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In our earlier discussion of themes we identified discipline as an essential aspect of military operations. Few professions are as dependent on discipline as the military. Ensuring appropriate discipline within the CF entails, in part, using the military justice system to enforce laws, standards and mores in a corrective and, at times, punitive way.
The military justice system is separate from the civilian justice system. The Code of Service Discipline, set out in the National Defence Act, establishes the standards of conduct expected of members of the CF. The conduct is enforced in part through a system of service tribunals, the military substitute for civilian courts. In essence, the military justice system complements the civilian justice system to accommodate -- in theory, at least -- the unique operational demands of the military.
However, the military justice system in place during the Somalia deployment, and largely still in place today, exhibited serious deficiencies. These deficiencies contributed to disciplinary problems before and during deployment. Just how the military justice system contributed to these problems is analyzed in depth in Volume 5, Chapter 40. In this chapter we describe the system to provide a context for this later discussion of deficiencies.
The National Defence Act provides for the Governor in Council to appoint a Judge Advocate General (JAG).1 The act does not require the Judge Advocate General to be an officer or other member of the CF. However, in practice, the Governor in Council has always appointed a CF officer to the position. The Judge Advocate General is, "in addition to those duties and functions devolving upon him by virtue of the National Defence Act, responsible to the Minister for such legal matters pertaining to the Canadian Forces as the Minister may direct".2
The Judge Advocate General performs several roles:
Each of these major roles involves multiple duties. For example, the role of superintending the military justice system requires the JAG to control the provision of legal advice and services to the military justice system; ensure the efficient planning, organization, staffing, directing, and administering of the courts martial and summary trial processes; and provide qualified legal officers to act as prosecutors and defending officers at courts martial. The specific duties associated with the four main roles are set out in an annex to this chapter.
The Judge Advocate General has direct contact with senior political, departmental, and military officials. Within National Defence Headquarters (NDHQ), the Judge Advocate General has direct contact with the minister, deputy minister, chief of the defence staff, vice chief of the defence staff, deputy chief of the defence staff, assistant and associate assistant deputy ministers, branch chiefs, and directors general. Outside NDHQ, the Judge Advocate General has direct contact with the commanders of commands and formations.4 The Judge Advocate General also works with federal, provincial, and municipal governments on legal matters affecting the CF and the Department of National Defence.5
Military Police (MP) are an essential part of the military justice system. There are now about 1,300 Security and Military Police (SAMP) positions in the CF -- about 2 per cent of the CF.6 The percentage in the U.S. Army is considerably greater, at about three to four per cent of its military forces.7 Some CF military police are attached to bases, units or NDHQ. Others form platoons in each of the brigades, but they could be deployed as separate units.
One of the central roles of the MP is to maintain law and order within the CF, including the enforcement of the criminal law and the Code of Service Discipline. MP investigate possible violations of the Code of Service Discipline and report violations to the appropriate military authorities. This 'routine policing' mandate is vast and occupies the most time and resources in the administration of military policing.
Military Police also have limited responsibilities with respect to the enforcement of civilian law. As discussed below, MP have the powers of peace officers. This gives them some authority, beyond that granted by the National Defence Act, to enforce civilian law. In this role, MP may also become involved in civilian law enforcement matters by agreement with civilian authorities.
In addition to their role in the military justice system, MP perform important combat functions. These include tactical and administrative movement control; route signing and traffic control; reception, custody, and control of prisoners of war or detainees; control of refugees; and all aspects of security. We acknowledge that MP performing these operational functions must form an integral part of the field formation and function under the operational chain of command. However, such an arrangement for Military Police engaged in providing police support to the military justice system may not afford adequate protection from command influence and thus may well undermine their effectiveness.
A 1996 report recommended several changes to the operational focus, command and control, and services provided by MP.8 The recommendations included the creation of alternative reporting lines to the CDS or deputy minister in certain cases to protect the integrity of investigations and a reduction in garrison policing. The report also proposed minor changes to the current structure, functions and accountability framework of MP.
Military police personnel are "specially appointed persons" under section 156 of the National Defence Act.10 As such they have the power to arrest,11 investigate,12 and use force in certain circumstances.13 Military Police do not, however, have the power to lay charges (even charges for criminal offences) under the Code of Service Discipline.14 Only an officer or non-commissioned member authorized by a commanding officer to lay charges can lay a charge.15
Military Police personnel are also "peace officers"16 under section 2 of the Criminal Code. Section 2 defines peace officers to include officers and noncommissioned members of the CF appointed for purposes of section 156 of the National Defence Act. The definition also includes any officer or noncommissioned member performing duties prescribed by the Governor in Council as being of such a kind that they "necessitate" the person having peace officer powers. In the QR&O,17 the Governor in Council prescribes the duties that necessitate peace officer powers as any lawful duties performed as a result of a specific order or established military custom or practice related to any of the following:
When acting as peace officers, military police have the powers of arrest set out in section 495 of the Criminal Code.18 They can also lay charges in civil courts without the concurrence of the commanding officer.
The Security Orders for the Department of National Defence and the Canadian Forces describe the jurisdiction of the Military Police as follows:
- MP are the primary police force of jurisdiction and exercise police authority with respect to:
- persons subject to the Code of Service Discipline, without regard to their rank, status or location; and
- any other person, including civilian employees, dependants, visitors or trespassers, in regard to an event, incident or offence, real or alleged, which occurs or may occur on or in respect to defence establishments, defence works, defence materiel or authorized Canadian Forces programmes, activities or operations.
