Canada’s military justice system is a unique, self-contained system that is an integral part of the Canadian legal mosaic. This separate, constitutionally valid, military justice system operates in parallel with its civilian criminal justice counterpart. The system is created within the Code of Service Discipline (CSD), which is Part III of the National Defence Act (NDA). The purpose of the military justice system is to maintain discipline, efficiency, and morale in the military.
The operational realities of military life mean that service members are often held to a higher standard of conduct than what would be expected of a civilian. Because military personnel are often required to risk injury or death in the performance of their duties, both inside and outside of Canada, the military justice system puts a premium on the necessity for discipline and for cohesion of military units.
These realities of military life were acknowledged by the Supreme Court of Canada (SCC) in the Court’s 1992 decision, R v Généreux:
“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. As a result, the military has its own Code of Service Discipline to allow it to meet its particular disciplinary needs. In addition, special service tribunals, rather than 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.”
As the SCC implicitly recognized in this passage, and as former Chief Justice of Canada, Brian Dickson, recognized in the separate context of an independent report on the military justice system that he completed for the Canadian Forces in 1997, the chain of command is at the heart of this system.
Even though members of the Canadian Armed Forces (CAF) are held to the highest standards of conduct, they do not give up the rights that are afforded to them under Canadian law, including under the Constitution. Nonetheless, an individual’s rights can be limited where they are inconsistent with the basic obligations of military service. The Charter of Rights and Freedoms (Charter) – as part of Canada’s Constitution – has primacy over the NDA and all other laws of Canada. However, section 1 of the Charter explicitly permits other Charter rights to be limited under certain circumstances:
“The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.”
This balancing of rights against other pressing and substantial government objectives, such as the government’s need to maintain a disciplined and effective armed force, is important to understand when considering different aspects of the current Canadian military justice system.
Courts martial formal military courts presided over by a military judge. They are designed to deal with more serious offences, and are conducted in accordance with rules and procedures similar to those followed in civilian criminal courts while maintaining the military character of the proceedings. Like summary trials, courts martial may be held anywhere in the world. Statutorily, courts martial have the same rights, powers and privileges as superior courts of criminal jurisdiction with respect to all “matters necessary or proper for the due exercise of its jurisdiction,” including the attendance, swearing and examination of witnesses, the production and inspection of documents, and the enforcement of their orders.
At a court martial, the prosecution is conducted by a legal officer from the office of the Director of Military Prosecutions (DMP). In accordance with s. 249.19 of the NDA and QR&O 101.20, an accused person is entitled to legal representation by or under the supervision of the Director of Defence Counsel Services (DDCS), and, as a matter of policy, this legal representation is provided to an accused person at no cost to the accused person. An accused person may also choose to retain a lawyer at his or her own expense.
General Court Martial: The General Court Martial is comprised of a military judge and a panel of members. The panel is roughly analogous to a jury in a civilian criminal court and includes five CAF members. The panel is responsible for the finding on the charges (e.g. guilty or not guilty), while the military judge makes all legal rulings and imposes the sentence. At present, when the accused is an officer, the court martial panel consists entirely of officers and when the accused is a non-commissioned member, the panel must include two non-commissioned members at or above the rank of Warrant Officer or Petty Officer First Class. Provisions of Bill C-15, the Strengthening Military Justice in the Defence of Canada Act (which are not yet in force) will make the following changes to the composition of a panel:
- Rank of senior member: the senior member of the panel must be an officer of or above the rank of lieutenant-colonel.
- Rank for trial of colonel: the senior member of the panel must be an officer of or above the rank of the accused person and the other members of the panel must be of or above the rank of lieutenant-colonel.
- Rank for trial of lieutenant-colonel or lower-ranked officer: the members of the panel other than the senior member must be of or above the rank of the accused person.
- Rank for trial of non-commissioned member: the panel is composed of the senior member, one other officer and three non-commissioned members who are of or above both the rank of the accused person and the rank of sergeant.
A decision of the panel 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 determined by the unanimous vote of its members. A decision in respect of any other matter is determined by a majority vote.
B. Standing Court Martial: The Standing Court Martial is conducted by a military judge sitting alone who is responsible for the finding on the charges and imposing a sentence if the accused is found guilty.
For the most serious class of offences under the NDA, a General Court Martial will be generally be convened, while for the least serious class of offences, a Standing Court Martial will be convened. In all other cases, the accused person has the right to choose between trial by General or Standing Court Martial.
