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Military Law

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. R v Stillman

In R v Stillman (Ont CA, 2019) the Supreme Court of Canada articulated a very useful history and summary of military law in Canada. This is essential reading for anyone interested in the issue:
B. Canada’s Military Justice System

(1) The Existence and Purpose of Canada’s Parallel System of Military Justice

[35] Canada’s military justice system has always been separate from the civilian justice system. “[D]eeply entrenched in our history” (Généreux, at p. 295), its purpose is to provide processes that will “assure the maintenance of discipline, efficiency and morale of the military” (Moriarity, at para. 46; see also Généreux, at p. 293).

[36] The military justice system is therefore designed to meet the unique needs of the military with respect to discipline, efficiency, and morale. As Lamer C.J. wrote in Généreux, “[t]o maintain the Armed Forces in a state of readiness, the military must be in a position to enforce internal discipline effectively and efficiently. Breaches of military discipline must be dealt with speedily and, frequently, punished more severely than would be the case if a civilian engaged in such conduct” (p. 293). Further, “[r]ecourse to the ordinary criminal courts would, as a general rule, be inadequate to serve the particular disciplinary needs of the military” (ibid.). And, while these purposes of the military justice system have remained consistent over the years, the complexion of the system itself has changed significantly over time in response to developments in law, military life, and society, more broadly.

(2) Early History

[37] Canadian military law traces its roots to the United Kingdom (see Office of the Judge Advocate General, Draft Internal Report — Court Martial Comprehensive Review, January 17, 2018 (online) (“CMCR Interim Report”), at p. 31, citing R. A. MacDonald, “The Trail of Discipline: The Historical Roots of Canadian Military Law” (1985), 1 JAG Journal 1, at pp. 6-7). “Shortly after Confederation, the Canadian Army was first organized under the Militia Act of 1868”, which served to incorporate the existing U.K. Army Act (see CMCR Interim Report, at p. 31, citing J. B. Fay, “Canadian Military Criminal Law: An Examination of Military Justice” (1975), 23 Chitty’s L.J. 120, at pp. 121-22). The Royal Canadian Navy and the Royal Canadian Air Force followed suit, drawing upon existing U.K. statutes for their respective disciplinary codes (ibid.).

[38] Until the NDA was enacted in 1950, control over military discipline was concentrated in the chain of command, consistent with the prevailing attitudes of the time that military discipline was the prerogative of commanders, and that “the soldier should learn to look to his officer alone for justice” (CMCR Interim Report, at p. 31, quoting C. Madsen, Another Kind of Justice: Canadian Military Law from Confederation to Somalia (1999), at p. 11). Charges that led to court martial (i.e., military court) proceedings originated within the forces, and the officers who formed part of the court martial that would try the case would decide the matter without necessarily having the assistance of a trained lawyer or judge (a “judge advocate”) instructing them on the law (see CMCR Interim Report, at p. 31, citing R. A. MacDonald, Canada’s Military Lawyers (2002), at pp. 6-9). Nor could the accused generally appeal the verdict of a court martial.

[39] Hence, at this early stage of the Canadian military justice system’s development, the system was largely a “command-centric disciplinary tool” (CMCR Interim Report, at p. 51). The need for commanders to have access to “an instrument for dealing with serious misconduct by their personnel that would swiftly and strongly promote discipline” was seen as paramount (ibid.), and “the focus of a court martial was placed far more on discipline than on what we would now call justice” (ibid., at p. 32).

(3) The National Defence Act of 1950

[40] After World War II, Canada sought to reform its military law (see CMCR Interim Report, at p. 32). The centrepiece of this reform effort was the National Defence Act, S.C. 1950, c. 43, which amalgamated several military statutes into a single piece of legislation, created a uniform Code of Service Discipline applicable to all three services (Army, Navy, and Air Force), and modernized many aspects of military justice (ibid., at p. 33).

