The men and women of the Canadian Armed Forces have an important role in our country, by protecting and promoting the values of Canada, at home and abroad. The Canadian Armed Forces rank structure can be observed to some extent as a form of government. Higher ranks make decisions that affect the lower ranking members of the military. For the military’s rank structure to function properly and efficiently, it is necessary that the Canadian Armed Forces requires its own independent justice system to ensure the obedience of enlisted members of the military. The principles in which the government considered to be fundamental to the proper functioning of the Armed Forces were established in the National Defence Act.

 

            As with the Civil Justice System, the Military Justice System has its own codes, regulations, and legislations. The members of the Canadian Armed forces are subject to all ordinary laws in the civil justice system that apply to all citizens, however by joining the Canadian Armed Forces the subject themselves to further liabilities and responsibilities under the Canadian military justice system. Parliament established its first codification of military law regulating matters of national defence in 1868 with the Militia Act, as well as ensuring political control over its forces. Later during the 1940’s the Naval Services Act and the Royal Canadian Air Force Act were enacted. After the Second World War, Parliament re-examined all legislation dealing with matters of the Canadian armed forces, in 1950 as a result Parliament passed the National Defence Act, which today is still the governing statue of the Canadian Armed Forces.

 

            The National Defence act contains seven parts, and deals with all matters containing to the Canadian Armed Forces. It sets out the organization of the Department of National Defence, the Canadian Forcers and the Canadian military justice system, and the creation of the Queen’s Regulations and Orders (QR&R) and the Code of Service Discipline (CSD)[1]. The Queen’s Regulations and Orders, covers disciplinary matters, and stipulates the jurisdiction, organization, and the procedures of the Canadian military justice system.  The Code of Service Discipline is seen as the foundation of the Canadian military justice system. It specifies disciplinary jurisdiction and describes service offences­­[2], punishment, and the procedures and organization of court marshals and appeals. It applies to all members of the Canadian Armed Forces and comes into affect when enrolled into the military. The Code of Service Discipline can also apply to citizens under certain circumstances, such as accompanying a Canadian Forces unit on service. Although the Canadian military justice system is able to charge and prosecute members for many charges there are certain offences which the military justice system does not have authority over to try members in Canada charged with these offences. These offences include murder, manslaughter, or any offence under sections 280, 282, and 283 of the Criminal Code of Canada.

 

However, courts martial have the ability to try these offences when they are committed outside of Canada. Canadian Forces members are subject to civil laws, as well as service offences stated in the Code of Service Discipline, and under Section 132 of the National Defence Act, Canadian Forces members are can also be subjected to all laws of a foreign country in which members are serving.

 

            The Canadian forces separate justice system required separate forms and methods of enforcement. The Code of Service Discipline set forth many offences that were distinct to Canadian Armed forces, and accompanying persons, to enforce the Code of Service Discipline the armed forces established a separate police force, known as the Canadian Military Police. The Canadian Military Police are appointed authority under the National Defence Act, as well they have been appointed as “Peace Officers” under the Criminal Code of Canada[3] . The military police have jurisdiction to arrest all persons who are subject to the Code of Service Discipline both inside and outside Canada, including civilians who accompany the Canadian Forces outside Canada. Members of the military police may arrest without a warrant any person subject to the Code of Service Discipline, regardless of the person’s rank or status, when that person has committed a service offence, or is found committing a service offence. When detaining an offender a Military Police officer must inform them of their rights under the Canadian Charter of Rights and Freedoms, and the Queen’s Regulations and Orders. This includes such information as: the right to retain and instruct legal counsel without delay[4]; the reason of the arrest[5]; and that they have the right not to speak.

 

The Code of Service Discipline also established the ability for all Commissioned Officers, and Non-Commissioned Officers of the armed forces to detain or arrest any other member committing a service, as long as the arresting member is above or equal to the rank of the offender. This was established to ensure obedience of subordinates, while in the “field” and abroad.

 

            The military justice system has a two level court structure, which includes the summary trial system and the more formal court martial system. Most offences are dealt within the summary trial system. The main purposes of the summary trial are to provide fast, fair justice in regarding minor service offences and to contribute to the maintenance of military discipline. A summary trial may take place wherever the unit is situated; in an exercise area or deployed on overseas. A summary trial allows for a case to be tried and disposed of within the unit, however the presiding officer must be trained and certified in the administration of the code of service discipline. The summary trial system is the principal form of trying offences not all offences can be dealt with by the system, the Queen’s Regulations and Orders establishes which offences[6] may be tried by a summary trial. For offences that are unable to be tried through the summary trial system they must go through the more formal trial structure of a Court Martial.  In the Canadian military justice system there are four types of courts martial; the General Court Martial; the Disciplinary Court Martial; the Standing Court Martial; and the Special General Court Martial. The four types allow for flexibility for the most appropriate court martial. When selecting the type of court martial some factors are considered, these include; the status of the accused, the charge and possible punishment, and where the trial may be situated. All courts martial have two things in common and that is they are all presided over by a military judge and they administer the Code of Service Discipline.

 

            The General Court Martial has the ability to try and prosecute any person, including a civilian, that has been charged of committing a service offence. The General Court Martial must consist of a military judge and a panel of five officers, and the senior member of the General Court Martial must be an officer of or above the rank of Colonel.[7] The panel of a General Court Martial is similar to that of a jury.

