The Structure of Canada’s Military Justice System
Canada’s Military Justice System
Canada’s military justice system operates in parallel with its civilian criminal justice counterpart and forms an integral part of the Canadian legal framework. It shares many of the same underlying principles as the civilian criminal justice system and is subject to the same constitutional framework, including the Canadian Charter of Rights and Freedoms (Charter).Footnote 29 At the same time, it remains a separate and distinct system designed to meet the specific needs of the Canadian Armed Forces, including the maintenance of discipline, efficiency, and morale within the Canadian Armed Forces, and to support public confidence in the administration of military justice.Footnote 30
The Code of Service Discipline
The Code of Service Discipline, contained in Part III of the National Defence Act, is “[t]he foundation of Canada’s military justice system.”Footnote 31 It is “an essential ingredient of service life”Footnote 32 that “defines the standard of conduct to which military personnel and certain civilians are subject and provides for a set of military tribunals to discipline breaches of that standard.”Footnote 33 It has also been recognized as serving a public function “by punishing specific conduct which threatens public order and welfare.”Footnote 34 The Code of Service Discipline sets out the procedures and organization of summary hearings and courts martial, the jurisdiction of various actors in the military justice system, the scale of punishment, and the post-trial review and appeal mechanisms.
As part of the legal framework governing discipline within the Canadian Armed Forces, accessible, official, member-facing guidance is available to support understanding of how the Code of Service Discipline applies in practice. Resources such as The Code of Service Discipline and Me provide general information on what individuals subject to the Code of Service Discipline can expect during disciplinary proceedings, as well as information on rights and responsibilities, and available review options, contributing to transparency and confidence in the military justice system.
The Two Types of Military Justice Procedure
The military justice system is comprised of two types of procedures for addressing misconduct and relies on both unit-level disciplinary processes and criminal investigations conducted by the Military Police, each serving distinct purposes within the broader framework. The Code of Service Discipline and the Queen’s Regulations and Orders for the Canadian ForcesFootnote 35 outline procedures for the disposal of a charge. The following sections describe each type of military justice procedure: summary hearings and courts martial. Summary hearings are non-penal, disciplinary proceedings based on principles of administrative law, designed to address breaches of military discipline at the unit level. Courts martial are military courts, presided over by military judges, which try service offences under the Code of Service Discipline. Characterizing a disciplinary incident as either a service infraction or a service offence requires an assessment of its nature, seriousness, operational impact, complexity, and broader public interest considerations.
The Summary Hearing System
The summary hearing system provides commanders with a fair and efficient means to address breaches of military discipline at the unit level. While still ensuring the persons charged benefit from a procedurally fair process, investigations and hearings require relatively little in the way of time and resources. By minimizing the impact on operational tempo, the summary hearing system is more efficiently employed by units both in garrison and when deployed, improving their operational readiness.
Service Infractions
Service Infractions are breaches of military discipline as defined in the Queen’s Regulations and Orders for the Canadian ForcesFootnote 36 and are generally less serious than the misconduct addressed by service offences. There are currently three categories of service infractions. The first category of infractions relates to property and information and covers acts or omissions such as unauthorized possession of public property and failure to disclose a conflict of interest.Footnote 37 The second category consists of infractions related to military service. These cover breaches of discipline such as unauthorized discharge of a firearm and other behaviours that adversely affects the discipline, efficiency, or morale of the Canadian Armed Forces.Footnote 38 The final category deals with infractions related to drugs and alcohol. This includes behaviour such as the possession of an intoxicant or use of a drug, such as cannabis, while on duty.Footnote 39
Summary Hearings
Summary hearings can only be held to deal with service infractionsFootnote 40 and may be held anywhere that the Canadian Armed Forces operate.Footnote 41 They are conducted by an officer who must be at least one rank above the member charged with the infraction.Footnote 42 However, officers may be precluded from conducting a hearing in certain circumstances which are listed in the National Defence Act.Footnote 43 These provisions help ensure fairness and impartiality of the process by preventing potential conflicts of interest or bias.
The Officer Conducting the Summary Hearing (OCSH) may be a superior commander, a commanding officer, or a delegated officer. When an OCSH has determined that the member has committed a service infraction, the status of the OCSH conducting the hearing will impact the range of sanctions that are available.Footnote 44 In order to conduct a summary hearing, an OCSH must successfully complete the Military Justice at the Unit Level training course and exam and be certified by the Judge Advocate General.
