Canadian courts martial; a vestige of the past or a lost cachet?

        In January 2018, the Office of the JAG published a broad policy-based analysis and discussion of Canada's court martial system focused on assessing the effectiveness, efficiency and legitimacy of the current system and presenting a range of representative options for enhancing it.  The detailed assessment concluded that the current court martial system is 'somewhat effective'  and "appears to have considerable room for improvements." The report also provided a comparative study of military justice systems from around the world; as well as an analysis of the high costs associated with running courts martial. 

        The report concluded that courts martial are very expensive and inefficient. 

PROGRESS IS IMPOSSIBLE
WITHOUT CHANGE

In May 2018, the Auditor General also identified a range of problems with the structure and organization of courts martial and its impact on the administration of military justice. This past month the Court Martial Appeal Court [CMAC] made a potentially ground-breaking decision in Beaudry v. Her Majesty the Queen, 2018 CMAC 4, challenging a linchpin provision of the Code of Service Discipline which currently deprives soldiers of their constitutional right to opt for a jury trial. Welcomed as an avant-garde decision, this landmark ruling will soon land in the Supreme Court of Canada [SCC] where the constitutionality of the impugned provision will be decided upon.

But there is more. 

        Specifically, the unconventional architecture of courts martial is more than passé ; however, it has yet to be addressed by internal or external review mechanisms. For this, I present my own observations which flow from my recent attendance at three court martials which I attended as Counsel for victims of sexual assault. My experience as a member of the gallery was disappointing and are the basis for the follow-on first-hand observations.

Solemnity of the military judicial process; a lost art?

Canada has inherited many of its judicial conventions for Court Martials from the British, which were first established under the authority of Charles II in May 1663 in the “Regulations for the Musters” and in the Articles of War in 1673. These conventions serve many purposes. First, to confer judicial authorities with a certain formality or dignity. Second, to draw a distinction between judicial proceedings and those that are disciplinary or administrative. With the passage of time, Canada's courts martial system is showing signs of both fatigue and obsolescence and a certain lack of gravitas.

The look and feel of a courtroom 

is essential to the administration of justice

According to Canadian legal tradition, in court both judges and lawyers must wear long black robes – a historical symbol of a time-honoured system where the exercise of authority in the service of justice is emphasized. These robes (or gowns) remind all those who wear them that they must behave in a manner that preserves the bond of trust between the public and those who administer justice. Lawyers also wear white shirts with ‘barrister tabs’ (two small pieces of white fabric attached to the collar band).

Strangely, military prosecutors and military defence lawyers appearing at courts martial before judges (who are themselves robed) are not required to wear gowns or tabs. In my view, military lawyers, like military judges, should be dressed in a manner that not only confirms the existence of a formal proceeding, but that also promotes the dignity of the judicial process. This is the purpose of gowning, which is one of the well-established and respected legal traditions maintained in all other legal jurisdictions in Canada.

Courtroom organization

Normally, the courtroom is a very hierarchical environment where each person is assigned a specific place. The entire room is organized around a symmetrical central axis with the judge’s bench (normally on a dais) at the front, then the counsel tables on either side of it and a transversal barrier (known at the ‘bar’) that separates the public from the judicial personnel. However, the Court Martial, by appearances alone, is a very poor cousin to the criminal courts. Let me explain.

Few courts martial outside of Ottawa take place in a permanent courtroom facility. In almost every court martial taking place outside of the National Capital Region (where a such a courtroom is located), the local military “chain of command” assumes the unlikely task of temporarily transforming a military quarter into a courtroom and providing each court martial on an ad hoc basis the required administrative services. For reasons steeped in the very distant past, this task is assigned to the accused’s unit commanding officer (CO).

This means that for each court martial, a new unit commander undertakes the onerous task of providing the necessary space to house the judge; prosecutors; defence lawyers; court clerks; waiting areas for witnesses, media representatives and the public; and, equip these spaces with electronic amenities. Overnight, the CO must transform a military facility, usually a conference room or a classroom, into a courtroom. This sort ad hoc procedure present an obstacle to the efficient functioning, decorum and dignity of the court.

Not surprisingly, the standard of excellence varies greatly from one court martial to another. Given that for each court martial proceeding, a neophyte commander tries to transform a military facility into a courtroom, more often than not court martial proceedings are routinely held in cramped quarters that generally lend themselves very poorly to the needs and comfort of the public and true respect for decorum and etiquette expected of a criminal courtroom setting. 

          In most courts martial, the judge sits at eye level to the gallery.  Also, due to limited space, the bar between the ‘public gallery’ and legal professionals is often imaginary, with the accused and lawyers almost blended in with the audience. Yet, this line of demarcation is essential because lawyers must both be vigilant in representing the legitimate interests of their clients and in ensuring they maintain the absolute confidentiality of information received in the exercise of their profession. 

          I have also seen situations where prosecution and defence counsel are barely separated from one another. Worse, a victim is made to testify within a few feet of the accused while

The result is predictable: it is very difficult, if not impossible, to correctly administer justice or observe due decorum during a court martial when it takes place the cramped quarters of a canteen or a classroom.

Public interest is well-served when public and media access is facilitated

         Courts martial are normally held in isolated military garrisons situated in rural areas. 

