NATIONAL DEFENCE ACT:
REFORM OF THE MILITARY JUSTICE SYSTEM
Political and Social Affairs Division
Revised 22 January 1997
TABLE OF CONTENTS
BACKGROUND AND ANALYSIS
A. The Court Martial Process
B. Effects of Recent Legislative Amendments and Supreme
C. The Military in
a Rights-Driven Society
D. Reform Options
in Late 1996
F. Special Advisory Group on
Military Justice System
G. Criticism of Military
REFORM OF THE MILITARY JUSTICE SYSTEM*
Even before the
incidents in Somalia involving members of the Canadian Airborne Regiment
and the start of the subsequent Commission of Inquiry, questions were
being raised about the fairness of the military justice system, especially
in view of the constitutional guarantees provided by the Canadian Charter
of Rights and Freedoms. Supreme Court decisions and legislative amendments
between 1985 and 1992 had resulted in significant changes in Canadian
military law; however, the recent controversy arising out of the Somalia
incidents has led to demands for additional reforms or even the abolition
of the military justice system.
police procedures leading to charges and the court martial process itself
are under increased scrutiny. While the Canadian military is trying to
deal with the new strategic and financial realities of the post-Cold War
era, not to mention its own tarnished image, it also faces the possibility
of fundamental changes in its justice system. These changes could affect
the military's capacity to maintain discipline within its ranks as well
as its place within Canadian society.
This paper describes
the basic features of the military justice system and the major changes
made up to 1992 as a result of the Canadian Charter of Rights and Freedoms
and Supreme Court decisions in cases originating with courts martial.
It then examines the growing pressure for reform and the implications
for the Canadian Forces.
BACKGROUND AND ANALYSIS
A. The Court Martial Process
The rules of military
conduct are contained in the Code of Service Discipline in Parts IV through
IX of the National Defence Act. The Code applies to members of
the Regular Force on or off duty and to members of the Reserve Force when
they are in uniform, on duty, on a base, or on service. The Queen's
Regulations and Orders for the Canadian Forces amplify the Act.
The Code of Service
Discipline enumerates offences specific to the military. According to
section 130 of the Act, any other act or omission punishable by the Criminal
Code or any Act of Parliament is also an offence under the Act and
is triable by a military tribunal. There is an exception under section
70 for certain offences such as murder and sexual assault committed in
the Code of Service Discipline can be dealt with through either the summary
trial, for minor offences, or the court martial. Part VII (sections 160
to 196) of the National Defence Act indicates the structure and
powers of military tribunals as well as rules of evidence, amendments
of charges, and other details. The summary trial is presided over by a
commanding officer, a delegated officer or a superior commander. The accused
cannot be represented by legal counsel, the Military Rules of Evidence
do not apply, and there is no right of appeal to a judicial body. The
accused can, however, elect to be tried by a court martial.
There are four
types of court martial: the Standing Court Martial, which tries offences
committed in Canada by individuals with the rank of lieutenant-colonel
and below; the Special General Court Martial, which is convened only to
try civilians subject to military law, such as dependants living on bases
outside Canada; the Disciplinary Court Martial; and the General Court
Martial. This last is the highest court in the military justice system
since it can try the most serious offences and impose the severest penalties.
Each General Court Martial is composed of five randomly selected officers,
one of whom, with the rank of Colonel or above, is appointed president.
This panel of officers functions to some extent like the jury in a civilian
court, while a Judge Advocate, appointed by the Chief Military Trial Judge
of the Canadian Forces, performs a function similar to that of the judge
in a civilian court.
The accused can
be defended by a military or civilian defence counsel and can raise objections
about the composition of the panel or the choice of Judge Advocate. As
in a civilian criminal trial, the accused can challenge the jurisdiction
of the court and make use of other motions as well as the full range of
applications under the Canadian Charter of Rights and Freedoms.
There are, however, some major differences between a General Court Martial
and a civilian jury trial. For example, the panel of officers can reach
a verdict with a simple majority vote rather than needing a unanimous
decision. Furthermore, unlike a civilian jury trial, where the jury decides
the guilt or innocence of an accused but the judge imposes a sentence,
it is the panel of officers that imposes sentence, following instructions
from the Judge Advocate. Sentences, as provided for by the National
Defence Act, can include a reprimand, dismissal from the military,
and a reduction in rank, but other punishments can be added.