- Prior to exercising police authority off a defence establishment, MP must first satisfy themselves that some other police agency does not have a right of primary jurisdiction. A connection, or nexus, to the Service is an essential prerequisite. In the absence of such a nexus, police authority should only be exercised by MP with the concurrence of the appropriate civil authority. Police authority is clearly distinct from the implicit duties and responsibilities of any good citizen.
- Where an offence has been committed in Canada by a person subject to the Code of Service Discipline outside of a defence establishment, the matter should be dealt with by the appropriate civilian authorities, unless a Service connection, or nexus, is apparent. In these latter cases, the matter may be considered a Service offence and dealt with accordingly.
- NDA, Section 70, provides that certain offences shall not be tried by a Service tribunal in Canada. When an offence which should be dealt with by civil authorities is reported to MP, it shall be the responsibility of the appropriate MP or of a security adviser to ensure that the incident is expeditiously reported to the appropriate crown prosecutor or civil police. Subsequent MP enquiries will normally be conducted parallel to or in concert with any civil police investigation. Such incidents will, in any event, be documented by means of an MP report. Should the civil authority fail to act in such an instance, then an MP enquiry will be completed and recorded to the extent deemed necessary by the appropriate security adviser. Should the circumstances so warrant, local authorities will be advised of the outcome of MP inquiries conducted separately from those of the civil authority. Where appropriate, an information may be sworn. Outside of Canada, MP will investigate and report in accordance with international agreements and practices.19
The CF uses the military justice system whenever possible.20 For persons subject to the Code of Service Discipline, the Military Police are "using the military disciplinary system whenever legally possible",21 whether the conduct occurred on or off DND property. Similarly, the Security Orders for the Department of National Defence and the Canadian Forces state:
MP shall not resort to the indiscriminate use of the civilian courts in dealing with persons subject to the Code of Service Discipline, when it would be more appropriate to permit a commanding officer to deal with such persons in a Service proceeding.22
The Security Orders for the Department of National Defence and the Canadian Forces state:
MP form an integral part of CF organizations and are operationally responsible to their commanders and commanding officers (COs) for the provision of effective police and security services. Specialist advice and technical direction, on these services, is provided by security advisers within their respective organizations.23
Military Police are clearly members of the unit or other element of the CF in which they serve. In other words, MP are not part of a chain of command outside the normal chain of command. A recent Police Policy Bulletin reinforces this position: the Military Police "are subject to orders and instructions issued by or on behalf of Commanders."24 Furthermore, "police and investigative functions must be conducted in such a manner to, within the law, support the Commander's legitimate operational mission."25 Another section states:
"Specially Appointed Persons [i.e., the Military Police] and Commanders share a common interest of maintaining discipline and reducing the incidence of crime and criminal opportunities. Specially Appointed Persons must therefore be the agent of their Commander and his community in the attainment of this goal."26
However, significant links to National Defence Headquarters remain. The Military Police are "technically responsive" to NDHQ:27
MP assigned to bases, stations and CF units are under the command and control of the appropriate commanders or commanding officers (CO) of those bases, stations or units. Still, when performing a specific policing function related to the enforcement of laws, regulations and orders, they are also technically responsive to NDHQ/DG Secur [Director General Security] and D Police Ops [Director Police Operations].28
"[S]ignificant or unusual incidents having criminal, service or security implications" must be reported to NDHQ.29 The Director General Security is the department's senior security and police adviser and is responsible for the "technical direction, coordination and supervision of all security and police matters in the CF and DND."30 DG Secur in turn is responsible to the deputy chief of the defence staff.
A new police policy published in 1994, after the Somalia deployment, deals with the reporting requirements of Canadian military police employed as part of a multi-national force: "[T]he senior Canadian Military Police member appointed as a SAMP [Security and Military Police] Advisor of a Canadian Contingent deployed overseas shall be at least a Warrant Officer notwithstanding the size of the Canadian Contingent."31 The SAMP adviser is to "ensure that all investigations involving members of the Canadian Contingent are conducted in accordance with DND Police Standards and Policies."32 Furthermore, "all incidents involving Canadian Contingent members which would be reportable if they had occurred in Canada, must be reported to D Police Ops." A copy of all reportable incidents that have been investigated must be sent to the D Police Ops.33
Widespread communication outside the chain of command is also encouraged: "To facilitate the resolution of matters related to police and security inquiries, lateral and vertical channels of communication are authorized between military police at all levels".34 In addition, Military Police Investigation Reports (MPIR) of more than "local significance" are sent to NDHQ.35
NDHQ approval is required before an investigation can be stopped. One police policy bulletin provides that military police must notify the senior local military police person if "aware of an attempt, by any person, to influence illicitly the investigation of a service or criminal offence."36
The National Defence Act empowers the Governor in Council, the minister and the Treasury Board to make certain regulations. The Governor in Council and the minister can each make regulations for the "organization, training, discipline, efficiency, administration and good government of the Canadian Forces and generally for carrying the purposes and provisions"37 of the act into effect. Treasury Board can make regulations "prescribing the rates and conditions of issue of pay and allowances of officers and non-commissioned members and for forfeitures and deductions".38 Regulations made under the act are normally published in the Queen's Regulations and Orders for the Canadian Forces.39 The word orders in the title of the QR&O refers to orders made by the chief of the defence staff.40
The Canadian military justice system is based on the military justice system of the United Kingdom. Until the National Defence Act first came into effect in 1950, British statutes governed military discipline in the Canadian Army and in the Royal Canadian Air Force (RCAF). Canada's Militia Act41 (1927) and Royal Canadian Air Force Act42 (1940) provided that the Army Act of Great Britain and the Air Force Act of the United Kingdom applied to the Canadian Army and the RCAF respectively. A Canadian statute, the Naval Service Act43 (1944), dealt with naval discipline. However, almost all discipline provisions in the Naval Service Act closely resembled the British provisions.44
Today the CF military justice system is governed solely by Canadian law. However, the main features of the system -- types of offences, basic powers of trial and punishments -- closely resemble the British system that formerly applied to the CF.