[41] The NDA of 1950, ushered in a new era of military justice — it “represented a major evolution toward standards of justice that applied in civilian criminal courts in a number of ways” (ibid.). For example, it created a statutory right of appeal from findings and sentences of courts martial to the Court Martial Review Board, aligned many punishments and procedures more closely with civilian equivalents, and required a legally trained judge advocate to officiate at every General Court Martial hearing (ibid., citing W. J. Lawson, “Canadian Military Law” (1951), 9 Judge Advocate Journal 1, at pp. 7-11). At the same time, “many of the more command-centric features of the court martial system remained in place” (ibid., at p. 33). For example, military commanders continued to enjoy the authority to overrule decisions of courts martial, and military prosecutors lacked the broad discretion that is standard for civilian prosecutors (ibid., at p. 34).

(4) Charter-Era Reforms to the National Defence Act

[42] For almost half a century, the NDA remained largely unchanged (see CMCR Interim Report, at p. 34). Beginning in the early 1990s, however, important amendments and associated regulations were implemented in response to changing attitudes regarding due process, legal developments such as the Charter and subsequent decisions of the CMAC and this Court, and several detailed studies examining the military justice system (ibid., at pp. 34 and 52).

[43] As to regulatory reform, in 1990 the Governor-in-Council amended the Queen’s Regulations and Orders for the Canadian Forces, which are the main source of regulations governing the military, in an effort to strengthen the military justice system by providing more independence to key actors in that system (ibid., at pp. 34-35).

[44] Jurisprudential developments included the 1992 constitutional challenge in Généreux to parts of the pre-1990 regime. The appellant in that case argued that a General Court Martial under the pre-1990 regime was not “an independent and impartial tribunal” within the meaning of s. 11(d) of the Charter. Lamer C.J. confirmed that the military justice system, like its civilian counterpart, must comply with the Charter, although this does not require that the two systems be identical in every respect. He further held that the military justice system is not, by its very nature as a parallel system staffed by members of the military who are aware of and sensitive to military concerns, inconsistent with s. 11(d).

[45] That said, Lamer C.J. found shortcomings in the independence and impartiality of the General Court Martial as it existed under the pre-1990 regime. For example, there was no formal prohibition against evaluating officers on the basis of their performance at a General Court Martial for the purposes of setting salary. Further, he found it was unconstitutional for the authority that convenes the court martial (i.e., the executive) to be responsible for appointing both the prosecutor and the members of the court martial, who serve as the triers of fact. While acknowledging that “[t]he idea of a separate system of military tribunals obviously requires substantial relations between the military hierarchy and the military judicial system”, he added that “[i]t is important that military tribunals be as free as possible from the interference of the members of the military hierarchy, that is, the persons who are responsible for maintaining the discipline, efficiency and morale of the Armed Forces” (p. 308). The 1990 amendments, he made a point of adding, went “a considerable way towards addressing th[ese] concerns” (p. 287).

[46] Two detailed reports on the Canadian military justice system, both published in 1997, also contributed to significant reform. The first was a federal Commission of Inquiry report on serious misconduct by members of the Canadian Forces during a 1993 United Nations peacekeeping mission in Somalia (see Report of the Commission of Inquiry into the Deployment of Canadian Forces to Somalia, vol. 1, Dishonoured Legacy: The Lessons of the Somalia Affair (1997)). This report contained 45 recommendations for change within the military justice system.

[47] As the Commission was concluding its work, the Minister of National Defence created a Special Advisory Group on Military Justice and Military Police Investigation Services, chaired by the Right Honourable Brian Dickson. The resulting Report of the Special Advisory Group on Military Justice and Military Police Investigation Services (1997) (“Dickson Report”) confirmed the need for “a separate and distinct military justice system” (at p. 6) and made 35 recommendations aimed at improving this system. The recommendations included amending the NDA to enhance the degree of independence in military trials; eliminating certain forms of punishment; changing the composition of court martial panels (which we describe in greater detail below) to include non-commissioned members of a certain rank; and ensuring that the presiding judge, rather than the panel, passes sentence on a person convicted before a court martial.