Any person tried
and found guilty by a court martial can appeal to the Court Martial Appeal
Court of Canada, which has the same function and status as provincial
Supreme Courts. The judges are selected from the Federal Court of Canada
and other civilian courts of criminal jurisdiction. Following an unsuccessful
appeal to the Court Martial Appeal Court, the accused can appeal to the
Supreme Court of Canada. In certain circumstances, the prosecution can
also appeal a court martial decision or sentence to the Court Martial
Appeal Court and to the Supreme Court.
B. Effects of Recent Legislative Amendments and Supreme
In 1985, the Statute
Law (The Canadian Charter of Rights and Freedoms) Amendment Act amended
the National Defence Act and enhanced the procedural fairness of
courts martial in keeping with the provisions of the Charter. Subsequently,
persons tried by military tribunals were protected against the double
jeopardy that could result from retrial by civilian tribunals and were
ensured a speedy trial. Another amendment prohibited the same person from
acting as both the investigating officer and the trier of fact.
These and other
amendments were made because section 11(d) of the Charter states that
any person charged with an offence is "to be presumed innocent until
proven guilty according to law in a fair and public hearing by an independent
and impartial tribunal." This applies to the military justice system
as well as to Canadian justice in general. In fact, the only express exception
to the application of the Charter to military law is indicated in section
11(f), which states that any person charged with an offence has the right
to trial by jury "except in the case of an offence under military
law tried before a military tribunal."
Despite the amendments
made to the National Defence Act in 1985, the fairness and other
aspects of courts martial were challenged in a number of cases that went
all the way to the Supreme Court. The Supreme Court decisions usually
upheld the military justice system, but decisions in 1992 in R. v.
Forster and, notably, R. v. Généreux resulted in significant
changes to the court martial process.
Généreux involved a corporal who had been found guilty by a General
Court Martial of possessing narcotics for the purposes of trafficking
and whose appeal to the Court Martial Appeal Court was dismissed. An appeal
was made to the Supreme Court, which ruled that the individual's rights
under section 11(d) of the Charter had been violated because the structure
and proceedings of General Court Martial had failed to meet the requirements
for an independent tribunal.
of the members of General Courts Martial (and by extension members of
Disciplinary Courts Martial, which have similar provisions) was defined
by the Supreme Court in terms of security of tenure, financial security
and institutional independence. Even before the Supreme Court reached
its decision, the Department of National Defence had amended the Queen's
Regulations and Orders for the Canadian Forces to improve the security
of tenure and financial security. For example, the amended regulations
prohibit the performance of officers as members of a General Court Martial
from being used to determine their qualifications for a promotion or their
rate of pay. To address the issue of institutional independence, however,
amendments to the National Defence Act itself were necessary and
legislation to this effect was introduced in Parliament in May 1992.
governing General Courts Martial and Disciplinary Courts Martial were
amended to reduce the exercise of discretionary powers by the military
hierarchy. One measure removed the convening authority's power to appoint
the President and members of the court. The convening authority also lost
the power to vary the number of officers on the panel. The number of officers
for a General Court Martial was set at five (it could previously go up
to nine) while the panel for a Disciplinary Court Martial was set at three
members. Furthermore, the amendments removed the statutory authority of
the military hierarchy to limit the role of the Judge Advocate when deciding
questions of law and mixed law and fact.
While the amendments
to the Act and to the regulations have addressed the Supreme Courts
concerns with regard to the impartiality and independence of military
tribunals, it has been argued that other aspects of the military justice
system may infringe the provisions of the Charter. For example, could
other elements of section 11(d), such as the right to presumed innocence
and the right to a fair trial, be used as a basis for claims that the
military tribunal process violates the rights of an individual? Questions
have also been raised about the denial under section 11(f) of the right
to trial by jury for individuals before a military tribunal. Thus, there
is a possibility that Supreme Court decisions concerning appeals in current
or future courts martial will necessitate making additional changes to
the regulations and legislation governing military tribunals.
