Monday, May 4, 2015

Canadian military justice system has usurped the functions constitutionally assigned to the provinces

In an Opinion Piece published on May 4, 2015 by the weekly HILLTIMES reporting from the Canadian Parliamentary precinct, Justice (retired) Gilles Létourneau and Professor Michel W. Drapeau decries the fact that over the past few decades through general indifference, the Canadian military justice system has extended its reach  over all ordinary criminal law offences, except Murder, Manslaughter and abduction of children when committed in Canada. In fact and in practice, the military justice system has usurped the functions that are constitutionally assigned to the provinces, namely, the investigation and prosecution of the crimes contained in the Criminal Code of Canada.  For the convenience of readers, the article is reproduced immediately below.

It is a principle of fundamental justice that all Canadian citizens
are equal before the law and entitled to its benefit and protection.

In 1980 the military justice system survived a challenge to its legality with respect to the prosecution of ordinary criminal law offences before military tribunals. The challenge was based on the Canadian Bill of Rights:  see Mackay v. R., [1980] 2 S.C.C. 379. The basis of the challenge was the differential treatment afforded to those prosecuted before military tribunals, i.e. members of the Canadian Armed Forces (CAF) and civilians subject to the jurisdiction of the Code of Service Discipline such as dependants of CAF members and civilians contractors accompanying the military abroad.

 Unlike the constitutionally entrenched Canadian Charter of Rights and Freedoms (Charter), the Bill of Rights had no teeth. Yet the Supreme Court of Canada expressed great concerns about the existence of this parallel system of justice for the enforcement of criminal law because military tribunals are tribunals of exception which, by definition, derogate from the legal system in place and deprive the persons subjected to it of equality before the law.

           Justices Dickson and McIntyre wrote the following at pages 408-409 of the decision:
In a country with a well-established judicial system serving all parts of the country in which the prosecution of criminal offences and the constitution of courts of criminal jurisdiction is the responsibility of the provincial governments, I find it impossible to accept the proposition that the legitimate needs of the military extend to prosecutions of servicemen for any offences under any penal statute of Canada could be conducted in military courts. The serviceman charged with a criminal offence is deprived of the benefit of a preliminary hearing or the right to a jury trial. He is subject to a military code which differs in some particulars from the civil law, to differing rules of evidence, and to a different and more limited appellate procedure..... While such differences may be acceptable on the basis of military need in some cases, they cannot be permitted universal effect in respect of the criminal law of Canada as far as it relates to members of the armed services serving in Canada.
           Chief Justice Laskin and Justice Estey went further. At pages 380 and 381 of the same judgment, they could not conceive that persons charged with an offence under the ordinary criminal law could be tried before a court where the prosecution is not free from any suspicion of influence or dependency on others. They could not conceive “that there can be in this country two such disparate ways of trying offences against ordinary law, depending on whether the accused is a member of the armed forces or is not.”

          The truth is that over the years, through general indifference, the military justice system has expanded its jurisdiction over all ordinary criminal law offences, except murder, manslaughter and abduction of children when committed in Canada.  In fact and in practice the military justice system has usurped functions that are constitutionally assigned to the provinces, i.e. the investigation and prosecution of the crimes contained in the Criminal Code of Canada.  


     Here are the consequences resulting for members of the military as well as civilians, including children, falling under the military jurisdiction. 

·               Right to a jury trial. First and foremost, they lose the right to a trial by a jury. Instead they are entitled to a trial by a panel composed of five members of the military selected randomly by the military. None of the guarantees with respect to the selection and empanelling of a jury given to an accused before a civilian trial apply.

           It is sheer common sense that it is easier to obtain a unanimous verdict of guilt or innocence from a panel of five than from a panel of twelve. Indeed, it is all the more so when the five persons are part of the same organisation and share the same institutional  attributes as opposed to 12 persons chosen and coming from different walks of life.

·              The benefit of hybrid offences. Second, persons prosecuted before military tribunals lose the benefit of a hybrid offence provided for under the Criminal Code of Canada. A hybrid offence is one that can be prosecuted by way of summary conviction or by way of indictment. Civilian prosecutors can exercise the discretion conferred upon them to proceed by way of summary conviction when the offence committed and the circumstances surrounding its commission do not warrant the full-fledge and stigma of the procedure by way of indictment. A cap on sentencing and a limitation period for prosecuting apply to offences prosecuted by way of summary conviction. These are important benefits that persons prosecuted before military tribunals are deprived of.

