Frontline Justice: The Evolution and Reform of Summary Trials in the Canadian Armed Forces 9780228000211

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F ro n t l in e Justi ce

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Hu ma n Di me nsi o ns i n F or e i gn P o l i cy, M i l i tary Stu dies , a nd Se c ur i t y St ud i e s Series editors: Stéphanie A.H. Bélanger, Pierre Jolicoeur, and Stéfanie von Hlatky Books published in the Human Dimensions in Foreign Policy, Military Studies, and Security Studies series offer fresh perspectives on foreign affairs and global governance. Titles in the series illuminate critical issues of global security in the twenty-first century and emphasize the human dimensions of war such as the health and well-being of soldiers, the factors that influence operational effectiveness, the civil-military relations and decisions on the use of force, as well as the ethical, moral, and legal ramifications of ongoing conflicts and wars. Foreign policy is also analyzed both in terms of its impact on human rights and the role the public plays in shaping policy directions. With a strong focus on definitions of security, the series encourages ­discussion of contemporary security challenges and welcomes works that focus on issues including human security, violent conflict, terrorism, military cooperation, and foreign and defence policy. This series is published in collaboration with Queen’s University and the Royal Military College of Canada with the Centre for International and Defence Policy, the Canadian Institute for Military and Veteran Health Research, and the Centre for Security, Armed Forces, and Society. 1 Going to War? Trends in Military Interventions Edited by Stéfanie von Hlatky and H. Christian Breede 2 Bombs, Bullets, and Politicians France’s Response to Terrorism Christophe Chowanietz 3 War Memories Commemoration, Recollections, and Writings on War Edited by Stéphanie A.H. Bélanger and Renée Dickason 4 Disarmament under International Law John Kierulf

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5 Contract Workers, Risk, and the War in Iraq Sierra Leonean Labor Migrants at US Military Bases Kevin J.A. Thomas 6 Violence and Militants From Ottoman Rebellions to Jihadist Organizations Baris Cayli 7 Frontline Justice The Evolution and Reform of Summary Trials in the Canadian Armed Forces Pascal Lévesque

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Frontline Justice The Evolution and Reform of Summary Trials in the Canadian Armed Forces

P as c a l L é vesqu e

McGill-­Queen’s University Press Montreal & Kingston • London • Chicago

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©  McGill-Queen’s University Press 2020 isbn isbn isbn isbn

978-0-7735-5929-5 (cloth) 978-0-7735-5930-1 (paper) 978-0-2280-0021-1 (ep df ) 978-0-2280-0022-8 (ep ub)

Legal deposit first quarter 2020 Bibliothèque nationale du Québec Printed in Canada on acid-free paper that is 100% ancient forest free (100% post-consumer recycled), processed chlorine free This book has been published with the help of a grant from the Canadian Federation for the Humanities and Social Sciences, through the Awards to Scholarly Publications Program, using funds provided by the Social Sciences and Humanities Research Council of Canada.

We acknowledge the support of the Canada Council for the Arts. Nous remercions le Conseil des arts du Canada de son soutien.

Library and Archives Canada Cataloguing in Publication Title: Frontline justice: the evolution and reform of summary trials in the Canadian Armed Forces / Pascal Lévesque. Names: Lévesque, Pascal, 1971– author. Series: Human dimensions in foreign policy, military studies, and security studies; 7. Description: Series statement: Human dimensions in foreign policy, military studies, and security studies; 7 | Includes bibliographical references and index. Identifiers: Canadiana (print) 20190204826 | Canadiana (ebook) 20190204885 | is bn 9780773559295 (cloth) | i sb n 9780773559301 (paper) | i s bn 9780228000211 (ep df ) | is bn 9780228000228 (ep u b ) Subjects: LC S H: Courts-martial and courts of inquiry—Canada. | L C SH : Military law—Canada. Classification: L CC KE 7165.L 48 2019 | L CC KF 7625.L48 2019 kfmod | DDC 343/.710143—dc23

This book was typeset by Marquis Interscript in 10.5/13 Sabon.

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Contents

Figures vii Acknowledgments ix Abbreviations xi Canadian Armed Forces Rank Structure  xiii 1:  General Introduction 3 2:  A Description of the Summary Trial 32 3:  Charter Breaches 56 4:  Reasonably Available Alternatives 111 5:  Can Breaches Be Demonstrably Justified under Section 1? 132 6:  Reform Proposals 150 Conclusion: Towards a Vanguard Justice  182 Appendices 189 Notes 219 Index 271

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Figures

1.1 Legal hierarchy in Canadian military justice  20 1.2 Judicial hierarchy in Canadian military justice  21 1.3 Dahl’s axis – International trends in military justice  25 1.4 Trinity of interests in military justice  29

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Acknowledgments

Most of all, I would like to thank Professors Lisa Dufraimont and Donald Stuart, who both provided me with invaluable advice and kept me on track during the course of my research so that I would remain relevant and readable. I greatly benefited from their vast expertise in criminal law and legal rights. I would also like to thank LCol (ret.) Christopher Waters, Col Mark Gendron, and LCol Kimberley Maynard, directors of the Canadian Forces Military Law Centre in Kingston, Ontario, in facilitating my pursuit of PhD studies during a transitional period of my life. The research upon which this book is based was in part financially supported by the R. Samuel McLaughlin Fellowship, the Trevor C. Holland Fellowship, and the Ontario Graduate Scholarship. A special word of appreciation to all the personnel of the School of Graduate Studies at the Faculty of Law, Queen’s University, and in particular to Phyllis Reid and Dianne Flint, who were the graduate studies assistants during my time there. Many thanks also to my friends and colleagues, Maj Benoît McMahon, LCol Jean-Michel Cambron, LCol Jean-Bruno Cloutier, LCol (ret.) Rory Fowler, Cdr Mark Létourneau, Cdr Mike Madden, LCol (ret.) Jean-Guy Perron, and Maj Jason Samson, for sharing views and making candid comments throughout my work. I extend my thanks to Kelly Murchison and Andrea Bélanger of the jag Library, from whom I have learned so much on how to conduct legal research in military law, a field where literature is scarce. The tips they provided to me early in my career turned out to be very useful. I am also thankful to the anonymous reviewers who provided comments on the first draft of the book. Their comments, suggestions, and insight were invaluable in improving the final product.

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x Acknowledgments

Finalement mes plus grands remerciements vont à ma famille. À mes parents d’abord qui m’ont transmis le sens de la justice, le souci du travail bien fait et un honnête désir d’améliorer le sort de ceux qui sont défavorisés. À mes enfants, Charles et Victor, qui ont été une patience d’ange et ont su me ramener de joyeuse façon aux réalités de la vie lorsque j’étais trop dans ‘ma bulle’. Et finalement à ma conjointe Mélanie qui a été à la fois une conseillère, un public attentif et une critique constructive. Sans son soutien indéfectible, cette entreprise n’aurait pas été possible.

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Abbreviations

awol b oi c a f c ds c fb c fn is c fspdb c mac c mj c o c ro csd daod ddc s dmp dn d jag mp n c m n c o nda n jp poc t pow qr&o rc a f rc n

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Absence Without Leave Board of Inquiry Canadian Armed Forces Chief of the Defence Staff Canadian Forces Base Canadian Forces National Investigation Service Canadian Forces Service Prison and Detention Barracks Court Martial Appeal Court Chief Military Judge Commanding Officer Custody Review Officer Code of Service Discipline Defence Administrative Orders and Directives Director of Defence Counsel Services Director of Military Prosecutions Department of National Defence Judge Advocate General Military Police Non-Commissioned Member Non-Commissioned Officer National Defence Act, rs c 1985, c N-5 Non-Judicial Punishment (US) Presiding Officer Training Course Prisoner of War Queen’s Regulations and Orders Royal Canadian Air Force Royal Canadian Navy

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xii Abbreviations

r dp r mp sac sac n z sc m stwg ucmj

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Record of Disciplinary Proceedings Regional Military Prosecutor Summary Appeal Court (UK, Ireland) Summary Appeal Court of New Zealand Summary Court Martial (US) Summary Trial Working Group Uniform Code of Military Justice (US)

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Canadian Armed Forces Rank Structure

Canadian Army /  Royal Canadian Air Force Rank

Royal Canadian Navy

Abbreviation

Rank

Abbreviation

Officers General Lieutenant-General Major-General Brigadier-General Colonel Lieutenant-Colonel Major Captain Lieutenant Second Lieutenant Officer Cadet

Gen LGen MGen BGen Col LCol Maj Capt Lt 2Lt OCdt

Admiral Vice-Admiral Rear-Admiral Commodore Captain Commander Lieutenant-Commander Lieutenant Sub-Lieutenant Acting Sub-Lieutenant Naval Cadet

Adm VAdm RAdm Cmdre Capt(N) Cdr LCdr Lt(N) SLt A/SLt NCdt

Non-commissioned m e m b e rs Chief Warrant Officer CWO Master Warrant Officer Warrant Officer Sergeant Master Corporali Corporal Privateii

MWO WO Sgt MCpl Cpl Pte

Chief Petty Officer 1st Class Chief Petty Officer 2nd Class Petty Officer 1st Class Petty Officer 2nd Class Master Seaman Leading Seaman Able Seaman Ordinary Seaman

CPO1 C P O2 P O1 P O2 MS LS AS OS

i Master corporal is not a rank but an appointment. Although they have authority and powers of command over all other corporals, their rank remains that of corporal. See qr&o , art. 3.08. ii Depending on the unit type, there are other more specific designations: Trooper, Gunner, Sapper, Signaller, Guardsman, Fusilier, Rifleman, Voltigeur, Craftsman, Musician, Piper, Drummer, Ranger.

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F ro n t l in e Justi ce

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1 General Introduction

S u m m a ry J u s t ice Scenari os This book sets out to examine summary justice in Canada’s military and to argue for changes. Consider the following three scenarios. First: You are a young private (Pte) who has served in the Canadian Armed Forces (caf) for the past year. You have had an undistinguished career so far and are currently on a basic military occupation course. One morning you are ill and attend “sick parade” at the base clinic. The physician excuses you from duty for a day. When you give the form to Sergeant (Sgt) Alpha, he tells you to go back to your quarters for the remainder of the day until your return to the course next morning. In the evening, your friend invites you to the Tim Horton’s coffee shop. After a coffee, you spend the night at his place and go back to your quarters at 0600 hours to resume the course.1 Having been made aware of your actions by a course-mate, Sgt Alpha informs you that he suspects you were absent from your quarters without authorization and that he reported the matter to Warrant Officer (W O ) Bravo. The next day, the unit’s disciplinary investigator, Sgt Charlie, offers you the opportunity to provide a statement, with a caution as to your right to remain silent, and the option to talk to a lawyer. Seeing no point in talking to a lawyer at this time, you explain that you did not do anything wrong by going to your friend’s place as you felt the ‘day’ was over. Forty-eight hours later, you are charged with absence without leave (awol).2 Sgt Charlie explains to you that as you are not exposed to a punishment more severe than a minor fine, you are not entitled to elect to be tried by court martial. After meeting with your assisting officer, Capt Delta, a

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young but dedicated and smart officer, you determine your best course of action is to admit the particulars of the charge and focus on mitigating factors to avoid any punishment more than a $200 fine. If it goes according to the plan, the entry would be removed from your conduct sheet at the completion of your military occupation course.3 During the hearing before the delegated officer, Maj Echo, everything goes well but one thing. Maj Echo explains that he considers the blatant disregard for military discipline as aggravating. Acknowledging you are doing well on the course so far, he decides to give you a $200 fine but adds a period of four days of confinement to barracks (or ‘CB’ in military jargon). Not entirely happy with the decision, you nevertheless do not want to challenge it. What would be the point? By the time you had obtained a decision on the review you would have served your time anyway. Plus, it will soon be nothing more than a bad memory. So you accept your fate and carry on with the punishment. Here is another scenario. You are a major in the Royal Canadian Air Force (rc a f ). Your career of twelve years has been unblemished so far. Recently, however, you found yourself in trouble. After a long day of training, you had a social event at a local bar with other service members. Alcohol consumption was involved, but not heavily. Being in a friendly mood, you started flirting with a colleague, Capt Foxtrot. Both of you being less inhibited as a result of alcohol consumption, the conversation was agreeable and Capt Foxtrot seemed to be responsive to your advances. At some point, you decided it was your chance and told her that you were physically attracted to her. In addition, you put your right hand on her neck and kissed her on the cheek, without asking her, for a few seconds. Being a bit surprised, Capt Foxtrot was not responsive anymore but did not say a word. Feeling her discomfort, you decided to stop it there and moved to another table with other colleagues.4 Weeks later, you are invited to the local military police detachment (M P Det) by Master Corporal (MCpl) Golf, who is conducting an investigation. After the usual caution, he offers you the opportunity to make a statement. You call the duty counsel, LieutenantCommander (LCdr) Hotel from Defence Counsel Services (d cs ), a seasoned legal officer with fifteen years of experience, five of those as a defence counsel. Based on her advice, you decide to remain silent and leave the MP Det. One month later, you are served with a Record of Disciplinary Proceedings (r d p ) containing three charges: namely, assault5 and in the alternative a charge of drunkenness,6 and “conduct

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General Introduction 5

to the prejudice of good order and discipline”7 in that you breached the c a f policy against harassment.8 Because of the nature of the offences, you have the right to elect to be tried by a court martial and are given two days to make your choice as to the mode of trial. As you know you are entitled to an assisting officer, you ask for Maj India, a buddy of yours since boot camp, who is notorious for knowing and playing with regulations to his advantage. You are told that because of your rank, if you were to choose summary trial, Colonel (Col) Juliet, the base commander, would hear your case. On Maj India’s advice you call back L C dr Hotel. Without going too much into the details of the allegations, she recommends that you choose summary trial. She stresses that as Col Juliet is a ‘superior commander,’ only three punishments are available in the worst case scenario: fine, reprimand, and severe reprimand, probably a combination of a fine with one of the other two. She tells you that if you were to choose court martial you would be exposed to greater risk and negative impact, even though it is a better place to raise legal issues. First, a court martial has more punishment powers, including reduction in rank, dismissal, and imprisonment. Second, it would take longer for the proceedings to unfold – a year, she anticipates. But more importantly, by choosing court martial, your case would be referred to a regional military prosecutor (r m p ), who might ask for an additional investigation report and who may modify or add charges. It is not impossible that a more ‘zealous’ prosecutor would change the assault charge to “ill-treatment of a subordinate” or even a sexual assault one, in particular in the aftermath of the Deschamps Report, which identified a perception that sexual misconduct is condoned in the caf.9 “Operation Honour is on the way; the higher a file goes, the higher the pressure not to be seen as sweeping, even remotely, such misconduct under the rug,” she adds. By choosing court martial, not only would you be exposed to more severe punishments, but you would run the risk (if found guilty of a sexual assault charge) of being put on the National Sex Offender Registry, in addition to the usual stigma and bad publicity that are normally attached to courts martial. LCdr Hotel further suggests that as the assault and drunkenness charges are alternative to each other, admitting the particulars of the former charge would prevent a conviction on the latter, hence applying the protection against double jeopardy. Following her advice, you choose the summary trial. At the hearing, you admit particulars of the

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second and third charges and are found guilty of those. On sentencing, Col Juliet imposes a reprimand and a $1,500 fine. Having avoided the court martial and its consequences, you consider yourself ‘lucky’ in the circumstances. Besides, on the administrative side, you might nevertheless have to face a Notice of Intent (n o i ) to recommend release by the Director Military Careers Administration, as the event could fall under the definition of ‘sexual misconduct.’ Indeed, on a balance of probabilities, what you did could be interpreted as an ‘advance of a sexual nature in the workplace.’10 Last scenario. You and your buddy, Private (Pte) Kilo, joined the caf less than two years ago. After your boot camp and your infantry phases in c f b Gagetown, you were both posted to cf b Edmonton with a combat unit preparing for an upcoming deployment in the next year or so in a hostile environment where drugs are rampant. Everything goes well until one morning, each member of the company is ordered to undergo a urine test. All the unit’s positions have been designated as ‘safety sensitive.’ You feel nervous as last week you went to a party with Pte Kilo where you both snorted a line of coke. Having no other option but to take the test, you hope your metabolism rate has been high enough so that the drug will not show up. Unfortunately for you, one week later, Chief Warrant Officer (CWO) Lima and your supervisor Sgt Mike meet with you. They both look disappointed and severe. C W O Lima tells you your test came back positive. You are so nervous that your hands shake. Being naturally honest and ready to take responsibility, you break an awkward silence and spontaneously explain what happened at the party. CW O Lima then asks you if it happened any time before. As you suspect that if you lie you will be in worse trouble that you are already in, you tell him that it also happened four months ago at your girlfriend’s place. Then CWO Lima tells you something about remaining silent and the option to contact a counsel. As you are not a ‘weasel’ you tell him that you understand and do not want a lawyer for the moment, and you sign the form accordingly. Then he gives you a blank form and asks you to provide details of the two incidents, in particular where you got the drug. You write a statement but do not sign it, as you think (wrongly) that this will protect your rights. Before you leave the room you are ordered not to talk to anyone about these incidents. They also inform you that you will be met by the Base Addiction Counsellor. Besides you, other members of the unit were interviewed, including your ‘buddy,’ who does not want to talk to you anymore.

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General Introduction 7

The day after, a search is conducted in your quarters but nothing is found. One week later, they lay two charges of ‘conduct to the prejudice of good order and discipline’ in that you used illicit drugs.11 Brand new Second Lieutenant (2Lt) November, recently promoted from the Royal Military College (r mc ), is appointed as your assisting officer. You are given the right to elect to be tried by court martial and are given twenty-four hours to make your decision. You call the duty counsel line and speak with Captain (Capt) Oscar, a young legal officer who has just been posted with dc s. He first tells you that as he does not have access to the investigation report, he can only provide general advice. He describes the differences between summary trials and courts martial. When you ask where you should go, Capt Oscar tells you: “Hard to say. You have pros and cons for each option. At the end of the day, it’s up to you!” “Not very helpful legal advice,” you think. At your meeting with 2Lt November, he tells you that this is his first time as an assisting officer. “But don’t worry,” he adds. “I’ve heard through the grapevine that if you were to ‘plead guilty,’ the commanding officer will not be harsh on you.” When you inquire as to what he means by that, he replies that although the unit’s policy is to send drug users to detention barracks for two or three weeks, you might save a week or two, or even have the detention suspended, by admitting to the particulars of the charges. When you ask what will happen if you choose court martial, 2Lt November tells you that it will impede your deployment for sure, as the unit will avoid holding a court martial in the theatre of operations. Having forgone your deployment, you are more concerned about your career. 2Lt November tells you dismissal is not within the commanding officer’s punishment powers, so “you are safe.” He adds that even if you are given detention, you would normally be returned to your unit without any lasting effect on your career.12 Eager to move on, you decide you will ‘man up,’ swallow the bitter pill, and be the ‘good boy’ at the summary trial held the following month. After you admit the particulars of the charges, your commanding officer, Lieutenant-Colonel (LCol) Papa, finds you guilty and proceeds with the sentencing phase. 2Lt November does his best to argue mitigating factors, in particular that you took responsibility by admitting your guilt. In his decision, LCol Papa considers aggravating the fact that you used illegal drugs twice, in blatant disregard of the well-known c a f Drugs Policy. Normally, he would have given you twenty-eight days detention, but as you admit the particulars,

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he imposes twenty-one days to be served at Canadian Forces Service Prison and Detention Barracks (c f s p d b ), the military jail located near the base. What you did not know is that LCol Papa had already made up his mind right from the get-go. As the commanding officer of a military combat unit about to be deployed overseas, he wants to get rid of all drug users within his unit, no matter the ‘legalese.’ Especially as he was told that, if the deployment goes well, he would likely be promoted soon. Once your time is served, you are notified of the unit’s intention to administratively recommend your release from the c a f for two distinct misuses of drugs. Totally shocked and confused, you contact 2Lt November to seek a review of the summary trial. He reminds you that you were told you had only fourteen days after the trial to proceed. You then call Capt Oscar to see how you can challenge the release. Capt Oscar politely informs you that, unfortunately, it is not within dcs’s mandate to provide legal advice and represent individual c a f members for “matters not likely to be tried under the Code of Service Discipline,” such as administrative release for drug use.13 Months later you hear that your ‘buddy’ pleaded guilty at a court martial to two charges of possession of an illegal drug, namely cocaine. He received only a $1,500 fine and stays in the caf.14 In the current system of summary trials in Canadian military justice, these three above scenarios can happen. At the time of writing, a new legislation pertaining to military summary justice is before Parliament. As we will see later, Bill C-77 is a paradigm shift that would, if passed and in force, affect those scenarios. But at the time of publication, even if Bill C-77 had received royal assent in June 2019, the system would likely be the same. Based on past legislation on military justice, regulations implementing Bill C-77 would not be ready for some years.15 The scenarios share common characteristics: hearings are presided over by non-lawyers, and there are no counsel from either side and no transcripts. The first scenario would likely occur early in someone’s career, at a time when a person is still adapting to military life and culture. In terms of the type of offence, the rank of the accused, and the outcome (finding and punishment), it is reflective of the most common cases.16 The system works relatively well for circumstances of that kind. The second scenario is an ‘optimistic’ one from an accused’s perspective, aside from what could happen through administrative

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General Introduction 9

measures. For certain higher ranks, although the summary trial would be presided over by higher authority, it often means less negative impact than for lower ranks. A fluke for the offender, such a situation could be perceived as unfairly lenient by both service members of lower rank and outsiders. The last scenario is a pessimistic one from an accused’s perspective. Although rare, it could occur where the perceived unit’s interest is the primary objective and compliance with the interests of justice is considered secondary. Often, checks and balances play their roles so such situations are avoided. However, a combination of unethical conduct, inexperience, and ignorance can lead to these kinds of situations. The vast majority of services offences are dealt with through summary proceedings. In 2017–18, about 91 percent of all cases were summary trials.17 During the same reporting year, about 70 percent of charges disposed of at summary trial consisted of relatively minor offences of a military nature (absence without leave, drunkenness, and conduct to the prejudice of good order and discipline unrelated to drug, alcohol, or sexual misconduct).18 Only 13 out of 802 (about 1.6 percent of the total) were charges relating to limited ordinary offences under the Criminal Code or the Controlled Drugs and Substances Act.19 In terms of timelines, summary trials seem efficient. For example, the average number of days between the alleged offence and the beginning of the summary trial was 87 days.20 In 2017–18, two-thirds of the 596 summary trials were held within 90 days of the alleged offence. Once the charge was laid, summary trial was held on average about 15 days later.21 By contrast, in the civilian justice system, the median length of time required to complete an adult criminal court charge was 124 days in 2016–17.22 The last two vignettes above illustrate concretely the main challenges of the summary trial system today: (1) arbitrary differences of treatment based on rank; (2) lack of independence of the decision-­ makers; (3) lack of due process and legal representation for the accused; and (4) lack of accountability and judicial oversight. Overall, 535 individuals were detained (sometimes detention was suspended) as a result of a summary trial since the current system was put in place in 1999.23 Were they all justified outcomes? Would courts martial have produced the same result? Were those offenders returned to their units without any lasting effect on their careers, as detention is primarily designed for?

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P u r p o s e o f T h i s Book The summary disciplinary system of the Canadian Armed Forces can be improved, but not at any cost. How can we avoid distortions of justice without losing the system’s essence in dealing with minor offences? Striking the right balance must begin with a comprehensive review of the Canadian summary trial system. Only then can reasoned proposals for reforms be advanced. In doing so, I go beyond ideological assumptions and political agendas. My motivation draws from fifteen years of observation of that system as a legal officer, and my recognition, through that experience, of its benefits but also its flaws. I genuinely seek improvements, both as a former c a f officer and as a lawyer. I have conducted my research in an academic setting to keep sufficient distance from the daily operation of summary trials, although I understand it, having been a unit legal advisor myself during my career. This book is aimed first at military law scholars, government officials, parliamentarians, military authorities, and judges. They are the most influential as it pertains to military justice. However, they may not have sufficient time or academic candor to methodically study it. By giving them the most accurate picture of what the system is, where it comes from, what its strengths and weaknesses are, and where it should go based on other jurisdictions’ experience, I expect they will be in a better position to make fully informed decisions with regards to its future. This book is also relevant for constitutional law scholars, as it will analyze summary trials in the Canadian Armed Forces through the lens of the Canadian Charter of Rights and Freedoms. Do c a f summary trials violate the Charter? If so, can they be justified in a free and democratic society? To what extent does military context have an impact on answering these questions? Legal historians and scholars of socio-legal studies might also be interested by this research, which depicts how a specific institution of Canadian military law has evolved since its origins in seventeenthcentury England. Putting the changes in military and civilian justice systems side by side sheds light on the broader issue of civil-military relations. More interestingly, Canada’s system can be compared with developments in other countries, mainly of which also draw their military law from the British legal tradition. Interesting parallels might further be seen by specialists in police and inmate disciplinary regimes. Those systems share analogous needs

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General Introduction 11

with the military justice system, having to strike a proper balance between protecting individual rights and organizational interests. They both seek prompt disposition in case of a breach of discipline: to maintain it for the sake of efficiency and morale (police) or to restore it to keep order in a unique environment (penitentiary). The summary trials system will be compared to those systems, notably to see if we can draw from their experiences. Finally, public administrators of justice systems might be attentive to, and even inspired by, how the Canadian Armed Forces are dealing with minor offences. This book might contribute to the broader general discussion on how the right to be tried within a reasonable time in criminal and penal matters could be fulfilled in the aftermath of the landmark decisions R v Jordan24 and R v Cody.25

M il ita ry J u s t ic e in Canadi an Law At the outset, it is essential to define and clarify basic terms and expressions. Between civilian and military environments, there is frequently confusion. Often, the same concept is expressed by different words. For example, restraining someone’s liberty in a cell prior to judicial debate is called “pre-trial detention” in criminal law but “pretrial custody” in military law. Conversely, a word or expression sometimes has different meanings, in particular the word “discipline,” which has a unique sense in the military environment, as I will explain later. Within the military organization, a concept might even be perceived differently by different service members. Furthermore, amongst jurists interested in military law, there is debate about what certain legal terms mean in a military context. Definition of Military Justice What is military justice? Simply put, it is the law dealing with service members’ misconduct through a formalized penal process. It is a branch of military law, the body of laws governing the organization, administration, and operation of the armed forces. In popular culture, military justice is often described by referring to the well-known quote from Georges Clémenceau drawing a parallel between music and military music, suggesting military justice is similarly a pale reflection of its civilian counterpart.26 With respect, this characterization is in reality a misrepresentation. First, what Clémenceau had in mind was the French military justice

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system of the late nineteenth and early twentieth centuries: a system that committed a profound injustice against Alfred Dreyfus, which was followed by the Aernoult-Rousset Affair, a “proletarian Dreyfus Affair.”27 Second, the quote was summarized and used by Robert Sherrill – an American journalist – as the title of one of his books. It is of doubtful value to use this epigram to describe the modern Canadian military justice system. However, it is reflective of a gap between how the general public perceives military justice and what it is. Although they do not precisely define “military justice,” the National Defence Act and Queen’s Regulations and Orders refer to the term, often coupling it with the words “administration of.”28 In the context in which it is used, the term relates to matters before ‘service tribunals,’ which consist of ‘courts martial’ and ‘persons presiding at a summary trial.’29 These tribunals have jurisdiction over ‘service offences,’ defined as offences under the nda , “the Criminal Code or any other Act of Parliament, committed by a person while subject to the Code of Service Discipline,” in Canada or abroad.30 The only exceptions are some serious crimes when allegedly committed in Canada, notably murder and manslaughter.31 This exercise of penal jurisdiction also covers crimes against the law of armed conflict through the Geneva Convention Act.32 Although the proceedings are often qualified as being ‘disciplinary,’ military justice is limited to those penal matters. It does not include other fields of military law, such as non-penal ‘remedial measures,’33 another way to correct service members’ misconduct and deficiencies.34 It does not yet include military grievances, although addressing such claims by services members and providing them with remedies may well be included in the notion of what a ‘military justice system’ should be about.35 It does not cover the law of military operations, although circumstances triggering military justice proceedings occur in part during those operations. Even if it would be more appropriate to use ‘military penal law,’ this book will keep using the term ‘military justice.’ Purpose of Military Justice The existence of military justice is recognized in the Charter, as section 11(f) establishes an exception to the right of trial by jury “in the case of an offence under military law tried before a military tribunal.”36 Its purpose was summarized by Chief Justice Lamer in the landmark case of R v Généreux in the following terms:

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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 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.37 This purpose of military justice does not create much of a controversy nowadays. In general, the rationale for having a particular justice system to deal with misconduct in the service is accepted. There is, however, a continuing debate on its scope. Consider the use of the adverb “directly” in the quotation above when discussing those “matters that pertain directly to the discipline, efficiency and morale of the military.” Does Chief Justice Lamer purposely use the adverb to indicate a restriction in military jurisdiction, or is it inconsequential? Scope of Military Justice To what extent should the military justice system capture service members’ misconduct? Obviously, it pertains to offences typically associated with military life, such as disobedience to a lawful command, absence without leave, or striking a superior officer. But what about a misconduct that is not generally attached to military life? Would domestic violence, for example, be ‘attached to the military’ if it occurred in Private Military Quarters (p m q ), between a service couple, especially if the violence is caused by post-traumatic stress disorder as a result of an operational deployment?

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For some – usually defence counsel and some commentators – the adverb “directly” in the Généreux quote indicates that military jurisdiction should be limited. For others – usually military prosecutors and authorities – the definition of ‘service offence’ in the nda is broad and captures all kind of circumstances beyond the military context. The determination as to where the proceedings will be initiated is a matter of prosecutorial discretion. From an accused person’s point of view, it matters because being dealt with by military justice represents a departure from what they would have been normally exposed to if facing the ordinary criminal justice system. For example, in addition to the loss of the right to a trial by a jury of twelve in most serious cases, being dealt with by court martial means no preliminary inquiry and no possibility of conditional sentences. The Supreme Court of Canada mainly answers the debate in the case of R v Moriarity.38 That case combines two applicants. The first individual – a Cadet Instructor Cadre officer (Second Lieutenant Moriarity) – was charged with several sexual offences under the Criminal Code for engaging in inappropriate sexual relationships with cadets while he was in a position of authority over them. The second (Private Hannah) was charged with trafficking of a controlled substance that he purchased and delivered to another service member contrary to section 5(1) of the Controlled Drugs and Substances Act. The main issue is whether section 130(1)(a) of the National Defence Act – by which military jurisdiction is exercised over ordinary offences – violates section 7 of the Charter because it was drafted more broadly than necessary. For a unanimous Court of nine justices, Justice Cromwell answers no. The Court holds that “there is no explicit limitation in the text of s. 130(1)(a) to the effect that the offence must have been committed in a military context.”39 Quite the contrary, even when an offence was committed outside a military context, it is not “irrational to conclude that the prosecution of the offence is related to the discipline, efficiency and morale of the military.”40 In other words, the status of the accused suffices to confer jurisdiction. A more recent Supreme Court of Canada decision, pertaining to the authority of the Minister of National Defence over appeals in military justice, does not alter this state of affairs.41 Impact of Debate on Summary Trials Moriarity does not only confirm the jurisdiction of courts martial over ordinary offences; it indirectly does so for summary trials as well. The

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vast majority of those cases pertain to offences typically associated with military life. As we saw earlier, very few of them involve ordinary or public offences. These offences are not minor; the right to elect to be tried by a court martial must be offered prior to dealing with them by summary trial. This is where the disparity between summary trial and ordinary criminal law is the most manifest; an individual charged with an ordinary criminal offence is tried by someone who is not judicially independent, with no defence counsel, with no transcript, and with no appeal. That disparity with ordinary criminal law is of the greatest concern and was not addressed in Moriarity. It is still open to debate.42 Some might argue that ordinary criminal offences at summary trial are so insignificant in number that they should not matter in the overall scheme. Indeed, considering the total charges dealt with by summary trial, their number is very low. However, I contend that those numbers illustrate that military summary jurisdiction over ordinary criminal offences should be abandoned. ‘Disciplinary’: Less ‘Administrative,’ More ‘Penal’ Summary trials suffer from a characterization challenge. For civilian lawyers, the word ‘disciplinary’ is associated with a professional body regulatory regime, under the administrative law framework. However, when we refer to summary proceedings as being ‘disciplinary,’ this is not determinative of the essence of the system. The adjective ‘disciplinary’ does not have the same meaning that the civilian legal community usually understands. True, ‘discipline’ both in the service and in a civilian context refers to rules of observance designed for a particular group and to some sort of sanction or punishment should those rules not be followed. However, misconduct in a military context can involve much more serious consequences – even penal ones – for the wrongdoers than in any other private organizations or professional regulatory bodies. Actually, many offences under the Code of Service Discipline (csd ) are analogous to criminal offences, such as stealing, receiving, or ‘quarrels and disturbances’ (basically fighting with a fellow service member). Even for misconducts more specific to military context (disobedience of lawful commands, insubordinate behaviour, cruel or disgraceful conduct, abuse of subordinates), many are “inherently wrongful conducts” going beyond the mere maintenance of “minimum standards of conduct and care.”43 In addition, the csd incorporates

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the Criminal Code and all federal offences, some of which can be dealt with by summary trial, such as assault, assault with a weapon or causing bodily harm, assaulting a peace officer, theft (where the value of what is stolen does not exceed five thousand dollars), or drug possession. By enacting the csd , Parliament has exercised a criminal power, as those offences (1) have a valid criminal law purpose, (2) are backed by a prohibition, and (3) provide for a penalty.44 Among those as I will explain further in this book are punishments entailing strict deprivation of liberty. No-one should be lured by any attempt to tone down or conceal the true essence of the summary proceedings by simply using ‘disciplinary’ rather than ‘penal’ or ‘criminal.’ We need to go beyond those words and further analyze the inner structure of this system to properly characterize it.

M il ita ry D is ci pli ne Military discipline is a broader concept than military justice. The latter is the ultimate tool to maintain the former. Military discipline is different from its civilian counterpart. They share the observance of a particular set of rules for a particular group. However, due to the unique circumstances under which military organizations operate, military discipline is maintained with more intensity; in case of breach, the response comes faster and the sanction is often more severe. While ‘disciplinary’ sanctions are administrative in nature for a civilian professional body, they are penal, even criminal, in a military context. Sometimes described as the ‘soul of the military’ or the ‘mother of all armies,’ discipline is essential for military forces. But what kind of discipline are we talking about? Is it the kind of discipline that is used to impose obedience to an authority through rebuke and punishment? Or is it the kind that comes from within because we are genuinely convinced this is the best way for group cohesion and efficiency? Traditionally, military discipline has been justified by the need to control the troops. First they must carry out orders. But also – and more importantly during political crises – those troops must not threaten the State. In current military law doctrine, there is still a quote from the eighteenth-century French general Maurice de Saxe, who states that without discipline, “[r]egiments and armies will only be contemptible, armed mobs, more dangerous to their own country than to the enemy.”45 In contrast, some suggest that the requirement for military discipline is “no different from the discipline expected of public servants or

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adherents of a profession, a university, a political party, a religious organization, a baseball league, or a labour union.”46 In my view, the reality is somewhere in between. I do not think service members would act as a crowd of lawless and violent individuals if rules were removed. At the same time, I cannot completely rely on the assumption that service members would independently act as self-regulated members of a profession, especially in the early stages of their careers. Combination of Collective and Self-Discipline In the modern caf, discipline is a combination of both collective and self-discipline. The proportion of each varies according to the circumstances, in particular the task to be accomplished, the environment within which it takes place, and the personal characteristics of subordinates and leaders.47 The first type of discipline is the collective one, which can be defined as the discipline imposed by a group. An example of collective discipline occurs typically on a military parade square. During drill, commands are sharp, loud, and clear. Any spotted deviation leads to immediate rebuke. All participants are ‘pawns,’ irrespective of their background. Each individual might eventually think that the drill has an intrinsic beneficial effect on the overall perception by others of the unit’s level of discipline, efficiency, and morale. But as military training goes, there is no time for such considerations when you are in it; you obey out of fear that the sergeant will give you a ‘blast’ and your platoon will have to pay for your mistakes. Self-discipline – which is, by definition, the discipline individually developed after collective discipline has been accepted – usually occurs when service members are left alone, with no immediate and direct supervision. For example, you are on a temporary duty, travelling to a location far from your base to give a training to a group. You arrive one day prior to the event, and do a quick reconnaissance to see the room and confirm that a projector and a laptop are there for your slide deck. In the evening, you review your material for the next day. On D-Day, you arrive early to do a last-minute check. After your presentation, you assist in cleaning and securing the room. You drive back to your base, fill up the staff car, and return it to the transport section, reporting any scratch on it. A few days afterward, you complete your travel claims with justification pieces, careful not to include any personal activities unrelated to military duties. During the entire

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operation, no one is behind your shoulder telling you what to do. You know it intrinsically as you have been taught by a mentor, have read the rules pertaining to travel, and are confident that this is what your supervisor – who trusts you as a seasoned journeyperson – would expect you to do. Above all, you want to look professional. Internalized Discipline for a Unique Environment Both types of discipline eventually increase service members’ efficiency in accomplishing the mission while reducing the inherent risk to their lives in a hostile environment. Consider the scenario where you are deployed abroad in a support capacity at a Forward Operating Base (fob ). You are at your station, doing the daily routine of your particular trade. Suddenly, there’s a siren and you hear someone screaming “Stand to!” You quickly react by putting on your helmet, load-bearing vest, and flak vest, putting your pistol in its holster, and grabbing your personal radio and your rifle within seconds. You are good at it; you have done the drill so many times, both in collective training but also on your own time. Having a quick look around to ensure no one needs help, you leave the place and run to the shelter. Even loaded down with gear, you are pretty fast. Years of required physical training (PT) have made you fit and the ‘extra mile’ you always do out of professionalism finally pays. When the Rocket Propelled Grenade (rpg) hits the fob, you are safe in the shelter, nervous in realizing what has just happened but ready to assist the primary defenders if needed.48 Discipline has made you efficient and protected you in the face of peril because you have internalized it, both in your mind through reason and in your body through physical training, as a result of collective and self-discipline. Ultimately, this is that kind of discipline that commanders want to instill, maintain, or, in case of a breach, restore at the earliest reasonable opportunity. Evolution of Maintenance of Discipline and Its Impact for Summary Trials There has been an evolution in how military discipline is maintained in the forces. Changes in modern warfare have required an increasing degree of skill and autonomy in operating combat systems.49 The focus in the caf is currently on self-discipline, which has been characterized as “one of the most important components of discipline in the military

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General Introduction 19

context”50 or even “the most essential form of discipline in the military environment.”51 In doctrine, self-discipline is presented as being fundamentally what is expected from service members considered as professionals, irrespective of their rank.52 It is the same discipline expected from each service member in preventing and fighting against a culture of sexual misconduct to preserve the dignity of all persons. Yet ‘disciplinary’ proceedings in the military at the summary trial level reflect a certain conception where the troops are rather a potential ‘mob’ to be controlled by a social elite than ‘professionals’ who mostly self-regulate. The fact that lower and higher ranks are dealt with differently, particularly when it comes to punishment, is indicative of that conception. By writing this book, I seek to close the gap so that the summary trial system is in harmony with the c a f ’s primary reliance on self-discipline in individuals considered as members of a professional organization.

S o u rc e s o f M ili tary Law Primary Sources My legal approach in this book is a classic one combined with elements of comparative law. It is focused on the analysis of primary sources of Canadian military law, first legislation and then case law pertaining to and having an impact on summary proceedings. On legislation, at the summit of the legal hierarchy (figure 1.1) sits the Canadian Charter of Rights and Freedoms. Except for the right to be tried by a jury, legal rights in the Charter apply to the military context. Actually, the very fact an exception is provided for as to the right to trial by jury illustrates, by contrast, that legislators had turned their minds to the existence of military law and to the applicability of the Charter to it. Next, the body of statutes consists mainly of the National Defence Act, in particular Part III, known as the Code of Service Discipline (csd ), and to a lesser extent the Criminal Code and the Controlled Drugs and Substances Act. Subordinate legislation under the n da consists first of the Queen’s Regulations and Orders (q r & o ), in particular volume II, “Discipline.” That volume is capital as it provides the detailed mechanics of the summary trial system. Below these we can add rules that govern the caf but are not legislation strictly speaking. The most common type are the Defence

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National Defence Act Criminal Code - Controlled Drugs and Substances Act QR&Os

DAODs

Other orders, directives, policies

Figure 1.1  Legal hierarchy in Canadian military justice

Administrative Orders and Directives (dao d ) issued under the authority conferred by the nda to the Chief of the Defence Staff (cds) to give effect to the decisions and carry out the directions of the Government of Canada. Finally, at any level of the chain of command and in any units, orders, instructions, and directives pertaining to military justice and disciplinary matters may be issued as long as they are in accordance with the above sources. Among these more local or specific directives, we find the rules governing persons undergoing minor punishments53 or the Judge Advocate General’s and Director of Military Prosecution’s policy directives.54 Relevant case law in military justice comprises first the decisions of the Supreme Court of Canada to which all other courts, including military courts and tribunals, are bound according to the rule of precedent, also known as stare decisis (figure 1.2). Until very recently, a case pertaining to military justice was a rarity before the Supreme Court. However, its decisions raise principles and legal norms in other matters, in particular in penal and constitutional law, that receive application in the military justice context through legal reasoning: by arguing from a similarity (a pari), from a yet stronger reason (a fortiori), or from the opposite of an accepted conclusion (a contrario). Among decisions of appellate courts,

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Figure 1.2  Judicial hierarchy in Canadian military justice

those of the Court Martial Appeal Court (c m ac ) are the most relevant as they specifically pertain to military justice. Although they essentially pertain to courts martial, some of the c m ac ’s decisions might receive application in a summary trial context. To a lesser and more general extent, decisions from other appellate courts of the provinces and of the Federal Court of Appeal are also relevant and may receive application, again through legal reasoning. Finally, the decisions of courts martial are relevant as primary sources, although they usually cover summary proceedings incidentally. All decisions, from the Supreme Court to courts martial, are notably available on the Canadian Legal Information Institute (CanL I I ) website (https://www.canlii.org). Secondary Sources Secondary sources used in this research include commentaries, scholarly work, and government documents, such as jag annual reports and training material, pertaining to Canadian military justice. However, in comparison with other legal fields, literature is scarce. The reports of working groups on summary trials and the external reviews on the operation of the National Defence Act conducted by independent authorities in 2003 and 2011 are also relevant.

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Comparative Law Military justice is so specialized that a comparative approach is almost inevitable. Moreover, it is particularly on point between democratic States which have professionalized their forces. Since the Second World War, many countries have faced the challenge of protecting soldiers’ human rights without diminishing military efficiency. But careful consideration should be given before importing the experience of foreign jurisdictions, even those with which we share common roots. As the Supreme Court of Canada stated in response to a proposal to import the Miranda rule about the presence of a lawyer during a police interview, “adopting procedural protections from other jurisdictions in a piecemeal fashion risks upsetting the balance that has been struck by Canadian courts and legislatures.”55 For law reformers, comparison is useful as it provides a broad spectrum of experiences from which to draw new ideas for their own national systems.56 Proponents of changes in military justice such as Eugene R. Fidell in the United States and Gilles Létourneau and Michel W. Drapeau in Canada extensively advocate for the use of the comparative approach. For Fidell, military justice is going through a transformation that transcends national boundaries; specialists are aware of the need for cross-border collaboration in finding new ideas.57 He also sees such collaboration as an opportunity to better understand his own system and to help in conducting its periodic reassessment.58 For Drapeau and Létourneau, the comparative approach comes as a self-evident choice, as Canada’s military justice system resembles those of other common law military jurisdictions that are under similar obligations in terms of human rights, in particular as they pertain to summary trials.59 By contrast, proponents of a conservative approach such as Victor Hansen in the United States and Mike Madden in Canada are reluctant to rely on a foreign system as a model to follow. Quite the contrary, Hansen uses Australian, Canadian, and UK experiences to caution against what he calls “unintended consequences.” According to Hansen, civilian court decisions, which are often at the source of reform, sometimes overlook an important aspect of military law, in that case the commander’s obligations to ensure compliance with law of armed conflict.60 Madden contends that unconsidered transplantation of aspects of foreign military justice systems without proper consideration of the disparity between national contexts “can

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represent a hazard to the principled and coherent evolution of Canadian [military] law.”61 In a subsequent article, Madden further argues that international human rights commentators have a tendency to select “only the most expansive aspects of human rights doctrines around the world” to advocate for reforms.62 He calls this phenomenon “comparative cherry-picking” and cautions that it can be counter-effective in advancing human rights. One of the two examples he uses to illustrate his point is precisely the way certain commentators – namely Drapeau and Létourneau – have misrepresented as binding changes in European military jurisdictions to advocate for reform of the summary trial in Canada.63 I am mindful of the “perils” of comparative law.64 The first one is superficiality; comparatists (or comparativists) may not study foreign systems as thoroughly as they would their own national system.65 In the present research, however, the imbalance should not come as a surprise; the emphasis is intentionally put on the Canadian system. Another peril is that a comparative approach is usually unsystematic.66 That risk will be reduced here by focusing on primary legislation pertaining to summary proceedings or their equivalent in each country. Case law will also be analyzed, although it should be kept in mind that summary trials do not in general end up in published or reported decisions. Where available, secondary sources will be consulted (mainly official training doctrine material and articles), although some countries do not have a high volume of literature. The comparative approach also runs the risk of being inaccurate, as the embedment of each military system within its national law is often overlooked.67 Here the focus is put on a specific aspect of a specialized field of law in jurisdictions which share, for the most part, a legal tradition with Canada. Besides, the specialization of military law is such that two military justice systems may have more in common with each other than with their respective civilian counterparts. Therefore, if there is a risk of inaccuracy, it is a calculated one. In sum, despite its risks, the comparative approach has “virtues” that outweigh the “perils.”68 Notably, it provides ideas – neither panacea nor bane – on how other similar jurisdictions have dealt with similar issues. Even more so as it pertains to summary trials; the challenge of protecting human rights without impeding military efficiency at the lowest level is common to many countries. In conducting such

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a comparative review, I seek to avoid the greatest peril for law reformers: to select only those elements of foreign jurisdictions that favour reform or certain options for reform while discarding the others.

R e f o r m in M il itary Jus ti ce To ‘Civilianize’ or to ‘Not Civilianize’ Currently in Canada, evolution in military penal law is mainly contemplated through the lens of a dualistic approach. For some, the ultimate objective is the maximal mirroring of the military justice system with its civilian counterpart. For example, Létourneau would eliminate “useless disparities between the civil penal justice system and the military penal justice system,” as this would be the best way for Canadian military justice to be compliant with the Charter.69 In his view, that approach is aligned with an international trend in furtherance of equality before the law.70 In response, Michael Gibson71 strongly objects that the Supreme Court of Canada has recognized that a separate military justice system exists due to the unique needs it has to fulfil.72 In that regard, he is closer to those who believe military justice is one of its kind or sui generis. Stating that “Canada has one of the best military justice systems in the world,” Gibson argues that the differences are there for a reason. In any event, the real issue for him is not the differences but whether military justice is Charter compliant and effective in fulfilling its purpose.73 Létourneau’s reference to an ‘international trend’ is an allusion to a model by Willy Arne Dahl.74 Having reviewed and assessed changes in several military justice systems since 2001, Dahl developed a simplified classification which distributes diverse systems along a spectrum (figure 1.3).75 Systems in which courts martial are convened on a case-by-case basis are on one end. Those completely relying on civilian courts are on the other. Using this model – developed mainly from responses to a systematic survey – Dahl notes that changes in the systems that he reviewed were generally from left to right. Useful in telling us where the system is and what the trends are, Dahl’s model is incomplete because it does not tell us where the system should go. Using that model in military law reform limits the debate to a simple opposition: “to civilianize or not to civilianize.” In all fairness to Dahl, the model reflects what he saw as trends after conducting surveys, and not where he thinks the law should go.

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General Introduction 25 Dahl's Axis – International Trends in Military Justice

Courtsmartial convened for the individual case

Standing military courts

Specialized civilian courts

General civilian courts in peacetime

General civilian courts in peace and war



Figure 1.3  Dahl’s axis – International trends in military justice

Furthermore, his scale pertains to national court martial systems, not to military summary proceedings. I have a hard time with ‘civilianization.’ First, the word brings confusion. What is it? Does it mean making military justice resemble civilian justice in every possible aspect? Does it mean simply adhering to basic legal principles developed in civilian justice, such as ‘due process of law’? An American author, Edward Sherman, uses the term to describe the evolution of the US military system following the First World War. Civilianization represents, then, a movement to give service members “the constitutional and due process rights to which they would be entitled in civilian courts.”76 A British author, Gerry Rubin, goes further. He defines ‘civilianization’ as “the conscious borrowing by the court-martial system of substantive and procedural rules which had (usually recently) been introduced within the civilian law system” or more broadly “the (consensual) incorporation into military law of perceived beneficial civilian legal norms.”77 In Canada, ‘civilianization’ of military law is both: the transplan­ tation, either by imposition or by choice, of civilian legal norms into military law. On one hand, the adoption of Charter legal rights has forced a “rapid convergence between military and civilian criminal justice processes.”78 But changes in criminal law also influence military law, not due to constitutional requirements but because this is logical. For example, Parliament adopted legislation to include in the National

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Sex Offender Registry sexual offenders convicted at courts martial79 and to give military judges power to issue dna warrants.80 However, the movement toward ‘civilianization’ has not touched the summary trial system yet. I have another concern as to the scope of ‘civilianization.’ How far should it go? Rubin warns against unconsidered ‘civilianization’ that could lead to ‘juridification’: imposing unnecessary external legal norms “to the armed forces in situations where such legal norms had hitherto been absent” despite the fact that they were already governed by “other values and expectations.”81 Dahl reports a case where a Dutch criminal appeal court criticizes civilian prosecutor for a lack of understanding of the military context in pressing charges related to a shooting incident in Iraq, suggesting ‘civilianization’ might have “gone one step too far.”82 In advocating for the reform of the Canadian summary trial system, I certainly do not want to go ‘one step too far’ by ‘juridifying’ the system. Having said that, I will suggest importing civilian law developments that I think, after consideration, would improve the summary trial system. Lastly, ‘civilianization’ seems to suggest that evolution in military law can only be a linear response – by either acceptance or opposition – to changes to ordinary law. I believe such a way of thinking discourages innovation and originality. In a specialized field of law such as military law, changes are complex and come from multiple sources; they are not driven only by a reaction to an external evolution of human rights83 or civilian law developments. Between Administrative and Criminal Law Another way to approach reform in military justice is by contemplating changes to its structure and features according to a division between administrative and criminal law. For example, reforming the court martial system would be through a criminal law paradigm, while for summary trials such reform would be through administrative law. As we will see further in this book, this is the approach that the federal government seems to have recently taken in Bill C-77, which would substantially reform the summary trial system. Although logical at first glance, the criminal law–administrative law dualistic approach has its perils. It is an oversimplification that underestimates the unique nature of military justice, which is not a perfect mixture of

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administrative and criminal law but has elements of its own, adapted to its specific context. It also creates confusion, as administrative law already has its delineated domain in military law. Military administrative law in the caf encompasses, among other things, regimes that also deal with service members’ conduct but with different processes and consequences. For example, there are Defence Administrative Orders and Directives (dao d ) on harassment prevention and resolution,84 conduct and performance deficiencies,85 limitations on intimate personal relationships,86 sexual misconduct,87 academic misconduct,88 and alcoholrelated misconduct.89 Defaulters are exposed to ‘remedial measures’ that “are intended to: (1) make the caf member aware of any conduct or performance deficiency; (2) assist the caf member in overcoming the deficiency; and (3) provide the c a f member with time to correct their conduct or improve their performance.”90 Moreover, military administrative law pertaining to service members’ conduct does not cover disciplinary proceedings and is not part of military justice, as clearly stated in daod 5019-4: Administrative Actions Versus Disciplinary Actions 3.13 Administrative actions are not punishments under the Code of Service Discipline. 3.14 Both disciplinary actions under the Code of Service Discipline and administrative actions are meant to address a caf member’s conduct or performance deficiency. They may operate independently or one may complement the other. 3.15 Disciplinary actions and administrative actions serve different purposes. Disciplinary actions possess a punitive aspect that administrative actions do not. Disciplinary action is initiated only if there are sufficient grounds to justify the laying of a charge under the Code of Service Discipline against a caf member.91 Using the dualistic criminal law / administrative law approach to promote reform in Canadian military justice runs the risk of ‘cherrypicking’ the best of both worlds: reducing the procedural safeguards of administrative law for the sake of efficiency while keeping punitive sanctions of the criminal law.

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New Model Where should military justice evolve? In R v O’Toole, Chief Justice Edmond Blanchard wrote that “Parliament intended to bring the military justice system into alignment with the civilian justice system.”92 He further stated that “the military justice system should therefore resemble the civilian justice system insofar as there is no military rationale for adopting a different approach.”93 Previously McIntyre J wrote in MacKay v The Queen that the question is to determine if the different treatment “is arbitrary, capricious or unnecessary, or whether it is rationally based and acceptable as a necessary variation from the general principle.”94 We should note that Blanchard and McIntyre JJ use “different” and “variation,” terms which refer to a broader concept than mere opposition. Besides, being “different” from civilian justice does not necessarily mean being behind it. Due to military context, it could sometimes mean being ahead of it, even beyond constitutional standards. To identify how military justice at the summary trial level should be “different” from the civilian system, I suggest a new model (figure 1.4) based on a trinity of forces balanced between three legitimate interests: political control, human rights, and operational needs. Human rights are of primary importance in Canada due to the supremacy of the Charter, “with the exception as to jury trial in paragraph 11(f).”95 By ‘human rights’ I mean legal rights and also principles of natural justice. Political control is essential for forces to remain accountable, in particular in a democracy where that control is exercised by civilians. Military operational needs must also be fulfilled, otherwise a reform could be inapplicable, counter-effective, or impede military efficiency. Although those forces are sometimes competing, I believe the ideal military justice system is at the point of equilibrium where all legitimate interests are met. Reform of the summary trial system should therefore make every effort to reconcile them. Where conflict is unavoidable, precedence should be given to the protection of human rights and to civilian political control, in that order. The primacy of human rights is drawn from Canada’s international obligations. Having said that, “in time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed,” a State may take measures derogating from certain human rights “to the extent strictly required by the exigencies of the situation,” provided

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Figure 1.4  Trinity of interests in military justice

those measures are otherwise neither illegal nor discriminatory.96 Second in line, civil control of the military organization ensures that it does not threaten the constitutional order. Within those parameters, government should be deferential to operational needs as defined by military commanders. The right to counsel is a good example. At the court martial level, to simply restate that accused persons can retain counsel would meet human rights standards. But it would not meet operational needs. The fact that service members and sometimes others (dependents, d n d civilian employees, or contractors) may be represented by legal counsel of the Defence Counsel Services free of charge serves three purposes.97 First, it puts everybody at par in facing justice irrespective of their rank or status. Second, when the caf are deployed abroad, it is easier for military lawyers than for their civilian colleagues to be cleared to travel to an operational theatre. Last, military lawyers are generally speaking more experienced than their civilian colleagues in military law and have a better understanding of the military context. At summary trial level, to simply state that service members facing summary trials can be legally represented would also meet human rights standards. But again it would not meet operational needs.

