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Chapter 2 – Historical Background and Overview of the Court Martial System

2.1 Introduction

Although this report is concerned with the effectiveness, efficiency, and legitimacy of the court martial system as it exists today, and as it may change in the future, it is also important to understand some of the historical and contextual background surrounding the court martial system. This chapter will describe the origins of Canada’s court martial system, and will explain how and why the system has evolved over time. It will also provide an overview of how the court martial system currently operates. Ultimately, this chapter provides a baseline level of information about the court martial system to enable informed discussion about the current system and options for possible changes to that system.

2.2 History of the Court Martial System: Origins up to 1950

Monarchs, military generals, and political leaders have long recognized the importance of having a disciplined armed force, and therefore of the need for institutions to assist in maintaining discipline within an armed force. As Maurice de Saxe, Marshal General of France, noted in his 1732 treatise on the science of warfare, Mes Rêveries, military discipline “is the soul of armies. If it is not established with wisdom and maintained with unshakeable resolution you will have no soldiers. Regiments and armies will only be contemptible, armed mobs, more dangerous to their own country than to the enemy.”

From earliest times – dating back to the era of the Crusades – British land forces at war or on operations outside of the country were governed by Articles of War, which were proclaimed by the Monarch as exercise of the Royal Prerogative.1 The Articles created certain military offences (e.g.: stealing from a comrade), and prescribed the punishments (e.g.: having one’s head shaven and a pot of boiling pitch poured thereupon).2 Violations of the Articles eventually came to be tried in a court presided over by the Earl Marshal, who was effectively the military commander responsible for personnel matters.3 This court came to be known as the Court of the Marshal, and then simply as the “court martial.”4

The Articles of War did not apply during peacetime, which made it difficult for the Monarch to maintain a standing army.5 However, in 1689, the English Parliament passed a first Mutiny Act that created military offences and that applied during peacetime,6 which then made it possible for the King to keep a disciplined standing army during such times of peace.7 The Articles of War continued to govern the army during times of war or extra-territorial deployments. The Royal Prerogative was eventually merged, in 1803, into legislation such that a single Army Act applied to govern the land forces during both times of peace and war.8

The Royal Navy evolved similarly: councils of war made up of senior officers, advised by a judge advocate, initially presided over alleged breaches of the Articles of War.9 These councils came to be known as Naval courts martial, and the process for trying offences was eventually provided for in legislation that created Naval courts martial in 1661.10

Canadian military law traces its origins to these British roots. Shortly after Confederation, the Canadian Army was first organized under the Militia Act of 1868.11 This legislation served to incorporate the existing British Army Act into Canadian law, just as equivalent British laws relating to the governance of the Canadian Navy and Air Force were adopted almost in their entirety into Canadian law in 1910 and 1919, respectively.12 In the cases of the Canadian Army and Air Force, the essentially British legislation continued to apply until 1950.13 In 1944, however, the Canadian Parliament passed a Naval Services Act that included its own disciplinary code for the Royal Canadian Navy, which was then superseded shortly afterward by the single National Defence Act that Parliament passed to govern all three services in 1950.14

From the time of the first courts martial up until 1950, control of the proceedings remained almost exclusively in the hands of commissioned officers within the armed forces, who were ultimately responsible for the discipline of their personnel. The charges that led to courts martial originated within the armed forces, and the officers who formed part of a court martial would decide on the charges without necessarily having the assistance of a trained lawyer or judge (“judge advocate”) during the trial to instruct them on the law.15 Furthermore, there was generally no way to appeal from the decision of a court martial.16 This process for dealing with military offences was consistent with the prevailing attitudes of the time – at least within the armed forces – that military discipline was the prerogative of commanders, and that “the soldier should learn to look to his officer alone for justice.”17

Many of the concepts that are now widely acknowledged as being necessary in order to guarantee fair trials were not entrenched within the court martial system during this period. For instance, one president of a district court martial of a Canadian soldier at Shorncliffe in 1917 expressed his views about the right of an accused person to make a full answer and defence through counsel as follows:

Whatever the custom may be in Civil Courts, it should be clearly understood by all who appear as Counsel that to endeavour to persuade a Court that a man is not guilty while the evidence decidedly shows that he is, or to try and fog the court by irrelevant cross-examination and the raising of technical points on which a man might get off in a Civil Court, is not in accordance with the spirit of the law as laid down in the Army Act; further to try and get a man off on a purely technical point is tantamount to encouraging Military Crime which it is the duty of every Officer to keep down and to prevent in every way possible.18

As this example highlights, the focus of a court martial was placed far more on discipline than on what we would now call justice.

Notwithstanding this reality, military law did evolve over time, largely to provide for more humane and civilized treatment of the soldiers. For instance, the punishment of flogging and other corporal punishments were largely abolished.19 Additionally, legal officers were increasingly and more formally involved in aspects of superintendence of the administration of the court martial system,20 by teaching and providing instruction to officers on the system, and by issuing guidebooks to the commanders who used the system.21 Nonetheless, the court martial system during this period was clearly a military commander’s instrument for maintaining discipline.

2.3 History of the Court Martial System: 1950-1999

After the end of the Second World War, there was a strong interest in reforming military law within Canada, the United States, and the United Kingdom. In Canada, several factors seem to have contributed to this reform movement. First, the Minister of National Defence at the time, Brooke Claxton, was a veteran of the First World War who had a strong interest in military law and in efforts to consolidate and economize within his Cabinet portfolio.22 Second, high-profile unrest among the lower ranks in the Royal Canadian Navy had made it clear – after the report of the Mainguy Commission23 – that “a gulf had developed between Canadian officers and the lower deck”,24 including in respect of the administration of discipline within the Navy. Finally, military and political authorities in Canada were aware that efforts were in place in the United States to enact a Uniform Code of Military Justice (that was ultimately passed on 5 May 1950), and in the United Kingdom to create an appeal mechanism for courts martial while also modernizing the scale of punishments in that jurisdiction.25

The result of this pressure to reform in Canada was ultimately seen in the National Defence Act that received Royal Assent on 30 June 1950.26 This Act was the product of years of policy work and months of legislative drafting effort by officials from within the Department of National Defence, the Department of Justice, and the Canadian Forces.27 The Act also received significant scrutiny in Parliament, where Parliamentarians recommended changes to the law as they “sought to protect and increase the rights of individuals under military law.”28

The 1950 NDA served many functions: it amalgamated at least six other statutes (i.e.: the Canadian Militia Act, Naval Service Act, Royal Canadian Air Force Act, and Department of National Defence Act, and the United Kingdom’s Army Act and Air Force Act) into a single law; it patriated all laws governing the Canadian Forces from the United Kingdom into one Canadian statute; it created a uniform Code of Service Discipline that applied equally to all three services; and, it modernized many aspects of military justice.29

With regard to courts martial in particular, the Act represented a major evolution toward standards of justice that applied in civilian criminal courts in a number of ways. For instance, as the JAG of the day noted, the 1950 NDA created a statutory right of appeal from the findings and sentences of courts martial to the Court Martial Review Board; it provided for jurisdiction to try ordinary civil offences at courts martial, but also asserted the supremacy of civil courts; it aligned many punishments and trial procedures more closely with civilian equivalents; it required the convening authority to appoint a legally-trained “judge advocate” to officiate at every General Court Martial (where more senior personnel and more serious offences would be tried); and, it provided for a power to order a new trial in the event that new evidence is discovered.30

