Rank has its privileges when facing courts martial in Canada

by Major Tim Dunne (retired)

 This article appeared in the 29 November edition of the Halifax (Nova Scotia) Chronicle Herald

Why is Canada’s military justice system unable to court-martial the highest-ranking military officers while it seems to have no difficulty charging and trying their subordinates?

It’s a good question that deserves an answer, even though there are some within our military who feel that the Armed Forces should have to answer only to their own superiors, and not to the Canadian public.

There are four general (army and air force) and flag (navy) officer ranks in the Canadian Armed Forces:

• brigadier-general /commodore;
• major-general/rear-admiral;
•  lieutenant-general/vice-admiral;
• general/admiral. 

Canada’s National Defence Act contains the code of service discipline which, in turn, mandates the jurisdiction of both service tribunals, summary trials and courts martial, to try accused CAF members for alleged military and civil offences.

Minor infractions can be handled by the offender’s commanding officer or designated representative at a summary trial. More serious violations are heard by a court martial, the Canadian military’s version of a criminal trial.

The act mandates that officers in the rank of colonel and its naval equivalent, captain (navy) and above must be tried by court martial.

A military judge alone presides over a standing court martial, while a general court martial comprises a military judge with a panel of five Armed Forces members. The type of court martial largely depends on the nature of the charge(s) laid.

The National Defence Act section 167(1)(4) requires that if the defendant is a brigadier-general or above, the senior member of the panel must hold the same or a higher rank, and the remaining members of the panel must be colonels or navy captains, or above.

While there have been brief periods when there have been two “four-star” generals — the highest rank in the Canadian military — it’s customary to only have one.

On April 30, retired Supreme Court Justice Morris Fish tabled his Third Independent Review of the Canadian military justice system in which he observed that these regulations restrict “the pool of eligible members depending on the rank of the accused, make it legally impossible for the (Chief of the Defence Staff) CDS and practically impossible for any lieutenant-general or vice-admiral to be tried by general court martial. Should charges be laid against officers of these ranks, the military justice system may not be able to deliver justice.”

Justice Fish’s comment that “the military justice system may not be able to deliver justice” against the most senior officers of the Canadian Armed Forces is a chilling condemnation of that system.

This contrasts sharply with the comments of former director of military prosecutions and now retired Col. Bruce MacGregor of March 11, 2020, when charges against Chief Military Judge Col. Mario Dutil collapsed because no other military judge could preside over their superior officer’s court martial.

“All members of the Canadian Armed Forces, regardless of rank or appointment,” Col. MacGregor announced in a DND news release, “are held to the same, highest standard of conduct. In this specific case, alleged wrongdoing was reported and investigated by proper authorities, charges were laid and moved forward in accordance with the law. However, after conducting a detailed review of the Federal Court’s decision to dismiss my application for judicial review, and carefully considering all circumstances surrounding this case, I believe that it is no longer in the public interest to proceed with this trial.”

Nineteenth-century French writer Honoré de Balzac insightfully observed, “Laws are spider webs through which the big flies pass and the little ones get caught.”

Taiwan: Calls for a Code of Discipline

Taipei Times reports in this article that due to an incident where officers administered inappropriate punishments to a conscript, the Ministry of Defense is called to develop a standardized code of discipline.

Earlier this month the recruit, who was caught napping during physical training, had his shirt removed and icepacks were placed under his armpits and on his crotch. Nine officers, from the sergeant who imposed the punishment up to the battalion commander, are currently under investigation by the military police.

In response, politicians and researchers have called the Ministry of Defense to create a unified code of service discipline, notably to prevent such incidents from happening. It is believed that by providing codified guidelines, it would reduce the risk of having an officer or a non-commissioned officer imposing a disproportionate, degrading or unusual punishment.

Amongst the experts quoted by the Taipei Times is National Chengchi University international affairs professor Chen Wen-chia, who notably said that:

“Complete trust and flawless teamwork must exist for a military organization to function. […] Knowing how to strike a balance between discipline and trust is the test of good leadership.”

We could add to Prof. Wen-chia’s wise words that this balance is particularly essential to maintain in the armed forces of a democratic state, where the general public’s trust in military institutions is itself a strategic asset. This balance is all the more difficult to maintain when the state faces the constant risk of being drawn into a major armed conflict threatening its existence. As conscripts have not voluntarily joined the armed forces, would eventually go back to civilian life, and would eventually – negatively or positively - influence the general public’s support towards military institutions, this balance is even more challenging to maintain.

Another researcher, retired army major general Richard Hu, told the Taipei Times that “creating a separate military justice system is not necessary for maintaining discipline”. In support of his argument, he referred to the absence of military courts in Japan’s Self-Defense Forces and the fact that in France, military courts are convened only in exceptional circumstances.

