This is a significant development in light of the shortcomings of the first volume.
There are shortcomings with the MJUL generally, and some of these shortcomings are inherent in the legislative structure of the MJUL and the principles upon which it is based. But those problems cannot be corrected by a revised policy manual.
What the policy manual can do - or, more accurately, what can be accomplished through an improved policy manual - is an improvement on the direction offered to the Officers Conducting Summary Hearings (OCSH) under this summary justice regime.
It is important to recall that, when various provisions under Bill C-77 finally came into force on 20 June 2022 (three years after it was enacted), significant changes were introduced to the Code of Service Discipline for the CF. One of the most significant of these changes was the bifurcation of the Code of Service Discipline into two distinct, and essentially unrelated, processes.
What was once referred to as the "Military Justice at the Summary Trial Level" is now described as the "Military Justice at the Unit Level" or MJUL. 'Summary trials', presided over by 'presiding officers' were replaced by 'summary hearings' adjudicated by OCSH. Again, the new, if awkward, terminology reflected changes to the process and, presumably, was intended to avoid confusion.
Although there are several similarities in the conduct of summary hearings and the summary trials that they replaced, there are noteworthy differences. First, the term "service tribunal" - which referred to both summary trials and courts martial - was excised from s 2 of the National Defence Act (NDA). This presumably reflected the fact that, unlike the relationship between summary trials and courts martial, both of which had jurisdiction over 'service offences' (although the jurisdiction of the former was much more limited than that of the latter), summary hearings are not used to adjudicate alleged 'service offences'.
Instead, summary hearings are used to adjudicate the newly created 'service infractions'. These are tried based upon a lower burden of proof: the 'civil' standard of proof on a balance of probabilities. Service infractions are characterized as non-penal infractions punished by 'sanctions' of a (purportedly) non-penal nature. Presumably, this then supports the lower burden of proof.
Perhaps the biggest change is that a person accused of a service infraction cannot elect to be tried by court martial. Summary hearings have exclusive jurisdiction over service infractions; courts martial have exclusive jurisdiction over service offences (which include offences created under any Act of Parliament, including the Criminal Code - less select offences such as murder, manslaughter, and child abduction, where they arise in Canada: see s 70 of the NDA).
In other words, gone is the 'safety valve' of an election for court martial, which would permit trial before an independent tribunal, rather than before an officer who is manifestly not independent and who lacks a military judge's knowledge of the law and impartiality.
Interestingly, the supposedly non-penal 'sanctions' used in the new MJUL are predominantly the same punishments that were available to summary trials and which remain available to courts martial. Granted, some nomenclature has changed: 'fines' have been replaced by "deprivation of pay and allowances", even though the amounts are essentially the same. In lieu of a fine of up to 60% of basic monthly pay, a CF member may be deprived of up to 18 days worth of pay and allowances. For the mathematically challenged, 18 days represents 60% of a 30-day month. And note that the 'deprivation' includes allowances, and not just pay, even if those allowances are intended to offset things Actually, now a CF member can be deprived of a percentage of monthly pay and allowances (even if the allowances exist to compensate the CF member for various service-related factors).
And many of the 'new' sanctions are identical in name and nature to existing 'penal' punishments for service offences. Instead of 'minor punishments', 'minor sanctions' can be imposed for service infractions. These include: confinement to ship/barracks (to a maximum of 14 days); extra work and drill (to a maximum of 14 days), and withholding of leave (which is essentially the same as "stoppage of leave"). Reduction in rank is the most severe sanction available. The same punishment exists for service offences, although the sanction is limited to a single rank level. [Then again, can anyone recall any offender ever being punished with 'reduction in rank' by more than one rank? No? Neither can I. And, for clarity, reduction from Sergeant to Corporal, or Master-Corporal to Private, is a reduction of one rank.]
Detention - for obvious reasons - is not available as a sanction. However, confinement to ship/barracks is clearly a sanction that infringes the liberty of the CF member subject to that sanction, and it is inevitable that this sanction will be challenged under s 7 of the Canadian Charter of Rights and Freedoms. It was never challenged under the summary trial process; however, that doesn't mean that it does not represent a deprivation of liberty.
[NB: The author of this Blog post has encountered circumstances in which a CF member, punished with the sanction of 'confinement to barracks', has challenged the constitutionality of that sanction within the legislated review process under Chapter 124 of the Queen's Regulations and Orders for the Canadian Forces (QR&O), arguing that it contravened s 7 of the Canadian Charter of Rights and Freedoms (Charter). In those circumstances, the review authorities quashed the sanctions, albeit with disingenuous reasons that sought to avoid the Charter issue.]
