Canada's flawed military justice system

On 26 September 2025, Minister of National Defence, the Hon. David McGuinty, introduced An Act to amend the National Defence Act and other Acts (aka: Military Justice System Modernization Act). The legislation was originally proposed as Bill C-66 but it died with the prorogation of Parliament in January 2025.

We are told that the measures are designed to modernize and enhance the military justice system to respond to key recommendations made in independent and external reviews conducted by former Supreme Court Justices Louise Arbour and Morris J. Fish.

The legislation is intended to reinforce “the Department of National Defence (DND) and the Canadian Armed Forces (CAF) continued commitment of a fair, transparent and trusted system of military justice.”

To be frank, fairness, transparency and trust have been absent from the military justice system for at least 40 years, and perhaps much longer.

In response to the Honourable Louise Arbour’s Independent External Comprehensive Review, the legislation “will remove the Canadian Armed Forces’ (CAF) jurisdiction to investigate and prosecute Criminal Code sexual offences committed in Canada” and provide exclusive jurisdiction to civilian authorities to investigate and prosecute such offences committed in Canada.”

Recommendations of the Third Independent Review of the Military Justice System, led by the Honourable Morris J. Fish, will have the Canadian Forces Provost Marshal, the Director of Military Prosecutions, and the Director of Defence Counsel Services, appointed by the Governor-in-Council. This will, we are told, insulate these offices “from real or perceived influence from the chain of command.”

While the Defence Counsel Services may benefit from this initiative, the Provost Marshal and the Military Prosecutions branches will doubtlessly need more leadership and ethical guidance to align them with contemporary Canadian values of “best police practices,” justice, jurisprudence and professional ethics.

The Defence department’s news release notes that “As the military justice system continues to serve the CAF [Canadian Armed Forces], efforts to enhance and modernize it are key to advancing meaningful and lasting institutional reform."

But if the past half century is any indication, these words may be as empty as the many promises of new equipment, vehicles and weapon systems that our military personnel have so often been promised.

The role of military justice should be both a disciplinary system and a source of legitimacy for the armed forces. While military justice ensures order and operational effectiveness, its ultimate strength lies in its credibility as a fair and lawful institution, a precondition for which the Canadian Armed Forces receives a failing grade.

Canadian military justice must, first, recognize the primacy of Canadian rights and freedoms. It must reflect the traditions and conventions of Canadian justice, and it must respond to all offences with equal effort and not simply cherry pick the matters which come into its purview. Its “centre of gravity” mandates that rigourous and uncompromising attention to fairness and equal treatment for all who are suspected of wrongdoing, and immediate rectification when military justice officials have erred.

Second, the system must constantly balance discipline with due process, reflecting both operational necessity and respect for rights, including the right to the presumption of innocence.

In the 16 September 2024 issue of Ottawa Life magazine, retired Colonel Brett Boudreau enumerated the charges and tribunals of ten general and flag officers – “one admiral, a just-retired general, six lieutenant-generals/vice-admirals, and two major generals” – investigated by the Military Police and acquitted. Their circumstances forced nearly all to ignominiously leave the military under a cloud of criminal suspicion.

What was the cost to their careers, their families and their mental health?

And military lawyers are no less blameworthy. The 20 May 2022 issue of the Halifax Chronicle Herald published the fifth of a series of six articles entitled “A Great Injustice.” It described a senior Canadian military lawyer in a secret letter branding a Canadian military officer as having “escaped formal disciplinary action.” The military police investigation of the officer could find no wrongdoing, but this did not stop the lawyer from denying the officer his right to the presumption of innocence.

Both the Military Police and the Judge Advocate General’s military prosecution office have failed. In the Canadian military jurisdiction, once accused the victim is stigmatized and remains beneath a lifelong cloud of criminality that will affect advancement, employment and reputation.

The psychological trauma of such careless and unprofessional constabulary and legalistic hijinks can result in a lifetime of bitterness and therapy.

The many failures of legitimacy of Canadian military justice undermine cohesion, morale, and trust by the rank and file. The system requires transparency in procedures, strengthening training in legal-ethical decision-making, and aligning military codes more closely with Canadian norms of justice.

These are areas of abysmal failure by military police investigators and the Judge Advocate General, and the willingness of the senior military staff to ignore these problems points to a profound failure in military leadership.