manner:

The British Forces had enormous difficult to accept such changes. At each step of the way, the British military has offered stiff resistance and have done as little as possible to implement the changes. Each one of the changes was met with robust opposition on the pretext that the reforms would negatively affect operational effectiveness and that the world would collapse. The military would not change unless it is pushed to do so.” Amen.


As was the case in the United Kingdom, Canadian military “justice” is screaming out for reform. At present, the Canadian penal military justice is but a preserve of a traditional middle-age legal process with a uniformed courts staff, salutes, a panel of officers some of whom equal in military rank to that of the Chief Military Judge and his colleagues, antiquated rules of procedure, an organization built on a structure of rank and deference.

In our modern Canadian society with a sophisticated legal and justice system, seen by many as one of the world’s best, one is entitled to query whether the penal military justice system should enforce criminal law at all, still less at the expense of accused rights, and whether this separate closed-in scheme of military justice should at all be under the autocratic centralized control of the JAG and the chain of command. If the system needs to exist, why can't the actors in it be independent and the system offer fair justice and equality of treatment and benefits under the law? If it cannot, then it simply does not deserve to exist and continue to spread unfairness.


  1. While the UK military justice system has made huge strides forward, so that the Court Martial is now an ECHR compliant court, the military summary justice system remains to justice as, to quote Clemenceau, "military music is to music".

    Thousands of servicemen and women are dealt with each year by a non-compliant process where their rights to due process are ignored and where punishment may be imposed to remove their liberty for up to 90 days. All without the right to counsel and without any safeguards during a hearing (where the CO is a layman who acts as prosecutor, judge and jury) to exclude inadmissible/prejudicial material.

    The seriousness of offences that can be dealt with by the CO, such as Assault Occasioning Actual Bodily Harm (which carries a maximum sentence in the civilian system, on trial on indictment, of 5 years imprisonment) leave victims without a voice because, like defence counsel, they too are excluded from summary hearings.

    We should at least accord our servicemen and women the same rights that our prisoners get when they are accused of offences that are criminal, or might result in a punishment that puts them into the Engel class of criminal offences, and allow them representation by counsel.

    Parliament has still not made any serious attempt to reform this palpably unfair system. One must ask why? Do they have other plans in mind now that the Services will be so small and predominantly home-based?

    1. I agree absolutely. Mr Paphiti obviously refers to the Summary Trial process. A process which is even worse in Canada since in addition to the absence of a Right to Counsel, a hearing by a lay person who is anything but independent from the chain of command, there is a) No Rules of Evidence; b) no appeal. A throwback to Victorian ages.

  2. Anthony, I have somewhat similar concerns with regards to the current system of summary proceedings in the Canadian Forces. Amongst the available options for reform, some suggest we should emulate the UK system, in particular by creating a Canadian version of the Summary Appeal Court. Others suggest we should ‘depenalize’ the system, by removing the ‘true penal consequences’ of a conviction, in particular the power to award detention as a punishment, hence making the system a truly disciplinary system (a choice that previous Canadian government seemed to have made by tabling Bill C-71 in June of last year). There are other options, such as keeping the summary system as it is - with the penal consequences – but placing it under the control of military magistrates – akin to justices of the peace - put under the supervision of the Chief Military Judge.
    For academic purposes, I will play the devil’s advocate.
    Was the UK summary dealing system not declared Art 6 compliant by the High Court in Baines v Army Prosecuting Authority & Anor [2005] EWHC 1399 (Admin) (12 July 2005) [www.bailii.org/ew/cases/EWHC/Admin/2005/1399.html]?
    Did the European Committee of Ministers not review the general measures taken by the UK following the cases of Boyle, Thompson and Bell and ‘decide to close the examination of these cases’? Boyle, Thompson and Bell against the United Kingdom - 55434/00 [2011] ECHR 2269 (2 December 2011) [http://www.bailii.org/eu/cases/ECHR/2011/2269.html].


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