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Having jurists and legal debates become the primary focus of summary trials would make those lose their essence: a prompt method of disposition in dealing with minor offences.

O u t l in e In this book I explain, assess, and recommend. Chapter 2 describes the summary trial system, in particular its procedural safeguards. I also provide an overview of its evolution, from its origins in England to the overhaul that took place in the aftermath of the Somalia Affair. The following three chapters assess the system’s legality as it pertains to the Canadian Charter of Rights and Freedoms.98 In essence, I review previous academic works and boards’ reports conducted during the 1990s, in particular the thesis of Brigadier General (ret.) Kenneth Watkin.99 I update and expand those works to take into consideration developments in legislation and case law, in both military and civilian justice systems, here and abroad. Chapter 3 analyzes the potential breaches of the Charter. It includes well-known claims, the first being that presiding officers lack independence to detain or try and the second being that accused persons are not represented by counsel. There are novel arguments presented here as well, namely the absence of transcripts and the disparity in dealing with service members based on their ranks. Chapter 4 presents other reasonable alternatives. I compare other disciplinary regimes with the summary trial. I also explore aspects of foreign summary trial systems to see if Canada can draw from their experience. Most of those allied jurisdictions are of the ‘AngloAmerican’ type (United States, United Kingdom, Australia, New Zealand, Ireland). Canada shares a common law tradition with them, and our respective military law likewise springs from a common origin. Canada being a bijuridical country, I add in for comparison the systems of ‘Euro-Continental’ or civil law tradition (France, Germany). I focus on recent reforms, their results, and their potential importation into Canadian law. I divide these systems into three groups, representing the general approach each takes in trying to balance effectiveness and human rights. Chapter 5 evaluates whether summary proceedings, even though they may be in breach of the Charter, could be nevertheless justified under its section 1. Here, the comparative study helps to analyze each criterion of the test developed in R v Oakes. First, similar to other

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jurisdictions, the maintenance of military discipline at unit level “relates to concerns which are pressing and substantial in a free and democratic society.”100 On the proportionality part of the test, each jurisdiction has to balance the interests of individual soldiers with first the military organization and then the entire society. My conclusion is that, considering the availability of reasonable alternatives, the current system is not a legitimate restriction on service members’ legal rights. In addition, under the current circumstances surrounding the election of the mode of trial, choosing summary trial is not a valid waiver of rights. Last, chapter 6 presents options for reform. First I analyze the ‘depenalization’ approach taken by the government with Bill C-77101 tabled in May 2018. This legislation defines summary proceedings as being ‘disciplinary’ and not ‘criminal.’ However, Bill C-77 has weaknesses: it is too much of a shift from the current system and many of its aspects remain uncertain. For example, having ‘service infractions’ not defined in the bill but left to regulations might decrease transparency. In addition, protection of service members’ rights or judicial oversight are unclear. Instead, I suggest adopting the ‘judicialization’ approach and recommend sixteen measures to reform the system. The first seven recommendations are designed to address the main potential constitutional challenges, which may or may not be recognized by courts: the lack of independence of the presiding officer, the insufficient legal assistance, the absence of transcripts, and the unequal treatment between ranks. The remaining nine recommendations go beyond mere compliance with the Charter, aiming at improving military justice at the summary level, generally speaking, in pursuit of the protection of service members’ legal rights.

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2 A Description of the Summary Trial

You are a unit legal advisor. After charges are laid and the accused person chooses to be tried by summary trial, you provide legal advice to the presiding officer. The facts are straightforward. The law is understood; your recommendations are clear. The trial is set for the following week, roughly one month after the event. You reassure the presiding officer: everything should be fine. In any event, you suggest that the presiding officer adjourn the summary trial and call you if a problem arises. Indeed, on the day of the trial, you receive a call. The presiding officer just wants to ask you a ‘quick question’ about the proceedings: – “Everything is going well so far. The hearing phase on the finding is done. The accused challenges the charges but I think I have all I need. But I just want to confirm that I got everything.” Feeling the uncertainty in the presiding officer’s voice, you ask for more details. The officer answers: – “Well, it’s just that the accused told me a story and I think it’s BS .” – “What makes you believe it’s BS , Sir?” – “Because it’s obviously self-serving.” – “What’s the problem then?” you ask, knowing where this is going. – “But what if the accused is honest and it’s true? What should I do?” – “I understand you’re not sure?” – “No … Not 100%.” – “How would you describe your feelings?”

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– “Well … I guess I have doubts.” – “Is it because you like the guy?” – “Not at all, I barely know him as he’s not under my direct supervision.” – “Is your doubt far-fetched?” – “I don’t think so …” After a pause, you say: – “I think you have your answer, Sir.” All military lawyers who have been unit legal advisors at some point in their careers have been involved in the above scenario at least once. It illustrates both the essence and the inherent tensions of military summary trials: non-lawyers seeking swift disposition in dealing with minor service offences and having to applying legal concepts in doing so. This authority given to commanding officers and their delegates is the fruit of a long history between executive power and parliamentary control over how troops are disciplined.

E vo l u t io n Overvi ew Through the ages, the essence of summary proceedings has not changed: offering a more flexible way to deal with lack of discipline than the more formalized court martial process. This is not unique to the military organization. The civilian justice system has also developed an alternative to trial by jury to deal more expeditiously with lesser offences. Fairly close to one another at their origins, summary proceedings in civilian and military justice are currently substantially different. The disparity is mainly due to the different evolution (or lack thereof) of the military summary trial system in comparison with its civilian counterpart. From Its Origins until the Somalia Inquiry In medieval England, there was no military justice system as we know it. Indeed, there was no standing army; feudal armies were called upon by the Crown on a case-by-case basis. To help in maintaining discipline, the Crown promulgated Articles of War, a set of rules issued to the troops that ceased to apply once a conflict was over.1 In comparison

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with modern military codes, these Articles of War were short. Due to the temporary nature of those instructions, the distinction between military and civilian jurisdictions was blurred. Often, common law courts dealt with soldiers’ misconduct as they did with that of any other individual.2 At that time, the social cleavage was less between soldiers and civilians than between aristocracy and peasantry. Rulers in civilian society were also military leaders. Maintaining discipline was the duty of members of the gentry, irrespective of the context; only institutions’ names changed. To deal with low-end criminality in civilian society, knights were appointed as early as 1200 to keep ‘the King’s peace’ locally.3 This arrangement was later institutionalized to make them ‘justices of the peace,’ a system that has been maintained until modern days.4 In raised armies, control was exercised by Courts of Chivalry – a Norman institution – that were progressively replaced by councils of war.5 Those in turn transformed into the court martial system, in particular the regimental court martial, which gave commanders the power to impose punishments on their troops except for the most serious offences.6 That system remained until the early seventeenth century, when England created a standing army. That period of political turmoil resulted in the establishment of a constitutional monarchy at the end of the Glorious Revolution.7 With the establishment of permanent land forces, it became apparent that constant control had to be exercised over them. Not only were disciplined troops more efficient on the battlefield, they were less dangerous when in contact with the civilian population.8 The delicate balance was the extent to which the Crown and Parliament had control over those forces: enough to protect the constitutional order – in particular ensuring troops’ loyalty to the new monarchs – but not to a point that paralyzed their ability to take action in defending the State.9 The compromise was reflected in the Bill of Rights (1688)10 and the preamble of the Mutiny Act (1689). The creation of a standing army had to be approved by Parliament on a periodic basis, each time with a reissuance of Articles of War. In exchange, although the most serious offences committed in Great Britain were dealt with by civilian authorities, the maintenance of an “exact discipline” was left to the Crown, exposing soldiers “to a more exemplary and speedy punishment” than ordinary law.11

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In comparison, the Crown’s power over the naval forces was greater. First, the Navy did not represent the same threat to Parliament’s sovereignty, as it was located outside the country. Second, traditionally sea captains were already given a great deal of power and independence to summarily deal with misconduct, sometimes in very stringent circumstances.12 In the mid-nineteenth century both the British Army and the Royal Navy were under pressure to reform their military justice systems due to two factors. The first was the rapid industrialization of society since the end of the eighteenth century. There was an increase in the numbers of offences that could be tried by civilian courts. To alleviate the burden that those cases put on the judicial system, summary jurisdiction was increased and its process simplified, in particular over some indictable offences in 1879.13 That process became known as ‘summary trial.’ More specific to the forces, the second factor was a public concern that conditions in the service were too severe and impeded voluntary enlistment.14 Moreover, in the army, the regimental court martial, the lowest form of military justice proceedings at the time, was considered inefficient.15 Therefore, both to harmonize military justice with its civilian counterpart in dealing with minor offences and to reduce hardship on service personnel while enhancing efficiency, the summary jurisdiction of commanding officers was expanded. Parliament gave British Army commanders the power to imprison up to twenty-one days without trial, with the option for the individual to request court martial as a safeguard.16 In the Royal Navy, commanders were given summary jurisdiction over a broader range of offences with greater powers of punishment.17 Yet, in comparison with their civilian counterpart during the same period, military summary trials were more beneficial from an individual standpoint. Their maximum punishment was less than six months of imprisonment. In the Navy, they allowed for the individuals to be represented by ‘an accused’s friend’ or the divisional officer, while civilians facing summary jurisdiction did not have the resources to afford legal representation. In the Army, they allowed for the cases to be elevated to higher levels, while the right of appeal was restricted for civilian offenders.18 In that sense, military summary justice was then ahead of civilian summary justice.

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Those summary systems were transplanted by legislation into the Militia – later the Canadian Army – just after Confederation,19 the Royal Canadian Navy (rc n) a few years before World War I,20 and the Royal Canadian Air Force (rc a f ) a few years after. At that time, each service still had its own summary system, although two were virtually identical, the rc a f having basically adopted the Canadian Army system with the necessary adaptations.21 Therefore, until the end of the Second World War, Canadian military justice mirrored the evolution of British military law.22 In particular, army commanding officers’ summary powers were increased to permit imposing up to twenty-eight days of detention, which replaced imprisonment and was designed as a last resort to save a soldier’s career.23 Meanwhile the Canadian criminal justice system abolished the distinction between ‘felony’ and ‘misdemeanour’ by adopting the summary conviction scheme where non-indictable offences could be dealt with summarily by a judge or a justice of the peace sitting alone.24 The post–Second World War era saw the creation of the first Canadian tri-service legislation: the National Defence Act with a unified Code of Service Discipline.25 In terms of summary justice, a common system which combined elements of Navy and Army proceedings was created.26 Irrespective of the service, there were three levels of summary trials: before a commanding officer, a delegated officer, or a superior commander. The accused had the option to be represented by an assisting officer (a feature coming from the Navy) and a right to elect court martial (which came from the Army). Although imprisonment was removed for naval commanders as a punishment, the maximum period of detention was extended to ninety days for all commanding officers.27 In 1952, the power to detain for up to fourteen days was given to delegated officers.28 A few years later, the summary trial system was modified to comply with the Canadian Bill of Rights.29 The right to elect court martial was expanded to any service member charged with an ordinary criminal law offence.30 In addition, that election took place prior to hearing the evidence rather than afterward.31 From an institutional point of view, this was not a cosmetic change. Put after the trial, the right to elect court martial is arguably a de facto appeal. Put before the trial, it is arguably a de jure waiver of rights. The Charter, enacted in 1982, brought a shift in the caf. After an initial request to be given a general exemption was rejected by the Department of Justice,32 the caf adopted a series of modifications to

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accommodate military justice with the Charter, keeping in mind its requirement to be operationally effective. In terms of summary trials, there were two groups of changes. In the first group, the right to elect court martial was expanded to anyone exposed to a punishment of detention, reduction in rank, or a fine in excess of $200.33 In addition, the power to impose detention was removed from the delegated officers, since they did not have the authority to offer the right to elect court martial.34 Regulations were also modified to give more time for accused persons to prepare their defence and consider an opportunity to admit any particulars of the charges.35 In the second group, there were two notable changes to summary trials. The ‘right’ to an assisting officer was formally recognized and that officer’s role detailed, while the potential involvement of a legal counsel was left at the presiding officer’s discretion.36 During that early post-Charter period, the summary trial system remained virtually unchallenged with notable changes, resulting from two court decisions.37 In Glowczeski v Canada (Minister of National Defence), a junior-rank sailor stationed in cf b Esquimalt, bc, was convicted and sentenced to detention by his commanding officer. He was not released pending review, as regulations at that time gave that option only for warrant officers and above. He sought a prohibition order before the Federal Court against his incarceration and a bail pending an appeal or determination of the constitutionality of the summary trial decision.38 The individual claimed that sections 7, 9, 11(e), and 15(1) of the Charter were breached. The Department of National Defence responded that the Charter was not applicable as the applicant had chosen summary trial.39 The Court rejected that argument, concluding that the incarceration was unconstitutional and therefore illegal.40 About one year later, a second case almost identical to the first one, Fontaine v Canada (Minister of National Defence), occurred in cf b Valcartier, qc.41 A junior-rank soldier had been sentenced to forty-five days of detention but could not apply for bail pending review, again due to his rank. Applying Glowczeski, the Court also concluded it would be unfair to let the individual serve his incarceration knowing that there were valid concerns raised about the constitutionality of the process.42 Ultimately, those cases were not decided on the merits as the chain-of-command decided on its own motion to mitigate the sentence afterwards. Nevertheless Glowczeski is probably what prompted a thoughtful military lawyer, Kenneth Watkin, to proactively

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conduct his l l m thesis on the constitutionality of the summary proceedings as it pertains to the Charter.43 Since the Aftermath of the Somalia Inquiry The tragic events that took place in 1993 during the deployment of the Canadian Airborne Regiment in Somalia and the public inquiry commission that followed (1994–97) brought about a profound cultural and structural change in the Canadian Forces. In terms of military justice, the Somalia Commission of Inquiry Report made recommendations to reform the summary trial, in particular to ensure its compliance with the Canadian Charter of Rights and Freedoms.44 The report proposed a reclassification of misconduct in the service, removing the concept of ‘service offence’ and replacing it with ‘minor disciplinary,’ ‘major disciplinary,’ and ‘criminal misconduct.’45 Commanding officers would have had jurisdiction to lay a charge and try only with regards to misconduct of the first group.46 Detention and dismissal would have been removed from their punishment powers.47 With no more exposure to such a deprivation of liberty, the standard of proof at summary proceedings would have been lowered to “balance of probabilities”48 together with a formalization and generalization of the possibility of appeal by the way of redress of grievance.49 A conviction for a ‘minor disciplinary’ misconduct would preclude criminal prosecution. In short, what was proposed was to ‘depenalize’ the process to make it similar to those regulating professional bodies.50 Parallel to the work of the commission of inquiry, the c a f conducted an internal review. Mainly based on BGen (ret.) Watkin’s llm thesis, the Summary Trial Working Group (stwg ) Report of 1994 made fifty-nine recommendations to improve summary proceedings.51 Being less of a paradigm shift than what the Somalia Commission of Inquiry Report would be in 1997, the reform nevertheless proposed substantial changes. It suggested a limitation of presiding officers’ jurisdiction over ordinary criminal offences.52 As there was no distinction in the regulations as to how imprisonment and detention were served, the st wg also proposed that ‘correctional custody’ – more focused on retraining than on penalizing – be the new maximum punishment.53 And more importantly, it recommended a right to appeal to an independent court martial – by way of a retrial – where an accused was sentenced to a punishment of correctional custody, reduction in rank, or a significant fine.54

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A Description of the Summary Trial 39

In 1997, before the Somalia Commission of Inquiry Report was tabled, the Special Advisory Group on Military Justice and Military Police Investigation Services tabled a report – known as the Dickson Report I as the group was chaired by former Chief Justice Dickson – that also recommended a series of modifications to the summary proceedings system.55 In less than two months, the group conducted round tables at various military bases, reviewed and analyzed the legislation, and produced a report with thirty-five recommendations pertaining to military justice, eleven more specific to summary trials.56 It proposed that detention be retained as a punishment but reduced to a maximum of thirty days.57 The group also recommended that each time someone is given a choice to be tried by court martial or summary trial, he or she be afforded the right to consult with legal counsel.58 And importantly, it recommended formal training for summary presiding officers about their role in the military justice system.59 A second report recommended a transfer from the Minister to the Chief of the Defence Staff (c d s ) of the authority to appoint superior commanders and to review and alter convictions resulting from a summary trial.60 The Somalia Inquiry Commission’s proposal can be characterized as a complete ‘depenalization’ of the summary trial process. Depenalization means the removal of penal aspects, in terms of terminology, procedure, and consequences on the individuals. For its part, the s t w g ’s proposal put the focus on a ‘judicialization’ of the appeal process. Judicialization is the conversion or integration of a system into a judicial system. In the context of summary trials, ‘depenalization’ is a change of a more profound nature as it moves the system away from criminal law. ‘Judicialization’ of the summary trial system does not change its essential nature but involves the intervention of an independent actor – a judge – in the process. These two notions will be further discussed in chapter 4, when we will examine foreign summary proceedings systems. The Dickson Report I suggested more modest modifications to the system, maintaining the blurred distinction between the ‘disciplinary’ and ‘penal’ nature of the proceedings. That approach was mainly due to an external legal opinion which concluded that, although sections 7 and 11(d) of the Charter were infringed by the existing system, the breaches could be justified under section 1.61 The legal opinion also concluded that to increase the chances that the summary trial procedure could be justified pursuant to section 1, “certain relatively

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minor improvements” had to be made.62 Most of the changes prompted by the Dickson Report I were made through regulations. In 1998 Bill C-25 amended the military justice system to essentially harmonize it with its civilian counterpart.63 The nda was modified in several ways as it pertains to summary trials, trying to alleviate the lack of judicial independence and legal training of presiding officers, reducing their punishment powers, and protecting the process from undue command influence.64 For example, it was expressly stated that officers cannot preside at a summary trial where they previously carried out or directly supervised the investigation, issued a warrant, or laid the charges, even indirectly.65 Consequently, they were given the power to refer the charges to another officer having jurisdiction.66 The amendments also provided for the authority to circumvent a commanding officer who would not proceed with charges.67 Concerning punishment powers, commanding officers were no longer able to impose loss of seniority, their power to reduce someone’s rank was limited to one rank, and the maximum period of detention they could impose was reduced to thirty days.68 To emphasize the prompt nature of the proceedings, the nda was amended so that a summary trial had to begin within one year after the day on which the service offence was alleged to have been committed.69 A legal training program designed for presiding officers was developed together with the introduction of publications to guide all actors as to their roles in the modified system. The most comprehensive of those documents was the Military Justice at Summary Trial Level70 manual, which remains the main reference on the matter for those who operate the system on a daily basis. Except for a few changes, the legislation supporting the summary trial system has remained substantially unchanged. To keep pace with the evolution of Canadian law, Bill C-25 included a review mechanism. In 2003, the first independent review of the nda was conducted by former Chief Justice Lamer. Although not the primary focus, summary proceedings were partially covered by his report. From the outset he made a general comment that, as a result of the 1998 reform, “Canada has developed a very sound and fair military justice framework in which Canadians can have trust and confidence.”71 Having said that, he indirectly expressed concerns about summary trial jurisdiction when he commented on the proposal from the Office of the jag to add an offence to the list of those for which an election to

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A Description of the Summary Trial 41

court martial was not mandatory as those were considered ‘minor.’72 The said offence was any breach to unit or local orders, which was deemed to be “to the prejudice of good order and discipline.”73 Former Chief Justice Lamer refused to concur with the proposal for two reasons. First, those ‘unit or local orders’ that may appear minor sometimes engage fundamental rights.74 Second, to be applicable to accused persons, those ‘unit or local orders’ had to be duly published, which was the commanding officers’ responsibility. Using an example, Lamer explained that defendants have more chances to succeed in a court martial than in a summary trial where there are no formal rules of evidence or representation by a lawyer.75 Consequently, Lamer recommended against expanding the circumstances where the right to elect court martial is not offered.76 On the other hand, he agreed with ojag’s recommendations to expand summary jurisdiction over offences77 and over persons.78 Last, Lamer recommended assisting officers be provided with standardized legal training once they are appointed to a particular case, going further than the Dickson Report I recommended.79 The legislative response to the Lamer Report took considerable time mainly due to a particular political context resulting from a minority government between 2006 and 2011. There were Bills C-7 in 2006, C-45 in 2008, and C-41 introduced in 2010. All died on the Order Paper. Although similar, those bills were not identical. In particular, Bill C-41 was a modified version of Bill C-45 that included recommendations made by the Standing Senate Committee on Legal and Constitutional Affairs following the enactment of Bill C-60.80 One was to reduce the limitation period for summary trials from one year between the time of the alleged offence and the trial to six months between the alleged offence and the laying of the charge.81 Ultimately, the legislative response to the Lamer Report was assented to in June 2013.82 On military justice in general, Bill C-15 proposes to statutorily set out the purposes, objectives, and principles of military justice in the n da , putting the emphasis on its dual nature as identified by Lamer CJ in Généreux.83 On sentencing, it provides for additional options, including absolute discharges, intermittent sentences, and restitution orders.84 More specifically on summary trial, it adds lieutenant-colonels to summary jurisdiction.85 Notably, for certain offences, provided the sentence has not passed a certain threshold, a conviction before a military tribunal would not constitute an offence for the purpose of the Criminal Records Act.86 According

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to government officials’ estimation, that would cover 95 percent of the cases dealt with summarily.87 Those amendments entered in force on 1 September 2018. Before Bill C-15 was enacted, the second independent review of the n da was conducted. In his report, former Justice LeSage stated that summary trials are “vital to the maintenance of discipline at the unit level and therefore essential to the life and death work the military performs on a daily basis.”88 He echoed former Chief Justice Dickson’s assessment that the system is likely to survive a constitutional challenge.89 Nevertheless, he was concerned that a summary trial conviction may translate into a criminal record for the individual. He considered a criminal record too severe a consequence considering that a summary trial, “although constitutional for its purposes, does not provide the panoply of safeguards of a civilian criminal trial.”90 Therefore, he recommended that “there ought to be a full review of the issue of criminal records flowing from convictions at summary trial.”91 On assisting officers, he described their role as “pivotal,” adding that those who are not sufficiently knowledgeable about the military justice system and their role “threaten the integrity of the summary trial.”92 Consequently, he recommended that “there should be a certification requirement for assisting officers similar to that for presiding officers.”93 On jurisdiction, he recommended that it would be more efficient to have second lieutenants in training tried by their commanding officers instead of superior commanders.94 Justice LeSage found that administrative measures were sometimes used as a substitute for summary trial, perceived as “more cumbersome.”95 He added that service members sometimes elected summary trial to avoid what they perceived to be more negative consequences if they were to choose court martial.96 Former Justice LeSage made recommendations to reduce both aspects.97 In 2012 the majority of the fifty-five recommendations were accepted by the previous government, although it indicated that dnd/caf officials were either implementing or studying them.98 On 15 June 2015, Bill C-71 was introduced before the House of Commons but died on the Order Paper when the 2015 federal elections were called.99 A substantial part of Bill C-71 pertained to the summary trial system and proposed a major overhaul toward ‘depenalization.’ A more recent legislative initiative, Bill C-77, goes further towards that approach.100 That law reform will be further analyzed in chapter 6.

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A Description of the Summary Trial 43

In retrospect, the main difference between military and civilian summary justice is that the former is still run by officers of the Crown while the management of the latter has been transferred to the judiciary over time. At their origins, as there was no distinction between military and civilian societies and no separation of powers in government, aristocrats managed the entire summary justice system, in time of peace as in time of war. The emergence of the military society in the seventeenth to nineteenth centuries brought a clearer delineation between military and civilian justice. Yet they were similar in many aspects. They both needed – and still need – an alternative to full trial by jury in dealing with minor offences. Decision-makers in both were appointed more because they belonged to the upper classes than because of their legal knowledge. Both systems were relatively at par in terms of procedural safeguards. However, after the Second World War, measures to protect human rights progressively transferred the administration of civilian summary justice under judicial power. That has not occurred in Canadian military justice yet, although, since the adoption of the Charter, several measures have been taken to reduce the gap. The hesitation of military authorities could be explained by a greater concern for prompt disposition, portability, and flexibility due to unique needs in maintaining the discipline, efficiency, and morale of the troops. It could also be explained by reluctance from agents of the executive branch to allow judicial control over military justice.

T h e C u r r e n t Sys tem For those unacquainted with the summary trial system, I will now describe each step of the process in detail. To ease comprehension, I refer readers to the Summary Trial Process flowchart (Appendix A), which gives an overview of the whole process. Investigation As soon as practical after a complaint is made or there are reasons to believe that a service offence may have been committed, an investigation is conducted.101 Most offences dealt with by summary proceedings are investigated within the units where they have allegedly occurred. In general, allegations pertain to minor disciplinary breaches, and circumstances are straightforward and involve few witnesses. After being appointed to a particular case, investigators “collect all

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reasonably available evidence”102 such as documents and potential witnesses, including interviewing any suspect in exceptional circumstances.103 Under a commanding officer’s authority, they can also conduct searches, although this is a rarity in practice.104 The investigation is supposed to cover not only facts that prove the commission of the offence but also those that disprove it.105 Persons appointed to conduct ‘unit investigations’ are usually not military police officers. In fact, regulations do not require any particular qualification or rank. Having said that, it is common practice in the Canadian Armed Forces to appoint senior non-­commissioned officers (n c os)106 as maintenance of discipline is part of their normal responsibilities, irrespective of their professional military trade. Although not legally required to complete a particular investigator course, senior n c o s have received training on the conduct of unit investigations within their professional development training through their career progression. In addition, they are usually required by their chain-of-command to take the Presiding Officer Certification Training (poc t) course. Unit investigators ultimately produce a report that would be sent to the person appointed to lay charges, also known as the chargelayer. Military Police (M P s) and the Canadian Forces National Investigation Service (c f n i s ) can also generate reports that can be the basis of a charge that would be dealt with at summary level. But as those investigative bodies are normally dedicated to relatively more serious, sensitive, and complex cases, which would normally go to court martial, such situations seldom occur.107 That being said, irrespective of the type of investigation, the report should cover the same essential elements.108 Arrest and Pre-Trial Custody In some instances, there is a need to put suspected service members under arrest to detain them. Under conditions, military law gives authority to service members to arrest persons with or without a warrant.109 Usually those tasks are performed by the M P s unless those resources are not readily available. As a default rule, the person arrested is released unless the conditions to retain them in custody are met.110 If they are retained, military law provides for automatic reviews by an officer – known as the Custody Review Officer (c ro ) – first within forty-eight hours after arrest and again

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A Description of the Summary Trial 45

if no charge is laid within seventy-two hours after the person in custody was arrested.111 The c ro can release the person from custody, with or without conditions.112 The person who has been released from custody or counsel for the Canadian Forces may apply to a military judge to review the direction to release.113 If not released, the individual will be brought before a military judge as soon as practicable to determine if the person is to be retained in custody.114 The hearing is analogous to a bail hearing in civilian criminal justice.115 All judicial decisions to either release without conditions, release with conditions, or retain in custody are reviewable by the Court Martial Appeal Court.116 In the vast majority of cases, service members dealt with by summary proceedings have been neither arrested nor detained prior to trial. When detention occurs, the most typical scenario is that individuals are arrested and detained for a sufficient period of time to sober up and later charged with drunkenness and tried in a summary trial.117 In the rare cases where a cro and a military judge have decided that individuals will be detained prior to trial, circumstances or offences are generally too serious for the case to be dealt with by summary trial. Therefore, that phase of the proceedings will not constitute the primary focus of the present research. Nevertheless, an interesting comparison could be made between the power to put under arrest, the pre-trial custody review by the cro, and the summary trial before presiding officers. Those processes – where agents of the executive branch play a central role – expose individuals to potential deprivation of liberty by State action. Laying of the Charges Investigation reports are sent to service members who have authority to lay charges under the Code of Service Discipline. Although commanding officers have that authority already,118 they do not in practice lay charges, as that would preclude them from presiding over the summary trial.119 Various factors are considered in choosing persons having authority to lay charges. It is common practice to select a few individuals within each unit, usually senior ncos.120 Often the charge-layer is the unit investigator. After reviewing the investigation report, charge-layers may lay charges if they have an actual belief that the accused has committed the alleged offences. But that belief must be reasonable.121 Except in

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some circumstances, charge-layers are required by regulation to obtain legal advice – known as the ‘pre-charge legal advice’ – before making that determination.122 As a matter of policy, each caf unit usually imposes that requirement in every case. Charges are set down on Part I of a document called the Record of Disciplinary Proceedings or r dp.123 An example is provided in Appendix B. In drafting charges, a certain level of discretion is left to chargelayers, providing the charges meet basic elements and, at minimum, contain “sufficient details to enable the accused to be reasonably informed of the offence alleged.”124 Chapter 103 of the qr&o provides specimen charges for each offence. Alternative charges can also be laid, for example “where an essential element of an offence is in doubt but the remaining elements constitute conduct to the prejudice of good order and discipline.”125 Once Part I of the rdp is completed and signed by the charge-layer, the charge is laid.126 This is the starting point of the disciplinary proceedings, in particular in computing post-charge delay when determining whether the right to be tried within a reasonable time has been complied with.127 Besides, military law imposes a requirement to deal with a charge laid “as expeditiously as the circumstances permit.”128 A recent amendment imposes that charges have to be laid within six months after the commission of the service offences to be dealt with by summary trial.129 The one-year (to commence trial) and six-month limitation periods can be waived by the accused person, provided he or she has the opportunity to consult with a lawyer.130 Appointment of an Assisting Officer and Pre-Trial Determinations Once a charge is laid, a copy of the signed r d p is served on the accused. The language of the proceedings is confirmed.131 An officer is then appointed to assist the accused.132 The name and rank of the assisting officer are added to Part 1 of the r d p. In exceptional circumstances it could be a senior n c o. No other qualification is required to act as an ‘assisting officer,’ although officers – like senior ncos – are required to complete a module on military law as part of their professional development. Sometimes, assisting officers have completed the Presiding Officer Certification Training (poct) course. The accused may request a particular individual, providing the exigencies of the service permit and the individual agrees.133 In

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practice, when the r d p is served to accused persons, units confirm if they have already identified someone. The assisting officer will assist the accused in: (1) making a choice as to the mode of trial; (2) preparing the case before hearing; and (3) acting on the accused’s behalf at the hearing.134 Although assisting officers are not lawyers, their communications with accused persons are considered as a matter of policy like communications between a lawyer and their client.135 The charge is referred to an officer with jurisdiction over the accused.136 For non-commissioned members below the rank of warrant officers and officer cadets, commanding officers have jurisdiction.137 That authority is often delegated to other officers within the unit.138 The delegated officers – not lower in rank than captains – have a more limited jurisdiction in terms of the rank of the accused, the nature of the offences they can deal with, and the punishments they can impose.139 For non-commissioned members of the rank of warrant officer and above and for officers from the rank of second lieutenant to lieutenant-colonel, superior commanders have jurisdiction. Offences allegedly committed by colonels and general officers cannot be dealt with by summary proceedings; they can be tried only by court martial. A classic scenario is when an officer of higher rank commits a negligent discharge of a weapon.140 The officer must then determine – or recommend in the case of a delegated officer – if the charge will be proceeded with or not.141 In doing what is called ‘post-charge review,’ those officers have a higher level of discretion than charge-layers in adopting alternative measures in lieu of disciplinary proceedings. For example, a commanding officer may determine that for a young soldier who has committed negligent discharge of a weapon on a firing range, an initial warning and extra training will suffice to restore discipline. In circumstances where alternative measures would not be appropriate, commanding officers / superior commanders and delegated officers would proceed with the charges. Any charges that are not proceeded with are indicated in Part 5 of the r dp. Before making that determination, officers are required to obtain further legal advice, known as the ‘post-charge legal advice.’142 In essence, this is a recommendation on whether there is a reasonable prospect of conviction and if it is in the public interest to proceed with the charges. Officers having jurisdiction can disagree with that recommendation, providing their written reasons to both the lawyer and their superiors within thirty days.143 In practice, this is a rarity.

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Where it is recommended that charges be pursued, the post-charge legal advice also provides guidance to the presiding officer on how the summary trial should be conducted in the particular circumstances of the case. If the recommendation is to not proceed with the charges, the advice provides reasons that can be used by commanding officers to justify their decision. As with the pre-charge legal advice, regulations do not require that advice be obtained in each case, although that is what each unit generally requires by instruction. One important aspect for the presiding officer to determine is if the trial can be conducted in the official language chosen by the accused. Although witnesses can testify in the official language of their choice with an interpreter,144 presiding officers must know the language themselves.145 Otherwise, presiding officers are expected to refer the charge to an officer who is sufficiently fluent.146 In the vast majority of cases, the choice made by the accused is accommodated. However, there have been a few instances where the language used in the rdp is not the language in which the summary trial is conducted. In 2014– 15 there were thirteen such cases.147 That number was reduced to three in 2016–17.148 Nothing was reported on that aspect in 2017–18. Jurisdiction and Election Summary trial can be held anywhere the caf are located. This is its greatest advantage. However, in terms of time, persons, and types of offences, its jurisdiction is limited. The majority of service offences listed in the National Defence Act can be dealt with by summary trial. As explained in chapter 1, summary trials also have jurisdiction over only a few offences under the Criminal Code and the Controlled Drugs and Substances Act (cdsa ).149 The list of offences that can be dealt with summarily is provided at qr&o article 108.07, reproduced in Appendix C. If needed, that list can be modified by regulations. For example, during a large-scale deployment, a recurrent problem of soldiers taking goods abandoned by civilians could occur. Currently, only a court martial has jurisdiction over looting offences.150 As it could be cumbersome to set up a court martial each time, it might be relevant in such circumstances to give summary trials jurisdiction over those offences. As for time, a summary trial must commence within a year after the commission of the alleged offences.151 In terms of jurisdiction over persons, summary trials are designed to deal only with service members.

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All other situations can only be tried by court martial. For example, should there be at least one offence of sexual assault, an offence committed more than a year ago, one committed by someone who has retired from the c a f, or one committed abroad by a d n d civilian employee, a dependent, an embedded war correspondent, or a contractor, the rdp would be directly sent to the referral authority to be then forwarded to the Canadian Military Prosecutions Service for potential court martial. Part 4 of the rdp will be filled in accordingly. Offences within summary jurisdiction give a right to elect to be tried by court martial unless they are considered ‘minor offences.’ A ‘minor offence’ is an offence contrary to one of five sections of the National Defence Act, namely section 85 (“Insubordinate Behaviour”), section 86 (“Quarrels and Disturbances”), section 90 (“Absence Without Leave”), section 97 (“Drunkenness”), and section 129 (“Conduct to the Prejudice of Good Order and Discipline”), but only where the offence relates to military training, maintenance of personal equipment, quarters or work space, or dress and deportment.152 In the military legal community, those ‘minor offences’ are colloquially known as ‘the baby five.’ In addition, the circumstances surrounding the commission of the offence must be sufficiently minor that the officer having jurisdiction concludes that if the accused were to be found guilty, a punishment of detention, reduction in rank, or a fine in excess of twenty-five percent of monthly basic pay would not be warranted.153 In practice, both units and their legal advisors try as much as possible to take advantage of the ‘baby five’ so that disciplinary matters are dealt with at the lowest appropriate level. For example, a common assault could turn into a quarrel and disturbance if it occurs between two service members. Another example is a drunk soldier opposing his arrest by military police. He would not likely be charged with obstructing a peace officer or resisting arrest, but only with drunkenness. Those ‘minor offences’ represent the vast majority of cases dealt with by summary trial and therefore do not give any right to elect to be tried by court martial. In 2017–18, 76 percent of summary trials were without any election.154 For those cases where there is an election, accused persons are provided with no less than twenty-four hours to determine which type of trial they choose.155 In practice, units give more time. During that period, the assisting officer is required by regulations to ensure that the accused is aware of the nature of the offence and of the main differences between a summary trial and a court martial.156 In order to make their choice, the accused person and the assisting officer are

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provided with copies of, or access to, information that is to be relied on as evidence at the summary trial or tends to show that the accused did not commit the offence charged.157 A blank form listing that information is provided to the accused person, attached with the r dp.158 A blank form and an example of that list of information are presented in Appendix D. In making their choice, the accused person is provided with a reasonable opportunity to consult with a legal counsel of the Defence Counsel Services, free of charge.159 At the end of the period, the accused informs the officer having summary trial jurisdiction of her or his choice and Part III of the r d p is completed accordingly. If summary trial is chosen, the hearing can begin forthwith. Hearing The hearing at summary trial level has the same two phases as any criminal trial: (1) the guilt determination phase, and (2) if needed, the sentencing phase. Overall, the procedure follows the same basic steps. The important difference is that the main actors are non-lawyers, subject to very rare exceptions. Thus, proceedings are less focused on legal debate. In addition, the decision-maker plays a more active factgathering role than a judge. Before hearing any evidence, the presiding officer first takes an oath160 and causes the charges to be read.161 The presiding officer then (1) confirms that the accused was provided with the required information for the purpose of the election; (2) asks the accused if more time is needed to get prepared; and (3) asks if the accused wants to admit any particulars of the charges.162 There is no guilty plea at summary trial. At the most, the accused admits all particulars of the charges. It is for the presiding officer to go through the process and ultimately find the accused person guilty. During the guilt determination phase, the presiding officer first hears the evidence against the accused.163 Each witness is questioned by the presiding officer and then by the accused and/or the assisting officer. Subsequently, the presiding officer hears evidence on behalf of the accused.164 Here again each witness – including the accused if he or she testifies – is questioned first by the accused / assisting officer and then by the presiding officer. Then the accused / assisting officer can make representations concerning the evidence.165 The presiding officer then considers the evidence and determines if the offences are proven

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beyond reasonable doubt.166 The presiding officer pronounces the finding in respect of each charge.167 In about ninety percent of cases, the accused is found guilty.168 Part 6 of the rdp, under the sub-heading “Findings-Verdicts,” is completed accordingly. As per their training in military justice, presiding officers normally provide reasons in rendering their decisions.169 However, there is no requirement for those reasons to be written. If the accused is found guilty of any charge, the hearing enters the sentencing phase. Offenders may present evidence by testifying themselves or calling witnesses.170 The presiding officer may question each witness, including the offender when he or she testifies.171 After the evidence is heard on sentence, the offender and/or the assisting officer may make representations about it.172 The presiding officer considers various factors173 and passes sentence. Powers of punishment vary according to the presiding officer’s level of authority. Commanding officers have the broadest spectrum of options, including up to thirty days of detention.174 Delegated officers have less severe powers of punishment, consisting of a reprimand, a fine of no more than 25 percent of the offender’s basic monthly pay, or up to fourteen days of confinement to ship or barracks.175 Paradoxically, superior commanders having to deal with higher ranks have only three punishments available: severe reprimand, reprimand, and fine up to 60 percent of monthly basic pay.176 Tables describing punishment powers for each role are given in the q r & o (available online).177 The sentence – which may include more than one punishment – is indicated at the bottom of Part 6 of the r d p. In the majority of cases (56 percent), the punishment involves a fine, and in approximately 26 percent of cases it involves confinement to ship or barracks.178 Here again, presiding officers are expected to provide reasons in imposing sentence, although not in writing. Before ending the hearing, the presiding officer must inform the offender that he or she has the right to request a review to challenge the finding, the sentence, or both.179 Review There are two types of review of summary trials. As stated above, the first one is on request made by the offender.180 The second is generally initiated on the chain of command’s own motion.181 While the former is a more formalized and detailed process, the latter is more flexible.

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Under article 108.45 of the q r & o , the offender may request a review authority to a) set aside the finding of guilty on the ground that it is unjust, and/or b) alter the sentence on the grounds that it is unjust or too severe.182 The offender has up to fourteen days after the summary trial to submit the request for review,183 a period that can be extended “in the interests of justice.”184 The ‘review authority’ depends on who was the presiding officer; generally speaking, it is the next superior officer to whom the presiding officer is responsible in matters of discipline.185 The request is made in writing – with a copy to the presiding officer who heard the matter – and enunciates why the finding and/or the sentence should be altered or quashed.186 The offender can be assisted by an assisting officer, akin to the one during the hearing phase but not necessarily the same individual.187 When the offender is detained, the punishment will be suspended until the review is decided.188 Otherwise punishments will continue to be carried out pending the completion of the review. The reception of the request for review is the starting point of a ‘procedural shuttle’ between the offender, the presiding officer, and the review authority. Upon receiving the copy of the request for review, the presiding officer has up to seven days to make comments to the review authority, with a copy to the offender.189 The latter has, in turn, seven days to make additional representations.190 Where the information is sufficient, the review authority determines the review within twenty-one days after receiving the request.191 If it is insufficient, the review authority will seek additional information and notify the offender accordingly.192 The latter then has another period of seven days to make representation concerning the additional information.193 The review authority then has up to thirty-five days after the request to determine the review.194 In any case, before making any decision, the review authority has to obtain legal advice from an advisor who was not previously involved in the matter.195 Once a decision is made, Part 7 of the r d p is completed accordingly, and the offender, the presiding officer, and the offender’s commanding officer are notified in writing.196 The commanding officer takes action to give effect to the decision.197 For example, if detention is confirmed, the offender is put back into custody.198 The other mechanism is a review under article 116.02 of the qr&o . It has no particular procedure and no time limitation. It can be initiated by the review authority directly, a role that can be played by

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more officers than in the other review process.199 While circumstances can vary for that review to be justified, it usually occurs when, on a monthly basis, the unit’s legal advisor reviews all rd p s of the past month and spots “errors on the face of the record and non-compliance with procedural requirements.”200 For example, if the rd p reveals that the accused had less than twenty-four hours to make his or her choice or that the trial commenced more than one year after the facts, the legal advisor would recommend to the review authority to quash the trial. However, the review would not identify a lack of procedural fairness in conducting the hearing, such as a failure to appropriately consider a valid legal defence or a mitigating factor. Both processes give review authorities several options. On findings, a review authority can quash201 or substitute202 any of them. Quashing can be partial203 or complete.204 In the latter case, the National Defence Act provides that “the person who had been found guilty may be tried as if no previous trial had been held.”205 Concerning punishments, review authorities may also substitute any of them.206 They can also mitigate, commute, or remit any punishment.207 Mitigation is assigning a lesser amount of the same punishment, while commutation is assigning a lesser punishment.208 Besides, although confinement to barracks or ship is, legally speaking, a ‘lesser’ punishment than a fine, it is a restriction on liberty. In addition, although reduction in rank is ‘lesser’ than detention, it has more of a lasting negative impact. Remission is dispensing the offender to be subjected to a portion or the totality of the punishment.209 Legally speaking, review authorities cannot put offenders in a ‘worse’ situation than they were before review. For example, no review authority can act on a charge for which the accused has been found not guilty.210 Punishment cannot be added or increased. From an offender’s perspective, the ‘worst’ that can result from a review is that the decision is upheld. As a matter of fact, reviews requested by offenders seem beneficial almost in half of the cases. In 23 percent of the cases, the findings are quashed.211 However, requests for review represent a relatively low proportion of all summary trials held in a year. In 2017–18 approximately 4.5 percent of all summary trials were reviewed following a request under qr&o article 108.45.212 For some, this number illustrates that offenders are pleased with presiding officers’ initial decisions. It could also be explained by a reluctance to be perceived as a troublemaker within the unit, even if the outcome is beneficial, legally speaking. The risk of having the

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sentence potentially commuted from a fine to confinement or from detention to reduction in rank might also be a source of discouragement in some circumstances. If someone still disagrees with the outcome, it can be further judicially reviewed by either the Federal Court or the Superior Court of the province where the summary trial occurred.213 However, this is an extreme rarity, as service members generally are neither aware of this option nor have the resources to efficiently seek the intervention of the courts. This is, overall, how the summary trial system in Canada currently works. It is basically a miniature criminal trial but without the formalism, as lawyers are absent from the process, except when providing advice to the main actors. Although designed for a military context, it still has some resemblance to the former civilian system of summary justice (justices of the peace) with which it shares an origin. The Spring 2018 Auditor General Report Recently, the Auditor General reviewed the summary trial system in the course of his review of the administration of military justice.214 Based on a sample representing about twenty percent of all the cases, the Auditor General “found delays that could erode confidence in the military leadership’s ability to enforce discipline.”215 More specifically, the charge-laying process takes too long, in particular where investigations are conducted by units.216 For the few cases in the sample investigated by the military police, some took more than the usual thirty-day delay, with no written justifications. In some cases, albeit rare ones, it took many months to complete the investigation.217 Even if on the average, summary proceedings are complete in three months from the time offences have been committed, 18 percent of the cases still took more than six months.218 The Auditor General noted the absence of time standards, the lack of coordination in communication between legal advisors, units, and military police, and flaws in reporting the statistics to the ojag .219 Finally, the Auditor General of Canada made the following finding: “We found that the Office of the Judge Advocate General did not review or study the summary trial processes in the last 10 years.”220 In all fairness to the ojag , in the past four to five years, study of the system was conducted internally in preparation for Bills C-71 and

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C-77. But before this – and in fact since 1998 – the summary trial system was indeed neither studied nor reviewed. It is difficult to pin­ point exactly why. We could reasonably infer that it may have be motivated by a lack of desire to find out through such a study or review that the system breaches the Charter.

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3 Charter Breaches

“Can we get rid of the Charter?” “The Charter is for civilians, isn’t it?” A mentor of mine said that in the early period following the 1998 reform of the n da , he once heard these types of questions from candidates attending presiding officer training. To illustrate how absurd those statements were, he quipped that there were three ways to “get rid of the Charter”: constitutional amendment based on the 7/50 formula, social movement all across Canada, or a military coup. He added with a grin: “The last option is a difficult one. If you do not succeed, you’re going to need the Charter.” Here, I will identify and analyze possible Charter challenges to the summary trial system. There are four main potential breaches. First, the right to a fair trial is not met, as adjudicators do not appear to be sufficiently impartial and independent. With regard to procedural fairness, the challenge is double: the absence of a transcript of the proceedings makes any review process meaningless, a situation aggravated by the relatively limited legal assistance accused persons have access to during the proceedings. In terms of equality before the law, the difference in treatment between senior and junior ranks when facing summary proceedings seems unjustifiable. Other challenges to procedural aspects will also be discussed. Some might say: “Why bother? Since the late 1990s the system has remained virtually unchallenged. So if it ain’t broke, don’t fix it, right?” With respect, this view is based on a false sense of security. In my opinion, the system is still at risk of being successfully challenged in a judicial review, particularly in light of legal developments with regard to judicial independence in Canada over the past twenty years.

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So far, the system has been ‘lucky.’ For a constitutional challenge to occur and have a reasonable chance of success, it needs a ‘perfect storm’: a willing client, a lawyer with the necessary expertise, the ‘right’ set of circumstances, and an open-minded judge. Now individual service members who have been tried by summary trial generally do not want to spend time and money and be perceived as troublemakers in challenging the system, without an excellent reason, such as having been reduced in rank, due to the long-lasting financial impact thereof. In addition, only a handful of lawyers in Canada have the appropriate expertise to understand the system and explain it cogently to a civilian judge. That is why, in my view, the system has remained virtually unchallenged since the late 1990s: not necessarily because it is on firm legal ground but because the conditions for a challenge to occur are rare. There are four exceptions, the first being Legassick,1 where a captain raised a constitutional challenge before the Quebec Superior Court against his summary trial conviction decided under the pre-1998 regime. Although acknowledging that the applicant mainly raised constitutional issues, the Superior Court declined to hear the matter, considering it lacked territorial competence.2 In Private Nicholas Detre v Attorney General of Canada,3 a selfrepresented service member was convicted and sentenced to a $250 fine and three days of confinement to barracks during a summary trial presided over by a delegated officer. After an unsuccessful review by a lieutenant-colonel, the applicant sought the intervention of the Federal Court through a judicial review. Initially arguing the lack of jurisdiction of the delegated officer, the applicant raised constitutional questions later in his submission. As the chain-of-command decided to review the file and quash the decision on its own motion prior to hearing, the prothonotary of the court granted the A G Canada’s motion to strike, considering the matter moot. Recently, in a court martial, a service member challenged the validity of prior convictions at summary trial. He argued that as a summary trial breaches the right to a fair trial, those convictions should be given no weight.4 The Court refused to rule on what could be perceived as an indirect attack on the constitutionality of summary trials.5 Finally, the Federal Court dealt recently with a claim “that the Canadian Forces’ summary trial procedure is constitutionally invalid insofar as it violates a member’s rights under section 7, paragraph 11(d), and section 12 of the Charter.”6 In that case, a petty

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officer 2nd class was found guilty of absence without leave and was fined $1,000, not in excess of 25 percent of his monthly pay. On review, he challenged the presiding officer’s decision on various grounds, notably that the presiding officer should not have taken jurisdiction because there were “reasonable grounds to believe that the accused person is unfit to stand trial or was suffering from a mental disorder at the time of the commission of the alleged offence.”7 In his response to the review authority, the presiding officer explained that, on the contrary, the individual was fit, based on his level of preparation, participation, and awareness during the trial.8 The review authority agreed with the presiding officer’s determinations. On judicial review before the Federal Court, the individual raised constitutional arguments. Surprisingly, he sought a declaration of constitutional invalidity through section 24(1) of the Charter, which provides remedies against unconstitutional government action. A more logical and suitable approach would have been to go through section 52 of the Constitutional Act, 1982, which provides that a law that is inconsistent with the Constitution is, to the extent of the inconsistency, of no force or effect. Furthermore, the applicant did not serve a Notice of Constitutional Question to the Attorney General of Canada nor to the provincial attorneys general. In the decision, the Court took an administrative law rather than a criminal or penal law approach to dismiss the claims. Applying the standard of review of reasonableness to the review authority’s decision,9 the judge discarded the criminal law paradigm, as the $1,000 fine did “not engage his right to life, liberty, or security of the person [section 7] and it certainly does not meet the high threshold for cruel and unusual punishment [section 12].”10 Neither did it engage his right to a fair trial, section 11(d), as it did “not appear by its magnitude to be for the purpose of redressing a wrong done to society at large but, rather, was intended to enforce internal discipline within the Canadian Forces.”11 At one point, Justice Boswell made this damning remark: In this case, the Applicant has established neither the necessary adjudicative nor legislative facts to ground a challenge to the constitutionality of the summary trial regime. The Applicant’s arguments as to the alleged lack of independence or Chartercompliance of the summary trial process are vague and unsupported by case law, and some are demonstrably inaccurate

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such as the Applicant not being subject to the possibility of imprisonment, a substantial fine, or other harsh punishment by virtue of article 108.17(1) of the qr&o . None of the Applicant’s evidence (to the extent there is any at all) can reach the threshold established in Danson [Danson v. Ontario (Attorney General), [1990] 2 sc r 1086, [1990] sc j No 92] for a proper factual foundation to support a constitutional challenge.12 With respect, this is an unconventional decision that still leaves the debate open. In all fairness to Justice Boswell, confronted with constitutional claims presented in such fashion and uneasy with military law, the safest approach was for him to be deferential to dn d’s position. In my view, the following three chapters demonstrate how the constitutionality of the summary trial system in the Canadian Armed Forces should be analyzed for a well-grounded decision to be made.