The Code of Service Discipline consists of Parts IV to IX of the National Defence Act:
In this section we examine these parts and discuss provisions of the act that do not form part of the code but are nonetheless integral parts of the military justice system -- for example, release from custody pending appeal and search warrants.
The National Defence Act sets out who can be tried by a military tribunal for an alleged service offence under the Code of Service Discipline.46 (A service offence includes offences against the Criminal Code of Canada or other federal statute.47) Members of the regular force are subject to the Code of Service Discipline 24 hours a day. Members of the reserve force are subject to the Code only while on military service or at certain other times specified in the National Defence Act. These include being in or on a vessel, vehicle or aircraft of the CF or on any defence establishment or work for defence. Civilians can also be subject to the Code of Service Discipline -- for example, if they are dependants accompanying members of the CF serving abroad.48
Under the Code of Service Discipline all service offences committed outside Canada and most committed in Canada can be tried by service tribunals. The only exceptions are certain offences committed in Canada -- murder, manslaughter, certain sexual offences, and abduction offences under sections 280-283 of the Criminal Code.49 These can be tried only by civil courts.
The National Defence Act states that a service tribunal may, in or outside Canada, try a person subject to the Code of Service Discipline.50 However, under international law, before such a trial can be held in another country, that country must normally consent. The consent is usually set out in a 'status of forces agreement'. For example, the jurisdiction of CF tribunals in North Atlantic Treaty Organization countries is prescribed in the NATO Status of Forces Agreement.51 The United Nations usually obtains the agreement of the host country to allow national contingents of United Nations peacekeeping forces there to exercise disciplinary and criminal jurisdiction over their own troops. However, as usually happens with peace enforcement missions, neither the United Nations nor Canada had a status of forces agreement with Somalia.
Except for a few very serious offences,52 the limitation period for prosecuting offences at a trial by service tribunal is three years. However, the limitation period does not apply to trials of a CF member by a civil court. For example, a civil court may try a charge of theft under the Criminal Code after the three-year period, but the same offence can be tried only within the three-year period as a service offence under section 130(1) of the National Defence Act. When a service tribunal convicts or acquits a person of an offence, no civil court in Canada, and no other Canadian service tribunal, can try that person again for the same or a substantially similar offence. As well, when a civil court or a court of a foreign state convicts or acquits a person of an offence, no service tribunal can try that person for the same or a substantially similar offence.53
Part V of the act specifies various service offences for which a person subject to the Code of Service Discipline can be tried by a service tribunal.54 Some of these offences are not criminal or otherwise punishable in civilian life -for example, desertion, talking back to a superior, and showing cowardice before the enemy.55 Members of the CF in Canada are also subject to trial under the Code of Service Discipline for Canadian criminal law offences committed in Canada.56 The Supreme Court of Canada has described the Code of Service Discipline as follows:
Although the Code of Service Discipline is primarily concerned with maintaining discipline and integrity in the Canadian Forces, it does not serve merely to regulate conduct that undermines such discipline and integrity. The Code serves a public function as well by punishing specific conduct which threatens public order and welfare. Many of the offences with which an accused may be charged under the Code of Service Discipline...relate to matters which threaten public order and welfare. For example, any act or omission that is punishable under the Criminal Code or any other Act of Parliament is also an offence under the Code of Service Discipline.57
Persons subject to the Code of Service Discipline can also be tried by Canadian service tribunals for offences against the criminal law of any country in which they are serving.58 Unlike most Canadians, CF members remain subject to Canadian criminal law even while outside Canada.59 Thus, Pte Brown and MCpl Matchee were charged with second degree murder (an offence under section 235(1) of Canada's Criminal Code) for the death of Shidane Arone in Somalia on March 16, 1993.60
The National Defence Act sets out the punishments that can be imposed for service offences. Punishments depend on the tribunal and the offence,61 and may include death, imprisonment for two years or more, dismissal with disgrace from Her Majesty's service, imprisonment for less than two years, dismissal from Her Majesty's service, detention, reduction in rank, forfeiture of seniority, severe reprimand, reprimand, fine, or minor punishments.62 The death penalty still exists for several military offences, such as a commander acting traitorously in action or a soldier showing cowardice before the enemy.63 Sentences of death were carried out against 25 Canadian soldiers in the First World War and one during the Second World War.64 There have been no executions in the CF since then.
Part V of the National Defence Act also deals with substantive law65 -- for example, the definition of parties to offences, the effect of ignorance of the law, and the application of civil defences -- and with procedural law, including provisions on conviction for related offences.66
The National Defence Act and QR&O include several powers allowing for the investigation of possible breaches of the Code of Service Discipline, but few provisions compelling such action.
