Thursday, June 16, 2022
Upcoming changes to Code of Service Discipline
Those changes - specifically the introduction of Summary Hearings - will markedly alter the ability of members of the Canadian Forces (CF) to defend their individual rights, interests, and privileges, when accused of disciplinary wrongdoing. Two of the hallmarks of Summary Hearings are: (1) there will be no right to elect trial by court martial; and, (2) there will be a reduced burden of proof (reduced from the criminal standard of 'beyond a reasonable doubt' to the civil standard of 'balance of probabilities').
These changes reflect anecdotal suggestions that the CF chain of command has, in the past, when faced with non-criminal misconduct by CF personnel, generally sought to lay charges whereby they would not be obliged to offer the accused the right (a statutory right) to elect trial by court martial. Moreover, in light of the track record of the CF chain of command in applying the civil burden of proof in administrative decision-making, observers can reasonably be apprehensive about whether those decision-makers fully understand the distinction between applying that burden of proof to evidence, and the separate obligation to interpret the law correctly, and act reasonably.
Over the past two weeks, I have offered some observations about some discrete issues concerning jurisdiction under the Code of Service Discipline, specifically regarding a CF member's right to elect trial by court martial. As of 20 June 2022, these specific legal issues will largely be moot. However, the ethical issues that have arisen in that context will continue to be relevant under the new regime introduced under Bill C-77, and may even be amplified.
Some Observations on ‘Military Justice’ at Summary Trial - Part I
Some Observations on ‘Military Justice’ at Summary Trial – Part II
Some Observations on ‘Military Justice’ at Summary Trial – Part III
Some Observations on ‘Military Justice’ at Summary Trial – Conclusion