However, many of the more command-centric features of the court martial system remained in place. For instance, no judge advocate needed to be appointed to officiate at Disciplinary Courts Martial (where only punishments of dismissal with disgrace, imprisonment for less than 2 years, and lesser punishments could be imposed);31 the military commander who had authority to convene a court martial would also be responsible for appointing the military officers who would serve as members of the court martial to try the charges;32 and, military commanders had the power to overrule decisions of courts martial33 (because “it was not considered practical to remove from higher authority the power to overrule courts martial in respect of findings”34). Additionally, although the prosecutor and defence counsel were generally recommended to the convening authority for appointment from within the Office of the JAG (and were usually Deputy Judge Advocates from the local base or region), the convening authority “retained control over the actions that the prosecutor might take. Military prosecutors did not have the broad discretion that is standard for civilian prosecutors.”35

This 1950 version of the NDA remained largely unchanged for almost a half-century, with only minor changes made to the court martial system at infrequent intervals between 1950 and 1998. In 1955, with an increasing presence of Canadian Forces members and their dependants in Europe, the Act was amended to provide Canadian civilian courts with jurisdiction to deal with any act outside of Canada by a person subject to the Code of Service Discipline (including dependants) that, if committed in Canada, would be an offence.36 This change to the law resulted in at least two cases wherein a civilian judge was brought from Canada to try homicide cases in Europe.37 In 1959, a codified set of regulations, the Military Rules of Evidence, were brought into force after having been drafted by three law professors.38 In 1967, the law was amended to create a “Special General Court Martial” consisting only of a military Presiding Judge, with jurisdiction to try civilians who were subject to the Code of Service Discipline39 (practically, as an alternative to flying a civilian judge into Europe to deal with offences committed by the dependants of military personnel).40 At the same time, a provision of the NDA that had previously only permitted trials by a “Standing Court Martial” (consisting of a President – who would be an officer and a lawyer of at least 3 years standing at the bar – presiding alone) in times of emergency41 was amended to provide for the establishment of Standing Courts Martial at all times.42

Between 1990 and 1992, as a result of constitutional litigation at the Court Martial Appeal Court43 and at the Supreme Court of Canada44 relating to the right of accused persons to a fair trial by an independent and impartial tribunal, the NDA and associated regulations were amended in a number of ways. For instance, the Act was amended to prevent a court martial convening authority from also appointing the members of a court martial panel.45 The regulations were amended such that judge advocates at General Courts Martial were drawn from officers who were first appointed to the position of a military trial judge for a period of two to four years, and were appointed for a particular trial by the Chief Military Trial Judge instead of the Judge Advocate General.46 The regulatory amendments also prohibited an officer’s performance as a member of a General Court Martial (GCM) or as a military trial judge from being used to determine the officer’s qualification for a promotion or rate of pay.47 All of these changes were intended to ensure that the court martial system respected fundamental rights guaranteed by the recently adopted Canadian Charter of Rights and Freedoms.

Many of the changes that were made between 1990 and 1992 were precipitated by issues that were explicitly discussed by the Supreme Court of Canada in its R v Généreux decision.48 In that decision, Généreux challenged the constitutionality of his trial by court martial under the pre-1990 legal regime. Specifically, he alleged (among other things) that his right under s. 11(d) of the Charter to be tried by an independent and impartial tribunal was violated because of the various connections and influences that senior leaders of the Canadian Forces had with the judge advocates who preside at courts martial, and with the members of a General Court Martial panel. A majority of the SCC agreed that there were valid reasons for the existence of a separate and parallel military justice system:

[T]he military has its own Code of Service Discipline to allow it to meet its particular disciplinary needs. In addition, special service tribunals, rather than the ordinary courts, have been given jurisdiction to punish breaches of the Code of Service Discipline. Recourse to the ordinary criminal courts would, as a general rule, be inadequate to serve the particular disciplinary needs of the military. There is thus a need for separate tribunals to enforce special disciplinary standards in the military.49

Additionally, the majority made the following observation:

The purpose of a separate system of military tribunals is to allow the Armed Forces to deal with matters that pertain directly to the discipline, efficiency and morale of the military. The safety and well-being of Canadians depends considerably on the willingness and readiness of a force of men and women to defend against threats to the nation's security. To maintain the Armed Forces in a state of readiness, the military must be in a position to enforce internal discipline effectively and efficiently. Breaches of military discipline must be dealt with speedily and, frequently, punished more severely than would be the case if a civilian engaged in such conduct.50

However, the SCC majority found that several features of the system as it existed at the time infringed upon constitutionally-required elements of judicial independence. In particular, when assessing whether sufficient institutional independence existed within the court martial system, the majority commented as follows:

[M]ilitary officers, who are responsible to their superiors in the Department of Defence, are intimately involved in the proceedings of the tribunal. This close involvement is, in my opinion, inconsistent with s. 11(d) of the Charter. It undermines the notion of institutional independence that was articulated by this Court in Valente. The idea of a separate system of military tribunals obviously requires substantial relations between the military hierarchy and the military judicial system. The principle of institutional independence, however, requires that the General Court Martial be free from external interference with respect to matters that relate directly to the tribunal’s judicial function. It is important that military tribunals be as free as possible from the interference of the members of the military hierarchy, that is, the persons who are responsible for maintaining the discipline, efficiency and morale of the Armed Forces.51 (emphasis added)

However, the majority noted that recent regulatory changes (made after Généreux’s court martial but before his appeal to the SCC) “have gone a considerable way towards addressing the concerns” that the SCC majority identified in that case.52 The Généreux case has not subsequently been over-ruled or reconsidered, and remains the lengthiest and most wide-ranging decision from the SCC on a military justice topic.

At around the same time that Généreux’s appeal was making its way to the SCC, other consequential amendments were made to the NDA. In 1991, as part of a set of comprehensive changes to the Criminal Code’s mental disorder regime that was necessary after the Supreme Court of Canada’s decision in R v Swain,53 the NDA was amended to ensure that a similar regime was in place in respect of trials by court martial.54 Similar consequential amendments were made to the NDA in 1995 when Parliament passed a law regulating many aspects of firearms that, among other things, empowered courts martial to make prohibition orders in respect of convictions for certain listed offences, under certain conditions.55 The orders would prohibit offenders from possessing any firearm, crossbow, prohibited weapon, or restricted weapon.

As the above discussion suggests, however, the core nature of courts martial between 1950 and the mid-1990s (throughout the Korean War, the Cold War, the first Persian Gulf War, and numerous peacekeeping operations) remained substantially consistent. Only relatively narrow incremental advances to the law took place during this period within a system that remained fundamentally command-centric.