Regulations appear contradictory as to whether an investigation of an alleged offence must take place before a charge is laid.67 The QR&O state, "An investigation shall be conducted as soon as practical after the alleged commission of an offence."68 Yet the next article of the QR&O advises simply that, where a complaint is made or where there are other reasons to believe that a service offence has been committed, an investigation "should" be conducted to determine whether sufficient grounds for charging exist.69 An investigation would be mandatory only after a charge is laid. However, the Office of the Judge Advocate General appears to favour the interpretation that an investigation is mandatory even before charges are laid.70
In specific cases, such as the extended illegal absence of a CF member, commanding officers are clearly obliged to investigate.71 As well, a commanding officer must cause any suspected contravention of the Narcotic Control Act to be investigated as soon as practicable. The investigation is to be carried out as the commanding officer considers appropriate, "having regard to the means of investigation at the CO's disposal and the circumstances giving rise to the suspicion or alleged contravention".72
Once a person is charged with an offence under the Code of Service Discipline, the National Defence Act requires that an investigation be conducted:
Where a charge is laid against a person to whom this Part applies alleging that the person has committed a service offence, the charge shall forthwith be investigated in accordance with regulations made by the Governor in Council.73
The method of carrying out the investigation of a charge is left largely to the investigator's discretion. The investigator may investigate "in such a manner as seems...appropriate in the circumstances."74 The results of the completed investigation must then be sent to the commanding officer or delegated officer to whom the charge report was referred.75
Some of the investigative resources available to commanding officers, such as boards of inquiry and summary investigations, are described in the National Defence Act and the QR&O respectively. Others, such as very informal investigations ordered by a commanding officer, have no grounding in the act or QR&O,76 but seem to have become an established part of military culture. If the commanding officer decides to investigate alleged misconduct, the commanding officer generally has considerable discretion in choosing the type of investigation and who will undertake the investigation. However, in more serious cases, the commanding officer is required to request the help of the Special Investigation Unit (SIU). For example, the commanding officer must ask for SIU assistance in investigating acts of subversion, espionage, sabotage or terrorism, and theft of identification or pass material. The commanding officer must also request SIU assistance in the case of suicide by a CF member or civilian employee who holds a Level 3 security clearance.77
A summary investigation refers to an investigation, other than a board of inquiry, ordered by the chief of the defence staff, an officer commanding a command or formation, or a commanding officer.78 Commanding officers are given great latitude in deciding which matters will be subject to a summary investigation. Summary investigations, therefore, can be used to investigate both possible misconduct by an individual and systemic problems within the CF. The summary investigation, the QR&O simply state, is to be conducted "in such manner" as the authority ordering the investigation "sees fit."79
In some cases, commanding officers are obliged to investigate an incident, such as a serious injury or death not sustained in action, but they have the choice between a summary investigation and a board of inquiry.80
The minister, the chief of the defence staff, an officer commanding a command or a formation, and a commanding officer have the authority to convene a board of inquiry.81 The board of inquiry is a more formal means of investigation than the summary investigation. The National Defence Act allows the convening of a board of inquiry "where it is expedient that the Minister or any such other authority should be informed on any matter connected with the government, discipline, administration or functions of the Canadian Forces or affecting any officer or non-commissioned member."82 For example, following the Somalia deployment, a board of inquiry was appointed to examine the actions of the Canadian Airborne Regiment Battle Group.
There is some discretion in deciding whether to order a summary investigation or a board of inquiry. However, death or serious injury in an aircraft accident must be examined by a board of inquiry.83 Furthermore, the CDS (in CFAO 21-9) has ordered that a board of inquiry must be convened to investigate
Like a summary investigation, a board of inquiry can look into the conduct of individuals, broader organizational issues, or both. The QR&O detail how a board of inquiry is to be conducted, as do the CFAO.85
A commanding officer may also order a Military Police investigation. The commanding officer or a delegated officer normally does not order MP to investigate minor offences. Instead, the commanding officer will usually order an officer or NCO other than an MP to investigate a minor offence,86 such as being absent without leave. If the offence is not minor, MP conduct the investigation, even though the Code of Service Discipline permits any competent or qualified person to be assigned the task of investigating an offence.87 The Military Police present an investigation report to the commanding officer but do not lay charges under the Code of Service Discipline. In its brief to this Commission, the Department of National Defence submitted that "Military police personnel form an integral part of Canadian Forces units and formations, and when so employed they are operationally responsible to the commanding officer or superior commander [of the unit or formation concerned] for the provision of effective police and security services and advice".88
MP also have the authority to investigate alleged service offences of their own accord. The Military Police Procedures in force at the time of the Somalia deployment stated that "MP shall conduct an investigation and report on all criminal and serious service offences" committed or alleged to have been committed by those subject to the Code of Service Discipline and on all criminal, serious service offences and security violations relating to a defence establishment.89 However, the apparent freedom of MP to select investigative methods can be severely restricted by the commanding officer, particularly when the MP are 'first line' MP, meaning that they fall directly under the commanding officer's authority. Practical considerations such as limited resources and personnel can further circumscribe the freedom of MP to investigate as they might otherwise see fit.
If the commanding officer is not required by regulation or order to order a summary investigation or board of inquiry, it is not unusual for a commanding officer to order an investigation that is less formal than the summary investigation contemplated by the QR&O and CFAOs. These are sometimes called CO's investigations. Although they have no specific statutory authority and have not been provided for in regulations or orders, they have become a method of investigation in the CF.
If an investigation uncovers apparent misconduct by an individual, the commanding officer has several options:
It appears that commanding officers also sometimes deal with misconduct through informal sanctions, such as confinement to camp or extra work, without any trial.