P r e l im in a ry C o nsi derati ons Charter Applicability Because of the specialized nature of the military service, some might perceive that the Charter generally does not apply to it, or at least not to the same extent as it does to civilian law. Some might suggest that the legal rights enshrined in the Charter are not relevant, as the proceedings under discussion are ‘summary’ and ‘disciplinary’ in nature. Some might even suggest that by voluntarily joining the Canadian Armed Forces, individuals have consensually agreed to put themselves outside the realm of the Charter. To dispel any doubt, it is worth explaining here why the Charter applies. In short, the Charter is applicable to summary trials, as service members are potentially exposed to deprivation of liberty. The simple fact that an individual has voluntarily joined the Canadian Armed Forces does not equate to a valid waiver of his or her legal rights guaranteed by the Charter. Years ago, the analysis grid to determine if a given regulatory scheme is a penal or criminal system triggering Charter legal rights was established in R v Wigglesworth.13 For the majority, Wilson J determined that section 11 is engaged when a person faces prosecution involving “punitive sanctions” for having allegedly committed “criminal, quasi-criminal [or] regulatory offences,

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either federally or provincially enacted.”14 She refined the test by stating that proceedings could fall under section 11 either because they are “criminal in nature” or alternatively because they may lead to “true penal consequences.”15 Wigglesworth was discussed in Généreux by Chief Justice Lamer. For the majority, he concluded: Although the Code of Service Discipline is primarily concerned with maintaining discipline and integrity in the Canadian Armed Forces, it does not serve merely to regulate conduct that undermines such discipline and integrity. The Code serves a public function as well by punishing specific conduct which threatens public order and welfare. Many of the offences with which an accused may be charged under the Code of Service Discipline … relate to matters which are of a public nature … Service tribunals thus serve the purpose of the ordinary criminal courts, that is, punishing wrongful conduct, in circumstances where the offence is committed by a member of the military or other person subject to the Code of Service Discipline.16 Consequently, for Chief Justice Lamer, the proceedings of a General Court Martial triggered the protection of section 11 of the Charter. It logically flows that such a conclusion would also apply to summary trials. The two-tier approach in Wigglesworth was applied in Martineau v m.n.r .17 where the Court set further criteria for the first part of the test which determines whether a process is criminal in nature: (1) the objectives of the legislation; (2) the purpose of the sanction; and (3) the process leading to the imposition of the sanction.18 In 2015, the Court altered that test. In Guindon v Canada, a family lawyer was assessed penalties of $546,747 by the Minister of National Revenue for her involvement in a charity scam.19 She argued that section 11 was engaged as she was “charged with an offence,” the penalties being criminal in nature.20 Applying the WigglesworthMartineau approach,21 the majority of the Supreme Court made two changes to it. First, the Martineau criteria were moved from the ‘criminal in nature’ to the ‘true penal consequences’ part of the test. Moreover, other considerations were added in determining if a sanction, in particular one of a monetary nature, is a “true penal consequence”: (1) its magnitude; (2) to whom it is paid; (3) how it is determined (by

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regulatory considerations as opposed to principles of criminal sentencing); and (4) whether there is a stigma associated with the penalty.22 The Court added that the magnitude of the sanction – for example a large penalty – is not by itself determinative.23 Nevertheless, the Court confirmed that “imprisonment is always a true penal consequence” and that “a provision that includes the possibility of imprisonment will be criminal no matter the actual sanction imposed.”24 A few months later, in Goodwin v British Columbia (Superintendent of Motor Vehicles), the Supreme Court applied that approach in deciding that the British Columbia Automatic Roadside Prohibition (arp) scheme for impaired drivers did not attract section 11 protections as it is an administrative regime. The Court based its conclusion on the facts that the arp scheme involves neither proceedings of a prosecutorial type nor criminal records, and the sanctions (namely driving prohibitions and monetary penalties) are not “true penal consequences.”25 Recently, in the context of determining if retroactive amendments to the Criminal Code violated section 11(i) of the Charter – giving “the benefit of the lesser punishment” to a person when the punishment is altered after the commission of the offence but before sentencing – the Supreme Court reformulated in R v krj the ‘punishment test’ by adding, in the list of criteria, a measure that “has a significant impact on an offender’s liberty or security interests.”26 Even with the alterations of the test by Guindon, summary proceedings in Canadian military justice are criminal and engage the legal protections of the Charter. On the ‘criminal in nature’ part of the test, it seems what Watkin27 and Cormier28 concluded in 1990 and 2000 respectively is still valid if we analyze numerous aspects. First, the terminology and nomenclature in legislation refer to “terms which are classically associated with criminal proceedings.”29 In the National Defence Act, summary proceedings are qualified as “summary trial” and “service tribunal” (emphasis added).30 As we saw in chapter 2, those proceedings begin when a “charge is laid” in respect of a “service offence”31 against a person, who then becomes an “accused person.”32 Furthermore, summary jurisdiction depends on the “powers of punishment” considering the “gravity of the offence.”33 In the qr&o , although volume II is entitled “Disciplinary,” its table of contents’ nomenclature substantially resembles what would be seen in a system dealing with penal matters. Even if we exclude from our analysis chapters 109 to 112 and 115 as they apply to court martial proceedings,

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other chapters refer to notions such as “offences,” “arrest,” “pre-trial custody,” “investigation,” “detention,” “findings,” or “punishments.” In the table of contents of chapter 107 (“Preparation, Laying and Referral of Charges”) and chapter 108 (“Summary Proceedings”), although the adjective ‘disciplinary’ is used several times to qualify ‘proceedings,’ the nomenclature is mainly penal and closer to what we generally see in the Criminal Code or provincial penal legislation than to that which is used in provincial legislation regulating professional bodies. For example, there is a ‘trial’ at the beginning of which “the accused … shall be brought” before the presiding officer.34 The presiding officer will notably “hear the evidence against the accused.”35 Ultimately, “the accused may be found guilty on that charge.”36 Second, summary trials are by default accessible to the public;37 these are not ‘private’ proceedings.38 The presiding officer can only order the hearing to be held in camera “in the interests of justice and discipline, public safety, defence or public morals”39 or during portions “where classified information will be given in evidence.”40 Under conditions and with exceptions, any person may request copies of a record of disciplinary proceedings.41 Another aspect is that accused persons cannot be compelled to testify against themselves during summary trial.42 Accused persons can testify if they want to, but they have no obligation to do so. In the caf training document for presiding officers, it is explained “that accused persons have the right to remain silent” – with a reference to the non-compellable right under section 11(c) of the Charter – and that it would be improper to infer anything negative if an accused person does not testify.43 Furthermore, the type of misconduct dealt with by summary trials is not purely ‘disciplinary.’ As we saw in previously, the summary proceedings system has jurisdiction over certain Criminal Code and cdsa offences, although the list of offences is limited in comparison with a court martial.44 However, what Lamer CJ wrote in Généreux – to the effect that the Code of Service Discipline serves a public function – has been nuanced recently. In Moriarity, Cromwell J did “not consider the language used by Lamer C J as an authoritative pronouncement on the object of the provisions which are challenged here.”45 Nevertheless, he concluded that even in circumstances not related to military duties, any “criminal or fraudulent conduct” (emphasis added) committed by a service member may have an impact

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on military discipline.46 Such a large range of conduct goes beyond the specific rules designed to regulate a particular sector or profession. Finally, a person cannot be tried again for having committed a substantially similar offence if the person was found either guilty or not guilty by a service tribunal, including a summary trial.47 According to Watkin, this rule preventing double jeopardy could be an indication that service tribunals – including summary trials – have an equal status with ordinary criminal courts.48 Having said that, the rule preventing double jeopardy is relatively recent in military law. Prior to the enactment of the Charter, the traditional approach was for Canadian civilian courts to have primary jurisdiction over offences committed by service members in Canada.49 Although conflicts of jurisdiction were rare in practice, that rule was an illustration of the maintenance of civilian control over the forces. At that time, when a service member faced a civilian trial based on the same facts, the civilian court only had to consider the sentence imposed by the court martial. To comply with section 11(h) of the Charter, the National Defence Act was amended in the late 1980s. But oddly enough, the primacy of civilian jurisdiction has remained.50 Therefore, assuming that the legislature is consistent, unless civilian authorities oppose military jurisdiction or would take jurisdiction for themselves, a service offence can validly be tried before a court martial or a summary trial. Once a decision is rendered, the individual is protected against double jeopardy. Even if summary proceedings were to be characterized as ‘disciplinary or administrative’ and ‘not criminal in nature,’ they still trigger Charter legal rights protection. On the ‘true penal consequence’ part of the test, even when adding the Martineau criteria as the Supreme Court did in Guindon, summary trials are ‘criminal.’ At summary trial, each service offence can be punished by detention.51 As we saw in chapter 2, only commanding officers can impose up to thirty days detention. Although different from ‘imprisonment’ in some aspects,52 it is still strict deprivation of liberty.53 This is more stringent than simply prohibiting individuals from using their cars like in Goodwin. Some would argue nuances should be made. First, most of the time presiding officers having summary jurisdiction decide before trial to not impose detention in ‘minor circumstances.’ Second, most offences are dealt with by delegated officers who have no power to impose detention. These are indeed realities. However, in doing so, presiding

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officers consequently remove the accused’s right to elect court martial.54 When the accused has no election, presiding officers do not have to inform the accused that he or she can consult legal counsel.55 It seems rather unfair to exclude the application of Charter legal rights based on the exercise of discretionary power by a decision-maker who may be perceived as having an interest in the outcome of the proceedings. In addition, the accused is not in a position to oppose, as he or she is not legally aware at that stage. Furthermore, the decision to keep it ‘minor’ is no guarantee of nonexposure to custodial punishment. A summary trial even for a ‘minor offence’ could change quickly. If circumstances are more serious than anticipated, presiding officers must offer election, assuming no finding has occurred yet.56 For example, during the hearing for a “quarrel and disturbance” charge, the complainant could reveal he suffered injuries that were not apparent at the time of the investigation. In most serious cases – if allegations reveal offences outside summary jurisdiction – the presiding officer must refer the matter up to higher authority for an eventual court martial.57 For example, a drunkenness charge – where the initial allegations are that the accused made inappropriate comments while he was drunk – suddenly becomes much more serious if a witness testifies that the accused grabbed the breast of the complainant. In either situation, the accused is still exposed to incarceration. Even if regulations do not provide for delegated officers to impose detention, they can impose confinement to barracks/ship for up to fourteen days.58 Commanding officers can do so for up to twenty-one days.59 Although labelled as a ‘minor punishment,’60 it could arguably be considered a ‘true penal consequence’ as well. Not similar to ‘detention,’ confinement to barracks/ship is nevertheless a deprivation of liberty, as “the movements of a person given such a punishment are controlled and restricted as much as possible.”61 In light of krj , it is undoubtedly a measure that “has a significant impact on an offender’s liberty or security interests.”62 Arguably, it potentially gives rise to an application for habeas corpus.63 A high level of discretion is given to commanders to set the confinement’s conditions.64 These can be so stringent that in comparison with an ordinary criminal sentencing regime, it may be akin to a conditional sentence of imprisonment to be served in the community, commonly known as ‘house arrest.’65 An example of those conditions is given at Appendix E.66

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But stringent as it may be, confinement to barracks/ship does not give a right to election.67 Some might say that the conditions under which confinement to barracks/ship is served are similar to those during basic military training, in particular during the first four weeks, known as the ‘indoctrination period,’ where candidates have restricted free time.68 That is partially true. During basic military training, the confinement imposed by training staff: (1) is generally limited to base as opposed to quarters; (2) is part of everybody’s adaptation to military life, as opposed to a punishment linked to the commission of an offence by one individual; (3) will not show up on the conduct sheet; (4) can be stopped by putting in a voluntary release, while the punishment of confinement has to be served; and (5) is applicable to all candidates irrespective of their rank, while senior non-commissioned members and officers are not exposed to confinement to ship/barracks at summary trial. More uncertain is the punishment of reduction in rank, although it probably engages the Charter. In the military context, reduction in rank imposes serious financial impact and professional stigma.69 But those aspects are not determinative of its penal nature. Even though offenders reduced in rank have lost prestige within the service, “dignity and reputation are not self-standing rights. Neither is freedom from stigma.”70 Rather than being a condition shared with every other human being such as freedom, rank is a functional privilege conferred by a particular organization which is required for a specific purpose and which carries a certain level of responsibility and authority. Yet it is considered sufficiently serious in the caf to trigger the right to elect trial by a court martial.71 Consequently, in the current scheme, offenders who have been reduced in rank in a summary trial have also been exposed to detention prior to sentencing. Although reduction in rank is not a deprivation of liberty, its imposition by a commanding officer necessarily exposes offenders to such consequences and engages Charter legal rights. Concerning the punishment of a fine, its magnitude is not in itself determinative.72 Therefore, it cannot be argued that a fine of no more than 25 percent of the offender’s monthly basic pay is ‘non-punitive’ and anything above that up to 60 percent of the offender’s monthly basic pay is ‘punitive.’ That 25 percent threshold was developed prior to Guindon, Martineau, and Goodwin based in part on a 1992 Federal Court decision which held that, amongst other sanctions, up to

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ten days of forfeiture of pay under the Royal Canadian Mounted Police Act73 was not a penal consequence.74 If we look beyond magnitude, though, and apply the other Guindon criteria, fines are punitive in the military justice system. In contrast to the circumstances of Goodwin, where someone under a driving prohibition was also liable to a monetary penalty, a fine in military justice is a punishment that may be imposed on an offender. Those fines have to be paid to the Receiver General for Canada to go into the Consolidated Revenue Fund, indicating that they are intended to redress the harm done to the community as a whole.75 In default of payment of a fine, the summary trial decision can be entered and enforced before any civilian court, thus again showing its public nature.76 No other punishments that can be imposed at summary trials (severe reprimand, reprimand, extra work and drill, stoppage of leave, and caution) seem to meet the ‘true penal consequences’ threshold per se. Nevertheless the criterion is what potential punishment individuals have been exposed to, and not what punishment they actually received. Other aspects of the summary proceedings show that they impose true penal consequences. If we look at the regulations and training doctrine manual, punishments are not “determined by regulatory considerations” – as in Goodwin – but rather by the application of “principles of criminal sentencing.”77 Irrespective of the punishment, a conviction at the summary trial level is still considered an offence for the purpose of the cra , although that risk is to be reduced when, as we saw in chapter 2, an amendment in Bill C-15 would come into force. In Goodwin, no criminal records result. Besides, even if the service member is not convicted of a criminal offence, any summary trial conviction will result in an entry in their conduct sheet.78 Such an entry can be removed only when a record suspension (formerly a pardon) is granted under the cra – hence indicating the public nature of the punishment – unless the offender was assigned a ‘minor punishment’ or a fine of no more than $200.79 In such a case, the commanding officer can authorize the entry’s suppression from the offender’s file. Therefore it is most probable that a court, having to characterize the summary proceedings in a litigation over the Charter and applying Guindon, would conclude that they are ‘criminal in nature’ or at least that they expose the accused to ‘true penal consequences.’ On the other hand, a court more deferential to the government’s position might

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conclude otherwise, in particular if it perceives that the accused has in fact never been exposed to ‘true penal consequence.’ In doing so, that court might indicate or suggest it gives precedence to unique military context over individual rights. As we will see in the following part, that approach has been abandoned since Généreux in 1992. The recent case of Moriarity has not altered this state of affairs. Current Contextual Approach Keeping in mind that a particular context would never justify the negation of human rights, a Charter analysis of a piece of legislation regulating a specific group should not be made in abstracto; it has to take into account the context, from both the group’s and the broader society’s standpoints. That contextual approach, adopted by the Supreme Court of Canada,80 follows a three-step analysis: (1) determine the value protected by the right allegedly infringed; then (2) determine the objective of the legislation; and finally (3) if that objective cannot be met without infringing rights, determine if the legislation is a reasonable limit “demonstrably justified in a free and democratic society.”81 Of note, the contextual approach was applied to determine whether essential elements of judicial independence were met for justices of the peace,82 if processes pertaining to access to personal information83 or security certificate84 met “procedural fairness” requirements, or if pension legislation making a distinction based on the retirement age of the deceased for the purpose of supplementary death benefits to the beneficiaries violated the right to equality.85 In a potential debate pertaining to the constitutionality of summary proceedings in the Canadian Armed Forces, a court would almost invariably begin its analysis by giving some weight to the military context. But recent evolution of case law shows that, although since the Charter individual rights have been given precedence over that context, the opposite has not completely faded out and might still be present in the Canadian judiciary today. In military justice, the contextual approach was applied even before the adoption of the Charter. In MacKay a member of the Canadian Armed Forces notably argued that being subject to military jurisdiction infringed his right to a fair trial and to equality before the law under the Canadian Bill of Rights,86 as the military judge, being a service member, could not act fairly.87

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For the majority of the Court, Justice Ritchie wrote that rather than being an impediment to a fair trial, the fact that the military judge had been exposed to military law and military life for years made him a “more suitable candidate for president of a court martial than a barrister or a judge who has spent his working life in the practice of non-military law.”88 Later in his decision, he added “that a separate code of discipline administered within the services is an essential ingredient of service life” dealing with “a particular class of individuals.”89 Without making direct reference to a “contextual approach,” Justice Ritchie adopted it to ascertain the right to a fair trial in the military organization. Dissenting, Chief Justice Laskin (joined by Estey J) gave precedence to the protection of rights over any specific need, knowledge, or particular context depending on the type of offence. For Laskin, although such special skills may be justified in dealing with a “strictly service or discipline offence, relating to military activity,” these skills become irrelevant where individuals are facing ordinary criminal charges, which was precisely the case in MacKay.90 The influence of a contextual approach in Canadian military justice was the subject of a paradigm shift ten years after the adoption of the Charter in the landmark decision of Généreux. Similar to what was argued in MacKay, the service member objected to the jurisdiction of the General Court Martial, primarily because it was not an independent and impartial tribunal pursuant to section 11(d) of the Charter. But contrary to what occurred in Mackay, the Court in Généreux gave more importance to the enforcement of individual rights over deference to the particular military context. For the majority of five judges, Lamer CJ made first reference to the “flexible standard” in Valente v The Queen91 as stated by Le Dain J, who explained that section 11(d) cannot be construed as defining strict formal conditions, as the section is designed to be applicable to different tribunals in different contexts.92 Yet, after circumscribing the legitimate purpose of military justice,93 he shared the concerns of Laskin CJ and McIntyre J in MacKay as to what a reasonable observer would think when looking at the fact that military members serve on military tribunals.94 But for Lamer this deviation from absolute independence would not constitute in itself a breach of section 11(d), as the existence of the military justice system has strong historical roots, is justified by sound principles,95 and is even contemplated by section 11(f).96 According to Lamer, difference

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justified by context does not equate to a Charter breach as long as the structure does not violate the basic principles. Dissenting, L’Heureux-Dubé J believed the majority underestimated the particular context of a military tribunal. She qualified the contextual approach as being “a tenet of constitutional interpretation which is of paramount importance.”97 She concluded from previous comments made by other Supreme Court judges, in particular those from Wilson J in Edmonton Journal, that not only is the contextual approach relevant for the purpose of section 1 analysis but it “is also important at the initial stage of deciding whether or not a breach of a given right or freedom has occurred.”98 According to L’Heureux-Dubé, not only is the contextual approach helpful, “it is clearly required where military tribunals are at issue.”99 Quoting McIntyre J in MacKay100 as well as authors Fay101 and Heard102 on their conceptions of what the role of military law is, she stated two ‘fundamental propositions’ pertaining to the military justice system. First, the military organization depends “upon the strictest discipline in order to function effectively,” otherwise mission success is compromised.103 Second, as this discipline needs to be maintained by senior c a f members, breaches need to be dealt with internally to ensure “a sufficient degree of institutional knowledge on the part of those who judge.”104 For L’Heureux-Dubé J the military is a society of its own within the larger one and is composed of “traditions, rules and taboos which are not within the normal ken of outsiders.”105 With that in mind, she applied flexibility in assessing the three essential elements of independence as defined in Valente and concluded that none were breached in the context of the court martial system as it was then.106 It appears that the difference between majority and dissent in Généreux rests on the weight to be given to context rather than on its relevance. L’Heureux-Dubé J approaches Charter compliance in military justice with flexibility, as this body of law is designed for a unique society. Lamer CJ wants to ensure military tribunals are compliant with the basic principles of the Charter while taking into account the unique needs of military law in doing so. If we characterize their difference, we can say that both adopt a contextual approach. While L’Heureux-Dubé’s approach is more deferential to the military context, Lamer’s gives precedence to human rights. Has the recent Supreme Court decision in Moriarity changed the weight to be given to context? The short answer is no, as the Court

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applied a different analytical approach. As explained in chapter 1, the Court had to determine if provisions giving military justice jurisdiction over ordinary offences went too far to achieve their purpose. The Court had to determine first if the liberty interest – pursuant to section 7 of the Charter – was engaged. That did not create much of a debate, as the provisions involved the punishment of imprisonment.107 There was no discussion suggesting Charter legal rights had to be softened due to the military context. In the next step of the overbreadth analytical approach, the Court applied Canada (Attorney General) v Bedford108 and identified the legislative objective of the sections of the nda and their effects to determine any gap between the two.109 In that regard, not only the text but also the context of the legislation mattered.110 The Court reaffirmed the purpose of the military justice system – which is “assuring the discipline, efficiency and morale of the armed forces” – and wrote that the appellants defined the objective too restrictively, the Crown too broadly.111 Cromwell J concluded in particular that Parliament, except for a few offences, subjected members of the regular forces to the military justice system in all circumstances,112 even outside a military context.113 Consequently, the provisions were not overbroad. At the same time, the Court specified that, in proceeding with the overbreadth analysis under section 7 of the Charter, the legislative objective was assumed to be appropriate and lawful. Under other Charter provisions, however, it may be still relevant to examine whether the legislative objective is appropriate or not.114 Therefore, to conclude from the outcome in Moriarity that the Supreme Court now gives precedence to military context over individual legal rights would be wrong. In Moriarity, context matters only to capture the purpose and effects of a legislation in the parameters of the overbreadth analysis. Indeed, the legal protections of service members still seem to be of primary importance for the Supreme Court. In Moriarity, Cromwell J underlined that neither the scope of Parliament’s power over defence nor the extent to which military law is exempted from the right to jury trial were raised. He further stated that “nothing in my reasons should be taken as addressing any of those other matters.”115 Moreover, during oral submissions, Cromwell J inquired as to the potential impact on individuals of being exposed to military justice rather than civilian justice.

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Therefore the contextual approach as stated by the majority in Généreux still prevails. This seems to be the most appropriate approach, as it strikes the right balance between the need to enforce human rights and the particular context wherein those rights have to be embodied. In Canadian military justice, context should not be given too much weight, as to do so risks that particular “traditions, rules and taboos” might serve as a justification to not comply with the Charter. To draw a parallel with how the c a f deals with sexual misconduct, underlying organizational cultural norms can never justify opposing, disregarding, or downplaying human rights.116 Having already dealt with the military context, the drafters of the Charter created a particular regime as it relates to the right to trial by jury. They did not see the need to do the same for other legal rights. Therefore, those must be given maximum effect in the military justice system. As demonstrated by Cormier, there is no explicit or implicit renunciation by service members of their legal rights upon enrollment.117 Yet the particular context of the caf cannot be underestimated, or efforts to foster Charter rights might turn out to be inapplicable to military life. In short, military context must give way to law, but law must take military context into account. This approach should govern any legal debate about the constitutionality of the summary proceedings. Comparison with Other Disciplinary Regimes Readers will note that in this chapter, references are made to law pertaining to other disciplinary systems. The intent is to assist in grasping what is at stake here. The inmate disciplinary system and police disciplinary processes share with military justice an imperative for prompt disposition to restore discipline as soon as practicable, although for different reasons. Relevant connections can be made with legislation and case law applicable to those regimes. Keep in mind, though, that those regimes are not the main focus of this chapter. The few references will simply support the argument, by showing differences and contrasting features, that military justice at the summary trial level is penal or criminal law, triggering Charter legal protections. A more systematic discussion of these proceedings, in particular their sanctions, processes, and guarantees, will be given in chapter 4, in the context of a comparative approach.

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In d e p e n d e n c e o f A djudi cators Currently, the main potential challenge to Canadian summary proceedings is that adjudicators are not sufficiently independent to act fairly. Officers presiding over summary trials in particular are part of the very executive branch which has a real interest in the outcome of every case. To a lesser extent, this concern could also be raised in respect to other actors of the summary proceedings system acting in judicial or quasi-judicial capacities, such as commanding officers issuing arrest or search warrants, custody review officers of pre-trial custody, and reviewing authorities. If the caf disciplinary proceedings were analogous to a professional body’s disciplinary system, judicial independence would not apply in the same way. In administrative law, although it has its importance, judicial independence is a common law norm – a principle of natural justice – that a statute can expressly depart from.118 Yet, from a policy perspective, the independence of the decision-maker has its importance. The inmate disciplinary process in penitentiaries provides for an “independent chairperson” to conduct hearings for “serious disciplinary offences.”119 In the context of summary trials, it is different; the independence of the decision-maker is not a ‘nice to have’ from a policy perspective, but a sine qua non required by law. Again, to be clear, keep in mind that ‘disciplinary’ has a more penal (even criminal) sense in the caf, as individuals are exposed to strict deprivation of liberty. Exposure to such punishments clearly puts the summary trial system in a different legal framework in terms of judicial independence. Section 11(d) of the Charter reads as follows: 11. Any person charged with an offence has the right … (d) to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal;

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11. Tout inculpé a le droit: … d) d’être présumé innocent tant qu’il n’est pas déclaré coupable, conformément à la loi, par un tribunal indépendant et impartial à l’issue d’un procès public et équitable;

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Judicial independence is essential to judicial authority, which, in turn, has among its objectives to ensure “that governmental power is exercised in accordance with the law.”120 The Supreme Court enunciated the three essential attributes of judicial independence in the landmark decision of Valente. First, judges must have security of tenure. They must hold office “during good behaviour” and can only be removed for cause, after such cause has been independently reviewed. Judges normally hold their office until retirement, or alternatively for a fixed term or a specific mandate, provided their tenure “is secure, against interference by the Executive or other appointing authority in a discretionary or arbitrary manner.”121 The second essential attribute is the financial security judges must enjoy. In essence, their salary and pension have to be statutorily established so that it is difficult for the Executive to arbitrarily alter judges’ remuneration.122 In addition, their remuneration and benefits should be sufficient for them to not be subject to pressure from other groups. The third aspect is their institutional independence, which is the degree of freedom a court has in managing administrative matters relating to its judicial function, such as determining who the judge will be for a given case, and in which courtroom and in what order cases will be heard.123 The responsibility for making and paying for travel arrangements for judges should be added to the list. That aspect is particularly relevant in a military justice context, as trials can be held anywhere in the world where the forces are stationed or deployed. Independence is related to but distinct from impartiality. Independence is “a status or relationship to others – particularly to the executive branch of government – that rests on objective conditions or guarantees.”124 Impartiality “refers to a state of mind or attitude of the tribunal in relation to the issues and the parties in a particular case.”125 To be impartial is to be – and reasonably be perceived as – unbiased. While independence is “freedom from control by, or subordination to, the executive power in the State,” impartiality is “absence in the members of the tribunal of personal interest in the issues to be determined by it, or some form of prejudice.”126 Presiding Officers These are the weakest point of the current system. A constitutional ‘frontal attack’ would likely challenge this aspect and have the greatest

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chances to succeed. Presiding officers have the most impact on service members’ rights and liberties. They make determinations on the guilt of the accused persons and may impose, in certain circumstances, a sentence of up to thirty days of detention. In a military context, they play a similar role to judges of provincial courts having penal/criminal summary jurisdiction. Consequently, they would require a similar level of independence from the executive branch. c a f officers do not enjoy security of tenure as they are appointed during pleasure,127 being potentially exposed to release at any time on the Governor General’s approval.128 At the same time, they cannot ‘resign’ on their own motion, as they are bound to serve until they are lawfully released by higher authorities.129 Presiding officers are subject to performance review,130 and their promotion131 is ultimately decided upon by their superior officers. In the Regular force, they are subject to being posted without their consent.132 Consequently, they lack the necessary protections to decide cases without fear or expectation of having their careers negatively or positively affected. In comparison, military judges can resign at any time on notice,133 can only be removed by the Governor in Council for cause on the recommendation of the Military Judges Inquiry Committee,134 and do not have to care about their career if their decisions please or displease someone. Presiding officers do not enjoy financial security, as their pay is set by the regulations of the Treasury Board,135 as opposed to military judges’ pay, which can only be modified after an inquiry by a Military Judges Compensation Committee.136 Finally, presiding officers do not have institutional independence, as they are, by definition, agents of the executive. An officer is essentially “a person who holds Her Majesty’s commission in the Canadian Forces.”137 Not only are they insufficiently distant from the executive branch, they are actually part of the executive branch. Officers become ‘presiding officers’ only in the very specific context of the summary proceeding. Once the trial is done, they are not presiding officers anymore. Military judges are appointed until retirement and belong administratively to the Office of the Chief Military Judge138 – a distinct unit with its own administrative support managed by the Court Martial Administrator.139 In contrast, there is no specific unit grouping all presiding officers together; their administrative support generally comes from the very same unit to which they belong. From a well-informed

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and reasonable observer’s perspective, presiding officers cannot be perceived as independent. In terms of impartiality, there is a reasonable apprehension that presiding officers be perceived as having bias. Notably, commanding officers and delegated officers have a common responsibility for the maintenance of good order and discipline within their units. They might have known individuals facing them during summary trials – for example, as their superior in a working context or during military social activities. In addition, contrary to a judge who does not know much about the case before trial, presiding officers will have read the investigation report. All that is to say that presiding officers might have already formed an opinion about the accused person prior to trial. To be clear: from a leadership perspective, it is a virtue to know one’s subordinates. But when presiding over a summary trial, an officer must be seen to be impartial and to not have any preference for any position. On that point, training material stresses the importance for presiding officers to act in a disinterested and unbiased way.140 Several safeguards are in place to reduce the risk of presiding officers being biased. They have to take an oath at the beginning of a trial that they “will duly administer military justice according to law, without partiality, favour or affection.”141 When conducting the proceedings of a summary trial, they are protected against intervention by a superior authority.142 In addition, for anything done or omitted in the execution of their duties under the Code of Service Discipline, presiding officers are protected against legal actions, unless they acted “maliciously and without reasonable and probable cause.”143 Yet, in a tightly knit community such as a military unit, the risk for bias is higher in comparison with a judge presiding over a trial. This is particularly true in small units, where the organizational distance between the accused person and the presiding officer is minimal. In providing their legal advice, legal officers would likely remind presiding officers to remain vigilant in avoiding any (real or perceived) conflicts of interest. Nevertheless, as presiding officers are not professional adjudicators, they might lack the necessary tools to maintain sufficient awareness of potential bias. That could lead to improper situations, such as what occurred in R v Jenner where a captain “presided over at the summary trial of a subordinate with whom he was engaged in a sexual relationship at the time of the offence.”144

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Proponents of the status quo might raise a twofold argument to conclude that there is no breach of judicial independence: first, presiding officers do not have to be as independent as judges, and second, measures have been taken to increase their independence. On the first matter, they might argue that presiding officers are not much different from provincial justices of the peace – like those in Ontario dealing with provincial offences145 – who do not have all the aspects of judicial independence, are not necessarily jurists, and can impose short-term imprisonment, sometimes up to six months.146 They might rely on R v Zelinski where the Superior Court of Ontario was not convinced that “a trial before a non-lawyer J P is inherently unfair simply because a trial before a lawyer J P might be better.”147 They might further argue that in Ell v Alberta the Supreme Court actually only ruled over a policy choice made by Alberta. In other words, it has not set a constitutional standard for all provincial legal schemes pertaining to justices of the peace and by analogy to c a f summary proceedings’ authorities. They might add that conceptions change over the years about what judicial independence minimally entails, and “opinions differ on what is necessary or desirable, or feasible”148 – that it depends on “the nature of the court or tribunal and the interests at stake,”149 suggesting that judicial independence similar to that of provincial judges is desirable but not constitutionally required in the military context. On the second issue, they might argue that rules have been developed over time to protect the role of presiding officers against interventions by superior authorities in the proceedings,150 against their own bias,151 and against legal actions and proceedings for what they do or omit in the execution, provided they acted in good faith.152 On balance, the arguments raised by proponents of the status quo seem flawed. First, from an individual service member’s point of view, presiding officers have an analogous impact (in terms of exposure to true penal consequences and criminal conviction) to a provincial judge having summary jurisdiction, except that the maximal period of incarceration is only thirty days as opposed to six months for a provincial judge. Of course, that exposure to potential maximum punishment does not occur in every case. But the non-exposure comes at the price of removing the option from the accused to elect court martial, not to mention that some ‘minor’ punishments may arguably be considered penal consequences anyway. Even if we were to characterize presiding officers as being conceptually closer to justices

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of the peace in Ontario, this does not assist the proponents of the status quo, as, in that system, the accused is represented by counsel, trials are fully recorded, and there is an appeal before a judge. On the second issue, the rules in place to protect presiding officers’ role in conducting summary trials are simply insufficient to counteract the systemic problems that have been previously identified; they do not intrinsically change the very essence of presiding officers, who remain part of the chain of command of the organization, which has a real interest in the outcome of the cases. As an example, the Chief of the Defence Staff issued the operational order Operation Honour in reaction to the Deschamps Report on sexual misconduct in the c a f.153 All presiding officers are subject to this order, which would influence presiding officers in dealing with offences related to sexual misconduct. A well-informed and reasonable observer, comparing a presiding officer with a judge, would determine that the former does not enjoy sufficient freedom of action to decide a case either way. There is a reasonable perception that presiding officers might be concerned by the impact of their decisions on their own careers, despite the oath they take at the beginning of the trial and irrespective of whether they are in fact influenced or not. Therefore, a court looking at the statutory and regulatory scheme applicable to presiding officers would likely conclude that they fail to meet all of the standards identified in Valente, in breach of section 11(d) of the Charter. Other Judicial or Quasi-Judicial Functions As we saw, judicial independence applies primarily to presiding officers, as they decide on the merits of each case. It is also relevant to other roles in the process, however, depending on the individual interest at stake. In Ell, the Supreme Court decided that judicial independence applies to justices of the peace, as they “serve on the front line of the criminal justice process, and performed numerous judicial functions that significantly affected the rights and liberties of individuals.”154 In Canadian military penal law, in addition to presiding officers, such functions are performed by commanding officers when they issue arrest and search warrants, by custody review officers, and by reviewing authorities. Proponents of the status quo might object that these functions constitutionally require a lower level of protection, as presiding officers

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do not, as civilian justices of the peace do in issuing search warrants, decide on the merits of the case. Such a contention was discarded in Provincial Court Judges’ Assn. of New Brunswick v. New Brunswick (Minister of Justice); Ontario Judges’ Assn. v. Ontario (Management Board); Bodner v. Alberta; Conférence des juges du Québec v. Quebec (Attorney General); Minc v. Quebec (Attorney General), where the Supreme Court, referring to Ell, stated that “Justices of the Peace in Alberta exercise an important judicial role.  Their function has expanded over the years and requires constitutional protection.”155 That view was confirmed by the Quebec Court of Appeal in R v Pomerleau, where searches authorized by non–judicially independent and non–legally trained justices of the peace were declared illegal.156 When commanding officers issue search warrants,157 they act judicially and, consequently, have to be independent. In the 1984 decision Hunter v Southam Inc., the Supreme Court established as one of the constitutional standards for search warrants that the person issuing the warrant assess the situation “in an entirely neutral and impartial manner.”158 At that time, the Court ruled that the individual does not necessarily have to be a judge but must at least be “capable of acting judicially.”159 Like justices of the peace in Ell, commanding officers acting in such a capacity “impact upon the right to be secure from unreasonable search and seizure under s 8 of the Charter.”160 They play an important role in military justice in being “the very person who stands between the individual and the arbitrary exercise of power by the state or its officials.”161 Furthermore, in comparison with justices of the peace, commanding officers have a more delicate balance to maintain in that regard. The meaning of ‘private premises’ in a military context can often be narrowly construed by military authorities. Some might perceive that individuals voluntarily entering military establishments have somewhat relinquished their reasonable expectation of privacy. Yet service members’ privacy does not disappear. In comparison with the average citizen, their respective ‘private premise’ is relatively smaller, making it even more important for them, particularly those who live on base or are on operational deployments either on land or at sea.162 Professor Stuart explained that, in Hunter, the fact that the body issuing the search warrant also had an investigative role “vitiated its ability to act in a judicial capacity and did not accord with the neutrality and detachment necessary to balance the interests involved.”163 The same can be said about commanding officers in military law; from

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a strict regulatory standpoint, they can conduct the investigation and issue search warrants. In practice, however, those officers usually refrain from investigating and issuing search warrants, as they do not want to preclude themselves from hearing the case later, should it come to that point.164 Yet even though they do not conduct investigations, the potential for lack of structural distance from the interests at stake makes the issuance of search warrants problematic. For example, in the context of justices of the peace, the Saskatchewan Court of Appeal in R v Baylis determined that there was a reasonable apprehension of bias as there was a real danger that the decision-maker – who was also a law enforcement agent – would act with partiality.165 Commanding officers are by definition agents of the executive branch of the State. A reasonably informed person would conclude that even with the best intentions, irrespective of their training and even if they consult a legal advisor, commanding officers can hardly detach themselves from their official duties to act solely as an objective broker between the interests of the State and those of the individual in determining whether a search warrant should be issued or not. Applying that standard, a court would likely be of the opinion that commanding officers cannot act judicially or quasi-judicially at that stage and that any search warrant issued under those conditions would be ‘unreasonable’ generally speaking and evidence so gathered must be excluded under section 24(2) of the Charter. However, a court would likely give more leeway in situations where the caf are located in settings where ordinary judicial resources are not readily available or simply without jurisdiction, such as during deployments overseas. Interestingly, it is telling that a similar line has been drawn in military justice training doctrine so that in Canada “investigators will normally seek the search warrant from a civilian judicial authority,” and will use military search warrants “outside Canada while deployed at sea or on operations.”166 Similarly, commanding officers and delegated officers issuing arrest warrants act judicially and consequently require some degree of independence.167 Although, as explained in chapter 2, it is uncommon in a summary proceedings context, an arrest has consequences for an individual’s liberty and security. It involves some form of coercion by a State agent of an individual in carrying out the arrest, including the use of force where reasonably necessary.168 In some circumstances, it may result in the person being retained in custody, although individuals

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arrested will normally be released as soon as practicable.169 Service members can be put under arrest when they have committed, are charged with having committed, or are believed “on reasonable grounds” to have committed a service offence.170 In addition, officers cannot issue an arrest warrant for any officer of higher rank than theirs, unless “the exigencies of the service so require.”171 Before issuing arrest warrants, commanding officers and delegated officers have to balance the competing interests of the State and individuals, which requires them to act judicially and therefore with a certain degree of independence. In R v Levi-Gould, the military judge, Cdr Pelletier, ruled that, although commanding officers and delegated officers do not require the same judicial independence as judges or justices of the peace as in Ell, they nevertheless require “the capacity to act as a truly neutral and detached arbiter.”172 Custody review officers (cros) also need to be independent to some extent. cro s determine, although rarely in a summary trial context, if individuals will be released (with or without conditions) before trial or if they will be detained until a military judge can conduct a review as soon as practicable after the c ro’s decision. Individuals’ liberty interests are engaged. A reading of the legislation strongly suggests cro s have to act judicially.173 This is indeed the conclusion Cdr Martin Pelletier, military judge, came to in R v Caicedo.174 Interestingly, he qualified those judicial functions as being “limited” in the military context in comparison to those of justices of the peace – who can preside over bail hearings.175 Pelletier determined that there was a “fundamental difference between the roles of” the two institutions, as the “fundamental role of justices of the peace is to assist courts in performing judicial duties” and “notably as it pertains to preservation of the constitutional order and the requirement to uphold the public’s confidence in the administration of justice.”176 In Cdr Pelletier’s eyes, cros and authorities reviewing their decisions are different as they are under the nda , “not in direct support of the courts or the judiciary,” and their roles stand on their own.177 For him, military officers exercising judicial roles that may involve deprivation of liberty – such as summary trial presiding officers – were recognized by the Supreme Court in MacKay.178 At first glance, Cdr Pelletier’s differentiation based on the specific military context is rather artificial. He might have been concerned that concluding cros need judicial independence would logically lead him

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to conclude that they require its three core characteristics: security of tenure, financial security, and administrative independence. However, the conclusion he made in Levi-Gould on the requirement for officers “to act as a truly neutral and detached arbiter” should have been the same in Caicedo. Acting judicially and judicial independence, or at least being a “truly neutral and detached arbiter,” are two sides of the same coin. From a reasonable observer’s standpoint, an individual can be released pending trial, under very stringent conditions, by the cro. If they are not released, it can take several days before a military judge can conduct a review hearing. Even though c ros do not exercise identical functions to those of judges or justices of the peace, as in Ell or Pomerleau, they can “impact upon the right to security of the person under section 7 of the Charter and the right not to be denied reasonable bail without just cause under section 11(e).”179 If we look at the grounds cros may consider prior to making their decision,180 we see they are analogous to those a justice of the peace may take into account.181 They are both points of entry of their respective systems in controlling whether police officers were right in detaining individuals. To this extent, c ro s and justices of the peace have a similar function, which is to “stand between the individual and the arbitrary exercise of power by the state or its officials.”182 They both must act as a “truly neutral and detached arbiter.”183 In all fairness to Cdr Pelletier, his conclusion in Levi-Gould came after Caicedo, so his position might have evolved in the interval between the two decisions. The fact that cros’ decisions are reviewable either by the chain of command or by a military judge184 is relevant under a section 1 Charter analysis. This is where military context should be more appropriately considered in assessing what the reasonable alternatives to the c ro scheme are. Even in concluding that a c ro breaches judicial independence, a court might be more tolerant as to the attributes of such independence, considering that the caf are often deployed in theatres of operations where the ordinary judicial system of Canada has no jurisdiction or is not readily available. Indeed, when the c a f are abroad, the alternative would be to rely on the host nation’s judicial resources, which may be unknown to Canadians and are often of a substantially different legal tradition, if those resources are available. In light of Ell, Bodner, Pomerleau, and Levi-Gould, reviewing authorities also require some degree of independence as they act

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judicially. As we saw in chapter 2, although they do not conduct hearings, they can review summary trials either on the offenders’ request185 or on their own initiative.186 They may have to weigh the State’s and individuals’ competing interests in considering reviews. They make determinations that expose offenders to potential deprivation of liberty and security of the person, for example by confirming detention initially imposed at summary trial, hence terminating its suspension pending review and causing the offender to be taken into custody.187 Even when findings are wholly quashed by review authorities, individuals are still exposed to such deprivation, as “the person who had been found guilty may be tried as if no previous trial had been held.”188 A court would likely conclude that review authorities exercise a judicial role. Yet review authorities are still caf officers.189 From a judicial independence perspective, they are in a similar position to summary trial presiding officers, as they are an integral part of the military chain of command, except that they are usually of higher rank. A reasonable observer would conclude that reviewing authorities cannot act as an independent guardian between individuals and the State. On balance, the risk is high that a court would conclude that all actors having an adjudicative role at various points of the summary proceedings, and more particularly in presiding trials, act judicially, and that they either breach judicial independence or do not have the capacity to act as a “truly neutral and detached arbiter” as their functions are too close to the organization.

A b s e n c e o f T r anscri pt In penal matters, accurate transcripts which reflect the evidence heard, arguments presented, and rulings made are essential to ensuring a fair and transparent process and to ensuring a meaningful appeal or review. Of course, as put by the Supreme Court, not every gap in the transcript would justify a new trial. The Court would only intervene if there is “a serious possibility that there was an error in the missing portion of the transcript, or that the omission deprived the appellant of a ground of appeal.”190 Logically, in the absence of such a transcript, there cannot be any meaningful right of appeal.191 This is all the more relevant where accused persons do not enjoy all the procedural safeguards of an ordinary criminal trial before a judge.192

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In the military justice context, the fact that there is no transcript of the proceedings, including written reasons from the decision-maker, diminishes offenders’ ability to fully know the case they have to meet for review, impeding their right to make a full answer and defence and to a fair trial pursuant to sections 7 and 11(d) of the Charter. In other words, it “makes a review of a guilty verdict random and difficult.”193 Some might reply that in putting in a request for review, an offender would obtain from the presiding officer “his or her comments concerning the request to the review authority.”194 However, concerns could be raised about those comments. First, they do not constitute a verbatim account of what occurred during the summary trial. This difficulty is illustrate by the Court Martial Appeal Court case R v Wright. In a prior summary trial on a different charge, Capt Wright had submitted certain emails in evidence. The presiding officer at the summary trial found Capt Wright not guilty. These emails became an issue at a subsequent court martial where Capt Wright was charged with obstructing justice under s. 139(2) of the Criminal Code. During the trial in court martial, these emails were excluded by the military judge because their seizure was against Capt Wright’s expectation of privacy. He was ultimately found not guilty. Prosecution appealed, arguing there was no breach to section 8 of the Charter and that if there was the evidence should not have been excluded. To assess the prosecution’s claim, cm ac had to first look at what transpired during the summary trial, including the initial emails. However, in the absence of a written decision and a transcript of the proceedings, Justice Saunders stated for the majority of the Court that he was left with “abbreviated notes presumably prepared” by Col Irvine, the presiding officer.195 He further stated that from those notes “we get a good appreciation for his reasons in acquitting Capt Wright.”196 Yet, he made the following comment: At this point I want to elaborate on my deliberate reference to the ‘evidence’ before Col Irvine. I have intentionally put the word ‘evidence’ in quotation marks. Without a verbatim transcript of the proceeding, or even a list of ‘witnesses’ who appeared at the summary trial, it is impossible to say in fact, or with any confidence who appeared; whether any ‘evidence’ was actually proffered (and if so by whom); what exactly was declared by

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Col Irvine to be admissible; or whether any individuals actually gave evidence under oath.197 Another concern with presiding officers’ comments is that they are written after presiding officers know their decisions have been challenged, which “enables the person who handed down the guilty verdict to justify his decision.”198 By analogy with the situation of a police officer reporting what happened when his professional conduct is under scrutiny, there is a risk that the presiding officer’s notes, instead of being an “accurate, detailed, and comprehensive” recollection of what occurred during the summary trial, will become a justification exercise to a superior officer as to why he or she made that decision.199 A court would likely conclude that the absence in the regulations of any requirement to have transcripts of what was actually said during summary trials makes it difficult, even impossible, to exercise genuine and precise legal oversight, which has a negative impact on the overall fairness of the process protected by section 7 of the Charter. With the technological means reasonably available today, it would be difficult to convince a court that requiring the accurate recording of summary proceedings as a default rule – unless impracticable due to operational circumstances – would impose too much of a burden to the good administration of the military justice system.

E q ua l it y: R a n k - B ased Jus ti ce In the particular context of the case of Généreux, it was determined that military status – in comparison with civilian – does not in itself constitute discrimination within the meaning of section 15 of the Charter.200 In the absence of evidence and unless a constitutional claim cannot be dealt with through other sections of the Charter pertaining to legal rights, it is very unlikely that a court would embark on such an analysis. Having said that, discrimination can result from differential treatment within a group. In a military justice context, service members of lower ranks are dealt with differently than those of higher ranks. Does this differential treatment among service members hit against the idea of equality before the law? The Supreme Court analytical framework of a section 15(1) challenge has varied over the past thirty years.201 Arising from complex situations, discrimination issues usually generate divided and

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controversial decisions as to what the test to determine “substantive equality” should be. As a result, the state of the law is uncertain, and it is not the purpose of this book to discuss this aspect at length. Suffice to say that as it stands today, the current controlling tests for section 15(1) is built around the concept of “substantive equality.” In Withler v Canada (Attorney General) the Supreme Court essentially states that equal treatment does not mean the same treatment. The Court invites us to go beyond formal equality by inquiring closely into the effect of the law. The facts might reveal that differential treatment may be indeed discriminatory. But it may also prove that the difference is appropriate to improve the situation of a disadvantaged group.202 Withler was applied in Quebec (Attorney General) v A,203 commonly referred to as Eric v Lola. Writing for a majority of five judges, Abella J referred to what the test ultimately is: “Does the challenged law violate the norm of substantive equality in section 15(1) of the Charter?”204 To help answer that question, prejudice and stereotyping against a group are relevant, although not a requirement.205 For Justice Abella, what matters most is the “discriminatory conduct that section 15 seeks to prevent, not the underlying attitude or motive.”206 Applying that approach to summary trials in military justice, there is a substantive inequality between lower and higher ranks. The differences in treatment are substantial in the legislation. A comparative table is provided in Appendix F. For example, legal advice prior to laying a charge is not required for alleged minor offences where accused persons are of the lowest ranks, and there is no election or mandatory commitment to court martial otherwise.207 Similarly, pre-trial legal advice is not mandatory where the accused has been charged with a minor offence which does not carry the right to elect court martial.208 Another main difference of treatment pertains to the exposure to potential punishments. While accused persons of lower ranks are potentially exposed to detention, reduction in rank, and confinement to ship or barracks, those of higher ranks can only be given severe reprimand, reprimand, and a fine up to 60 percent of their monthly pay, the first two having no other practical impact than being an entry on the conduct sheet which may or may not affect their career progression.209 Bill C-15, which clarifies that a conviction of any of a list of service offences is not a criminal offence for the purpose of the Criminal Records Act, does not apply to detention and reduction in rank.210 In

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other words, for the same offence, lower-ranking service members detained or reduced in rank have a ‘conviction’ while those of higher rank sentenced to severe reprimand, reprimand, or a fine do not. Some would say that such a perception has to be nuanced, as the vast majority of cases are dealt with by delegated officers, who have no jurisdiction on ordinary criminal law offences and who cannot impose detention or reduction in rank as punishment.211 Yet, in those situations, delegated officers can impose confinement to ship or barracks for up to fourteen days, sometimes without any pre-charge or pre-trial advice, and without any obligation for review authorities to suspend the carrying-out of the punishment of confinement pending the completion of the review should offenders disagree with the outcome. Obviously, rank is not among the enumerated grounds of discrimination of section 15(1) of the Charter. But could it be analogous to them? In Corbiere v Canada (Minister of Indian & Northern Affairs), Justices McLachlin (as she then was) and Bastarache circumscribe the concept of ‘analogous ground’: What then are the criteria by which we identify a ground of ­distinction as analogous? The obvious answer is that we look for grounds of distinction that are analogous or like the grounds enumerated in s. 15 – race, national or ethnic origin, colour, religion, sex, age, or mental or physical disability. It seems to us that what these grounds have in common is the fact that they often serve as the basis for stereotypical decisions made not on the basis of merit but on the basis of a personal characteristic that is immutable or changeable only at unacceptable cost to ­personal identity. This suggests that the thrust of identification of analogous grounds at the second stage of the Law [Law v Canada (Minister of Employment and Immigration), 1999 C a n LII 675 (sc c ), [1999] 1 sc r 497] analysis is to reveal grounds based on characteristics that we cannot change or that the government has no legitimate interest in expecting us to change to receive equal treatment under the law. To put it another way, s. 15 targets the denial of equal treatment on grounds that are actually immutable, like race, or constructively immutable, like religion. Other factors identified in the cases as associated with the enumerated and analogous grounds, like the fact that the decision adversely impacts on a discrete and insular minority or a group that has been historically discriminated

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against, may be seen to flow from the central concept of immutable or constructively immutable personal characteristics, which too often have served as illegitimate and demeaning proxies for merit-based decision making. (Reference added)212 In a military context, differentiation by rank is seen as a positive, generally speaking. It is an integral part of the service member’s identity213 and reflects the very hierarchical nature of the military organization for mission accomplishment. Ranks “visibly denote responsibility, authority and specialized expertise, and in such traditions as separate messing and marks of respect.”214 Having said that, rank is a “characteristic difficult to change, or changeable only at unacceptable personal cost.”215 Prior to joining the caf, some element of choice is left to service members. Individuals select between available occupations at the time of recruitment providing they meet the minimum education requirements. Each occupation has an entry rank associated with it and a predetermined career path. Occupations requiring a university degree are associated with a junior officer rank at the entry point, usually officer cadet. Occupations that do not require a degree are associated with a junior non-commissioned rank, usually private. But once they are in, service members do not choose their rank; it is attributed to them, according to the available career path they selected. To a limited extent, personal merit and choice have a role to play. During their career, service members can seek a promotion by making efforts to meet the requirements for the next rank. They can also request to change their occupation, which may involve becoming an officer, for example by getting a degree or taking a qualification course. But contrary to getting a diploma or a qualification – where factors internal to the individual such as merit, intelligence, and effort play the main role – being promoted depends mainly on external factors and processes over which service members have limited influence.216 The organizational needs of the service – as determined by the chain-of-command at that time – are the key element. Accused persons cannot suddenly get promoted or relinquish a rank in order to change the rules applicable to them. Quite the contrary, the fact of being charged almost invariably puts career advancement on hold. For example, a service member of a lower rank anticipating a summary trial might request release to become a civilian in expectation that military authorities would then lose interest in

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prosecuting him or her, as summary trials do not have jurisdiction over civilians. This is a faint hope, however. Release might not be approved, as it cannot serve to avoid the consequences of misconduct.217 Even if released, the service member would still be under the jurisdiction of a potential court martial. Even if military authorities lose interest in prosecuting after release, removing the negative consequences of holding a lower rank would be at the price of a military career. Furthermore, not having challenged charges may translate into having a negative item of release that impedes the individual’s chances in seeking future employment. Therefore, rank in a summary trial context is constructively immutable. There is an argument that a military organization needs stronger measures to instill military ethos and discipline in junior-ranked members. Generally of a younger age, these members often demonstrate, like many young people, a lack of good judgment or a lack of discipline in comparison to more senior members. According to this argument, it would then make sense for the military authorities to have more tools – including more severe ones up to and including deprivation of liberty – to discipline the youngest and most inexperienced service members. This argument assumes that criminality is linked to age: the younger one is, the more one will contravene the law. From a sociological perspective, this has a certain value. But it also assumes that punitive measures work better with young people: the younger one is or the less experience one has, the more stringent the sanctions need to be. Not only does this seem counter-effective, but it is incoherent in comparison with the underlying philosophy of the criminal justice system for young offenders.218 In sentencing seventeen-year-old individuals, we focus on rehabilitation and reintegration because, as young people, they “have heightened vulnerability, less maturity and a reduced capacity for moral judgment.”219 When the same individuals join the ca f as they turn eighteen, it seems illogical to expose them to more severe punishments for the exact same reason. In sum, there is a substantive inequality based on rank in Canadian military penal law at the summary proceedings level. That distinction perpetuates a structural bias and conduct against a group that has been historically discriminated against in comparison to another one within the same organization: service members who on average are younger, have lower incomes, and are less educated than those of higher ranks.220

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Some may also justify the distinction by drawing a parallel with Kahkewistahaw First Nation v Taypotat, where education was not recognized as an ‘analogous ground.’ In that case, the chief of a First Nation band claimed that a new Grade 12 education requirement for a candidate to be elected chief violated his equality rights under section 15(1) of the Charter, as he had only a Grade 10 education. The Supreme Court acknowledged that “education requirements may well be a proxy for, or mask, a discriminatory impact” but it concluded that, in that case, there was no “evidence linking the requirement to a disparate impact on members of an enumerated or analogous group.”221 However, the situation of Mr Taypotat cannot be compared with that of a service member of lower rank facing summary trial. First of all, what is at stake in each case is not of the same degree. In Taypotat, it is a specific requirement to meet in order to be eligible to run for office. In the summary trial system, it is a lower degree of procedural safeguards while facing greater penal consequences. Although the first is important for the democratic life, the second is directly linked to fundamental legal rights protecting individuals against State action. In other words, no one has a right to be elected to a public office, but everybody is entitled to the same protection from the law. In addition, there is a legitimate link between the responsibilities of an elected office and the level of education necessary to exercise them. In contrast, there is no apparent rationale to vary penal law due to the sole fact that an individual holds a particular rank within an organization. A better illustration may be found in the academic world. Of course there are differences of treatment (income, benefits, and privileges) between a full professor, an associate professor, an assistant professor, and a part-time professor or lecturer. These distinctions are legitimately based on seniority, education, and level of responsibility. But if a student were to make a sexual harassment complaint, it would be inappropriate to expose the part-time professor or lecturer to a different process with more serious disciplinary sanctions and fewer procedural safeguards than those applied to the tenured ranks of professors on the sole basis of academic rank. The differentiation between ranks in summary military justice has a concrete negative impact. From lower-ranking service members’ perspective, it is a disadvantage, as the absence of a requirement for pre-charge legal advice in some instances potentially renders those individuals more exposed to vexatious complaints and unsubstantiated

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charges. In his 2003 report on the nda , Lamer CJ expressed confusion as to why legal advice was mandatory prior to charging service members of higher rank only.222 In cases where no legal advice has been obtained, presiding officers might be objectively less sure about their duties than those who have received such advice. In addition, the absence of pre-trial legal advice potentially reduces a presiding officer’s accountability; presiding officers who disagree with the unit legal advisor must state their reasons in writing and provide their reasons to both their legal officer and their superior officer in matters of discipline.223 If no legal advice is sought, there is no need to justify going against it. In cases where there are errors resulting from the absence of pre-charge and pre-trial legal advice, only post-trial monthly review by a commanding officer on a legal officer’s advice can fix them, assuming they are apparent on the face of the record. The fact that, in practice, many c a f units have a policy that legal advice must be sought prior to laying charges, irrespective of rank, may be indicative that the distinction is obsolete.224 If we add to this that, since the recent amendment to the National Defence Act, detention and reduction in rank create a record while all punishments for higher ranks do not, accused members of lower ranks are more exposed to true penal consequences. Some might oppose that claim by stating that for the same type of offences, service members of higher ranks are facing higher consequences as their cases are ‘elevated’ to ‘superior commander’ level and often to court martial. As explained in chapter 2, superior commanders have fewer powers to impose true penal consequences. Moreover, for a similar electable offence allegedly committed by a service member of higher rank, court martial is not automatic. On the disparity, the training doctrine manual explains: “Since detention cannot be imposed on commissioned officers, any offence committed by an officer that warrants a loss of liberty should be dealt with by a court martial” (emphasis added).225 For example, in a case where it is alleged that a service member committed ‘conduct to the prejudice of good order and discipline’ for having used cocaine contrary to regulations, lower-ranking service members would likely be charged. In particular, the ‘reasonable prospect of conviction’ criterion is assessed as if they were tried by summary trial, where evidence rules are less stringent in comparison with those applicable in a court martial.226 When charged, they would be given a choice between summary trial and court martial. If they

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chose summary trial, the risk of being convicted and sentenced to detention would be high. Where higher-ranking service members are charged with the same offence, they will also be given the option to choose between summary trial and court martial, unless the presiding officer is of the view that, in the circumstances – which may include the higher rank of the accused – his or her punishment powers are insufficient. If they go before a superior commander, detention is simply not available. If the case is sent to court martial either by the accused’s choice or directly, a regional military prosecutor will review the file and will consider whether or not there is a reasonable prospect of conviction for the matter to proceed to trial by court martial227 and if it is in the public interest to proceed.228 At that point, the “reasonable prospect of conviction” is assessed as if the case would go to court martial, where evidence rules are more rigorous. The matter can stop there if the prosecutor is of the view that, for example, a bodily sample or an incriminatory statement were not taken correctly. If charges are preferred, trial held, and individuals found guilty of drug use, offenders have usually been fined by courts martial.229 In some cases, prosecution and defence have recommended suspended custodial sentences.230 Only in the notable case of R v St-Onge was an ex-private assigned thirty days of a custodial punishment – namely imprisonment – after having admitted to the military police that he used drugs throughout a period of twentyeight months.231 Even when officers of higher rank are sent directly to court martial because of an absence of summary jurisdiction, they might end up having more leverage in diminishing the potential negative consequences than if they had been tried by summary trial. Consider, for example, the case of R v Miller, where a lieutenant-colonel found guilty of having improperly worn medals, ribbons, and decorations was sentenced to a severe reprimand and a fine of $5,000 following a joint submission by counsel. Although the military judge indicated he would have considered imposing reduction in rank,232 he was bound by the rule that, unless the joint submission “is unfit, unreasonable, would bring the administration of justice into disrepute, or be contrary to the public interest,” a court should not depart from it.233 Service members facing summary trial do not have that bargaining power.