[48] In response to Généreux and the reports outlined above, Parliament introduced Bill C-25, An Act to amend the National Defence Act and to make consequential amendments to other Acts, 1st Sess., 36th Parl., 1998 (assented to December 10, 1998). Bill C-25 brought about the “most extensive set of amendments” to the NDA since its inception (see CMCR Interim Report, at p. 37). As summarized in the CMCR Interim Report, the bill instituted the following reforms:

• It made numerous changes to the [Minister of National Defence’s] quasi-judicial roles and discretionary oversight powers. For instance, the power of review of court martial decisions, and the power to appoint military judges, shifted from Minister to the Governor in Council;

• It provided a statutory basis for independent military judges, in terms of tenure, remuneration, and removal only through an inquiry committee process;

• It shifted prosecution functions to a new independent Director of Military Prosecutions (DMP), away from the supervision of senior military authorities, in a way that is now in direct parallel with the federal civilian model;

• It created an independent Director of Defence Counsel Services (DDCS), who is responsible for the provision of legal counsel to those accused persons who face courts martial;

• It shifted responsibility for convening courts martial and appointing military panel members to an independent Court Martial Administrator (CMA) (a civilian who works under the supervision of the Chief Military Judge (CMJ)) out of the hands of senior military authorities;

• It shifted responsibility for the determination of sentence from the panel of military members to the military judge presiding at a court martial;

• It eliminated the death penalty and the hard labour component of the punishment of imprisonment; and,

• It eliminated the previous 3-year limitation period for service offences tried by courts martial.

(p. 38)

Stated succinctly, “Bill C-25 was important to the evolution of the court martial system because it established institutions and independence mechanisms within the system that substantially aligned it with Canada’s civilian criminal justice system, while preserving many of the historic aspects of a court martial, such as the involvement of a panel of military members as fact-finders” (ibid.).

[49] Bill C-25 also mandated periodic, independent reviews of the implementation of the bill. The first independent review was conducted in 2003 by the Right Honourable Antonio Lamer (see Department of National Defence, The First Independent Review by the Right Honourable Antonio Lamer P.C., C.C., C.D. of the provisions and operation of Bill C-25, An Act to amend the National Defence Act and to make consequential amendments to other Acts, as required under section 96 of Statutes of Canada 1998, c. 35 (2003) (“Lamer Report”)). In his opening remarks, the former Chief Justice stated: “I am pleased to report that as a result of the changes made by Bill C-25, Canada has developed a very sound and fair military justice framework”, though there remained room for improvement. He issued 88 recommendations for strengthening the military justice system. Two recommendations in particular are worth highlighting: military panels in a General Court Martial should arrive at their verdicts by unanimous vote (rather than by majority vote, which was the rule at the time); and the accused, rather than the Director of Military Prosecutions, should be given the right, at least in most cases, to elect trial by military judge alone or by military judge and panel. Five years later, in Trépanier, the CMAC found the inability of the accused to select the type of court martial, an issue identified in the Lamer Report, to be unconstitutional under ss. 7 and 11(d) of the Charter, as it interfered with the accused’s ability to make full answer and defence and to control the conduct of that defence.

[50] Trépanier was significant: as the court martial selection process had been declared unconstitutional, no court martial could be convened. This led Parliament to enact Bill C-60, An Act to amend the National Defence Act (court martial) and to make a consequential amendment to another Act, 2nd Sess., 39th Parl., 2008 (assented to June 18, 2008), more closely aligning the manner in which the mode of trial by courts martial is determined with the practice in the civilian criminal justice system (see Department of National Defence and the Canadian Armed Forces, Second Independent Review of the National Defence Act — Backgrounder, June 8, 2012 (online)). It also implemented recommendations of the Lamer Report, such as requiring court martial panels to make key decisions — verdicts of guilty or not guilty, of fitness to stand trial, and of not responsible on account of mental disorder — by unanimous (rather than majority) vote.

