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Does Canada’s military justice system need an update? | Tim Dunne

Wednesday, May 17, 2017 @ 3:20 PM | By Tim Dunne

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Tim Dunne %>
Tim Dunne
Judge Advocate General (JAG) Blaise Cathcart’s 7 May interview with The Lawyer’s Daily, “Canada’s outgoing judge advocate general fires back at critics” rejects any suggestion that the military justice system needs substantial reform. The National Defence Act (NDA), passed in 1950, established the military’s Code of Service Discipline (CSD) predicated on the philosophy that the military is best able to enforce its own justice system.

But not everyone agrees.

The Canadian practice of military law hangs its organizational hat on the 25-year-old Supreme Court of Canada  decision in R. v. Généreux, which stated that the military needs a “separate system of military tribunals ... to allow the Armed Forces to deal with matters that pertain directly to the discipline, efficiency and morale of the military,” through its own service tribunals to enforce breaches of military discipline expeditiously and more severely than civilians committing the same infractions outside military jurisdiction: R. v. Généreux [1992] 1 S.C.R. 259. Critics believe that the CSD has not remained current with contemporary Canadian values and point to a number of issues where military law falls beneath the bar for fairness and justice.

Sexual assault

Perhaps the result of the law of unintended consequences, but the NDA gives an undeserved escape clause to military personnel who commit sexual assault. Plea negotiations within the criminal jurisdiction may result in a reduced or suspended sentence, but the individual would be left with a criminal conviction. However, military members can be charged with sexual assault under NDA s. 130, (service trial of civilian offences), and concurrently with a lesser charge, normally “harassment,” under s. 129, (conduct to the prejudice of good order and discipline). The plea negotiation conducted by prosecution and defence counsel, both JAG officers, has resulted in the primary charge being stayed and the accused pleading guilty to the lesser charge. The accused escapes a criminal record and being listed on the National Sex Offender Registry merely by being charged under the National Defence Act and not the Criminal Code.

Canadian Victims Bill of Rights

The Canadian Victims Bill of Rights (CVBR) emphasizes that “crime has a harmful impact on victims and on society” and requires, in part, “that victims’ rights be considered throughout the criminal justice system;” to have her or his security considered; be protected from intimidation and retaliation; to present a victim impact statement; and to ask the court to consider a restitution order against the offender. But, the CVBR’s s. 18(3) has a surprising caveat: “This act does not apply in respect of offences that are service offences, as defined in subsection 2(1) of the National Defence Act, that are investigated or proceeded with under that act.”

Summary proceedings 

Previously known as “summary trials,” summary proceedings are conducted by the service person’s commander, commanding officer or designated officer for less serious offences of a purely military nature, such as absence without leave (late for work) and insubordination (arguing with the supervisor). Only a few days of lectures by a legal officer empowers a commanding officer to conduct a summary proceeding and sentence the accused to as much as 30 days in detention, or to lesser punishment such as reduction in rank, a fine or a reprimand. The commanding officer alone determines the disposition of the allegations and decides the punishment, as judge, jury, defence and prosecution.

Civilianizing military justice 

Nations are currently abandoning the peacetime use of traditional military justice and seeking recourse through criminal and civil jurisdictions.
  • Britain, in 1948, made its judge advocate general position a civilian judicial officer of the High Court;
  • Belgium, Germany, Austria, Sweden and France abolished military courts in peacetime;
  • The Czech Republic refers military disciplinary issues to the civil judiciary;
  • Finland conducts military prosecution by public prosecutors;
  • Japan’s military personnel are subject to ordinary criminal law.

Canada has an all-volunteer military whose women and men have assisted with domestic emergencies and international deployments that are among the most lethal situations from peace support missions in the former Yugoslavia to war in Afghanistan.

Don’t our military personnel deserve a justice system that leaves behind the archaic disciplinary practices of the past and reflects Canadian values of the 21st century?

Tim Dunne is a retired military public affairs officer with a career spanning 32 years of regular force service and five as a reservist. He has served with the United Nations Emergency Force in the Middle East, the U.N. Peace Force in the former Yugoslavia, and NATO peace forces in Bosnia Herzegovina, FYR Macedonia and Albania. From 2000 to 2004 he was the chief of media operations for NATO’s Southern European Command in Naples, Italy. In 2007, he was appointed Nova Scotia’s first military affairs adviser, a position he held for several years. He has received numerous awards and distinctions for his military service, including Bulgaria’s Order of Loyal Service. He is currently a Halifax-based defence and security analyst and writer.