2.4 History of the Court Martial System: 1999 up to the Present

Major changes to the Canadian court martial system took place at the end of the Twentieth Century, in the wake of significant public and government attention that was focused on misconduct and indiscipline within the Canadian Forces. As is now well known and accepted, the Canadian Airborne Regiment’s 2 Commando that deployed to Somalia as part of a United Nations peacekeeping mission in 1993 showed substantial signs of indiscipline, criminality, and racism even before the unit deployed.56 These types of misconduct manifested through the theft of pyrotechnics, the setting on fire of a duty NCO’s car, and the display of Confederate flags.57 As is also now well known, numerous members of the unit were involved during the deployment in the capture, torture, and killing of a Somali teenager, Shidane Arone. This abuse was condoned, and allegedly ordered, by senior officers.58

A federal Commission of Inquiry was ordered into the deployment of the Canadian Forces to Somalia, and this Commission ultimately dedicated lengthy portions of its report to the topic of military justice.59 The report made 45 detailed recommendations about changing the military justice system.60 At approximately the same time as this Commission was concluding its work in 1997, the Minister of National Defence created a Special Advisory Group on Military Justice and Military Police Investigation Services chaired by former Chief Justice of Canada, the Right Honourable Brian Dickson. This Special Advisory Group produced a lengthy report for the Minister on 14 March 1997 that included 35 recommendations for change.61

As a result of the recommendations contained within these two reports, and several other factors, the Government introduced Bill C-25 on 4 December 1997.62 This bill was subsequently passed by Parliament, and received Royal Assent on 1 December 1998. Provisions of the bill came into force on 1 September 1999.

Bill C-25 represented the most extensive set of amendments to the NDA since it was first enacted in 1950. With respect to the court martial system, the bill made major institutional changes, including the following:

The bill also made a number of other changes to different parts of the NDA dealing with military grievances and military police (MP), among other things. Significantly, the bill also included a provision that required the Minister to have the provisions of the bill independently reviewed within 5 years, and to report to Parliament on that review.

Bill C-25 was important to the evolution of the court martial system because it established institutions and independence mechanisms within the system that substantially aligned it with Canada’s civilian criminal justice system, while preserving many of the historic aspects of a court martial, such as the involvement of a panel of military members as fact-finders.

The first independent review of the provisions of Bill C-25 was conducted by former Chief Justice of Canada, the Right Honourable Antonio Lamer, in 2003.63 This review focused on three main areas: aspects of the administration of military justice, the Canadian Forces’ grievance process, and the military police complaints process. The report of this review concluded that “the military justice system is generally working well” with “room for improvement.”64 The report included 88 recommendations for improvement.

From 2003 onward, successive governments made several separate, but unsuccessful, attempts to amend the NDA in order to implement recommendations that were contained in the Lamer Report.65 Ultimately, Bill C-15 – addressing many of the recommendations contained in the Lamer Report – was introduced in the House of Commons on October 7, 2011, and received Royal Assent on 19 June 2013.66 Though it took several years, with the enactment of Bill C-15 in June 2013, most of the outstanding recommendations from the Lamer Report were accepted by the Government and will be implemented.

Broadly speaking, Bill C-15 makes the following changes that are relevant within the court martial system:

Like Bill C-25 in 1999, Bill C-15 took further steps to align many features of the court martial system with features of the civilian criminal justice system, and strengthened the independence of key actors within the system.

While Bill C-15 was progressing through Parliament, the second independent review of the provisions and operation of Bill C-25 was completed in December 2011. This review dealt with aspects of the administration of military justice, the Canadian Forces’ grievance process, and the military police complaints process. It was conducted by retired Chief Justice of the Ontario Superior Court, the Honourable Patrick J. LeSage.67 The report again found that “regarding the operation of the military justice system, specifically the summary trial and court martial processes, the system is generally working well.”68 The report included 55 recommendations for improvement in a variety of areas. Many of the LeSage Report recommendations that the Government has accepted have already been implemented through non-legislative means. Others would have been addressed in Bill C-71 (Victims Rights in the Military Justice System Act),69 but the bill died on the order paper in August 2015 when Parliament dissolved for a federal general election.

Apart from Bill C-25 and its legacy of independent reviews, and Bill C-15 which implemented recommendations of the first independent review, the NDA has been amended on several other occasions between 1999 and the present, for two main reasons: either as part of more broad civilian criminal justice system reforms that required consequential amendments to the NDA, or in response to constitutional rulings from the Court Martial Appeal Court.

In terms of consequential amendments, Bill S-10 (which received Royal Assent on 29 June 2000)70 made amendments to the Criminal Code and the DNA Identification Act, but also to the NDA in order to authorize military judges to issue DNA warrants in the investigation of designated service offences. It also authorizes military judges to order military offenders convicted of a designated offence to provide samples of bodily substances for the purpose of the national DNA data bank. These authorities are similar to those that may be exercised by a provincial court judge under the Criminal Code.

Similarly, Bill S-3 (which received Royal Assent on 29 March 2007)71 made amendments to the NDA in order to create a scheme that requires offenders who have committed service offences of a sexual nature to register in a national database under the Sex Offender Information Registration Act. The new scheme paralleled the existing scheme in the Criminal Code. At the same time, the bill also made certain amendments to the Criminal Code and the Sex Offender Information Registration Act to enhance the administration and enforcement of the registration scheme for sex offender information.

Also in 2007, Bill C-18 (which received Royal Assent on 22 June of that year)72 made amendments to the Criminal Code, the DNA Identification Act, and the NDA, all in order to update the DNA identification regime by providing more detail to the regime, and by creating an offence for failure to comply with a DNA order.

In 2010, Bill S-2 (which received Royal Assent on 15 December of that year)73 made amendments to the Criminal Code, the Sex Offender Information Registration Act and the NDA to enhance police investigation of crimes of a sexual nature and allow police services to use the national database proactively to prevent crimes of a sexual nature. It also amended the Criminal Code and NDA to provide that sex offenders who are subject to a mandatory requirement to comply with the Sex Offender Information Registration Act are also subject to a mandatory requirement to provide a sample for forensic DNA analysis.

In 2011, Bill C-48 (which received Royal Assent on 23 March of that year)74 made consequential amendments to the NDA as part of a set of changes to the Criminal Code in order to ensure that the ordinary rule at section 149 of the NDA – that successive sentences are to run concurrently – is subject to section 745.51 of the Criminal Code, which permits a judge to order that parole ineligibility periods for successive murder sentences are to run consecutively.

Finally in 2012, Bill C-10 (which received Royal Assent on 13 March of that year)75 made wide ranging changes to different aspects of the civilian criminal justice system, but also made consequential amendments to NDA’s weapons prohibition order regime that was created in 1995. Specifically, the bill expanded the list of offences for which a weapons prohibition order may be made under the NDA to include more offences under the Controlled Drugs and Substances Act, in a way that mirrors the Criminal Code.

In addition to all of the above consequential amendments, the NDA was amended twice between 1999 and the present as a result of constitutional decisions of the Court Martial Appeal Court. In the CMAC’s decision in R v Trépanier (2008),76 the Court found the provision of the NDA that gave the Director of Military Prosecutions the discretion to choose the type of court martial (i.e.: a trial by military judge sitting alone or a trial by a military judge and a panel of military members who determine the verdict) to be unconstitutional, and declared the provision to be of no force or effect. The Court reasoned that the choice between modes of trial was a tactical element of an accused person’s right to make a full answer and defence. The Court further stated that, where legislation provides for such a choice, then the Charter requires that the choice be made by an accused person rather than the Crown. As a result of this finding, Parliament passed remedial legislation within a matter of two months, in the form of Bill C-60.77 Bill C-60 amended the NDA in a way that was consistent with the Criminal Code’s structure by providing for an accused person’s election for trial by Standing Court Martial or General Court Martial in most cases, and eliminating the two other types of courts martial (Special General Court Martial and Disciplinary Court Martial) that had previously existed. The bill made other amendments related to the CMAC’s decision, creating a requirement for unanimity in General Court Martial panel decisions on findings of guilty, not guilty, unfit to stand trial, and not responsible on account of mental disorder, where previously only a majority vote was required (in much the same way as a unanimous jury verdict on these decisions is required in civilian criminal courts in Canada).

