The new Millennium started with a bang for the Canadian Armed Forces.
Absent from war since the 1950s Korean War, Canadian military involvement in the Persian Gulf and Afghanistan mobilized thousands of soldiers.
Where there are Canadian soldiers, the Canadian military justice system reigns.
And although military justice has evolved substantially since the advent of the Charter of Rights and Freedoms, several features of military justice are still decried.
Oh, Canada!
Borrowing from British Statutes for the first 83 years of Confederation, the Parliament of Canada has always provided for a unique system of law for military personnel.
The Canadian National Defence Act, passed in 1950, included, at Part III, a Code of Service Discipline (CSD). Some sections of the Code give rise to concerns that military personnel still do not receive full benefit of the Charter. The most striking example was the presence of the death penalty in the CSD right up to 2000.
Also:
- Disciplinary charges may be laid by an officer for as petty a military infraction as having shoe laces untied, by virtue of s. 129 of the code ("any act or neglect to the prejudice of good order or discipline");
- The Code provides for a summary trial, i.e. a trial where a soldier may be summarily tried directly by the soldier's commanding officer;
- The hearings are often secret and held in camera; and
- The code applies to spouses, dependants and other civilians accompanying members of the forces while on overseas postings, rendering them liable to trial by court-martial.
Conflict
Conflict between equality rights as guaranteed under the Charter, and military procedures based on a formal system of hierarchy, was inevitable. The military's pre-Charter resolve was aptly summed up by a 1980 internal Task Force report that concluded that:
"The Canadian Forces are steadily turning to civilian values. If this trend continues, the continued weakening of the military profession is predictable."
According to a Dalhousie Law Journal article, the Department of National Defence attempted to obtain a general exemption from the Charter as it was being finalized. The department secured but one specific exemption, dealing with the right to trial by jury.
The absence of a right to trial by jury continues to represent the most serious void in military justice.
Military experts will remind you that soldiers are trained for situations of war, where lack of discipline can seriously undermine combat effectiveness. They emphasize that in most instances, while a civilian can walk away from his or her job, if a soldier quits in the middle of combat the desertion could jeopardize the safety of the entire unit, if not the country.
You can't fit a law made to apply in the safe, comfortable confines of downtown Ottawa, to the bomb-laden streets of Kabul.
And, like a broken record, you can hardly find a document from National Defence on the subject of military justice that does not start off with this refrain of Supreme Court Chief Justice, Antonio Lamer in 1992 (R v Généreux):
"The purpose of a separate system of military tribunals is to allow the Armed Forces to deal with matters that pertain directly to the discipline, efficiency and morale of the military. 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. As a result, the military has its own Code of Service Discipline to allow it to meet its particular disciplinary needs. In addition, special service tribunals, rather than the ordinary courts, have been given jurisdiction to punish breaches of the Code. Recourse to the ordinary criminal courts would, as a general rule, be inadequate to serve the particular disciplinary needs of the military. There is thus a need for separate tribunals to enforce special disciplinary standards in the military."
Nonetheless, to comply with the Charter, the Military has revised a substantial number of provisions in the Code and its companion document, Queen's Regulations and Orders.
But, to be frank, the Military loves paper more than acronyms and as any good insurance or medical malpractice defence counsel knows, the front line should always be a forest of paper. One has to see the size and contrived content of rules and regulations to believe it.
As of February, 1987, for example, women were no longer excluded from combat roles.
In November 1990, the Court Martial Appeal Court ruled that standing courts martial were not "independent and impartial tribunals" as required under s. 11(d) of the Charter. Three months later, rather than direct an appeal to the Supreme Court of Canada, the federal cabinet moved to isolate court martial judges from the administrative control of the Department of National Defence. They can no longer be removed from office at any time by senior military officials, nor are they subject to DND personnel' evaluations during their tenure as judge. Another Charter-review was conducted with further changes in 2000.
But other elements of military justice continue to draw criticism from legal experts, the summary trial procedure in particular. Under the statutory authority of the National Defence Act, military officers preside over 4,000 summary trials a year, for both military disciplinary infractions or minor criminal offences such as assault or theft. National Defence statistics suggests that over 90% of its criminal cases are resolved by way of summary trial, the remainder being resolved by the more formal court martial process.
By the centre! Quick march!
One member of the armed forces agreed to provide a detailed description of his experience with the summary trial process.
Master Corporal Smith fought with another soldier while on overseas duty. After his commanding officer decided to lay charges, Smith was assigned an Assisting Officer, as prescribed by military regulations, to assist him through the court martial. The Assisting Officer asked Smith whether he needed legal counsel, adding:
"But it would be a pain in the ass for the army because we're on manoeuvres, and it'll show you want to fight the charges."
Defiance not being a good career move in the military, Smith elected summary trial and was then summoned to meet with his commanding officer, a Company Sergeant Major.
Arriving at the officer's lobby on the trial date, two escorts were waiting for Smith. He was rudely snapped to attention and was ordered to remove his beret - a humiliating experience for a soldier - and then aggressively ordered to march into the officer's office "By the centre! Quick march!"; a fast cadence and generally used for training recruits.
He obeyed and continued to march in place for about 15 seconds until ordered to halt, turn, and face the officer. The charge was read and Smith was asked "What do you have to say for yourself?"
Remembering the Assisting Officer's advice, Smith barked out: "The charge is accurate, Sir!"
While remaining silent and rigid, Smith was sentenced to a $200 fine and confined to the base for 15 days.
The entire "trial" had lasted less than five minutes.
When given a copy of the trial description, legal officers at National Defence vehemently denounced it. One retired military officer admitted that while the process was intimidating, "99 per cent of the soldiers that go through summary trials have no complaints with the treatment they receive."
Andrew Heard, a Dalhousie University professor, is the author of a 1988 law journal article on military law and the Charter. While applauding the advances the military has made in complying with the Charter, he adds:
"The main concern now is the summary trial system. Criminal Code offences can be tried by middle-rank officers, of people under their control and command. That calls into question the impartiality of the presiding officer. In addition, these officers are career military officers with no legal training. What happens if an accused raises complex legal questions?"
From the military's point of view, hierarchy and strict discipline are still the most effective ways to minimize casualties of war. However, it is peculiar that the very protector of Canadian democracy should fall short of total compliance with the most important instrument of that democracy: the Charter of Rights and Freedoms.
REFERENCES:
- Court Martial Appeal Court of Canada
- Duhaime, Lloyd, Charter of Rights and Freedoms
- Ho, R., "A World That Has Walls: A Charter Analysis of Military Tribunals", University of Toronto Faculty of Law Review, Volume 66, No. 2, Spring 2008
- Madden, M., Sui Not-So-Generous: The Unconstitutionality of Canadian Court Martial Jury Trials, (April 14, 2009), published in Appeal: Review of Current Law and Law Reform, Vol. 14, pp. 24-36.
- Office of the Chief Military Judge
- National Defence Act, Revised Statutes of Canada 1985, Chapter N-5
- R v Généreux (1992) 1 SCR 259