C. The Military in a Rights-Driven
While the effects
of the Canadian Charter of Rights and Freedoms on the military
justice system continue to be debated in legal circles, Canadian public
opinion has become more aware of the issues and the impetus for change
has increased significantly. The courts martial of some of the members
of the Canadian Airborne Regiment involved in the Somalia incidents have
given rise to the perception that lower ranking personnel have been made
scapegoats while senior officers are escaping any significant penalties.
There have also been accusations in the news media that officers from
National Defence Headquarters with certain interests to protect were over-represented
on the panel of officers in these courts martial.
Other issues have
been raised during testimony before the Commission of Inquiry, notably
with regard to military police investigations and possible conflicts of
interest because the office of the Judge Advocate General can be involved
in both the prosecution and the defence of a case. The role of senior
officers and the commanding officers of units in determining which individuals
will be charged has also come under close scrutiny. These and other factors
have undermined the confidence of both military personnel and the general
public in the military justice system and have led to calls for reform.
The need for a
military justice system that parallels the civilian system has been debated
by military professionals and legal experts for some time. The military
has argued that a separate system is necessary to enforce discipline efficiently,
especially in times of combat when discipline issues must be dealt with
quickly and effectively to maintain the morale and effectiveness of a
fighting unit. Critics question this justification, however, now that
the Cold War has ended and there is less likelihood that Canadian military
personnel will be engaged in a full-scale conflict in the near future.
The military also
cites the difference between civilian life and the military, where values
such as honour, efficiency and discipline are given more emphasis. Although
military justice can be harsher, some in the military would prefer to
be judged by others in the same profession, rather than by civilians unfamiliar
with the military ethos. Indeed, the discussion often centres on whether
the military is an institution with its own rules or simply an occupation
like any other, whose members should be treated exactly like other citizens.
In Canada, however,
the distinction between military and civilian society has been eroded
in recent years, mainly because of the new emphasis on individual rights.
Like every other segment of Canadian society, the military has become
more conscious of the rights and freedoms of every citizen and has made
institutional changes to ensure that they are respected. In the last decade,
for example, the Canadian military has opened to female personnel all
operational tasks except those on submarines, and has clearly stated that
racism and sexual harassment will not be tolerated.
Such changes as
those concerning women in operational duties were resisted by some because
of their claimed negative effects on operational efficiency and morale;
however, the respect for individual rights within Canadian society was
too strong to ignore and the changes had to be made. In the process, the
Canadian military moved faster on some of these issues than did its counterpart
in the United States and the United Kingdom, which had both traditionally
influenced the ethos and policies of the military in this country.
The Canadian military
cannot rest on its laurels, however. In terms of individual rights, Canadian
society is moving at its own pace and pressure for the reform of the military
justice system may have increased in any case simply as a result of appeals
to the Supreme Court concerning current and future courts martial. In
the wake of the Somalia affair, however, the military justice system is
under particularly close scrutiny and perhaps it will take significant
changes to restore the confidence of military personnel and Canadians
in general in its effectiveness and integrity.
D. Reform Options
The various options
available should be considered carefully because some of them have as
many disadvantages as advantages. One option would be simply to abolish
the whole military justice system and have military personnel charged
with an offence face the same justice system as other Canadians. Even
before the Somalia incidents, some argued for such action, if only to
reduce the number of senior officers. The present system requires specialists
in military law with sufficiently high rank to command respect and to
induce them to stay in the military rather than opting for a possibly
more lucrative civilian career. The number of such officers is significant,
at a time when budget cuts are leading to reductions in the total strength
of military personnel, particularly those not involved in operational
or combat duties.
The effects on
discipline within and outside Canada as a result of abolishing the system
would have to be considered carefully, however. The current process for
trying offences in a theatre of operation abroad might have to be replaced
by an equally complex civilian process. Specialized lawyers familiar with
military operations might still be needed to defend the accused or to
advise the Department of National Defence on questions of international
law and legislative issues. In other words, abolishing the military justice
system might place new burdens on the civilian justice system.
might be to replace most if not all the military personnel in this domain
with civilian specialists. In some cases, this could be done without extensive
measures; for example, already it is not required that the individual
serving as Judge Advocate General should have been in the military, though
this has been the tradition. By ending such traditions alone, the military
could effect many changes in its justice system.