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Statistics show that this differential treatment is a real concern for lower ranks. While they represent 60 percent of c a f military personnel,234 they represent 85 percent of those involved in summary trials.235 In comparison, senior non-commissioned members and officers, who together represent 20 percent of the c a f military workforce, represent only 6 percent and 9 percent of summary trials respectively.236 A lower proportion of higher ranks at summary trial does not mean a higher proportion being tried at court martial level, as they represent 15 percent (non-commissioned officers) and 17 percent (officers) of those facing proceedings at that level.237 Some might say that these numbers reflect that lower ranks are more prone to committing offences. That may well be. But these numbers could also show that summary proceedings are rarely used to maintain discipline amongst higher ranks, either because there is no need to or because it is anticipated they would offer stronger opposition, such as in the case of Legassick. One thing is clear, though. At the summary trial level, military law disadvantages the lower ranks. Amongst those who have been sentenced to detention, reduction in rank, and confinement to barracks at summary trial, there are no warrant officers or above and no second lieutenants or above. This is the discriminatory impact of the different treatment between ranks that was referred to in Withler. The distinction perpetuates an historical prejudice and a stigmatized view against a ‘lower’ social class and associates privileges to a ‘upper’ class. There is no modern reasonable justification for such a differentiation in the administration of justice. It can be reasonably inferred that it is reminiscent of the historical classification of society back in the eighteenth and nineteenth centuries in England that was mirrored in the nation’s military organization. At that time, it may well have been that rank-based justice – either in military or in civilian society – was more socially acceptable. For example, at that time, birth gave legal authority. Being a member of the elite, which gave access to education and wealth, was the normal way to become an officer, sometimes by purchasing an officer commission, until 1871. Even for most of the twentieth century, it seems that social exclusiveness was the norm in military forces. In the European Court of Human Rights (echr) case of Engel and Others v The Netherlands,238 the issue was the disparity of treatment in military justice based on rank. Five individuals, conscript soldiers in the Dutch armed forces, were imposed disciplinary penalties by

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their respective commanding officers. At that time, based on legislation first enacted in 1903, the nature of the penalties at summary level depended on the rank of the offender. From officers down to privates, the lower the rank, the more severe the consequences. Privates – the lowest rank – were exposed to “committal to a disciplinary unit” (i.e., detention) for a period of between three and six months.239 However, as the disciplinary process was not considered ‘criminal proceedings,’ offenders did not end up with a criminal conviction. One argument before the echr was that those distinctions in treatment between service members violated article 14 of the European Convention on Human Rights which prohibits discrimination. Article 14 states: The enjoyment of the rights and freedoms set forth in the European Convention on Human Rights and the Human Rights Act shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status. (Emphasis mine) The echr wrote that a “distinction based on rank may run counter to Article 14.” For the Court: The list set out in that provision is illustrative and not exhaustive, as is shown by the words “any ground such as” (in French “notamment”). Besides, the word “status” (in French “situation”) is wide enough to include rank.240 However, analyzing the distinctions at the time they existed, the ec hr wrote: The hierarchical structure inherent in armies entails differentiation according to rank. Corresponding to the various ranks are differing responsibilities which in their turn justify certain inequalities of treatment in the disciplinary sphere. Such inequalities are traditionally encountered in the Contracting States and are tolerated by international humanitarian law (paragraph 140 of the Commission’s report: Article 88 of the Geneva Convention of 12 August 1949 relative to the Treatment of Prisoners of War). In this respect, the European Convention

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allows the competent national authorities a considerable margin of appreciation. … Based on an element objective in itself, that is rank, these distinctions could have been dictated by a legitimate aim, namely the preservation of discipline by methods suited to each category of servicemen. While only privates risked committal to a disciplinary unit, they clearly were not subject to a serious penalty threatening the other members of the armed forces, namely reduction in rank. As for confinement in a cell during strict arrest, the Netherlands legislator could have had sufficient reason for not applying this to officers. On the whole, the legislator does not seem in the circumstances to have abused the latitude left to him by the Convention.241 Forty-three years later, it is arguable whether the echr would have the same opinion. At the time of the decision, the Court even noted that many other European countries were evolving “towards greater equality in the disciplinary sphere between officers, non-commissioned officers and ordinary servicemen,” including the Netherlands, which passed, after the facts of the case, legislation abolishing the distinctions.242 Besides, the Dutch military disciplinary regime at the time of Engel allowed for an appeal before a judicial body (military court) with some level of legal assistance. In modern Canada, rank distinction in military justice based on the caveat that for different categories of service members one necessarily needs different punishments and levels of legal protections is unjustifiable. Structural differentiation based on rank at the outset of criminal law proceedings refers to another era and thus has no valid rationale today. From a purely economic standpoint, some might also say that there is still a legitimate need for an organization to take additional measures to preserve the arguably more educated, experienced, and high-cost human resources, especially if a large-scale conflict were to occur. However, as put by Abella J, the discriminatory conduct is what matters, not necessarily its motive. In a military organization where all c a f members of all ranks are considered members of the “profession of arms,”243 it is legally doubtful to advance a claim that the different degree of responsibility between ranks commands such a differentiation in the application of penal/criminal law. Besides, in

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the regulations, two notes affirm that equal treatment irrespective of rank is essential, “particularly in the administration of the Code of Service Discipline” – for example “when deciding whether or not to lay a charge.”244 If we add to that the fact that service members of lower ranks are those who are the more exposed to the risks of military operations in carrying out their superiors’ orders, the differentiation is, from a policy standpoint, simply untenable.245 To be clear, in the military justice context, rank plays a certain role, in particular on sentencing.246 But there should be no structural distinctions that dismiss procedural safeguards and punishments for certain ranks at the outset of the proceedings.

R ig h t to C ounsel The right to counsel is usually raised under section 10(b) following arrest or detention. This research will focus on the right to counsel at trial, which is usually raised under section 7 as a principle of fundamental justice in proceedings potentially depriving one of the right to “life, liberty and security of the person.” It is also linked to the right to a fair trial under section 11(d). Section 10(b) of the Charter is less of an issue in Canadian military justice in comparison to the absence of legal representation at summary trial. As explained in chapter 2, the vast majority of matters investigated and prosecuted by the military justice system do not result in individuals being put under arrest or committed to pre-trial custody. When they face a bail hearing, they are provided with legal representation.247 Therefore, up to the point where charges are laid, a service member’s situation is relatively similar to that of any other citizen facing the criminal justice system in terms of legal representation. Beyond that point, though, in particular when the right to be tried by court martial is offered, the right to counsel substantially differs from what occurs in Canadian civilian jurisdiction. For the hearing to be ‘fair,’ not only must the decision-maker be independent and impartial, but the accused person must have a reasonable opportunity to present his or her case in a cogent fashion, pursuant to the right to make full answer and defence under section 7 of the Charter. In a debate where the question is whether the accused person has broken the law, legal knowledge is relevant to the process. In this regard, legally trained persons such as lawyers are better suited to present legal arguments. It could also be inferred from section 11(d)

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that a fair trial for accused persons necessarily entails the right of those persons to be legally represented.248 This is actually the sense to be given to international obligations which Canada has agreed to in terms of a minimal standard for legal assistance.249 While the qr&o provide that the accused is entitled to an assisting officer, they do not specifically address the right to counsel at summary trial. A note to the qr&o states that an “accused person does not have a right to be represented by legal counsel at a summary trial.”250 However, the same note provides that an individual can make such a request to the presiding officer, who then has the discretion to permit, deny, or refer the case for court martial. In making their decision, presiding officers can consider several criteria, such as the nature of the offence, its complexity, and the ‘exigencies of the services’ – for example, if the offence was committed on a ship in the middle of the Atlantic Ocean.251 While the note has no force and effect of law, does it correctly reflect it?252 Hard to say, as the right to counsel at summary trial has never been judicially considered or determined. In the meantime, the key point is that legal representation at summary trial currently depends on a discretionary power exercised by the presiding officer on request. Although there is no formal obligation to consult the unit’s legal advisor, experience and anecdotal evidence suggest that such a request is, in general, treated seriously by presiding officers, who would normally seek legal guidance before responding to it. If allowed, legal representation will be through a civilian lawyer at the accused person’s expense.253 From 2001 to 2007, the ojag used to cause external reviews called ‘Military Justice Compliance Surveys’ to be conducted. They provided statistics on this very point. During that period, the requests for representation by a lawyer went from 3.5 percent to 12.1 percent. Each year between 2004 and 2007, more than 60 percent of these requests were granted.254 Since 2007, however, when the ‘Military Justice Compliance Surveys’ were abandoned, there are no official statistics to show how many times legal representation has been sought and denied or allowed at the summary trial level. As explained in chapter 2, instead of a legal counsel, an “assisting officer” is appointed to help the accused person in making a choice as to the mode of trial, in preparing the case, and during the trial.255 Their duties and responsibilities are described in further detail in

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Military Justice at Summary Trial Level256 and in a guide specifically designed for them.257 However, no formal training is required by regulations prior to being appointed as an assisting officer. For some, the imbalance between the high level of responsibility for assisting officers and their absence of formal training creates an impression “of witnessing the wanderings of the blind leading the lame down a dark corridor.”258 Furthermore, as summary trials are ‘tribunals’ by operation of the nda , assisting officers are currently exposed to provincial legislation that prohibits performing any of the acts which are the exclusive prerogative of the lawyer.259 Section 270 of the National Defence Act, which bars actions against any service member doing his or her duty under the Code of Service Discipline, might be insufficient to protect them. For the past twenty years, many recommendations have been made to increase the training of assisting officers. Training documentation has been developed for those officers to have “sufficient legal training” in order to perform their role.260 During the first independent review of the nda in 2003, it was recommended to increase training and require assisting officers to pass a test before performing their role.261 The second independent review authority of 2011 went further and was more specific in recommending that assisting officers be certified in a similar way as presiding officers.262 Although favourable in principle to training enhancement, the military organization has never officially imposed formal training. Anecdotal evidence suggests that some units require assisting officers to have taken the Presiding Officer Certification Training (p o c t ) course, although no empirical data has been collected to determine the extent of this practice. Furthermore, Module 3 of the recent Canadian Armed Forces Junior Officer Development (c a f jo d ) Programme has been designed and developed to specifically train all caf junior officers in respect of their duties as assisting officers.263 In addition, presiding officers have the responsibility to inquire at the beginning of the trial if the assisting officer has made the accused person aware of the gravity of the offence and the differences between a summary trial and a court martial.264 It can be reasonably inferred that assisting officers would minimally read the regulations and guide to fulfill that ‘awareness’ requirement, to avoid any embarrassment in front of the presiding officer. In practice, the last qualitative survey in 2009–10 reported that “most assisting officers took a limited role in assisting the accused

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during the summary trial process.”265 Still, according to the report, “responses suggested that in many instances, however, assisting officers felt ill-prepared to fulfill their duties. This was often attributed to insufficient training.”266 Since the reporting year 2009–10, no data has been reported on the training assisting officers do effectively receive.267 Yet assisting officers are not legal counsel, irrespective of the quality of their training. The duties, responsibilities, and protections applicable to lawyers do not apply to assisting officers.268 Even when legal counsel is allowed, opinions vary as to his or her role during the proceedings, as there is currently no precise regulation or policy in place on the issue. Some would limit it to representation on facts and not on law, as the presiding officer is not a legally trained expert. Indeed, opening a legal debate indicates that the matter should probably be sent to court martial. Some others would limit the legal counsel to a more passive role of providing advice to the accused person only, either by being present with him or her in front of the presiding officer or from outside the room where the summary trial is held. In practice, a resourceful assisting officer requests a recess of the presiding officer in order to contact a d cs counsel to seek legal guidance. Therefore, the characterization that there is currently no right to legal assistance at summary trial should be nuanced. Yet, from a court’s standpoint, reviewing the constitutionality of the scheme, one issue might still raise concerns: that is, whether it is constitutionally valid to deny right to counsel at summary trial as a general rule. Military law has long recognized the right to counsel at court martial. However, as we saw in chapter 2, it has not been recognized for hearings before commanding officers acting in summary disciplinary jurisdiction.269 This traditional view was illustrated in Fraser v Mudge pertaining to prison law. Charged with a disciplinary offence, the individual wanted to be represented by counsel before a board. He sought an injunction and was denied, a decision that was unanimously upheld by the Court of Appeal. In his decision, Lord Denning M.R. said: We all know that, when a man is brought up before his commanding officer for a breach of discipline, whether in the armed forces or in ships at sea, it never has been the practice to allow legal representation. It is of the first importance that the cases should be decided quickly. If legal representation were allowed,

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it would mean considerable delay. So also with breaches of prison discipline. They must be heard and decided speedily. Those who hear the cases must, of course, act fairly. They must let the man know the charge and give him a proper opportunity of presenting his case. But that can be done and is done without the matter being held up for legal representation. I do not think we ought to alter the existing practice.270 Watkin referred to this position as the “disciplinary exception” which was traditionally also applied to police or firemen.271 In his thesis, he provides us with the evolution of that concept in Canadian law as it pertains to prison law. He explained that, even before the Charter, Canadian courts had begun eroding it. They recognized that legal representation was permitted, although not as a right; it was an exercise of discretionary power by the decision-maker depending on the interests at stake.272 This trend was confirmed after the adoption of the Charter in the case of Howard v Presiding Officer of Inmate Disciplinary Court of Stony Mountain Institution273 where an inmate faced five disciplinary offences and a potential loss of earned remission as a consequence. The Federal Court of Appeal found that in that case the prisoner’s liberty was at stake, triggering section 7 protection.274 The Court concluded that there was no reason to refuse legal representation in those particular circumstances.275 Having said that, the majority of the Court stated that section 7 of the Charter did not create a new absolute right to counsel for inmates.276 Actually, that right “will depend on the circumstances of the particular case, its nature, its gravity, its complexity and the capacity of the inmate himself to understand the case and present his defence.”277 This was confirmed in Gochanour v Alberta (Solicitor General) where, acknowledging that there was no absolute right to counsel, Justice Andrekson concluded nevertheless that when an individual is exposed to a loss of liberty, a tribunal may have to appoint a counsel to ensure a fair hearing.278 Applying Howard to the summary proceedings as they were in 1990, Watkin concluded that a “strong argument can be made that the nature of military disciplinary proceedings are such that one of the criteria which mandates a right to counsel will always be present in respect of summary proceedings under the National Defence Act.”279 Under his section 1 analysis, he recommended incorporating the guidance

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on the issue from a note to the regulations proper – which would enhance its mandatory force on presiding officers – or modifying regulations to expressly set out Howard criteria.280 However, his recommendation was not followed, and guidance on legal representation at summary proceedings still remains in a note. In the meantime, the right to counsel in a disciplinary inmate proceedings context has further evolved. In Winters v Legal Service Society, Justice Binnie, writing for the majority of the Supreme Court, concluded that as the individual was exposed to solitary confinement, the “‘services ordinarily provided by a lawyer’ would include a preliminary investigation of the facts giving rise to the disciplinary charges, and advice about the range of potential outcomes, and the chances of success,”281 adding that in some other instances, however, the presence of a legal counsel at the hearing might not be necessary.282 Although this decision pertains more to publicly funded legal assistance in a disciplinary inmate proceedings context, there are interesting comparisons and useful parallels to be made with the current level of legal services available to service members facing summary proceedings. In Smith v Fort Saskatchewan Correctional Centre, an inmate was charged with having an active ingredient of narcotic marijuana in his blood, contrary to institutional regulations. He faced being declared not eligible for temporary absences. Appearing before a disciplinary board, the inmate requested to be represented by a lawyer but was denied. Seeking intervention by the Court of Queen’s Bench of Alberta, he argued that the denial infringed the principles of natural justice or section 7 of the Charter.283 After providing a comprehensive review of the relevant case law in respect of the right to legal representation in administrative proceedings,284 Justice Clarkson compared the right to counsel as protected by the principle of natural justice with the protection offered by section 7 of the Charter, acknowledging that the principles of natural justice apply to a broader scope of activities than the Charter.285 Although he solved the case at bar through the lens of natural justice, Justice Clarkson nevertheless proposed that the right to counsel under section 7 of the Charter is triggered where “the Charter applies to the proceeding and the proceeding has the potential to infringe upon the life, liberty or security of the person” irrespective of the factors set out by the case law in respect of the right to counsel in administrative context.286

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His views were confirmed by the Supreme Court, which stated that section 7 implies a “right to counsel as an aspect of procedural fairness where life, liberty and security of the person are affected” although “this does not support a general right to legal assistance whenever a matter of rights and obligations is before a court or a tribunal.”287 In the current scheme, accused persons have limited access to legal assistance during summary proceedings, even in situations where they are exposed to deprivation of liberty. On the other hand, presiding officers have direct access to their legal advisors at any time during the summary trial. In the c a f training document, specifically in the chapter entitled “Conduct of Summary Trial,” presiding officers are recommended in many situations to consult with their legal advisors during the conduct of summary trials.288 Therefore, during a summary trial, presiding officers have easy access to a lawyer, while the accused does not have the right to be represented by counsel except with permission. Such an imbalance deprives the accused of a fair hearing. In a challenge to the summary trial, considering that the right to a fair trial entails the right of counsel, it is doubtful that a court would conclude that by giving the right to request counsel the system has met the constitutional standard. Some might argue in response that accused persons are not totally alone during summary trial, as they can request an adjournment and call a lawyer, such as a defence counsel from Defence Counsel Services, to seek legal advice. It is true that accused persons can ask to adjourn proceedings to contact a lawyer. However, their access to meaningful legal advice during summary trials is dissimilar to that of the presiding officer. First, accused persons have to request adjournment of presiding officers, while those officers can order it on their own as they see fit. After a certain point, an accused person might refrain from seeking adjournment to avoid antagonizing the presiding officer. Second, unit legal advisors are already familiar with the file, as they will have provided pre-charge and pre-trial/post-charge legal advice, while a defence counsel usually does not know the case yet, or at least not entirely. Without having the file before them, defence counsel might refrain from providing legal advice and would limit their intervention to the provision of legal information. Third, unit legal advisors by their position have often established a trust relationship with presiding officers already, while the contact between the accused person and the defence counsel is usually their first or second one, as no defence counsel has been ‘retained’ yet.

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Moreover, a presiding officer can more easily meet with his or her legal advisor face-to-face, as both are generally collocated, while defence counsel is generally at a distance. Taking all this into account, it can hardly be said that accused persons and presiding officers have similar access to legal advice in the current state of affairs. On balance, a court’s conclusion as to the right of counsel at summary trial would likely depend on the circumstances of each case. In situations where service members are exposed to detention or confinement to ship or barracks, a court would apply the criteria set out in R v White and likely come to the conclusion that the accused faces a “real or imminent” deprivation of liberty, security of the person, or a combination thereof.289 To the extent that summary trial convictions are still considered ‘criminal offences’ for the purpose of the Criminal Record Act, a court could even determine that that exposure to official stigmatization engages legal representation. If a request for counsel is denied and the review authority does not provide effective remedy, the court might conclude that the right to counsel had been infringed, irrespective of the reasons provided by the presiding officer in denying the request. One probable argument to convince the court to the contrary would be – where the right to elect the mode of trial was offered – to argue that the accused person’s election to summary trial is a valid waiver of the right to counsel. That aspect will be further analyzed in chapter 5. In situations where individuals had not been imposed or exposed to ‘true penal consequences’ or to a ‘conviction,’ the court would likely adopt the administrative law approach. The court would review the decisions made by the presiding officer – and the reviewing authority, as the case may be – through the correctness standard, as the issue pertains to a fundamental right. However, the file might be too thin to conduct any meaningful review. As we previously saw, it is currently not mandatory for the presiding officer’s decision to be reduced in writing or for anyone to record the proceedings. Left potentially with only the presiding officer’s comments in the context of a review,290 or even with nothing if such a review did not occur, a court might conclude that the record is insufficient to determine whether the decision to deny the right to counsel was correct in the circumstances. Such a context would likely play against the organization, not the individual. In light of the factors set out in Howard,291 it seems that to convince a court that the decision to not allow legal representation was the right one, circumstances and reasons must clearly show that the nature of the case, its gravity, and its complexity were low and

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that the capacity of the defendant himself to understand the case and present his defence were unaffected. In sum, the primary Charter challenges under sections 7, 11(d), and 15 are that even though accused persons are exposed to custodial punishments, presiding officers are not independent, proceedings are not recorded, and individuals are not represented by counsel, not to mention that they are dealt with differently depending on their rank with no reasonable justification.

O t h e r P o t e n t ia l Breaches Other Charter arguments could be developed under the more general duty to ensure the procedural fairness of the proceedings under sections 7 and 11(d).292 In Charkaoui the Supreme Court stated that laws interfering with life, liberty, and security of the person must conform to the principles of fundamental justice, which “include a guarantee of procedural fairness, having regard to the circumstances and consequences of the intrusion on life, liberty or security [reference omitted].”293 Although it does not specify a particular process, the Charter nevertheless requires “a fair process having regard to the nature of the proceedings and the interests at stake.”294 In short, “the issue is whether the process is fundamentally unfair to the affected person.”295 In the past years, Col (ret.) Drapeau – with whom former Justice Létourneau substantially concurs – has claimed that there are several potential breaches of the principle of due process in the Canadian summary trials system. Aside from the lack of judicial independence of presiding officers, the right to counsel, and the lack of transcript – already analyzed above – the concerns of these authors lie in the insufficiency of the pre-trial disclosure, the impossibility for the accused person to raise an argument based on the Charter, the absence of rules of evidence “including non-compellability of the accused to be a witness against himself, self-incrimination, adverse inference from the accused’s silence, or, spousal privilege” and the potential to fully rely on hearsay evidence, and the absence of the ‘right’ of appeal.296 Each of their claims will be briefly discussed here. Pre-Trial Disclosure As seen in chapter 2, once the individual is charged, he or she and the assisting officer are provided with a copy of, or given access to, any information that (1) is to be relied on as evidence at the summary trial

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or (2) tends to show that the accused did not commit the offence charged.297 This is an application of the disclosure regime in criminal law where “the Crown has a duty to disclose all relevant, nonprivileged information in its possession or control, whether inculpatory or exculpatory.”298 A piece of information is ‘relevant’ where there is a reasonable possibility it could be used to meet the case for the Crown, in respect of the right of the accused to make a full answer and defence.299 Létourneau and Drapeau claim that “the level of disclosure provided to the accused at a summary trial is not as thorough as the level of disclosure provided at a court martial.”300 They do not say to what extent or in what regard the level of disclosure at summary trial is of inferior quality in comparison to that at a court martial. In trying to assess the validity of their claim, we could have a look at the reported data by the o jag . In the last qualitative survey, accused persons interviewed reported that they were provided with a copy of the investigation reports, or at least access to them, in sufficient time to prepare for “their elections (where applicable) and their summary trials.”301 However, the size of the sample in comparison with the population to be interviewed raises concerns in terms of data reliability.302 Even taking into account that many of those individuals would play the role more than once within a year, the number of accused persons interviewed seems relatively small in comparison to the whole population of those involved in military penal proceedings. Careful consideration should be taken before arguing that that sample is reflective of any trend. Since the 2009–10 reporting period, subsequent jag annual reports do not show any data in respect of that issue. Without a more precise picture of the actual compliance by units, it is difficult to either confirm or disprove any claim about the relative lack of ‘thoroughness’ of disclosure at unit level. Rules of Evidence The claim that summary trials are “not governed by any rules of evidence”303 is an overstatement. True, the Military Rules of Evidence (m r e ) do not apply at summary trials.304 As summary trials are designed to be less formal, it was decided not to apply the mre at that level. Yet, the reception of evidence is governed by regulations,305 by guidelines in the training doctrine manual,306 and by pre-trial advice provided by the unit legal advisor in the particular circumstances of

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each case. As a general rule, presiding officers may receive any evidence that they consider to be of assistance and relevant in determining whether or not the accused committed any of the offences charged and, where applicable, imposing an appropriate sentence. 307 In addition, a presiding officer may receive any evidence that is sufficient to establish any relevant fact, either taken alone or considered with other evidence, but he or she shall only give it the weight that is warranted by its reliability.308 There is absolutely no obligation for accused persons to testify,309 although they can if they wish to do so.310 In addition, presiding officers are told that it is improper for them to draw any inference from the fact that the accused has not testified.311 Unless accused persons choose to testify, presiding officers are forbidden to question them.312 The only exception occurs at the beginning of the trial, prior to receiving any evidence, where the presiding officer asks if the accused would like to admit any particular of the charges.313 This is not out of the ordinary in comparison with the ordinary criminal justice system.314 The chance that a conviction might be solely based on hearsay is relatively improbable, although not impossible. The Military Justice at Summary Trial Level manual explains that while hearsay evidence is not automatically excluded, presiding officers can accept it if relevant but must exercise caution. They must pay particular attention to its reliability and its potential weight in doing so.315 The training manual is generally reflective of Canadian law. In addition, in their advice prior to summary trials, legal advisors would normally warn presiding officers against using hearsay evidence to prove or disprove the essential elements of the offences. It should be remembered that there is no absolute prohibition in ordinary criminal law on hearsay evidence, although it is presumptively inadmissible. The traditional rule excluding it has many exceptions. In essence, these lie on two requirements: the necessity of relying on hearsay evidence and its reliability. In recent years, rules have evolved which give more discretion to triers of facts to receive such evidence. Yet the Supreme Court has reaffirmed the rule that hearsay is presumptively inadmissible unless it falls under an exception or meets the requirements of necessity and reliability.316 On this point, presiding officers are arguably less capable than judges in identifying and weighing hearsay evidence. Regulations may not be sufficient to compensate for their lack of legal training, as they

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provide only general guidelines on the relevance, reliability, and weight of the evidence.317 On hearsay, presiding officers are simply reminded that “direct evidence is to be preferred and in this regard, witnesses who have first-hand knowledge should be called to testify before the presiding officer.”318 The risk of errors during summary trials is reduced by pre-trial legal advice when hearsay issues are apparent from the file. That risk may be greater for those cases where legal advice is not sought or hearsay issues arise suddenly at hearings. However, the risk does not make the process unfair per se. Overall, a court would likely conclude that, although the Military Rules of Evidence do not apply to summary proceedings, the admissibility of evidence is governed by rules. While those rules do not mirror those used in ordinary criminal proceedings, they substantially follow the principled approach to hearsay evidence proposed by the Supreme Court.319 Judicial intervention might occur only where the factual basis clearly shows that a presiding officer has wrongly applied the admissibility of evidence in a particular case to a point where the outcome would have reasonably been different. The Impossibility of Raising a Charter Issue Is it impossible for the accused person to raise a Charter issue at the hearing? In light of the factors identified in Charkaoui it seems rather difficult, at least. Arguably, such an impediment could impact the right to answer the case, as it removes from the argumentative toolbox a line of constitutional issues. The Charter does apply at summary trial, but legal debate is not the primary focus of these proceedings; they deal with minor service offences, where the facts and legal issues are straightforward.320 Usually Charter issues are identified prior to the hearing by unit legal advisors. If such an issue has been spotted, unit legal advisors would recommend to presiding officers in pre-trial advice an appropriate course of action, including the potential exclusion of the evidence. Most common examples pertain to statements made by the accused in the presence of persons of authority during the investigation, and the chain of custody of real evidence. Alternatively, if a Charter issue cannot be dealt with appropriately at this stage, a unit legal advisor would likely recommend referring the matter to court martial, a more appropriate forum to deal with complex legal issues. Sometimes a potential breach of the Charter is

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such that a unit legal advisor will recommend that the charges not be pursued. In cases where defence counsel was consulted during the election process, he or she might recommend to the accused and the assisting officer a certain course of action, which includes electing to be tried by court martial. Although there is no prohibition preventing the accused persons or their assisting officers from raising a Charter issue at the hearing, it is very difficult for them to do so. They lack the legal training to identify potential issues and make such an argument in an efficient way. Even if they do so, presiding officers would be incapable of dealing with, and eventually providing remedies concerning, complex or broader systemic Charter issues. In response to such a claim, presiding officers would consult with their legal advisors. Those would likely recommend sending the case to court martial, as the summary trial is likely not a “court of competent jurisdiction” to give a remedy under section 24(1) of the Charter.321 In that context, I concur that it is virtually impossible to effectively raise a Charter issue at summary trial, although it does apply. ‘Right’ to Appeal The expression ‘right to appeal’ may have created some confusion in the Canadian legal public discourse. Criminal law entails the right to appeal a conviction. But this right has not – on a stand-alone basis – reached constitutional status yet; for the moment, it is a statutory right. Having said that, such a right may be required by the rule of law principle. In Charkaoui, it was argued that the unavailability of an appeal of the judge’s decision on the reasonableness of the certificate was contrary to the rule of law. Referring to a previous case,322 the Supreme Court stated that “there is no constitutional right to an appeal.”323 The Court implicitly recognized that the right to appeal might be a component of the overall constitutional standard to have a fair trial according to law. Yet the Court added that such a right could not be inferred from the particular context of that case.324 Looking at the summary trial system from a strictly semantic perspective, a ‘review’ is different from an ‘appeal.’ Having to go beyond terminology to assess fairness, it is useful to compare the court martial appeal process with the summary trial review. The primary focus here will be on reviews requested by offenders325 rather than those conducted by commanding officers on their own initiative on a

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monthly basis in the face of the record of disciplinary proceedings.326 There is a comparison table in Appendix G. As described in chapter 2, a review is less formal than an appeal and is requested by a simple memorandum. Its outcome occurs sooner, as the timings to initiate the process and to obtain a decision are tighter. Should an offender require help in preparing the request, an assisting officer is appointed. In theory, review cannot produce a negative impact from the offender’s perspective; in the ‘worst’ case scenario the findings and sentence are confirmed. As explained earlier, reviewing authorities are not judicially independent and are non-jurists.327 That being said, the absence of legal training does not render the process unfair per se; the requirement for review authorities to seek legal advice is designed to compensate for that lack of training. However, legal advice is based on facts; it is as good as the factual basis is accurate. In the absence of any summary trial transcript or recording, the facts upon which legal advice is based might be incomplete, inaccurate, or even misrepresented. This is the most problematic difference between appeal and review in terms of fairness. Judicial Review Some might argue that such concerns in respect of due process of the summary proceedings are alleviated by the fact that review authorities’ decisions are ultimately under the scrutiny of the Federal Court328 or the Superior Court in the province where the summary trial was held.329 “Should offenders disagree with the final outcome, they would ask these courts to intervene,” they might say. However, the exposure to judicial review might be insufficient to ensure the procedural fairness of the system. First, the scope of judicial review is limited to determine if the ‘tribunal’ (“summary trial” or “reviewing authority”) exceeded its jurisdictional limit or breached a constitutional right. Unlike an appeal or a review process, judicial review does not pertain to the legality of the verdict or the legality/ severity of sentence. Another aspect is that there is no obligation for review authorities to inform service members of that option. Compared to what occurs at the end of the grievance process, caf regulations and directives do not provide that if service members are dissatisfied with the decision of the review authority they can make an application for judicial

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review under the Federal Courts Act. Consequently, while presiding officers are obliged to verbally inform offenders about their options, review authorities are silent in their final decisions. Therefore, in practice, service members do not know that they can seek the intervention of a court of superior jurisdiction at that stage – not to mention that they are usually not legally represented. Lastly, individuals facing any penal system should not need to wait until a judicial review to have their legal rights enforced. In US v Ferras; US v Latty, a decision in an extradition context, Chief Justice McLachlin for the Supreme Court stated that, although a case does not have to be presented in a particular form, a prima facie case “must be established through a meaningful judicial process.”330 Considering the potential deprivation of liberty for the individual, a court might conclude that in comparison, summary trial and its review have not yet reached the “meaningful judicial process” standard. In the absence of transcripts and written decisions, a court would likely conclude that it is illusory to expect that exposure to judicial review would make the process more ‘judicially meaningful.’ Overall, the compliance of summary proceedings with due process on the above secondary aspects is relatively negative. A court would likely look at the summary trial system by comparing it with its civilian counterpart, taking the statutory scheme of ordinary criminal proceedings as a starting point. The court might be deferential to military context but only to a certain extent, for example on policy matters not incompatible with ordinary statute law. Again, as the late Chief Justice Blanchard of c mac put it, “the military justice system should therefore resemble the civilian justice system insofar as there is no military rationale for adopting a different approach.”331 Looking at the system through the lens of the Charter, a court would apply a two-step analysis in light of the jurisprudence on constitutional review as recently reaffirmed by the Supreme Court, although in a different context.332 The first question would be to determine if the legislation breaches any of the above-identified rights of the individual before the court. If the answer is no, then the court would determine if the legislation’s reasonable foreseeable applications will breach the Charter for any of those rights. This is where it seems a court would at least conclude that there were violations of: (1) section 11(d) as it pertains to impartiality and judicial independence; (2) sections 11(d) and 7 as there is no transcript of the proceedings; (3) section 7 as legal

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representation at the hearing is absent; and (4) section 15 as there is an unjustifiable difference in treatment between senior and junior ranks amongst accused persons. For governmental authorities to convince courts of the absence of any breach is to focus on the need to adopt a unique contextual approach to a point where civilian case law is less or not applicable. It would also need a strong factual basis showing that no breach effectively occurred or that “reasonable foreseeable applications” are actually “remote or far-fetched examples.”333 However, that would presuppose considerable efforts in terms of time and resources in developing novel arguments with low chances of success. Another and probably more efficient course of action would be acknowledging potential breaches but arguing that they are justified in a free and democratic society.

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4 Reasonably Available Alternatives

Law does not evolve in silos. Military justice is so specialized and human rights are so fundamental that a major decision on legal rights within a military context in country A would likely impact legal evolution in country B. If both countries are of the same legal tradition, the transfer is even easier. The Supreme Court of Canada’s decision in Généreux1 was considered by the European Court of Human Rights,2 the House of Lords (now the United Kingdom Supreme Court),3 the United Kingdom Court Martial Appeal Court,4 and the High Court of Australia5 in interpreting the right to a fair trial in military justice. A colleague of mine even told me that he successfully argued Généreux before the Supreme Court of Nepal.6 Before analyzing if a breach of a legal right can be justified, we need to consider reasonably available alternatives, especially those in other ‘free and democratic’ societies. We will look first here at other regimes where the focus is the maintenance of discipline, where individuals are exposed to negative consequences. The review will expand from there to foreign military jurisdictions. Comparing “approaches adopted in other democracies” is relevant to see potential “solutions that can be devised” to pursue the objective and “at the same time are less intrusive on the person’s rights.”7 Those “other democracies” have, like Canada, committed to international obligations as they pertain to the administration of justice,8 including military justice. The Supreme Court reaffirmed recently that “the Charter should be interpreted consistently with [those] obligations.”9 It is tempting to change the purpose of a system to fit the comparison. To avoid this, some limits are set. First, essential aspects of the summary proceedings should be kept in mind. In the preparation

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of a major military justice reform in New Zealand in 2007, ‘vital elements’ have been identified mainly due to Cdr (ret.) Christopher Griggs’s preparatory work. Those are: (1) maintenance of discipline; (2) consistency (in all strategic environments); (3) portability; (4) expedition (or promptness); (5) fairness; (6) efficiency; and (7) simplicity.10 ‘Maintenance of discipline’ is the first vital element, while the other six are the necessary characteristics to fulfill it. Therefore, summary proceedings will be compared with processes that share those attributes. In addition, the review is limited to features that put the summary trial at greater legal risk: judicial independence, right to counsel, requirement for a transcript of the proceedings, and equality of treatment of accused persons. The primary focus is on the role of the presiding officer at the hearing.

Ot h e r C a n a d ia n D is c ipli nary S ys tems Many administrative law regimes pertaining to professional misconduct might be of interest in a comparative law approach. However, as indicated earlier in chapter 3, the comparison will be focused here on two spheres where maintenance of discipline is of the essence: in the police forces and in prisons. For any police corps, analogous to what is needed in the c af, maintaining and restoring discipline are necessary to foster cohesion, efficiency, and ethics in the pursuit of mission success. In a prison, a minimum level of discipline must be maintained to keep the peace and security in a close environment for both inmates and correctional officers. Police Disciplinary Processes In police disciplinary proceedings, the initial stages are analogous to military justice: an officer having disciplinary jurisdiction imposes a sanction in a straightforward and less formal fashion. But when an individual member is facing the most serious consequences, there are disciplinary bodies composed of members having some degree of organizational distance from the individual member’s direct chain-ofcommand, sometimes acting in a quasi-judicial capacity. Where individuals are exposed to punitive sanctions, those processes generally allow for individuals to be legally represented, provide for evidence

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to be recorded and for decisions to be reduced in writing, and give the opportunity to seek an appeal. In the Royal Canadian Mounted Police (rcmp), the initial stage is a conduct authority11 conducting an investigation12 and, in case of a contravention, imposing one or more conduct measures. Those measures are divided into four groups: remedial,13 by agreement,14 corrective,15 and serious, including demotion for an indefinite period.16 The conduct authority’s decision and its reasons are provided in writing.17 Where the conduct authority is of the view that the member has contravened the Code of Conduct but the conduct measures are insufficient, he or she can initiate a hearing.18 The subject member can then request a review authority to review the conduct authority’s decision.19 The review authority may also review on his or her own initiative, if a finding is clearly unreasonable or a conduct measure is clearly disproportionate to the nature and circumstances of the contravention.20 If the review authority comes to such conclusions and if it is in the public interest to do so, the review authority may: (1) rescind any finding, substitute any finding, and impose any one or more serious conduct measures; (2) rescind or amend any conduct measure imposed by the conduct authority, or substitute any one or more serious conduct measures; or (3) rescind any conduct measure imposed by the conduct authority and initiate a hearing before a conduct board.21 During a hearing, a member is exposed to more severe consequences, such as dismissal. The hearing is conducted by a conduct board, composed of one or more persons.22 The member can object to any appointment to this board.23 Having the powers of a board of inquiry,24 the conduct board determines if the alleged misconduct has been established on a balance of probabilities.25 If so, the conduct board shall impose either: (1) dismissal from the rcmp; (2) direction to resign from the rc mp ; or (3) one or more conduct measures.26 A hearing before a conduct board must be recorded.27 The board’s decision must be reduced in writing.28 The member may appeal the conduct board’s decision to the Commissioner of the rc m p, an officer who has the control and management of the rc mp, under the direction of the Minister.29 The Commissioner can dismiss the appeal, or allow the appeal and either order a new hearing or make the finding that should have been made in the first place.30 In the case of the most serious measures, such as a

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demotion, a direction to resign, or a dismissal, the Commissioner shall refer the matter to the Royal Canadian Mounted Police External Review Committee (e rc) before considering the appeal.31 The e rc provides independent and impartial review of appeal case files and makes recommendations to the Commissioner.32 As soon as feasible, the Commissioner renders a decision in writing on appeal.33 That decision is final and binding.34 Some features of the rc m p disciplinary regime are particularly interesting. The right to counsel is addressed in an original way. When a member is subject to a serious conduct measure or when the review authority intends to modify the conduct authority’s decision, a Member Representative may only provide assistance (i.e., legal guidance and information) to the member.35 But when a member (1) is subject to a stoppage of pay and allowances as a result of a suspension from duty; (2) has received a notice that the conduct board will conduct a hearing (i.e., the member is facing dismissal); or (3) is a respondent in an appeal instituted by a conduct authority, then the member is entitled to representation by the Member Representative Directorate, which includes legal advice, litigation, and advocacy.36 Also, the regulations provide for any subject member the possibility to waive, in writing, a right under the disciplinary regime.37 In the Sûreté du Québec, the disciplinary process follows the principle of gradation, in terms of authority, procedure, and sanction. At the initial stage, an immediate supervisor can impose an oral or written warning, if he or she has reasonable and probable grounds for believing that a breach of discipline has been committed or is about to be committed.38 It can be followed by a disciplinary complaint against a member’s conduct, sent in writing to the member’s immediate superior.39 The time limitation to lodge a complaint is two years after the facts.40 Within forty days, the person processing the complaint must either (1) dismiss the complaint or (2) assign the case to an investigation. The person informs both the complainant and the member concerned of their decision.41 Within 120 days, unless there are exceptional circumstances, the investigation report must be submitted.42 The person in charge of processing complaints may (1) dismiss the complaint;43 (2) refer the complaint to conciliation;44 or (3) cite the member with a breach of discipline.45 If the person cites a member with a breach of discipline, he or she must decide if the citation will be heard before an officer designated for that purpose or before the discipline committee,

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which comprises one or three members.46 In making the decision, the person must consider various factors, notably the seriousness of the alleged violation and the complexity of the case. Evidence relating to the disciplinary complaint is sent to the union or professional association representing the cited member.47 The lower level is a citation before a designated officer dealt with by a ‘disciplinary interview.’48 The member may be accompanied by a union or association representative, who can intervene and make representations.49 The member can rebut the allegations by producing any documents or transmitting any information to explain his or her conduct. However, there are no witnesses called; only the cited member is heard by the designated officer. Unless a new investigation is needed, the designated officer’s decision is rendered within seven days of the disciplinary ‘interview.’ The designated officer can impose: (1) an order imposing reasonable conditions to ensure the member’s good conduct and prevent any repetition of the offence; (2) a warning; (3) a reprimand; and (4) a suspension without salary for a maximum period of five days.50 No more than fifteen days later, the member must indicate to the designated officer whether or not he or she agrees with the proposed measure.51 If the proposal is not accepted, the matter is sent back to the person in charge of processing complaints, who then can send the matter to a discipline committee.52 Before the discipline committee, the process is more formalized. Its members – police officers and persons who are not police officers – are appointed for a two-year term.53 The discipline committee is under the Director General’s authority.54 The cited member may challenge a member of the discipline committee on a ground of reasonable cause to fear that the member will not be impartial.55 On receipt of a citation, the chair of the discipline committee designates either one or three members (one of whom is not a police officer) to hear the case.56 Within ten days of the disciplinary citation, the cited member will inform the committee of his or her plea.57 For the hearing, the cited member may be represented by an advocate of his or her choice, at the member’s expense, an advocate designated by the member’s union or professional association, a member of that association or a member of the Sûreté.58 The discipline committee may be assisted by a legal counsel who advises the committee on all questions of law or procedure, but abstains from taking part in deliberations and decisions.59

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At the hearing, after the disciplinary citation is heard, the member can alter his or her plea. Then, evidence can be presented and witnesses can be summoned.60 Their depositions are recorded.61 The person in charge of the complaint acts as a ‘prosecutor,’ describing the alleged breach of discipline, submitting evidence, and making appropriate representations.62 The committee determines if a violation occurred, and if so, hears the parties to determine the appropriate penalty.63 A discipline committee of one member may impose: (1) a warning; (2) a reprimand; or (3) a disciplinary suspension without pay for a period not exceeding fifteen working days. A committee sitting at three members can impose up to sixty working days of suspension without pay, a demotion, or a dismissal.64 The committee’s decision, with reasons, is given in writing.65 The decision can be reviewed by the Director General of the Sûreté, either on request by the member or on the Director General’s own initiative.66 Parties are invited to make representations in writing.67 The Director General may confirm, cancel, or amend the decision reviewed and substitute one of the penalties, as the case may be.68 In Ontario, police disciplinary law is going through a reform. Currently, police disciplinary hearings69 are conducted by hearing officers, who are a chief of police70 or a board.71 In both cases, they are considered an administrative statutory ‘tribunal.’72 New legislation that modifies that process has been passed, but is not yet in force.73 According to the new regime, a chief of police may initially impose a disciplinary measure on a police officer,74 after providing a written notice explaining the reasons for imposing the measure and giving the officer time to respond to it.75 If the officer does not consent to the disciplinary measure,76 he or she may directly request a hearing by submitting written notice to a new entity: the Ontario Policing Discipline Tribunal.77 The Tribunal continues the mandate of the Ontario Civilian Police Commission, but is “dedicated solely to adjudicating police disciplinary matters, so that such matters are no longer handled internally.”78 The independence of the Tribunal is ensured through various measures. Members are appointed by the Ontario Cabinet (or the Lieutenant Governor in Council).79 Each member and employee of the Tribunal is protected from personal liability, provided they act in good faith.80 A member or employee of the Tribunal shall not be required to give testimony in any proceeding with respect to information obtained by him or her in the course of exercising a power or performing a duty.81

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At the hearing before the Tribunal, evidence can be produced, including witnesses,82 who are recorded.83 The Tribunal determines if the disciplinary measure imposed by the chief of police on a police officer is, on the balance of probabilities, appropriate.84 In cases where the disciplinary measure sought by the chief of police is demotion or termination of the officer’s employment, the chief of police has to follow additional steps, notably to give the officer a reasonable opportunity to improve his or her work performance.85 If the matter cannot be settled, it is sent to the Tribunal, which decides, on the balance of probabilities, that the misconduct / unsatisfactory work performance has occurred and impose: (1) termination of employment; (2) termination of employment in seven days unless the officer resigns before that time; or (3) demotion.86 The Tribunal can also impose a less severe disciplinary measure.87 By application of the Statutory Powers Procedure Act, a party can be legally represented before the Tribunal.88 All proceedings are recorded.89 Interestingly, a party may appeal the Tribunal’s decision to the Divisional Court, a branch of the Superior Court of Justice that hears statutory appeals from administrative tribunals in Ontario.90 However, the appeal cannot be on a question of fact alone.91 From the above police disciplinary processes, we can see trends. First, they usually begin with a measure imposed by a lower authority. Then, when an individual member objects to this initial measure or is facing more serious consequences in the form of a demotion or a dismissal, a hearing is conducted, before a board for the rcm p and the Sûreté du Québec, and before an administrative tribunal for the police in Ontario. Individual members can be represented before those hearings, which are recorded. Decisions of those hearings are reduced in writing and can be either reviewed (rcmp/sq) or even appealed in the judicial system (Ontario police). And yet, no-one is exposed to deprivation of liberty, nor would they end up with a criminal conviction. A table summarizing comparisons between those processes with the summary military justice system, both current and as proposed in Bill C-77, is provided in Appendix H. Prison Law – Inmate Disciplinary Process The second sphere that shares with military justice a need to maintain discipline and to promptly restore it should a breach occur is the inmate disciplinary regime. We will focus here on the federal prisons regime, as provided for in the Corrections and Conditional Release Act

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(ccra )92 and the Corrections and Conditional Release Regulations (ccrr ).93 Readers should note that the federal inmate disciplinary regime is going through a reform of the solitary confinement regime, which would be no longer considered as a ‘disciplinary sanction.’94 Solitary confinement would be replaced by a new approach where inmates who cannot be safely managed within the mainstream inmate population would be sent to a structured intervention unit (s i u ). The purpose of the inmate disciplinary system, which is the exclusive way to discipline inmates, is the following: The purpose of the disciplinary system established by sections 40 to 44 and the regulations is to encourage inmates to conduct themselves in a manner that promotes the good order of the penitentiary, through a process that contributes to the inmates’ rehabilitation and successful reintegration into the community.95 Disciplinary offences are multiple, such as theft, disobeying an order from a staff member, or fighting with another person.96 The complete list is provided in Appendix I. Readers will note the similarities with many of the service offences (Appendix C). Once a breach of discipline occurs, the first step is for a staff member to take all reasonable steps to resolve the matter informally, where possible.97 If an informal resolution is not achieved, the institutional head may issue a charge of a minor or serious disciplinary offence.98 The difference between a minor or serious disciplinary offence depends on the severity of the sanctions to which the inmate is exposed. Minor sanctions are: (1) a warning or reprimand; (2) loss of privileges up to seven days; (3) an order of restitution for a maximum of $50; (4) a fine for a maximum of $25 or less; (5) extra duties up to ten hours.99 Serious sanctions are: (1) loss of privileges up to thirty days; (2) an order of restitution for a maximum of $500; (3) a fine for a maximum of $50; (4) extra duties up to thirty hours; (5) segregation (commonly known as solitary confinement) – with or without restrictions on visits with family, friends, and other persons from outside the penitentiary – for a maximum of thirty days.100 The inmate charged with a disciplinary offence must be given a notice that states whether the charge is minor or serious.101 The charge is dealt with by way of a hearing.102 For minor disciplinary offences, the hearing is conducted by the institutional head (the person in charge of the penitentiary) or a staff member designated by

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the institutional head.103 A hearing of a serious disciplinary offence must be conducted by an independent chairperson, except in extraordinary circumstances.104 The independent chairperson is appointed by the Minister and holds office during good behaviour for a period of not more than five years, which period may be renewed.105 The remuneration of the independent chairperson is determined by the Treasury Board.106 At hearings, inmates can call witnesses, introduce evidence (such as exhibits and documents), and make submissions, including on the sanction, as the case may be.107 If the inmate is charged with a serious disciplinary offence, he or she can be represented by counsel.108 The inmate cannot be found guilty unless the person presiding over the hearing is satisfied, beyond a reasonable doubt, that the inmate committed the disciplinary offence in question.109 If so, a sanction110 is imposed, after considering various factors.111 A copy of the decision is given to the inmate as soon as practicable after the decision is rendered.112 All hearings of disciplinary offences are recorded, notably for the purpose of a review, although the process for such a review is not specified.113 In certain circumstances, the carrying out of the sanction may be suspended.114 In the context of this research, the most interesting aspect of the inmate disciplinary system is the protection of the rights – at least on paper – of those subject to it. All hearings are recorded. For all types of offences, the onus of proof is beyond any reasonable doubt. Inmates facing ‘serious’ charges have their hearings conducted by a relatively independent decision-maker and may be legally represented. If we removed segregation as a sanction, as proposed by Bill C-83, it would mean that an inmate facing a loss of privileges (thirty days max), an order of restitution ($500 max), a fine ($50 max), and extra duties (thirty hours max) has many of the protections of section 11 of the Charter. Even though those disciplinary sanctions are not ‘true penal consequences’ and would not result in ‘conviction,’ inmates have a good level of legal protection. In comparison, service members exposed to detention, confinement to ship/barracks, and reduction in rank and who could end up with a ‘conviction’ do not have the same level of protection. Appendix J provides a table comparing the inmate disciplinary regime and the summary trial system, both current and as proposed in Bill C-77. Without taking anything away from the inmates, to whom Parliament has legitimately chosen to give legal protection,

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Canada is in a rather unique position by giving service members a lower level of legal protection.