[51] The second independent review of Bill C-25 was submitted in 2011 by the Honourable Patrick J. LeSage (see Department of National Defence, Report of the Second Independent Review Authority to The Honourable Peter G. Mackay, Minister of National Defence, by The Honourable Patrick J. LeSage (2011) (“LeSage Report”)). Like the Lamer Report, the LeSage Report observed that “the military justice system, specifically the summary trial and court martial processes . . . is generally working well” (p. 13). Among its 55 recommendations was a call for a comprehensive review of the sentencing provisions of the NDA, with a view to making these provisions more closely mirror the flexible range of punishments in the civilian criminal justice system; that reserve force members be eligible to sit on court martial panels; that a random methodology for panel member selection be implemented; and that the laws of evidence applicable at courts martial be updated to keep pace with the evolution of the law of evidence more generally.

[52] While several independent reports have concluded that Canada’s military justice system is functioning well, that is not to say problems do not exist. In her 2015 External Review into Sexual Misconduct and Sexual Harassment in the Canadian Armed Forces, March 27, 2015 (online), the Honourable Marie Deschamps concluded that “there is an underlying sexualized culture in the [Canadian Armed Forces] that is hostile to women and LGTBQ members, and conducive to more serious incidents of sexual harassment and assault” (p. i). She issued ten recommendations aimed at responding to the “serious problem that exists in the [Canadian Armed Forces]” in relation to inappropriate sexual conduct (p. ix). Deep cultural change within the military will be required to respond to these recommendations, and efforts at bringing about that cultural change have begun.

[53] The military justice system has come a long way. It has evolved from a command-centric disciplinary model that provided weak procedural safeguards, to a parallel system of justice that largely mirrors the civilian criminal justice system. Many of the key recommendations contained in the various reports referred to above have been implemented by Parliament through amendments to the NDA and associated regulations over the last 30 years. The continuing evolution of this system is facilitated by the periodic independent reviews mandated by s. 273.601 of the NDA, ensuring the system is rigorously scrutinized, analyzed, and refined at regular intervals. This speaks to the dynamic nature of the military justice system. Just as the civilian criminal justice system grows and evolves in response to developments in law and society, so too does the military justice system. We see no reason to believe that this growth and evolution will not continue into the future.

[54] Against this historical backdrop, we turn to the military justice system as it exists today.

C. The CSD

[55] The foundation of Canada’s military justice system is the CSD, which is contained in Part III of the NDA. This detailed code is “an essential ingredient of service life” (MacKay, at p. 400) that “defines the standard of conduct to which military personnel and certain civilians are subject and provides for a set of military tribunals to discipline breaches of that standard” (Généreux, at p. 297). While it “is primarily concerned with maintaining discipline and integrity in the Canadian Armed Forces”, it “serves a public function as well by punishing specific conduct which threatens public order and welfare” (ibid., at p. 281). Several key aspects are worth noting.

(1) Persons Subject to the CSD

[56] Section 60 of the NDA lists the categories of persons who are subject to the CSD. The list includes officers and non-commissioned members of the regular or special forces, officers and non-commissioned members of the reserve force when the member is on active service, persons who accompany a unit of the Canadian forces while the unit is on service, and others.[3] While a range of persons are covered, they all share a link to the military.

(2) Service Offences

[57] Section 2 of the NDA defines a “service offence” as “an offence under this Act, the Criminal Code or any other Act of Parliament, committed by a person while subject to the Code of Service Discipline”. For purposes of these appeals, there are two key categories of offences in the NDA: (a) “uniquely military offences” under ss. 73-129; and (b) civil offences committed in Canada that are tried as a service offence under s. 130(1)(a).[4]

(a) “Uniquely Military Offences” Under Sections 73-129

[58] Sections 73-129 of the NDA create what may be called “uniquely military offences” (CMCR Interim Report, at p. 43). The types of conduct prohibited by these sections include spying for the enemy, mutiny, and insubordination. The maximum punishments for these offences range from dismissal with disgrace to life imprisonment.