Image: Figure 7.1s--sOptions for Responding to Misconduct
The National Defence Act contains a broad power of arrest: "Every person who has committed, is found committing or is believed on reasonable grounds to have committed a service offence or who is charged with having committed a service offence may be placed under arrest."91 An officer may arrest without warrant any non-commissioned member (NCM), an officer of equal or lower rank, or any officer "engaged in a quarrel, fray or disorder".92 A non-commissioned member may arrest without warrant any NCM of lower rank, or any NCM who is "engaged in a quarrel, fray or disorder".93 Any specially appointed officer or non-commissioned member (that is, members of the Military Police) may detain or arrest without warrant any person subject to the Code of Service Discipline regardless of the rank or status of that person.94 Commanding officers and delegated officers95 can issue a warrant of arrest authorizing "any person to arrest any other person triable under the Code of Service Discipline"96 who has committed, is believed on reasonable grounds to have committed, or is charged under the act with having committed a service offence.
A person who has been arrested or detained must be given appropriate information without delay, including the fact of being under arrest, the reason for the arrest, and the right to counsel. The person must be released from custody unless certain conditions justify custody.97 Custody may be close (confinement to a cell) or open (confinement to a unit, base, or ship).98 The act requires that a decision to keep a person in custody be reviewed in some situations.99 If a summary trial has not been held or a court martial ordered for the person in custody after 28 days, that person can petition the minister for release or for disposition of the case; if no summary trial has been held or a court martial ordered within 90 days, the person in custody must be released unless the minister decides otherwise.100
The commanding officer (CO) is extremely important in the military justice system. A commanding officer is defined as (a) the officer in command of a base, unit or other element of the CF, (b) any other officer designated a CO by the chief of the defence staff, or (c) for disciplinary purposes, a detachment commander.101 The CO has both disciplinary powers and powers like those available to a judge. These include the power to issue arrest and search warrants, cause investigations to be conducted, dismiss any charge of any disciplinary or criminal offence, try most military personnel, delegate some powers of trial and punishment to junior officers, and apply for the convening of courts martial. The mere presence of an accused person on a base or with a unit or other element under the command of a CO is sufficient to give to the CO disciplinary jurisdiction over the person.
A charge or formal accusation alleging a service offence by a person subject to the Code of Service Discipline is laid when it is put in writing on a charge report and signed by an officer or non-commissioned member authorized by a CO to lay charges.102 Hence, only an officer or an NCM authorized by the CO to lay charges can lay a charge.103
However, by authorizing subordinates to lay charges, the commanding officer can in practice influence the decision to charge and the charges that are laid.
Once a charge is laid, it must be investigated. The results of such an investigation must be delivered to the commanding officer or to an officer to whom the commanding officer has delegated powers of trial and punishment. A delegated officer who receives the report of an investigation has three choices:104
If after receiving the results of an investigation, a commanding officer concludes that the charge should not be proceeded with, the charge must be dismissed.105 If the commanding officer does not dismiss the charge, it must be proceeded with "as expeditiously as circumstances permit."106
The military justice system has two kinds of trials: summary trials and courts martial. Summary trials are the less formal of the two. Military rules of evidence do not apply at summary trials, and there is no right to be represented by legal counsel. Summary trials are not meant to try serious military offences. Summary trials are the most widely used disciplinary process in the CF. Courts martial are used much less frequently and are reserved for more serious offences.
Image: Military Justice System: Types of Trial
Image: Military Justice System: Types of Trial
Image: Military Justice System: Types of Trial
There are three types of summary trials: summary trial by a commanding officer, summary trial by an officer to whom a CO has delegated some of the CO's power to conduct trials, and summary trial by a superior commander.107
At a summary trial a commanding officer can try an officer cadet or a non-commissioned member below the rank of warrant officer. For some offences, the commanding officer must give the accused the right to elect trial by court martial. The right to elect must be offered when the accused is charged with certain offences108 -- for example, a Criminal Code offence incorporated109 into the Code of Service Discipline -- or when the punishments envisaged as appropriate in the likely event of conviction would include imprisonment, detention or a fine greater than $200. The greatest punishment a CO can impose on a sergeant, master corporal, corporal or private is 90 days of detention, which for an NCO includes the consequential punishment of reduction in rank.110 Although a CO cannot sentence a person to imprisonment, "detention" consists of service in a service detention barracks with a rigorous routine. Detention is thus at least as severe as imprisonment. Also, the accompanying reduction in rank is tantamount to a fine possibly amounting to thousands of dollars.
At a summary trial, a delegated officer not below the rank of captain can try a non-commissioned member below the rank of warrant officer for offences for which the accused has no right to elect a court martial.111 The greatest punishment a delegated officer can impose on a sergeant, master corporal or corporal is a severe reprimand. The greatest punishment that can be imposed on a private is a $200 fine.112 Thus, a delegated officer cannot sentence a convicted person to imprisonment, detention, or reduction in rank.
A superior commander can try an officer of the rank of major, captain, lieutenant, or second lieutenant, or a non-commissioned member of the rank of chief warrant officer, master warrant officer or warrant officer.113 The superior commander must allow the accused to exercise the right to elect trial by court martial when the accused is charged with a serious offence114 or when the punishment envisaged as appropriate in the likely event of conviction would include a fine of more than $200. A superior commander can award a severe reprimand, a reprimand or a fine. Thus, a superior commander cannot sentence a person to imprisonment or detention or reduction in rank. However, conviction of any offence is likely at least to delay normal promotion of an officer, and that could be the equivalent of a fine of thousands of dollars.