 

            The Disciplinary Court Martial is similar to that of a General Court martial, that it is composed of a military judge, and a panel. However the panel is composed of three members and the senior member must an officer of or above the rank of the accused. A Disciplinary Court Martial can only try an officer of or below the rank of major including non-commissioned members[8]. The National Defence Act limits the power of the Disciplinary Court Martial by not allowing the presiding judge to pass down a punishment higher than dismissal with disgrace from Her Majesty’s service. As with Canadian criminal system, the panel makes findings of fact while the judge determines the accused sentence.

 

            The Standing Court Martial has the ability to try any officer or non-commissioned member, the Standing Court Martial consists of a military judge. The Standing Court Martial retains all the power of the General Court Martial and the Discipline Court Martial, but allows a faster trial with less formality. A Standing Court Martial is unable to pass down any sentence that exceeds dismissal with disgrace of Her Majesty’s service. During a Standing Court Martial the judge sits alone, to make findings of the fact, and pass down a sentence to the accused.

 

            The Special General Court Martial is only able to try a person who has been charged with committing a service offence who is not an officer or a non-commissioned member, Special General Court Martial are designed to try civilians who have been subjected to the Code of Service Discipline. A Special General Court Martial is much like a Standing Court Martial in that it only consists of a military judge presiding over the case that makes findings on fact and passes down a sentence. A Special General Court Martial is limited to pass down a sentence of punishment in imprisonment or fine, and is only able to undergo a sentence of imprisonment in a service prison, or detention barracks.       

 

The Code of Service Discipline[9] sets forth a number of offences that are exclusively military in nature. The Code of Service Discipline also incorporates all offences under the Criminal Code, all other federal statutes and, and also indicates that members of the Canadian Forces are also subject to foreign laws.  As well as establishing service offences, it also outlines the punishments in which the offenders may be sentenced. There are many service offences that are outlined in the Code of Service Discipline which range from minor offences such as drunkenness, and stealing, to major offences such as Mutiny, Spies for the Enemy, Traitorous or disloyal utterances. Accompanying each service offence is a maximum punishment, which in most cases involves imprisonment for two years .

 

If a member of the Canadian Armed forces is found guilty, the presiding judge must use their discretion to pass down a punishment on the guilty member. In selection of a proper punishment the Judge Advocate[10] is supplied with the maximum punishment set out with the offence, as well the National Defence Act[11] also establishes a scale of punishments for service offences. The punishments are listed from the most severe punishment to the more lenient punishments, and include: Imprisonment for life; imprisonment for two or more years; dismissal with disgrace from Her Majesty’s service; imprisonment for less than two years; dismissal from Her Majesty’s service; detention; reduction in rank; forfeiture of seniority;  fines, and other minor punishments. Terms of imprisonment of two years or less are served at the Canadian Forces Service Prison in Edmonton, Alberta. Members of the Armed forces sentenced to imprisonment of more then two years will also serve the first two years at this facility.

 

The need for a separate and exclusive military justice system that has the ability to work in times of peace and conflict in Canada and abroad, or wherever the Canadian Forces may be deployed is essential to the operation and effectiveness of the Canadian armed forces. The Canadian Forces operate a separate Justice system to promote good order and a strict disciplinary standard within the forces. This is because the Canadian Forces demand expected and predictable behaviour from its members. Members of the Canadian armed forces bestowed with the responsibility to protect and promote the values of Canada. “…The safety and well-being of Canadians depends considerably on the willingness and readiness of a force of men and women to defend against threats to the nation’s security. To 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…”.[12]

 

The existence of a separate military justice system has been challenged many times, as with the 1992 case of R v. Généreux[13]. On September 20, 1988, Généreux was charged with a violation of the Code of Service Discipline. Specifically, he was charged with three counts of possession of narcotics for the purpose of trafficking against s. 4 of the Narcotics Control Act and punishable under s. 120(1) of the National Defence Act. As well, he was also charged with desertion s. 78(1) of the National Defence Act. To try Généreux a General court martial was established, Généreux requested that the General court martial not proceed, because it he believed it violated s. 11(d) of the Charter as it was not an independent and impartial tribunal. The general court martial dismissed Généreux claim and proceeded with the court martial. Généreux then appealed this decision to the Court martial appeal court, where again his claims were dismissed, subsequently, he appealed this decision to the Supreme Court of Canada. The Supreme Court affirmed that the Canadian Charter of Rights and freedoms permits the existence of a separate military justice system, but also established that the charter allows the separate system in order to allow the Canadian Forces to deal with matters of discipline, efficiency and morale of the armed forces.

Bibliography

Madsen, Chris. Another Kind of Justice : Canadian Military Law from Confederation to Somalia. UBC Press

 

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http://www.dnd.ca/jag/military_justice/can_mil_just_syst/legal_basis/default_e.asp

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http://www.forces.gc.ca/jag/military_justice/cmps/default_e.asp

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http://www.dnd.ca/jag/military_justice/can_mil_just_syst/default_e.asp

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http://laws.justice.gc.ca/en/N-5/index.html

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http://www.dnd.ca/jag/training/publications/code_of_conduct/Code_of_Conduct_e.pdf

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http://laws.justice.gc.ca/en/N-5/83431.html

R v. Généreux, [1992] 1 S.C.R. 259 at 293  

http://www.lexum.umontreal.ca/csc-scc/en/pub/1992/vol1/html/1992scr1_0259.html