Canada's military justice system has not yet lost its moral legitimacy, but it will -- a reply to Tim Dunne

On July 9, 2020 an op-ed in the Halifax Chronicle-Herald, written by Tim Dunne, a contributor to GMJR, was posted on  this forum. Mr. Dunne argues that Canada's military justice system has lost its moral legitimacy because, since June 19 three service members have been sentenced to periods of detention of between seven and 14 days, apparently at summary trials presided over by their Commanding Officers: Military justice system has lost its moral legitimacy. His sense of outrage stems from the fact that Bill C-77, which received Royal Assent on June 19, but has yet to come into force, will replace summary trials with summary hearings, and will remove detention as a sentencing option. He apparently believes that although CO's have the power to sentence offenders to detention, they should refrain from doing so because at some unspecified date in the future that authority will be taken away from them.

Rather than post a comment to Mr. Dunne's post, I thought it important to write a separate reply since Mr. Dunne's article suffers from several serious factual omissions and presents an inaccurate picture of both the Canadian military summary trial system as it now exists, and of the regime that will replace it once Bill C-77 comes into force.

Mr. Dunne appears to believe that, on one hand, military trials are hell holes of injustice in which CO's trample on the rights of their subordinates, while on the other, Bill C-77 will usher in an era in which military justice will conform to "contemporary Canadian values". He is wrong on both counts. The military trial in its current form is in serious need of reform, but contains important safeguards and benefits for service personnel, none of which Mr. Dunne mentions. Bill C-77, however, merely pretends to  be a non-penal statute. It will retain the CO's power to punish subordinates, while removing all the protections that service members currently enjoy.


Military law in the United Kingdom and other Commonwealth countries provides for summary trials in one form or another. Readers from countries with other legal traditions, however, may be less familiar with the characteristics of summary trials as they exist in Canadian military law. Summary trials are aptly named. They are indeed summary, and are designed to allow commanders to enforce discipline in a speedy and efficient manner. They are also undoubtedly trials, before which service members may be tried for some, though not all, offences under military law. These offences include a short list of ordinary criminal offences, which are made service offences under s. 130(1)(a) of the National Defence Act. A CO may try Officer Cadets and non-commissioned personnel up to the rank of sergeant. The CO's powers of punishment include detention for up to 30 days, reduction in rank and a fine of up to 60% of basic monthly pay. The CO's powers of punishment, except with respect to Officer Cadets, may be delegated to a Delegated Officer. The Delegated Officer has reduced powers of punishment, which do not include detention, reduction in rank, or a fine that is greater than 25% of monthly pay. Warrant Officers and officers up to the rank of Lieutenant/Colonel/Commander may be tried by a Superior Commander, whose powers of punishment are limited to reprimand, severe reprimand and a fine of up to 60% of monthly pay.

Mr. Dunne is correct that summary trials lack many of the procedural rights that an accused person enjoys at court martial. The Military Rules of Evidence do not apply. The CO is not legally trained (unless he or she happens to have a law degree, as some do in the  Reserve Force). There is no right of appeal, only a right to request a  review by the next superior officer in the chain of  command. . An Assisting Officer, usually a junior officer, is appointed to help the accused, but there is no right to be represented by counsel. However, he neglects to mention that none of the three service members he refers to were obliged to undergo summary trial. All of them had the right to elect trial by court martial, at which they had the right to be represented by counsel. Counsel would have been appointed by the Director of Defence Counsel Services free of charge, if they so desired. A Military Judge would have presided and the Military Rules of Evidence would have applied. Had they been convicted, they could have launched an appeal with the Court Martial Appeal Court.

Mr. Dunne also fails to mention that an accused person is not without rights at a summary trial. The accused may testify and present witnesses but cannot be compelled to speak. He  or she is entitled to full disclosure of the evidence. Above all, Rumpole's Golden Thread, the right to be presumed innocent until proven guilty beyond reasonable doubt, applies at summary trials.

Mr. Dunne mentions a conversation with a Provincial Court judge who told him that he would have to think long and hard before depriving someone of liberty, the implication being that CO's at summary trials do not think about their duty and are in the habit of sentencing offenders to detention. In fact, in 2018-2019, according to the Annual Report of the Judge Advocate General, 533 summary trials were held throughout the Canadian Armed Forces, and only eleven of those convicted were sentenced to detention. COs, it would appear, are no more eager than judges to put offenders behind bars. 