The procedure at a summary trial is relatively simple. The accused has the right to be represented by an assisting officer but not by legal counsel.115 An assisting officer can be an officer or, exceptionally, a non-commissioned member.116 Proof of the offence beyond a reasonable doubt is required for conviction.117 There is no formal statutory right of appeal. However, the accused can apply for redress of grievance118 under regulations that permit CF members to make a complaint to a CO if they consider that they have "suffered any personal oppression, injustice or other ill-treatment" or have any other cause for grievance.119
A court martial normally occurs if the accused elects to be tried by court martial or if a CO for other reasons applies to a higher authority for disposal of charges120 and the "convening authority" directs trial by court martial. The minister, the chief of the defence staff, an officer commanding a command, and other service authorities as prescribed or appointed by the minister are convening authorities.121 A court martial can be convened only if the commanding officer has signed a charge sheet and sent an application to a higher authority for disposal of charges. This again demonstrates the pivotal role of the commanding officer in the military justice system.
There are four types of courts martial -- general courts martial (GCM), disciplinary courts martial (DCM), standing courts martial (SCM), and special general courts martial (SGCM). Disciplinary courts martial and standing courts martial can try members of the armed forces only.122 General courts martial can try civilians and members of the armed forces.123 A special general court martial can try civilians only.
GCMs and DCMs consist of a panel of non-lawyer officers, one of whom is president; seated with them is a judge advocate military officer who is not a member of the court. SGCMs and SCMs both consist of a legally trained person as a judge alone, with no panel.
A GCM can try a person of any rank and can impose any punishment prescribed for any offence, but a DCM cannot try an officer of or above the rank of major and cannot impose a punishment greater than imprisonment for less than two years.124 A GCM consists of five members (officers) assisted by a judge advocate, while a DCM consists of three members (officers), also assisted by a judge advocate, all appointed by the chief military trial judge.125 The president of a GCM is of the rank of colonel or above, while the president of a DCM is of the rank of major or above.126
There are important similarities in the relationship of a judge advocate to the members of a GCM or DCM and that of a judge to a jury in a criminal trial in the civilian justice system. The judge advocate, like a judge presiding at a jury trial, determines questions of law or mixed law and fact.127 However, the role of the members of a GCM or DCM differs substantially from that of a jury. For example, the verdict of the jury must be unanimous, but the verdict of a GCM or DCM is determined by majority vote of the members. As well, the judge, not the jury, passes sentence at a civil trial, but the sentence at a GCM or DCM is determined by majority vote of the members.128 The Court Martial Appeal Court stated recently that a trial before a general court martial is not a jury trial "although such court may share some of the characteristics of a civilian criminal jury trial."129
The third category of courts martial is the standing court martial. An SCM is established by the Governor in Council and consists of one officer, called the president, who is or was a barrister or advocate appointed by the minister of National Defence.130 The maximum punishment that such a court can impose is imprisonment for less than two years.131
The fourth type of court martial is a special general court martial, which consists of a person designated by the minister "who is or has been a judge of a superior court in Canada or is a barrister or advocate of at least ten years standing."132 An SGCM can try civilians only.133 As punishment, an SGCM can impose a fine, imprisonment or the death penalty.134
The procedure at an SCM or SGCM is similar to a trial before a magistrate or a judge alone. The Court Martial Appeal Court has stated that an SCM is "obviously very like a civilian criminal trial by judge alone; it is a trial by judge alone for an offence, which might or might not be criminal in a civilian context, provided for by the Code of Service Discipline". 135
An accused at a court martial has the right to representation by legal counsel or a defending officer. The accused also has the right to an adviser. A defending officer may be any commissioned officer, a legal counsel may be any barrister or advocate in good standing, and an adviser may be any person, regardless of status or rank.136 A prosecutor is appointed for each new trial.137 The rules of evidence at trials by court martial have been codified.138 Almost all courts martial are public.139 Part VII of the National Defence Act also deals with matters such as witnesses at courts martial, evidence on commission, objections to being tried by the judge advocate and members chosen for the court martial, and oaths at courts martial.140 There are no preliminary inquiries for courts martial. However, the accused receives a synopsis of the evidence before trial. The synopsis should include a brief summary of the circumstances relating to the charge and the names of witnesses.141
The only direct reference in the Canadian Charter of Rights and Freedoms to military tribunals is section 11(f), which provides that a person charged with an offence that carries a maximum penalty of five years or more is entitled to a jury trial, unless the offence is one under military law tried before a military tribunal.
Despite only one mention of military tribunals in the Charter, many court decisions have considered the extent to which the military justice system is subject to the Charter. The Supreme Court of Canada decided in R. v. Généreux142 that the structure of the general court martial at the time of the Généreux trial infringed section 11(d) of the Charter143 because the GCM was not an independent and impartial tribunal for several reasons. Among these was the appointment of the members of the court by the military authority ordering the trial. The Supreme Court also decided that the violation of section 11(d) could not be justified under section 1 of the Charter. Amendments to the National Defence Act and the QR&O made after the Généreux trial (but before the Supreme Court of Canada decision) have to some extent addressed the problems noted by the Supreme Court.144 Généreux is also noteworthy for the Court's express recognition of the "need for separate tribunals to enforce special disciplinary standards in the military".145
Part VII.1 of the act deals with fitness to stand trial and the defence of mental disorder.146 It also contains provisions on assessment orders and reports, provincial review boards established under the Criminal Code, and periodic inquiries into the sufficiency of the evidence by courts martial after an accused has been found unfit to stand trial.
