Thursday, July 30, 2020

The moral legitimacy of Canada's military justice system is in question

My article “Despite pending law, Canadian Forces still deprives members of liberty for summary offences” in the Halifax Chronicle Herald (7 July) appears to have catalyzed several articles in response. I appreciate the resulting discussion, and I am aware that my fellow writers on this issue are lawyers, one of whom is a military lawyer, the other a former military lawyer.

I am not a lawyer. I am a retired military officer (major) who has become a human rights advocate for the members of the Canadian Armed Forces. I do not write with an eye for alignment of issues with the current military legal regime. I am expressing my concern for the divergence of the treatment of our military personnel from the Charter of Rights and Freedoms available to all other residents of Canada, whether they are citizens, immigrants awaiting citizenship, refugees, and visitors. It is my fundamental conviction that our military personnel should benefit equally from Canadian  rights, freedoms and values when the principle of unlimited liability mandates that they promote, foster and defend those principles, even at the cost of their own lives.

 A commanding officer (CO) is not a legal officer and lacks the depth of education and training, the time in law school, articling with a law firm and in professional practice.  Military summary trials are, effectively, trial by commanding officer or the CO’s designated officer, whose legal education to preside over an accused person is measured only in hours. Conversely, the education and experience of a judge prior to joining the bench is measured in years, and sometimes decades.

 I am not opposed to summary discipline. Many, if not all, professions have disciplinary procedures for its members who do not conform to the strictures of the profession. I am opposed to the arbitrary deprivation of personal liberty for up to 30 days for a minor infraction when the Parliament of Canada has passed legislation obviating that particular punishment and the possible imposition of a criminal record for a non-criminal act.

I disagree with Lt-Col Thomas’ comment that 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. The CO has two “first duties”: Train, educate and prepare his/her personnel for operational situations they may be assigned, and equally, when assigned to successfully achieve their mission goals.

