Shuffle the deck of cards?

His Honour Judge (ret)
Gilles Letourneau

In Canada, pursuant to ss. 60 and 273 of the  National Defence Act (Act), civilian criminal courts and military tribunals have concurrent jurisdiction to try ordinary criminal law offences committed by persons subject to the military Code of Service Discipline, even when they are committed outside Canada. This is due to the fact that s. 130 of the Act transforms all ordinary criminal law offences into service offences, i.e., disciplinary offences. This duality of jurisdictions begs the traditional thorny questions: who should prosecute what, when, where, why, how and under what conditions? While the answers to these questions are important for the following reasons, they are not easily found.

First, prosecutions before military tribunals for what has become disciplinary offences allow an accused to raise the special pleas of autrefois acquit and autrefois convict in bar of a subsequent trial. A plea of res judicata is also available.

Second, persons tried by military tribunals are deprived of their constitutional right to trial by jury. Instead they can be tried by a panel five of members of the chain of command. As a matter of sheer common sense it is easier to obtain a unanimous verdict from five persons who share the same training and institutional baggage than from twelve (12) different persons from all walks of life with no common institutional baggage.

Third, contrary to what prevails in Australia, there exists in Canada neither the equivalent of s. 63 of the Australian Defence Force Discipline Act 1982, which requires the consent of the Commonwealth Director of Public Prosecutions (CDPP) before an enumerated number of serious crimes can be prosecuted by the Director of Military Prosecutions, nor, where a s. 63 consent is not required, a Memorandum of Understanding (MOU) between the civilian and the military authorities determining the conditions under which military authorities can prosecute ordinary criminal law offences before military tribunals. The conduct alleged may be of so serious a nature that the public interest may be best served by prosecution of the alleged offender before a civilian criminal court: s. 36 of the MOU.

In the Canadian federal system, there are 11 civilian Attorneys General: one at the federal level for the prosecution of federal offences, and a provincially appointed one in each of the 10 provinces, constitutionally invested with the power to prosecute crimes contained in the Criminal Code of Canada.

The provincial Attorneys General are responsible for the administration of criminal justice in their respective province and are the ultimate guardians of justice and the public peace. They possess vast discretionary powers to enforce the laws and prosecute their violations. Yet they have abandoned in practice their prosecutorial powers to the military authorities when ordinary criminal law offences are committed by persons subject to the Code of Service Discipline.

The provincial Attorneys General in Canada should shuffle the deck of cards and repatriate, assume and exercise their powers to prosecute before civilian criminal courts ordinary criminal law offences committed by members of the Canadian Forces (CF). The military could still enforce discipline before their service tribunals for the inappropriate behaviours, but no criminal record would ensue from the military prosecutions and no special pleas in bar of trial would be available. In plain words the rule would be the same as it is for other disciplinary proceedings: a criminal prosecution does not preempt disciplinary proceedings and vice versa.

If for whatever reasons the Attorneys General are not willing or able to fully assume their role, they should at least exercise a control over the prosecution of ordinary criminal law offences committed by members of the CF by establishing the conditions and circumstances under which serious ordinary criminal law offences could be prosecuted before military tribunals and deprive accused of their constitutional right to a trial by a jury. A member of the CF is, like a police officer, a Canadian in uniform. Why should he or she be deprived of the right to a jury trial when the police officer is not? They both assume the role of protecting the public. Why such a drastic differential treatment? The time has come for the Attorneys General to pick up the deck of cards and shuffle it.