Why limits are necessary on the scope of the Canadian penal military justice system

First, Canada is neither a police nor a military state. It is a democratic state in which penal justice is provided to Canadian citizens and residents through an elaborate system of civilian independent police forces, prosecutors and tribunals. That independence is one important principle of fundamental justice. As a result justice not only appears to be done, but is actually done. This contrasts with the military justice system where the military police and both the Prosecution and the Defence Services are not independent from the chain of command.

It is even worse when one looks at the justice rendered at summary trials which is the dominant form of justice. The accused is subjected to an inquisitorial process led by a member of the chain of command who has a very superficial knowledge of the law, if any. In addition the rules of evidence do not apply at this process, the accused is not entitled to legal representation and he or she has no right to appeal a guilty verdict.

Second, all Canadian citizens are equal before the law and entitled to its benefit and protection. This is a principle of fundamental justice. Yet persons prosecuted before and tried by military tribunals are afforded a treatment that is different from the treatment received by persons tried by civilian tribunals. Such treatment before military tribunal is also prejudicial because accused lose important rights that they would enjoy if they were prosecuted before civilian tribunals.

For instance they lose the constitutional right to a trial by jury, the benefit of a hybrid offence, the benefit of a preliminary inquiry as well as the benefit of a suspended sentence, a conditional discharge, a probationary order and a sentence of imprisonment to be served in the community.

A difference of treatment exists also at the appeal level. On the one hand, accused right of appeal is more limited in the penal military justice system than it would be if they were tried by civilian tribunals: contrary to persons convicted by civilian tribunals they cannot appeal their convictions on a question of fact. On the other hand, the military prosecutors enjoy a larger right of appeal than their civilian counterparts: they can appeal on mixed questions of law and facts while the prosecution’s right of appeal in the civilian justice system is limited to questions of law. In this respect also, the penal military justice system is either way prejudicial to the accused.

In short, persons tried by military tribunals are not equal before the law and are denied the equal protection and benefit of the law.

Third, there is in my view no valid justification in peacetime for the prosecution of ordinary criminal law offences as there is in place throughout Canada an efficient civilian system of justice composed of experienced investigators, prosecutors and judges.

Fourth, under the Canadian Constitution, the administration of criminal justice has been given to the provinces. While the civilian courts have concurrent jurisdiction with the military tribunals to hear charges involving ordinary criminal law offences, in practice the investigation by the military police leads to a federal prosecution of crimes before military tribunals rather than a provincial prosecution before civilian courts.

Criminal Code offences should not artificially be transformed into “service offences” so as to give jurisdiction to the military justice system and expand that jurisdiction. These crimes should be prosecuted before civilian tribunals and purely disciplinary charges such as conduct unbecoming of an officer or conduct prejudicial to good order or discipline could be laid before the military tribunals. A prosecution before civilians tribunals would not pre-empt the imposition of administrative sanctions. This would be the ideal solution. Equality of treatment and benefit would be restored and a better and greater justice would be achieved.

If this ideal solution cannot be implemented, there is then a pressing need to ensure that the penal military justice system does not apply to ordinary criminal law offences committed in civilian-like circumstances. A military nexus requirement in the form of a “service connected offence” test is a needed halfway house to ensure that the penal military justice system remains within its boundaries as stated in R. v. Généreux, (1992) 1 S.C.R. 259, i.e., “to deal with matters that pertain directly to the discipline, efficiency and morale of the military”. The word “directly” is important and should inform the type and content of the military nexus requirement.