(b) Ordinary Civil Offences Tried as Service Offences Under Section 130(1)(a)

[59] Section 130(1)(a) provides that “[a]n act or omission . . . that takes place in Canada and is punishable under Part VII [“Offences Triable by Civil Courts”], the Criminal Code or any other Act of Parliament . . . is an offence under this Division [“Service Offences and Punishments”] and every person convicted thereof is liable to suffer punishment as provided in subsection (2)”. Stated succinctly, s. 130(1)(a) transforms ordinary civil offences that take place in Canada into service offences,[5] thereby giving service tribunals concurrent jurisdiction over such offences when committed by a person who is subject to the CSD.

[60] This is hardly novel. This provision has appeared in the NDA since its enactment (see s. 119), and similar provisions transforming ordinary civil offences into offences under military law had long existed in the United Kingdom. The Army Act, 1881 (U.K.) 44 & 45 Vict., c. 58, provided that a “person who, whilst he is subject to military law, shall commit any of the offences in this section mentioned [“Offences punishable by ordinary Law”] shall be deemed to be guilty of an offence against military law” (s. 41). The Naval Discipline Act, 1866 (U.K.) 29 & 30 Vict., c. 109, included a provision to the same effect (s. 45).

D. Types of Proceedings in the Military Justice System

[61] As described in Department of National Defence, Military Justice at the Summary Trial Level, January 12, 2011 (online) (“Military Justice”), there are two types of proceedings in the military justice system: summary trials and court martial proceedings.

(1) Summary Trials

[62] A summary trial, which is the predominant form of proceedings for less serious offences, permits as a general rule a service offence to be tried at the unit level by a commanding officer, delegate of a commanding officer, or superior commander. There is no requirement that the presiding officer be legally trained. The procedures are straightforward and the powers of punishment limited in scope.

(2) Court Martial Proceedings

[63] A court martial is a formal military court presided over by a legally qualified military judge. Accused persons who appear before a court martial are entitled to a lawyer free of charge, and the procedures followed are similar to those followed by civilian criminal courts. The available forms of punishment are more severe than those available on a summary trial.

[64] There are two types of courts martial:

• Standing Courts Martial “are presided over by a military judge sitting alone” (Military Justice, at. p. 3-3). The judge issues a verdict and, if the accused is found guilty, imposes a sentence.

• General Courts Martial consist of a military judge and a panel of five members of the military. “The panel is responsible for making a finding on the charges” and the judge “is responsible for making legal rulings and imposing [a] sentence” (ibid.). A person accused of an indictable offence under s. 130(1)(a) has the right to elect a trial before a General Court Martial (see NDA, s. 165.193(1)).

[65] The General Courts Martial merit particular attention here, given that while the military justice system has never provided for a trial by jury, it has long provided for a trial before a judge and a military panel. Such panels have existed in the United Kingdom for well over a century (see Army Act, s. 48(3)). In Canada, the NDA has provided for military panels since its enactment in 1950 (see s. 140(1)), although, as we shall explain, their role and composition have changed over time.

[66] The role of a military panel is unique, bringing to bear upon the proceedings the military-specific concerns for discipline, efficiency, and morale. As Lamer C.J. observed in Généreux, it “represents to an extent the concerns of those persons who are responsible for the discipline and morale of the military” (p. 295). Similarly, as noted in the Dickson Report, panel members “bring military experience and integrity to the military judicial process. They also provide the input of the military community responsible for discipline and military efficiency” (p. 55).