In 2011, the CMAC, in R v Leblanc,78 held that provisions of the NDA and associated regulations that permitted military judges to be appointed for fixed five-year terms, and required them to be reappointed by the Governor in Council if they wished to serve additional terms, were unconstitutional, and were therefore of no force or effect. The Court found that these provisions infringed the constitutional principle of judicial independence, and therefore violated an accused person’s right to a fair trial by an independent and impartial tribunal that is guaranteed under the Charter. In response to this decision, Parliament swiftly passed Bill C-16,79 which amended the NDA to provide that military judges are now appointed by the Governor in Council until a maximum retirement age of 60, or until they release from the Canadian Forces. This amendment ensures that military judges have sufficient security of tenure – subject only to removal for cause on the recommendation of a Military Judges Inquiry Committee – to perform their functions with the degree of judicial independence that the Charter requires. As the judge of the CMAC who wrote the Court’s decision in Leblanc, Mr. Justice Létourneau, subsequently noted (while writing extra-judicially),

[M]ilitary judges have now acquired the last missing component of their judicial independence. They are appointed during good behaviour and their retirement is set at age 60. […] [M]ilitary judges were able to secure the guarantees of judicial independence necessary to the exercise of a jurisdiction in criminal law akin to provincial courts and superior courts of criminal jurisdiction.80

As all of the above discussion illustrates, Canada’s court martial system has evolved significantly over time. The decades since the adoption of the Charter, in particular, have represented a period of relatively constant progression away from the system’s origins as a simple and command-centric tool for dealing with serious internal disciplinary matters, to a complex and sophisticated form of military criminal justice system that increasingly incorporates standards, features, and design elements that are drawn from the civilian criminal justice system.

2.5 Overview of the Current Court Martial System

The discussion that follows will briefly describe key features of the court martial system as it exists today.

2.5.1 Jurisdiction – People

Section 60 of the NDA provides that the Code of Service Discipline applies to Regular Force (full-time) military members at all times and to Reserve Force (generally more occasional and part-time) military members in specified circumstances, such as when they are on duty, in uniform, or in a CAF vehicle, among other circumstances. The CSD can also apply to civilians in limited circumstances, such as while accompanying a CAF unit that is on service or active service. As was mentioned above, the provision of the NDA that creates this jurisdiction over civilians has been used to try dependents of CAF members who accompany the CAF member on operational service outside of Canada.

2.5.2 Offences

The NDA characterizes all offences under the CSD as “service offences.”81 For conceptual purposes, there are three broad groups of service offences: uniquely military offences; civil offences; and, foreign offences.

Sections 72-129 of the NDA create a series of uniquely military offences, such as desertion, disobedience of a lawful command, misconduct in the presence of the enemy, and negligent performance of a military duty. Under Canadian law, civilian courts have no jurisdiction to try these uniquely military offences, although a court martial has jurisdiction to deal with all of these offences.

Section 130 of the NDA provides for jurisdiction over a second group of service offences that one might refer to as civil offences. By virtue of section 130 of the NDA, all civilian offences under the Criminal Code and other federal laws can also be charged as service offences, regardless of whether the underlying act or omission took place inside or outside of Canada. Any of these civil offences that are charged as service offences can be tried by courts martial, subject to limited exceptions: murder, manslaughter, and Criminal Code offences relating to the abduction of children cannot be tried by courts martial if the alleged offences took place in Canada (although they could be tried by courts martial if the offences are alleged to have taken place outside of Canada).82 Canadian civilian criminal courts have concurrent jurisdiction to try any civil offences committed by military personnel inside of Canada, and in some cases these courts have concurrent jurisdiction to try civil offences committed outside of Canada (e.g.: torture, air piracy, and crimes against internationally protected persons under the Criminal Code83). In cases where concurrent jurisdiction exists between courts martial and Canadian civilian criminal courts, no rule of primacy exists to determine where an offence should be tried. Rather, in each case, civilian and military authorities may work together to determine whether a proceeding by court martial would be more appropriate than by a trial in civilian criminal court.

A final group of service offences consists of what one might call foreign offences. Section 132 of the NDA provides for jurisdiction over acts that would constitute offences under the relevant foreign law applicable in the place where the acts are committed. Only a court martial would have jurisdiction to try a foreign offence that is charged as a service offence under section 132 of the NDA, although in many cases the appropriate foreign courts will have concurrent jurisdiction to deal with the matter as an offence under local domestic law.

2.5.3 Punishments and Sentences

The following hierarchy of punishments is set out within section 139 of the NDA: imprisonment for life; 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; and minor punishments.

Many of these punishments, such as reduction in rank and dismissal from Her Majesty’s service, are not available to judges who sentence offenders in civilian courts, under the Criminal Code. Also, many of the sentencing options that are available to these same civilian court judges, such as conditional sentences of imprisonment,84 probation orders,85 and conditional discharges,86 are not available to military judges who sentence offenders within the court martial system.

The rules on sentencing within the military and civilian justice systems are also different. For instance, the NDA sets out a rigid hierarchy of punishments: 1 day of detention is, by virtue of section 139 of the NDA, a more severe punishment than a reduction in rank, just as a reprimand is a more severe punishment than a $30,000 fine. No equivalent statutory hierarchy of sentences exists under the Criminal Code. Further differences exist with respect to the pronouncement of sentences: in the civilian criminal justice system, judges must determine the sentence for each offence of which the offender was found guilty,87 but a court martial only pronounces one global sentence, regardless of the number of offences of which the offender was found guilty.88 Finally, the rules regarding how sentences are to be served are also different: in the civilian criminal justice system, a judge may order that different sentences of imprisonment are to be served either consecutively or concurrently with one another,89 while any new sentence of imprisonment that is imposed by a court martial must be served concurrently with a previous unexpired sentence of imprisonment.90

2.5.4 Judges

Military judges who preside at courts martial are officers in the CAF who must have at least ten years of commissioned service and ten years of experience as lawyers in order to be appointed as military judges.91 As mentioned above, they are appointed with tenure until reaching the maximum mandatory CAF retirement age of 60.92

Federally-appointed civilian judges also require ten years of experience as lawyers prior to being eligible for appointment,93 while in some jurisdictions, provincially-appointed judges require only 5 years of experience as lawyers.94 The retirement age for civilian judges is generally either age 7095 or 75,96 depending on the jurisdiction.