Alt e r n at iv e s in F o r e ign Juri s di cti ons Many of Canada’s allies have adopted alternative approaches to maintaining military discipline at the unit level. Despite different national contexts, the essential need for promptness, fairness, portability, efficiency, consistency, and simplicity remains. The scope of this comparative review is limited to those countries with comparable economies, military traditions, and legal infrastructures. Although they have military organizations of different sizes and the degree of involvement of their respective forces in domestic and international operations varies, these countries share a common commitment to the Rule of Law. That includes a duty – pursuant to International Humanitarian Law – to maintain discipline wherever and whenever their respective military forces are deployed abroad. To assist readers, a table summarizing the main features of those systems in comparison with the Canadian one is provided in Appendix K. As Canada is a bijuridical nation, countries representing both common law and civil law will be studied. The purpose here is not to analyze each national scheme of summary proceedings in detail. It is rather an overview of their main features as reasonably available alternatives. National systems can be divided into three groups: those that have ‘judicialized’ some aspects of their summary proceedings, those that have ‘depenalized’ them, and those that represent a combination of these approaches. Judicialization Approach: United Kingdom and New Zealand The first approach is to increase procedural safeguards by integrating some features of the ordinary judicial criminal system. Facing a trio of challenges before the European Court of Human Rights115 and in anticipation of unfavourable decisions, the United Kingdom modified its military law in 2000.116 The main concerns related to the lack of judicial independence of commanding officers presiding over ‘summary hearings’ and the lack of legal representation for accused persons contrary to their right to a fair trial.117 To address those points, the United Kingdom instituted a right to choose court martial in every case. It also created a universal right to

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appeal to the ‘Summary Appeal Court’ (sac). The operating mode of the sac is a re-hearing, although, in an appeal on sentence only, facts are often agreed upon.118 The sac is composed of a judge and two service members, and accused persons are entitled to legal representation and legal aid.119 However, the summary proceedings kept their penal nature, as commanding officers retained the power to impose, with higher authority’s approval, up to twenty-eight days of detention. In terms of delay, early assessment revealed that the period between the lodging of an appeal and a hearing by the court was on average one month.120 That system was validated by the Committee of Ministers of the European Union in 2011121 and by the England and Wales High Court in Baines v Army Prosecuting Authority & Anor.122 In that case, the individual was initially charged with assault causing bodily harm, an offence that could only be tried by court martial. Consequently, the accused was appointed a defence counsel through legal aid. As the victim did not actually suffer bodily harm in the incident, the defence counsel requested by letter that the chain-of-command modify the charge to battery, a less serious offence that could be dealt with by the commanding officer. The case was sent down to summary dealing, where the individual pled guilty but was sentenced to reduction in rank. Unhappy, the individual appealed both his conviction and his sentence, arguing that the summary dealing process was in breach of the right to a fair and public hearing and the right to defend himself through legal assistance.123 After reviewing the summary process in detail, the High Court – Queen’s Bench Division determined that considering all the safeguards, the system as a whole was compliant with the right to a fair trial.124 Seeing a potential ‘legal storm’ coming, New Zealand proactively made changes to their summary trial systems. Although not bound by the e c h r , New Zealand had, since 1990, the New Zealand Bill of Rights Act (n z b o r a ),125 which provides for similar protections, in particular the right to counsel during the proceedings,126 the right  to a fair trial,127 and the right to appeal for anyone convicted of an offence.128 Having come into force in 2009, the current system provides for an appeal before the Summary Appeal Court of New Zealand (sacn z) composed of a judge alone.129 sac n z operates in the form of a re-hearing130 where the appellant is represented by counsel.131 sacnz’s decisions are “final and conclusive.”132 New Zealand made

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other modifications to the summary proceedings scheme to increase fairness, in particular the requirement for the disciplinary officer to ensure there was an audio recording or a written summary of the proceedings.133 Interestingly, the disciplinary officer has a duty to explain to the accused the implications of choosing summary proceedings – i.e. waiving his or her rights to legal representation and to be tried by an independent court.134 Recently, New Zealand has amended its defence legislation to “update the military justice system and to align it with the criminal justice system in certain respects, including by enhancing victims’ rights.”135 The impact on summary trials is that a commanding officer having received a charge must first determine (1) whether the alleged offence has one or more victims, and if so, (2) whether the alleged offence is a ‘specified offence.’136 Those specified offences are notably offences of a sexual nature, and those causing serious injuries or death to a person. If there is a victim and it is a specified offence, the charge is referred to the Director of Military Prosecutions, who “must decide those issues afresh and his or her decision prevails over the commanding officer’s decision.”137 If the dmp confirms the CO ’s decision that it is indeed a victim and a ‘specified offence,’ the d m p would have to provide notices to the victim concerning the accused or the offender throughout the proceedings. With the Canadian system in mind, the main benefit of the judicialization approach is that at the level of hearings by commanding officers, the system would essentially be kept as it is now, subject to a few changes. Only the review process would significantly change, increasing the role of judicial actors in either a new or a subsequent procedural step. The transparency would also be improved, as sac decisions would more closely represent what happens in the field, not to mention that it would develop a body of case law that would afterwards assist presiding officers and their legal advisors with regard to their responsibilities. There are, however, two risks with the judicialization approach. First, it might be followed by a surge in challenging summary trial decisions that might clog military justice resources, in particular if the summary appeal court is constituted with military judges. Before the establishment of the United Kingdom sac, the British Army estimated that twenty percent of the ‘summary disposals’ would be sent to appeal. It turned out that the proportion was in fact closer to ten percent.138 Therefore, the risk might be exaggerated. Another risk is

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for a s a c where judges and lawyers play the major roles to ‘overlegalize’ the issues, particularly if those jurists have no military background. This could lead to what Professor Gerry Rubin calls ‘juridification’: the imposition of external legal and values norms on the military organization in situations which have traditionally been solely governed by military ethos and exigencies.139 Putting limits on judicial intervention may reduce that risk. An example would be a “curative proviso” giving the sac the power to dismiss an appeal, despite the presence of a legal error at summary trial, providing that no substantial wrong or miscarriage of justice has occurred.140 Depenalization Approach: France and Germany A second approach entails making a clear delineation between offences: minor disciplinary ones and criminal ones. The idea is for summary trials to deal with offences of the former type only. The latter are left to either court martial or the ordinary court system, both having complete procedural safeguards. Arguably, dealing with minor disciplinary offences only requires the due process standards associated with administrative law. Two countries of civil law tradition, also under the echr , illustrate such an approach where the penal aspect of summary proceedings is reduced, even removed. France abolished its separate military courts system in 2011 by enacting that all criminal offences allegedly committed by service members in peacetime are to be dealt with by ordinary criminal courts.141 Nevertheless, French military law provides for a sophisticated internal system dealing with disciplinary infractions.142 The sanctions can be of two types: professional (if the service member belongs to a trade)143 or disciplinary proper.144 The latter are divided into three groups. The first group includes sanctions that blame the offender or restrict their movement. The most severe are the ministerial severe reprimand (blâme du ministre) or confinement (arrêts) for up to sixty days but reduced by regulations to forty days.145 The second group consists of sanctions that momentarily stop or slow down one’s career, including removal from the promotion list (radiation du tableau d’avancement). Disciplinary sanctions of the third group either suspend one’s career, such as employment suspension up to twelve months (retrait d’emploi), or end it by termination of contract (résiliation du contrat).146 As a general rule, the more serious the sanction, the more formalized the disciplinary body.147 In the first group, the higher the authority to

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decide (premier niveau, deuxième niveau, troisième niveau), the greater the punishment powers.148 The entry point is the first-level authority irrespective of rank. If individuals disagree, they can proceed to the second level, which has greater punishment powers, and then to a third level which has even greater punishment powers. Interestingly, for officers and warrant officers, including general officers, that thirdlevel authority is vested in the Minister of Defence.149 In terms of procedural safeguards, French service members can make oral or written representations before the summary disciplinary authority. To prepare their defence, they are provided with the file at least one day prior to the hearing, and can be assisted by a service member of their choice.150 French military law also provides for an administrative review of those professional and disciplinary sanctions.151 As service members are exposed to confinement – which could involve further solitary confinement – some might say that ‘depenalization’ in French military justice is not total. Nevertheless, the validity of such a restriction to liberty has been confirmed by the Conseil constitutionnel, playing an analogous role to the Supreme Court of Canada in terms of determining the constitutionality of legislation. The court determined that confinement is a valid restriction to service members’ rights, as they have particular obligations as service members which involve necessary restrictions to their freedom of movement. Besides, the issue of solitary confinement was not raised.152 Germany has chosen a somewhat similar route, although it has formalized and structured the disciplinary proceedings in a parallel administrative tribunals system. As early as the period immediately following World War II, a clear distinction was instituted in German military law between disciplinary sanctions in the Military Disciplinary Code (Wehrdisziplinarordnung) and criminal offences in the Military Penal Code (Wehrstrafgesetz). In addition, German Forces (Bundeswehr) are subject to the Code of Crimes against International Law (Völkerstrafgesetzbuch) that pertains to offences against International Humanitarian Law.153 While the criminal offences of the Military Penal Code are dealt with by the civilian criminal ordinary jurisdiction, disciplinary misconducts under the Military Disciplinary Code are dealt with by military authorities, primarily at company or battalion levels by commanding officers.154 The disciplinary measures – described as ‘simple disciplinary measures’ – those officers can take are: (1) reprimand; (2) severe reprimand; (3) disciplinary fine (up to one

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month of military pay); (4) confinement to quarters (up to twenty-one days); or (5) disciplinary arrest (a simple deprivation of liberty for between three days and three weeks).155 Interestingly, the imposition of disciplinary arrest needs to be approved by a judge of the Military Disciplinary and Complaints Court (Truppendienstgerichte).156 Disciplinary superiors’ decisions are subject to complaints by unsatisfied service members157 and legally reviewed by superior officers, with the assistance of legal advisors.158 When legal advisors’ assessments differ from what was imposed by subordinated commanders, those lawyers become ‘Disciplinary Attorneys for the Armed Forces’ (Wehrdisziplinaranwalt) and, on superior commanders’ orders, conduct a disciplinary investigation. Eventually they might bring disciplinary charges before the Military Disciplinary and Complaints Court. The Court is an administrative tribunal within the German Ministry of Defence which deals with imposing sanctions on service members charged with serious disciplinary offences. It also decides on appeals concerning minor disciplinary measures taken at lower levels.159 The Court has greater administrative punishment powers – called ‘judicial disciplinary measures’ – such as imposing a reduction in pay grade, demotion (akin to caf reduction in rank), or disciplinary ‘discharge’ (in c a f terms ‘release’).160 If needed, there might be a further appeal before the Military Affairs Divisions of the Federal Administrative Court (Bundesverwaltungsgericht). According to the German Federal Constitutional Court (Bundesverfassungsgericht), service members who have been sanctioned administratively and face subsequent criminal proceedings over the same circumstances do not face double jeopardy, as sanctions imposed by military disciplinary courts are not considered penal sanctions.161 In short, Germany, while deferring to civilian authorities’ prosecution of criminal offences allegedly committed by service members, has instituted an entire administrative tribunal system to deal with disciplinary misconduct.162 The greatest benefit of this approach is that it clarifies that service members are not convicted of criminal offences. As opposed to the UK system – where some summary trial convictions have had adverse consequences for individuals even after their military careers163 – the disciplinary sanctions of the French and German systems do not impose a criminal stigma. On the other hand, this would mean a summary trial would lose some of its ‘teeth’ by removing penal

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punishments, detention in particular. In addition, from a Canadian perspective, it would represent a greater paradigm shift from the current state of affairs. Consequently, it would require more resources to implement at the training level in comparison with the judicialization option. Hybrid Approaches: United States, Australia, and Ireland Lastly, some countries apply hybrid approaches wherein the penal nature of the proceedings is either removed or reduced, disciplinary aspects emphasized, or judicial oversight increased. While varying in content and amplitude, these approaches have the common denominator of considering the military summary proceedings system as a mixture of administrative disciplinary law and penal law. These approaches also focus on the non-judicial aspect of the process at its initial stage. The United States has a dual system that enables commanders to deal with minor offences in a prompt manner.164 In order to punish using a simplified procedure, commanders can go through either ‘Summary Courts-Martial’ (sc m)165 or ‘Non-judicial punishments’ (n j p ).166 Both types of proceedings have similarities, including generally the absence of a right to be represented by counsel, the nonadversarial hearing, and the right for service members to refuse the proceedings in favour of a more formalized judicial process.167 They both can impose relatively short periods of deprivation of liberty. However, they differ in many aspects. While a njp can be served to a service member of any rank in a particular unit, a s c m has no jurisdiction over officers and warrant officers. The maximum punishment a scm can impose is thirty days of “confinement,” which is comparable to detention in the Canadian system. In contrast, amongst the maximum punishments that can be imposed through njp is thirty days of “restriction to specified limits” (akin to low-level confinement to barracks) for officers and warrant officers or thirty days of “correctional custody” (akin to highly stringent confinement to barracks) for lower ranks.168 If a member disagrees with the outcome of the nj p, he or she can appeal to a superior authority.169 While the njp is under the commander’s control, the scm is under the control of an officer who acts as a ‘magistrate’ in an inquisitorial fashion as the finder of fact. The sc m officer is not a lawyer, though. Although the s c m officer is still part of the chain of command,

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commanders must not try to influence his or her decision.170 Consequently, service members have a better chance of being found not guilty in a sc m, as the commander has given control to a more neutral and detached presiding officer who has to apply more stringent rules in managing evidence.171 More formalized, the s c m requires more resources, personnel, and time. The results of the decision are reduced in writing on a form.172 In a scm, the collateral consequences and stigma on someone’s career are more serious.173 After a s cm , a service member has up to seven days to submit to the convening authority matters for consideration with respect to the findings and the sentence.174 By design, a n j p preserves a service member from a court’s conviction,175 though in certain circumstances it may still be reported to the Federal Bureau of Investigation as “nonjudicial disciplinary action.”176 Where both nj p and sc m are available, the choice is up to commanders rather than service members to make. Except in limited circumstances, service members can refuse a n j p or object to a s c m and demand to be tried by a general or special court martial.177 Prior to making their decision, they are usually allowed forty-eight hours to consult with a counsel free of charge, but each service has its particularities.178 US Air Force (u sa f ) personnel have an absolute right to consult. In addition, by policy, when facing a s c m , u sa f members “may request representation by a military defense counsel and will generally be detailed a military defense counsel.”179 The US Army offers the right to counsel prior unless the individual is offered a ‘Summarized Article 15,’ ‘Summarized n j p,’ or ‘Summarized Proceedings’ (as opposed to ‘Formal Article 15’), which expose service members to lesser punishments.180 In the US Navy, US Marine Corps, and US Coast Guard there is no right to consult prior to a n jp but individuals are strongly encouraged to consult with a lawyer if circumstances permit. Each branch of the forces has its own defence counsel service, not centrally located – as in Canada – but spread across regional offices covering military bases and installations in the United States and abroad. For example, in the US Army, a soldier offered a n j p is entitled to schedule a meeting with a lawyer of the regional office of the US Army Trial Defense Service (u sat d s or t d s ).181 While the primary task of the tds is to represent service members before courts martial, providing legal advice with regard to n j p s is considered a

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‘Priority II duty’ mainly performed by t d s counsel unless resources are insufficient.182 Interestingly, US Army njp and scm forms show differences as they pertain to service members’ right to court martial. In a ‘Summarized Article 15,’ service members are simply informed of their right to demand court martial.183 In a ‘Formal Article 15,’ service members further acknowledge that they have been afforded the opportunity to consult with counsel and select the type of proceedings.184 A blank waiver form is provided in Appendix L. To be tried by s cm , service members must further indicate whether they have consulted with counsel, that they understand their rights, and that they “voluntarily decided to trial by scm.”185 Such terminology indicates that, from the US Army’s standpoint, a waiver is needed due to the s c m ’s penal nature, albeit not a criminal one. In Middendorf v Henry186 the US Supreme Court decided that a sc m was not a ‘criminal prosecution’ for the purpose of the Sixth Amendment. In comparison with Canadian military law, the main feature of the US system seems to be that it offers a broader panoply of tools to commanders in maintaining discipline. It seems also that service members, when facing n j p s and s c m s, have a better awareness of the implications of their choice – where available – due to the availability of defence counsel services. In addition, the greatest benefit of accepting a n jp is that, in the worst case scenario, it would not result in a criminal conviction. On the other hand, service members who believe they might have a valid legal argument to raise in a court martial might be reluctant to ‘turn down’ a nj p or oppose a s cm as they can be exposed to a higher maximum punishment, not to mention the formal conviction. This ‘chilling effect’ can discourage service members from legitimately exercising their rights. With a system reflecting its British origin, Australia seems to have been recently influenced by the US experience. Depending on the rank of the accused, there are three levels of summary authorities.187 The punishments that can be imposed vary across levels and can include up to twenty-eight days of detention. Interestingly, within ‘minor punishments,’ confinement to ship or barracks is replaced by ‘restriction of privileges,’ which sets the basic parameters and gives flexibility to summary authorities to modulate the conditions under which it will be served.188 The decision is reduced in writing in the Record of Proceedings.189 The summary proceedings are recorded “by handwriting, by shorthand, or using a form of sound recording apparatus.”190

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Summary authorities’ decisions are automatically reviewed by a reviewing authority.191 Within thirty days of the results of that review, the individual can petition for review.192 If unsuccessful, he or she can apply for a further review by the c d f or a Service Chief.193 At first glance, that scheme is somewhat similar to the Canadian summary proceedings system or the American Summary CourtsMartial. But in addition to the ‘more traditional form’ of summary proceedings, Australia has instituted a lesser one for minor offences against specified sections allegedly committed by service members of junior ranks. Such an approach pursues the same objective as provincial diversion programs do. ‘Discipline officers’ can deal with those ‘disciplinary infringements’ for those service members who have elected that mode of disposition.194 Accordingly, the sanctions available to discipline officers are less severe. However, service members electing the discipline officer scheme must admit the infringements, otherwise discipline officers cannot have jurisdiction over the matter.195 In essence, Australia and the United States have tried to reduce the penal nature of the summary proceedings by creating a dual system in dealing with minor offences: one more disciplinary in nature and the other more formalized. Another hybrid approach – that could be qualified as ‘hybrid plus’ – consists of removing the penal nature during trial and increasing judicial control after. As part of the European Union, Ireland foresaw that it might face the same legal challenges as the United Kingdom did, in particular as both countries’ military justice systems have the same origins and share similarities.196 Like in the United Kingdom and New Zealand, there is an appeal to a judicial body.197 The Summary Court Martial is presided over by a judge sitting alone who re-hears the matter. On finding, the judge can confirm or quash the decision. On sentence, he or she can confirm, quash, or substitute any other punishment, providing it would have been within the powers of the officer of the summary trial. Here again, the individual can be represented by counsel. Of note, the right to appeal is given only to the convicted person and not to the State. In a sense, the Irish military summary proceedings system could have been included amongst the ‘Judicialization Approach’ group. But Ireland also reduced the penal nature of the summary proceedings. It removed the punishment of detention at that level. It clarified that it was no longer a ‘service tribunal,’ hence indicating the now purely

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disciplinary nature of the summary process.198 In addition, ordinary criminal law offences are left to court martial unless the Director of Military Prosecutions directs otherwise.199 To that extent, the Irish system could also have been characterized as being a member of the ‘Depenalization Approach’ group. Of all the foreign systems studied for this research, the Irish system seems to be at the forefront in terms of protecting individual soldiers’ rights. General Overview To summarize, there are reasonable alternatives available to the current legal scheme of Canadian military summary trial. There are two other domestic regimes which have struck a better balance between protecting individual rights and maintaining discipline. Police disciplinary processes show that even when facing non-penal consequences in an administrative process, an individual can be provided with greater procedural safeguards. The inmates disciplinary regime, analogous to summary trial in its intent to keep order in a unique context where tensions are high, has the benefit for individuals that it provides for counsel and a record of the proceedings, and even an independent decision-maker, when they face serious consequences. The other group of alternatives comes from foreign military summary proceedings. These can be divided along a paradigm line. In general, processes considered to be disciplinary provide fewer procedural safeguards, although they involve less adverse consequences for individuals. Conversely, processes characterized as ‘penal’ have more procedural steps to ensure compliance with legal rights, in particular by enhancing judicial oversight after initial hearing. Some countries have chosen one of these two options, while others have integrated both in their systems. Among the foreign jurisdictions studied, the one with the largest forces (United States) has the most commander-centric system. In comparison, those with small forces (Ireland, New Zealand) seem the most focused on individual legal rights. It is difficult to identify the multiple factors (culture, geography, politics, economy, history, civilian-­ military relationship) that could explain the differences. But it does not seem to be simply a matter of size. Countries with larger armed forces than Canada have moved to either a more judicialized system (UK) or a depenalized one (Germany, France). Australia, with forces comparable to the size of the Canadian Armed

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Forces, has chosen a hybrid system. There is a common trend, though: those systems either set a better delineation between disciplinary and criminal proceedings or offer greater protection to individual rights where there is no such delineation.

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5 Can Breaches Be Demonstrably Justified under Section 1?

“The summary trial violates the Charter but it could be justified under section 1.” For twenty years (1994–2014), this has been the official mantra. That assessment is based on scholarly work1 and on a legal opinion provided in 1997 during the review of military justice chaired by former Chief Justice Brian Dickson.2 No new official position would change that state of affairs until 2015, when Bill C-71 (followed by Bill C-77 in 2018) – both suggesting an entirely new approach – was tabled before Parliament. In the meantime, the right to a fair trial has evolved significantly in Canadian law. Initially, section 1 was used as a guideline to identify potential options of modification on various aspects of the summary proceedings to better sustain a potential constitutional challenge.3 More recently, commentators have suggested that, considering the evolution of law, summary trial breaches of the Charter cannot be saved under section 1.4 There are four aspects in which the Canadian summary trial system breaches the Charter: section 7 (right to counsel; absence of transcript), section 11(d) (trial fairness, impartiality, judicial independence), and section 15 (inequality of treatment between ranks). Can these breaches nevertheless be justified? Section 1 of the Charter reads as follows:

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1. The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.

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1. La Charte canadienne des droits et libertés garantit les droits et libertés qui y sont énoncés. Ils ne peuvent être restreints que par une règle de droit, dans des limites qui soient raisonnables et dont la ­justification puisse se démontrer dans le cadre d’une société libre et démocratique.

The method to determine if a Charter breach can nevertheless be justified in a “free and democratic society” is provided by the landmark decision of R v Oakes.5 In criminal matters, the Oakes test was recently applied by the Supreme Court in Carter v Canada (Attorney General)6 on prohibitions against physician-assisted dying, R v Safarzadeh‑Markhali7 on denying pre-sentence custody credit on sentencing, R v Lloyd8 and R v Nur9 on mandatory minimum sentences of imprisonment, R v Appulonappa10 on criminalizing persons helping migrants coming into Canada without valid documentation, R v Smith11 on the prohibition of non-dried forms of medical marihuana, and R v krj 12 on the benefit of lesser punishment. Once a breach is established, the party seeking to uphold the limitation – namely, the State – brings the evidence to establish justification on a balance of probabilities. In the context of Charter attacks on summary trials, no evidence has ever been brought by the State in a judicial setting. Nevertheless, as “justification does not always have to be supported by evidence, it may be demonstrated by the application of common sense and inferential reasoning.”13 Looking at legislation, case law, policy, doctrine, and data reported in jag Annual Reports, such evidence might be reasonably inferred. Simply put, the State “must show that the law has a pressing and substantial object and that the means chosen are proportional to that object.”14 Proportionality involves answering three questions: (1) Is there a rational connection between the limiting measure and the objective (rational connection)? (2) Does that measure impair the right in question as little as possible (minimal impairment)? (3) Are the salutary effects of the limiting measure outweighed by the deleterious effects (proportionate effects)? Courts are deferential towards the State in that regard. “Proportionality does not require perfection.”15

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Context plays a role, as courts are required “to examine the broader picture by ‘balanc[ing] the interests of society with those of individuals and groups.’”16 If we answer “yes” to all of these questions, the measure is justified. Concerning summary trials, the crux of the matter lies in the minimal impairment aspect.

S oci e ta l C o n c e r n P r e s s ing and S ubs tanti al Maintenance of a “high level of discipline in the special conditions of military life” is at the core of any modern military organization.17 It is part of the protection of national security.18 As it pertains to summary proceedings, the literature is consistent in determining that the first part of the Oakes test is met.19 Irrespective of the potential breach to the Charter, these objectives remain the same. Existence and Purpose of Military Justice The objectives pursued by the military justice system are drawn from legislation itself. By providing for an exception to the right to a jury trial “in the case of an offence under military law tried before a military tribunal,”20 the drafters implicitly recognized the existence of the system. The Criminal Code provides that nothing in the Code “affects any law relating to the government of the Canadian Forces,”21 hence recognizing the military justice system again. As to the purpose of military justice, regulations prescribe that both officers and noncommissioned members must “promote the welfare, efficiency and good discipline” of their subordinates22 and “be acquainted with, observe and enforce the National Defence Act … the qr&o and all other regulations, rules, orders and instructions that pertain to the performance of [their] duties.”23 Recent amendments enunciating the fundamental purposes of sentencing by service tribunals illustrate the dual nature of military justice: to “contribute to respect for the law and the maintenance of a just, peaceful and safe society” – like its civilian counterpart – and to “promote the operational effectiveness of the Canadian Forces by contributing to the maintenance of discipline, efficiency and morale” – which is a unique role.24 This dual nature is also reflected in the list of sentencing objectives of service tribunals, with some analogous to the civilian justice system, others specific to the military context.25 Legislation reflects recognition

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by higher courts of the necessity of a specialized body of law,26 illustrated by the quote from Lamer CJ in Généreux,27 yet of a dual nature as confirmed by Cromwell J in Moriarity.28 The military justice review of 1997 made reference to the necessity of “a military justice which deals expeditiously, decisively and yet fairly with breaches of [the] Code of Service Discipline.”29 This view is also found in the first independent review of 2003, where former Chief Justice Lamer explains that his recommendations have to balance Canadian norms and values “with the unique needs of the military for discipline, efficiency and portability.”30 That view is also reflected in military justice training doctrine, which further defines the threefold purpose of discipline in a military context as follows: “a) ensuring members carry out assigned orders in the face of danger; b) controlling the armed forces so that it does not abuse its power; and c) assisting in assimilating a recruit to the institutional values of the military.”31 As military forces are designed to protect national interests not only within national territory but also abroad, the purpose of military justice can also be viewed from an international standpoint. In United States v Burns, quoting Dickson CJ in a previous decision, the Supreme Court stated that “Canada’s international human rights obligations should inform … the interpretation of what can constitute pressing and substantial s. 1 objectives which may justify restrictions upon those rights.”32 In international humanitarian law (i h l ) – which pertains to the conditions under which the use of military forces may be lawful, in particular to minimize harm to non-combatants – there is a positive obligation imposed on States to subject their forces “to an internal disciplinary system which, ‘inter alia’, shall enforce compliance with the rules of international law applicable in armed conflict.”33 Military commanders have a duty “to prevent and, where necessary, to suppress and report to competent authorities” breaches to i h l committed by their subordinates “and, where appropriate, to initiate disciplinary or penal action against violators thereof.”34 Adherence to military discipline is fundamental to prisoner of war (pow) status, not only for national armed forces but also for militias, volunteer corps, and organized resistance movements, providing they meet four essentials conditions, including “being commanded by a person responsible for his subordinates” and “conducting their operations in accordance with the laws and customs of war.”35 Therefore,

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not only is military justice necessary to maintain discipline so that the Canadian Armed Forces remain an effective fighting force under civilian control domestically, it is also required to meet Canada’s international obligations to protect combatants and non-combatants alike.36 The Purpose of Summary Trial The National Defence Act is silent as it pertains to the purpose of summary proceedings in Canadian military law. We have to rely on regulations which prescribe that: The purpose of summary proceedings is to provide prompt but fair justice in respect of minor service offences and to contribute to the maintenance of military discipline and efficiency, in Canada and abroad, in time of peace or armed conflict.37 This rather brief yet precise legal articulation illustrates that summary proceedings fulfill not only organizational but also individual needs. In R v Grant, Justice Létourneau explained that accused service members may prefer a summary trial over a court martial as the latter has greater punishment powers and attracts more publicity than the former.38 In addition, as summary trials occur almost invariably before courts martial do, it is an opportunity for the individual soldier to swiftly “fall on the sword, turn the page and carry on.” In short, summary proceedings have been developed to fulfill the purpose of the armed forces in maintaining discipline by meeting six characteristics: (1) promptness, (2) fairness, (3) portability, (4) simplicity, (5) consistency, and (6) efficiency. From the organizational point of view, none has precedence over the others and all must be met at once. There are also benefits for accused service members in choosing summary proceedings: (1) they are faster; (2) they attract less publicity; and (3) the punishments that can be imposed are usually less severe. As summarized by military training doctrine, “a common thread throughout the long history of the military justice system has been the requirement for a trial system that is more expeditious and less complicated than the courts found in the civilian system.” 39 Nevertheless, it is also designed to be fair, in particular as it pertains to punishments imposed.40 On balance, any court would likely agree that the expeditious maintenance of discipline in the Canadian Armed Forces through summary

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proceedings relates to societal concerns which are pressing and substantial. The opposite would eventually lead to less efficient control over the Canadian Armed Forces, which would create a risk to the constitutional order of the State and to civilian lives in armed conflicts.

T h e P ro p o rt io nali ty Test The Rational Link The first step is to determine whether there is a rational connection between the limits imposed by the law and its purpose. To satisfy the test, “the government need only show that there is a causal connection between the infringement and the benefit sought ‘on the basis of reason or logic.’”41 “A rational connection, not a complete rational correspondence, is all this branch of Oakes requires.”42 Here, the question is raised for each of the main four potential breaches to the Charter. In order for the c a f to be swift in maintaining discipline, is it logical: (1) to rely on non-independent officers to preside over the proceedings; (2) to virtually deny legal representation by counsel at hearing; (3) to not take the transcript of the proceedings; and (4) to deal with service members unequally according to their ranks? In the context of judicial independence of the general court martial as it stood in the early 1990s, Chief Justice Lamer expressed the view in Généreux that he could admit that there might well be a rational connection between the challenged structure of military penal law at the time and the maintenance of discipline in the forces.43 More specifically, on summary proceedings, literature has generally established a similar connection. In essence, summary trial allows for a speedy disposition in disciplinary matters, irrespective of where the Canadian Armed Forces are stationed or deployed.44 For these authors, it would evidently defeat that purpose if we were to convene a court martial presided over by a judge with complete representation by lawyers each time an offence – including a minor one – is allegedly committed. In addition, the necessary judicial resources might not be readily available in certain operational contexts. In an essay written in 2010, however, LeSieur argues that summary proceedings are not justified under section 1, as the Oakes test stops at the rational connection part. For him, there is no rational connection between the punishment of soldiers by infringement of their rights and the maintenance of discipline.45 Such infringement is not in line

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with modern conceptions of military discipline, which are more focused on “positive informal values such as trust, confidence, esprit de corps, and morale.”46 Actually, he asserts that, quite to the contrary, fostering fairness is compatible with modern military disciplinary needs – so much so that the “Charter s. 11(d) is squarely fitted with the special conditions of 21st century military life.”47 In other words, opposing fairness and the maintenance of discipline would be counterproductive. The negative perception of unfairness by the troops would decrease their trust towards their chain of command and, ultimately, the unit’s cohesion. This is even more the case where junior and senior ranks are treated differently. Although military organizations are by nature hierarchical, distinctions must be based only on operational requirements; irrational or unjustifiable privileges are detrimental to mutual respect among service members of all ranks.48 Nevertheless, in light of Carter, k r j , and Appulonappa, I believe that a court would likely take a deferential approach towards the government’s position and conclude that there is a rational connection between limitations and the purpose of summary trial. A court would probably find that the need to maintain discipline promptly and simply entails that some of the procedural features of courts martial should be absent. On the other hand, there is a chance that a court might adhere to the model presented in caf doctrine documentation, where all service members are considered professionals49 governed by a blend of collective and self-discipline based on positive values such as “pride in a great service, a belief in essential justice, and the willing obedience that is given to superior character, skill, education and knowledge” (emphasis added).50 If a court concluded, like LeSieur, that discipline and justice are interdependent and that reducing the latter would in fact weaken the former, it would then find no rational connection between the limits on the right to a fair trial and the maintenance of discipline. The Minimal Impairment Are there other reasonable ways to meet this legislative objective with less impact on rights? Or, to use the Supreme Court’s expression in Carter, is the limit on the right “reasonably tailored to the objective”?51 This is where the matter lies in almost all cases involving the Oakes test.52 Professor Stuart’s review of jurisprudence suggests that after some inconsistency, case law from the Supreme Court seems to

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“have settled on the minimum on whether the measure restricts as little as reasonably possible.”53 In Alberta v Hutterian Brethren of Wilson Colony, the Supreme Court concluded that compelling a religious group against their beliefs to have their photo taken infringed freedom of religion. However, the infringement was justified under section 1. There was no evidence pertaining to an alternative measure which would substantially satisfy the government’s objective while allowing the claimants to avoid being photographed. The Court determined that the alternative proposed by the claimant compromised the government’s objective and was therefore not appropriate for consideration at that stage. Summarizing the minimum impairment test, Chief Justice McLachlin stated: While the government is entitled to deference in formulating its objective, that deference is not blind or absolute. The test at the minimum impairment stage is whether there is an alternative, less drastic means of achieving the objective in a real and substantial manner.54 This approach was confirmed in Canada (Attorney General) v Bedford where the Supreme Court stated that “‘[m]inimal impairment’ asks whether the legislature could have designed a law that infringes rights to a lesser extent; it considers the legislature’s reasonable alternatives.”55 More specifically as it pertains to the fairness of proceedings exposing someone to serious impact on their liberty, the Supreme Court in Charkaoui 2007 stated that although “Parliament is not required to use the perfect, or least restrictive alternative to achieve its objective,”56 it could nevertheless fail to meet the ‘minimum impairment’ test if other less intrusive “mechanisms developed in Canada and abroad illustrate that the government can do more to protect the individual.”57 The Supreme Court gives the State a certain level of deference, “particularly on complex social issues where the legislature may be better positioned than the courts to choose among a range of alternatives.”58 Yet “the analysis at this stage is meant to ensure that the deprivation of Charter rights is confined to what is reasonably necessary to achieve the state’s object.”59 As it pertains to Canadian Armed Forces summary trials, the issue is: could Parliament have designed a less drastic means than the current structure of summary trials in Canadian military justice to achieve the objective of maintaining discipline at unit level in a real

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and substantial manner, considering the reasonable alternatives in Canada and abroad? I will answer this question for each of the Charter breaches previously identified, using alternatives previously described. Alternatives can be divided according to the following trends: an increase of the procedural safeguards, a reduction of the penal consequences, or a combination thereof. There are less drastic options to non-independent officers having jurisdiction over offences – some against ordinary criminal law – and imposing ‘true penal consequences.’ Military summary jurisdiction can be reduced to disciplinary offences only. Ordinary criminal offences can be left to courts martial, as in United States or Ireland. Those offences could also be left to civilian justice, as in France or Germany. In either case, ordinary criminal offences are under the jurisdiction of judges whose independence is less up for debate. At the same time, the penal nature and consequences of summary proceedings could be reduced by replacing detention with a less restrictive deprivation of liberty. This has occurred in completely disciplinary systems, such as the French system where the maximum punishment is ‘arrest’ (arrêts) up to sixty days (forty by regulations) or the German one which can impose ‘disciplinary confinement’ up to twenty-one days. Replacing detention has also been done in some systems by making a clearer delineation between penal and extrajudicial processes at summary level. The US system of njp can impose ‘restriction’ or ‘correctional custody.’ The Australian ‘disciplinary officers’ system can impose even lesser punishments. However, those extra-judicial processes have limited jurisdiction in terms of the offences and the rank of the accused. In systems where jurisdiction over some ordinary criminal offences and the punishment of detention are kept at summary level, judicial oversight after the hearing has been increased. In the United Kingdom and New Zealand, it has taken the form a universal right of appeal before a ‘Summary Appeal Court,’ a judicial body. The composition and the process of that judicial body can vary. It might consist of three persons conducting the appeal by the way of re-hearing the case, as in the UK. It could also, like in New Zealand, be an appeal before a court consisting of a judge sitting alone reviewing the initial hearing and “who could order a re-trial if the Court finds that such a re-trial is required for the maintenance of discipline.”60 In either format, judicial independence is not provided at the hearing level but rather in the system as a whole.

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As in Ireland, the two approaches can be combined. Even where there is no distinction between criminal and disciplinary offences at the summary level, the most stringent punishments in terms of deprivation of liberty (‘detention’; ‘confinement’) can be removed from a non-judicial process. At the same time, oversight can be increased by having, after initial review by a superior officer, the possibility of an appeal to a judicial body, called in Ireland the ‘Summary Court Martial.’ To keep the relatively informal nature of the summary proceedings, there are less drastic options than virtually denying legal representation during a hearing. For example, legal assistance can be increased so that accused persons can have access to meaningful advice relatively easily both prior to and after the hearing. Akin to what the US Army Trial Defence Service does in counselling service members on n j p s, lawyers may assist in reviewing the investigation report, identifying issues, raising potential questions for witnesses, and preparing submissions.61 Legal assistance can also be made more readily available after the hearing in providing preparation support to service members challenging its outcome through a review – like in the United States Army62 – or by providing complete legal representation during an appeal – like in Ireland, New Zealand, and the United Kingdom.63 A formal reporting system – with a court reporter – at the summary level would be against its essence. Such a system requires time and human resources that are difficult to gather in an operational theatre. Yet, there are less drastic options than having no transcript of the summary trial. In New Zealand the rule is for the disciplinary officer to ensure the audio recording of the proceedings unless it is not reasonably practicable, in which case a detailed written summary must be made.64 In Canadian police and inmate disciplinary processes, witnesses giving evidence during a hearing are recorded. With the technology currently available, audio recording of the proceedings as a standard operating procedure does not seem to create an administrative burden. Quite the contrary, having the audio recording of the proceedings avoids endless debates about what was said. Combined with electronic means of communication, it also facilitates the review process by overcoming geographical distances. Finally, there are less drastic options than having a system where higher ranks benefit from more procedural safeguards and are less exposed to penal consequences than lower ranks. Like Canada, other jurisdictions make distinctions between military ranks at the summary level. However, there are important differences.

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In the common law systems studied, summary jurisdiction does not go beyond a certain point in the military hierarchy. But in comparison with Canada, jurisdiction over higher ranks is generally broader. For example, officers cannot be tried by US Summary Court Martial but only through njps, providing a commander’s authority to deal with “military personnel of any rank within the unit” has not been otherwise limited by superior authority.65 In United Kingdom, a commanding officer has jurisdiction over “an officer of or below the rank of commander, lieutenant-colonel or wing commander” and “a person of or below the rank or rate of warrant officer.”66 In Australia, a superior summary authority can deal with “an officer who is 2 or more ranks junior to him or her, being an officer of or below the rank of rear admiral, major‑general or air vice‑marshal,”67 which means a captain (Navy) or a colonel (Army/Air Force). New Zealand has similar rules.68 Only in Ireland – similarly to Canada – does summary jurisdiction stop at the rank of commandant (major) or lieutenant-commander.69 In terms of punishments, common law systems also make distinctions based on rank. However, they involve fewer disparities. For example, in the United States njp system, officers and warrant officers can be sentenced to ‘arrest in quarters’ (comparable to confinement to barracks) for up to thirty days.70 In United Kingdom, only officers can have ‘forfeiture of seniority’71 imposed, and only warrant officers and noncommissioned officers can be sentenced to reduction in rank or ‘disrating.’72 Detention can be imposed only on “leading rate (Navy), lance corporal or lance bombardier (British Army) or corporal (raf).”73 That is similar to New Zealand, where officers and warrant officers can be sentenced to a stay of seniority up to twelve months but are exposed to neither reduction in rank nor detention.74 In Ireland, there are also fewer disparities between ranks, officers and warrant officers being exposed, in addition to fine, reprimand, and severe reprimand, to reduction of pay for one year or deferral for one year of the next pay increment.75 Only Australia is very similar to Canada, as warrant officers and officers can only be sentenced to fine, reprimand, or severe reprimand.76 The French system goes further in reducing the gap. It does not distinguish between ranks in terms of summary jurisdiction over offences; all ranks are subject to disciplinary sanctions.77 What differs is the level of authority required to impose those sanctions. After the two first levels of authority, while non-commissioned members can be dealt with by a third level of authority, warrant officers and officers

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– including generals – must be dealt with by the Minister of Defence.78 At that last level, sanctions are similar. They are exposed to the same length of potential confinement and they both can be given a ministerial severe reprimand (blâme du ministre).79 In sum, there are less drastic options than having a system presided over by non-independent officers, with no legal representation during hearing, no transcript of the proceedings, and which deals with higher ranks more leniently for no apparent reason. There are alternatives reasonably available to minimally reduce the impairment of rights. In short, the criminal nature of summary trials could be removed, review could become an appeal before a court, or both. In Canadian law, other disciplinary processes exposing individuals to serious negative impact do better in providing procedural safeguards without compromising the promptness, portability, or simplicity of the proceedings. Moreover, when we compare with foreign jurisdictions, even more alternatives are reasonably available and appropriate. Those alternatives are drawn from military jurisdictions with which Canada shares common roots. In those countries, the right to a fair trial has generally the same meaning. Those other ‘free and democratic’ societies have found ways to better protect service members’ rights as they pertain to military summary proceedings. Are Canadian society and its military forces so unique that none of the alternatives are applicable here? Is the current scheme the very least minimal reasonably available means to achieve the objective in a real and substantial manner? The answer is obvious. The Proportionate Effect Let us say a court is convinced that there is a rational connection between reducing service members’ rights and maintenance of discipline. Let us also say that it believes the current scheme constitutes the least minimum impairment on such rights. The last hurdle of the proportionality test is to “weigh the negative impact of the law on people’s rights against the beneficial impact of the law in terms of achieving its goal for the greater public good.”80 In the recent case of krj , the Supreme Court stated that the proportionality of effects “permits courts to address the essence of the proportionality enquiry at the heart of s. 1.”81 In the military justice context, if a trial does not meet the right to a fair trial, it “will only pass the second arm of the proportionality test in Oakes in the most

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extraordinary of circumstances” such as war or insurrection.82 But since then, the Supreme Court has recognized that “depending on the importance of the legislative goal and the nature of the s. 7 infringement in a particular case, the possibility that the government could establish that a s. 7 violation is justified under s. 1 of the Charter cannot be discounted.”83 But is that not the ultimate goal of that system: to operate in extraordinary times, such as war, outbreak of war, or insurrection? In that sense, should we not accept that we cannot protect legal rights as much as we should? Alternatively, could we have a two-tiered system: one for ‘peacetime,’ ensuring legal rights as much as we can, and one for ‘wartime,’ where compliance with legal rights is, let us say, more ‘flexible’? This is a matter of degree. Having a summary proceedings system is indeed necessary in preparing forces to face such great perils. In Généreux, Chief Justice Lamer referred to a “state of readiness.”84 In the United Kingdom decision of Boyd, Lord Bingham stated that maintenance of discipline is important during both peace and wartime.85 Waiting until times of war or national emergency to amend such a system would be counter-effective and unfair. It could be counter-­ effective because a substantial and sudden change to the legal conditions under which troops have trained might impair their military effectiveness. It could be unfair because actors unfamiliar with new rules might apply them improperly. For example, during the two World Wars, millions of individuals joined the Allied forces eventually, many through conscription. In a short period of time, citizens who were not acquainted with military rules and ethos had to comply with the exigencies of military life. In addition, jurists not necessarily acquainted with military law had to operate the system. Although methodical research has revealed that military authorities were more lenient and humane than what is generally perceived,86 war stories of veterans having been abused triggered – rightly or wrongly – major reform movements after conflicts.87 In addition, sometimes the difference between ‘wartime’ and ‘a period of normality’ is unclear, which adds to the complexity of developing a two-tiered system. For a military force to effectively respond to a war, its military justice system must be designed to respond and operate as if there were such a war. Having said that, the current limitations on legal rights by the summary proceedings system are disproportionate to the objective of maintaining military discipline. This is the result of adhering to a

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traditional dichotomy wherein efficient maintenance of discipline and justice are considered opposed concepts, such that one cannot be promoted without being necessarily detrimental to the other. Arguably, this may well have been true in the past where social groups were more differentiated, more impermeable to social movement, and more characterized by hierarchy and rank in both civilian and military contexts. At that time, a more traditional meaning of discipline – a punitive sense – may have been necessary for one group to exercise effective control over the others. In modern times, however, this seems disproportionate, as all citizens serving in the c a f are committed to the rule of law, a characteristic considered essential to ensure that the Canadian Armed Forces “remain an effective and efficient armed force that reflects Canadian values and makes Canadians proud of its military force’s achievements around the world.”88

T he W a iv e r o f R ig h t s duri ng the S ummary T r ia l P roces s Even if summary trial breaches certain legal rights of the Charter, can it be said that by electing it accused service members have waived those constitutional rights? As suggested before a parliamentary committee during the study of Bill C-15, are service members fully informed in doing so?89 Conditions of Waiver For a waiver to be valid, it must be “clear and unequivocal that the person is waiving the procedural safeguard and is doing so with full knowledge of the rights the procedure was enacted to protect and of the effect the waiver will have on those rights in the process.”90 In the context of the right to counsel by a detained person, before waiving this right, an accused “must pass some form of ‘awareness of the consequences’ test.”91 To waive the right to a fair trial in a provincial regulatory context, some conditions must be met: (1) individuals cannot be imprisoned; (2) the offences are of a regulatory nature; (3) under the procedural scheme, individuals are “fully informed of the consequences of failing to act,” in particular by a note to that effect on the ticket; and (4) there are other safeguards to prevent potential injustices (such as the

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requirement for conviction to be entered only when an independent judge is satisfied conditions are met, or the possibility to set aside the decision afterwards).92 According to Stuart, “when the Supreme Court has characterized the issue as one of waiver, it has repeatedly demonstrated its reluctance to find that there has been a waiver of a Charter right.”93 Validity of Waiver in the Summary Trial Process When a charge has been laid, an election is offered and the accused person is given at least twenty-four hours and can consult, at no expense, a military defence counsel.94 In practice, the assisting officer should ideally make the accused aware of that option. Under the Director of Defence Counsel Services’ (d d c s ) supervision,95 legal advice could be provided with respect to the making of an election96 and more generally on matters relating to summary trials:97 According to caf training doctrine, the facts that (1) the accused was offered an opportunity to consult with defence counsel; (2) the accused has his/ her election recorded on the Record of Disciplinary Proceedings (r d p ); and (3) the presiding officer is required to indicate (on the rdp) that an opportunity to consult legal counsel has been provided to an accused, are all designed to ensure that the presiding officer has confirmed the accused is making an informed choice in opting to proceed by way of summary trial.98 Military authorities and ojag in particular have always publicly equated the election to summary trial in the above-described circumstances as a valid waiver. In the jag Annual Report of 2012– 2013, the relatively low number of elections for trial by court martial (39 times out of the 415 cases where an election was offered, or 9.4 percent) was presented “to be indicative of the perceived fairness of the summary trial process.”99 The following reporting year, however, the proportion of accused members who elected court martial increased to 16.34 percent (66 times out of the 404 cases). The Report indicated that “further analysis will be required.”100 In the jag Annual Report of 2014–2015, based on revised statistics for the three preceding reports, the trend was confirmed. That report indicated that “consideration will be given as to what mechanisms should be used during the upcoming reporting period to obtain clarity on this continued increase.”101 In 2015–16, the trend accelerated, while the number of summary trials conducted represents half that of

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the years before.102 In 2016–17,103 the proportion of those electing court martial reached a peak, representing approximately 24 percent of the elections offered. In 2017–18, it was the first time the trend reversed, with a proportion back to 20.56 percent.104 Over the last six annual reports, the proportion of those accused service members who elected court martial when offered has gone from about 9 percent to just over 20 percent with a high of 24.2 percent in 2016–17. The current election process does not equate to a valid waiver.105 The conditions for a waiver of the right to a fair trial to be valid are not met. On the contrary, when election is offered, service members are clearly exposed to ‘true penal consequences,’ particularly detention. In addition, in the military context, the imbalance between subordinates and their chain-of-command increases the risk that the accused’s choice might be influenced – rightly or wrongly – by fear of a negative impact on their career.106 The record of disciplinary proceedings does not expressly indicate to service members that by electing summary trial, they effectively waive their right to a fair and public hearing by an independent and impartial tribunal.107 Assisting officers are not lawyers, and are not necessarily knowledgeable of the potential legal implications of an election. Summary trials are not presided over by independent judges who can effectively prevent potential injustices. That is not to say that that presiding officers cannot prevent injustices, should they see one. But by regulations their duty in terms of election is simply to “confirm with the assisting officer that he or she has ensured that the accused was made aware”108 of the “nature and gravity of any offence with which the accused has been charged”109 and “differences between trial by court martial and trial by summary trial.”110 Relying on the accused service member’s writing their confirmation in the Record of Disciplinary Proceedings,111 presiding officers are able to ensure that he or she had an opportunity to consult legal counsel, but cannot necessarily determine whether the accused effectively consulted. Indeed, in 2006–07, only 25 percent of those who were offered the election to court martial contacted ddcs to seek legal advice with regard to their election.112 Subsequent jag reports do not provide sufficient data to confirm that proportion. Even when such legal advice is sought, its extent is, in practice, limited. In my experience, such legal advice is invariably provided by telephone, as most of the time the accused and the legal counsel are not in the same location, most d c s counsels being located in the National Capital Region. It is an advisory service “typically of a

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general nature only.”113 In comparison with the services offered pertaining to courts martial or to ‘show cause hearings’ (on pre-trial custody), counsel is not ‘assigned’ to the individual requesting the advice. Also, those who contact a defence counsel do not often have the copy of the investigation report with them at the time of the call, despite the fact that regulations provide that such information must be made available in sufficient time to permit the accused to consider it.114 When they do have the report of investigation, they usually cannot communicate a copy of it to the defence counsel due to its level of classification. Therefore, the defence counsel has only an indirect view of the disclosure materials. To provide complete legal advice in making an election, defence counsel would have to open a file, request all information made available to the accused, review it, and provide a written legal opinion including recommendations as to the mode of trial. However, the current level of resources allocated to d cs , not to mention logistical and geographical challenges, do not allow such a level of services at the moment. Moreover, the particular nature of the military justice system makes legal advice difficult from a professional standpoint. To the question “what if I chose court martial?” defence counsel informs accused persons that once the military prosecutor has the file on his or her desk, one of the options is to add or modify charges, with or without additional investigation. When asked “what kind of charge could be added?” a defence counsel would likely reply “I do not know,” as he or she is not in the prosecution’s position. Any attempt to identify potential charges is speculative. Besides, such uncertainty indirectly puts pressure on the accused to choose to be tried by summary trial. For example, someone charged with conduct to the prejudice of good order and discipline115 – with a maximum punishment of dismissal – could end up, after election, charged with disobedience of a lawful command116 with a maximum punishment of life imprisonment, as essential elements of both offences could often be drawn from the same set of facts. However, offences punishable by imprisonment for life can only be tried by a general court martial (gcm) before a judge and a panel of five service members unless the prosecutor consents to the accused being tried by standing court martial.117 Therefore, by electing court martial in those circumstances, not only would the accused be exposed to greater peril, they would also find their proceedings directly elevated to a gcm. That is why, as a matter of practice, legal advice by dcs is limited to information of a general

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nature on the differences between summary trial and court martial. In the current scheme, the more particularized the legal advice is – notably on recommending a specific course of action as to what the individual should do next – the more the defence counsel runs the risk of providing legal advice based neither on an accurate set of facts nor on a correct appreciation of what is really at stake. A few years ago, the Director of Defence Counsel Services (ddcs) identified areas of concern which further diminish the probability that the election process can be considered as a valid waiver of the right to a fair trial. In a recent report to the jag, the ddcs first acknowledged the importance of the right to elect court martial, describing it as a “safety valve within the system.”118 Nevertheless, he described “barriers to its practical exercise.” Accused persons are frequently pressured, directly or indirectly, to not elect court martial.119 This was echoed in the LeSage Report, describing that “a member on deployment who elects court martial will frequently be immediately ‘repatted’ back to Canada.”120 Where charges are preferred by the Director of Military Prosecutions (dmp), this occurs months or even years after the initial election, and sometimes with different charges, making it difficult for both the accused and counsel to know exactly the case to be met.121 Lastly, many accused persons seem to have not been provided with an election where, according to the d d c s , it would have been required.122 By contrast, New Zealand has created the following offence to discourage such a trend: “Every person subject to this Act commits an offence who influences or attempts to influence, by threats or bribes or other improper means, an election under section 117D or 117M or a decision concerning the withdrawal of an election made under either of those sections.”123 In sum, having an opportunity to contact, or even having contacted, a defence counsel in the current summary proceedings scheme does not amount to a clear and unequivocal waiver by an accused service member fully aware of the consequences of the election. The only way it could be concluded that the accused has validly waived the right to a fair trial is where facts clearly establish that the accused had been provided complete legal advice based on full disclosure after charges were laid with total absence of any indicia suggesting pressure from the chain of command in electing summary trial.

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6 Reform Proposals

“If you see a problem, fix it. Don’t do it alone, seek help. Otherwise, live with it.” If military life taught me one thing, it is this simple leadership rule. In a government context, fixing problems takes an interesting twist. First, political masters have the power. But they do not always know what to do or how to do it. Their time is short. Therefore, law reformers need to be concise, clear, and concrete in recommending changes. Second, despite its will, resources, and interests, the State has its own inertia. A certain finesse is required to prompt action from the State. If too much is sought, the State will likely oppose the action as impractical. If too little is sought, the State will likely oppose the request on the basis that it is not worthwhile. In either case, the requested action will not move forward. The key is to capture the State’s interest by proposing a balanced mixture of reasonably feasible measures and more challenging tasks relevant for it – much like when a teacher wants to stimulate learning in a student. Change in law is hard. Change in military law is harder. Both legal and military institutions are conservative by nature. This has the virtue of providing stability to ensure that the constitutional order will not easily be threatened on a whim. The other side of the coin, though, is that those institutions are sometimes oblivious to or complacent about the need for change. But as suggested by Joseph W. Bishop concerning the history of the US military justice system, military law is far from being static or monolithic.1 On the contrary, it evolves, sometimes in reaction to historical events and social changes but often on its own initiative, although more discretely and incrementally.