·              The right of appeal. Third, persons convicted or acquitted by a military tribunal are treated differently and detrimentally when it comes to the right of appeal. As a matter of fact the prosecution in a military trial can appeal the acquittal on a question of mixed law and fact. In a criminal trial before a civilian tribunal the prosecution’s appeal is limited to a question of law.

           Moreover, while an accused convicted by a civilian tribunal can appeal his conviction on a question of fact, the person convicted by a military tribunal is deprived of that right by the National Defence Act (NDA). In Military Justice In Action; Annotated National Defence Legislation, 2ed. published by Carswell earlier this year, we criticized this differential and prejudicial treatment. At page 50 we wrote:

“Thus at law, the balance with respect to appeals is tipped in favour of the accused in criminal proceedings before a civilian tribunal. However in proceedings held before a military tribunal, the same balance is tipped in favour of the prosecution to the detriment of the accused. Once again it appears that this situation runs afoul of the presumption of innocence.”

·               The sentencing range.  Fourth, persons prosecuted before military tribunals do not benefit from the wide range of sentencing options available to those convicted by a civilian court. They are not entitled to a suspended sentence, a conditional discharge, a probationary order and a sentence of imprisonment to be served in the community or  within their unit.  Nor are they given equality of treatment with respect to intermittent sentences. While section 732 of the Criminal Code fixes at 90 days the maximum length of imprisonment for the availability of an intermittent sentence, the 2013 amendments to the NDA makes this kind of sentence available only if its length does not exceed 14 days.

·               Summary trials. Fifth, close to 2,000 summary trials are held every year as opposed to some 60 to 65 courts martial.  Summary trials are the dominant form of justice in the Canadian military. Yet this form of justice is highly problematic, especially as regards ordinary criminal law offences. Consider the following features of the process. 

o   The accused is tried by his commanding officer who possesses no knowledge of the law. As opposed to a trial before a civilian tribunal where the judge does not know the accused and has no knowledge of the circumstances surrounding the crime, the commanding officer knows the accused, the witnesses and is already aware of the facts and circumstances leading to the crime.

o   It is also not enough that the accused has no right to counsel, he and his wife are compellable witnesses. He can be forced to incriminate himself in violation of the constitutional right against self-incrimination given to accused by the Charter.

o   In addition the summary trial process is not governed by the rules of evidence applicable to trials of ordinary criminal law offences. Adverse inferences can be drawn from his silence. Full reliance can be had on hearsay and opinion evidence. Charter arguments cannot be raised. The level of disclosure of the prosecution’s evidence is much more limited than the level of disclosure at a court martial. But above all, the accused has no right of appeal to a court against his conviction.

·               A criminal record for purely disciplinary offences. Sixth, military offences are set-up to enforce discipline in the military. Yet, the military justice system generously distributes criminal records to the persons convicted. It even goes as far as creating a criminal record for offences that have no criminal connotation and are purely disciplinary in nature.  This is unprecedented in Canada. No conviction by a disciplinary board or tribunal for offences like conduct prejudicial to the profession gives rise to a criminal record. In the military, you can even get a criminal record for a conviction at a trial at which you are not entitled to be defended by a lawyer. 

          The newly enacted section 249.7 of the NDA creates a criminal record for offences such as insubordinate behaviour, absence without leave, a false statement in respect of prolongation of an absence without leave, drunkenness, conduct to the prejudice of good order and discipline. The military is a profession of arms. This last offence of conduct prejudicial to good order or discipline is in fact a conduct prejudicial to the profession of arms. Yet conducts by lawyers or doctors, for example, that are prejudicial to the legal or the medical profession do not give rise to a criminal record.

·             Bill c-32 - Victims Bill of Rights Act does not apply to military personnel. Seventh, military persons who are victims of crimes investigated or prosecuted under the NDA are excluded from the benefits of the Bill and are, therefore, unable to exercise their victim’s rights. Subsection 18(3) of the Victims Bill of Rights contains the exclusion.