Because of the requirement for ten years of commissioned service as an officer in the CAF, the pool of individuals who are eligible for appointment as a military judge is relatively small, and consists overwhelmingly of regular force and reserve force CAF legal officers. For the same reasons, the professional background and legal experience that each military judge possesses prior to being appointed tends to be substantially similar, and reflects the general trend for legal officers to divide their professional time between operational law, military administrative law, and military justice postings.97

Notwithstanding their status as members of the CAF, military judges do not wear CAF uniforms when presiding at courts martial. Furthermore, they cannot be required to perform any duties that are incompatible with their judicial duties.98

2.5.5 Panels

A Standing Court Martial consists of a military judge who presides alone and who makes all determinations of law and fact.99 General Courts Martial, in contrast, consist of a military judge who presides together with a panel of military members.100 The military judge makes all determinations on questions of law101 – including the sentence to be imposed on an offender102 – while the panel acts as the trier of fact, and is responsible for determining the verdict.103 The panel’s decision on a verdict must be unanimous.104

The NDA provides for detailed rules as to who may form part of a panel: certain groups of military members are categorically excluded (such as all non-commissioned members below the rank of Warrant Officer,105 and all officers below the rank of Captain,106 lawyers,107 military police,108 and witnesses in the matter109). The senior member of the panel must be of the rank of at least Colonel.110 A panel that tries an officer must be comprised solely of officers.111 A panel that tries a non-commissioned member may include up to two non-commissioned members.112

Jurisprudence from the CMAC suggests that a panel is both similar to and different from a civilian jury in a number of ways:

[M]embers of a panel can take judicial notice of matters peculiar to their community to an extent not permitted jurors, acquit or convict by majority vote and are not peers in the usual sense because they are servicemen, […]. That being said, as we shall see, the comparison between jury trials and courts martial with a panel remains quite useful both from a historical perspective and an understanding of the objectives sought by the legislator.113

Although the NDA does not articulate a rationale for having a panel, the Supreme Court of Canada explained the panel’s function in the following terms (albeit in an era when the panel still determined sentence): the panel “represents to an extent the concerns of those persons who are responsible for the discipline and morale of the military”.114 In this sense, a panel is quite different from a civilian jury, which is not expected to represent the concerns of government leaders or others within the executive branch of government inasmuch as it is expected to represent the concerns of society as a whole – to act as the conscience of the community.115

It should be noted that the SCC’s comments about the function of the panel were made at a time when panels still determined the sentence to be imposed on offenders. In 1999, however, Bill C-25 changed this situation such that the presiding military judge, rather than the panel, now determines the sentence in each case. Similarly, the CMAC’s comments about how a panel shares both similarities and differences with a civilian jury were made at a time when all of a panel’s decisions (including decisions as to the verdict) were made by a simple majority vote. In 2008, however, Bill C-60 changed this situation such that a panel’s decisions in respect of a finding of guilty or not guilty, of unfitness to stand trial or of not responsible on account of mental disorder is now determined by unanimous vote. A decision in respect of any other matter is determined by a majority vote.

It is unclear whether the previously articulated statements about a panel’s function, or about a panel’s comparability to a civilian jury, would be affected by these legislative changes. The changes have had the effect of increasing similarities between panels and juries as finders of fact.

2.5.6 Prosecutions

The prosecution of military offences is undertaken by the Director of Military Prosecutions, a legal officer within the Canadian Armed Forces who currently holds the rank of Colonel, and by officers who are barristers or advocates with standing at the bar of a province who may assist and represent the DMP.116 The DMP is appointed by the Minister of National Defence for a four-year term, may only be removed for cause, and can be re-appointed for subsequent terms by the Minister.117 The DMP also acts as counsel for the Minister for appeals when necessary.118

The DMP acts under the general supervision of the Judge Advocate General,119 who, in turn, is responsible to the Minister of National Defence. However, in practice, the DMP is not assessed in his or her performance by the JAG, and does not receive an annual Performance Evaluation Report. The JAG may issue general instructions or guidelines in writing in respect of prosecutions, which the DMP shall ensure are available to the public.120 The JAG may also issue instructions or guidelines in writing in respect of a particular prosecution, which the DMP shall ensure are available to the public unless the DMP considers that it would not be in the best interests of the administration of military justice for any instruction or guideline, or any part of it, to be available to the public.121 The JAG must provide the Minister with a copy of any instructions or guidelines issued to the DMP.

In many ways, the DMP is very similar to the Directors of civilian criminal prosecution services in Canada. For instance, like his civilian counterparts, the DMP is appointed by a Minister of the Crown and cannot be removed from office without cause. Similarly, like their civilian counterparts, the prosecutors who assist and represent the DMP are all lawyers who are members of a provincial bar,122 and who have a constitutional obligation to act independently of partisan concerns and other improper motives.123 Like their civilian counterparts, the DMP and his military prosecutors consider, in each case, whether there is a reasonable prospect of conviction and whether the public interest requires that a prosecution be pursued.124

However, Canada’s military prosecution service is unique in a number of ways. For instance, unlike in many other Canadian jurisdictions (where some of the DMP’s civilian counterparts are not required or eligible to be re-appointed for subsequent terms),125 the DMP can be re-appointed after completion of a term.126 Also unlike his civilian counterparts, the DMP is ultimately responsible to the Minister of National Defence,127 rather than to an Attorney General or Minister of Justice. The DMP’s chain of responsibility is even more unique in that the DMP falls under the general supervision of the Judge Advocate General,128 and only has a direct relationship with the Minister of National Defence for the purposes of appeals129 (whereas his civilian counterparts are directly responsible to their Ministers)130. Unlike civilian criminal prosecutors (who tend to be career criminal lawyers), military prosecutors tend to serve 4-6 years in the prosecution service before or after being posted to other military legal positions,131 which do not involve prosecuting or defending charges at courts martial.

2.5.7 Defence Counsel Services

The Director of Defence Counsel Services is a legal officer within the Canadian Armed Forces, who currently holds the rank of Colonel.132 The DDCS provides, supervises, and directs the provision of legal services prescribed in regulations made by the Governor in Council to persons who are liable to be charged, dealt with, and tried under the Code of Service Discipline.133

The DDCS is appointed by the Minister of National Defence for a four-year term, may only be removed for cause, and can be re-appointed for subsequent terms by the Minister.134

The DDCS acts under the general supervision of the Judge Advocate General,135 who, in turn, is responsible to the Minister of National Defence.136 In practice, the DDCS is not assessed in his or her performance by the JAG, and does not receive an annual Performance Evaluation Report. Additionally, as with all defence counsel in Canada, the law recognizes that the DDCS and the lawyers who are provided or supervised by the DDCS, who can either be legal officers in the CAF or civilian lawyers, owe a unique duty of loyalty and commitment to the accused persons they represent.137 Therefore, although the JAG can issue general instructions and guidelines to the DDCS in respect of defence counsel services,138 the JAG cannot issue such instructions and guidelines in respect of a particular case. All communications between an accused person and DDCS counsel are protected by solicitor-client privilege.139

It is the responsibility of the DDCS to provide legal services, including full legal representation at no cost to the individual, to all persons who are liable to be charged, dealt with, and tried under the CSD and who indicate a desire to be represented by Defence Counsel Services.140 Such representation can also be available for the purposes of appeals to the Court Martial Appeal Court, and to the Supreme Court of Canada.141 Publicly-funded representation, where all accused persons may benefit regardless of their incomes, is different from the civilian legal aid models used in Canada.142

The structure for defence counsel services within the court martial system is also different from Canadian provinces and territories in a number of ways. For instance, in many Canadian jurisdictions, responsibility and accountability for legal aid services is assigned to an independent Board of Directors, or to a committee of the Law Society, or to some other entity that is at arm’s length from the rest of the executive branch of the relevant government.143 However, within the court martial system, there is a direct relationship between the DDCS and the JAG,144 although the JAG has no authority to issue instructions or guidelines to the DDCS in respect of a particular case.