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There is a gap between what institutions and the general public perceive as to the degree, nature, and pace of change needed in military law. Perceptions are influenced by popular culture that often contains misrepresentations.2 For example, I stopped counting, when I was a legal officer, how many times I heard the question: “Is it like A Few Good Men or the jag television show?” While the public’s interest in military affairs is high, their knowledge is low, even wrong. To paraphrase Bishop, to avoid military law reform “based on emotion and intuition, rather than experience or research,”3 military law must first be objectively studied, analyzed, and clearly explained for the general public. That is my primary intent with this book. This is not the only challenge. Military law is so specialized that only a few government officials, professionals, and academics could contribute to any in-depth reflection. Among specialists, there are those who are close to political power and those who are not. Those in the first group have the advantage of access to power – useful for action and implementation – along with the risk of being complacent about it. The latter group have the advantage of distance – useful for reflection – combined with the risk of having no impact, losing knowledge, or being overly critical. Bottom line, if there is no dialogue among those specialists, what needs to be done is not done or is done wrongly. As recommended by Eugene R. Fidell, military organizations must establish a periodic, even continuous, evaluation process, looking at the militaries in analogous jurisdictions as an “opportunity to know and potentially learn from the experience of other democratic countries in the administration of military justice.”4 Indeed, within departments, there are teams whose work is precisely to survey legal developments, look at the best practices in different jurisdictions, and recommend changes to their political masters. Within those teams, debate is lively, even fierce. But once a certain course of action is taken, which may be driven by purely political considerations, a ‘party line’ is adopted, for better or for worse. Aware of this dynamic, the lawmakers of the nda in 1998 provided for external reviews conducted on a periodic basis. Those reviews have the benefit of getting the government to respond to recommendations made. But since 1998, only two external reviews have occurred. Outside the government apparatus, there are think tanks, pressure groups, associations, commentators, and academics who can advocate for

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change, sometimes with a particular agenda. Law reform commissions – when they exist – and law societies can also, in the public interest, contribute to the discussion. In Canadian military law, however, the field is again so specialized and the actors so few that meaningful external contributions of a scholarly nature are scarce. Having the benefit of transitioning from military to civilian life, from being a legal officer to a civilian law practitioner, I had the great privilege of having both insight into and distance from the institution while writing this book. I perceived the virtues and vices of the military justice summary trial system. I could have limited the purpose of my work by taking an intellectually ‘safer’ approach, by simply explaining what the characteristics of the system are. However, as a former officer and a member of the bar, I consider it my duty to contribute, by legitimate means, to improving a system that I believe is essential to upholding the Rule of Law in a specialized society, facing unique challenges, here and abroad. But in seeking reform, I am mindful of not adopting a general approach. Between civilian and military justice, I do not believe that there must necessarily be equal treatment.5 As put by the late Chief Justice Thomas Bingham of the UK Supreme Court: “The laws of the land should apply equally to all, save to the extent that objective differences justify differentiation.”6 In my view, treating civilians and service members the same would give a false or distorted sense of fairness. On the other hand, in promoting fairness in a military environment, I strongly believe in equity of treatment for service members – giving them what they need – in comparison with civilians. This last chapter recommends options for reform. My recommendations are based on the state of law as it is at the moment of writing, in the first half of 2019, and not as it might be modified in the future by legislation currently before Parliament and the regulations that might be promulgated with it. The proposed changes are primarily focused at what the system needs to successfully sustain or even avoid a constitutional challenge. Mindful of the institutional resistance to change, I first want to dissipate that resistance by recommending what I perceive to be the beneficial impact of those changes from a caf point of view: legal stability. But I also go beyond this in seeking improvements for the summary trial system generally speaking. There are indeed good policy reasons “to strive to offer a better system than merely that which

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cannot be constitutionally denied.”7 As put by former jag MGen Blaise Cathcart: Moreover, the military justice system must always fiercely promote and protect the very democratic values and the rule of law that our men and women in uniform willingly put themselves in harm’s way and are willing to die for.8 By joining the c a f, Canadian citizens have voluntarily decided to accept the additional obligations and risks associated with military life. Through training and with optimal resources, they overcome their natural fears to carry on with the mission, often in dire circumstances. In doing so, service members obey lawful orders from superior officers whom they trust. This is not trivial; soldiers’ trust in the chain of command of an armed forces is one of the primary targets of an opposing force. This is especially true in this era of information, characterized by increasing misinformation and disinformation. Canadian citizens also adhere to the profession of arms’ code of conduct, which is a reflection of Canadian values and legal norms, in particular the rule of law. Besides, they are not entitled to be represented by an association.9 Indeed, they are not in an ‘employeremployee’ relationship but in a ‘service to the Crown’ one. Having said that, this unique relationship is not a carte blanche to water down their basic legal rights: quite the contrary. The least we can do for those men and women who serve and protect their country is to foster the protection of their rights when facing allegations of misconduct. Ensuring the fairness of the military justice system contributes to maintaining good civil-military relations, a prerequisite for democracies to win wars.10 When it has confidence in the military justice system, the public is more likely to support the armed forces.11 Before making recommendations, a word on Bill C-77, entitled “An Act to amend the National Defence Act and to make related and consequential amendments to other Acts,”12 the most recent legislative attempt initiated by the Canadian government to reform the summary trial system. Bill C-77 is the new iteration of a previous initiative, Bill C-71, which died on the Order Paper when the last federal election was called.13 Bill C-71 represented a substantial move towards depenalization of the summary trial system. Bill C-77 goes even further.

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B il l C - 77 Description A large portion of Bill C-77 will replicate the effects of the Canadian Victims Bill of Rights14 in military justice. Although legitimate, that aspect will not be studied here. Another main feature of Bill C-77 is to entirely reform the summary trial system. It abandons the system’s criminal and penal aspects by changing the terminology and by creating the new concept of a ‘service infraction,’15 which would no longer be considered an offence.16 ‘Summary trials’ would be restyled as ‘summary hearings.’17 The time limitation period for commencing summary proceedings would be reduced from one year to six months from the commission of the service infraction.18 Summary hearings would no longer be considered ‘service tribunals.’ Determinations at summary hearings would no longer be ‘guilty’ or ‘not guilty’ findings or convictions, but instead findings ‘that a person has committed one or more service infractions.’19 Those determinations would not be based on the criminal standard of proof (i.e., beyond a reasonable doubt), but rather on the lower standard of the balance of probabilities (i.e., more likely than not).20 ‘Punishments’ would be replaced by ‘sanctions’ and detention would be removed from the list of available sanctions. Reduction in rank would become the new maximum sanction that could be imposed at the summary level.21 The new scheme would reduce rankbased disparity by exposing both officers and non-commissioned members to similar sanctions, providing that the accused person is at least one rank below the rank of the presiding officer.22 Bill C‑77 varies the available sanction powers depending on the rank and status of the presiding officer at the summary hearing, with superior commanders having the full panoply of sanctions, commanding officers having reduced powers, and delegated officers having only the power to impose ‘deprivation of pay’ for seven days or less or to impose ‘minor sanctions.’23 Bill C-77 also reduces the force of res judicata of the summary hearing. Indeed, it provides that a summary hearing would not preclude charging and trying the same person before a court concerning an offence arising from the same event, regardless of whether or not the person was found to have committed the service infraction at the summary hearing.24 However, if a person is tried in respect of an

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‘offence’ by a court (civil, martial, or foreign), no summary hearing could be conducted in respect of a service infraction arising from the same facts.25 Bill C-77 provides, similarly to current rules applicable to summary trial reviews, that summary hearings’ decisions and sanctions could be quashed, modified, commuted, substituted, or – in the ‘worst’ case scenario from an individual’s perspective – confirmed on review.26 It provides that if a new sanction is substituted, the new sanction may not be higher in the scale of sanctions than the sanction imposed at the summary hearing.27 On a more general aspect, Bill C-77 also defines military justice, stating that it “means all aspects of the application of the Code of Service Discipline.”28 It codifies its purpose, as expressed by the late Chief Justice Lamer in his famous quote in Généreux, providing that “the purpose of the Code of Service Discipline is to maintain the discipline, efficiency and morale of the Canadian Forces.”29 Based on Justice Cromwell’s reasons in Moriarity, it expands the scope of military justice by providing that, [f]or greater certainty, the behaviour of persons who are subject to the Code of Service Discipline relates to the discipline, ­efficiency and morale of the Canadian Forces even when those persons are not on duty, in uniform or on a defence establishment.30 Criticism Bill C-77 raises concerns as it pertains to the summary trial system. It removes detention from commanders’ toolbox in dealing with service members’ misconduct. Detention is basically an intense form of ‘return to basic training.’ Far from being just a removal from society, it is designed to be a punitive tool to re-instill discipline in service members who have lost it. Even though detention is not used as much as it was in the past, it remains relevant as the caf might have to impose it during deployments abroad. We have to keep in mind that a military justice system must be designed to respond to, perish the thought, large-scale conflicts. Those often occur in distant theatres of operations where legal resources are not readily available and detention facilities – when they exist – are not equivalent to Canadian norms. In such conflicts, individuals

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unacquainted with military discipline are enrolled in large numbers, usually by reducing the recruitment standards and even through conscription. Detention would then be an even more useful tool, at least as a general deterrent to potential offenders, particularly those who might be tempted to commit a serious offence in hope of leaving the theatre of operations to face military justice by court martial back home. Therefore, avoiding constitutional challenge at the price of throwing away detention is not advisable on a longer-term perspective. Once gone, detention would not easily be given back by Parliament. If detention were suddenly returned, there is a risk it would be improperly used, at least at the beginning of its reintroduction. In my view, Bill C-77 represents too much of a paradigm shift from the current state of affairs. Going towards such a ‘depenalization’ takes the system too far from its historical roots. The gap might create unease among actors – in particular commanders – in fulfilling their obligations. The reform of the 1995–98 era, representing a relatively smaller change, took years to integrate through training. A largerscale reform runs the risk of taking even longer to be fully and efficiently implemented. In addition, too many aspects are left unanswered or left to regulations where important elements are buried. ‘Service infractions’ would be defined by regulations, which raises concerns in terms of publicity and Charter scrutiny of penal law by lawmakers, particularly in a national defence context. Regulations under the National Defence Act – such as the q r & o – are indeed exempted from registration.31 A proposed regulation is then not subject to the most formal examination process, in particular as it pertains to its compliance with the Charter.32 Furthermore, such a regulation is not pre-published in the Canada Gazette, Part I,33 a step “intended to promote transparency and effectiveness”34 and one that “gives all Canadians a chance to submit their comments about a proposed regulation before it is made.”35 Such exemptions are legitimate for regulations of a technical nature, affecting few individuals, or when constant changes make examination and pre-publication not reasonably practicable. But when such regulations set the norms of conduct for thousands of service members who would be exposed to serious disciplinary sanctions in case of allegations of misconduct, such exemptions appear unjustifiable. Let me be clear: I do not say that service members would not know what would be expected from them in advance. Of course, service

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infractions would be first promulgated in the q r & o and publicized in the military community. What I say is that, for the sake of accountability and transparency, parliamentarians – who represent those who provide funds, human resources, and moral support to the c a f – should also know about them in advance. ‘Minor sanctions’ are also left to be defined by regulations.36 What are they? Are they similar to the ‘minor punishments’ of the current scheme?37 As we have previously seen, at least one of them is far from being ‘minor’; confinement to ship/barracks is a deprivation of liberty that can be very stringent indeed. Lowering the onus of proof to balance of probabilities is also of concern. It represents a loss of procedural safeguards from the perspective of an accused individual, who is currently protected by the ‘beyond a reasonable doubt’ norm. Although both detention and the possibility to end up with a ‘conviction’ are removed, Bill C-77 still establishes a system that is ‘criminal in nature.’ Sanctions such as reduction in rank, ‘deprivation of pay’ – a fine by another name – or confinement to ship/barracks are punitive consequences. In Guindon, Justices Rothstein and Cromwell made reference to Justice Fish’s three criteria in Martineau in determining whether proceedings are criminal in nature.38 First, we have to examine the objectives of the legislation. Then, we examine the objectives of the sanctions. Lastly, we analyze the process leading to the imposition of the sanctions. Here, the objectives of the Code of Service Discipline are provided by section 4 of Bill C-77, which will modify section 55 of the National Defence Act: Purpose  55  (1)  The purpose of the Code of Service Discipline is to maintain the discipline, efficiency and morale of the Canadian Forces. Clarification  (2)  For greater certainty, the behaviour of persons who are subject to the Code of Service Discipline relates to the discipline, e­ fficiency and morale of the Canadian Forces even when those persons are not on duty, in uniform or on a defence establishment. The wording clearly suggests that what is at stake is the conduct of each service member – not only within a military context, but as paragraph 55(2) suggests, in every aspect of their personal life. In

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comparison with the rcmp disciplinary regime when Wigglesworth39 was decided in 1987, the scope of potential misconduct goes beyond the maintenance of internal discipline within a limited sphere of activity. This would create a unique situation wherein conduct and actions taken outside what is commonly perceived as the military environment would enter within military jurisdiction. As a reasonable hypothetical scenario, consider what would happen in the new scheme if a service member is perceived to have committed inappropriate conduct or made an improper comment – otherwise not a criminal offence – in a private setting. For example, in the context of Operation Honour, imagine what the chain-of-command’s reaction would be to claims that an officer, during a party with friends on holiday, initiated sexually driven conversations that made persons feel uncomfortable.40 Or if a service member, rendered uninhibited by alcohol, made comments during a bbq that although he feels targeted by training on harassment prevention and resolution, he does not give a damn as it does not apply to him.41 In fact, the wording of paragraph 55(2) is a quote – word for word – of what Justice Cromwell wrote in Moriarity in justifying military jurisdiction over ordinary criminal offences, even those committed outside a military context.42 The military justice system would be in a rather unique position if it were to justify an expansion of the purely administrative internal discipline system by quoting a Supreme Court decision that serves to expand its criminal jurisdiction. Do not get me wrong here; I do believe such conduct and actions could legitimately enter within military justice’s ambit if the Parliament of Canada so chose. But not at the price of reducing service members’ safeguards at summary proceedings. On the objectives of sanctions, Bill C-77 will modify the National Defence Act by stating the following: Objectives of Sanctions 162.9  The imposition of sanctions is intended to achieve one or more of the following objectives: (a)  to promote a habit of obedience to lawful commands and orders; (b)  to maintain public trust in the Canadian Forces as a ­disciplined armed force; (c)  to denounce indisciplined conduct;

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(d)  to deter persons from committing service infractions; (e)  to assist in rehabilitating persons who have committed ­service infractions; (f)  to promote a sense of responsibility in persons who have committed service infractions. Fundamental Principle 162.91  Sanctions must be proportionate to the gravity of the service infraction and the degree of responsibility of the person who committed it. Other Principles 162.92  Sanctions must be imposed in accordance with the following other principles: (a)  a sanction should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the commission of the service infraction or the person who committed it, and aggravating circumstances include evidence establishing that (i)  the person, in committing the service infraction, abused their rank or other position of trust or authority, (ii)  the service infraction was motivated by bias, prejudice or hate based on race, national or ethnic origin, language, colour, religion, sex, age, mental or physical disability, sexual orientation, or gender identity or expression, or on any other similar factor, or (iii)  the commission of the service infraction resulted in harm to the conduct of a military operation or any military training; (b)  a sanction should be similar to sanctions imposed on persons for similar service infractions committed in similar circumstances; and (c)  a sanction should be the least severe sanction required to maintain the discipline, efficiency and morale of the Canadian Forces. Consideration of Indirect Consequences 162.93  In determining the sanction to be imposed against a ­person, a superior commander, commanding officer or delegated officer may take into account any indirect consequences of the

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finding that the person committed a service infraction, or of the sanction. The wording suggests that what is key is to impose tailored sanctions on defaulters in order to produce a deterrent effect and redress a wrong done to military society and to the Canadian public’s perception of the c a f. It goes way beyond mere compliance with military procedures. Actually, those acquainted with criminal law will note that the proposed new sections 162.9 to 162.93 of the nda are very similar to sections 718, 718.1, and 718.2 of the Criminal Code, another indicium that the system will be still ‘criminal in nature.’ The last part of the Martineau/Guindon test is to analyze the process leading to the imposition of the sanctions. On that, Bill C-77 essentially maintains the current process, except for some changes in the terminology: for example ‘summary hearing’ instead of ‘summary trial,’ ‘service infraction’ instead of ‘service offence,’ and ‘sanctions’ instead of ‘punishment.’43 Proceedings still commence with a ‘charge.’44 Also, Bill C-77 provides that a summary hearing does not preclude a trial in respect of an offence arising from the same facts allegedly committed by the same individual, which is a difference from the current scheme.45 Although we do not yet have the future regulations associated with Bill C-77, we can reasonably expect that the current process in the qr&o would also remain essentially the same, except for the changes in the terminology, the onus of proof, and the type of sanctions.46 This process has many similarities to penal proceedings. The person is charged following an investigation. Information is laid against the person, who is then imposed sanctions, if found guilty of having committed a service infraction. Review authorities can quash findings, partially or completely. They can substitute findings or sanctions. Reviewing authorities can commute (to replace a sanction with another sanction that is lower in the scale of sanctions), mitigate (to impose a lesser amount of the same sanction), or remit sanctions (to exempt a person from the requirement to undergo the whole or any part of a sanction). In comparison with the ascertained forfeiture process of the Customs Act47 reviewed in Martineau, summary proceedings in Bill C-77 are still closer to criminal proceedings in nature. Besides, as we saw earlier, Bill C-77 will still expose service members to reduction in rank and ‘deprivation of pay’ (fines by other terms), both having negative financial consequences, making them ‘monetary

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penalties’ that are punitive in nature in light of Guindon. The main difference with a fine is that the sum is paid to the State. But bottom line, all those measures are based on the concept of redress to the community for the harm done. In the case of reduction in rank, the financial consequences are drastic and long‑lasting on both pay and pension.48 The opprobrium experienced is more severe in a “society where one’s rank and status is, literally, worn on one’s sleeve and in his subordination to former subordinates.”49 Consequently, especially if confinement to ship/barracks – a strict deprivation of liberty – is still included in ‘minor sanctions,’ Bill C‑77 would expose service members to ‘true penal consequences.’ Bill C-77 does not provide for the recording of summary trials. Even if the proceedings were to not expose the accused to ‘true penal consequences,’ fundamental procedural fairness would require hearings to be recorded. Otherwise the prospect of a meaningful, accurate, and efficient review process is illusory. Besides, that system may not provide sufficient independence for officers to act as impartial decision-makers. Even if Bill C-77 goes a little away from the penal model, hence lowering the threshold for independence, the system still lacks sufficient safeguards for presiding officers to act like disciplinary bodies of a self-regulated profession. This is especially true where summary authorities could still impose sanctions that have a long-lasting impact on a service member’s career, in particular reduction in rank. As a comparison, Germany has developed an entire administrative tribunal system to deal with disciplinary misconduct.50 Bill C-77 is silent on the matter of legal representation or legal advice to individuals involved in that process, and yet the sanctions here are no trivial matter. Would assisting officers at summary trials play an analogous role, then? Would service members have the option of electing a more formalized decision-making body? If so, in which circumstances and how? In short, Bill C-77 is an attempt to avoid a constitutional challenge by partially adopting the ‘depenalization’ approach at the summary trial level. However, such reform would be at the price of reducing the onus of proof and creating confusion among operators, not to mention the unsuspected perverse effects. Despite its benefits in terms of removing some of the penal consequences from an individual’s perspective, there is uncertainty as it pertains to service members’ rights. The silence on transcript, legal representation, and judicial

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oversight raises concerns in terms of transparency, accountability, and procedural fairness. Based on the expansion of potential misconduct to service members’ behaviour outside a military environment coupled with the abandonment of the ‘beyond any reasonable doubt’ standard, I conclude that Bill C-77 goes ‘a bridge too far.’ Another course of action is recommended.

R e c o m m e n dati ons Generally speaking, the ‘judicialization’ approach51 should be adopted together with some elements from other jurisdictions. The judicialization approach is more aligned with Canada’s historical legal military background. It is also less of a shift from the current state of affairs, which would ease implementation among operators, including legal officers. It enhances judicial oversight while keeping penal punishments at the summary level, including detention where necessary. With this approach in mind, I will divide my recommendations into two groups. The first group consist of measures essential to addressing the main potential Charter breaches previously identified. Here are those breaches in summary: a Presiding officers are not independent. Even in their military justice capacity, they remain agents of the executive branch of the State. Their pay, career progression, and postings depend on the very same chain of command that, from a reasonable observer’s point of view, has an interest in the outcome of each case. Such a lack of independence infringes the right to a fair trial pursuant to section 11(d) of the Charter. b Proceedings – including the reasons of presiding officers – are not recorded. Summary trials are unfair because there is no transcript of the proceedings which accurately records the evidence adduced, the arguments presented, and the rulings made. Such a situation violates sections 11(d) and 7 of the Charter. The proceedings are rendered unfair because there is no accurate record upon which a review body or appeal court can review the matter. c Individuals are not legally represented during proceedings. Conditions are insufficient in practice for them to obtain meaningful legal advice in choosing the mode of trial. Assisting officers are not lawyers. Any request to be legally represented

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would in practice generally become a transfer to court martial. If the request is granted, legal counsel is limited to a passive role. If denied, in the absence of a transcript, it is difficult to determine if the decision was right. Service members cannot be legally represented during review. That situation violates the right to counsel pursuant to section 7 of the Charter. d There is a disparity of treatment between ranks at the summary level. Legal advice prior to the laying of a charge is mandatory for higher ranks, while for lower ranks it is only required when court martial could be involved. If charged, higher ranks cannot be detained, reduced in rank, or confined to ship/barracks. Most senior ranks (lieutenant-colonels, colonels, and generals) are simply not subject to summary trial. Such a lack of jurisdiction does not automatically translate into a court martial: the ‘reasonable prospect of conviction’ necessary to prosecute is assessed more stringently by military prosecutors than by unit legal advisors. Even when charges are preferred before court martial, higher ranks benefit from all its procedural safeguards, including the leverage that being legally represented offers in terms of plea bargaining. This disparity violates the principle of equality before the law enshrined in section 15 of the Charter. My second group of recommendations are facilitative measures that, although not imperatively required to sustain a constitutional challenge, would nevertheless improve the military justice system at the summary level. Each recommendation identifies what statutory or regulatory rules need to be changed. Necessary Changes R emov e O r d i na ry O f f e nc e s f ro m S u m m ary Ju r isd i c t i o n The current summary jurisdiction over offences of the Criminal Code and the Controlled Drugs and Substances Act must be abandoned. Due to the seriousness and public stigma associated with them, such ordinary criminal offences (aka ‘civil offences’) relating to any other act of Parliament except the National Defence Act must be left to court martial only, akin to what Ireland does.52 This change would apply only to commanding officers and superior commanders; delegated

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officers cannot currently try such offences. It would not create much of an impact on the system, as very few of those offences are currently dealt with by summary trial. Besides, the more stringent test used by the Canadian Military Prosecutions Service to prefer charges would likely mean that not all of those cases would necessarily be transferred into the court martial system caseload. Article 108.07 of the Queen’s Regulations and Orders (q r & o ) should be modified, in particular to remove section 130 of the National Defence Act (nda ) from subsection (2). Consequential amendments should be made to qr&o articles 108.10(2)(c) and 108.125. Recommendation 1: Remove ordinary criminal or civil offences from the list of offences that can be tried by commanding officers and superior commanders. State th at Summa ry T r i a l s Do N ot C r e at e C r i mi na l Of f e n ce s It must be made statutorily clear that any conviction at summary trial does not create a criminal offence for the purpose of the Criminal Records Act. Instead of linking the absence of criminal conviction to a combination of certain offences and punishments like in Bill C-15, it must be solely forum-driven. This reflects the very summary nature of the proceedings and gives an additional incentive for all service members to select that mode of trial. It also reduces the negative impact of summary convictions on service members’ opportunity to seek future employment after their military careers. The proposal would apply to both past and future convictions by summary trial. Should it be believed that the circumstances of the case are serious enough that a formal criminal conviction before a court martial is needed, the matter would then be sent directly up to the Canadian Military Prosecution Service for consideration. As for the mechanics, Bill C-15’s clauses on that issue could be used as a starting point and modified accordingly. The National Defence Act should be amended by adding section 249.27, which would read as follows: 249.27 A person who is convicted by a summary trial pursuant to sections 163 and 164, or who has been convicted by it before the coming into force of this section, has not been convicted of a criminal offence.

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Consequential amendment should be made to section 307 of the National Defence Act, added by clause 105 of Bill C-15, prohibiting questions on such convictions during employment processes. Recommendation 2: Confirm in the National Defence Act that summary trial convictions are not criminal offences. R ec or d Summa ry P ro c e e d i ng s As in New Zealand53 or in Canadian police or inmate disciplinary processes, hearings must be audio recorded, unless this is not reasonably practicable. Digital electronic recording is preferable, as it could be burned on a c d - ro m , copied to a memory stick, or uploaded on a Defence Wide Area Network (dwan) terminal to ease further transmission in the context of a review. When recording is not practicable, the presiding officer should be required to ensure a detailed written summary of proceedings, for example by a Resources Management Support (r ms) clerk. Such a recording or written summary would be considered a ‘record’ as defined by the Treasury Board Policy on Information Management and would therefore be managed as per c a f administrative directives.54 The physical support of the audio recording or the detailed written summary would also be attached to its related Record of Disciplinary Proceedings and placed on the Unit Registry of Disciplinary Proceedings.55 As to the wording, in addition to New Zealand’s provisions and Canadian police legislation, there is another example in caf regulations pertaining to the living accommodations of court martial actors.56 These responsibilities would be provided for in the nda with consequential amendments in the qr&o , in particular chapter 108 and article 107.14 as it pertains to the recording or the detailed written summary being placed on the Unit Registry of Disciplinary Proceedings. Recommendation 3: Require that presiding officers ensure that summary proceedings be audio recorded, unless it is not reasonably practicable to do so, having regard to the location of the summary trial and the constraints of military operations. Require that if this is not reasonably practicable or if the audio recording fails, a detailed written summary of the proceedings be made. Require that support of the audio recording or the written summary be placed on the Unit Registry of Disciplinary Proceedings.

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Elimin at e R a nk - B ase d Di st i nc t i o n Rank-based distinctions in summary justice must be eliminated. Similarly to the French system,57 all ranks – including the Chief of the Defence Staff – would be subject to summary proceedings and exposed at least to equal consequences in the case of conviction. In the alternative, superior commanders should be given the most severe punishment powers, following the principle that the higher the rank and responsibilities, the heavier the consequences in case of misconduct. In terms of procedural safeguards, all service members must benefit from pre- and post-charge legal advice. What would differ is that the authority who can decide the matter and impose punishments must be at least one rank above the accused person. That rule would go up the entire chain of command. Where the cds is the accused person, jurisdiction would then be exercised by the Deputy Minister of National Defence. Should it come to that point, the Minister of National Defence would then act as the reviewing authority. For some, it would seem strange and even radical to give such authority to the dmnd and mnd as neither is in the military chain of command; it would be against the notion of summary proceedings within the military justice system. Although I highly doubt that the cds would ever be involved in such a breach of discipline, it is important to provide for that eventuality in application of the rule of law principle that ‘no one is above the law.’58 Consequently, for exceptional circumstances, we would need exceptional measures. Based on a recent Supreme Court decision, it can be inferred that generally speaking the Minister could still validly play a role in military justice.59 Having leaders equally exposed to summary proceedings would efficiently build trust within the Defence Team as a perfect illustration of fundamental leadership principles such as “leading by example, sharing risks and hardships, and refusing to accept or take special privileges; walking the talk.”60 However, it might be rationally substantiated from a reasonable observer’s perspective that some punishments are simply not appropriate for some higher ranks, such as extra work and drill. In that case, those punishments must be replaced by others having longer-term and meaningful consequences to their career, such as forfeiture of seniority as in the United Kingdom, stay of seniority up to twelve months as in New Zealand, removal from the promotion list or ministerial reprimand as in France, or reduction of pay for one year or deferral for one year of the next pay increment as in Ireland.61 Another option is to determine that if lower

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ranks are the only ones exposed to detention, higher ranks are the only ones exposed to reduction in rank. It may be advisable, however, to exclude military judges from summary trial jurisdiction to protect their judicial independence. In terms of legislative amendments, the definition of ‘superior commander’ at section 162.3 of the National Defence Act would be modified to include all commissioned officers of the rank of colonel and above, provided the accused person is at least one rank below the rank of the superior commander. Where the accused person is the cds, the Deputy Minister of National Defence would be the ‘superior commander.’ Paragraph 164(1)(a) of the National Defence Act would be modified to expand summary jurisdiction to, in addition to noncommissioned members above the rank of sergeant, any officer above the rank of officer cadet, with the exception of military judges. Subsection 164(3) should be deleted. Subsection 164(4) should be modified to include at least the same list of punishments as those available to a commanding officer at subsection 163(3). Articles 107.03 and 107.11 of the q r & o must be modified to remove any requirement to provide legal advice based on rank. Consequential amendments should be also made to chapter 108, in particular the Table to article 108.26 listing the powers of punishments of a superior commander. Recommendation 4: All ranks must be subject to summary proceedings, benefit from the same procedural safeguards, in particular pre- and post-charge legal advice, and be exposed at least to similar consequences in case of conviction. Only the level of authority having jurisdiction would vary. Should any rational disparity in punishments between lower and higher ranks remain, it must be translated by exposing the latter to punishment having longer-term consequences to their career. C r eate a R i gh t of A p p e a l to S u m m ary A ppea l C o urt Ma rt i a l Similarly to the United Kingdom, New Zealand, and Ireland, there must be a right to appeal summary trial findings, sentence, or both before a Summary Appeal Court Martial (sacm) consisting of a military judge.62 That right of appeal would take place after the initial review, which according to statistics is currently generally favourable to offenders.63 The prosecution and offenders would be represented by counsel.

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As in Ireland, the maximum punishment that could be imposed on appeal would be limited to what could have been imposed by the presiding officer.64 However, unlike in New Zealand, sacm decisions would be subject to appeal before the Court Martial Appeal Court, an additional safeguard to ensure that military justice at the summary level remains within Canadian legal norms. To contribute to a better administration of military justice, appeals from summary trials would by default be disposed of upon the record or by agreed-on statements of facts. Documents and exhibits already on file from the summary trial would be transferred as evidence. As in appeals on summary convictions in ordinary criminal justice,65 only when the military judge is of the view that the interests of military justice would be better served by a trial de novo could he or she order the re-hearing of the case, entirely or partially.66 For example, this could be justified where the audio recording is absent or in bad condition. In addition, the military judge would have the discretion to work directly from the audio recording or order a written transcript to be made, on their own motion or on application by either of the parties. For reasons of efficiency, it would be possible to hear an appeal by videoconference. As presiding officers are not jurists, they would sometimes make wrong decisions on a question of law. Some procedural irregularities might also occur. In either case, there would be circumstances where offenders, despite those mistakes, would not have suffered any substantial wrong or miscarriage of justice. Similarly to ordinary criminal law, it would be provided for sac m to have the ability to dismiss appeals in those cases where appellants would have suffered no prejudice.67 As for the mechanics, numerous amendments would be required. A new division 5.1 entitled “Summary Appeal Court Martial” should be added in Part III of the National Defence Act. Chapter 113 of the q r & o, currently unused, could be reactivated to provide for the regulatory framework of the sac m . It would be too complex and onerous here to enumerate and pinpoint in further detail what the legislative changes might look like. Reforms in New Zealand, Ireland, and the United Kingdom can assist legal drafters as a starting point. Recommendation 5: Create a right of appeal to a Summary Appeal Court Martial (sac m) consisting of a military judge that would take place after initial review. By default, appeals would be

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disposed of upon the record or by agreed-on statements of facts, unless the sac m directs otherwise. There would be the possibility of hearing appeals by way of videoconference. Parties would be represented by counsel. sac m would have the ability to dismiss appeals based on ‘harmless’ mistakes made at the summary trial. In addition, sac m penalties would be capped at what would have been the maximum punishment by the original presiding officer. sacm decisions would be, in turn, subject to appeals before the Court Martial Appeal Court. Ma k e El e c t i on a n Une q ui vocal W ai ve r o f Ri g h t s It must be made crystal clear that when a service member elects to be tried by summary trial, he or she waives certain rights guaranteed by the Charter. As in New Zealand,68 the National Defence Act must provide that an accused person would be ‘deemed to have irrevocably waived’ the right to legal representation during hearing and the right to an independent tribunal.69 When there is an election, to ensure that service members are fully aware of the consequences of their choice, a presiding officer would not be able to proceed with the charge unless the accused person confirms he or she has effectively consulted with a counsel. This would be added to the list of conditions to be satisfied for presiding officers to try an accused person.70 Along similar lines to the US Army waiver form filled out prior to summary court martial,71 Part 3 of the Record of Disciplinary Proceedings pertaining to the choice of mode of trial needs to be modified. It must in particular state in plain language that, after having consulted with a counsel, an accused person understands his or her rights and that he or she voluntarily consents to be tried by summary trial. Articles 107.07, 107.075, and 108.17(3) of the q r & o are required to be modified accordingly. Recommendation 6: Make election to summary trial an unequivocal waiver of the rights (1) to be represented by counsel at hearing and (2) to be tried by an independent tribunal. The National Defence Act needs modification to include a deemed provision to that effect. The Record of Disciplinary Proceedings needs a waiver statement written in plain language. G iv e Me a ni ngf ul A c c e ss to L e g al Advi ce Each time service members have to make important decisions during the summary proceedings, they must have meaningful access to

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complete legal advice. Defence Counsel Services must be expanded so that, for the purpose of election, defence counsel is in a position to effectively provide complete legal advice to the accused rather than merely legal information.72 A copy of any information to be relied on as evidence at the summary trial or tending to show that the accused did not commit the offence with which they are charged, such as any unit or military police investigation report, must also be communicated to defence counsel in sufficient time prior to election. Regulations must be amended, as they currently impose that obligation only as it pertains to the accused and the assisting officer.73 At the hearing, should the presiding officer feel it necessary to adjourn to consult with the unit legal advisor, the accused and the assisting officer must be given similar access to consult with legal counsel, ideally the same counsel who has provided the legal advice for their election. Similarly, if the accused requests an adjournment, regulations must specifically provide that Defence Counsel Services can be contacted.74 As for the review and appeal, a similar process to what occurs when someone elects to be tried by court martial should be established.75 Such an expansion of services would likely require adding human resources to Defence Counsel Services. To enhance face-to-face meetings with service members during the election and review/appeal processes, it may also worth considering regionalization similar to that used in the US Army Trial Defense Service,76 and sending defence counsel on short-term deployments (aka Technical Assistance Visit or tav) to significant caf contingents located in theatres of operations, or even on longer-term deployments (three or six months) for larger c a f contributions. Recommendation 7: Give meaningful access to complete legal advice to service members during summary proceedings, in particular during the election and appeal processes. Consider the regionalization and deployment of Defence Counsel Services resources. Desirable Changes G iv e Ele c t i on b e yond Mi no r P u n i s h m e n t s O n ly The threshold for the right to elect should be determined based on the punishment to which the accused person is exposed, irrespective of the offence. Therefore all service offences would have the potential of

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being a minor offence. This would remove the uncertainty caused by the expression “but only where the offence relates to military training” as one of the circumstances for not offering election when someone is charged with conduct to the prejudice of good order and discipline.77 In terms of punishments, the limit should be set lower than the current level. Anything above the punishment of caution, stoppage of leave, extra work and drill, or fine of more than 25 percent of the accused’s monthly basic pay would require election. As for the punishment of confinement to barracks/ship, as it is a deprivation of liberty, an election should be given. Recommendation 8: Set the threshold for election to exposure to low-level punishments, irrespective of the service offence. Any punishment above caution, stoppage of leave, extra work and drill, and a fine of 25 percent of the accused’s monthly basic pay would require election. Min imiz e Undue P r e ssur e to E l e ct S u m m ary T ri al or to Wa i v e L i mi tat i on P e r i o d s When election is offered, undue pressure78 on the accused to elect summary trial or to waive limitation periods (six months to lay charge; one year to commence trial) should be minimized in four ways. First, to reduce the risk that charges be unduly transformed into more serious ones after election, the Director of Military Prosecutions’ ability to add another charge or substitute charges referred to him or her79 should only be exercised when additional investigation80 has disclosed new facts justifying such a change. Absent those additional facts, modification to the charge should be done only on request to a military judge, should a court martial be convened. In the alternative, any modification after election without any new facts should at least give rise to another election, even if it means that a summary trial would occur beyond the time limitation. Article 110.04 of the qr&o should be modified accordingly. Second, during operational deployments, the decision to ‘repat’ (short for ‘repatriate,’ aka ‘Return To Unit’ or ‘rt u ’ ) an individual based on the alleged commission of an offence should be decided independently from the election process. As military defence counsel, providing legal information on the choice of the mode of trial, I had service members who were told that if they were to elect court martial, they would likely be ‘rt u ed.’

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Although the nature of the allegations and charges against the individual is relevant in deciding repatriation, his or her choice as to the mode of trial is not. The officer who refers a charge to a referral authority due to an election to be tried by court martial should not be the same officer who decides the repatriation of the individual. Repatriation from an operational deployment overseas involves significant adverse consequences for c a f members. They lose financial benefits (combat pay, income tax breaks, risk allowances). They lose operational experience, which has potential career implications. Not to mention the simple embarrassment of being sent home from an operation, without getting a medal together with their comrades. Consequently, due to the important consequences of repatriation on a service member, the procedure should be analogous to the relief from the performance of military duty when someone is alleged to have committed, is charged with, or is convicted of an offence.81 An article 110.095 should be added to the qr&o to that effect. Third, a court martial should be capped at what would have been the maximum punishment imposed by the presiding officer. The only exception is if a further investigation or the trial itself reveals new facts justifying aggravating factors beyond summary powers. The National Defence Act should be amended to add such a punishment limitation to the powers of General Courts Martial and Standing Courts Martial respectively.82 Finally, like in New Zealand, a new offence should be created that prohibits anyone from influencing or attempting to influence, by threats or bribes or other improper means, an election or a decision concerning the withdrawal of an election. Logically, that prohibition should also cover the decision by the accused to waive the limitations period. Recommendation 9: Minimize undue pressure on accused persons to elect summary trial: a Addition or substitution of charges after election should be made only when an additional investigation reveals new facts to justify it. Otherwise, amendment should be authorized by a military judge or, alternatively, give rise to another election. b During disciplinary proceedings, the decision to repatriate should be made independently and by a different authority than

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the officer referring the charge to a referral authority. Election is not a relevant factor. The process should be analogous to that for relief from the performance of military duty. c Unless additional investigation or evidence reveals new aggravating facts, a court martial should be capped at what could have been imposed by the presiding officer. d Create a new offence prohibiting influence over an election or a waiver of limitation period. C r eate Ne w O f f e nc e s C ur r e n t ly u n d e r S e ct i o n 129 New specific offences should be created in the National Defence Act so that the current use of ‘act, conduct, disorder or neglect to the prejudice of good order and discipline’ as the main legal basis for charges at summary trial is minimized. Creation of specific offences would increase the predictability of the law, which would be beneficial to service members by clarifying what is expected from them. It would also assist in determining with more precision the objective seriousness of various forms of misconduct and setting maximum punishments accordingly. This might in turn help in determining which offences should remain within summary jurisdiction and which should be left to court martial. Finally, it would reduce uncertainty as to how to establish those types of misconduct, respond to them, and decide, from an individual’s perspective, the mode of trial when election is offered. This would also clarify legislation following a recent court martial decision where the presumption that any act or omission constituting a contravention to c a f regulations, orders, or instructions is to the prejudice of good order and discipline was declared unconstitutional as being against the presumption of innocence.83 The following non-exhaustive list of new potential offences should be considered: a Sexual Misconduct or Inappropriate Sexual Behaviour: based on former Justice Marie Deschamps’s recent report,84 any prohibited sexual conduct not otherwise covered by a sexual offence in the National Defence Act or the Criminal Code, including: i. Fraternization: inappropriate sexual act between consenting adults, between a c a f member and a person from an enemy or belligerent force, or a c a f member and a local inhabitant within a theatre of operations);85

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ii. Adverse personal relationships: inappropriate sexual act between consenting adults, between two caf members, or a caf member and a dnd employee or contractor or a member of an allied force, where the relationship has a negative effect on the security, cohesion, discipline, or morale of a unit – for example, a superior/subordinate sexual relationship;86 iii. Sexual harassment: improper conduct of a sexual nature by an individual, directed at and offensive to another individual in the workplace, including at any event or any location related to work, and that the individual knew or ought reasonably to have known would cause offence or harm;87 and iv. Use of d nd electronic networks or computers to communicate or access material of a sexual nature: any use of dn d and c a f electronic networks or computers, to access or distribute any material whose focus is pornography, nudity, or sexual acts involving adults over age 18;88 Information Technology Security Breach;89 Illicit Drug Use or Misuse of Drug, for drugs that are otherwise licit such as medicines or the now-legalized cannabis;90 Negligent or Unauthorized Discharge of a Weapon: where ‘negligent’ would be a true criminal offence established by ‘a marked departure from the norm’ whereas ‘unauthorized’ would be a strict or absolute liability offence, exposing contraveners to non-custodial sentences;91 Failure to Properly Maintain: i. Personal Equipment; ii. Quarters; or iii. Work Space;92 Inappropriate Dress or Deportment:93 the first being a failure to be properly dressed according to c af instructions,94 irrespective of behaviour, and the second being a failure to maintain proper behaviour while wearing a uniform.95

Finally, for all prohibitions contained in a regulation, directive, order, or instruction, not otherwise specified in a service offence, a strict liability offence (Contravention to regulation, directive, order, or instruction) should be created in the National Defence Act exposing service members only to minor punishments and fines of no more than 25 percent of their monthly basic pay.

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Recommendation 10: Create new specific service offences in the National Defence Act for various misconducts that are currently captured under section 129. R equ ire P r e si di ng Of f i c e rs to Prov i de Wr i t t e n R e aso ns Presiding officers should be required to provide written reasons for their decisions on findings and sentences. This is highly advisable in terms of procedural fairness, irrespective of the potential punishment. It facilitates acceptance of decisions, not only from an individual’s perspective, but also for members of the military community, even those who were not present at the hearing. It also lays out in a more narrative form how the sentence is to be carried out. That would be convenient where presiding officers would have the power to impose any reasonable condition associated with the suspension of detention.96 It provides factors to determine whether the principle of similarity in sentencing should be applied or not, relevant where co-offenders are not tried by the same presiding officer.97 Last but not least, providing written reasons eases understanding of each presiding officer’s thought process, particularly useful for review authorities and military judges should the matter be elevated to those levels. Besides, it should not represent an insurmountable challenge; the presiding officer must already provide written reasons when they disagree with a unit legal advisor or a c f n i s military police officer on whether they should go with a summary trial or not.98 Article 108.20 of the q r & o should be modified accordingly to impose a similar requirement towards the accused person. The format of the written reasons does not have to equate to a judicial decision. For example, it can be presented in bullet-point format. As long as certain fundamental elements are present, a certain degree of flexibility should be left to presiding officers in writing their decision. Presiding officers would have access to a unit legal advisor for guidance. It might also be worth considering adding a page to the Record of Disciplinary Proceedings providing a blank form template as guidance to presiding officers. Articles 107.07 and 107.075 of the qr&o should be modified accordingly. Recommendation 11: Presiding officers should be required to provide written reasons for their findings and sentences. An

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additional page should be added to the Record of Disciplinary Proceedings accordingly. Set C onf i ne me nt as a D i st i nc t a n d Hig h e r P uni sh me nt The punishment of confinement to ship or barracks should be removed from the list of ‘minor punishments’ and become a distinct punishment. It is a restriction on liberty, analogous to arrêts in the French system.99 It should be therefore separately identified in the scale of punishments, lower than detention, but at least more severe than a fine. Section 139 of the National Defence Act should be modified accordingly and a specific provision added.100 Exposure to potential confinement should give rise to election to be tried by court martial. In terms of predictability of the law, it should be considered to provide for general rules applicable to all confinements in the qr&o , as the Australians do with ‘restriction of privileges.’101 In terms of accountability in the administration of military justice, there should be a requirement for specific rules applicable to confinement on a particular base, unit, or element to be produced each time a presiding officer considers imposing it. Article 104.13 of the qr&o should be modified accordingly. Although a restriction on liberty, confinement should not be suspended pending initial review by reviewing authority. Otherwise confinement to ship imposed just before going to a port could be circumvented by putting in a request for review but abandoning it just after the ship is back at sea. Nevertheless, to remedy wrongful confinement, the reviewing authority should be given the ability to give days off (or ‘leaves’ in military terminology) to compensate for time served, akin to what happened recently in the case of Private Nicholas Detre v Attorney General of Canada.102 Recommendation 12: Confinement to ship or barracks should be a distinct punishment, higher in terms of severity than a fine. It should give a right to elect to be tried by court martial. General rules applicable to all confinements should be provided for in the qr&o . Specific rules applicable to a base, unit, or element should be introduced in evidence each time a presiding officer considers imposing confinement. Confinement should not be suspended pending review. The reviewing authority should have the ability to authorize leave in case of a wrongful confinement.

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U pdate P uni shme nt s P a no p ly Presiding officers should be given more flexibility and impact in ­sentencing individuals. The consequences of some available punishments should be specified, notably reprimand and severe reprimand. Those punishments should have precise consequences on someone’s career by having a direct impact on offenders’ personal revaluation reports (p e r ) for a shorter term in the case of a reprimand and a longer term for a severe reprimand. Additional punishments should also be made available to presiding officers. This could be done by giving them the power to impose forfeiture of seniority, providing the consequences that flow from it would have a significant effect on the offender’s career, as in the United Kingdom.103 It could be also done by creating new punishments such as restrictions of privileges as in Australia,104 removal from the promotion list as in France,105 or reduction of pay for one year or deferral for one year of the next pay increment as in Ireland.106 Recommendation 13: The punishments scheme at summary trial should be revamped. Consequences that flow from reprimand and severe reprimand should be specified. Forfeiture of seniority should be considered to be within summary jurisdiction. The creation of additional punishments should be considered, such as: restrictions of privileges, removal from the promotion list, or reduction of pay for one year or deferral for one year of the next pay increment.

R equ ire F o r ma l T r a i ni ng f o r T h re e Ro l e s Custody review officers, summary unit investigators, and assisting officers should be formally qualified before performing their duties. Due to the importance of their respective roles they should, like presiding officers, be trained and certified in the administration of the Code of Service Discipline according to a curriculum established by the Judge Advocate General. Article 101.07 of the qr&o should be modified accordingly. Training should be particularized to each role and standardize respective format and procedure, such as summary unit investigation reports. Once an individual is qualified in a particular training, it should appear on the Member’s Personnel Record Résumé (mp r r ).

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Recommendation 14: Custody reviews officers, summary unit investigators, and assisting officers should be qualified and trained in their respective roles in the administration of the Code of Service Discipline before assuming their duties. C r eate a P e r ma ne nt Mi l i ta ry J u s t i ce in for mat i on Syst e m A Military Justice Information System (m j i s ) should be established. For each case a digital file should be created with a specific filing number. Relevant documentation, beginning with investigation reports but also including various forms as per regulations, would be particularized, digitized, and associated with the file accordingly. That system would help actors, often in different locations, in performing their respective roles. To that extent, each actor would be given access appropriate to their role – and no more – and the ability to digitally sign each of their actions. For example, it would facilitate defence counsel to have, in a timely fashion, access to complete disclosure to provide legal advice for the election. It would also expedite review, by allowing the reviewing authority to simply access the digital file and listen to the audio recording of the summary trial decision. A m j i s would help the Military Justice Division – which would have full access – to assist the Judge Advocate General in his or her role as superintendent of the administration of military justice in the c a f.107 Not only would it ease the production of statistical data, notably for the purpose of the annual report,108 but it would become a useful tool to exercise real-time oversight. On that point, since the beginning of my research and while this book was in its completion, the Auditor General released a report in which he recommends that the Canadian Armed Forces should review its military justice processes to identify the causes of delays and to implement corrective measures to reduce them.109 It is interesting to see that in response, the Department of National Defence indicates that the Office of the Judge Advocate General has received funding for and is developing a military justice case management tool and database called Justice Administration Information Management System (jaims) that it expects to be launched by September 2019.110 In her Annual Report 2017–18, the jag provided more details as to what ja i ms will do. It will be:

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an electronic system designed to seamlessly and electronically track military justice files from the reporting of an alleged infraction, through to investigation, charge laying, trial disposition and review in both the summary trial and court martial processes. Front-end users of the system (including investigators, charge layers, presiding officers, review authorities, referral authorities, legal advisors, prosecutors and defense counsel) will input data at each stage of the process thereby allowing the progress of a file to be tracked in real-time. ja im s will deliver the means to provide commanders at all levels with a user-friendly, responsive, effective and efficient ­real-time workflow tool that will facilitate the administration of military justice at the unit level. It will also ensure that a case proceeds through the system in a timely manner by confirming that the matter proceeds in the proper order and prompting key actors at the appropriate time when they are required to take a specific action. ja i ms will also compile all relevant statistics on the administration of military justice and provide strategic oversight of the entire military justice system.111 This ja i m s is more than welcome, and kudos to the o jag for implementing it. Providing it receives an appropriate level of resources to become permanent, it is an investment that will become a superb tool to keep military justice relevant and efficient. Recommendation 15: A Permanent Military Justice Information System should be created, properly maintained, and funded. Individual cases would be digitally filed; relevant documentation and forms would be attached accordingly. Depending on the role, from investigation until review, each actor would be given appropriate access rights and the ability to digitally sign each transaction. Full access would be given to the jag as superintendent of military justice.

C on du c t T h r e e - Y e a r Q ua l i tat i ve S u rve ys b y  a dm ( rs) Qualitative surveys on military justice should be conducted on a periodic basis by the Assistant Deputy Minister (Review Services) and

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integrated into jag annual reports. Since the 1998 legislative reform, three qualitative surveys with military justice stakeholders were conducted by the Office of the jag (ojag): in 2001–02, in 2006–07, and in 2009–10 when, for the first time, accused persons were also interviewed.112 In 2015–16, the jag indicated that a military justice team of two legal officers would develop and conduct surveys at unit level.113 The qualitative surveys should be conducted at a more sustained pace, ideally each year, although that might be difficult. As unit commanding officers and their chief warrant officers / chief petty officers 1st class are replaced usually on a two- or three-year cycle, qualitative surveys should realistically be conducted at least every three years. Then, each time an independent review authority is mandated to conduct an external review of the military justice system every seven years,114 in addition to seven years of statistics, he or she would benefit from at least two or even three qualitative surveys. In addition, qualitative surveys should be conducted in a more systematic fashion to provide meaningful data useful for comparative purposes and for identification of any trend that might require change. In that regard, the creation by the ja g of the Superintendence Enhancement and Assessment Team (s e a t ), the launch of the Superintendence Enhancement and Assessment Project (s e ap ), and the Military Justice Stakeholder Engagement Project (m j s e p ) are more than welcomed.115 But even with the best of intentions, o jag alone might not have the professional candor and detachment required for such a task. Indeed, some aspects of those surveys might – rightly or wrongly – raise concerns about legal officers’ efficiency in providing legal advice and training to operators. Unconsciously, this might influence o jag personnel in conducting surveys in the way they select their sample of service personnel, which questions they choose to ask, how they ask those questions, and how they interpret the answers. To maintain a certain distance between the operating and reporting functions in the administration of military justice, those qualitative surveys with stakeholders and accused persons should be conducted by the Assistant Deputy Minister (Review Services), or adm(rs). That organization plays, within dnd/caf, an analogous role to the Auditor General. It carries out its mandate by delivering internal audit and evaluation programs, independently from other dnd/caf organizations.116 In the context of military justice, however, such surveys

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should always be done in collaboration with the jag, as he or she ultimately has statutory reporting duty to the Minister of National Defence. Recommendation 16: Qualitative surveys of stakeholders and accused persons on the administration of military justice at summary level should be conducted every three years by the Assistant Deputy Minister (Review Services) in collaboration with ojag.

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Towards a Vanguard Justice

From their origins in the nineteenth century until now, summary trials in the Canadian Armed Forces have served as a punitive tool to maintain discipline amongst troops. At the beginning, their underlying principle was similar to that of their civilian counterpart: to keep the peace and order within the lowest classes of society without having to resort to a more formal criminal process, namely a jury trial or a court martial. This form of social control has eroded over time. But something was, is, and will be unique to this process within the military context: to serve as the ultimate way to restore discipline and unit cohesion so that mission success is not compromised. But while civilian summary justice has evolved towards better protection of individual legal rights, military summary trials have been kept apart from judicial actors and oversight. Part of this could be explained by a legitimate concern to avoid ‘juridifying’ a straightforward facts-based process. A more subtle yet self-interested motivation is a traditional reluctance from the executive branch to lose any control over military affairs to another branch of the government – sometimes with no apparent reason, as if such control were a ‘security blanket.’ Currently, summary trials in the Canadian Armed Forces are at crossroads. Retaining the status quo is not an option, as the system has many constitutional flaws. Decision-makers are not sufficiently independent. Accused lack sufficient legal assistance. Treatment of service members is unduly discriminatory based on ranks. Due to the absence of transcript, any meaningful oversight, such as an appeal, is illusory. In light of what other ‘free and democratic societies’ have

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done, in particular the Australians, the British, the Irish, and the New Zealanders, this cannot be justified in Canada. What’s next, then? Two trends guide us. The first option is to completely depenalize the system. We make it a purely administrative process dealing with minor misconduct yet maintaining strong rules of procedural fairness, setting the onus of proof of misconduct to the ‘clear and convincing evidence’ threshold, especially if sanctions have a long-lasting impact on careers. The other option, if any penal consequence is kept, is upgrading legal protection. That is the option I recommend, as it represents more of an evolution based on our military legal tradition and less of a paradigm shift likely to create confusion amongst operators. We provide concrete legal assistance – but not representation – throughout the process. We record the proceedings, save in exceptional circumstances. We give a right to appeal to a military judge, so that the trial before a commanding officer remains a straightforward facts-based process. We make sure that the decision to choose summary proceedings is voluntary and the accused is fully informed about the consequences, particularly the fact that it entails waiving all the basic features of an ordinary criminal trial. In any case, unsubstantiated rank distinction is to be eliminated. These options can vary provided the seriousness of the consequences is matched by the level of legal protection. The more serious the consequences, the greater the protection must be. Like a double pole circuit breaker. Unfortunately, this principle has not been followed in Bill C-77, currently before the Parliament of Canada at the time of writing. Despite the removal of detention from the punitive toolbox and the assertion that a summary hearing will not create a ‘conviction,’ service members will still face serious, lasting negative impact on their careers. The ‘sanctions’ will include reduction in rank and financial measures of a punitive nature, not to mention other as-yet-to-be-defined punitive sanctions labelled “minor sanctions.” Service members still have no access to meaningful legal assistance. Decision-makers are still not sufficiently independent. There is still no meaningful judicial oversight. Readers interested in military affairs should keep a careful eye on the forthcoming regulations to implement that ‘halfway’ piece of legislation. They also should anticipate legal challenges against it. Why was such an unsatisfying piece of legislation developed? I suggest that it is because we still conceive of military justice as lagging

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behind the civilian justice system. Too often, the issue is: how can we achieve parity with civilian justice, or – more often – how can we justify the lack of parity with civilian justice? For example, in Bill C-77, it is likely that the initial motivation was that military authorities realized they had no choice but to integrate the Canadian Victims Bill of Rights into military justice (to achieve parity with civilian justice). But they might have perceived the complexity of applying it to the summary trials system. Consequently, they found a way to circumvent the requirement to integrate the Declaration of Victims Rights at the summary trial level (to justify the lack of parity with civilian justice). By making look as if summary proceedings are not a criminal justice system anymore, there is no longer a requirement to integrate victims’ rights. Disappointingly, Parliamentarians were unable to propose amendments to Bill C-77 that would have corrected some of its flaws. In the end, Parliament has essentially delegated the entirety of law-making regarding the summary hearing process to the executive. In the House of Commons, partisan politics impeded any meaningful attempt to improve the legislation. As for the Senate, despite their good intentions, senators were – artificially in my opinion – subjected to an ‘emergency’ by government representatives, which left them in a Catch-22: either accept this imperfect piece of legislation that advances victims’ rights (albeit only marginally), or propose amendments that would likely have caused the Bill to die on the Order Paper (as military law is supposedly ‘not a priority’). In a mere few hours of hearings before Parliamentary committees, during which government representatives repeatedly gave assurances that ‘everything would be fixed in the regulations,’ Bill C-77’s fate was essentially sealed. After the defeat of last-minute attempts to amend Bill C-77, it was read a third time by the Senate late in the evening on 18 June 2019, without amendments. In a laudable effort to influence the reform, the Standing Senate Committee on National Security and Defence issued in its report fifteen “observations with emphasis on the importance of regulations for implementing the intent of the Bill.”1 It is likely that those were negotiated between senators and ojag representatives during a long pause of the clause-by-clause consideration on 28 May 2019. No matter how well-intended those observations are, however, they are not legally binding and remain in the political sphere. At the least, any jurist interested in military law must be very vigilant in reviewing the upcoming regulations in order to keep government officials on their

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toes and ensure that those officials minimally adhere to the commitment that they made before Parliamentarians. Besides, one observation is particularly troubling from a legal perspective: 9. In establishing minor sanctions, the government must avoid any deprivation of liberty in a manner that fails to respect the principles of fundamental justice. In other words, “minor sanctions” could potentially include a “deprivation of liberty” provided this respects “the principles of fundamental justice”? Let’s go back to Criminal Law 101 for a moment. If a “sanction” deprives a person of liberty – a denial of freedom – it is neither “minor” nor a “sanction,” but a “punishment,” as it is a “true penal consequence.” Moreover, it triggers habeas corpus. Then, if it is a “true penal consequence,” the Charter’s section 7 (which includes all principles of fundamental justice, including the proof beyond any reasonable doubt) and section 11 apply. The problem is that Bill C-77 provides for a reduced onus of proof on a balance of probabilities.2 It is impossible to circumvent that contradiction unless one has a particularly ‘creative’ legal mind. As a bare minimum, the appropriate and coherent wording of this observation would have been: 9. In establishing minor sanctions, the government must not expose the person charged with a service infraction to deprivation of liberty. The underlying intent behind the observation might be that government officials wish to be able to keep some form of ‘confinement to ship or barracks’ – perhaps under different nomenclature, but having the exact same effect – by claiming that the summary hearing system provides “a complete, comprehensive and expert scheme which provides review that is at least as broad and advantageous as habeas corpus.”3 The next step would be to stretch the argument that the system then necessarily respects the principles of fundamental justice. Let me be clear. If this is indeed the plan, no one should be misled by this attempt to discard a basic tenet of Canadian criminal law. If you are exposed to deprivation of liberty by the State because the State pretends you have committed an alleged misconduct, you have the right to counsel, you have the right to a fair trial before an independent

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judge, and you are presumed innocent until proven guilty beyond any reasonable doubt. Why so? Because these principles of law correct the power imbalance between you and the State. The fact that you are serving in the c a f does not change this golden rule one iota. If the plan is to introduce a sanction that, for a relatively short period of time, continuously or intermittently (e.g., on weekends), would limit movement to a military installation, without the extra work and drill currently associated with it, allowing service members to go freely within those limits, with no particular stigma while serving the sanction nor lasting consequences on their career, and giving the chain of command the flexibility to lift – temporarily or completely – the sanction in exigent circumstances (e.g., a family emergency back home), we would then have an interesting debate. Would this “CB-light” be rather a restriction than a deprivation of liberty? Would it be a ‘true penal consequence’? Which level of legal protections should it entail? How Bill C-77 was developed, discussed, and adopted is an illustration that we need to re-establish the Law Reform Commission of Canada. A non-partisan and independent body of legal experts would be more suitable to conduct the necessary methodical and objective consultations with all actors interested in military justice, first and foremost with service members, and not only with military commanders. A law reform commission would then be in a better position to propose to the government and then to Parliament a thoughtful and balanced legislation that has the best chances to fit the military context. In military law reform, the focus should change. Again, we are dealing with a specialized group operating in a unique context. The question should be: how can we best maintain discipline in a prompt yet fair manner amongst a close-knit group of specially trained individuals so that everyone – complainants, witnesses, accused, offenders, and victims – can resume their mission in a hostile environment, during any type of operations, including a large-scale conflict? No civilian justice system has a similar focus. Why think outside the box? Because the women and men serving in the c a f have a duty to obey lawful commands and put their lives at risk in the defence of Canada here and abroad. By joining the caf, they do not cease to be individuals entitled to legal protections, whether as complainants, witnesses, accused, or victims. Should they personally feel that their rights, interests, or privileges are at risk, not

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Conclusion 187

only can they not go on strike, but it is unlawful for them to form what may be characterized as a ‘labour association’ or even to sign a petition calling for such an association. If, in a military law reform or a new set of caf regulations, their rights – as victims or accused – are not sufficiently taken into account, who would take their defence? It is precisely because individual service members have little or no voice in the context of reforming military justice, that we must candidly aim at developing a system that will meet the operational needs of the military commanders (and even please their political masters), but will also, from a human rights perspective, be a vanguard system. The people who defend this nation deserve no less.

