Section 130 of the Code of Service Discipline incorporates offences punishable under the Criminal Code of Canada as well as any other penal provisions in the Canadian corpus of law. These offences then fall under the definition of “service offences” [Section 2 of the NDA refers]. The transformation of Criminal Code offences into service offences carries with it a number of adverse consequences for the accused impacting on his fundamental, constitutional, procedural and sentencing rights.
Foremost among these rights is the constitutional right to a jury trial guaranteed by section 11(f) of the Charter of Rights and Freedoms. In lieu of a jury trial, the accused is given a trial by a General Court Martial composed of a Panel of five military members and presided over by a military judge.
The accused before a service tribunal is also deprived of the right to a preliminary inquiry as well as the benefit attached to a hybrid offence under the Criminal Code which can be prosecuted either as an indictable offence or as a summary conviction offence.
Also, in comparison to a prosecution before a civilian tribunal, the accused is not entitled to a suspended sentence, a conditional discharge, a probationary order and a sentence of imprisonment to be served within the community or his unit.