Additionally, unlike their counterparts within the civilian criminal defence bar (who tend to be career criminal and litigation lawyers), military defence counsel who assist the DDCS in defending accused persons at courts martial are liable to be posted to other jobs, and tend to serve between 4-7 years within the defence counsel services organization before or after being posted into other jobs which do not involve prosecuting or defending charges at courts martial.145

2.5.8 Evidence

The rules of evidence at courts martial are created by a regulation called the Military Rules of Evidence (MRE).146 The MRE came into effect on October 1, 1959, and have only been amended four times since then, in 1967, 1971, 1990, and 2001.147 In each case the amendments were minor in scope. The common law of evidence has developed significantly and continuously since the MRE were last updated.

In many ways, the MRE are different from civilian rules of evidence in Canada. For example, military judges are permitted under the MRE to take judicial notice of “all matters of general service [military] knowledge.”148 The MRE also includes different rules about hearsay evidence, confessions, and a number of other types of evidence.

It should be noted, however, that under Rule 4, any evidentiary question that cannot be determined by reference to the MRE is to be determined by the law of evidence that would be applied by a civil court in Ottawa – which is to say, by the common law of evidence that would apply in Ottawa.

2.5.9 Appeals

Currently, persons who are subject to the CSD and the Minister of National Defence have the right to appeal to the Court Martial Appeal Court from decisions of courts martial.149 This is also true for appeals made to the Supreme Court of Canada.150

Currently, the CMAC must be comprised of at least 4 judges of the Federal Court or the Federal Court of Appeal of Canada, and any other number of judges of superior courts of criminal jurisdiction.151 In fact, the CMAC is comprised of 67 civilian judges drawn from trial and appeal courts across Canada, although the vast majority (46) are drawn from the Federal Court and the Federal Court of Appeal.152

Although appeals from courts martial are similar in many respects to criminal appeals in Canadian civilian jurisdictions, some important differences exist. For instance, as indicated above, the court that hears appeals from the decisions of courts martial in respect of disciplinary and criminal-like matters is founded on an administrative law court.

2.5.10 Specially-Affected Groups or Individuals with Special Needs

The civilian criminal justice system incorporates special rules for dealing with the special needs of members of particular groups, such as victims,153 young persons,154 and aboriginal offenders.155 The court martial system has varying degrees of provisions for the special needs of these individuals. Generally speaking, however, there are more formalized and diverse special rules for these particular groups in terms of their interactions with the justice system in Canadian civilian jurisdictions than within the court martial system.

Specifically, with respect to victims, there are currently no statutory provisions that grant victims rights to information, participation, protection, and restitution within the court martial system, as now exist in the civilian criminal justice system by virtue of the Canadian Victims Bill of Rights (CVBR),156 and the related amendments that were made to other federal statutes such as the Criminal Code, the Canada Evidence Act (CEA)157, and the Corrections and Conditional Release Act158 in order to give effect to CVBR rights.

With respect to special provisions for Aboriginal offenders, there is currently no equivalent to section 718.2(e) of the Criminal Code within the NDA. This provision in the Criminal Code requires sentencing courts to take into account the principle that “all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victims or to the community should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders.”

The leading case interpreting this provision is R v Gladue,159 wherein the SCC affirmed that, in order to give effect to the provision, some evidence about the circumstances of any particular Aboriginal offender will be needed in order to assist the sentencing judge. Subsequent to this decision, it has become common practice for civilian criminal courts to order “Gladue” pre-sentence reports that draw attention to unique systemic factors that may have caused a particular Aboriginal offender to come before the court, and that provide information about community-based rehabilitation that may or may not be culturally appropriate. In the absence of a provision that is equivalent to section 718.2(e) of the Criminal Code within the NDA, courts martial have typically not had the benefit of a “Gladue” report when sentencing Aboriginal offenders.160

2.6 Conclusion

To many people, the court martial system can seem unfamiliar and confusing. However, by tracing the evolution of the system from its origins to the present, and by studying how the different component parts of the system currently operate, one can much more easily understand how and why the system exists. The system initially grew out of a recognition that military commanders needed an instrument for dealing with serious misconduct by their personnel that would swiftly and strongly promote discipline. With the increasing influence of human rights law over time – reflected in instruments like the Charter – and with changing societal attitudes toward due process in criminal and penal justice systems, the court martial system has evolved into less of a command-centric disciplinary tool, and more of an independence-oriented justice tool for dealing with military misconduct.

This historical background and overview information about the court martial system that is contained in this chapter provides a sound basis for subsequent discussions about effectiveness, efficiency, and legitimacy of the system, and about any future options that ought to be considered as a means of enhancing these characteristics within the court martial system.

Footnotes

1 William J. Lawson, “Canadian Military Law” (1951) 9 Judge Advocate Journal 1, at 2.

2 Ibid.

3 Ibid at 2-3.

4 Ronald Arthur MacDonald, Canada’s Military Lawyers (Ottawa: Public Works and Government Services Canada, 2002), at 3 [MacDonald “CML”].

5 Lawson, supra note 1.

6 Chris Madsen, Another Kind of Justice: Canadian Military Law from Confederation to Somalia (Vancouver: UBC Press, 1999) at 4 [Madsen].

7 Lawson, supra note 1.

8 Ibid.

9 Ibid at 3.

10 Ronald Arthur MacDonald, “The Trail of Discipline: The Historical Roots of Canadian Military Law” (1985) 1 JAG Journal 1, at 6-7 [MacDonald “Trail of Discipline”].

11 James B. Fay, “Canadian Military Criminal Law: An Examination of Military Justice” (1975) 23 Chitty’s LJ 120, at 121-122.

12 Ibid at 122.

13 Ibid.

14 Ibid.

15 See generally MacDonald, “CML”, supra note 4 at 6-9.

16 See Lawson, supra note 1 at 10-11 (where the author describes the formation of the civilian “Court Martial Appeal Board” and the associated right of an offender to appeal to that Board that was first created within the 1950 National Defence Act.)

17 Madsen, supra note 6 at 11.

18 NAC, RG 9 III B1 series 2, vol 624, file C-248-2, Major J.N.H. D’Aeth, Shorncliffe Command to Canadian Headquarters, 21 August 1917, cited in Madsen, supra note 6 at 45.

19 MacDonald, “Trail of Discipline”, supra note 10 at 9.

20 MacDonald, “CML”, supra note 4 at 50.

21 Madsen, supra note 6 at 82-83.

22 Ibid at 99-100.

23 REPORT on certain “Incidents” which occurred on board H.M.C. Ships ATHABASKAN, CRESCENT and MAGNIFICENT and on other matters concerning THE ROYAL CANADIAN NAVY made to the Minister of National Defence by a Commission duly appointed for the above purposes and consisting of: Rear-Admiral E.R. MAINGUY, R.C.N., Chairman; L.C. AUDETTE, Esquire, Commissioner; LEONARD W. BROCKINGTON, Esquire, Commissioner. (Ottawa: Department of National Defence, 1949). This commission looked into incidents that could have been characterized as three low-level mutinies aboard Canadian warships, and essentially concluded that the incidents were a result of poor communication between the lower and more senior ranking naval personnel, a cultural divide between these classes of personnel, and a lack of any true Canadian (as opposed to British) identity within the Navy.

