Among advanced democracies, Canada's military still relies on the "summary trial' system. A system largely unchanged in 331 years and whose range of punishments includes the loss of liberty while denying members: a) right to be represented at trial by legal counsel;'and b) a right of appeal the verdict or sentence.
In 2015 the Canadian Parliament introduced Bill C-77 aimed at replacing the Summary Trial system by a non-penal and non-criminal summary hearing system.
This Bill was given Royal Assent on June 21, 2019. This is now the law.
A year later, SC 2019, C. 15 has yet to be put into force by the Canadian military whose leaders still rely on the 'summary trial' procedure to enforce discipline at the unit level.
Why many provisions of Bill C-77 have yet to come into force, depending upon the regulations that are enacted by the Governor in Council (GiC), it may not actually represent an improvement in military justice.
ReplyDeleteUnder the (not-yet-in-force) statutory framework, someone tried by a 'Summary Hearing' will not have the right to elect trial by court martial (or any other constitutionally independent tribunal) and will be subject to a lower evidentiary threshold (the civil 'balance of probabilities'). The scope of 'sanctions' eventually enacted in the GiC regulations may include 'confinement to barracks', which would represent a deprivation of liberty, but without the safeguards presently in place even for Summary Trials.
We have to remember that most Code of Service Discipline offences permit an accused to elect trial by court martial (i.e trial before a constitutionally independent military judge, and representation by defence counsel, free of charge). Thus, while summary trials do not have the safeguards of courts martial, an accused can often elect to be tried by court martial. One way to improve the current system is to extend the right to elect trial by court martial for all offences. At present, there is no presumptive right to elect trial by court martial for offences under sections 85 (Insubordinate Behaviour), 86 (Quarrels and Disturbances), 90 (Absence Without Leave), 97 (Drunkenness), and 129 (Conduct to the Prejudice of Good Order and Discipline, in certain limited circumstances), where the presiding officer does not expect to use punishments higher in scale than a fine amounting to 25% of net monthly income. In other words, where a presiding officer anticipates using a significant punishment, such as detention, the accused will be able to elect trial by court martial regardless of the offence charged.
A good way way to improve the Code of Service Discipline, is to extend the right to elect trial by court martial for all offences, or to significantly reduce the scale of punishments where there is no right to elect trial by court martial.
Lowering the burden of proof, and removing the right to elect trial by court martial, as has arisen with Bill C-77, is not a significant improvement. Moreover, much of the process has been left to enactment through GiC regulation. (And it is the Governor in Council who will enact these regulations, not the CF leadership. Ultimately, the proposed regulations will be drafted by Department of Justice legislative drafters, based upon instructions from CF leadership. Contrary to past practice, these regulations were not drafted in tandem with the statutory drafting.)