Independence in the Military Justice System

Fact Sheet / October 25, 2013 / Project number: FS 13.005

  • Within the Canadian military justice system, independence is afforded to the Director of Military Prosecutions, military judges, the Court Martial Administrator, and the Director of Defence Counsel Services to ensure that accused persons who are tried by court martial receive a fair trial as guaranteed by the Canadian Charter of Rights and Freedoms.   
  • The Director of Military Prosecutions is responsible for reviewing all charges preferred to him with a recommendation that they be tried by court martial, determining which charges are to be tried, and for the conduct of all prosecutions at courts martial. The Director of Military Prosecutions is appointed by the Minister of National Defence and holds office during good behaviour for a term not exceeding four years, but may be re-appointed for subsequent terms. He/She is assisted in duties and functions by military prosecutors. In the performance of their duties, military prosecutors are guided by a number of publicly available Policy Directives issued by Director of Military Prosecutions. A person may be tried by court martial only if a military prosecutor prefers charges by referring them to the Court Martial Administrator.
  • The Director of Military Prosecutions acts independently from the Office of the Judge Advocate General and other Canadian Armed Forces (CAF) and Department of National Defence (DND) authorities when exercising his powers, duties and functions, but remains under the general supervision of the Judge Advocate General, who may issue written general instructions or guidelines regarding prosecutions. Consistent with his/her statutory role as superintendent of the military justice system, the Judge Advocate General may also issue instructions or guidelines regarding a particular prosecution, which must be made available to the public unless the Director of Military Prosecutions considers that it would not be in the best interest of the administration of military justice to do so. The National Defence Act specifies how these instructions and guidelines are made available to the public.  
  • Courts martial are presided over by military judges, who are appointed by the Governor in Council. The Governor in Council may designate a military judge to be the Chief Military Judge. The Chief Military Judge assigns military judges to preside at courts martial. The Chief Military Judge is the Commanding Officer of the Office of the Chief Military Judge, an independent CAF unit, and has the powers of an officer commanding a command.
  • The Office of the Chief Military Judge includes the Court Martial Administrator. Appointed by the Chief Military Judge, the Court Martial Administrator’s duties are prescribed in the National Defence Act and include convening courts martial and selecting panel members for General Courts Martial.  
  • Once appointed, military judges may remain in office up to age 60. Military judges may only be removed by the Governor in Council upon the recommendation of an independent Military Judges Inquiry Committee. This committee is composed of three judges of the Court Martial Appeal Court appointed by the Chief Justice of that Court.
  • Accused persons tried by court martial are entitled to legal representation by Defence Counsel Services at public expense. Defence Counsel Services is headed by the Director of Defence Counsel Services. The Director of Defence Counsel Services provides, supervises and directs the provision of legal services to persons who are liable to be charged, dealt with and tried under the Code of Service Discipline.
  • Although the Director of Defence Counsel Services acts under the general supervision of the Judge Advocate General, he/she is independent of the Office of the Judge Advocate General, and other CAF and DND authorities, when carrying out prescribed duties and functions that pertain to the defence of clients at many stages of the investigative and judicial processes. The Judge Advocate General may issue written general instructions or guidelines in respect of defence counsel services. The Director of Defence Counsel Services is required to make the general instructions or guidelines available to the public. However, unlike with the Director of Military Prosecutions, the Judge Advocate General has no authority to issue instructions or guidelines in respect of a particular defence case.

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