MGen (ret’d) Hu indirectly evokes something often misunderstood by most observers: military justice does not equate to military discipline. The former is one of the tools to restore the latter, a broader concept. Maintaining discipline is the very essence of military organization, notably to ensure efficiency and morale, but it is also an obligation for commanders to prevent and, where necessary, punish violations of international humanitarian law.[1]

By the way, discipline is maintained in many ways. Yes, by imposing (or threatening) sanctions that dissuade offenders from reoffending and discourage others from doing the same. But what a military organization really wants is self-discipline: the kind that comes naturally from within, after individual and collective training, following the example set by leaders, and reacting to collective positive reinforcement from peers. So even when military authority or superiors are absent, the individual soldier would nevertheless, by a mixture of habit and reasoned will, intrinsically act in a proper military and professional way because it is the ‘right thing to do’.

If MGen (ret’d) Hu’s quote means that there is no obligation to have military courts to maintain discipline, he is right (although many would argue that simply transferring criminal jurisdiction from military to civilian courts is not a ‘silver bullet’ to avoid impunity as it seems to be). Yet, as commanders are required to exercise and instill “rigorous supervision of the armed forces and strict internal discipline […] required to ensure that military personnel obey orders when in danger and do not abuse their power”[2] a system is needed. It does not have to be a court or a judicial system. Nevertheless this system, whether administrative, disciplinary or penal summary proceedings, must be fair, meeting minimum standards. Among those are the requirements of legality, predictability and proportionality of punishments. Consider the following from the 2019 Yale Draft Principles for Military Summary Proceedings:

Principle 4

The State shall define by law which offences are subject to summary proceedings, the applicable penalties, and periods of limitation.

Principle 5

A commander may not impose any punishment that is cruel, unusual, inhuman, degrading, or disproportionate. Periods of detention should be of relatively limited duration, reflecting the fact that summary proceedings are designed for the adjudication of minor offences.

In summary, to prevent sanctions and punishments from being left entirely to the ‘whims and fancies’ of frontline officers, there’s a need for a military justice system. Not necessarily a court system, but still a fair one. Otherwise, in seeking to strike the right “balance between discipline and trust” as Prof. Wen-chia puts it, the latter will be harmed and ultimately, the former would be more difficult to maintain through soldiers’ inherent positive motivation.

The opinions expressed are those of the author alone.

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[1] Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), 8 June 1977, art. 87.

[2] Céline RENAULT, “The impact of military disciplinary sanctions on compliance with international humanitarian law”, International Review of the Red Cross, vol. 90, no. 870, June 2008, 320.

In the House of Lords

I said at Second Reading that I generally welcome the reforms in this Bill. They nearly conclude the long journey since the Findlay human rights case in 1995 towards founding the service justice system on justice rather than, as it has been historically, on discipline. We have finally buried the Mutiny Act, under which General [Edward] Braddock in the Seven Years’ War could issue the order of the day:

“Any Soldier who shall desert tho’ he return again will be hanged without mercy.”

This amendment is designed to complete the journey towards justice.

Lord Thomas of Gresford, in the House of Lords debate on the Armed Forces Bill, Nov. 23, 2021, available here.

Survey of National Guard scandals

USA Today's Dennis Wagner reports here on scandals that have roiled the National Guard in numerous states in recent times. "Throughout the National Guard system, which consists of 54 independent state and territorial militias, soldiers and airmen have complained for decades about abuses that suggest a failure of culture and oversight."

Prime Minister Justin Trudeau appoints General Wayne Eyre as Chief of the Defence Staff

 Ottawa, November 25, 2021

General Wayne Eyre is appointed as Chief of the Defence Staff by the Prime Minister on November 25, 2021. Prior to his appointment, General Eyre was the Commander of the Canadian Army

General Eyre attended the Royal Roads Military College  in Victoria, British Columbia, and the Royal Military College of Canada (RMCC), in Kingston, Ontario. Upon commissioning in 1988, he joined 2nd Battalion, Princess Patricia’s Canadian Light Infantry (PPCLI), and has spent the majority of his career in command or deputy command positions, including commanding 3rd Battalion PPCLI, 2 Canadian Mechanized Brigade Group, 3rd Canadian Division and Joint Task Force West, Deputy Commanding General – Operations for XVIII (U.S.) Airborne Corps, Deputy Commander Military Personnel Command, Deputy Commander United Nations Command in Korea, and for a very short time, Commander of Military Personnel Command. He became the Commander of the Canadian Army on August 20, 2019, and was promoted to the rank of General on August 13, 2021.