I am no apologist for summary trials. Of my thirty years as a Legal Officer, almost 14 were spent as a full time defence counsel. Next to defending service members at court martial, my most important duty was as Duty Counsel, advising members of the Canadian Armed Forces who had been arrested or detained, or who had been charged with service offences and had to decide whether to elect to be tried by court martial. Frequently I advised personnel about their right to request review of findings or sentence after conviction at summary trial. I came to see the flaws in the summary trial system. Investigations were sometimes inadequate or biased. Charges were often badly drafted. Findings of guilt were sometimes perverse. Accused soldiers sometimes had no confidence that their CO would give them a fair hearing. Drug charges were particularly apt to suffer from injustice. There was frequently no evidence that could have been admitted at court martial to show that  the accused had possessed or used illegal drugs, but conviction was almost inevitable when the accused chose to be tried summarily. The sentences imposed for minor drug possession charges was generally  higher than would have been imposed at a court martial. Accused were frequently sentenced to detention for offences that would have attracted only a fine and a reprimand at court martial. Small wonder, then, that my advice was almost invariably that if a an accused soldier had a viable defence he or she should choose to be tried by court martial. Some of my clients did not take this advice, and the results were rarely to their benefit. As for drug offences, I do not recall that I ever advised anyone to choose trial by summary trial, although many did.

Another problem with summary trials was the more or less informal, but nonetheless real, pressure that would sometimes be placed on an accused person to waive his right to be tried by court martial.

Despite all these shortcomings, why do I not share Mr. Dunne's contempt for summary trials? First, summary trials in my experience were not invariably instruments of injustice. Most CO's, Delegated Officers and Assisting Officers did their best to do their duty. Also, I came to realize something that Mr.  Dunne does not consider. The summary trial, for all its faults, is a benefit to the members of the Canadian Armed Forces. In  most cases, the accused is guilty of the offence charged. The option of summary trial allows the member to deal with the charge relatively quickly and without the humiliation and stress inherent in a trial by court martial. Summary trials are open to the public, but the reality is that they are not widely publicized and are held within unit lines. They allow the accused to deal with his or her charges en famille. An accused soldier may often be more interested in dealing with things quickly than in exercising his or her right to present a possibly valid defence, or an interesting argument under the Charter of  Rights and Freedoms. Small wonder that, when given the chance, only 47 accused members elected trial by court martial in 2018-2019, representing 24.48 percent of all accused who were allowed to make that choice (see the 2018-2019 JAG Annual Report, referred to above.)

Also, the CO's first duty is to promote, and where necessary, to enforce discipline, so that their subordinates are prepared to go into combat with the best possible chance of succeeding in their mission and of coming back alive. In that light, it seems reasonable that CO's should have tools to allow them to execute their responsibilities for discipline. Reasonable people can disagree as to whether those tools should include the power to award a short period of detention, which is designed to rehabilitate the offender and preserve his career. However, such a power does not strike me as being outrageous.

Pascal Lévesque, my former colleague and a contributor to this blog, has clearly demonstrated in his book, Front Line Justice: The Evolution and Reform of Summary  Trials in the Canadian Armed Forces (McGill-Queens University Press, 2020) that the summary trial fails to provide several rights guaranteed by the Charter of Rights and Freedoms. His argument that summary trials need reform is completely convincing. However, Mr. Lévesque also recognizes the important role that summary trials play in maintaining discipline, and he proposes a number of very useful reforms, none of which have been included in Bill C-77. Most importantly, to my mind, he recommends a much expanded right to elect trial by court martial. (Here, I respectfully suggest, he does not go far enough. The right to elect trial by court martial should be universal, without regard to the type of charge or the potential punishment). Further, he recommends that an offender found guilty at summary trial should have the right to appeal. He does not, however, recommend the abolition of detention as a punishment at summary trial He sees it as a "punitive tool to re-instill discipline in service members who have lost it".

Mr. Dunne's attack on the summary trial system is therefore simplistic and superficial. He is also wrong to think that Bill C-77 represents an overdue rapprochement between military justice and Canadian values. In fact, Bill C-77 is a fundamentally dishonest piece of legislation. It pretends to transform summary trials into administrative procedures, but summary trials will survive under the name of "summary hearings", service offences will become "service infractions", and service punishments will become "service sanctions". These changes in nomenclature are meaningless. The men and women of the Canadian  Armed Forces are unlikely to be deceived by Bill C-77. They will recognize summary hearings for what they are, trials in disguise.

