In recent years, the European Convention on Human Rights (ECHR) and various rulings on its applicability to military trials have also caused some countries, in particular the United Kingdom [Findlay v. The United Kingdom, (1997) I ECHR 8 and Morris v the United Kingdom (2002) I ECHR 162. are, in a way, the starting point for a series of legislative changes brought about in the United Kingdom] to overhaul and amend their military judicial processes.
The reforms aim at bringing their processes into compliance with Articles 5 and 6 of the ECHR.
These Articles provide that no one may be deprived of their liberty, except by a competent and impartial tribunal, and that accused may declare their right upon a criminal charge to a fair and public hearing by an independent and impartial tribunal as established by law.
Lately, the United Kingdom and Ireland recognized this specific deficiency and so, as a result of decisions of the European Court of Human Rights, soldiers now convicted at a summary trial have an unfettered right to a hearing before an appeal tribunal made up of three members where they may be represented by a lawyer.
There is no legal or operational reason why similar changes could and should not be incorporated in Canada’s military system of justice since our Charter is, in most respects, analogous in values and terms to the ECHR. Canada has yet to contemplate similar changes.
Canada could adopt the solution implemented by the UK and others and establish a Summary Appeal Court where the accused would be given the full panoply of rights. It could also decriminalize the summary trial process so that only disciplinary issues would be addressed at a summary trial. This approach would necessarily exclude any punishment of detention or any other penalties giving rise to the creation of a criminal record.