The punishment/sanction of reduction in rank presents an interesting issue. Under the now-defunct "Military Justice at the Summary Trial Level", if a presiding officer was contemplating using the punishment of reduction in rank, the presiding officer would have been obliged to offer the accused an election for court martial, even if the alleged service offence was one of the five service offences listed in (the now repealed) art 108.17 of the QR&O, for which an election for court martial was not obligatory if the presiding officer were to limit his/her powers of punishment. Now, however, a CF member found guilty of one or more service infractions could be subject to that sanction, without any right to a trial or hearing before a truly independent and impartial tribunal.
The now-defunct summary trial process was laid out in detail in Chapter 108 of the QR&O, and Chapter 107 of the QR&O established the process for laying charges and bringing allegations before the appropriate 'service tribunal'. The relevant QR&O provisions presented many statutory provisions drawn from the National Defence Act (NDA). While repetitious, this ensured that the CF personnel who laid charges, who referred charges, and who presided over summary trials, had a comprehensive source for the process that they employed.
When Bill C-77 was hastily implemented after a three-year delay, a decision was made to include in the QR&O only the regulatory provisions that must be enacted by regulation. Relevant provisions of the NDA were not repeated in the QR&O. Moreover, many provisions that were previously enacted in the QR&O for summary trials are now solely the product of policy, described in the MJUL Manual. A notable example of this change is the review process.
Reviews of summary trials were described in art 108.45 and Chapter 116 of the QR&O. In particular, art 108.45 of the QR&O offered a detailed, step-by-step description of the process. Those provisions have been repealed. Now, review of summary hearings is described at Chapter 124 of the QR&O. But that Chapter offers very little in the way of procedure. Most of the provisions describe substantive powers and functions. The process is described largely in policy in the MJUL Manual. Thus, what was once established in law, is now established by the discretion of the CF leadership.
In addition to some (marginal) improvements to the direction included in version 2.0 of the MJUL Manual, the new version of the Manual includes three amplifying Annexes.
Annex A describes the "Elements of Service Infractions". This was long overdue. For nearly 2 years there has been no public description of the elements of any of the new service infractions, leading to vague and ambiguous assertions in some summary hearings. However, the new descriptors are hardly earth-shattering. In many instances, the description simply breaks down the infractions into their constituent phrases or words, without much explanation or reliance on legal principles.
The initial general descriptions offered in this Annex indicate that service infractions do not include an element of fault - more commonly described as mens rea. In other words, the leadership of the CF assert that service infractions are, essentially, strict liability 'infractions':
A.1 General
A.1.1 The elements of service infractions do not generally include an element of fault. That is, fault elements such as purposely, knowingly, recklessly or negligently are not present in the listed elements of the infractions.173 In order to make a finding that a person committed a service infraction, there must be clear and convincing evidence which shows, on a balance of probabilities, that the person committed the service infraction. Further, it must also be determined that, on a balance of probabilities, the person charged did not take all reasonable care to avoid committing the act, or did not make an honest and reasonable mistake of fact.
However, the absence of any express basis for this assertion, such as relevant case law, or even well-articulated legal principles drawn from case law, is intriguing.
Again, the descriptions of the elements are not particularly illuminating. For example, the elements of the infraction at para 120.03(i) of the QR&O - “A person commits a service infraction who otherwise behaves in a manner that adversely affects the discipline, efficiency or morale of the Canadian Forces.” - an astoundingly broad and ambiguous infraction that is rapidly becoming the most commonly charged service infraction, are simply described as follows:
a. The identity of the person charged;
b. Date and place of the infraction;
c. The behaviour of the person;
d. The adverse effect on:
(1) discipline;
(2) efficiency; or
(3) morale
of the Canadian Forces.
The last of these factors 'benefits' from a further explanation in a footnote: "The element of adverse effect includes a direct adverse effect and may also include behaviour that would tend to or would likely result in an adverse effect. In deciding whether behavior would tend to or would likely result in an adverse effect, the OCSH may apply their experience and general service knowledge to make inferences."
This rather circular description does little to instill confidence that the OCSH won't simply find someone guilty because the accused did something that the OCSH did not like.
The new version of the MJUL Manual also encloses Annex B, encompassing direction regarding "Victims of Service Offences: Interactions with the Military Justice System", and Annex C, direction regarding "Persons Affected by a Service Infraction: Interactions with the Military Justice System". And, frankly, a great deal more effort appears to have been put into the direction in these Annexes compared to the direction in Annex A to ensure that those accused of service infractions receive a fair and reasonable hearing.
But, somehow, a fair and reasonable hearing doesn't seem to be the priority here. Rather, a process that would withstand occasional deferential review before the Federal Court - where the accused is willing and capable of funding such a review - is likely a more apt descriptor.
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