It is true that detention will be removed from the CO's toolbox. However, CO's will retain the same power to award fines as before, although it is expressed as up to 18 days deprivation of pay rather than 60% of monthly pay. They will continue to be able to impose "sanctions" of reduction in rank, reprimands and severe reprimands. It is significant that the CO will continue to be able to award "minor sanctions". What these minor sanctions will be has yet to be specified in regulations, but the "minor punishments" that currently exist are likely to serve as a guide. The most important (and least popular with the troops) of the minor punishments is "confinement to ship or barracks", CB in popular parlance.

Pascal Lévesque's book contains at Appendix E the "Rules and Regulations for Defaulters" that are in force at Canadian Forces Base Kingston. These rules are representative of the defaulters rules at other  Canadian units and bases, and should be compulsory reading for those might think that "minor sanctions" will be anything less than penal. Defaulters must live in a "Defaulters Room" and remain there except when performing their normal duties, or extra duties imposed as a result of their punishment. They must present themselves for inspection several times a day, each time in a different order of dress. They may not attend any Messes or Institutes, or any place of entertainment. They may not consume alcohol. They may not have food in the Defaulters Room. They are not allowed to possess cell phones, radios or "game like items". Reveille is 6:00 during the week and at 7:00 a.m. on Saturday and Sunday. Lights out is at 11:00 p.m. CB is first cousin to a conditional sentence of imprisonment  as provided for by the Criminal Code of Canada.

The sanctions that will be available to the CO one day will unquestionably be penal in nature. Summary hearings will be just as lacking in independence and impartiality as the current summary trial system. The new system, however, will lack every safeguard that might permit the argument that the  system is demonstrably justified in a free  and democratic society, and thus pass muster under section 1 of the Charter of Rights and Freedoms. There will be no right to elect trial by court martial. Worst of all, the standard of proof will be on a balance of probabilities, not beyond reasonable doubt. For the first time in Canadian military history, Rumpole's Golden Thread has been cut. 

Bill C-77 is all the more frustrating to read  because reasonable alternatives were available that could have allowed the Canadian Armed Forces to improve the fairness of the summary trial and align them with contemporary Canadian values, without abandoning traditional concepts of discipline.  The Service Justice System Review by Judge Shaun Lyons (the Lyons Report) contains a detailed examination of the British military justice system, and appears not to have been read by those responsible for Bill C-77. There is no pretence that summary trials are independent and impartial. There is also no pretence that summary trials are anything but penal tribunals. British CO's retain the power to award sentences of detention. However, where the choice between summary trial and court martial is extended, the accused always has the right to choose trial by court martial, no matter how minor the offence. If convicted, the offender has the right to appeal to a Summary Conviction Appeal Court, presided over by a judge. Even with a universal right to elect trial by court martial, however, the absolute numbers of service members who exercise that right are considerably less in Britain than in Canada.  410 courts martial were convened in Britain in 2016. Of these, 388 were directly convened as courts martial because of the nature of the offence, or because the Prosecuting Authority had so directed. Only 22 service personnel elected to be tried by court martial when they had the option of a summary trial. The numbers of regular personnel in the three services in 2016 were: Army – 85, 038, Royal Air Force – 33, 320, and Royal Navy 32, 400. 

By contrast, the Canadian Armed Forces, according to the website of Veterans Affairs Canada (last updated 14 February 2019),   comprise approximately 65, 000 members in  the Regular Force and 25, 000 in the Reserves: 10 Quick Facts on the Canadian Armed Forces. Out of that population 192 elections to be tried by court-martial were offered in 2018-2019. As noted above, during that period, 145 accused persons elected to be tried by summary trial and forty-seven elected trial by court martial. (See the 2018-2019 JAG Annual Report.)

How  is it possible that the Canadian  Armed Forces in 2018-2019, with its small numbers compared to the United Kingdom, produced twice as many elections for court martial as did the entire regular British Armed Services in 2016? The most likely explanation is that in Britain, military personnel have had many years experience of a system have a system that is truly disciplinary, yet protects their legal rights. (To be fair to the Canadian system, another possible factor might be that every person tried by court martial has the absolute right to be defended by counsel appointed by the Director of Defence Counsel Services at no expense to them. In the United Kingdom, members must apply and qualify for Service Legal Aid.)

With Bill C-77, the Canadian government, rather than admitting that summary trials are disciplinary tribunals that need careful and principled reform, has opted for a deceitful approach. The pretence is that the relationship between military commanders and their subordinates is equivalent to civilian employment, and that summary  trial can be disguised as an administrative hearing by naming them "summary hearings". With apologies to G.K. Chesterton, the Canadian summary trial system has not been tried and found wanting; the task of reforming it has been found difficult and not tried.