24 Madsen, supra note 6 at 103.

25 Lawson, supra note 1 at 6.

26 National Defence Act, SC 1950, c 43 [1950 NDA].

27 Lawson, supra note 1 at 5-7.

28 Madsen, supra note 6 at 107.

29 See, for instance, House of Commons Debates, 21st Parl, 2nd Sess, Vol II (18 April 1950) at 1681-82 (Hon. Brooke Claxton, Minister of National Defence), for an articulation of the eleven main purposes of the legislation that was provided by the sponsoring Minister at the time that the bill was being debated in Parliament.

30 Lawson, supra note 1 at 7-11.

31 See 1950 NDA, supra note 26, s 147 (providing that a convening authority “may” appoint a judge advocate to officiate at a Disciplinary Court Martial), as contrasted with s 141 (providing that a convening authority “shall” appoint a judge advocate to officiate at a General Court Martial).

32 Ibid, s 138(2).

33 Ibid, s 171.

34 Canada, Department of National Defence, National Defence Act: Explanatory Material (Ottawa: National Defence Headquarters, 1950) at 171-171A.

35 MacDonald, “CML”, supra note 4 at 75.

36 SC 1995, c 28, s 15; now reflected in National Defence Act, RSC 1985, c N-5, s 276 [NDA].

37 MacDonald, “CML” supra note 4 at 88.

38 Ibid at 88-89.

39 Canadian Forces Reorganization Act, SC 1966-67, c 96, s 43.

40 MacDonald, “CML”, supra note 4 at 92.

41 1950 NDA, supra note 26, s 149.

42 Canadian Forces Reorganization Act, SC 1966-67, c 96, s 42.

43 R v Ingebrigtson, [1990] CMAJ No 2; R v Généreux, [1990] CMAJ No 1.

44 R v Généreux, [1992] 1 SCR 259 [Généreux].

45 An Act to Amend the National Defence Act, SC 1992, c 16, s 2.

46 PC 1990-2782 of 20 Dec 90, adding articles 101.13-101.16 of Queen’s Regulations and Orders for the Canadian Forces [QR&O], and amending articles 111.22, 111.41, 113.561 (among others) in order to provide for more military judicial control over the assignment of judge advocates at courts martial.

47 Ibid, amending Chapter 26 of QR&O to provide protection for legal officers (art 26.10) and members of a General Court Martial (art 26.11) against improper consideration of their performance at a court martial for the purposes of pay or promotion.

48 Généreux, supra note 44.

49 Ibid at 293.

50 Ibid. The idea that the purpose of the military justice system is to maintain discipline, efficiency, and morale in the military was recently affirmed by a unanimous SCC in R v Moriarity, 2015 SCC 55, at para 46.

51 Généreux, supra note 44 at 308.

52 Ibid at 287.

53 [1991] 1 SCR 933.

54 An Act to amend the Criminal Code (mental disorder) and to amend the National Defence Act and Young Offenders Act in consequence thereof, SC 1991, c 43.

55 Firearms Act, SC 1995, c 39.

56 See generally, Canada, Department of National Defence, Dishonoured Legacy: the Lessons of the Somalia Affair: Report of the Commission of Inquiry into the Deployment of Canadian Forces to Somalia (Ottawa: Canadian Government Publishing, 1997) [Som Com Report].

57 Donna Winslow, “Misplaced Loyalties: The Role of Military Culture in the Breakdown of Discipline in Two Peacekeeping Operations” (2004) 6:4 Journal of Military and Strategic Studies 1, at 10:

Prior to deployment, a number of incidents in October, 1992, indicated a significant breakdown of discipline in Two Commando during the critical period of training and preparation for operations in Somalia. Military pyrotechnics were discharged illegally at a party in the junior ranks‘ mess; a car belonging to the duty NCO was set on fire; and various Two Commando members expended illegally held pyrotechnics and ammunition during a party in Algonquin Park, near their base in Petawawa. The illegal possession of these pyrotechnics was the result of theft from DND and the making of false statements. A search conducted on the soldiers’ premises uncovered ammunition stolen from DND, as well as 34 Confederate flags. When I interviewed officers from the other commandos they told me that they were aware of the problems in Two Commando but that it was “none of their business.”

58 Som Com Report, supra note 56.

59 Ibid at Vol 5, Chap 40.

60 Ibid.

61 Canada, Department of National Defence, Report of the Special Advisory Group on Military Justice and Military Police Investigation Services, presented to the Minister of National Defence on March 14, 1997, by the Right Honourable Brian Dickson, Lieutenant-General Charles Belzile, and Bud Bird (Ottawa: Department of National Defence, 1997).

62 Department of National Defence, Press Release, NR-97.063, "Defence Minister Introduces Amendments to the National Defence Act in Parliament" (4 December 1997).

63 Canada, Department of National Defence, The First Independent Review by the Right Honourable Antonio Lamer P.C., C.C., C.D. of the provisions and operation of Bill C-25 An Act to amend the National Defence Act and to make consequential amendments to other Acts, as required under section 96 of Statutes of Canada 1998, c.35 (Ottawa: Department of National Defence, September 2003).

64 Ibid at 1.

65 Bill C-7, An Act to Amend the National Defence Act, 1st Sess, 39th Parl, 2006; Bill C-45, An Act to Amend the National Defence Act and to Make Consequential Amendments to other Acts, 2nd Sess, 39th Parl, 2008; Bill C-41, Strengthening Military Justice in the Defence of Canada Act, 3rd Sess, 40th Parl, 2010. All of these bills died on the order paper before enactment.

66 Bill C-15, Strengthening Military Justice in the Defence of Canada Act, SC 2013, c 24.

67 Canada, Department of National Defence, Report of the Second Independent Review Authority to The Honourable Peter G. MacKay, Minister of National Defence, by The Honourable Patrick J. LeSage (Ottawa: Department of National Defence, 2011).

68 Ibid at 13.

69 Bill C-71 , The Victims Rights in the Military Justice System Act, 2nd Sess, 41th Parl, 2015 (died on the order of paper).

70 An Act to amend the National Defence Act, the DNA Identification Act and the Criminal Code, SC 2000, c 10.

71 An Act to amend the National Defence Act, the Criminal Code, the Sex Offender Information Registration Act and the Criminal Records Act, SC 2007, c 5.

72 An Act to amend certain Acts in relation to DNA identification, SC 2007, c 22.

73 Protecting Victims From Sex Offenders Act, SC 2010, c 17.

74 Protecting Canadians by Ending Sentence Discounts for Multiple Murders Act, SC 2011, c 5.

75 Safe Streets and Communities Act, SC 2012, c 1.

76 R v JSKT, 2008 CMAC 3 [Trépanier].

77 An Act to amend the National Defence Act (court martial) and to make a consequential amendment to another Act, SC 2008, c 29.

78 R v Leblanc, 2011 CMAC 2.

79 Security of Tenure of Military Judges Act, SC 2011, c 22.

80 Gilles Létourneau, Introduction to Military Justice: An Overview of the Military Penal Justice System and its Evolution in Canada (Montreal: Wilson & Lafleur ltée, 2012), at 47.

81 NDA, supra note 36, s 2, “service offence”.

82 Ibid, s 70.

83] See generally, Criminal Code, RSC 1985, c C-34, s 7 [Criminal Code].