Commanding officers have a formidable variety of responsibilities, including the training and employment of the service members within the ship, battalion or squadron; the safety, efficiency and professional development of their personnel; and the successful accomplishment of operational assignments, perhaps in extremely hazardous circumstances and mortal danger. We should be reducing his/her administrative burden.
Summary punishments are rooted in the Regimental Courts Martial convened by the colonel of the regiment under the authority of King Charles II’s Articles of War first issued in 1672. Seventeen years later it was included in the pre-amble to the Mutiny Act of 1689, recognizing that summary nature of military justice at that period was necessary, that discipline had to be consistent, and military offenders needed to be quickly brought before their tribunal.
Dr. Charles Lucas, member of the Irish Parliament from 1761 to 1771 looked at British military justice, from which Canadian military justice is derived, “with a very jealous, suspicious eye,” as it often exceeded the bounds of law, and violated the principles of justice and moderation. He shared with many of Britain’s foremost legal commentators a disdain for military laws and disciplinary procedures. Arthur Wellesley, the First Duke of Wellington, said, ”The man who enlists into the British army is, in general, this most drunken and probably the worst man of the trade or profession to which he belongs, or of the village or town in which he lives.”
That is no longer an accurate description. I have had the honour and the privilege of serving with many of our service personnel of all ranks. They are patriotic, dedicated and well-educated, and deserving of better than to be treated with the same body of military law designed to prevent the desertion, drunkenness, insubordination and disobedience of Victorian-era soldiers.
Lt-Col Thomas agrees with me on several points: summary trials are not required to conform to the Military Rules of Evidence; the CO is not legally trained; an assisting officer who lacks legal training is appointed to help the accused; there is no right to be represented by counsel; and there is no appeal of the finding or the sentence (only a right to request a  review by the next superior officer in the chain of  command). There are no protections from the occasional over-enthusiastic CO.
Certainly, the accused have the right to elect trial by court martial, but that is a “Sophie’s Choice.” In researching my articles about military justice, I have interviewed many people, but I have not been able to discuss these issues with anyone who has undergone a court martial, either as the accused or as a witness. These people have been so traumatized that they are psychologically scarred by their experiences.
The Judge Advocate General’s Director of Defence Counsel Services does provide military legal representation free of charge. However, I have also interviewed several of these officers and I have found that they share a sense of commitment for their responsibility to defend their clients. But being defence council in the Canadian military’s legal system comes with a heavy price. The Bronson Group’s External Review of Defence Counsel Services (15 September 2009) disclosed that “More than one lawyer was warned by even very senior officers to be careful about what he/she did while at DCS [Defence Counsel Services] because it would reflect on him/her when he/she returned to the branch” (section 8.1, page 39, paragraph 1). Last year I interviewed a member of DCS who confirmed this bias still exists.
Lt-Col Thomas notes that I appear “to believe that . . . military trials are hell holes of injustice.” In 1830, the “Horse Guards,” the name given to the headquarters for the Victorian British army, curtailed the summary powers of commanding officers by limiting incarceration in cells to seven days. Canadian COs can confine the accused for 30 days.
Thomas also notes that the accused may testify and present witnesses and cannot be compelled to speak. But, the option to ignore the military rules of evidence stacks the deck against the accused. “Evidence” can be submitted by telephone, facsimile and email, seriously limiting the accused’s capability to question the “witness.” And, let us not forget the incredible level of intimidation that a junior member of a military unit can feel standing at attention before his/her commanding officer, answering to charges of misconduct.
Thomas also refers to the right to be presumed innocent until proven guilty beyond reasonable doubt. This is a dual-faceted fiction of our military justice system.
1.   A retired colonel of the legal branch pointedly told me that the right to the presumption of innocence exists only during a tribunal. Even if acquitted, the service member may still suffer longterm consequences of his/her summary trial from current and future supervisors who “know the story.”
2.    Even with an acquittal, a legal officer can pen a document shielded from disclosure to the accused by “solicitor-client privilege,” that implies the accused undeservedly escaped formal discipline, in contravention of the principles of natural justice. This impugns the acquitted, adversely affects his/her career and contaminates the perceptions of that individual. This does not conform to the intent of the Supreme Court of Canada in:
Nicholson v. Haldimand-Norfolk Regional Board of Commissioners of Police 1 R.C.S. [1979].
Cardinal v. the Director of the Kent Institution 2 R.C.S [1985]. 
Baker v. Canada 2 R.C.S. [1999] 
Or of the Federal Court of Canada in: 
El Maghraoui, 2013 FC 883. 
Krishnamoorthy, 2011 FC 1342. 

The impact of these legal precedents is that when decisions are made that affect the lives and circumstances of individuals, there is an obligation to advise them and provide them the opportunity to challenge the decisions.  
I have personally polled the federal and provincial Crown prosecution services about this and the replies were that no further action is taken following the completion of a police investigation which produces no charges or following an acquittal at a tribunal. Career-changing action under these circumstances happens only within the Canadian Armed Forces’ legal branch.

The sad reality is that our military personnel are being subjected to an outdated and outmoded system of arbitrary justice that does not provide the protections afforded all other people in Canada. The summary justice system is arbitrary, allowing for the ever-present possibility of the occasional CO using the system over-enthusiastically. 

The Code of Service Discipline needs reform. Canada needs to join Austria, Belgium, Czech Republic, Finland, France, Germany, Japan, and Sweden who have transferred their military justice regimes to civil jurisdiction. However, I doubt it is within the capacity of the current legal administration. It is accepted wisdom that institutions find it nearly impossible to initiate institutional transformation. 

Ten years before the debacle of the Crimean War (1853-1856), British Colonel Firebrace wrote in On the Errors and Faults in our Military System:

“[A]ny reform that is required must be produced by ‘pressure from without’, and that if left to the discretion of those who are supposed to have the power, it will be postponed sine die [no anticipated time for completion].”

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