Saturday, March 10, 2018

Whither Canadian military justice?

Global Military Justice Reform contributor Tim Dunne has written this critical Chronicle Herald op-ed about Canada's military justice system. Excerpt:
Change is overdue

Canadians tried before military tribunals are denied many rights guaranteed to a person prosecuted before a civil court. But the most striking is this denial of the right to a jury trial.

When paragraph 11(f) of the Charter was drafted and enacted, there was a requirement for a “military nexus” — a direct link to the circumstances of an alleged offence and the discipline, efficiency or morale of the military. Without this connection, military tribunals had no jurisdiction.

Did Parliament intend to deprive Canadian soldiers of their constitutional right to a jury trial for a serious criminal offence in no way related to military service or to the performance of their military duties?

At a Jan. 12, 1981 meeting of the Special Joint Committee of the Senate and House of Commons on the Constitution of Canada, the wording of what is now paragraph 11(f) of the Charter was tabled for the first time. Through 1980-81, there were discussions on a proposal by New Democrat MP Svend Robinson that military personnel be entitled to jury trials.

The only justification for the exception set out in paragraph 11(f) was provided by the then attorney general Jean Chrétien. He said, “Jury trials in cases under military law before a service tribunal have never existed either under Canadian or American law.”

A better reason is provided in Rubsun Ho’s 1996 article, “A World that has Walls: A Charter Analysis of Service Tribunals.” It says “the standard justification for allowing the military to deny an individual right to trial by jury is derived from the special conditions under which service tribunals may be forced to proceed.”

“During times of war or insurrection, convening a jury may be impracticable or unfeasible. The military hierarchy must be able to work efficiently and expeditiously to dispose of any disciplinary problems it may encounter, and wide discretion must be given to front line officers to enforce their authority.”

But this refers to military offences in a military context and in time of conflict, not to offences of a civil nature committed in peacetime in purely civil circumstances.

This begs the question: Are courts martial necessary in Canada in peacetime?

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