         Access to any defense establishment is controlled under the Defense Controlled Access Area Regulations (DORs/86-957) allowing the military to conduct the search of persons granted such access. Not surprisingly, this can and probably has a 'chilling effect' on members of the media or the general public wishing to attend these proceedings. For those two reasons alone, nowadays, few members of the public actually attend court martial proceedings.  This makes the public right of access to courts martial illusory, vitiating the ‘open court’ principle leading to a deplorable out of sight out of mind situation.

Court etiquette

          I was also disappointed to find that, in sharp contrast to the rather formal dress worn by members of the public attending judicial proceedings in a civil court, soldiers present at court martial are more often than not wearing camouflage fatigues. Yet, a courtroom is not a combat zone!

Showing respect for the judiciary, the law and the purpose of courts martial proceedings, soldiers in attendance should be required to wear their regulatory service dress uniforms as an equivalent to what is considered to be an appropriate civilian attire for court.

Punctuality

Based on my recent experiences at courts martial, another area of improvement that needs to be addressed concerns punctuality. Best practices followed everywhere else in the Canadian justice system include an obligation for judges - and, obviously counsel - to avoid unnecessary delays, adjournments, suspensions or protracted hearings. Delays are to be used only when there are duly justified grounds. 

          Suffice to say that the punctuality of the judge, whether military or civilian, is a mark of courtesy and respect for all (including litigants, lawyers, soldiers and ordinary citizens).

Cost

There is also very little respect for the taxpayer who foots the bill for the unnecessary costs of court martial proceedings.

            Consider that, at a June 2018 court martial in Edmonton, Province of Alberta, the military judge, the prosecutors, counsel for Defense, counsel for the victim, the court reporter, the accused, the victim as well as one of two witnesses travelled to Edmonton to attend the trial. Ironically, most of them also travelled from the Ottawa region where a full military courtroom is available and underutilized. Instead, the taxpayer funded the travel, accommodation, and meal allowances for these several individuals to assemble in Edmonton.  To what end?

           The taxpayer also footed the bill for approximately 40 soldiers and one DND civilian employee in charge of media relations in attendance for the five-day hearing. There were no member of the public present in court. All these soldiers belonged to the same military unit as the accused. Such high attendance level by soldiers is no doubt a consequence of the court martial being held within the confines of their workplace. It seems that, staging a court martial within their working quarters compelled unit personnel to attend and watch the court martial proceedings; the military considering this as a sort of a training exercise, unit productivity be damned!

                                    JUDICIAL INDEPENDENCE IS A CORNERSTONE 
                                  OF CANADIAN JUSTICE SYSTEM

     The perceived independence of military judges is also problematic. 

      According to the principle of judicial independence, judges should not be subject to any influence, surveillance or any other form of direct or indirect coercion that would call into question their independence and impartiality. They must also ensure that their individual beliefs and values ​​do not bias their decisions. Surely, this applies to civilian and military judges alike. 

      They must always be, and be seen to be, objective and impartial.

Yet, judges presiding over courts martial hold a military rank and as such, they are subject to the Code of Military Discipline, the Code of Values ​​and Ethics and a host of military regulations, orders and directives. The Chief Military Judge who acts as an officer commanding a command is directly responsible to the Chief of the Defence Staff for the control and administration of his unit. As commissioned officers, military judges also have a range of obligations as set out in the Queen’s Regulations and Orders.  

Military judges cannot, therefore, be perceived as independent as they are not immune to disciplinary constraints or military obligations and regulations. Contrast this with the UK and New Zealand, where courts martial judges are civil magistrates with the required institutional and individual independence. As noted by the former Chief Justice of Canada in a speech in May 2001, "it is this independence, coupled with integrity and a commitment to impartial decision-making which makes the judiciary the important institution it is and that will preserve it into the future."

CONCLUSION

The look and feel of a standard courtroom is quite formal and imposing. The aesthetics of a courtroom are a function of the public's respect for the administration of justice, as well as a manifestation of our understanding of the power that certain signs and symbols may have over people. The judge and lawyers' robes, the hushed intimacy, the ceremonial practices, the standard seating arrangements - these are all symbols of a place where justice is to be reverentially served. The lawyer's role in maintaining decorum is substantial.  At present, the contrast between the 'look and feel' of Courts Martial and civilian courts is stark, and problematic.  Much much-needed modernization is required to bring courts martial to the expected standard.

The administration of justice should take place in a courtroom with an appropriate degree of formality, dignity and respect. However, at present, courts martial operate in a somewhat makeshift way which may undermine important legal traditions.  Courts martial taking place on Canadian soil, most notably in peacetime, should be held in dedicated courthouses located in urban centres that are easily accessible to members of the public as well as the military community. This would help to better ensure compliance with the principles of public proceedings and open courts – an objective that is fully compatible with the need to guarantee military discipline and to facilitate the proper exercise of the profession of arms in defence of these very same rights and freedoms.

          Also, the sooner judges presiding at courts-martial lose their military rank, if not military status altogether, the more likely they will be seen as having the minimum standard of institutional independence which is now being taken for granted for every other member of the Canadian judiciary. 

          Our soldiers expect, are entitled to and deserve a modern, equitable system of justice that Canadians would be proud of. This is presently not the case. There is an urgent need therefore for Parliament to embark upon a review of the Canadian military justice system which will lead to its evaluation and rejuvenation to ensure its harmony with the ordinary laws of Canada and the open courts concept.

NIL SINE LABORE