Summary proceedings: Canada impermeable to worldwide advances in human rights legislation?

HISTORICAL PERSPECTIVE

In a November 24, 2014 presentation before the UN High Commissioner for Human Rights in Geneva, Switzerland, Brigadier-General (ret’d) Arne Willy Dahl, Honorary President of the International Society for Military Law and the Law of War, noted that most countries have systems dealing with disciplinary offences of a minor nature by summary punishments. He observed: 

Summary punishments, is almost without exception a matter for the Commanding Officer, and may pose their specific concerns with regard to the human rights of the accused. 

BGen Dahl went on to say:

. . . Military justice has its roots in the authority of the commanding officer, and his need to maintain discipline among his troops. When Alexander the great took his army to Persia or Roman legions fought in North Africa it would have been utterly impractical to bring military cases back to a court in Macedonia or in Rome. 

             Canada's Summary Trial procedure is frozen in time

The requirement for summary proceedings was first recognized by the British Parliament with the passage of the Mutiny Act in 1689.  Two centuries later, summary trials were still in existence under British military law when the Canadian Parliament passed An Act respecting the Militia and Defence of the Dominion of Canada, S.C. 1868, c. 40 [The Militia Act, 1868] to govern Canada's armed forces.     

In recent years, the European Convention of Human Rights (ECHR) and various rulings on its applicability to summary trials have caused some countries, in particular the United Kingdom and Ireland, to completely overhaul the Summary Trial procedure. 

As shown in the table below, the Summary Trial procedure, as practiced in Canada today, has been all but abolished among our allies. Along with many South Asian countries such as Bangladesh, India, Nepal, Pakistan and Sri Lanka, Canada is one of the last bastion for this ancient summary trial procedure. 

AN UNCONSTITUTIONAL PENAL PROCEDURE?

Nearly 800 military members in Canada face a summary trial each year. These disciplinary proceedings, which are heard by that soldier’s Commanding Officer, could lead to a sentence with ‘true penal consequences’ such as detention, demotion, a large fine, or a reprimand. A summary trial conviction may also result in a criminal record.  

Amazingly, however, there is no right to legal counsel at a summary trial even if the accused is being tried on Canadian soil nor is there a transcript of proceedings or a right of appeal.  Moreover, the Commanding Officer hearing the summary trial has no legal training. The Summary Trial procedure is also devoid of any rules of evidence, meaning there is no protection against the compellability of the accused as a witness and against self incrimination. There is no right to spousal privilege. Adverse inferences may be drawn from the accused’s silence and hearsay evidence may be taken and fully relied upon.

No other Canadian faces such a one-sided penal justice process. 

A FLEETING MOMENT OF  LUMINOSITY

In 2015 Canada’s Parliament introduced Bill C-71 which was aimed at modifying the Summary Trial procedure. However, the authenticity for such reforms is questionable, because, with the dissolution of Parliament prior to the last Federal election, within weeks he Bill died on the order paper, and nearly two years since, there is no indication that it will be re-introduced.