[67] In some respects, a military panel is analogous to a jury, and over the years they have become more and more so. Like a jury, the panel is the trier of fact, while the judge makes rulings on legal questions (see NDA, ss. 191 and 192(1)). Furthermore, as already mentioned, while panels used to reach their verdicts based on a majority vote, they are now required to reach their verdicts unanimously. And as in the civilian criminal justice system, it is now the judge who is tasked with imposing a sentence in the event of a guilty verdict, a role which before 2010 was entrusted to the panel.

[68] That said, a military panel is not a jury (see Trépanier, at para. 73, citing R. v. Lunn (1993), 5 C.M.A.R. 157; R. v. Brown (1995), 5 C.M.A.R. 280; and R. v. Nystrom, 2005 CMAC 7 (CanLII)). Important differences distinguish one from the other. For example, while a jury consists of 12 individuals, a panel consists of only five, thereby lowering the threshold for a finding of guilt. And, while jurors are drawn from the community at large, panel members are drawn from the military community only. Thus, the community embodied by a panel is a particular one. Further, and while juries are not designed to reflect any sort of hierarchy between the accused and the jurors, the composition of panels varies with the rank of the accused, and the system is designed to include a certain number of the accused’s superiors (see NDA, ss. 167-68). In this way, panel members are not all “peers” of the accused in the sense of being of equal rank. Finally, panel members are broadly permitted to take judicial notice of “all matters of general service knowledge” (see Military Rules of Evidence, C.R.C., c. 1049, s. 16(2)(a); see also Trépanier, at para. 73, citing Lunn), whereas jurors enjoy no such broad authorization.

[69] The composition of military panels has changed over time. At one point, only officers could sit on a panel (see Dickson Report, at p. 56). However, in 1997, the Dickson Report recommended that non-commissioned members of a certain rank be permitted to serve on military panels, as they “could bring an important dimension to court martial panels and reflect better the spectrum of individuals responsible for the maintenance of discipline, efficiency and morale” (ibid.). This prompted amendments to the NDA, and today a panel that tries a non-commissioned member includes three non-commissioned members who are of or above both the rank of the accused person and the rank of sergeant (see NDA, s. 167(7)). Further, Parliament has expanded the pool of members eligible to sit on court martial panels and has reduced the required rank of the most senior member of panels (see Bill C-15, An Act to amend the National Defence Act and to make consequential amendments to other Acts, 1st Sess., 41st Parl., 2013).

[70] There are sound reasons why the military justice system has opted for a unique military panel model, rather than a jury model. For example, the concept of “members tried by members” fosters morale within the military. As Professor J. Walker points out, this is so even where the underlying offence is an ordinary civil offence contained in the Criminal Code:
Esprit de corps depends on the confidence that one’s conduct, alleged to have violated the Code of Service Discipline (even in the commission of an offence also found in the Criminal Code) will be assessed by those whose familiarity with the challenges and circumstances of military life is the product of personal experience and whose sensitivity to the requirements of the Code is derived from an ongoing commitment to uphold it.

(“A Farewell Salute to the Military Nexus Doctrine” (1993), 2 N.J.C.L. 366, at p. 372)
[71] Moreover, where a person subject to the CSD commits an act or omission outside Canada that would, if it had taken place in Canada, constitute an offence under Part VII of the NDA, the Criminal Code, or any other federal statute, Canadian service tribunals have jurisdiction to try that offence as a service offence under s. 130(1)(b) of the NDA. Further, pursuant to s. 68 of the NDA, the trial may be held outside Canada. In these circumstances, it would be highly impractical — if not impossible — to cobble together a jury of Canadian civilians and transport them to the place of trial. The military justice system has thus developed an alternative, portable, and efficient solution that can be implemented whenever and wherever needed. This in turn contributes to discipline, efficiency, and morale in the military. While ss. 68 and 130(1)(b) are not before this Court, the fact that Canada’s military justice system operates extraterritorially, and that service tribunals may have to be convened on short notice in a different part of the world, help to explain why it has opted for a unique military panel model rather than a jury model.



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