Like the Criminal Code, the National Defence Act states that an accused "is presumed fit to stand trial unless the court martial is satisfied on the balance of probabilities that the accused person is unfit to stand trial."147 In April 1994, the GCM of MCpl Matchee found him unfit to stand trial. In June 1994, the Ontario Criminal Code Review Board also decided that MCpl Matchee was unfit to stand trial by court martial.148 However, if a person initially found unfit to stand trial later becomes fit, the National Defence Act permits trying the person on the same charge.149
After a finding of unfitness, a court martial must hold an inquiry within two years after the finding and every two years thereafter until the accused is tried. The purpose of the inquiry is to decide whether there is sufficient evidence at that time to put the accused on trial if he or she were fit to stand trial. If the court martial concludes that sufficient evidence for a trial does not exist, the accused must be acquitted.150
Part VIII of the act allows the minister to designate service prisons and detention barracks.151 It also deals with such matters as committal to penitentiaries, civil prisons, and detention barracks and the rules applicable there.152 The persons who can act as committing authorities are the minister of national defence, the chief of the defence staff, an officer commanding a command, a commanding officer, and "such other authorities as the Minister prescribes or appoints for that purpose."153
Part VIII also sets out the conditions that apply to certain punishments. For example, the punishment of death requires approval by the Governor in Council, and carrying out the death penalty punishment is subject to regulations by the Governor in Council.154 The punishment of dismissal with disgrace or dismissal from Her Majesty's Forces must first be approved by the minister of national defence or, in the case of a non-commissioned member, the CDS.155
The minister, the CDS, an officer commanding a command, and "such other authorities as the Minister prescribes or appoints for that purpose"156 have various discretionary powers relating to punishments. They can "mitigate, commute or remit any or all of the punishments included in a sentence passed by a service tribunal."157 They can also quash or substitute findings, substitute a new punishment for one that has not been approved or one that is illegal, or suspend a punishment of imprisonment or detention.158 Commanding officers can do the same in respect of punishments or findings of a summary trial if the offender is under their command and the trial was not a summary trial before a superior commander.159 The minister can set aside a finding of guilty and direct a new trial when the Judge Advocate General certifies that there should be a new trial because of an "irregularity in law".160
Other provisions of Part VIII deal with matters such as the transfer of offenders and restitution of property.161
The National Defence Act establishes a Court Martial Appeal Court of Canada (C.M.A.C.) as a superior court of record162 and provides for the chief justice of the court to make rules for the court.163 A person who is subject to the Code of Service Discipline can appeal from a court martial (but not from a summary trial) to the C.M.A.C. on the legality of any finding of guilty, the legality of the sentence, and other matters mentioned in section 230 of the act. With the permission of the C.M.A.C., a convicted person can appeal the severity of the sentence. The minister of national defence may appeal in respect of the legality of a finding of not guilty and on several other matters specified in section 230.1 of the act, including, with the permission of the C.M.A.C., the severity of the sentence.164
Several provisions govern the disposition of appeals by the C.M.A.C. For example, on an appeal by a convicted person about the legality of a finding of guilty, the C.M.A.C. can dismiss the appeal, allow the appeal and enter a finding of not guilty, or order a new trial.165 On an appeal by the minister from a finding by any court martial of not guilty, the C.M.A.C. can dismiss or allow the appeal. If it allows the appeal, the court can set aside the finding and direct a new trial.166
The National Defence Act provides for appeals to the Supreme Court of Canada by a person convicted at a trial by court martial whose appeal has been dismissed by the C.M.A.C. The appeal is as of right if it is on a question of law and there is a dissenting opinion on that question of law in the C.M.A.C. Even if there is no dissenting opinion, the Supreme Court may grant permission to the person to appeal the question of law. Where the C.M.A.C. has wholly or partially allowed an appeal by a person, the minister of national defence can, as of right, appeal any question of law to the Supreme Court of Canada if there is a dissenting opinion by a judge of the C.M.A.C. on that question; if there was no dissenting opinion, the Supreme Court of Canada may grant the minister permission to appeal on a question of law.167
If there is no appeal from a court martial as to the legality of any finding of guilty or the legality of the sentence, the Judge Advocate General must review the proceedings. If the Judge Advocate General decides that any punishment or finding is illegal, the minutes of proceedings must be referred to the chief of the defence staff. The CDS can take such action under the National Defence Act as the CDS deems fit.168 A person who has been found guilty by a court martial can also petition for a new trial on grounds of new evidence discovered after the trial.169
There is no formal statutory right to appeal a conviction at a summary trial. However, a convicted person can apply for redress of grievance170 under regulations permitting CF members to make a complaint to a commanding officer if they consider that they have "suffered any personal oppression, injustice or other ill-treatment", or have any other cause for grievance.171 However, the perception among CF members that relying on a redress of grievance can harm one's career172 could limit its use.
When a person subject to the Code of Service Discipline is sentenced to a period of imprisonment or detention, that person may apply to the sentencing court martial or to a judge of the Court Martial Appeal Court for release from incarceration pending appeal.173 The National Defence Act sets out the conditions for the release,174 which may include an undertaking by the person.175 Appeals from decisions about release can be made to the Court Martial Appeal Court.176
Part I of the Inspection and Search Defence Regulations authorizes an officer or non-commissioned member to "conduct an inspection.. .of any officer or non-commissioned member or any thing in, on or about. ..any controlled area, or...any quarters under the control of the Canadian Forces or the Department, in accordance with the custom or practice of the service".177 Part II of the regulations applies to all persons subject to the Code of Service Discipline; it authorizes searches of the "person or personal property while entering or exiting a controlled area".178 Part II also authorizes searches of "personal property about a controlled area or any restricted area within the controlled area where the designated authority has reasonable grounds to believe that the personal property is or may contain anything that is likely to endanger the safety of any person within the controlled area".179
The Defence Controlled Access Area Regulations also allow searches.180 These regulations apply to everyone except those subject to the Code of Service Discipline. Searches under the Inspection and Search Defence Regulations and the Defence Controlled Access Area Regulations are "conducted for the maintenance of security of defence establishments and do not require a search warrant".181
The National Defence Act permits a commanding officer to issue a search warrant when the purpose of the search is to gather evidence of an offence.182
The National Defence Act sets out the punishments that can be imposed for service offences183 including the following 'minor punishments' that can be imposed on a person convicted at a summary trial:184
Professor Friedland states that almost all of these minor punishments are sometimes imposed by a commanding officer even without holding a summary trial.185 Such punishments are referred to here as informal sanctions. There is no authority in the act or QR&O for informal sanctions.
