Canadian Military Justice System - Legal Basis :::  

• The Purpose of a Separate Military Justice System
• The Constitutional and Legislative Framework
• The Code of Service Discipline
• Jurisdiction
• Service Offence

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The Purpose of a Separate Military Justice System

In 1982, the Canadian Charter of Rights and Freedoms (Charter) expressly recognized the existence of a separate yet parallel system of military justice within the Canadian legal system. Subsection 11(f) of the Charter states that any person charged with an offence has the right … “except in the case of an offence under military law tried before a military tribunal, to the benefit of trial by jury where the maximum punishment for the offence is imprisonment for five years or a more severe punishment”.

The Supreme Court of Canada has directly addressed the existence of a separate, distinct military justice system twice. On both occasions, the court has upheld the requirement for a separate justice system for the Canadian Forces (CF). In

R v. Généreux, [1992] 1 S.C.R. 259 at 293, the Supreme Court of Canada clearly set out the rationale for a military justice system distinct from the civilian criminal justice system:

“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 ordinary courts, have been given jurisdiction to punish breaches of the Code of Service Discipline. 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.”

 

The Constitutional and Legislative Framework of the Canadian Military Justice System

Using its constitutional authority, the Parliament of Canada enacted the National Defence Act (NDA), which, among its provisions, sets out the organization of the Department of National Defence (DND), the CF and the Canadian military justice system (including the establishment of courts martial and the court martial appeal court), and authorizes the Chief of the Defence Staff (CDS) to issue orders and instructions to give effect to the decisions and the directions of the Government of Canada and the Minister of National Defence. The NDA authorizes the Governor in Council and the Minister of National Defence to make regulations for the organization, training, discipline, efficiency, administration and good government of the CF and, generally, for carrying the purposes and provisions of the NDA into effect. The NDA authorizes the creation of the Queen’s Regulations and Orders (QR&O), Canadian Forces Administration Orders (CFAO), and the Defence Administrative Orders and Directives (DAOD).

Volume II of QR&O, which covers disciplinary matters, prescribes in greater detail the jurisdiction, organization and procedures of the Canadian military justice system. Orders and instructions dealing with disciplinary matters may be issued at any level of the chain of command. All members of the CF have a duty to be familiar with the orders and instructions issued by their chain of command. Failure to comply with such orders and instructions can lead to charges under the Code of Service Discipline (Part III of the NDA), which are subsequently disposed of before service tribunals.

Notwithstanding Parliament’s authority to create and administer a separate but parallel military justice system, the federal government is not immune from complying with other constitutional laws, including the protections afforded by the Charter. As Canadian citizens, CF members are entitled to enjoy all the rights and freedoms guaranteed by the Charter.

 

The Code of Service Discipline

Comprising approximately 50 percent of the NDA, the Code of Service Discipline is the foundation of the Canadian military justice system. It sets out disciplinary jurisdiction and describes service offences, punishments, powers of arrest, and the organization and procedures for service tribunals, appeals, and post-trial review

 

Jurisdiction

The Code of Service Discipline applies to regular force CF members at all times and to members of the reserve force in specified circumstances such as when on duty, in uniform, in any CF vehicle, etc.  Furthermore, the Code of Service Discipline can also apply to civilians in limited circumstances, such as while accompanying a CF unit that is on service or active service.

Not all offences can be charged and tried in the military justice system. The CF has no jurisdiction to try any person charged with having committed, in Canada, the offences of murder, manslaughter, or any offence under sections 280, 282 and 283 of the Criminal Code of Canada.

When a person subject to the Code of Service Discipline commits an offence under the Criminal Code or other federal law, the NDA extends jurisdiction to deal with the matter in the military justice system. Similarly, jurisdiction under the NDA may also be extended when an offence is committed contrary to foreign law.

 

Service Offence

A “service offence” is an offence under the NDA, the Criminal Code or any other act of Parliament committed by a person while subject to the Code of Service Discipline. The Code of Service Discipline also includes several service offences that are unique to the profession of arms, such as: misconduct in the presence of the enemy, mutiny, disobedience of a lawful command, desertion, absence without leave, drunkenness, negligent performance of duty, and conduct to the prejudice of good order and discipline.