    Fortunately, the Supreme Court of Canada is given in the case of Moriarity et al. v. Her Majesty the Queen et al., to be heard on May 12, 2015, a golden opportunity to restore justice to members of the military by returning to the provincial authorities the investigation and prosecution of ordinary criminal law offences. The civilian police and tribunals possess an expertise fashioned over time that the military police and courts do not have. In addition, they are independent from command and external influence.

        It is a principle of fundamental justice that all Canadian citizens are equal before the law and entitled to its benefit and protection. The unfair disparity in the enforcement of the criminal law by the military justice system is in breach of this fundamental principle. The time has come to apply the principle and restore justice.


  1. I would suggest that rather than an 'unfair disparity" it is a travesty of justice and beyond time to apply the principles of equity and fairness.

  2. On summary trials, I have few points:
    Based on JAG Annual Report 2013-2014, since 2009-2010, numbers of summary trials have reduced by about a half (from 1944 to 1128);
    Commanding officers have some knowledge, although their training as presiding officers is rather short in comparison with judges;
    The fact that accused service members are known by summary trials presiding officers is also a virtue; presiding officers could more appropriately tailor a sentence that would fit the offender should the person is found guilty;
    Prior knowledge of the facts is due to the inquisitorial nature; presiding officer must ask questions. This form is not necessarily against human rights, particularly in disciplinary context;
    Document "Military Rules of Evidence" does not apply to summary proceedings; it is designed for courts martial. Having said that, there are rules on the reception of evidence at that level (QR&O 108.21; and at c 13 of training document for presiding officers (Military Justice at Summary Trial Level, (MJSTL)). On hearsay (paras. 104-109), the document is particularly clear about the risk associated with it. As for spouses compelled to be witness against the accused, it is very unlikely to occur. First, spouses are most of the time 'civilians witnesses' who cannot be compelled. Service members cannot be compelled to testify against him or herself. An accused is asked whether he or she wishes to admit any of the particulars of any charge (QR&O 108.20 (3)(c)). This is consistent with ordinary law where judges would ask counsel first if they wish to make admissions to circumscribe the debate. Presiding officers are taught that if an accused remain silent, no adverse consequences can be inferred (MJSTL, c 13, para 62);
    Nothing precludes raising the Charter during summary trial. But as presiding officers do not have the necessarily knowledge to deal with complex legal issues, those cases are generally referred up to court martial. Usually, those issues are spotted by unit’s legal adviser who makes a recommendation accordingly;
    As for disclosure, the most problematic concern is its level but the fact that when an election between summary trial and court martial is offered, that disclosure must be securely communicated to a defence counsel for him or her to provide a complete legal advice and not legal information of a general nature (QR&O 101.11(1)(d));
    Current review process is not an appeal, mainly due to lack of accurate transcript of the proceedings at summary trial. Besides, strictly speaking there is no constitutional right to an appeal (Kourtessis v MNR, [1993] 2 SCR 53; Charkaoui v Canada (Citizenship and Immigration), [2007] 1 SCR 350, 2007 SCC 9 (CanLII) at para 136). However, a meaningful appeal may be a component of the overall requirement of the right to a fair trial;
    Once clause 75 of Bill C-15 would come into force the vast majority of convictions at summary trial would not create a criminal record entry. Personally, I would prefer a system where all cases dealt with by summary trials are like that. Besides, a summary trial conviction would not appear in the CPIC databank as there is no authority to take bio-metric measurements in the NDA for such convictions. Actually measurements that may have been taken prior a summary trial must be destroyed without delay after the trial (NDA, para 196.29(a));
    Passion for justice, and in particular for men and women serving in the CAF, moves us all, jurists of good will. But in that pursuit of justice, careful and methodical consideration is of essence. We have to give the most accurate picture to those who have power to make changes to the system (like government officials and parliamentarians) but in general may not have either the time or the candor necessary to carefully and objectively study it. Otherwise, there is a risk that a potential reform may be based on inaccurate findings or moved by overreaction to them.
    LCdr(ret’d) Pascal Lévesque, CD
    Lawyer, PhD candidate, Queen’s University


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