To go to the other
extreme, the military aspect of the system could be reinforced. In the
current debate on the measures needed to restore the integrity of Canadas
military, there have been calls for greater emphasis on military ethics
and traditional values and even for a stricter military that would pay
less attention to the rights of the individual. It has been suggested
that lax recruitment requirements and policy changes made to protect individual
rights have weakened the effectiveness of the Canadian Forces. Some may
argue that the military justice system should be concerned primarily with
the effective maintenance of discipline and should not be entirely subject
to the Charter.
Such a policy,
however, could alienate the military from the society it is supposed to
defend. A military which, in a rights-driven society, emphasized operational
effectiveness at the expense of the rights of the individuals who filled
its ranks might lose the public's support and trust and raise the fear
that this attitude might be reflected in the militarys dealings
with civilians at home and abroad.
In short, the reform
of the military justice system would have implications not only for those
in the military, but also for the place of the Canadian Forces in Canadian
society. Some problems might be solved by abolishing or reinforcing the
system, but others might be thereby created, unless the various options
were carefully examined. In the face of steadily growing demands for change,
the Minister of National Defence, David Collenette, has called for a debate
on the best way to update and improve the system. This statement on 1
August 1996 suggested that this debate might begin with a study by a parliamentary
E. Developments in Late
Events in the fall
of 1996, such as the resignation of David Collenette as Minister of National
Defence on 4 October 1996 and his replacement by Doug Young, delayed,
and perhaps changed, whatever plans the government may have had for a
parliamentary debate on this issue during the final months of 1996. Nevertheless,
military justice continued to attract public attention as a result of
the following incidents: the November court martial of an officer charged
in the accidental death of Corporal Neil MacKinnon during a military exercise
in 1995; the courts martial of soldiers at CFB Valcartier who had been
involved in the falsification of invoices; and, especially, the protest
carried out by Lieutenant-Commander Dean Marsaw.
Marsaw had been found guilty by a court martial of physically and verbally
abusing the sailors under his command and had been demoted to the rank
of Lieutenant (Navy). Questions raised in the news media during the fall
of 1996, however, notably on the CBCs Fifth Estate program,
focused on the military police investigation leading up to this court
martial and the conduct of the trial itself. Furthermore, Lieutenant-Commander
Marsaw began a second hunger strike to demand that the military police
investigation be reviewed. He ended his hunger strike on 28 November 1996,
after the Acting Chief of the Defence Staff had informed him that he would
be allowed to keep his rank pending the result of his appeal to the Court
Martial Appeal Court, where his case would be heard as soon as possible.
With the military
justice system now under increased public scrutiny, the new Minister of
National Defence began to announce measures for its reform. In a speech
on 10 December 1996, Mr. Young stated that the review of the Code of Service
Discipline currently underway would likely result in amendments to the
National Defence Act. He added, however, that it had already been
decided to change the Queens Regulations and Orders for the Canadian
Forces to ensure that summary trials will be used mainly for the maintenance
of discipline within units and that the procedural safeguards in the charging
process will be strengthened. He also stated that measures to enhance
the investigative services of the military police were being considered.
In late December
1996, in the wake of the resignation of the Deputy Chief of the Defence
Staff, Lieutenant-General Armand Roy, because of improper expense claims,
the Minister of National Defence announced his intention to conduct a
thorough review of the military and to make proposals to the Prime Minister
by 31 March 1997. In addition to requesting suggestions from four notable
academics on possible general reforms for the military, Mr. Young also
established a panel of experts to advise him specifically on military
justice and the military police.
F. Special Advisory Group on Military Justice System
On 16 January 1997,
the Minister of National Defence confirmed that former Chief Justice of
the Supreme Court, Brian Dickson, Lieutenant-General (retired) Charles
Belzile, and J.W. (Bud) Bird, a former Member of Parliament, were members
of the new advisory panel and were slated to report to him by 15 March.
The panel was asked to make recommendations concerning the jurisdiction,
powers of punishment, structure and procedures of courts martial and summary
trials; to examine the role of the chain of command in investigations
and the laying of charges; to study the role, responsibility and organization
of the Office of the Judge Advocate General; to indicate which military
police functions should remain within the Canadian Forces; and to examine
possible cooperation between the military police and other police forces.