An accused person has the right to be tried in the official language of his or her choice. Approximately one-fifth of all courts martial are conducted in French.
There are two types of courts martial provided for under the NDA: General Courts Martial and Standing Courts Martial.
Both an offender convicted by court martial and the MND (or counsel instructed by the MND) have a right to appeal most decisions to the CMAC, a court comprised of civilian, federally-appointed judges. CMAC decisions may be appealed to the SCC. Such appeals may be made on any question of law on which a judge of the CMAC dissents, or on any question of law if leave to appeal is granted. The CMAC typically hears several appeals each year. Appeals to the SCC are less frequent, but the SCC recently granted leave to appeal in three decisions, while leave to appeal to the SCC has been sought in a fourth decision. Several of these appeals will likely be heard by the SCC within the next two years.
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Military Law – ASSAULT
Assault is the act of applying force to someone without their consent. This includes force that does not harm the person. There are a few different levels of assault that vary in severity:
Assault – use of force or physical contact with another person without their consent.
Assault with a weapon – an application of force with an object. This can mean a traditional weapon, like a bat or a knife. However, any object used during an assault will be considered a weapon.
Assault causing bodily harm – force that causes injury that interferes with the subject’s health or comfort.
Aggravated assault – the attack aims to wound, disfigure or endanger someone’s life.
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Penalties for sexual assault vary according to severity of the act and personal circumstances of the offender. In most cases, the accused person is sentenced to jail time if convicted and DNA orders. The person will then be entered into the sex offender database accompanied by strict supervision and long-term monitoring conditions.
Trial Defence Litigation
Without skilled representation, a lawsuit can quickly turn into a nightmare. If your case goes to trial, you need a litigator who knows what it takes to arrive at a successful outcome in the courtroom. And the lawyers and legal experts at Canada Law Experts are just the right legitimators for your matter.
A criminal trial begins with the formal arraignment (reading of the charges) of the accused(s). A plea of “not guilty” is required in most cases. Once the arraignment has begun, the Crown commences producing evidence to demonstrate that an accused was the perpetrator of the particular offences.
The most common form of evidence relied upon in Canada is testimony. Testimony is sworn declarations of a human witness in court. Witnesses testify from the witness box (it’s not called the stand in Canada). Lawyers ask the witness questions and the responses are evidence. Every word is recorded so that a record of everything is kept.
The party calling a witness asks open-ended questions seeking the witness to relate what they saw, heard, or felt. Once that party is finished asking their questions, the opposing party is entitled to cross-examine that witness.
Cross-examination is intended to flush out whether the witness was actually able to see, recall, or hear what they say they have. Further, cross-examination can be used to discredit the witness by creating some doubt as to their honesty.
Once each party who has a right to cross-examine has done so or has chosen not to, the party calling a witness has a limited right of re-examination (confined usually to topics arising in cross-examination and not contemplated by the party calling that witness).
This process repeats itself until the Crown has called all of its witnesses. Once it is finished, the defence is put to its election (whether or not to call any evidence).
There is no requirement for the defence to call evidence. As a corollary, it is therefore not required that an accused person testify in his/her own defence. The accused may choose to do so and in some circumstances might bear a tactical onus to offer their side of the story.
Once all witnesses who are going to testify have done so, the evidence is complete. The next portion of the trial is legal submissions. Submissions are usually verbal representations (sometimes written) to the judge or jury about how the law relates to the evidence that was heard. It is common for lawyers to refer to previous cases (called jurisprudence) to show how those previous cases were decided to help persuade the judge or jury that the current case being litigated should be decided in the same way.
Each party is entitled to make submissions. It is uncommon for objections to be made at this stage but the judge or jury may have questions of the lawyer(s).
Once submissions are complete, the trier of fact (judge or jury) must decide the case. In the case of a jury trial, the jurors are sequestered to deliberate on everything that they have heard. In a judge alone case, sometimes they pronounce their decision immediately. Other times, they ask to come back on another date having been given an opportunity to closely review everything that has been said.
A decision about the guilt or non-guilt of the accused is rendered either verbally or in writing and sometimes both. The judge or jury will address the main aspects of the case demonstrating why they were persuaded by a particular witness’ version and perhaps why they were not persuaded by another’s.
If an accused is found not-guilty of all the counts for which they stood trial, they are free to go. An acquittal carries a tremendous amount of legal significance.
If an accused is found guilty or one or more counts, then a sentencing process must be undertaken:
Sometimes a party who has been unsuccessful seeks to appeal the decision of the judge or jury.
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