In a
comment posted under a recent blog highlighting the Need for Restorative Justice
for Members of the Canadian Military, the author brings his support to
summary trials as they exist in the Canadian military justice system.
Unfortunately he skirts around and fails to address the main issue raised by
the text that he criticizes. That fundamental issue is the investigation, the
prosecution and the trial of ordinary criminal law offences by the military
justice system.
Let me
first say that, in the civilian justice system, determination of the guilt or
innocence of a person accused of committing a crime is normally done through an
adversarial process before a legally trained judge. In the Canadian military
justice system, summary trials derogate from that process to the detriment of
the accused: the process is inquisitorial and led by a commanding officer who
is not legally trained. The author of the comment seems to find comfort for an
inquisitorial process in the fact that this is done in a disciplinary context.
With
respect, ordinary criminal law offences are not disciplinary in nature. Nor is
the enforcement of criminal law. Indeed the enforcement of criminal law is done
for the protection of the public. The process aims at not only protecting the
public in general, but also the victims of the crimes and the accused by
offering the latter a fair trial governed by numerous rules that summary trials
either ignore, flout or despise.
I confess I
was stunned when I read from the author’s comment that presiding officers’
knowledge of the accused is a virtue because they can “more appropriately
tailor a sentence that would fit the offender”. In order to get to the
sentence, you must first have a fair trial. At trials before civilian courts,
judges make an objective determination of the guilt or innocence of the accused
on the basis of the evidence presented to them, not a subjective one on the
basis of their knowledge of the accused. The same goes for the sentence.
Summary
trials should not open the door to the possibility that an accused charged with
an ordinary criminal law offence be found guilty because the presiding officer,
with little knowledge of the law, knows him or her and thinks that he or she is
likely to have committed it. It is no solace for the accused that he or she be
given a light sentence if he or she is innocent, especially as there is no
right to appeal the conviction to a judicial tribunal.
Speaking of
appeal, the author of the comment says that there is no right of appeal because
there is no accurate transcript and “besides, strictly speaking, there is no
constitutional right to an appeal”. Yet such right of appeal exists for
ordinary criminal law offences prosecuted before civilian courts. Why should
persons charged with such offences before military tribunals and convicted
pursuant to a summary trial be denied such right? How fair is such a system?
With respect I fail to see the merit of the argument that there is no constitutional
right to an appeal when such right has been statutorily given to those
prosecuted before civilian courts and denied for the same offence prosecuted
before military courts.
The author
points out that the number of summary trials has diminished. This is news to me because for the years 2012 to 2014 the JAG failed to comply with his statutory obligation to file an annual report on the administration of military justice. The reduction in numbers is most
welcome although, as the system stands, one summary trial with respect to
ordinary criminal law offences is one too many.
The investigation, prosecution
and trial of ordinary criminal law offences committed by or against members of
the Canadian military should return to the civilian justice system. In this way
members of the military would be given the equality of treatment and the equal
protection of the law that they deserve.
I think I have been misunderstood in my previous comments, in particular as it pertains to my intent. I am far from supporting the summary trials system as it is. After my initial analysis, there is actually a strong argument that it would not pass in its current form a judicial review pertaining on a constitutional challenge before a court of superior jurisdiction. Summary trials most likely breach sections 7, 11d) and probably 15 of the Charter. And it would appear they cannot be justified under section 1, as there would not be a rational connection between the maintenance of discipline and reducing service members' legal rights. Even if such a link exists, summary trials would most probably not pass the 'minimum impairment' threshold of the Oakes test as there are other reasonable alternatives in Canada and in similar foreign military jurisdictions. If my views are correct, I suggest Canada would have two majors options: either to depenalize the summary trial (making it purely disciplinary) or increasing judicial oversight by having the current review process either replaced or followed by a meaningful appeal before a judge or magistrate. In either case, it should not have jurisdiction over ordinary criminal offences. My research, study and analysis would have to be further fleshed out, reviewed, discussed and could change but this is where I am at the moment. This will be further expanded in my PhD dissertation.
ReplyDeleteBy my previous comments, I just wanted make what I perceive to be appropriate nuances, in an academic fashion, sometimes putting for consideration views that are not necessary mine but I know are argued by proponents of the status quo. This is what I have been doing for the past year or so in developing ideas and writing my dissertation on a topic that is near and dear to my heart. If I have antagonized anyone by my comments, please accept my sincere apologies. And be reassured that I am not here on a mission for anyone; I am speaking in my own capacity, as a now civilian lawyer and researcher.
No need to apologize. No offence taken. A useful and healthy contribution to the issue of summary trials as well as to the issue of the fundamental difference between enforcement of discipline and enforcement of criminal law. The objectives are different and need to be because if violations of the criminal law were matters of discipline, then, as an Australian judge once pointed out, all offenders should or could be prosecuted before military tribunals. Criminal prosecutions should not preempt discipline as it now does under Canadian military law nor should military disciplinary convictions or acquittals prevent criminal prosecutions. As the French writer Alphonse Daudet said: " À chacun son métier et la chèvre de M.Séguin sera bien gardée ".
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