A crash course on Canadian
military justice



While the popular television military drama JAG does its very best to portray the military legal profession as an elite group of young officers traversing the globe while searching for the truth, it does little to help the many viewers understand what our military justice system is really about. They aren't alone. Very few lawyers have ever set foot in a military court, much less prosecuted or represented a member of the Canadian Armed Forces.

Law schools pay scant attention to the subject of contemporary military law and as for the media, in-depth coverage of court martials, contrary to criminal jury trials, has never been a high priority. This may all change due to President Bush's controversial decision to prosecute non-U.S. citizens suspected of terrorism before military tribunals rather than before ordinary courts.

Although any similar decision by the Canadian government would be struck down by our Charter of Rights and Freedoms, it is as good a time as any to take a peek at our own military justice system. While military law consists of the statutes and regulations governing the military establishment, the primary purpose of military law is to maintain discipline and good order in the armed forces.

Code of Service Discipline

The National Defense Act is the governing statute and as such, incorporates the all-important Code of Service Discipline. It is this code that forms the very basis of our military justice system as it provides for the arrest and pre-trial custody of service members, sets out the service offences and punishments and establishes the different military tribunals.

So why is it important for our military establishment to have its own justice system? The need for a separate justice system to enforce disciplinary standards in the military has a history that dates back to the earliest organized military forces. In the words of the Supreme Court of Canada, 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.

Without a code of discipline and particularly one, which is applied with fairness and expediency, no force could function efficiently. Military commanders would simply lack the means to receive prompt obedience to their lawful orders.

This accounts for why the Code of Service Discipline includes a number of service offences that are uniquely military in nature such as insubordination, failure to carry out orders properly, showing cowardice before the enemy and absence without leave. An equally important characteristic of our military judicial system resides in the use of trained military officers who have extensive military knowledge and experience.

The theory is that justice cannot not be served unless a military infraction is judged by someone familiar with the military context.

Judge Advocate General

The Judge Advocate General (JAG) is the superintendent of the administration of military justice in the Canadian Forces as well as legal advisor to the Canadian government on military law. To be eligible for the position a candidate must be a lawyer with at least 10 years standing at the bar of a province while holding a rank that is not less than brigadier-general. Legal Branch of the

Canadian Forces

As for the approximately 150 lawyers assigned to the Legal Branch of the Canadian Forces, they are practically all regular and reserve force commissioned officers who hold rank of not less than Captain and who for the most part work under the command of the Judge Advocate General. A number of them serve the military justice system as part of the autonomous prosecution and defense organizations at courts martial. Up until September I, 1999 the prosecution function was performed by members of the Office of the Judge Advocate General.

Following the Somalia Commission of Inquiry, the Canadian Military Prosecution Service was established in order to enhance the separation between the prosecution function at courts martial and the chain of command and thereby insulate it from external influences. The Director of Military Prosecutions is now responsible for preferring all charges that are to be tried by court martial and to conduct all prosecutions at courts martial.

The Defense Counsel Services was established for much the same reasons and its director is now responsible for the supervision of legal services to persons facing proceedings under the Code of Service Discipline.

Military judges

By law, military judges must be lawyers with at least 10 years standing at the bar of a province who are assessed by the Military Judges Selection Committee before being appointed by the Federal Cabinet. Their primary role and responsibilities are to preside at courts martial and perform other judicial duties under the National Defense Act. Last January, three new military judges were appointed from among the ranks of Colonel, Lieutenant Colonel and Commander. Unlike other units of the Canadian Forces, the Office of the Chief Military Judge is no longer part of the chain of command so as to meet the necessary level of independence required by the Canadian Charter of Rights and Freedoms.

Service Tribunals

Military offences are handled by either one of two types of service tribunals-summary trials for minor offences and courts martial for more serious offences. Sentences vary between reprimands, fines, forfeiture of seniority, reduction in rank, dismissal with disgrace and imprisonment. Over 90% of all disciplinary proceedings are dealt with by summary trials conducted primarily by commanding officers.

The National Defense Act recognizes four types of court martials within the Canadian Forces based on the seriousness of the charge, possible punishment, rank or status of the accused and location of the trial. They are referred to as the General Court Martial, the Disciplinary Court Martial, the Standing Court Martial and the Special General Court Martial.

Despite their differences, they are all conducted much like civilian criminal proceedings. A General Court Martial is composed of a Military Judge and a panel of five officers of the Canadian Forces. The presiding Judge ensures that the trial is conducted in an orderly and judicial manner, which includes having to rule on all points of law and determining the appropriate sentence.

The members of the court martial are effectively the triers of fact much like ordinary jurors. They determine, by majority vote, the guilt or innocence of the accused.

While our military justice system differs in many ways from our civil system, recent sweeping amendments to the National Defense Act, spurred on by high court decisions and Commissions of Inquiry, have done much to eradicate systemic conflicts of interest while enticing higher standards of fairness, independence and impartiality. Next week: Military investigations