Rank has its privileges when facing courts-martial in Canada

by Major Tim Dunne (retired)

 This article appeared in the 29 November edition of the Halifax (Nova Scotia) Chronicle Herald

Why is Canada’s military justice system unable to court-martial the highest-ranking military officers while it seems to have no difficulty charging and trying their subordinates?

It’s a good question that deserves an answer, even though there are some within our military who feel that the Armed Forces should have to answer only to their own superiors, and not to the Canadian public.

There are four general (army and air force) and flag (navy) officer ranks in the Canadian Armed Forces:

• brigadier-general /commodore;
• major-general/rear-admiral;
•  lieutenant-general/vice-admiral;
• general/admiral. 

Canada’s National Defence Act contains the code of service discipline which, in turn, mandates the jurisdiction of both service tribunals, summary trials and courts martial, to try accused CAF members for alleged military and civil offences.

Minor infractions can be handled by the offender’s commanding officer or designated representative at a summary trial. More serious violations are heard by a court martial, the Canadian military’s version of a criminal trial.

The act mandates that officers in the rank of colonel and its naval equivalent, captain (navy) and above must be tried by court martial.

A military judge alone presides over a standing court martial, while a general court martial comprises a military judge with a panel of five Armed Forces members. The type of court martial largely depends on the nature of the charge(s) laid.

The National Defence Act section 167(1)(4) requires that if the defendant is a brigadier-general or above, the senior member of the panel must hold the same or a higher rank, and the remaining members of the panel must be colonels or navy captains, or above.

While there have been brief periods when there have been two “four-star” generals — the highest rank in the Canadian military — it’s customary to only have one.

On April 30, retired Supreme Court Justice Morris Fish tabled his Third Independent Review of the Canadian military justice system in which he observed that these regulations restrict “the pool of eligible members depending on the rank of the accused, make it legally impossible for the (Chief of the Defence Staff) CDS and practically impossible for any lieutenant-general or vice-admiral to be tried by general court martial. Should charges be laid against officers of these ranks, the military justice system may not be able to deliver justice.”

Justice Fish’s comment that “the military justice system may not be able to deliver justice” against the most senior officers of the Canadian Armed Forces is a chilling condemnation of that system.

This contrasts sharply with the comments of former director of military prosecutions and now retired Col. Bruce MacGregor of March 11, 2020, when charges against Chief Military Judge Col. Mario Dutil collapsed because no other military judge could preside over their superior officer’s court martial.

“All members of the Canadian Armed Forces, regardless of rank or appointment,” Col. MacGregor announced in a DND news release, “are held to the same, highest standard of conduct. In this specific case, alleged wrongdoing was reported and investigated by proper authorities, charges were laid and moved forward in accordance with the law. However, after conducting a detailed review of the Federal Court’s decision to dismiss my application for judicial review, and carefully considering all circumstances surrounding this case, I believe that it is no longer in the public interest to proceed with this trial.”

Nineteenth-century French writer Honoré de Balzac insightfully observed, “Laws are spider webs through which the big flies pass and the little ones get caught.”