The panel will
hold public hearings in four or five cities and is inviting written submissions
from people within and outside the military. One adviser to the panel
is Lowell Thomas, a retired Assistant Commissioner of the RCMP who has
investigated how senior officers dealt with reports that Canadian peacekeepers
had abused patients at the Bakovici hospital in the former Yugoslavia.
G. Criticism of Military Police
Despite the Ministers
announcement of a review, the military justice system as a whole, and
military police investigations in particular, remained controversial.
Some critics claimed that the double standard of the military justice
system could be seen in the decision not to bring Lieutenant-General Armand
Roy before a court martial, though new charges were being laid against
Corporal Michel Purnelle (who is facing a court martial for comments criticizing
senior officers). Some say the perception that junior ranks have been
punished more severely than senior officers for their misdemeanours has
been a contributing factor to the decline in morale among members of the
of military police investigations was also questioned, notably by Colonel
(retired) Geoff Haswell after a court martial which, on 17 January 1997,
found him not guilty of charges of suppressing a document and committing
an act to the prejudice of good order and discipline by ordering the destruction
of a file related to the Somalia operation. He claimed that the charges
had been laid as a result of errors in the military police investigation.
On the same day
as Colonel Haswells court martial ended, the Department of National
Defence made public the results of two inquiries. The first of these confirmed
that 57 peacekeepers had been involved in abuse of patients at the Bakovici
hospital in the former Yugoslavia between October 1993 and March 1994.
The other inquiry, conducted by the former Assistant Commissioner of the
RCMP, Lowell Thomas, indicated that, while there was no major evidence
of interference by senior officers, there had been problems with the way
in which the military police had conducted its investigations. Thomas
recommended that the independence of the military police should be studied
more closely and suggested that the military police should be separated
from the chain of command. There has been growing concern that officers,
especially those directly involved in a situation being examined, can
order lower-rank members of the military police to stop or modify their
Perhaps the most
controversial issue to emerge from these inquiries was the fact that none
of the individuals involved in the incidents at the Bakovici hospital
will face a court martial. Section 69(1) of the National Defence Act
states that, with some exceptions, an individual cannot be brought before
a court martial more than three years after the alleged offences have
been committed. The report was issued more than three years after most
of the incidents had taken place and Lieutenant-General Maurice Baril,
Commander of Land Force Command, has decided that there will be no courts
martial with respect to the other incidents. Instead, the cases of all
47 individuals still in the military will be reviewed by special career
boards which can block the promotions of those concerned or expel them
from the military. For a few incidents (such as rape) that involve violations
of criminal law, individuals may still face charges, even if they are
no longer in the military.
Some critics were
angered by the fact that the individuals involved will avoid courts martial,
especially since the delay in confirming the incidents was caused in large
part by flawed military police investigations. This situation added fuel
to the growing demands for significant changes to the system, perhaps
even its replacement by the RCMP; the situation also raised questions
about the statute of limitations on certain offences, an issue that had
not received much public attention hitherto.
The Minister of
National Defence, David Collenette, implied in his statement of 1 August
1996 that the debate on the reform of the military justice system might
start with a study by a parliamentary committee; however, no such study
was undertaken by the Standing Committee on National Defence and Veterans
Affairs or any other committee in the latter part of 1996. Mr. Collenettes
resignation may have changed plans for Parliaments participation
in the reform of the system in the early stages. Nevertheless, there was
parliamentary discussion of some aspects of the system and Parliaments
role in its reform.
On 1 October 1996,
Jim Hart, the Member for Okanagan-Similkameen-Merritt, raised questions
in the House of Commons about the case of Lieutenant-Commander Marsaw
and called for a review of the military justice system. Mr. Collenette
replied that, among other things, he still expected Parliament to take
part in any review. On 4 and 24 October 1996, Jean Leroux, Member
for Shefford, raised questions about the state of the military justice
system and about the courts martial of individuals at CFB Valcartier who
had been involved in the falsification of invoices. In reply, on 24 October
the Parliamentary Secretary to the Minister of National Defence, James
Richardson, pointed out that the Supreme Court had confirmed the overall
validity of the military justice system, but that any legal system ought
to be reviewed to adapt to changes in society.
