Friday, September 15, 2017

Military justice and the Charter

Canada's military summary trial process is disturbingly and dangerously out of date with contemporary values of law, liberty, and legitimacy. It unnecessarily exposes Canadian military personnel to increased vulnerability. As the Supreme Court stated in Suresh v. Canada, “the greater the effect on the life of the individual by the decision, the greater the need for procedural protections to meet the common law duty of fairness and the requirements of fundamental justice under s. 7 of the Charter.”


  1. Canada's summary trials system is an affront to the concept of a fair and equitable trial. Yet, incredibly, the DND brass are still committed to keeping this medieval system alive. Consider, for instance, that in its very latest annual report to Parliament the JAG covering period 2016-2017, the JAG notes that it "sought input from the chain of command' to develop and consider options for the RENEWAL of the summary trial system. A working group made up of unit commanding officers and senior non-commissioned officers will study the issues of pre-trial investigations, charge-laying authorities, disciplinary infractions and the current punishments regime. Hence, the primary objective in this renewal project is not ensure the respect and protection of the constitutional right to a fair and impartial trial but the perceived requirements of the military chain of command expressed and determined by individual who have absolutely no legal training or familiarity with the concept of the Rule of Law. It gives true meaning to the French expression "Avancez en arrière". Therefore unless and until Parliamentarians played the role for which they were elected and sworn to the military will continue to enjoy a "FREE REIN" in administering military law and sidestepping the rights of our sailors, soldiers and aviators with great impunity. This will ensure that Canada falls further and further behind the times.

    1. There is a clear conflict of interest in an armed forces need for a robust disciplinary process handled by the chain of command, and a fair impartial tribunal for the accused.

      There comes a point when any charges and potential punishment become of enough magnitude that the rights of the accused should ensure a fair trial. My view is that a clear line should be drawn, if something warrants a criminal offence and potential criminal conviction the accused should be entitled to legal representation at a fair impartial tribunal.

      If a soldier faces a disciplinary charge the Commanding Officers should absolutely be able to use his judgement (with appropriate safeguards and oversight)


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