Friday, May 8, 2015

Out of kilter? The investigation, prosecution and trial of ordinary criminal law offences in the Canadian military

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.


  1. 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.

    By 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.

    1. 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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