Global Military Justice Reform contributor
Tim Dunne has written
this op-ed for the Halifax
Chronicle-Herald, titled
Military justice system lost its moral legitimacy. Excerpt:
This writer once believed Canadian military “justice” was edging closer to contemporary Canadian values. Until, that is, the public affairs officer for the Canadian Forces Provost Marshal recently noted that since June 21, two people were detained for 14 days and one for seven days at the Canadian Forces Service Prison and Detention Barracks, Canada’s military prison in Edmonton, Alta.
He added that “Detention by Summary Trial will cease once all the provisions of Bill C-77 are fully implemented by the CAF (Canadian Armed Forces).”
It is certainly odd that Bill C-77, which made significant changes in Canadian military justice, was enacted in 2013 but parts are only now coming into force.
Bill C-77 was not enacted in 2013. It received Royal Assent on 21 June 2019. It was Bill C-15 that became law in 2013, and had provisions come into force over the following 5 years.
ReplyDeleteMany of the provisions in Bill C-77 did not come into force when it received Royal Assent and will only come into force with the enactment of regulatory amplification (in some cases, significant regulatory amplification). In particular, Bill C-77 introduced the concept of a 'Summary Hearing' which would replace Summary Trials. This would purportedly 'decriminalize' those processes (notwithstanding that few, if any, summary trial convictions lead to criminal records, by virtue of section 249.27 of the National Defence Act). Some people were quick to applaud this step. I was not.
Two notable aspects of the 'Summary Hearings' are cause for concern: (i) there is no right to elect trial by court martial; and, (ii) the evidentiary threshold is the civil standard (balance of probabilities). The main safeguard with Summary Trials under the present system is the right of an accused, if facing a charge that might lead to detention, to elect trial before a constitutionally independent court martial, tried on the criminal threshold - beyond a reasonable doubt. Critics of Summary Trials often forget this crucial point. Summary Trials do not have all the hallmarks of fairness that civil courts do; however, the 'saving grace' of the process is the right to elect trial by court martial.
I, for one, am not enthusiastic about the new 'Summary Hearing' process that has not yet been implemented. To put it bluntly, the framework of 'Summary Hearings' was created to make it easier to convict CF personnel charged within that system, and to prevent them from insisting on trial before constitutionally independent judges. To me, it is rather transparent that the system of 'Summary Hearings' was created in response to commanders complaining to the JAG that soldiers are electing trial by court martial and that it is difficult to obtain convictions.