Canada’s Court Martial System

Most countries with effective armed forces use some kind of court martial or other military court system. These court martial / military court systems can vary significantly from one country to another, however they all tend to have one thing in common: they provide for trials of charges alleging that military personnel have committed offences.

In Canada, the military justice system has a two-tiered tribunal structure. The summary trial is the most common form of service tribunal, and allows for less serious offences to be tried at the unit level. The other, more formal, form of service tribunal is the court martial.

Courts martial are presided over by military judges and are designed to deal with more serious offences. They are conducted in accordance with rules and procedures similar to those of civilian criminal courts, and have many of the same rights, powers, and privileges as a superior criminal court.

The NDA provides for two types of court martial: General and Standing. These courts martial can be convened anywhere, including in austere and hostile environments, both in Canada and abroad, in times of peace and during armed conflicts.

A General Court Martial is composed of a military judge and a panel of five CAF members, who are selected randomly by the Court Martial Administrator. This panel serves a similar function to that of a jury in the civilian courts, as the trier of facts, while the military judge makes all legal rulings and imposes the sentence. Panels must reach unanimous decisions on any finding of guilt.

In a Standing Court Martial, the military judge presides alone, makes any of the required findings, and if the accused person is convicted, the judge imposes the sentence.

Decisions at a court martial may be appealed to the Court Martial Appeal Court (CMAC). The CMAC is composed of civilian judges, who are designated from the Federal Court of Canada, the Federal Court of Appeal, and superior courts of criminal jurisdiction of the provinces and territories. Decisions by the CMAC may be appealed to the Supreme Court of Canada under certain circumstances.

The History

The Canadian military justice system was essentially identical to the British military justice system until the end of World War II. In 1950, new Canadian legislation known as the National Defence Act (NDA) was enacted, which provided for a single Code of Service Discipline (CSD). The NDA also provided for trials by two different types of service tribunals: courts martial and summary trials.

Since the enactment of the Canadian Charter of Rights and Freedoms in 1982, the court martial system has evolved, and now offers more protections for the Charter rights of accused persons, particularly at courts martial. For instance, military judges who preside at courts martial have acquired more judicial independence; accused persons now generally have the right to choose between a Standing Court Martial (before a military judge who presides alone) or a General Court Martial (before a military judge and a panel of military members, who are like a jury in a civilian trial); and the responsibility for prosecutions has been given to an independent Director of Military Prosecutions (DMP). These and other changes to the court martial system have happened steadily and incrementally over the years, through legislative amendments by Parliament such as in Bill C-25 enacted in 1998, Bill C-60 enacted in 2008, Bill C-16 enacted in 2011, and Bill C-15 enacted in 2013.

Today, courts martial, like civilian criminal trials, involve professional and independent judges, prosecutors, and, unless an accused person does not want a lawyer, defence lawyers. Formal rules of evidence apply at these trials, while appeals from court martial decisions may be made to higher civilian courts.

However, courts martial are distinctly military: the judge is a legally-trained officer in the Canadian Armed Forces (CAF) who is appointed by the Governor in Council; the prosecutor is a uniformed legal officer who acts on behalf of the DMP; and the trial involves customary military formalities, such as saluting the military judge when he or she enters the court martial.

Courts martial only have jurisdiction over people who are substantially connected with the CAF. These people include members of the regular (full-time) force at all times, members of the reserve (part-time) force some of the time (i.e.: when acting in connection with the military), and, exceptionally, civilians when, for example, they accompany the CAF on an operation.

Courts martial have jurisdiction to deal with military personnel for any offence under the Code of Service Discipline, including uniquely military offences such as desertion and insubordination, and other underlying federal offences such as theft under the Criminal Code, and possession of a drug under the Controlled Drugs and Substances Act.

Purpose and Principles

The main purpose of a court martial system is to support the government’s ability to effectively employ its armed forces, whenever and wherever necessary.

In order for a government to achieve this purpose, a court martial system needs to incorporate the following 3 principles into its design and operation:

1. Contributes to Operational Effectiveness 

A court martial system must promote operational effectiveness within the armed forces, so that the government has the confidence it needs to be able to use the armed forces whenever and wherever necessary. The court martial system should help to make the armed forces better at conducting operations and contributing to the maintenance of discipline, efficiency, and morale.  This principle is very important to those inside of the armed forces, whose safety and mission success depends on its collective operational effectiveness.

2. Legitimacy 

A government will also want to ensure that its court martial system is legitimate. In order to be legitimate, a system must be lawful and comply with all relevant constitutional, statutory, and common laws; it must be proper and appropriate for its purpose, as seen from within and outside of the military force to which it applies; and, there must be a high degree of acceptance of the system.  

3. Efficiency

An efficient system is one that produces positive results without wasting resources. It is not enough for a court martial system to reinforce operational effectiveness, or to be legitimate, if the system incurs tremendous costs. Instead, a government will look for efficiency within its court martial system, so the benefits, in terms of reinforcing operational effectiveness or legitimacy, are produced at a reasonable and proportionate cost. 

Each of the above principles contributes to the overall success of a court martial system. 

Discussion of Principles

A change that affects any one principle will often have a different effect on the other principles.

For example, we can imagine a court martial system that is very efficient – because it quickly deals with offences at a low cost – but that is highly illegitimate because there is no regard for due process within the system, and because the system is considered unfair by both military personnel and the public.

We could also imagine a system that strongly reinforces operational effectiveness and that is very legitimate because it allows for full and fair trials within a matter of days, but that is really inefficient because it requires a lot of judges, prosecutors, and defence lawyers in order to make things happen this quickly.

Terminology

Court martial system: refers to any justice system that applies to military personnel, and can try military offences.

Military offences: refers to offences that involve more serious disciplinary misconduct, and all criminal misconduct, by military personnel. The term “military offence” is not intended to include minor disciplinary misconduct, which many military justice systems deal with through a summary trial system.

Military personnel: refers to people who are subject to military law. In most countries with military justice systems that are similar to Canada’s system, “military personnel” would include full-time members of the Regular component of the armed forces, and may also include:

  • members of the part-time (Reserve) component of the armed forces;
  • civilian personnel who are closely integrated into the armed forces on operations or active service;
  • members of foreign armed forces who are closely integrated into the armed forces on exchange or secondment; and
  • anyone engaged with the armed forces who agrees to be subject to military law.
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