Summary trials are an anachronism first introduced in the Militia Act of 1868

Military officers should not be 

dispensing criminal justice!

I open by noting my full support and endorsement of Tim Dunne's article which appears to cause grief to my friend, Edmund Thomas.  I share his viewpoint. Let me explain why.

A Summary Trial is not a competent and impartial tribunal

For a number of reasons, summary trials as currently conducted by the Canadian military are a relic of the Middle Ages. They are also an affront to the Rule of Law.

Consider its main characteristics: 1. Presiding officers of Summary Trials are normally Commanding Officers who lack any pretense of "independence" and "non-affiliation" with the accused or witnesses. 2. The accused has no right to counsel which likely contravenes sub-para 2.(c)(Xii) of the Canadian Bill of Rights. 3. The trial process is not governed by any rules of evidence including the non-compellability of the accused to be a witness against himself; adverse inferences from the accused silence; or, spousal privilege. Trial provides full reliance on hearsay and opinion evidence. 4. The accused cannot make any Charter arguments that may lead to a stay of proceedings or the dismissal of the case. The level of disclosure is not as thorough as the one provided by a court martial. 5. There is no transcripts of  summary trial proceedings. 6. There is no right of appeal of a verdict or a sentence pronounced by a Summary Trial. 7.  An accused can be sentenced to detention and can be saddled with a criminal record. All this is contrary to the conclusions reached by the UN Human Rights Council on the integrity of the justice system which it sees it as a "pre-condition of democracy and the Rule of Law":

88. Military tribunals, when they exists, must be an integral part of the general justice system and operate in accordance with human rights standards, including respecting the right to a fair trial and due process guarantees set out, inter alia, in articles 9 and 14 of the International Covenant on Civil and Political  Rights.

Further, over the past two decades, the European Convention of Human Rights (ECHR) and various ruling on its applicability to military trials have caused some countries, in particular the United Kingdom, to overall and amend their summary trial processes. The reforms were aimed at bringing these processes into compliance with Articles 5 and 6 of the ECHR. These articles provides that no one may be deprived of their liberty, except by a competent and impartial tribunal, and that the accused may declare his right upon a criminal charge to a fair and public hearing by an independent an impartial tribunal as established by law.  One of the result of this sustained intervention by the European Court of Human Rights is that in the United Kingdom and the Republic of Ireland, and elsewhere, soldiers convicted at a summary trial now have an unfettered right to a hearing before an appeal tribunal made up of three members where they may be represented by a lawyer.

Of note, over the past decade,  in Canada two consecutive sessions of Parliament, one led by the Conservative and the other by a Liberal government, introduced legislation in the House of Commons to dispense with such an archaic summary trial system.  Since June 2019,  a more modern, a fairer and a more effective process which fully in accord with our own Canadian legal culture has now replaced summary trials.  It will enter into force once the regulatory development process runs its course - hopefully by the end of 2020.

A former Commanding Officer of a large field unit during my military service, I recognize the requirement for discipline of. However, I strongly believe that military officers  lack the training an required independence to dispense criminal justice. However, if they do and for as long as they do, soldiers should be provided in turn with nothing less than a world class system in full respect of their constitutional rights; this is includes Right to Counsel at trial, the existence of criminal rules of evidence and, the right to appeal both the verdict and the sentence. This is not presently the case. 

The sooner we can put Bill C-77 en vigueur the better for Canada and the military and for those who serve in uniform. Our sailors, soldiers and aviators deserve a military justice system that is in full accord with the rights afforded to every other person subject to Canadian law.