Executive Summary - Court Martial Comprehensive Review – Interim Report

This report, which is produced after year-long comprehensive review of Canada’s court martial system, provides a policy-based analysis and discussion of the system along with a range of representative options for enhancing it. As directed by the Judge Advocate General, the review focused on assessing the effectiveness, efficiency, and legitimacy of the current system, and of options to enhance the system. It studied the following subject areas relating to the court martial system: the court / tribunal system that deals with service offences; the prosecution system; the defence counsel system; the substantive body of service offences; the punishment and sentencing system; the applicable laws of evidence; the appeal system; and, the special needs of particular groups (victims, aboriginal offenders, and young persons) that may interact with the court martial system.

Chapter 1 of this report includes an introduction to the report that provides background on the comprehensive review, describes the method that was followed by the comprehensive review team, defines terms that are used within the report, and identifies assumptions that underpin the report.

Chapter 2 describes the historical and contextual background surrounding the court martial system by tracing the evolution of the system from its origins in British military law up until the present. As the discussion in this chapter indicates, the decades since the adoption of the Charter have represented a period of relatively constant progression away from the court martial 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 The latter portion of Chapter 2 also provides an overview of the current court martial system by describing in basic terms how each part of the system now operates under the National Defence Act.

Chapter 3 serves as a starting point in looking at the current court martial system by reviewing past studies and critical perspectives of the court martial system. This chapter summarizes the relevant content of past external and independent reviews (by retired judges, consulting groups, and Canada’s Senate) that have focused or touched upon the court martial system between 1997 and 2015. The chapter then discusses relevant aspects of a number of internal and subjective reviews conducted between 2001 and 2012 (involving Canadian Armed Forces members, including those occupying positions of senior leadership) that have discussed the court martial system. Chapter 3 proceeds to summarize some Canadian academic and media commentary relating to the court martial system, and concludes with a discussion regarding some of the international human rights law commentary that relates to court martial systems. Chapter 3 highlights how some issues, principally concerning efficiency and delay, and perceptions of fairness and legitimacy, have been consistently noted within the current court martial system since it last underwent major changes in 1998-1999.

Chapter 4 summarizes the consultations that were undertaken by the court martial comprehensive review team. These consultations included liaison with the Department of Justice, public consultations, targeted consultations with both institutional and individual experts (including academics, professional associations, special interest groups, and independent government bodies with an interest in areas covered by the review), and internal consultations with Canadian Armed Forces leaders and specialized stakeholders. Chapter 4 concludes with some key observations drawn from the consultations, including the following observations: delay within the court martial system is perceived as unacceptable; sentences imposed at courts martial are perceived as too lenient; both military and criminal law expertise are perceived as being needed in the system, regardless of whether the system involves military or civilian actors within key positions; and, decisions of independent military actors in the system are sometimes perceived by CAF leaders as undermining discipline and the authority of the chain of command.

Chapter 5 provides a comparative analysis of the court martial (or equivalent) systems of ten countries that were visited by the comprehensive review team – some from the Anglo-American tradition of military justice, to which Canada belongs (the United States; Ireland; the United Kingdom; Australia; and, New Zealand), and others from the Civil Law tradition of military justice whose operational focus mirrors that of Canada (Norway; Denmark; Finland; France and the Netherlands). Chapter 5 also describes aspects of the court martial (or equivalent) systems of Singapore and Israel, based on informal discussions that were held with experts from within these systems during the comprehensive review. This chapter concludes with a summary of lessons that were drawn from comparative study of other court martial (or equivalent) systems that are relevant to the comprehensive review.

Chapter 6 elaborates a theoretical model that describes the purpose of the court martial system within the broader military justice system, and then describes the principles and features that must animate the court martial system if it is to achieve its purpose. The analysis in this chapter is theory-based, and may appear aspirational in its contemplation of an “ideal” court martial system. Ultimately, the theory that is elaborated in this chapter serves as the basis for assessments of both the current court martial system and all options to enhance the system.

Chapter 7 provides a detailed assessment of the current court martial system that includes specific discussion of each subject area within the system that has been considered as part of the comprehensive review. This assessment is focused on systemic issues, not on individuals, and relies upon a wide range of sources of information, including: past critical perspectives on the court martial system; consultation; comparative study; objective data that was collected and analyzed by external experts within the Department of National Defence’s ADM Review Services / Director General Evaluations organization; and, other publicly available data sources that are cited within the chapter. The assessment concludes that the current court martial system is somewhat effective (mostly in terms of its ability to achieve a public order and welfare purpose), appears to have considerable room for improvements in efficiency, and, as a result, faces challenges to its legitimacy.

Chapter 8 provides a very brief introduction to the discussion of options for enhancing effectiveness, efficiency, and legitimacy within the court martial system. The chapter notes that all options are presented in a menu-style manner, such that different options could be combined with one another in a significant number of possible ways, and notes that the options are intended to reflect a wide spectrum of possible changes.

Each of chapters 9-17 discuss specific options for enhancing effectiveness, efficiency, and legitimacy in respect of a particular subject area under study as part of the court martial comprehensive review. Chapter 9 deals with possible changes to the current tribunal system relating to courts; Chapter 10 addresses possible changes to the current tribunal system relating to panels; Chapter 11 considers possible changes to the status and institutional structure of the current prosecution system; Chapter 12 considers potential changes to the status and institutional structure of the current defence counsel services system; Chapter 13 deals with possible options for changing the current system providing for jurisdiction over offences at courts martial; Chapter 14 addresses possible options for changing the current punishment and sentencing system; Chapter 15 considers potential changes to the applicable laws of evidence within the court martial system; Chapter 16 deals with possible changes to the current appeals system; and, Chapter 17 addresses possible changes to better account the needs and interests of specially-affected groups (victims, aboriginal offenders, and young persons) within the court martial system.

Chapter 18 provides a brief conclusion to the report that highlights the broad scope of the report, and notes the significant input into the comprehensive review that was received from a wide variety of stakeholders, without which it would have been impossible to produce this report. This chapter also closes by reiterating the comprehensive review team’s conclusion regarding the current court martial system, and by noting that the options discussed within Chapters 9-17 of the report appear to offer the potential for improvements to the system across the combined principles of effectiveness, efficiency, and legitimacy.