Misconduct is often dealt with through disciplinary action -- that is, via the military justice system's service tribunals. In addition, commanding officers can apply administrative sanctions regarding the same misconduct. In some cases, commanding officers may use administrative action as a substitute for disciplinary action. As well, NDHQ may convene a career review board (CRB) to examine and make a recommendation about the career prospects of a CF member who violates the Code of Service Discipline.
A commanding officer may take both administrative and disciplinary action. For example, a CF member who violates the Narcotic Control Act is liable to administrative action, disciplinary action, or both.186
The impact of administrative action on a CF member can be profound, including release from the CF. The specifics of administrative action differ between officers and non-commissioned members, although the process is generally similar. The administrative sanctions that can be imposed on non-commissioned members, by escalating degree of severity, are as follows:
The process for officers is similar. However, rather than a recorded warning, the lower level of administrative action for an officer is a 'reproof'. A reproof can also be given to a non-commissioned member of warrant officer rank or above. The reproof is something of a hybrid mechanism, in that it is more disciplinary in nature than the recorded warning. However, the QR&O clearly state that a reproof "is not a punishment and shall not be referred to as such."191
There appears to be little to guide a commanding officer (or any other authorized person) on when it is appropriate to give a reproof. A commanding officer must restrict the administering of a reproof to conduct that "although reprehensible is not of sufficiently serious nature, in the opinion of the commanding officer, to warrant being made the subject of a charge and brought to trial". Still, conduct for which a reproof has been administered "should not subsequently form the subject of a charge."192
Hence by using discretion to determine that misconduct is not sufficiently serious to warrant a charge, a commanding officer could preclude altogether the possibility of later disciplinary action against the officer or NCM concerned.
Instead of counselling and probation, officers are subject to a report of shortcomings, which similarly is considered a "final attempt to salvage the career of an officer of the Regular Force or Reserve Force."193
Administrative action is not to be used as a substitute for disciplinary action. For example, the CFAO on report of shortcomings states that a report "shall not be considered a substitute for disciplinary action. A CO shall consider taking action under the Code of Service Discipline with respect to shortcomings attributable to misconduct which may, by their seriousness or repetition, result in a report of shortcomings."194 Still, the CFAO on Personal Relationships states that "disciplinary action is to be considered when the conduct is so unacceptable that disciplinary action is more appropriate than administrative action, or when administrative action has failed to correct the inappropriate conduct".195
Career review boards (CRBs) are convened from time to time at NDHQ to review the service career of members of the CF whose conduct has raised questions about suitability for further service.
CRBs are not mentioned in the National Defence Act or in the QR&O, and there is no specific CFAO on the subject, although some CFAO do mention CRBs. Some of the circumstances in which a CRB may be convened, and the nature of the decisions it makes, are set out in two manuals used by the Personnel Careers Branch.196 These documents do not identify the role of the commanding officer in the process; however, it seems likely that the CRB would be aware of the circumstances that allegedly justify the ordering of a CRB from a superior -- in some cases, the commanding officer.
A CRB makes one of the following recommendations:
In this chapter we have described the military justice system
in place during the Somalia deployment -- a system that has remained
largely untouched since then. We have not attempted to explain
the deficiencies of the system. In Volume 5, Chapter 40 we take
this next step, examining how the military justice system failed
to secure and preserve an acceptable standard of discipline before
and during the deployment. Among the issues addressed in Chapter
40 are the breadth of the discretion given to commanding officers
to control investigations and the charging and disciplinary processes.
In Chapter 40 we also address the many conflicts of interest inherent
in the military justice system -- conflicts of interest that led
to incomplete investigations, inappropriate decisions and, ultimately,
serious abuses of Somali civilians.
| MAJOR RESPONSIBILITY | DUTIES ASSOCIATED WITH RESPONSIBILITY |
Superintendence of the Military Justice System for the Canadian Forces |
|
| MAJOR RESPONSIBILITY | DUTIES ASSOCIATED WITH RESPONSIBILITY |
| Senior Legal Adviser to the Canadian Forces -- provision at all levels of the Canadian Forces of legal advice and services associated with the command, control, management and administration of the Canadian Forces and its activities |
|
| MAJOR RESPONSIBILITY | DUTIES ASSOCIATED WITH RESPONSIBILITY |
Senior Department of National Defence Legal Adviser -- provision, of Departmental legal advice and services in support of Department of National Defence and its activities |
|
| MAJOR RESPONSIBILITY | DUTIES ASSOCIATED WITH RESPONSIBILITY |
| Management and Direction of the Legal Branch |
|
| MAJOR RESPONSIBILITY | DUTIES ASSOCIATED WITH RESPONSIBILITY |
| Additional responsibilities |
|
* Source: Terms of Reference for National Defence Headquarters
Staff, Judge Advocate General, TOR 1.0.2 (1988-08-24) (Document
A-AE-D20-001/AG-001).
|
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