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Ap p e n d i c e s

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Appendix A

S u m m a ry T r ia l P ro c es s – Flowchart

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Appendix B

q r & o 1 0 7 . 0 7 – F o r m of Record o f D is c ip l in a ry P roceedi ngs

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Form of Record of Disciplinary Proceedings 193

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Appendix C

qr & o 1 0 8 . 0 7 – S u m m a ry Juri s di cti on – L is t o f O f fences (1) A commanding officer may try an accused person by summary trial in respect of the offences set out in paragraphs (2) and (3). (2) The offences under the National Defence Act that a commanding officer may try by summary trial are those contrary to the following provisions: 83 (Disobedience of Lawful Command), 84 (Striking or Offering Violence to a Superior Officer), 85 (Insubordinate Behaviour), 86 (Quarrels and Disturbances), 87 (Resisting or Escaping from Arrest or Custody), 89 (Connivance at Desertion), 90 (Absence Without Leave), 91 (False Statement in Respect of Leave), 93 (Cruel or Disgraceful Conduct), 95 (Abuse of Subordinates), 96 (Making False Accusations or Statements or Suppressing Facts), 97 (Drunkenness), 98 (Malingering or Maiming), 99 (Detaining Unnecessarily or Failing to Bring Up for Investigation), 100 (Setting Free Without Authority or Allowing or Assisting Escape), 101 (Escape from Custody), 101.1 (Failure to Comply with Conditions) 102 (Hindering Arrest or Confinement or Withholding Assistance When Called on), 103 (Withholding Delivery Over or Assistance to Civil Power), 106 (Disobedience of Captain’s Orders – Ships), 107 (Wrongful Acts in Relation to Aircraft or Aircraft Material), 108 (Signing Inaccurate Certificate), 109 (Low Flying), 110 (Disobedience of Captain’s Orders – Aircraft) 111 (Improper Driving of Vehicles), 112 (Improper Use of Vehicles),

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Summary Jurisdiction – List of Offences 195

113 (Causing Fires), 114 (Stealing), 115 (Receiving), 116 (Destruction, Damage, Loss or Improper Disposal), 117 (Miscellaneous Offences), 118 (Contempt of Service Tribunals), 118.1 (Failure to Appear or Attend), 120 (Offences in Relation to Billeting), 122 (False Answer or False Information on Enrolment), 123 (Assisting Unlawful Enrolment), 125 (Offences in Relation to Documents), 126 (Refusing Immunization, Tests, Blood Examination or Treatment), 127 (Negligent Handling of Dangerous Substances), 129 (Conduct to the Prejudice of Good Order and Discipline), subject to paragraph (4) of this article, 130 (Service Trial of Civil Offences), but only in respect of a civil offence referred to in paragraph (3) of this article. (3) The civil offences punishable under section 130 of the National Defence Act that a commanding officer may try by summary trial are those contrary to the following provisions of the Criminal Code and the Controlled Drugs and Substances Act: (a) in respect of the Criminal Code (Revised Statutes of Canada, 1985, Chapter C-46): 129 (Offences Relating to Public or Peace Officer), 266 (Assault), 267 (Assault with a Weapon or Causing Bodily Harm), 270 (Assaulting a Peace Officer), 334 (Punishment for Theft), where the value of what is stolen does not exceed five thousand dollars, 335 (Taking Motor Vehicle or Vessel Without Consent), 430 (Mischief), except mischief that causes actual danger to life, 437 (False Alarm of Fire); and (b) in respect of the Controlled Drugs and Substances Act (Statutes of Canada, 1996, Chapter 19): 4(1) (Possession of Substance).

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Appendix D

qr& o 1 0 8 . 1 5 – P rov is ion of I nformati on to   A c c u s e d Person BLANK FORM

INFORMATION PROVIDED IN ACCORDANCE WITH ARTICLE 108.15 (service number, rank, name and unit) (To be attached to r d p and provided to the accused person)

I. Investigation reports, witness statements or other information made available to the accused person:

II. Witnesses to be presented at summary trial:

III. Documentary and real evidence to be presented at summary trial:

Information provided to accused on (date) by (name, rank and position).

(signature)

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Provision of Information to Accused Person 197

EXAMPLE C34 567 890 Sergeant Green D.E., RCD (To be attached to the rdp and provided to the accused) I. Investigation reports, witness statements or other information made available to the accused: Investigation Report: m p i r c f b p 910-23-99 dated 23 August 1999 Investigation Report: m p i r c f b p 910-24-99 dated 24 August 1999 II. Witnesses to be presented at summary trial: B98 765 432 Capt Johns (21A) H44 555 666 Sgt D. Joyce (011) A11 222 333 Sgt A. Anderson (831) K11 222 666 Cpl J.P. Bouchard (811) A23 456 789 Cpl B. Jackson (011) III. Documentary and real evidence to be presented at summary trial: Cautioned statement provided to the Military Police by C34 567 890 Sergeant Green Dated 19 August 1999 Information provided to accused on 1 Sep 99 by c wo Gagnon, rsm, rcd. A.B. Gagnon c wo rsm rcd

999-8888

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Appendix E

C o n d it io n s O f C o n f i nement to S hi p o r   B a r r ac k s – Extract bso

4.02 (Last Modified Sept 07)

c f b KINGSTON RULES AND REGULATIONS FOR DEFAULTERS

GENERAL 1. This is an order that applies to all Canadian Forces personnel employed within Base Kingston. 2. This order is issued under the authority of the Base Commander, c fb Kingston. 3. The opi for this order is the b c wo, cf b Kingston. PROCEDURES 4. These Rules and Regulations shall be adhered to by all personnel sentenced to a punishment of Confined to Barracks, Extra Work and Drill, or Stoppage of Leave. The preceding personnel will be known as defaulters. The rules and routine for those personnel Released from Custody with Conditions also appear within this order. 5. The following general rules shall apply to all personnel on defaulters: a. once sentenced, defaulters will immediately report to the b c wo office accompanied by their S M for a briefing and sign the defaulters Declaration of Understanding attached as Annex A, as having read and understood these orders; b. the defaulter’s SM is responsible for the administration, control, and employment of the defaulter. The S M is also responsible for providing an nc o to act as Duty n co to supervise and inspect the defaulter throughout his or her punishment. The Duty nc o must be at least one full rank above the personnel on defaulters. The Duty n co ’ s responsibilities and report form are attached as Annex B;

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Conditions of Confinement to Ship or Barracks

199

c. the Base Duty Officer will conduct the 1800hr defaulter inspection on the first day of punishment and again every second day until the punishment is complete. The Duty n co will accompany the b do during these inspections and conduct all other inspections until the punishment is complete; d. defaulters will be dressed as instructed when reporting to the Duty nc o on defaulters parade; e. all defaulters extra drill will be conducted on McNaughton Parade Square or during inclement weather Thompson Drill Hall, or any other suitable area; and f. defaulters will not be excused drill or work at their own request. Excusal of defaulters from any portion of their punishment will be authorized only by the bcwo, or as a recommendation from a Medical Officer. RULES FOR CONFINEMENT TO BARRACKS, STOPPAGE OF LEAVE, OR EXTRA WORK AND DRILL PERSONNEL 6. Personnel serving a punishment of Confinement to Barracks will move into a Defaulters Room in B37 (Sherman Hall) and will remain in the Barracks except on the following occasions: a. when carrying out the normal daily tasks and or training on normal working days; b. when attending meals at the Base All Ranks Kitchen; c. when reporting to Sick Parade once cleared through the Duty n co or Base Duty Officer (b do ); d. when employed on defaulters Extra Work and Drill; e. when authorized to attend church services; and f. when authorized to use the c a n e x to purchase toiletries by the Duty nc o or b do. 7. Personnel serving a punishment of Confinement to Barracks will: a. not enter any Mess or Institute; b. not consume alcoholic beverages, or illicit/illegal drugs; c. not wear civilian clothing other than P T gear during normal working hours; d. not be allowed visitors unless otherwise authorized by the Duty nc o or b do; e. not appear at any place of entertainment; and

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200

Appendix E

f. not be allowed any personal items (radios, walkmans, m p 3 players, cell phones, game like items ... etc) or food items in their room. […] DRESS 10. The following orders of dress will be worn during defaulters: a. Parade Order dress will consist of: (1) Ceremonial Dress No 1A Medals only, with Ankle boots; (2) weapons will not be carried; and (3) in inclement weather, raincoats may be worn but will be removed for inspection. b. Dress of the Day will consist of: (1) c a d pat with beret and Combat boots; and (2) in inclement weather the appropriate wet weather gear may be worn but will be removed for inspection. c. Marching Order will consist of: (1) c a d pat with helmet and Combat boots; (2) Tactical vest, or personal webbing packed as per kit list; (3) rucksack packed as per kit list; and (4) in inclement weather the appropriate wet weather gear may be worn but will be removed for inspection. d. Fighting Order will consist of: (1) c a d pat with helmet and Combat boots; (2) Tactical vest, or personal webbing packed as per kit list; and (3) in inclement weather the appropriate wet weather gear may be worn but will be removed for inspection. ROUTINE 11. Following the initial reporting period at the BCW O ’s office, all personnel Confined to Barracks will report dressed in the appropriate order of dress at the following times: a. normal work days: (1) 0645hrs – Dress of the Day for inspection; (2) 1800hrs – Marching Order for room inspection;

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Conditions of Confinement to Ship or Barracks

201

(3) 1900hrs – Fighting Order with gloves for 2 x 20min ­periods of drill and extra work; (4) 2100hrs – Parade Order Dress for inspection; and (5) 2200hrs – Dress of the Day for inspection. b. Saturdays: (1) 0800hrs – Parade Order Dress for inspection; (2) 0900hrs – Fighting Order with gloves for 2 x 20min ­periods of drill and extra work; (3) 1100hrs – Dress of the Day for inspection; (4) 1300hrs – Fighting Order with gloves for 2 x 20 min periods of drill and extra work; (5) 1600hrs – Dress of the Day for inspection; (6) 1800hrs – Marching Order for room inspection; (7) 1900hrs – Dress of the Day with gloves for extra work; (8) 2100hrs – Dress of the Day for inspection; and (9) 2200hrs – Parade Order Dress for inspection. c. Sundays and holidays: (1) 0900hrs – Dress of the Day for inspection; (2) 1300hrs – Dress of the Day for inspection; and (3) 2100hrs – Dress of the Day for inspection. 12. Reveille will be at 0600hrs during the workweek and 0700hrs on Saturdays and Sundays. Lights out will be 2300hrs nightly. During the period of lights out to reveille no work will be carried out. … SIGNATURE 25. All defaulters will sign the declaration below as having read and fully understood these orders. Defaulters SM will sign as witnessed the defaulter reading and understanding his or her duties.

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Appendix F

Di f f e r e n c e s in T r e at m ent between Ranks in   S u m m a ry P ro ceedi ngs Lower ranksi

Procedural aspects Pre-charge legal advice Pre-trial/postcharge legal advice Presiding Officer Proportioniii Jurisdiction Potential punishmentiv

Criminal offence

Required only if it would give rise to election or offence can only be dealt with by court martial Required only if it would give rise to election or offence can only be dealt with by court martial Delegated Officer Commanding Officer 81% of summary trials Disciplinary offences only – Reprimand – Fine (max 25%) – Confinement to ship or barracks (14 days) – Extra work & drill (7 days) – Stoppage of leave (14 days) – Caution

Least exposed

Higher ranksii Always

Always

Superior Commander 15% of summary 4% of summary trials trials Disciplinary and some criminal offences – Detention (30 days) – Reduction in Rank – Reprimand – Fine (max 60%) – Confinement to ship or barracks (21 days) – Extra work & drill (14 days) – Stoppage of leave (30 days) – Caution Most exposed

– Severe Reprimand – Reprimand – Fine (max 60%)

Less exposed

i

Private/Ordinary Seaman and Able Seaman/Airman, Corporal/Leading Seaman, Master Corporal/Master Seaman, Sergeant/Petty Officer 2nd class,. ii Warrant Officer/Petty Officer 1st class, Master Warrant Officer/Chief Petty Officer 2nd class, Chief Warrant Officer/Chief Petty Officer 1st class and all officers from Officer cadet/ Naval Cadet and above. iii JAG Annual Report 2009-10. Following reports do not provide such data. iv Officer Cadets are considered of lower rank for that purpose.

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Appendix G

Com pa r in g R e v ie w in S ummary Proceedi ngs w it h C o u rt M a rti al Appeal Summary Trial Review Features

Appeal before CMAC

QR&O , art 108.45

QR&O , art 116.02

a) Proces s Initiated by

Prosecution or defence

Offender

Timings

30 days from decision

14 days from decision Yes

Time extension Yes Grounds Legality of any finding of guilty

Legality of whole or part Unjust findings of the sentence Sentence unjust or too severe With leave, the severity of the sentence

Leave File Submission of arguments

Other Only for the severity of the sentence Written decisions + Trial transcript Factums of both parties + Hearing

No Presiding Officer’s note + R D P i – Request in writing (memorandum or letter); – Comments from presiding officer QR&O, art 108.45

Commanding officer on legal advisor’s review Anytime N/A Initial step: errors on the face of the record and non-compliance with procedural requirements, then: Unjust findings Sentence unjust or too severe No R DP None

Governed by

Rules of Appeal Procedure b) Decision- m a k e r

Nature Training Numbers Relationship with the individual Representation

Judges Legally trained Three Outside their chain of command

High-rank officers Not legally-trained (unless rare exceptions) One Part of their chain of command

Legal Counsel

Assisting Officer

i

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No particular rules

None

Record of Disciplinary Proceedings.

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204

Appendix G Summary Trial Review

Features

Appeal before CMAC

QR&O , art 108.45

QR&O , art 116.02

c) Outcome Dispositions

Timings

If appeal allowed, set aside finding (not guilty, guilty or direct new trial) or substitute finding Alter sentence Variable. Usually within a year following the notice of appeal

Force of res judicata

High

Potential following steps

Appeal to SCC

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Quash/Substitute/Confirms findings but no conviction where acquittals Alter (Substitution/Mitigation/Remit/ Commit) sentence but never increases. Prescribed by regu- Variable. Shortly after commanding officer’s lations. Within review occurs (as the 21 days after request, 35 days if case may be) additional information was sought Relatively high (however if quashed, offender may be tried as if no previous trial had been held.) Judicial Review C DS acting as review authority

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Hearing Conduct Board

Balance of probabilities Yes

Forum

Onus of proof

Record of the proceedings

Initial review

Conduct measure imposed by conduct authority Review authority

Initial procedural step

RCMP Disciplinary complaint

Balance of probabilities Balance of probabilities Yes Yes

Ontario Policing Discipline Tribunal

None

Disciplinary measure

SQ

Person processing the complaint Disciplinary interview Designated Officer Hearing Discipline Committee (1 or 3 members)

Ontarioi

Police disciplinary process

Beyond any reasonable doubt No

Summary Trial – Commanding Officer; – Delegated Officer; – Superior Commander

Unit Legal Advisor

Charge (service offence)

Current

Summary military justice

Summary Hearing – Commanding Officer; – Delegated Officer; – Superior Commander Balance of probabilities Unknown

Unknownii

Charge (service infraction)

C-77

Co mpari s on – Po li ce Di s ci pli nary Regi mes – Summary Trials

Appendix H

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No

Divisional Court

Termination of Employment Written

No, if conditions are met

Review Authority

Oral but conclusions summarized in the R DP

Detention for 30 days

No

Review Authority

Unknown

Reduction in rank

Unknown

As provided for in Police Services Act, SO 2018, c 3, Schedule 1, and Ontario Policing Discipline Tribunal Act 2018, SO 2018, c 3, Schedule 3, which are not in force yet. ii By ‘unknown,’ it means that aspect as yet to be defined by regulations, once Bill C-77 would receive Royal Assent.

i

Criminal record

Commissioner of the Director General of the R CM P (with advice Sûreté du Québec from External Review Committee) No No

Appeal or review

Written

Written

Dismissal

Format of the decision

Maximum penalty

Yes if member subject to stoppage of pay, dismissal or respondent on review Dismissal

Legal representation

Appointment by cabinet Members and employees are protected from personal liability; cannot be required to give testimony On request (in practice a Yes (of his or her choice Yes rarity) or designated by union Assisting Officer or association)

Individual can object Members appointed for 2-year term to a member of the Under DG’s authority board Member can be challenged for cause

Decision-maker

None

None

High

Partially

Low

C-77

Current

Ontarioi

Summary military justice

SQ

Independence

RCMP

Police disciplinary process

206 Appendix H

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Appendix I

L is t o f In m at e D is c ip l i nary Offences – ( c c r a , s 40) 40 An inmate commits a disciplinary offence who (a) disobeys a justifiable order of a staff member; (b) is, without authorization, in an area prohibited to inmates; (c) wilfully or recklessly damages or destroys property that is not the inmate’s; (d) commits theft; (e) is in possession of stolen property; (f) is disrespectful toward a person in a manner that is likely to provoke them to be violent or toward a staff member in a manner that could undermine their authority or the authority of staff members in general; (g) is abusive toward a person or intimidates them by threats that violence or other injury will be done to, or punishment inflicted on, them; (h) fights with, assaults or threatens to assault another person; (i) is in possession of, or deals in, contraband; (j) without prior authorization, is in possession of, or deals in, an item that is not authorized by a Commissioner’s Directive or by a written order of the institutional head; (k) takes an intoxicant into the inmate’s body; (l) fails or refuses to provide a urine sample when demanded pursuant to section 54 or 55; (m) creates or participates in (i) a disturbance, or (ii) any other activity that is likely to jeopardize the security of the penitentiary; (n) does anything for the purpose of escaping or assisting another inmate to escape; (o) offers, gives or accepts a bribe or reward; (p) without reasonable excuse, refuses to work or leaves work; (q) engages in gambling; (r) wilfully disobeys a written rule governing the conduct of inmates; (r.1) knowingly makes a false claim for compensation from the Crown;

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208

Appendix I

(r.2) throws a bodily substance towards another person; or (s) attempts to do, or assists another person to do, anything referred to in paragraphs (a) to (r).

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Appendix J

Com pa r is o n – In m at e D is ci pli nary Regi me – S u m m a ry Tri als Legislati on Penitentiary

Military

Corrections and Conditional Release Act. SC 1992, c 20 [CCRA ] Corrections and Conditional Release Regulations SOR/92620 [CCRR ]

National Defence Act, R S C 1985, c N-5, Part III [NDA ] Queen’s Regulations and Orders (QR&O ) Vol II, “Discipline,” c 107 & 108 Bill C-77

Purpos e The purpose of the Code of Service Discipline is to maintain the discipline, efficiency and morale of the Canadian The purpose of the disciplinary Forces. system established by sections For greater certainty, the behaviour of persons who are 40 to 44 and the regulations is subject to the Code of Service Discipline relates to the disto encourage inmates to concipline, efficiency and morale of the Canadian Forces even duct themselves in a manner when those persons are not on duty, in uniform or on a that promotes the good order defence establishment. of the penitentiary, through a process that contributes to the [cl 4 C-77, adding subs 55(1) NDA ]. inmates’ rehabilitation and suc- The purpose of summary proceedings is to provide prompt but fair justice in respect of minor service offences cessful reintegration into the and to contribute to the maintenance of military discipline community. and efficiency, in Canada and abroad, in time of peace or [s 38, CCRA ]. armed conflict. [QR&O 108.02] Charging pro c e s s – Informal resolution – Minor disciplinary offence – Serious disciplinary offence [ss 41 & 42, CCRA ]

Current Right to elect court martial unless minor offence (the vast majority of cases) [QR&O 108.17]

Bill C-77 Summary only No right to elect court martial [cl 25, C-77 replacing 162.5 NDA ]

Forum Hearings [sub. 43(1) & (2), CCRA ]

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Current Summary Trials [ss 162.3 to 164.1 NDA ; QR&O c 108]

Bill C-77 Summary Hearings [cl 25, C-77, new ss 162.4, 162.94 ff NDA ]

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210

Appendix J Penitentiary

Military Onus of Pro o f

Beyond any reasonable doubt [subs 43(1) & (2) CCRA ]

Current Beyond any reasonable doubt [QR&O 108.20(7)]

Bill C-77 Balance of probabilities [cl 25, C-77, new s 163.1 NDA ]

Punishments/penalti e s / sa nc t i ons Current a) a warning or reprimand; [s 44(1)(a) CCRA ] b) loss of privileges (minor: 7 days; serious: 30 days); [s 44(1)(b) CCRA ; s 35 CCRR ] c) an order to make restitution, including in respect of any property that is damaged or destroyed as a result of the offence (minor: $50; serious $500); [s 44(1)(c); s 36 CCRR ] d) a fine (minor: $25$; serious: $50); [s 44(1)(d); s 37 CCRR ]

1. Commanding Officer a. Detention (30 days)

a. Reprimand;

b. Reduction in rank (1 effective rank)

b. Deprivation of pay and allowances (18 days);

c. Reprimand

c. Minor sanctions [unknown for now].

d. Fine (60% basic monthly pay) e. Confinement to ship/ barracks (21 days)

[s 44(1)(f) CCRA ]

[cl 25, C-77, ss 162.7 c) to e) and 163.1(2) NDA ] 2. Delegated Officer

f. Extra work and drill (14 days)

a. Deprivation of pay and allowances (7 days);

g. Stoppage of leave (30 days)

b. Minor sanctions [unknown for now].

h. Caution [QR&O 108.24]

e) performance of extra duties 2. Delegated Officer a. Reprimand (minor: 10 hrs; serious: 30 hrs); b. Fine (25% basic [s 44(1)(e); s 39 CCRR ] monthly pay) f) in the case of a serious disciplinary offence, segregation from other inmates – with or without restrictions on visits with family, friends and other persons from outside the penitentiary – for a maximum of 30 days. [Only an independent chairperson could impose that sanction. Bill-83 proposes to remove it].

Bill C-77 1. Commanding Officer

[cl 25, C-77, ss 162.7 d) to e);163.1(3) NDA ] 3. Superior Commander a. Reduction in rank; b. Severe reprimand; c. Reprimand;

c. Confinement to ship/­ barracks (14 days)

d. Deprivation of pay and allowances (18 days);

d. Extra work and drill (7 days)

e. Minor sanctions [unknown for now].

e. Stoppage of leave (14 days)

[cl 25 C-77, ss 162.7, 163.1(1) NDA ]

f. Caution [QR&O 108.25] 3. Superior Commander a. Severe reprimand b. Reprimand c. Fine (60% monthly basic pay) [QR&O 108.26]

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Inmate Disciplinary Regime 211 Penitentiary

Military Independence of de c i s i o n - m a k e r

Serious Minor Yes No Independent Institutional head or a staff chairperson member [ss 24 & ­designated by 27(2) CCRR ] the institutional head. [subs 27(1) CCRR ]

Current No Commanding Officer Delegated Officer Superior Commander

Bill C-77 No Commanding Officer Delegated Officer Superior Commander

Legal Represe ntat i on Minor No

Serious Yes [subs 31 (2) CCRR ]

Bill C-77 Absent

Current On request (in practice, case usually referred to court martial) Recordi n g

Yes [s. 33 CCRR ]

Current No

Bill C-77 Absent

Review Yes but the process is not specified “The Service shall ensure that all hearings of disciplinary offences are recorded in such a manner as to make a full review of any hearing possible” [subs 33(1) CCRR ]

Current Commanding Officer on his/her own motion [QR&O 116.02] On request to the Commanding Officer or the next superior officer [QR&O 108.45]

Bill C-77 C D S and any other military authorities On authority’s own initiative [cl 25 C-77, s 163.6 NDA [Unknown process]

Criminal Con v i c t i on No

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Current No, if conditions are met (minor offences, minor sanctions)

Bill C-77 No

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Yes, unless minor Summary Trial

NZ Charge

Higher Authority

CO

ii

Superior Commander

CO

Sub. Comd.

Sub. Comd.i Det. Comd.iii

Summary Hearing

Universal

UK Charge

i Subordinate Commander ii Commanding Officer iii Detachment Commander iv Subordinate Summary Authority v Superior Summary Authorities

Right to elect court martial Process

Initial step

3rd Level

2nd Level Minister, Regimental Commander, Brigade commander upwards

Battalion Commander

Company Commander

Disciplinary Superior

Summary Discipline Authority 1st Level

Germany Disciplinary offence No

France Disciplinary infraction No Yes

Australia Charge Universal

Ireland Charge

Non-Judicial Punishment (N JP )

– S UP S A v

– CO

Minor Summary Disciplinary Disposal Infringements Sub. Officer (M DI ) Commanders Commanding By Discipline Summary Court Officers Martial (S C M ) officer Authorised Summary No jurisdiction Officers Authority over officers Proceedings and warrant – S UB S A iv officers

Yes

USA Minor offence

– Superior Commander

– Commanding Officer;

– Delegated Officer;

Yes, unless minor Summary Trial

Canada Charge

Com pa ris on – Su mma ry Proceedi ngs – Forei gn Mi li tary Juri sd ictio n s wi th Canada

Appendix K

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NJP : Variable depending on service SCM

Balance of probabilities

No Spokesperson

No Assisting Member

No

Defending Officer

Part of the chain of command

No

Part of the chain of command

Assisting Officer

Part of the chain of command

Spokesperson

But right to consult a lawyer priorvii

An officer acting as a ‘magistrate’ NJP : No

Part of the chain of command S C M : Low.

N JP : No.

No

No

No

No

Part of the chain of command

No

Unknown

No

Yes

No

Beyond any ­reasonable doubt

USA No

Germany No

Beyond any reasonable doubt

M DI : Admission

Defending Officer

No, but on request

No

Part of the chain of command

Assisting Officer

On request

No No No

Part of the chain of command

No

Unknown

Beyond any reasonable doubt

Canada Yes

Beyond any reasonable doubt Yes

Summary Authority

Ireland No

Australia No

vi In addition, commanding officer must determine if there is a victim and if the alleged offence is a specified offence and advise the Director of Military Prosecutions, who then will assist each victim. vii No right in the US Navy and US Marine Corps but recommended, if circumstances permit.

Legal representation

Initial level

Record of the proceedings Independence

Jurisdiction over criminal offence Onus of proof

NZ France Yes, excludNo ing most serious onesvi Balance of Beyond any Beyond any probabilities reasonable reasonable doubt doubt

UK Yes

Foreign Military Jurisdictions with Canada 213

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(3 days–3 weeks)

Disciplinary Arrest

Germany

Termination of contract

3rd group:

Confinement But with approval of a (40 days) judge of the nd 2 group: 28 days, Military Removal any other Disciplinary circumstances from the Complaints promotion Court list

Ministerial Severe Reprimand

60 days if offence committed on active service or sea service)

CO ’s Basic Powers (28 days)

CO ’s Extended Powers (90 days)

1st group:

Detention

Detention

viii Warrant Officers ix Non-commissioned members x Non-commissioned officers

Maximum punishment penalty

France

NZ

UK

Confinement (30 days)

Enlisted

Summary Court Martial

Correctional custody (30 days)

Enlistedix

Restrictions to specified limits (30 days)

Officers/W O viii

U S A F : defence counsel by policy Non-Judicial Punishment

But may request civilian counsel

USA S C M : No

(1-28 days)

Detention

Australia

Canada

Fine – 3 days pay

Private (by subordinate officer)

Reduction of 1 increment of pay (1 year)

Private (by C O)

Reduction of 1 increment of pay (1 year)

Detention Officers and 2 most senior (1–30 days) NC Osx

Ireland

214 Appendix K

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(for high rank officers)

High Military Council

(for 3rd group sanctions)

Inquiry Board

or Military Service Court

Either on findings, punishments or both

On punishment Petition only: ‘unjust or On request by disproportionthe individual ate further review to C DF or a SCM: Service Chief Convening Authority

By Reviewing Authority

Summary Court Martial (S C M)

If by Commanding Officer

Commanding Officer

If by subordinate officer

Military Disciplinary Complaints Court

Automatic

Disciplinary Summary Board Appeal Court of New (for 2nd Zealand group sanctions)

N JP : Appeal to “Superior Authority”

Summary Appeal Court

Ireland Unknown

Australia Record of Proceedings

UK NZ France Germany USA NJP : Record of Disciplinary Decision in Oral but Audio non-judicial writing, with order set down results recording punishment in writing. exceptions recorded on Unless not R S H xi S C M : Record reasonably of Trial practicable to do so.

xi Record of Summary Hearing xii Record of Disciplinary Proceedings

Appeal or review

Format of the decision

Review Authority

Canada Oral but results recorded on R DP xii

Foreign Military Jurisdictions with Canada 215

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Yes, in the majority of cases

Yes

(1 judge + 2 service members)

Judicial Body

UK Yes France No

No

Defending Officer No

Judicial Body Part of the chain of commandxiii (1 court ­martial judge) Yes No

NZ Yes

No

‘Spokesperson’

No

Germany Yes

No

No

Part of the chain of command

USA No

No

No

Part of the chain of command

Australia No

No

S C M: Yes

C O: No

No, if conditions are met

Ireland Canada No C O: No. Part of the Part of the chain-of-­ chain of command command S CM: Yes. Judicial Body

xiii But subsequent internal administrative redress process up to Inspector General of the Forces and Minister. Possibility to seize administrative tribunals.

Criminal record

Legal representation on appeal/review

Independence review/appeal

216 Appendix K

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Appendix L

U S A r m y S u m m a ry C o urt Marti al Ri ghts N o t if ic at io n / W a iver Statement SUMMARY COURT-MARTIAL RIGHTS NOTIFICATION/WAIVER STATEMENT For use of this form, see AR 27-10; the proponent agency is OTJAG

1. STATEMENT CONCERNING REFUSAL TO ACCEPT QUALIFIED COUNSELING, ARTICLE 20, UCMJ AND UNDERSTANDING OF RIGHTS a. On

, I was afforded an opportunity to consult with legal counsel before making my decision to consent to Summary Court-Martial (Date) proceedings under Article 20, UCMJ.

b. I have decided not to see counsel in connection with this action. c. I understand my rights under Article 20, UCMJ, including my right to object trial by Summary Court-Martial, punishment limitations, potential use of the record of Summary Court-Martial in any subsequent courts-martial, and other consequences of my decision. d. I voluntarily decide to consent to trial by Summary Court-Martial. TYPED OR PRINTED NAME OF SERVICE MEMBER

RANK

SIGNATURE

TYPED OR PRINTED NAME OF SUMMARY COURT-MARTIAL OFFICER

RANK

SIGNATURE

2. STATEMENT ACKNOWLEDGING QUALIFIED LEGAL COUNSEL FOR ARTICLE 20, UCMJ, AND STATEMENT OF UNDERSTANDING OF RIGHTS a. On

(Date)

, I consulted with

who

(Name and Rank of Defense Counsel)

explained my rights to me under the provisions of Article 20, UCMJ, to include my right to object to trial by Summary Court-Martial, punishment limitations, potential use of the record of Summary Court-Martial proceedings in any subsequent courts-martial, and other consequences of my decision. b. I understand my rights and voluntarily decided to consent to trial by Summary Court-Martial.

TYPED OR PRINTED NAME OF SERVICE MEMBER

RANK

SIGNATURE

of his or her statutory and regulatory rights with regard to this (Name and Rank of Service Member) Summary Court-Martial and the possible consequences of his or her consent or objection to trial by Summary Court-Martial. c. I have advised

TYPED OR PRINTED NAME OF DEFENSE COUNSEL BRANCH

RANK

SIGNATURE

3. REFUSAL TO ACKNOWLEDGE RECEIPT OF ADVICE - ARTICLE 20, UCMJ After I advised

(Name (First, MI, Last))

of his

(Rank)

or her rights to consult with legal counsel before making a decision to consent or object to Summary Court-Martial proceedings under Article 20, UCMJ, he or she refused to complete and sign an acknowledgment of receipt of the advice. TYPED OR PRINTED NAME OF SUMMARY COURT-MARTIAL OFFICER

RANK

SIGNATURE

REMARKS

DA FORM 5111, NOV 2009

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PREVIOUS EDITIONS ARE OBSOLETE.

APD PE v1.00ES

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Notes

C ha p t e r o n e   1 The facts of this scenario are inspired by the case of R v Balint, 2011 C M 1012 (CanLII). In that case, the accused was an officer cadet.  2 National Defence Act (hereafter nda ), rsc 1985, c N-5, s 90.   3 Canada, National Defence, Defence Administrative Orders and Directives (hereafter daod ) 7006-1, Preparation and Maintenance of Conduct Sheets (Ottawa: National Defence, 31 March 1998).   4 This scenario is a variation of the circumstances of R v Jonasson, 2019 C M 2003 (CanLII), paras. 7–22. In that case, the accused was a lieutenant-colonel.  5 Criminal Code, rsc 1985, c C-46, s 266.  6 nda , s 97.  7 nda , s 129.   8 Canada, National Defence, daod 5012-0, Harassment Prevention and Resolution (Ottawa: National Defence, 20 December 2000).   9 Marie Deschamps, External Review into Sexual Misconduct and Sexual Harassment in the Canadian Armed Forces (Ottawa: National Defence, 2015), at 20–1 (hereafter Deschamps Report). 10 Canada, National Defence, daod 5019-5, Sexual Misconduct and Sexual Disorders (Ottawa: National Defence, 26 September 2008). 11 nda , s 129 in conjunction with Queen’s Orders and Regulations, art. 20.04 (hereafter qr&o ). 12 qr&o , art. 104.09 note A. 13 Canada, National Defence, ddcs Manual (Ottawa: Office of the Judge Advocate General [hereafter o jag], n.p.), ch. 4, 2. 14 See for example R v Private S C Johnstone, 2007 C M 4007 (CanLII).

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220

Notes to pages 8–12

15 Most of the provisions of Bill C-15, An Act to amend the National Defence Act and to make consequential amendments to other Acts, 1st Sess, 41st Parl, 2013 (assented to 19 June 2013), SC 2013, c 24 pertaining to military justice, along with related regulations, came into force on 1 September 2018. 16 Canada, National Defence, 2017–2018 Annual Report of the Judge Advocate General to the Minister of National Defence on the Administration of Military Justice from 1 April 2017 to 31 March 2018 (Ottawa: ojag , 2018), 11–17. 17 Ibid., 12. 18 Ibid., annex B. 19 Ibid. 20 Ibid., 17. 21 Ibid. 22 Statistics Canada, Adult Criminal and Youth Court Statistics in Canada 2016/2017, by Zoran Miladinovic, Catalogue No 85-002-X (Ottawa: Statistics Canada, January 2019), 8–9. 23 This number is the sum of service members who have served detention for each year from 1 Sept 1999 to 31 March 2018 as reported in jag annual reports. 24 2016 scc 27. 25 [2017] 1 s cr 659. 26 French statesman Georges Clémenceau (1841–1929) is alleged to have said, “Il suffit d’ajouter ‘militaire’ à un mot pour lui faire perdre sa signification. Ainsi la justice militaire n’est pas la justice, la musique militaire n’est pas la musique,” which can be translated as: “It suffices to add ‘military’ to a word for it to lose its meaning. [Thus] military justice is to justice what military music is to music.” See Fred Garner, The Unlawful Concert: An Account of the Presidio Mutiny Case (New York: Viking, 1970), 111, where Paul Halnovik of the American Civil Liberties Union is reported to have used Clémenceau’s quote to describe courts martial of US military prison ‘mutineers’ in the late sixties. 27 See generally John Cerullo, Minotaur: French Military Justice and the Aernoult-Rousset Affair (DeKalb, i l: Northern Illinois University Press, 2011). 28 nda , ss 9.2(1)(2), 9.3(2), 165.17(5), 180(2)(b), 196.14(2)(3); qr&o , arts. 101.19, 107.14 Note A, 107.15 Note, 112.10, 112.56, 119.313(5). 29 nda , s 2. 30 Ibid.

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Notes to pages 12–21

221

31 Ibid., s 70. 32 rsc 1985, c G-3. 33 Canada, National Defence, daod 5019-4, Remedial Measures (Ottawa: National Defence, 13 July 2007). 34 Canada, National Defence, daod 5019-0, Conduct and Performance Deficiencies (Ottawa: National Defence, 22 December 2004). 35 nda , ss 29–29.28; qr&o , ch. 7. 36 R v Généreux, [1992] 1 s cr 259, 296, 1992 CanLII 117 (sc c ) [Généreux]. 37 Généreux, 293. 38 [2015] 3 s cr 485, 2015 s cc 55 (CanLII) [Moriarity]. 39 Moriarity, para. 8. 40 Moriarity, para. 52. 41 R v Cawthorne, 2016 s cc 32 (CanLII). 42 Moriarity, para. 31. 43 R v Wholesale Travel Group Inc, [1991] 3 s c r 154 (CanLII), 218–19. 44 Reference re Firearms Act (Can.), [2000] 1 sc r 783, 2000 sc c 31 (CanLII), para. 27. 45 Maurice de Saxe, Reveries on the Art of War, translated and edited by Thomas R. Phillips (Mineola, n y: Dover Publications, 2007), 77. 46 Michel W. Drapeau and Joshua M. Juneau, “Is It Time for Canada to Follow Europe and Allow a Professional Military Association?” Ottawa Citizen, 23 February 2014. 47 Canada, National Defence, B-G G -005-027/A F-011, Military Justice at the Summary Trial Level, v 2.2 (Ottawa: Canadian Defence Academy, 12 January 2011), ch. 1, paras. 33–6. 48 This scenario is based on what should have happened (but did not) in the case of Billard v R, 2008 cm ac 4 (CanLII). 49 See generally Canada, National Defence, Duty with Honour, 2009, A - P A-005-000/AP-001 (Kingston, on: Canadian Defence Academy, 2009), ch. 1, “The Military Profession in Canada,” section 2, “Evolution of the Profession of Arms,” 5–9. 50 R v Blinn, 2015 CM 2024 (CanLII), para. 8. 51 Stewart v R, 1993 CanLII 8745 (cmac ), 9. 52 Duty with Honour, 14, 28. 53 qr&o , art. 104.13(3). 54 Canada, National Defence, Office of the Judge Advocate General, “National Defence and the Canadian Armed Forces,” http://www. forces.gc.ca/en/about-policies-standards-legal/index.page. 55 R v Sinclair, [2010] 2 s cr 310, 2010 sc c 35 (CanLII), para. 38.

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222

Notes to pages 21–4

56 Alan Watson, Legal Transplants – An Approach to Comparative Law, 2nd ed. (Athens, g a: University of Georgia Press, 1993), 17. 57 Eugene R. Fidell, “A Worldwide Perspective on Change in Military Justice,” in Evolving Military Justice, edited by Eugene R. Fidell and Dwight H. Sullivan (Annapolis, m d: Naval Institute Press, 2002), 209. 58 Ibid., 213. 59 Gilles Létourneau and Michel W. Drapeau, Military Justice in Action: Annotated Defence Legislation, 2nd ed. (Toronto: Carswell, 2015), 59–60; Michel Drapeau, “Bill C-15: Strengthening the Military Justice System, More Questions than Answers,” The Hill Times, 23 July 2012; Gilles Létourneau, Introduction to Military Justice: An Overview of Military Penal Justice System and Its Evolution in Canada (Montreal, q c : Wilson & Lafleur, 2012), 36–9. 60 Victor Hansen, “The Impact of Military Justice Reforms on the Law of Armed Conflict: How to Avoid Unintended Consequences,” Michigan State International Law Review 21, no. 2 (2013): 260. 61 Mike Madden, “Keeping Up with the Common Law O’Sullivans? The Limits of Comparative Law in the Context of Military Justice Law Reforms,” Alberta Law Review 51 (2013): 149. 62 Mike Madden, “Comparative Cherry-Picking in a Military Justice Context: The Misplaced Quest to Give Universally Expansive Meaning to International Human Rights,” George Washington International Law Review 46 (2014): 714. 63 Ibid., 716–24. 64 Watson, “The Perils of Comparative Law,” in Legal Transplants, 10–15. 65 Ibid., 10. 66 Ibid., 11. 67 Peter Rowe, The Impact of Human Rights Law on Armed Forces (Cambridge: Cambridge University Press, 2006), x. 68 Watson, “The Virtues of Comparative Law,” in Legal Transplants, 16–20. 69 Létourneau, Introduction to Military Justice, 55. See also Létourneau and Drapeau, Military Justice in Action, x–xi. 70 Létourneau, Introduction to Military Justice, 56. 71 Colonel (ret.) Gibson was at that time the Deputy Judge Advocate General in Military Justice. Appointed as a military judge afterward, he is currently a judge of the Ontario Superior Court of Justice. 72 Michael R. Gibson, “Canada’s Military Justice System,” Canadian Military Journal 12, no. 2 (2012): 62.

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Notes to pages 24–7

223

73 Ibid., 61–2. 74 Former jag of Norway and honorary chair of the International Society for Military Law and The Law of War. 75 Arne W. Dahl, “International Trends in Military Justice,” presentation delivered at international law lunch meeting, Oslo University, 23 November 2011 (unpublished), http://generaladvokaten.no/­ dokumenter_lenker_1/content_2/filelist_eba384ff-2732-4a9d-827f-c20 29dfd1bf0/1380821281548/_2011_11_international_trends_in_­ military_justice.pdf. 76 See generally Edward F. Sherman, “The Civilianization of Military Law,” Maine Law Review 22 (1970): 5 (HL). 77 Gerry R. Rubin, “United Kingdom Military Law: Autonomy, Civilianisation, Juridification,” Modern Law Review 65 (2002): 37–8 (HL). 78 A.F. Fenske, “Evolution of the Code of Service Discipline into the Twenty-First Century: A Canadian Perspective,” address to the Canadian Bar Association, Commonwealth Association of Armed Forces Lawyers, 28 August 1996 (unpublished), 11, cited in Jerry S.T. Pitzul and John C. Maguire, “A Perspective on Canada’s Code of Service Discipline,” afl Review 52 (2002): 8. 79 Bill S-3, An Act to Amend the National Defence Act, the Criminal Code, the Sex Offender Information Registration Act (soira ) and the Criminal Records Act, S C 2007, c 5. 80 Bill S-10, An Act to Amend the National Defence Act, the dna Identification Act and the Criminal Code, SC 2000, c 10. 81 Rubin, “UK Military Law,” 37–8, citing in part Colin Scott, “The Juridification of Regulatory Relations in the UK Utilities Sectors,” in Commercial Regulation and Judicial Review, edited by J. Black, P. Muchlinski, and P. Walker (Oxford, uk : Hart Publishing, 1998), 19. 82 Dahl, “International Trends in Military Justice,” 7. 83 See generally Gerry R. Rubin, “Observations on Change in Military Law,” in U K, HC, Defence Committee, “The Strategic Defence Review: Policy for People,” vol. 29 (2000–01), 249. 84 Canada, National Defence, daod 5012-0, Harassment Prevention and Resoultion (Ottawa: National Defence, 20 December 2000). 85 Ibid., daod 5019-0, Conduct and Performance Deficiencies (Ottawa: National Defence, 22 December 2004). 86 Ibid., daod 5019-1, Personal Relationships and Fraternization (Ottawa: National Defence, 22 December 2004). 87 Ibid., daod 5019-5, Sexual Misconduct and Sexual Disorders (Ottawa: National Defence, 26 September 2008).

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224

Notes to pages 27–34

 88 Ibid., daod 5019-6, Academic Misconduct (Ottawa: National Defence, 30 April 2010).  89 Ibid., daod 5019-7, Alcohol Misconduct (Ottawa: National Defence, 12 July 2010).  90 Ibid., daod 5019-4, Remedial Measures (Ottawa: National Defence, 13 July 2007), para. 3.6.   91 Ibid., paras. 3.13, 3.14, 3.15.  92 R v O’Toole, 2012 cm ac 5 (CanLII), para. 32 [O’Toole].  93 O’Toole, para. 32.  94 MacKay v The Queen, [1980] 2 scr 370, 406, 1980 CanLII 217 (SCC).  95 R v Reddick, 1996 CanLII 12041 (cmac ), 5 c ac m 485, 504.  96 International Covenant on Civil and Political Rights, 999 unts 171, subs. 4(1). See also Re B.C. Motor Vehicle Act, [1985] 2 sc r 486, 1985 CanLII 81 (s cc), para. 85, and R v Heywood, [1994] 3 sc r 761, 802, 1994 CanLII 34 (s cc) as it pertains to Charter violation under section 7.  97 qr&o , arts. 101.11, 109.04(2)(a).  98 Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U K ), 1982.   99 Kenneth Watkin, Canadian Military Justice: Summary Proceedings and the Charter, llm thesis (Kingston, on: Queen’s University Faculty of Law, 1990). 100 R v Oakes, [1986] 1 s c r 103, 1986 CanLII 46 (s c c ), paras. 69–71. 101 Bill C-77, An Act to amend the National Defence Act and to make related and consequential amendments to other Acts, 1st Sess, 42nd Parl, 2018 (as passed by the Senate 18 June 2019).

c h a p t e r t wo   1 Mario Léveillée, L’évolution de la justice pénale militaire et de ­l’­Office du Juge-avocat général, llm thesis (Ottawa: University of Ottawa Civil Law Section, 1997), 15–18.    2 R.A. McDonald, “The Trail of Discipline: The Historical Roots of Canadian Military Law,” (1985) 1 c f jag J 1, 10–11.   3 J.H. Baker, An Introduction to English Legal History, 4th ed. (Oxford, u k: Oxford University Press, 2007), 24–5.   4 Justices of the Peace Act, 1361 (U K), 34 Edw 3, c 1, http://www.­ legislation.gov.uk/aep/Edw3/34/1.

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Notes to pages 34–6

225

  5 Kenneth Watkin, Canadian Military Justice: Summary Proceedings and the Charter, llm thesis (Kingston, on: Queen’s University Faculty of Law, 1990), 35–6.   6 Ibid., 35–6.   7 See Léveillée, L’évolution de la justice pénale militaire, 19–25; for the broader context see generally John Field, The Story of Parliament in the Palace of Westminster (London: Politico’s Publishing, 2002), ch. 4, “Two Revolutions 1629–1689,” 102–30.   8 A grievance that was identified in the Petition of Right, 1627 (UK ), 3 Cha I, c 1, s VI, http://www.legislation.gov.uk/aep/Cha1/3/1.  9 Léveillée, L’évolution de la justice pénale militaire, 24, citing Charles M. Clode, The Military Forces of the Crown; Their Administration and Government, vol. 1 (London: John Murray, 1869), 84. 10 Bill of Rights, 1688 (U K), 1 Will & Mary, c 2, http://www.legislation. gov.uk/aep/WillandMarSess2/1/2. 11 An Act for punishing Officers or Soldiers who shall Mutiny or Desert Their Majestyes Service, 1689 (U K), 1 Will & Mar, c 5, preamble reprinted in McDonald, “The Trail of Discipline,” 13. 12 Watkin, Canadian Military Justice, 45–6; see generally McDonald, “The Trail of Discipline,” 2–8. 13 Summary Jurisdiction Acts, 1848 (U K ), 11 & 12 Vict, c 42; Summary Jurisidiction Act, 1857 (U K), 20 & 21 Vict, c 43; Summary Jurisdiction Act, 1879 (U K), 42 & 43 Vict, c 49; Summary Jurisdiction Process Act, 1881 (U K), 44 & 45 Vict, c 24; Summary Jurisidiction Act, 1884 (UK ), 47 & 48 Vict, c 43; Summary Jurisdiction Act, 1899 (UK ), 62 & 63 Vict, c 22. See generally David Bentley, English Criminal Justice in the Nineteenth Century (London: Hambledon Press, 1998), 9–28. 14 Alan R. Skelley, The Victorian Army at Home (Montreal: McGillQueen’s University Press, 1977), 145–7. 15 Ibid., 140–1. 16 Army Discipline and Regulation Act, 1879 (UK ), 42 & 43 Vict, c 33; Army Act, 1881 (U K), 44 & 45 Vict, c 58. 17 Naval Discipline Act, 1860 (UK), 23 & 24 Vict, c 124; Naval Discipline Act, 1866 (U K), 29 & 30 Vict, c 109. See also Watkin, Canadian Military Justice, 46–7. 18 Bentley, English Criminal Justice, 24–5. 19 An Act respecting the Militia and Defence of the Dominion of Canada, S C 1868, c 40; Watkin, Canadian Military Justice, 39; McDonald, “The Trail of Discipline,” 14–15; Léveillée, L’évolution de la justice pénale militaire, 30–1.

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226

Notes to pages 36–8

20 The Naval Service Act, S C 1909–10, c 43; Watkin, Canadian Military Justice, 47–9; McDonald, “The Trail of Discipline,” 10. 21 The Air Board Act, S C 1919, c 11; Watkin, Canadian Military Justice, 44–5; McDonald, “The Trail of Discipline,” 9–20. 22 J.H. Hollies, “Canadian Military Law,” Military Law Review 13 (1961): 69–70. 23 Watkin, Canadian Military Justice, 42–3. 24 Desmond H. Brown, The Genesis of the Canadian Criminal Code of 1892 (Toronto: The Osgoode Society, 1989), 124–5. 25 National Defence Act, S C 1950, c 43. 26 Watkin, Canadian Military Justice, 50–1. 27 Ibid., 51. 28 McDonald, “The Trail of Discipline,” 24. 29 S C 1960, c 44. 30 Watkin, Canadian Military Justice, 52. 31 Ibid., 52. 32 Andrew D. Heard, “Military Law and the Charter of Rights,” Dalhousie Law Journal 11 (1987–88): 532. 33 Watkin, Canadian Military Justice, 53. 34 Ibid., 53; McDonald, “The Trail of Discipline,” 26. 35 Watkin, Canadian Military Justice, 53. 36 Ibid., 54. 37 Two other cases, Belzile v R and Dufour v R and Veilleux v Canada (Minister of National Defence), also seem to have occurred but are unreported (see Canada, Office of the Judge Advocate General, Summary Trial Working Group Report (Ottawa: ojag , 1994), 1, 32 [hereafter stwg Report]). 38 Glowczeski v Canada (Minister of National Defence), 1989 CarswellNat 114, 1989 CarswellNat 114F, [1989] 3 FC 281, 27 ftr 112. 39 Glowczeski, para. 10. 40 Ibid., para. 13. 41 Fontaine v Canada (Minister of National Defence), 1990 CarswellNat 1063, 12 w cb (2d) 509, 44 ftr 266. 42 Fontaine, para. 6. 43 Watkin, Canadian Military Justice. BGen (ret.) Kenneth Watkin, omm, c d , q c was then a lieutenant-colonel expressing views in his personal capacity. He would later become Judge Advocate General (2006–10). 44 Commission of Inquiry into the Deployment of Canadian Forces to Somalia, Dishonoured Legacy: The Lessons of the Somalia Affair

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Notes to pages 38–40

227

(Ottawa: Public Works and Government Services Canada, 1997), vol. 5, ch. “The Workings of a Restructured Military Justice System.” 45 Ibid., ch. “Reclassifying Misconduct,” recommendation 40.1. 46 Ibid., ch. “Charges,” recommendation 40.19 a contrario. 47 Ibid. 48 Ibid., ch. “Trial of Charges,” recommendation 40.29. 49 Ibid., ch. “Appeal Mechanisms,” recommendations 40.32, 40.33. 50 Ibid., ch. “Reclassifying Misconduct.” 51 stwg Report, 17–26. 52 Ibid., 88–96, recommendations 1 and 2. 53 Ibid., 99–108, recommendations 3–8. 54 Ibid., 195–7, 203, recommendation 43. 55 Canada, Special Advisory Group on Military Justice and Military Police Investigation Services, Report of the Special Advisory Group on Military Justice and Military Police Investigation Services (Ottawa: Department of National Defence, 14 March 1997) (Chair: Rt. Hon. Brian Dickson) (hereafter Dickson Report I). 56 Ibid., 86–91. 57 Ibid., 56–9, recommendation 16. 58 Ibid., 59–60, recommendation 17. 59 Ibid., 62–3, recommendation 23. 60 Canada, Special Advisory Group on Military Justice and Military Police Investigation Services, Report on the Quasi-Judicial Role of the Minister of National Defence (Ottawa: Department of National Defence, June 1997) (Chair: Rt. Hon. Brian Dickson) (hereafter Dickson Report II). In essence, Dickson Report II recommended to remove the Minister of National Defence’s involvement in military ­justice. However, the Supreme Court has recently determined that the Minister’s authority over appeals in military justice was not ­incompatible with the principle of prosecutorial independence (R v Cawthorne, 2016 s cc 32 (CanLII), paras. 31–3). 61 Dickson Report I, Annex F, 17. 62 Ibid., Annex F, 17. 63 Bill C-25, An Act to amend the National Defense Act and to make consequential amendments to other Acts, 1st Sess, 36th Parl, 1998 (assented to 10 December 1998), S C 1998, c 35. 64 For an overview of those changes see Patrick Cormier, “La Justice militaire canadienne: le procès sommaire est-il conforme à l’article 11(d) de la Charte canadienne des droits et libertés ?” McGill Law Journal 45 (2000): 216–17.