Summary hearings are generally open to the public to attend. However, in certain circumstances, they may be closed if classified information will form part of the evidence, or if information that may impact an individual’s safety or security arises as part of the evidence.Footnote 45 At the start of the hearing, the OCSH will take an oath or make a solemn affirmationFootnote 46 before asking the member charged with the infraction three preliminary questions: did the member have adequate time to prepare, does the member wish to challenge the capacity of the OCSH to conduct the summary hearing, and does the member wish to admit to any of the details of the charge.Footnote 47
Summary hearings are conducted in accordance with the principles of Canadian administrative law, particularly the principles of procedural fairness and natural justice.Footnote 48 As such, a member charged with a service infraction must be given the opportunity to request the presence of witnesses, present evidence, and make representations at all stages of the hearing.Footnote 49 Unlike at a court martial, the standard of proof at a summary hearing is on a balance of probabilities.Footnote 50 A member will, therefore, be deemed to have committed a service infraction if “it is more likely than not that an alleged event occurred.”Footnote 51 However, it is insufficient for the OCSH to simply state that it is more likely than not that the member committed the infraction. To be a valid determination, the decision of the OCSH must be “transparent, intelligible, and justified.”Footnote 52 As such, the OCSH must provide in writing the reasons underpinning their determination.
Should the member be found to have committed a service infraction, the OCSH must impose one, or a combination of, the authorized sanctions. Prior to doing so, the OCSH must allow the member to make representations regarding the sanction to be imposed.Footnote 53 Finally, after imposing a sanction, the OCSH must provide written reasons to the member and their commanding officer.Footnote 54
Sanctions
The National Defence Act enumerates the sanctions available when a member is found to have committed a service infraction. These sanctions are (from most severe to least severe): reduction in rank, severe reprimand, reprimand, deprivation of pay and allowances for no more than 18 days, and minor sanctions.Footnote 55
Minor sanctions are defined in the Queen’s Regulations and Orders for the Canadian Forces and include confinement to ship or barracks for no more than 14 days, extra work and drill for no more than 14 days, and the withholding of leave for no more than 30 days.Footnote 56 Sanctions may be combined so that, for example, a member may be sanctioned to both a reprimand and a deprivation of pay and allowances.Footnote 57
Reviews of Summary Hearing Decisions
A member who has been found to have committed a service infraction may request a review of the decision by applying in writing to a review authority within 14 days following receipt of the written reasons.Footnote 58 A review authority is normally the superior in matters of discipline of the officer who conducted the hearing.Footnote 59 Alternatively, a review authority may undertake a review of the decision on their own initiative.Footnote 60 In both cases, a review authority must obtain legal advice prior to conducting the review.Footnote 61 Following the review, the review authority may leave the decision unchanged, quash it entirely or in part,Footnote 62 substitute one or more findings,Footnote 63 substitute one or more sanctions,Footnote 64 or commute, mitigate, or remit the sanction(s).Footnote 65 A member who is unsatisfied with the outcome of the review can apply for judicial review before the Federal Court of Canada.
The Court Martial System
A court martial is a formal military court presided over by a military judge who possesses all the constitutional hallmarks of judicial independence. It is designed to address service offences and grants military judges the authority to impose punishments up to and including life imprisonment. Courts martial are conducted in accordance with rules and procedures similar to those of civilian criminal courts, while considering the unique operational requirements of the Canadian Armed Forces. They exercise the same rights, powers, and privileges as a superior court of criminal jurisdiction with respect to all, “matters necessary or proper for the due exercise of [their] jurisdiction.”Footnote 66
Courts martial may take place anywhere in Canada or abroad. The National Defence Act provides for two types of court martial: General and Standing. A General Court Martial is composed of a military judge and a panel of five Canadian Armed Forces members. The panel serves as the trier of fact and decides any finding of guilt while the military judge makes any required legal findings. In the event of a guilty finding, the military judge determines the sentence or directs that the offender be discharged absolutely. At a Standing Court Martial, the military judge sits alone, makes any required findings of fact and law and, if the accused person is found guilty, imposes a sentence or directs that the individual be discharged absolutely.
At court martial, the prosecution is conducted by a military prosecutor under the authority of the Director of Military Prosecutions. The accused is entitled to be represented by defence counsel assigned by the Director of Defence Counsel Services, at no cost to the member, or by civilian counsel at their own expense.Footnote 67
Service Offences
The term “service offence” is defined in the National Defence Act as “an offence under this Act, the Criminal Code, or any other Act of Parliament, committed by a person while subject to the Code of Service Discipline.”Footnote 68 Thus, service offences include many offences that are unique to the profession of arms, such as disobedience of a lawful command,Footnote 69 absence without leave,Footnote 70 and conduct to the prejudice of good order and discipline,Footnote 71 as well as more civil criminal offences such as those found in the Criminal Code, and other Acts of Parliament. Members of the Regular Force of the Canadian Armed Forces are always subject to the Code of Service Discipline, whereas members of the Reserve Force and some civilians are subject to the Code of Service Discipline only in the circumstances specified by s. 60 of the National Defence Act.
Appeals of Court Martial Decisions
Decisions made at a court martial may be appealed to the Court Martial Appeal Court.Footnote 72 The Court Martial Appeal Court is composed of civilian judges from the Federal Court of Appeal, the Federal Court, from the superior courts, or courts of appeal of the provinces and territories who are appointed by the Governor in Council.Footnote 73 Court Martial Appeal Court decisions may be appealed to the Supreme Court of Canada on any question of law on which a judge of the Court Martial Appeal Court dissents, or on any question of law when leave to appeal is granted by the Supreme Court of Canada.Footnote 74