The role of Parliament
was again raised in a question on 22 November 1996 by Jack Frazer, Member
for Saanich-Gulf Islands, who asked the Minister if a military justice
review would be submitted to the Standing Committee on National Defence
and Veterans Affairs. Mr. Young replied that it was very probable that
the issue would be considered by that committee. It is not clear, however,
if the standing committee will be involved in the early stages of the
review or only when amendments to the National Defence Act are
ready for parliamentary consideration.
1985 - The provisions
in the National Defence Act governing military tribunals were
amended by the Statute Law (Canadian Charter of Rights and Freedoms)
1992 - The provisions
of the National Defence Act and the Queens Regulations
and Orders for the Canadian Forces governing General Courts Martial
and Disciplinary Courts Martial were amended in light of the Supreme
Court decision in R. v. Généreux.
18 October 1993
- The Court martial began of the first of six soldiers charged following
the incidents involving the Canadian Airborne Regiment in Somalia.
17 November 1994
- The Minister of National Defence David Collenette announced the establishment
of the Commission of Inquiry into the Deployment of Canadian Forces
1 August 1996
- The Minister of National Defence expressed the need for a debate on
the reform of the military justice system, possibly beginning with a
study by a parliamentary committee.
4 October 1996
- Doug Young replaced David Collenette as Minister of National Defence.
28 November 1996
- Lieutenant-Commander (Navy) Dean Marsaw ended the hunger strike he
had conducted to protest against the sentence in his court martial;
the Acting Chief of the Defence Staff had announced that the officer
could stay in the navy pending his appeal, which would be heard as soon
10 December 1996
- The Minister of National Defence, Doug Young, announced that regulations
would be changed in order to strengthen procedural safeguards in the
charging process and to redefine summary trials so that they would be
used mainly for the maintenance of internal unit discipline. He also
reported that military police investigation procedures were being reviewed.
16 January 1997
- The Minister of National Defence announced the establishment of a
special advisory group composed of former Chief Justice Brian Dickson,
Lieutenant-General (Retired) Charles Belzile and Mr. Bud Bird. The group
would study the military justice system and military police procedures.
17 January 1997
- The Department of National Defence made public a report which confirmed
many of the allegations of misconduct by Canadian peacekeepers at the
Bakovici hospital in the former Yugoslavia. Because of the statute of
limitations on disciplinary proceedings, the soldiers involved will
not face courts martial.
- After a court
martial had found him not guilty of ordering the destruction of documents
related to the Somalia operation, Colonel (retired) Geoff Haswell criticized
the military police investigation.
"Minister Wants Overhaul of Military Justice System." The
Ottawa Citizen, 2 August 1996, p. A4.
"Des réformes pour une armée moderne." Le Devoir (Montréal),
27 January 1997, p. A1.
National Defence. "A Parallel System of Law. The Role of General
Court Martial." LawNow, No. 19, February-March 1995, p.
"The Judicial Independence of Canadian Forces General Courts Martial:
An Analysis of the Supreme Court of Canada Judgement in R. v.
Généreux." Dalhousie Law Journal, No. 16, Spring 1993,
Gans, Major Arthur.
"Vocation or Job: A Warrior's Place in a Rights-driven Society."
Canadian Defence Quarterly, December 1994, p. 10-13.
"Headed for the Scrap Heap." Ottawa Sun, 8 August 1996.
D. "The Hard Facts behind the Marsaw Affair." Ottawa Sun,
27 November 1996, p. 12.
"Naval Officers Hunger Strike Exposes Justice System Flaws."
Ottawa Citizen, 29 November 1996, p. A2.
Ho, Rubson. "A
World That Has Walls: A Charter Analysis of Military Tribunals."
University of Toronto Faculty of Law Review, Vol. 54, Winter
1996, p. 149-185.
"It Was My Call Not to Lay Charges in Bosnia Incidents: Army Chief."
Montreal Gazette, 20 January 1997, p. A8.
"Soldiers Avoid Charges for Abusing Patients." Ottawa Citizen,
18 January 1997, p. A1.
"Military Justice: From Oxymoron to Aspiration." Osgoode
Hall Law Journal, No. 32, Spring 1994, p. 1-32.
The original version of this Current Issue Review was published in