In the search for a better Canadian military justice system

In the trial of Irish Commandant Nile Donohue, the accused’s lawyer complains about the random selection of the panel members due to consider the charges against his client. This case reminds us of a trial that recently took place before a Canadian court martial: R. v. Warrant Officer J.G.A. Gagnon on August 11, 2014. The complainant was victim of a sexual assault. At the time of the trial, she was no longer serving in the Canadian armed forces. The accused was tried by a General Court Martial. The panel selected by the Court Martial Administrator at random was composed of five aged male officers with two substitutes.

One member of the panel was a Public Affairs officer. Immediately prior to the court martial, he acted for the military as the spokeperson to the national media which had conducted a nine-month investigation on sexual violence in the Canadian military which had reached epidemic proportions. The investigation also bore on the military hierarchy with its own justice system which appeared unable, unsuited and unequipped to deal with the crisis. Fortunately, his prior assignment was discovered in the early stage of the proceedings and he was replaced by one of substitutes who were also aged male officers.

We are a far cry from the guarantees offered by a jury trial before civilian tribunals as regards the selection and empanelling of a jury for the trial of serious ordinary criminal offences such as sexual assaults. In theory soldiers like other Canadian citizens are entitled to the equal protection and benefit of the law. In practice however the Canadian military justice fails them on this account as well as on others. Soldiers deserve a better system of justice for the trial of ordinary criminal offences.