84 Ibid, ss 742-742.7.

85 Ibid, s 731.

86 Ibid, s 730.

87 Ibid, s 725(1)(a).

88 NDA, supra note 36, s 148.

89 Criminal Code, supra note 83, s 718.3(4).

90 NDA, supra note 36, s 149.

91 Ibid, s 165.21(1).

92 Ibid, s 165.21(4).

93 Judges Act, RSC 1985, c J-1, s 3 [Judges Act].

94 See, for instance, Provincial Court Act, RSNS 1989, c 238, s 5.

95 See, for instance, Judges Act, supra note 93, s 8.

96 See, for instance, Constitution Act, 1867, 30 & 31 Victoria, c. 3 (UK), s 99(2).

97 Government of Canada, “Legal Officer – Job description”, online: <https://www.canada.ca/en/department-national-defence/services/caf-jobs/career-options/fields-work/other-specialty-occupations/legal-officer.html>

98 NDA, supra note 36, s 165.23.

99 Ibid, s 174.

100 Ibid, s 167.

101 Ibid, s 191.

102 Ibid, s 193.

103 Ibid, s 192(1).

104 Ibid, s 192(2).

105 Ibid, s 167(7).

106 Ibid, s 168(e).

107 Ibid, s 168(a).

108 Ibid, s 168(d).

109 Ibid, s 168(b).

110 Ibid, s 167(2).

111 Ibid, s 167(3).

112 Ibid, s 167(7).

113 Trépanier, supra note 76 at paras 73-74.

114 Généreux, supra note 44 at 295.

115 See generally, The Jury in Criminal Trials (Ottawa: Law Reform Commission of Canada, 1980), at 5-11, for a description of the various functions and rationales for civilian juries in Canada.

116 NDA, supra note 36, ss 165.1(1) and 165.11.

117 Ibid, ss 165.1(2) and (3).

118 Ibid, s 165.11.

119 Ibid, s 165.17.

120 Ibid, s 165.17(2)

121 Ibid, ss 165.17(3), (4), and (5).

122 Ibid, s 165.15.

123 R v Cawthorne, 2016 SCC 32, at para 26.

124 See, for instance, Director of Military Prosecutions, “DMP Policy Directive 003/00 Post-Charge Review”, (17 May 2016) at para 4, online: <http://www.forces.gc.ca/en/about-policies-standards-legal/post-charge-review.page>: “The Prosecutor must consider whether there is a reasonable prospect of conviction should the matter proceed to trial by court martial and whether the public interest requires that a prosecution be pursued.” See also, Public Prosecution Service of Canada, “Public Prosecution Service of Canada Deskbook, Chapter 15 – The Decision to Prosecute”, (2014) at para 15.2, online: <http://www.ppsc-sppc.gc.ca/eng/pub/fpsd-sfpg/fps-sfp/fpd/ch15.html>: “Crown counsel must consider two issues when deciding whether to prosecute. First, is the evidence sufficient to justify the institution or continuation of proceedings? Second, if it is, does the public interest require a prosecution to be pursued?”

125 See, for instance, Director of Public Prosecutions Act, SC 2006, c 9, s 121, at s 5(1) [DPP Act]: “The Director holds office, during good behaviour, for a term of seven years, but may be removed by the Governor in Council at any time for cause with the support of a resolution of the House of Commons to that effect. The Director is not eligible to be reappointed for a further term of office.”

126 NDA, supra note 36, s 165.1(3).

127 The DMP falls under the general supervision of the JAG (NDA, supra note 36, s 165.17(1)), who, in turn, is responsible to the Minister of National Defence (NDA, supra note 36, s 9.3(1)).

128 Ibid.

129 NDA, supra note 36, s 165.11.

130 See, for instance, DPP Act, supra note 125, ss 3(2) and (3).

131 See, for instance, Annex Z, Submission of the Director of Military Prosecutions to ADM(RS), 23 January 2017, at 29-32 (wherein the DMP notes that the 16 Regular Forces prosecutors within the military prosecution service have an average time of 2 years 11 months litigation experience within the military justice system, and confirms the general trend of military prosecutors being posted into the organization for approximately 5-year rotations).

132 NDA, supra note 36, s 249.18(1).

133 Ibid, s 249.19.

134 Ibid, ss 249.18(2) and (3).

135 Ibid, s 249.2(1).

136 Ibid, s 9.3(1).

137 See Canada (Attorney General) v Federation of Law Societies of Canada, 2015 SCC 7, wherein a majority of the Court recognized that a defence lawyer’s duty of commitment to a client’s cause is a principle of fundamental justice.

138 NDA, supra note 36, s 249.2(2).

139 Military Rules of Evidence, CRC c 1049, Rule 77 [MRE].

140 QR&O, supra note 46, art 101.11.

141 Ibid, art 101.19.

142 For example, in Ontario, an individual without dependants would need an income of less than $13,635 per year in order to automatically qualify for publicly-funded legal aid. Legal aid is not available to those whose family income is higher than $50,803 regardless of other factors such as the number of dependants in the family (see online: <http://www.legalaid.on.ca/en/getting/eligibility.asp>).

Within the court martial system, a Private (the lowest rank within the CAF) who would make between $33,672 and $49,440 per year of full-time service, would be entitled to fully-funded defence counsel services, just as a Lieutenant-General (the second highest rank of officer within the CAF) who could make up to $252,804 per year of full-time service, would be entitled to fully-funded defence counsel services at trial, and potentially also on appeal.

143 For a discussion of different legal aid system governance models, see Michael Trebilcock, Report of the Legal Aid Review 2008, (Toronto: Ontario Ministry of the Attorney General, 2008), at Section IX: Governance of the Legal Aid System, online: <https://www.attorneygeneral.jus.gov.on.ca/english/about/pubs/trebilcock/>.

144 NDA, supra note 36, s 249.2(1).

145 Email: Col Fullerton (DDCS) / Col Holman (DJAG MJ), RE: Request for Feedback -- CMCR Public Consultation Document, dated 22 Sep 2016.

146 MRE, supra note 139.

147 PC 1967-2255, SOR/67-592, Canada Gazette, Part II, Vol 101, No 23, December 13, 1967; PC 1971-31, SOR/71-31, Canada Gazette, Part II, Vol 105, No 2, January 21, 1971; PC 1990-941, SOR/90-306, Canada Gazette, Part II, Vol 124, No 12, June 6, 1990; and, Anti-terrorism Act, SC 2001, c 41, s 41.

148 MRE, supra note 139, Rule 16(2)(a).

149 NDA, supra note 36, ss 230 and 230.1.

150 Ibid, ss 245(1) and (2).

151 Ibid, s 234(2).

152 Court Martial Appeal Court, online: <http://www.cmac-cacm.ca/about/judges-eng.shtml>.

153 See, for instance, Victims Bill of Rights Act, SC 2015, c 13.

154 See, for instance, Youth Criminal Justice Act, SC 2002, c 1.

155 See, for instance, Criminal Code, supra note 83, s 718.2(e).

156 SC 2015, c 13, s 2.

157 RSC 1985, c C-5.

158 SC 1992, c 20.

159 [1999] 1 SCR 688.

160 However, see R v Levi-Gould, 2016 CM 4003, for an example of a case wherein an Aboriginal offender’s military defence counsel resourcefully sought and obtained a “Gladue” report on behalf of the offender, and offered it to the court martial to assist in determining the sentence. The court martial accepted this report, and found it useful.

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