Democracy and its critics

In an interview on May 7, 2017 with The Lawyers' Daily "Canada's outgoing judge advocate general fires back at critics", Major-General Blaise Cathcart says that before he retires this coming June he will deliver to the Minister of National Defence his recommendations for improving the efficiency, effectiveness and legitimacy of Canada’s court martial system, based on the results of a review of the Court Martial system initiated by his office last summer.  He adds:

“It’s the legitimacy piece that is sort of my main focus ... because of what I think is a small, but vocal, criticism that ‘We’re not legitimate. We’re second-rate. We’re rinky-dink . . . It's false."

Cathcart vigorously rejects the idea that Canada would benefit by setting up a separate justice system for military members, to a greater or lesser degree divorced from the military and its chain of the command. He posits that the Supreme Court and Parliament considers the military as the best-suited organization to maintain its own discipline.

Obviously, Cathcart does not distinguish between professional regulatory and criminal processes. Military discipline is a form of behaviour that is the consequence of training and indoctrination, designed to ensure compliance to orders among individuals and groups, to create and maintain cohesion in military units. Breaches to the Code of Service Discipline should be subject of disciplinary proceedings which should unquestionably be 'civil' in nature and not involve any prospect of detention, confinement or other loss of liberty, as is currently the case with the summary trial system.

However, Cathcart is “optimistic” that the Liberal government will eventually introduce its own version of Bill C-71 - An Act to Amend the National Defence Act and the Criminal Code which was tabled for First Reading in the House of Commons on June 15, 2015 [within a few short weeks of the dissolution of Parliament for the 41th General Election]. Bill C-71 would have enacted enhanced justice for an accused by removing the criminal and penal aspects of the Summary Trial system (which deals with 95 per cent of the cases before military tribunals) and converted it to an administrative hearing process which would be restricted to dealing with minor disciplinary offences. That would indeed be a good start in reforming an antiquated (medieval) military justice system.