Monday, July 29, 2019

Being a soldier is not easy. You are asked to do things not asked of other people.

The latest SCC decision in R v. Stillman champions the status quo.  This is a major disappointment for those, like me, who had hoped for a modernization and democratization of the Canadian military justice system.

In a 5-2 decision, the court does not introduce any changes to the military court martial system. Instead, the majority finds that there are no constitutional issues with the military’s use of a five-military member panel to decide Criminal Code matters (vice a 12-person civilian jury that is constitutionally protected for civilian trials). The court also upheld their previous finding in Moriarity which determined that there is no need for a military connection, or nexus, for a military court martial to assume jurisdiction over a Criminal Code offence. Failure to allow the military justice system to operate as-is, the majority find, could have the result of undermining confidence in the military justice system, and affect morale within the military.

A strong dissent

The dissenting opinion of Justices Karakatsanis and Rowe is diametrically opposed.

In a powerful dissent, these justices find that, to be heard before a 5-member panel, Criminal Code offences which could attract a term of imprisonment of 5 years or more actually should require a military nexus. Otherwise, the matter should be remanded to civilian court. The dissenting voice finds that the current military justice framework has clear unconstitutional elements, and would have dramatically altered the rights of a military accused facing criminal charges.  I agree with that dissent.

The net result

The result is that the majority decision endorses a two-tiered system of justice in Canada. Soldiers, sailors and aviators will continue to be the only persons in Canada who are denied the constitutional right to a jury trial.  A military accused charged with aggravated assault, for example, may be heard before a 5-person, all military panel. A conviction requires unanimity within this panel. A civilian charged with the exact same offence will have the right to a 12-person jury trial. It may be more difficult, optically, to achieve unanimity from a 12-person jury, than from a 5-person panel particularly when those five persons are drawn from the same pool (military officers) who share the same values, and ethos and reports -- before and after the trial -- to the same employer, the military chain of command.

To top if off, the judge is also a military officer.

Looking ahead

For the foreseeable future, the military justice system will continue to operate separate and apart from civil society. Ne’er the two shall meet.  In some ways, this runs counter to the growing trend of NATO countries which are eliminating military trials all together in peacetime.

Be that at it may it is now up to Parliament to decide whether the National Defence Act (NDA) should be amended, particularly in light of the 2018 report titled Administration of Justice in the Canadian Armed Forces submitted by the Auditor General.  That report which concluded that:

"The Canadian Forces did not administrer the military justice system efficiently. There were delays throughout the various processes for both summary trials and court martial cases.  In addition, systemic weaknesses, including the lack of time standards and poor communication, compromised the timely and efficient resolution of military justice cases."

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