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Notes to pages 40–1

65 Bill C-25, cl 42, adding nda , ss 163(2) and 164(2). 66 Ibid., adding nda , ss 163.1(1) and 164.1(1). 67 Ibid., adding nda , ss 163.1(3) and 164.1(3). 68 Ibid., adding nda , s 163(3). 69 Ibid., cl 21, adding nda , s 69(b). 70 Canada, National Defence, B-GG-005-027/AF-011, Military Justice at the Summary Trial Level, v 2.2 (Ottawa: Canadian Defence Academy, 12 January 2011) (hereafter mjstl ). 71 First Independent Review by the Right Honorable Antonio Lamer, pc , c c , c d of the provisions and operation of Bill C-25, An Act to amend the National Defense Act and to make consequential amendments to other Acts, as required under section 96 of the Statutes of Canada 1998, c 35 (September 2003), “Foreword,” at (1) (hereafter Lamer Report). 72 qr&o , art. 108.17(1)(a). 73 nda , s 129(2)(c). However, a recent court martial decision declared that that deemed provisison is unconstitutional: see R v Korolyk, 2016 C M 1002 (CanLII), paras. 20–8. 74 Lamer Report, 56. 75 Ibid., 57. 76 Ibid., Recommendation 40. 77 Ibid., 58, Recommendation 41. 78 Ibid., Recommendation 42. 79 Ibid., 59–61, Recommendation 44; Dickson Report I, 63. 80 Bill C-60, An Act to amend the National Defence Act (court martial) and to Make a Consequential Amendment to Another Act, 2nd Sess, 39th Parl, 2008 (assented to 18 June 2008), SC 2008, c 29. 81 Standing Senate Committee on Legal and Constitutional Affairs, Equal Justice: Reforming Canada’s System of Courts Martial, Final Report: A Special Study on the Provisions and Operation of An Act to amend the National Defence Act and to Make a Consequential Amendment to Another Act, SC 2008, c 29 (May 2009), 19–22, Recommendation 4. 82 Bill C-15, An Act to amend the National Defence Act and to make consequential amendments to other Acts, 1st Sess, 41st Parl, 2013 (assented to 19 June 2013), S C 2013, c 24. 83 Ibid., cl 62 adding nda , ss 203.1–203.4. 84 Ibid., cl 24 replacing nda , s 148. 85 Ibid., cl 36(2) replacing nda , s 164(1.1). 86 Ibid., cl 75 adding nda , s 249.27.

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Notes to pages 42–4

229

  87 Bill C-15, House of Commons, Committee, Standing Committee on National Defence, 41st Parl, 1st Sess, No 66 (13 February 2013), 1640.   88 The Honourable Patrick J. LeSage, Report of the Second Independent Review Authority to the Honourable Peter G. MacKay (Ottawa: Minister of National Defence, December 2011), 12 (here­ after LeSage Report).   89 Ibid., 12.   90 Ibid., 12, 28–9.   91 Ibid., 30, Recommendation 15.   92 Ibid., 23.   93 Ibid., 24, Recommendation 11.   94 Ibid., 25, Recommendation 12.   95 Ibid., 27.   96 Ibid., 30–1.   97 Ibid., Recommendations 14 and 16.   98 Canada, National Defence, “Second Independent Review of the National Defence Act” (8 June 2012), http://www.forces.gc.ca/en/ news/article.page?doc=second-independent-review-of-the-nationaldefence-act/hgq87xrp.   99 Bill C-71, An Act to amend the National Defence Act and the Criminal Code, 2nd Sess, 41st Parl, 2015 (first reading 15 June 2015), http://www.parl.gc.ca/LEGISINFO/BillDetails.aspx?Language =E&Mode=1&billId=8045337&View=7. 100 Bill C-77, An Act to amend the National Defence Act and to make related and consequential amendments to other Acts, 1st Sess, 42nd Parl, 2018 (as passed by the Senate 18 June 2019), http://www.parl. ca/LegisInfo/BillDetails.aspx?Language=E&billId=9847536. 101 qr&o , art. 106.02(1). The only exception is when a complaint is frivolous or vexatious: qr&o , art. 106.02(2). 102 qr&o , art. 106.03. 103 On the conduct of unit investigations, see generally mjstl , ch. 5, paras. 13–19. 104 qr&o , art. 106.04. 105 Ibid. 106 Warrant officer/petty officer 1st class, master warrant officer/chief petty officer 2nd class, chief warrant officer/chief petty officer 1st class. 107 For more details on the different types of investigation, see mjstl , ch. 5, paras. 6–12.

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Notes to pages 44–7

108 qr&o , art. 106.02, Note (B). 109 See generally nda , ss 154–8; qr&o , arts. 105.01–105.11; mjstl , ch. 6. 110 nda , s 158; qr&o , art. 105.12. 111 nda , ss 158.2, 158.5; qr&o , arts. 105.18, 105.21. 112 nda , s 158.6(1); qr&o , art. 105.22. 113 nda , ss 158.6(2) and (3), 158.7; qr&o , 105.29–105.298. 114 nda , s 159; qr&o , art. 105.24; mjstl , ch. 7. 115 Criminal Code, s 515. 116 nda , s 159.9; qr&o , art. 105.30. See for example R v O’Toole, 2012 cm ac 5 (CanLII). 117 nda , s 97. 118 qr&o , art. 107.02(a). 119 nda , s 163(2)(c). 120 See mjstl , ch. 8, paras. 6–8. 121 qr&o , art. 107.02, Note. 122 qr&o , art. 107.03. 123 qr&o , art. 107.06. Articles 107.07 and 107.075 provide a blank form and specimen of rdp. 124 qr&o , art. 107.04. 125 qr&o , art. 107.05, Note (A)i. 126 nda , s 161; qr&o , art. 107.015(2). See R v Warrant Officer AS Laity, 2007 CM 3011 (CanLII), paras. 10–16. 127 R v Lachance, 2002 cm ac 7 (CanLII), para. 4. 128 nda , s 162; qr&o , art. 107.08. 129 Bill C-15, cl 35, 36(2); nda , ss 163(1.1), 164(1.1). 130 nda , ss 163(1.2), 164(1.2); qr&o , arts. 108.171, 108.18. 131 qr&o , art. 108.16, Note (A). 132 qr&o , art. 108.14(1). 133 qr&o , art. 108.14(3). 134 qr&o , arts. 108.14(4),(5). 135 mjstl , ch. 9, paras. 29–30. 136 nda , s 161.1; qr&o , art. 107.09(1). 137 nda , s 163(1). 138 nda , s 163(4); qr&o , arts. 108.10(1),(3). 139 qr&o , art. 108.10(2). 140 For examples see R v Lieutenant-Colonel B C McManus, 2012 C M 3019 (CanLII); R v Lieutenant-Colonel J.L.M. Ouellet, 2013 C M 3019 (CanLII); R v Lieutenant-Colonel DC Nauss, 2013 C M 3008 (CanLII); R v Colonel (Retired) P E Scagnetti, 2011 C M 4030

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141 142 143 144 145 146 147

148

149 150 151 152 153 154

155 156 157 158 159 160 161 162 163 164 165 166 167 168 169 170 171

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Notes to pages 47–51

231

(CanLII); R v Colonel D A Patterson, 2011 C M 4028 (CanLII); R v Brigadier-General D Ménard, 2010 C M 1012 (CanLII). qr&o , arts. 107.09(2),(3). qr&o , art. 107.11. qr&o , arts. 107.11(2), 107.12. qr&o , art. 108.20, Note (D). qr&o , art. 108.16, Note (A). qr&o , art. 108.16(3). Canada, National Defence, A Report to the Minister of National Defence on the Administration of Military Justice from 1 April 2014 to 31 March 2015 (Ottawa: ojag , 2015), 30. Canada, National Defence, 2016–2017 Annual Report of the Judge Advocate General to the Minister of National Defence on the Administration of Military Justice from 1 April 2016 to 31 March 2017 (Ottawa: ojag , 2017), annex A, 20–1. S C 1996, c 19. nda , ss 77 (g), (h), (i). nda , ss 163(1.1), 164(1.1). qr&o , art. 108.17(1)(a). qr&o , art. 108.17(1)(b). jag Annual Report 2017–18, 14. During the reporting period, 451 were summary trials where election was not offered and 145 were summary trials where election was offered. qr&o , art. 108.17(2). qr&o , art. 108.14(5). qr&o , art. 108.15. qr&o , art. 108.15, Note (D). qr&o , art. 108.18. qr&o , art. 108.27. qr&o , art. 108.20(2). qr&o , art. 108.20(3). qr&o , art. 108.20(4). qr&o , art. 108.20(5). qr&o , art. 108.20(6). qr&o , art. 108.20(7). qr&o , arts. 108.20(8),(9). jag Annual Report 2017–18, 15. mjstl , ch. 1, paras. 17–18. qr&o , art. 108.20(10)(a). qr&o , art. 108.20(10)(b).

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172 173 174 175 176 177 178 179 180 181 182 183 184 185 186 187 188 189 190 191 192 193 194 195 196 197 198 199 200 201 202 203 204 205 206 207 208 209 210

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Notes to pages 51–3

qr&o , art. 108.20(10)(c). qr&o , art. 108.20, Notes (F),(G),(H),(I),(J). qr&o , art. 108.24. qr&o , art. 108.25. qr&o , art. 108.26. qr&o , art. 108.24 (“Commanding Officer”), art. 108.25 (“Delegated Officers”), art. 108.26 (“Superior Commanders”). jag Annual Report 2017–18, 15. qr&o , art. 108.20(11). See generally mjstl , ch. 15, paras. 5–28. mjstl , ch. 15, paras. 29–33. qr&o , art. 108.45(1). qr&o , art. 108.45(5). qr&o , art. 108.45(16). qr&o , arts. 108.45(2),(3). qr&o , art. 108.45(4). qr&o , art. 108.45(18). qr&o , art. 108.45(17). qr&o , art. 108.45(6). qr&o , art. 108.45(7). qr&o , art. 108.45(10). qr&o , art. 108.45(11). qr&o , art. 108.45(12). qr&o , art. 108.45(13). qr&o , arts. 108.45(8),(9). qr&o , art. 108.45(14). qr&o , art. 108.45(15). qr&o , art. 108.45(17.1). nda , s 249(4); qr&o , arts. 116.02(2),(3). qr&o , art. 107.15(2). nda , s 249.11; mjstl , ch. 15, paras. 36–7. nda , s 249.12; mjstl , ch. 15, paras. 38–42. nda , s 249.11(3). nda , s 249.11(2). See for example R v Thompson, 2009 cmac 8 (CanLII), paras. 29–31. nda , s 249.13; mjstl , ch. 15, para. 43. nda , s 249.14; mjstl , ch. 15, paras. 44–5. qr&o , art. 116.02, Notes (C),(D). qr&o , art. 116.02, Note (E). mjstl , ch. 15, para. 31.

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Notes to pages 53–60

233

211 jag Annual Report 2017–18, 15–16. 212 Ibid., 15–16. 213 Federal Court Act, rs c 1985, c F-7, s 18.1; mjstl , ch. 15, paras. 50–2. 214 Auditor General of Canada, Report 3 – Administration of Justice in the Canadian Armed Forces (Ottawa: Office of the Auditor General of Canada, 2018). 215 Ibid., 6, para. 3.19. 216 Ibid., para. 3.21. 217 Ibid., paras. 3.22, 3.45. 218 Ibid., para. 3.20. 219 Ibid., paras. 3.39, 3.44, 3.67. 220 Ibid., para. 3.75.

c h a p t e r t h re e   1 Legassick c Ministère de la Défense nationale, 2002 CanLII 11485 (Q C Sup Ct).    2 Ibid., paras. 43–8.   3 Private Nicholas Detre v Attorney General of Canada (18 June 2015), Montreal T-2145-14 (Prothonotary Richard Morneau) aff’d (14 August 2015), Ottawa T-2145-14 (fc td).   4 Daigle M. (Corporal), R v, 2017 CM 1003 (CanLII), para. 10.    5 Ibid., para. 15.   6 Petty Officer 2nd Class Thurrott v Canada (AG ), 2018 FC 577, para. 2 [Thurrott].   7 nda , para. 164(1)(e); Thurrott, para. 5.   8 Thurrott, para. 6.    9 Ibid., paras. 9–13. See Dunsmuir v New Brunswick, 2008 sc c 9, [2008] 1 s cr 190.  10 Thurrott, paras. 38–9.   11 Ibid., para. 41.   12 Ibid., para. 37.  13 R v Wigglesworth, [1987] 2 s cr 541, 1987 CanLII 41 (sc c ), 45 dlr (4th) 235; [1988] 1 w w r 193; 37 cc c (3d) 385; 60 C R (3d) 193; 81 NR 161; 28 Admin LR 294; [1987] sc j No 71 (QL) [Wigglesworth].  14 Wigglesworth, 554.   15 Ibid., 559.  16 R v Généreux, [1992] 1 s cr 259, 281, 1992 CanLII 117 (sc c ) [Généreux].

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Notes to pages 60–3

17 Martineau v M.N.R., [2004] 3 scr 737, 2004 scc 81(CanLII), para. 19. 18 Ibid., para. 24. 19 Guindon v Canada, [2015] 3 s cr 3, 2015 sc c 41 (CanLII), para. 2 [Guindon]. 20 Ibid., para. 3. 21 Ibid., paras. 48–50. 22 Ibid., para. 76. 23 Ibid., para. 77. 24 Ibid., para. 76. 25 Goodwin v British Columbia (Superintendent of Motor Vehicles), [2015] 3 s cr 250, 2015 s cc 46 (CanLII), paras. 40–7 [Goodwin]. 26 R v krj , 2016 s cc 31 (CanLII), para. 41 [krj ]. 27 Kenneth Watkin, Canadian Military Justice: Summary Proceedings and the Charter, llm thesis (Kingston, on: Queen’s University Faculty of Law, 1990), 123–30. 28 Patrick Cormier, “La Justice militaire canadienne: le procès sommaire est-il conforme à l’article 11(d) de la Charte canadienne des droits et libertés ?” McGill Law Journal 45 (2000): 224–8 (QL). 29 Wigglesworth, 555. 30 nda , s 2. 31 nda , ss 161–161.1. 32 nda , ss 161.1, 163(1)(a),(c). 33 nda , s 163(1)(b). 34 qr&o , art. 108.20(1). 35 qr&o , art. 108.20(4). 36 qr&o , art. 108.20(7). 37 qr&o , art. 108.28(1). 38 R v Shubley, [1990] 1 s cr 3, 20, 1990 CanLII 149 (sc c ). 39 qr&o , art. 108.28(2). 40 qr&o , art. 108.28(3). 41 qr&o , art. 107.16. 42 qr&o , art. 108.20(5). 43 Canada, National Defence, B-G G -005-027/A F-011, Military Justice at the Summary Trial Level, v 2.2 (Ottawa: Canadian Defence Academy, 12 January 2011), ch. 13, para. 62 (hereafter mjstl ). 44 As per the definition in the nda , a ‘service offence’ encompasses both an offence contrary to the Code of Service Discipline and an “offence pursuant to the Criminal Code or any other Act of Parliament” (nda , s 2). 45 R v Moriarity, [2015] 3 s cr 485, 2015 sc c 55 (CanLII) [Moriarity].

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Notes to pages 63–5

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46 Moriarity, para. 52. 47 nda , s 66. 48 Watkin, Canadian Military Justice, 128. 49 J.B. Fay, “Canadian Military Criminal Law: An Examination of Military Justice,” Chitty’s Law Journal 23 (1975): 134. 50 nda , s 71. 51 qr&o , art. 108.07. 52 Those punishments are different in terms of their respective general purpose, their maximum length, what those who serve them are called, and the locations where they are served. See R v Leading Seaman J.D. Dandrade, 2008 CM 3014 (CanLII), paras. 16–17. 53 nda , ss 142, 203ff, “Division 8 – Provisions Applicable to Imprisonment and Detention”; qr&o , vol. 2, ch. 114; qr&o , vol. 4, Appendix 1.4, Regulations for Service Prisons and Detention Barracks, P C 1967-1703 (6 Sept 1967), arts. 5.01–5.02, 5.05. See also Trépanier v R, c m ac-498, 2008 cm ac 3 (CanLII), paras. 40–53, leave to appeal to s cc refused 32672 (25 September 2008); Watkin, Canadian Military Justice, 131; Cormier, “La Justice militaire canadienne,” 228; François LeSieur, A New Appeal to Canadian Military Justice: Unconstitutionality of Summary Trials Under Charter 11(d), llm ­thesis (Ottawa: University of Ottawa, Faculty of Law, 2010), 25. 54 qr&o , art. 108.17(1). 55 qr&o , art. 108.17(2)(b) a contrario. 56 qr&o , art. 108.17(6). 57 mjstl , ch. 11, paras. 82–6. 58 nda , ss 139(1)(l), 146; qr&o , arts. 108.25, 108.37. 59 qr&o , art. 108.24. 60 nda , s 146; qr&o , art. 104.13(2). 61 R v Private SJLS Bergeron, 2008 CM 3011 (CanLII), para. 32 (LCol L.-V. D’Auteuil, m.j.). 62 krj , para. 15. 63 Mission Institution v Khela, [2014] 1 sc r 502; 2014 sc c 24 (CanLII); 455 N R 279; [2014] s cj No 24 (QL), para. 30. 64 qr&o , art. 104.13(3) and Notes (A),(B),(C). 65 Criminal Code, s 742.1. 66 Canada, National Defence, “cfb Kingston – Rules and Regulations for Defaulters,” bso 4.02 (Kingston, on: dnd, September 2007) (Extract). 67 qr&o , art. 108.17(1) a contrario. 68 See Canada, National Defence, “Joining Instructions – Basic Military Qualification and Basic Military Officer Qualification” (Ottawa:

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Notes to pages 65–7

Canadian Forces Leadership School, 2016), http://www.forces.gc.ca/ en/training-establishments/recruit-school-joining-instructions.page; and “Get Ready for Basic Training,” http://www.forces.gc.ca/en/­ training-establishments/recruit-school-basic-training.page. 69 Reid v R; Sinclair v R, cm ac-524, cmac -526, 2010 c mac 4 (CanLII), paras. 38–9; Jackson v R, cmac -470, 2003 c mac 8, para. 7; R v Fitzpatrick, [1995] cm aj No 9, para. 31; Thompson v R, c mac -515, 2009 cm ac 8 (CanLII), para. 48. 70 Blencoe v British Columbia (Human Rights Commission), [2000] 2 s c r 307, 2000 s cc 44 (CanLII), para. 80. 71 qr&o , art. 108.17(1)(b). 72 Guindon, para. 76. 73 rsc , 1985, c R-10. 74 Canada, Office of the Judge Advocate General, Summary Trial Working Group Report (Ottawa: ojag, 1994), 108, 219 (hereafter stwg Report), referring to Landry v Gaudet (1992), 95 dlr (4th) 289 (fc td). 75 Wigglesworth, 561; Watkin, Canadian Military Justice, 133. For example, see R v Gray, 2010 CM 1013 (CanLII), paras. 14–15. 76 nda , s 145.1. 77 qr&o , art. 108.20(10), Notes (G),(H),(I),(J); see generally mjstl , ch. 14, “Sentencing and Punishment.” 78 Canada, National Defence, daod 7006-0, Conduct Sheets (Ottawa: National Defence, 31 March 1998). 79 Canada, National Defence, daod 7006-1, Preparation and Maintenance of Conduct Sheets (Ottawa: National Defence, 31 March 1998). 80 R v Big M Drug Mart Ltd., [1985] 1 sc r 295, 18 c c c (3d) 385; Edmonton Journal v Alberta (Attorney General), [1989] 2 sc r 1326, 64 d l r (4th) 577, 1989 CanLII 20 (sc c ) [Edmonton Journal]. 81 Ibid., 1352. 82 Ell v Alberta, [2003] 1 s cr 857, 2003 sc c 35 (CanLII), para. 30 (Major J) [Ell]. This case will be further analyzed when judicial independence is discussed under s 11(d). 83 Ruby v Canada (Sollicitor General), [2002] 4 sc r 3, 2002 sc c 75 (CanLII), 219 dlr (4th) 385, 7 CR (6th) 88; 49 Admin LR (3d) 1, paras. 39–40, 51 (Arbour J). 84 Charkaoui v Canada (Citizenship and Immigration), [2008] 2 sc r 326 at para. 56, 2008 s cc 38 (CanLII), [2008] sc j No 39 (QL), 294 d l r (4th) 478, 58 CR (6th) 45, 376 NR 154.

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Notes to pages 67–71

237

 85 Withler v Canada (Attorney General), [2011] 1 sc r 396, para. 43, 2011 s cc 12 (CanLII), 329 dlr (4th) 193, 412 NR 149, [2011] sc j No 12 (QL) [Withler].  86 S C 1960, c 44 ss 1(a),(b), 2(e),(f).  87 MacKay v The Queen, [1980] 2 s c r 370, 395, 1980 CanLII 217 (s c c) [MacKay].  88 Mackay, 395.   89 Ibid., 400.   90 Ibid., 380.   91 [1985] 2 s cr 673, 1985 CanLII 25 (sc c ) [Valente].  92 Généreux, 284–5.  93 Ibid., 293.  94 Ibid., 294.  95 Ibid., 295.  96 Ibid., 296.  97 Ibid., 320.  98 Ibid., 322.  99 Ibid., 323. 100 MacKay, 402–4. 101 J.B. Fay, “Canadian Military Criminal Law: An Examination of Military Justice,” Chitty’s Law Journal 23 (1975): 123. 102 A.D. Heard, “Military Law and the Charter of Rights,” Dalhousie Law Journal 11 (1988): 514. 103 Généreux, 326. 104 Ibid., 326. 105 Ibid., 327. 106 Ibid., 330–7. 107 Moriarity, paras. 17–19. 108 [2013] 3 s cr 1101, 2013 s cc 72 (CanLII). 109 Moriarity, para. 24. 110 Ibid., para. 26. 111 Ibid., para. 33. 112 Ibid., para. 37. 113 Ibid., paras. 52–3. 114 R v Safarzadeh‑Markhali, [2016] 1 sc r 180, 2016 sc c 14 (CanLII), para. 29. 115 Moriarity, para. 30. 116 Deschamps Report, 12–13. 117 Cormier, “La Justice militaire canadienne,” 232–5.

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Notes to pages 72–5

118 Ocean Port Hotel Ltd v British Columbia (General Manager, Liquor Control and Licensing Branch), [2001] 2 sc r 781, para. 22, 2001 s c c 52 (CanLII). 119 Corrections and Conditional Release Regulations, sor /92-620, s 27(2). 120 Beauregard v Canada, 1986 CanLII 24 (sc c ), [1986] 2 sc r 56, 70–3, 30 dlr (4th) 481, 26 crr 5970 NR 1, [1986] scj No 50 (QL). 121 Valente, para. 31. 122 Ibid., para. 40. 123 Ibid., paras. 47–9. 124 Ibid., para. 15. 125 Ibid., para. 15. 126 Ibid., para. 16. 127 NDA , s 20(1). 128 qr&o , art. 15.01(3)(a). 129 nda , s 23(1). 130 qr&o , arts. 26.08–26.12; Canada, National Defence, daod 5059-0, Performance Assessment of Canadian Forces Members (Ottawa: National Defence, 24 March 2005), which refers to the Canadian Forces Personnel Appraisal System (cfpas). 131 nda , s 28; qr&o , art. 12.01. 132 nda , s 33(1), which refers to each Regular force member’s liability to perform “any lawful duty.” 133 nda , s 165.21(5). 134 nda , ss 165.21(3), 165.31, 165.32. 135 nda , s 12(3)(c). See Canada, Treasury Board, Compensation and Benefits Instructions for the Canadian Forces, ch. 204, “Pay of Officers and Non-Commissioned Members,” ss 204.20–204.22, http://www.forces.gc.ca/en/about-policies-standards-benefits/tocch-204-pay-policy-officers-ncms.page (hereafter cbi ). 136 nda , ss 165.33–165.37. 137 nda , s 2. 138 nda , ss 165.24–165.3. 139 qr&o , art. 101.17. 140 mjstl , ch. 4, paras. 6–7, 9. 141 qr&o , art. 108.27. 142 qr&o , art. 108.04. 143 nda , s 270. 144 Jenner DE (Captain), R v, 2010 CM 1008 (CanLII), para. 8.

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Notes to pages 76–80

239

145 See generally Justices of the Peace Act, rso 1990, c J.4; Provincial Offences Act, rs o 1990, c P.33. 146 Don Stuart, Charter Justice in Canadian Criminal Law, 6th ed. (Toronto: Carswell, 2014), 491–3. 147 R v Zelinski, 2011 on s c 619 (CanLII), para. 21, aff’d 2011 onc a 593 (CanLII). 148 Valente, 692. 149 Ell, para. 30. 150 qr&o , art. 108.04. 151 qr&o , arts. 108.20(2), 108.27. 152 nda , s 270. 153 Canada, National Defence, “cds Op Order – Op honour (August 2015), http://www.forces.gc.ca/en/caf-community-support-services/ cds-operation-order-op-honour.page. 154 Ell, 871. 155 Provincial Court Judges’ Assn. of New Brunswick v. New Brunswick (Minister of Justice); Ontario Judges’ Assn. v. Ontario (Management Board); Bodner v. Alberta; Conférence des juges du Québec v. Quebec (Attorney General); Minc v. Quebec (Attorney General), [2005] 2 s cr 286, 2005 s cc 44 (CanLII), para. 121 [Bodner]. 156 R v Pomerleau, [2004] rjq 83 (qcca), 2003 CanLII 33471 (QC CA), para. 3, JE 2004-219 [Pomerleau]. 157 nda , ss 273.3 to 273.5; qr&o , arts. 106.04–106.09. 158 Hunter v Southam Inc., [1984] 2 scr 145, 1984 CanLII 33, para. 32, (1984) 41 CR (3d) 97 (s cc) [Hunter]. 159 Hunter, para. 32. See Stuart, Charter Justice, 291–2. 160 Hunter, para. 25, referring to Baron v Canada, [1993] 1 sc r 416, 444–5, 1993 CanLII 154 (s cc). 161 Hunter, para. 26. 162 See for example R v Adams, 2012 C M 2002 (CanLII), para. 12. 163 Stuart, Charter Justice, 322. 164 nda , s 163(2); qr&o , art. 108.09. 165 R v Baylis, 1988 CanLII 5166 (S K CA ), 65 C R (3d) 62, paras. 37–54. 166 mjstl , ch. 5, para. 36. 167 nda , s 157; qr&o , art. 105.05. 168 nda , s 154(2); qr&o , art. 105.09. 169 nda , s 158(1). See for example R v Weldam-Lemire, 2011 C M 4017 (CanLII), paras. 4–9. 170 nda , s 157(1).

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Notes to pages 80–1

171 nda , s 157(2). As an example, one of those ‘exigencies of the service’ would be if no other officer of higher rank could reasonably be made available in the area in time. 172 R v Levi-Gould, 2016 CM 4002 (CanLII), paras. 23–6 [Levi-Gould]. 173 nda , ss 158.2–158.6; qr&o , arts. 105.18–105.23. 174 R v Caicedo, 2015 CM 2018 (CanLII), paras. 42, 46 [Caicedo]. 175 Ibid., paras. 38–40. 176 Ibid., para. 43, citing Ell, para. 26. 177 Caicedo, para. 44. 178 Ibid. quoting McIntyre J in MacKay, 402. 179 Ell, para. 24. 180 nda , s 158.2(2) reads as follows: (2) After reviewing the report of custody and the accompanying documents, the custody review officer shall direct that the person committed to custody be released immediately unless the officer believes on reasonable grounds that it is necessary that the person be retained in custody, having regard to all the circumstances, including those set out in subsection 158(1). As for the factors to be considered, s 158(1) reads as follows: A person arrested under this Act shall, as soon as is practicable, be released from custody by the person making the arrest, unless the person making the arrest believes on reasonable grounds that it is necessary that the person under arrest be retained in custody ­having regard to all the circumstances, including (a) the gravity of the offence alleged to have been committed; (b) the need to establish the identity of the person under arrest; (c) the need to secure or preserve evidence of or relating to the offence alleged to have been committed; (d) the need to ensure that the person under arrest will appear before a service tribunal or civil court to be dealt with according to law; (e) the need to prevent the continuation or repetition of the offence alleged to have been committed or the commission of any other offence; and (f) the necessity to ensure the safety of the person under arrest or any other person. 181 Criminal Code, s 515(10). 182 Ell, para. 26. 183 Levi-Gould, para. 23.

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Notes to pages 81–5

241

184 nda , s 159. Bill C-15 (see ch. II, Part A.2, above) amends nda by adding s 153.7 to also give to the military judge the power to review the release conditions. 185 nda , s 249(1); qr&o , art. 108.45. 186 nda , s 249(1); qr&o , art. 116.02. 187 qr&o , art. 108.20(17.1). 188 nda , s 249.11(2). See, for example, Thompson v R, c mac 515, 2009 cm ac 8 (CanLII), para. 31. 189 qr&o , arts. 116.02(2),(3). 190 R v Hayes, [1989] 1 s cr 44, 1989 CanLII 108 (sc c ). 191 R v Ovided, 2008 on cj 317 (CanLII), paras. 3, 48 [Ovided]. 192 Ovided, para. 2. 193 Gilles Létourneau, Introduction to Military Justice: An Overview of the Military Penal Justice System and Its Evolution in Canada (Montreal, qc: Wilson & Lafleur, 2012), 36. 194 qr&o , art. 108.45(6). 195 R v Wright, cm ac-562, 2014 cm ac 4 (CanLII), para. 34 [Wright]. 196 Wright, para. 36. 197 Ibid., para. 37. 198 Létourneau, Introduction to Military Justice, 36. 199 Wood v Schaeffer, [2013] 3 scr 1053, 2013 scc 71 (CanLII), para. 8. 200 Généreux, 310–11. 201 See generally Stuart, Charter Justice, 574–96. 202 Withler, para. 39. 203 Quebec (Attorney General) v A, [2013] 1 sc r 61, 2013 sc c 5 (CanLII) [Eric v Lola]. 204 Eric v Lola, para. 325. 205 Ibid., paras. 325–7. 206 Ibid., para. 328. 207 q r & o , art. 107.03(1)(b) a contrario. Those ranks are Private/ Ordinary and Able Seaman/Aviator, Corporal/Leading Seaman, Master Corporal/Master Seaman, and Sergeant/Petty Officer 2nd Class. 208 qr&o , art. 107.11(1)(b) a contrario. 209 Gilles Létourneau and Michel W. Drapeau, Military Justice in Action: Annotated Defence Legislation, 2nd ed. (Toronto: Carswell, 2015), 390. 210 Bill C-15, An Act to amend the National Defence Act and to make consequential amendments to other Acts, 1st Sess, 41st Parl, 2013 (assented to 19 June 2013), SC 2013, c 24, cl 75 adding nda s 249.27.

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242

Notes to pages 86–90

211 According to Canada, National Defence, Annual Report of the Judge Advocate General to the Minister of National Defence on the Administration of Military Justice in the Canadian Forces – A Review from 1 April 2009 to 31 March 2010 (Ottawa: o jag, 2010), 102, 81% of summary trials held were presided over by ­delegated officers, 15% by commanding officers, and 4% by superior commanders. 212 [1999] 2 s cr 203, 1999 CanLII 687 (sc c ), para. 13 [Corbiere]. 213 qr&o , art. 3.01, “Ranks and Designations of Rank”; Canada, National Defence, Duty with Honour, 2009, A -PA -005-000/A P-001 (Kingston, on : Canadian Defence Academy, 2009), 55. 214 Duty with Honour, 21. 215 Corbiere, para. 60. 216 A service member can be promoted (qr&o , arts. 11.01, 11.02, 12.01, 14.01) or reduced in rank (nda , s 143; qr&o , art. 104.10). A competent authority may revert a non-commissioned member to a lower rank for inefficiency (qr&o , art. 11.10(2)(a)). In specific circumstances, service members can relinquish their ranks (qr&o , art. 11.12). 217 See for example qr&o , art. 15.18(3). 218 Youth Criminal Justice Act, S C 2002, c 1, s 3. 219 R v DB, [2008] 2 s cr 3, 2008 s cc 25 (CanLII), para. 41. 220 On age and educational differences between officers and noncommissioned members, see generally Statistics Canada, A Profile of the Canadian Forces, by Jungwee Park, Catalogue No 75-001-X (Ottawa: Statistics Canada, July 2008), 18. On income differences, see generally cbi , ch. 204. 221 Kahkewistahaw First Nation v Taypotat, [2015] 2 sc r 548, 2015 s c c 30 (CanLII), para. 13. 222 First Independent Review by the Right Honorable Antonio Lamer, p c , c c, cd of the provisions and operation of Bill C-25, An Act to amend the National Defense Act and to make consequential amendments to other Acts, as required under section 96 of the Statutes of Canada 1998, c 35 (September 2003), 72 (hereafter Lamer Report). 223 qr&o , art. 107.11(2). 224 See ch. II, Part B.3, above, for more on this topic. 225 See for example mjstl , ch. 14, para. 29, note 24. 226 Canada, National Defence, Judge Advocate General, Policy Directive # 010/00, “Charge Screening Policy” (Ottawa: ojag , 2000, updated 2009), paras. 14–16. Paras. 15 and 16 read as follows:

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Notes to pages 91–2

243

15. If the pre-charge review of the evidence reveals that the potential offence or offences would be ones that could be tried by ­summary trial, with or without an election, the review shall be conducted with a view of establishing the reasonable prospect of conviction on the basis of the evidentiary standard applicable at summary trial only. 16. If the pre-charge review of the evidence reveals that the potential charge or charges can only be tried by Court Martial (C M), the legal officer shall at the first instance refrain from giving legal advice and refer the case to a Regional Military Prosecutor (r mp) for that region. The rm p will be responsible to conduct the precharge review using the evidentiary standard applicable at court martial. Once completed, the rmp review will be forwarded to the legal officer for use in giving pre-charge advice to the charge laying authority. 227 Canada, National Defence, Director of Military Prosecutions, Policy Directive # 003/00, “Post-Charge Review” (Ottawa: o jag, 2000, updated 2016), paras. 4, 19–23, http://www.forces.gc.ca/en/aboutpolicies-standards-legal/post-charge-review.page (hereafter dmp Directive 003/00). 228 Ibid., paras. 4, 24–30. 229 R v Captain Racine, 2014 CM 1011 (CanLII); R v Petty Officer 1st Class Canning, 2012 CM 4018 (CanLII); R v Officer Cadet Maheu, 2008 CM 1014 (CanLII); R v Private Johnstone, 2007 C M 4007 (CanLII); R v Private Fletcher, 2007 C M 4001 (CanLII); R v Corporal Benedetti, 2013 CM 2009 (CanLII). 230 R v Ex-Ordinary Seaman Labrie, 2008 C M 1013 (CanLII); R v Private Desrosiers, 2009 CM 3006 (CanLII). 231 R v St-Onge, [2011] 1 s cr 625, 2011 sc c 16 (CanLII), rev’g 2010 c mac 7 (CanLII), [2010] cm aj No 7 (QL), 2010 CarswellNat 4985, aff’g 2008 CM 3012 (CanLII), 2008 CarswellNat 3475, para. 12 b. iv. 232 R v Miller, 2014 CM 2018 (CanLII), para. 18. 233 Ibid., para. 15, referring to R v Private Chadwick Taylor, 2008 c mac 1 (CanLII). 234 Park, A Profile of the Canadian Forces, 19. 235 Canada, National Defence, A Report to the Minister of National Defence on the Administration of Military Justice from 1 April 2015 to 31 March 2016 (Ottawa: ojag , 2016), annex A, 35. 236 Ibid., annex A, 35.

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244

Notes to pages 92–6

237 238 239 240 241 242 243 244

Ibid., annex A, 39. Engel and Others v The Netherlands, (1976), 22 echr (Ser A) 1 [Engel]. Ibid., paras. 16–21. Ibid., para. 72. Ibid., para. 72. Ibid., para. 72. Duty With Honour, 21. qr&o , art. 107.015, Note (B) reads as follows: Responsibilities and entitlements in the Canadian Forces are often assigned based on a member’s rank and position in the service. For example, a warrant officer serving in a unit will have certain responsibilities for the well-being of his subordinates which those who hold lesser rank may not have. Similarly, pay and other entitlements reflect the increased responsibilities which ordinarily accompany promotion to higher rank. These necessary distinctions are reflected in a number of provisions of the National Defence Act and regulations made thereunder. However, in other matters, it is essential that members be treated equally, regardless of their rank, particularly in the administration of the Code of Service Discipline. For instance, it is the evidence surrounding the alleged commission of the offence and not the accused’s rank, which will be determinative when deciding whether or not to lay a charge. qr&o , art. 108.20, Note (A) is identical but has the following additional sentence at the end: It would be improper to give any preferential treatment to a particular accused simply because of his rank. 245 National Defence, “Fallen Canadians,” http://www.forces.gc.ca/en/ honours-history-fallen-canadians/index.page. 246 Leadbetter C.L.J. (Master Corporal), R v, 2017 C M 4007 (CanLII), para. 17 (c); Conway M.M. (Sergeant), R v, 2017 C M 4006 (CanLII), para. 21 (c). 247 qr&o , art. 105.26. 248 See generally R v McGibbon, 1988 CanLII 149; 45 c c c (3d) 334 (O N C A); R v Rowbotham, (1988) 41 c c c (3d) 1, 70, 63 C R 3d 113, (O N CA). 249 International Covenant on Civil and Political Rights, 999 unts 171, arts. 14(3)b),d). 250 qr&o , art. 108.14, Note B reads as follows: (B) An accused person does not have a right to be represented by legal counsel at a summary trial. However, if an accused requests

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Notes to pages 96–7

245

such representation, the officer having summary trial jurisdiction has the discretion to: i. permit representation by legal counsel; ii. proceed without representation by legal counsel; or iii. apply for disposal of the charges against the accused by a court martial. 251 qr&o , art. 108.14, Note (C) reads as follows: (C) In the exercise of the discretion referred to in Note (B) of this article, the officer having summary trial jurisdiction should consider at least the following: i. the nature of the offence; ii. the complexity of the offence; iii. the interests of justice; iv. the interests of the accused; and v. the exigencies of the service. An officer having summary trial jurisdiction who is considering the exercise of the discretion to permit representation by legal counsel should consult with a representative of the Judge Advocate General. 252 On the effect of Notes in the qr&o , see qr&o , art. 1.095, which reads as follows: The notes appended to articles in qr&o (a) are for guidance of members; and (b) shall not be construed as if they had the force and effect of law but should not be deviated from without good reason. NOTE The notes are based upon decisions of courts, principles stated in legal text books and opinions of military legal authorities. 253 mjstl , ch. 13, paras. 17–21. 254 Maj (ret.) David McNairn, personal notes, 1 Dec 2018. 255 qr&o , art. 108.14; mjstl , ch. 9, paras. 8–9. 256 mjstl , ch. 9, “Assisting Officer.” 257 Canada, National Defence, Guide for Accused and Assisting Officers – Pre-Trial Proceedings at the Summary Trial Level, A -LG-050-000/ A F -001 (Ottawa: Chief of the Defence Staff, 2009), http://www. forces.gc.ca/en/about-reports-pubs-military-law/guide-for-accusedand-assisting-officers.page. 258 Létourneau, Introduction to Military Justice, 35. 259 See, for example, An Act Respecting the Barreau du Québec, c qlr c B-1, ss 128, 132. See also the Solicitors Act, rso 1990, c S.15, s 1, and the Law Society Act, rs o 1990, c L.8, ss 26.1–26.2.

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246

Notes to pages 97–9

260 stwg Report, Recommendation 25, 148; Canada, Special Advisory Group on Military Justice and Military Police Investigation Services, Report of the Special Advisory Group on Military Justice and Military Police Investigation Services (Ottawa: Department of National Defence, 14 March 1997) (Chair: Rt. Hon. Brian Dickson), Recommendation 24, 63 (hereafter Dickson Report I). 261 Lamer Report, Recommendation 44, 59–61. 262 The Honourable Patrick J. LeSage, Report of the Second Independent Review Authority to the Honourable Peter G. MacKay (Ottawa: Minister of National Defence, December 2011), Recommendation 11, 24. 263 According to National Defence, Canadian Forces Leadership and Recruit School website, http://www.forces.gc.ca/en/trainingestablishments/recruit-school-officers.page: The Canadian Armed Forces Junior Officer Development (­c a fjod) Programme exposes Junior Officers to a general and standardized body of foundational knowledge through seven Distance Learning modules: 1. Staff Duties 2. Enable the Fighting Force 3. Law and Military Justice 4. Leadership and Ethics 5. Joint Operations 6. Canadian Military History 7. Support the Institution 264 qr&o , art. 108.20(3)(a), which refers to qr&o , arts. 108.14(5) (a),(b). 265 jag Annual Report 2009–10, 25. 266 Ibid., 25. It was recognized by the Office of the jag “that further training is warranted to ensure that this important function is carried out effectively as possible.” 267 Starting from reporting year 2010­–11, the content of the jag annual report has been significantly reduced. To illustrate, in comparison with the 2009–10 report which has 116 pages, the 2010–11 report has 30 pages. 268 mjstl , ch. 9, para. 2. 269 Watkin, Canadian Military Justice, 170. 270 Fraser v Mudge, [1975] 1 w lr 1132, 1133–4, [1975] 3 All ER 78, quoted in Martineau v Matsqui Disciplinary Bd., [1980] 1 sc r 602, 636, 1979 CanLII 184 (s cc) [Martineau].

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Notes to pages 99–103

247

271 Martineau, 624. 272 Watkin, Canadian Military Justice, 171–2. 273 Howard v Presiding Officer of Inmate Disciplinary Court of Stony Mountain Institution, [1984] 2 FC 642, 1985 CarswellNat 2, 1985 CarswellNat 610, 19 dlr (4th) 502, 11 Admin LR 63, (1985) 45 C R (3d) 242 (Fed CA), appeal quashed [1987] 2 sc r 687, 1987 CarswellNat 4, 1987 CarswellNat 910, 102 NR 79 (Note), 41 c c c (3d) 287 [Howard]. 274 Howard, paras. 25, 84. 275 Ibid., paras. 39, 99. 276 Ibid., para. 34. 277 Ibid., para. 35. 278 Gochanour v Alberta (Solicitor General), 1990 CanLII 5517 (A B Q B ), paras. 17–19, [1990] 5 w w r 178; 105 A R 289; 74 Alta LR (2d) 12; [1990] CarswellAlta 66; [1990] A J No 348 (QL). 279 Watkin, Canadian Military Justice, 178. 280 Ibid., 166, 286, para. f. 281 Winters v Legal Service Society, [1999] 3 sc r 160, 1999 CanLII 656 (s c c), para. 30 [Winters]. 282 Winters, para. 31. 283 Smith v Fort Saskatchewan Correctional Centre, 2002 a b qb 1044 (CanLII), paras. 7–12, 325 AR 90; [2003] 3 wwr 681; 10 C R (6th) 168; 48 Admin LR (3d) 153; 10 Alta LR (4th) 97 [Fort Saskatchewan]. 284 Fort Saskatchewan, paras. 24–9, referring to R v Secretary of State for Home Department, Ex p Tarrant, [1985] QB 251 [1984] wlr 613 (qbd) [Ex p Tarrant]; Fraser; Irvine v Canada (Restrictive Trade Practice Commission), 1987 CanLII 81 (sc c ), [1987] 1 sc r 181; Howard. 285 Fort Saskatchewan, 29. 286 Ex p Tarrant; Howard; New Brunswick (Minister of Health and Community Services) v G(J), [1999] 3 sc r 46, 1999 CanLII 653 (s c c ). 287 British Columbia (Attorney General) v Christie, [2007] 1 sc r 873, 2007 s cc 21 (CanLII), para. 25. 288 mjstl , ch. 13, paras. 17–21. 289 R v White, [1999] 2 s cr 417, 1999 CanLII 689 (sc c ), para. 38. 290 qr&o , art. 108.45(7). 291 Howard, para. 35. 292 See generally Stuart, Charter Justice, 239–77.

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248

Notes to pages 103–5

293 Charkaoui v Canada (Citizenship and Immigration), [2007] 1 sc r 350, 2007 s cc 9 (CanLII), para. 19 [Charkaoui 2007]. 294 Charkaoui 2007, para. 20. 295 Ibid., para. 22. 296 Létourneau, Introduction to Military Justice, 35–6; Létourneau and Drapeau, Military Justice in Action, 58–9. 297 qr&o , art. 108.15(1). 298 R v Gubbins, 2018 s cc 44 (CanLII), para. 18, which refers to R v Stinchcombe, 1991 CanLII 45 (s cc), [1991] 3 sc r 326 [Gubbins]. 299 Gubbins, 18, which refers to R v Dixon, 1998 CanLII 805 (sc c ), [1998] 1 s cr 244, para. 22. 300 Létourneau and Drapeau, Military Justice in Action, 58. 301 jag Annual Report 2009–10, 27. 302 Ibid., 21. In 2009–10, 134 individuals were interviewed, comprising main participants in the military justice systems; a portion of these were accused persons, although their number is not specified. In comparison, the potential population to be interviewed that year represents the number of summary trials held that year (1942) multiplied by the main ‘roles’ of the summary proceedings: 1) ­presiding officer; 2) charges layer; 3) investigator; 4) assisting officer; and 5) accused person. 303 Létourneau and Drapeau, Military Justice in Action, 58. 304 qr&o , art. 108.21(1). 305 Primarily by qr&o , arts. 108.21(2)–(5) and Notes. 306 mjstl , ch. 13, “Hearing the Evidence,” paras. 53–63. 307 qr&o , art. 108.21(2). 308 qr&o , art. 108.21(3). 309 mjstl , ch. 13, “Hearing the Evidence,” para. 62, note 75, which makes reference to Charter s 11(c). 310 qr&o , art. 108.20(5). 311 mjstl , ch. 13, para. 62, note 76, which makes reference to Regina v Symonds, (1983) 9 ccc (3d) 225 at 227 where that principle is affirmed. 312 mjstl , ch. 13 “Hearing the Evidence,” para. 63. 313 qr&o , art. 108.20(3)(c). 314 See for example the role of the case management judge acting as a trial judge encouraging the parties to make admissions, Criminal Code s 551.3(1)(b). 315 mjstl , ch. 12, paras. 104–9. 316 R v Khelawon, [2006] 2 s cr 787, 2006 sc c 57 (CanLII), para. 59 [Khelawon].

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Notes to pages 106–11

249

qr&o , arts. 108.21(2),(3). qr&o , art. 108.21, Note (A). Khelawon, para. 42. qr&o , art. 108.02. Mills v The Queen, [1986] 1 s cr 863, 1986 CanLII 17 (sc c ), paras. 264–6. 322 Kourtessis v mnr , 1993 CanLII 137 (sc c ), [1993] 2 sc r 53. 323 Charkaoui 2007, para. 136. 324 Ibid., 2007, para. 136. 325 qr&o , art. 108.45. 326 qr&o , art. 116.02. 327 See ch. III, Part B.2, above. In rare exceptions, for example in a reserve unit, an officer might be trained as a lawyer but act in a different occupation in the caf, such as a logistic officer. 328 Federal Courts Act, rs c 1985, c F-7, ss 18, 18.1. 329 mjstl , ch. 15, paras. 50–2. 330 [2006] 2 s cr 77, 2006 s cc 33 (CanLII), para. 19. 331 R v O’Toole, 2012 cm ac 5 (CanLII), para. 32. 332 R v Nur, 2015 s cc 15 (CanLII), para. 77 [Nur]. 333 Nur, para. 76. 317 318 319 320 321

C ha p t e r f o u r   1 R v Généreux, [1992] 1 s cr 259, 1992 CanLII 117 (sc c ).   2 Morris v The United Kingdom, 38784/97 [2002] ec hr 162 (26 February 2002) (bai li i ), paras. 33–5.   3 Boyd, R v, [2002] u khl 31 (18 July 2002) (ba ilii), paras. 6, 42.   4 Skuse, R v, [2002] ew ca Crim 991 (3rd May, 2002) (ba ilii), paras. 24–5, 48.   5 Lane v Morrison, [2009] hca 29 (26 August 2009) (AustLII), paras. 16, 62, 72.   6 Prasad Niroula et al. v Constituent Assembly and Legislature– Parliament et al., Order on Writ No. 65-WS-0010, Supreme Court of Nepal (30 June 2011), 14–15.   7 Alberta v Hutterian Brethren of Wilson Colony, [2009] 2 sc r 567, 2009 S CC 37 (CanLII), para. 139.   8 International Covenant on Civil and Political Rights, 999 unts 171, art. 14.   9 Henry v British Columbia (Attorney General), [2015] 2 sc r 214, 2015 s cc 24 (CanLII), para. 136.

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250

Notes to pages 112–14

10 NZ , Hansard, Armed Forces Law Reform Bill, 1st reading, 48th Parl, 1st Sess, 15 March 2007, 8064–5, 8076; NZ , Hansard, Armed Forces Law Reform Bill, in Committee, 48th Parl, 1st Sess, 10 October 2007, 12242–3, 12253–4; N Z, Hansard, Armed Forces Law Reform Bill, 3rd reading, 48th Parl, 1st Sess, 24 October 2007, 12713, 12716–17. Those seven vital elements are identified and explained in Christopher Griggs, Discussion Paper: Fundamental Basis for the Military Justice Review (publisher unknown), 3–7. 11 Royal Canadian Mounted Police Act, rsc 1985, c R-10, s 2(3); Commissioner’s Standing Orders (Conduct), sor /2014-291, s 2. 12 Royal Canadian Mounted Police Act, s. 40 (1). 13 Commissioner’s Standing Orders (Conduct), s 3(1). 14 Ibid., s 3(2). 15 Ibid., s 4. 16 Ibid., s 5. 17 Ibid., s 8. 18 Royal Canadian Mounted Police Act, s 41 (1). 19 Commissioner’s Standing Orders (Conduct), s 9(1). 20 Ibid., s 9(2). 21 Ibid., s 9(3). 22 Royal Canadian Mounted Police Act, s 43. 23 Ibid., s 44. 24 Ibid., s 45(2). 25 Ibid., s 45(1). 26 Ibid., s 45(4). 27 Commissioner’s Standing Orders (Conduct), s 22. 28 Royal Canadian Mounted Police Act, s 45(3). 29 Ibid., s 45.11. 30 Ibid., s 45.16. 31 Ibid., s 45.15 (1). 32 Canada, rcm p External Review Committee, Raison d’être, http:// www.erc-cee.gc.ca. 33 Royal Canadian Mounted Police Act, s 45.16 (7). 34 Ibid., s 45.16 (9). 35 Commissioner’s Standing Orders (Conduct), s 30(2). 36 Ibid., ss 29–30(1). 37 Ibid., s 28. 38 By-law respecting the internal discipline of members of the Sûreté du Québec, cqlr, c P-13.1, r 2.01, s 17 [By-law on SQ internal discipline].

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Notes to pages 114–16

251

39 Ibid., s 19. 40 Ibid., s 22. 41 Ibid., s 26. 42 Ibid., s 29. 43 Ibid., s 30(1). 44 Ibid., ss 30(2), 33–40. 45 Ibid., ss 30 (3), 41. 46 Ibid., s 43. 47 Ibid., s 46. 48 Ibid., ss 48–57. 49 Ibid., s 50. 50 Ibid., s 52. 51 Ibid., s 53. 52 Ibid., s 55. 53 Ibid., ss 58, 60. 54 Ibid., s 61. 55 Ibid., s 68. 56 Ibid., s 62. 57 Ibid., s 64. 58 Ibid., s 66. 59 Ibid., s 77. 60 Ibid., ss 67, 72. 61 Ibid., s 75. 62 Ibid., s 73. 63 Ibid., s 78. 64 Ibid., s 80. 65 Ibid., s 82. 66 Ibid., s 83. 67 Ibid., s 84. 68 Ibid., s 85. 69 Police Services Act, rs o 1990, c P.15, ss 82–6. 70 Ibid., ss 66(3), 68(5), 76(9). 71 Ibid., ss 69(8), 77(7). 72 Ibid., s 83; Statutory Powers Procedure Act, rso 1990, c S.22, s 1. 73 Police Services Act, S O 2018, c 3, Schedule 1, part IX, ss 143–63, ­hereafter Police Services Act (2018). 74 Ibid., s 150. 75 Ibid., s 151 (1). 76 Ibid., s 151 (3). 77 Ibid., s 2, 151 (6).

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252

Notes to pages 116–19

  78 Michelle McQuigge, “Ontario Passes Law Overhauling Province’s Policing Regulations,” Globe and Mail, 8 March 2018.  79 Ontario Policing Discipline Tribunal Act 2018, SO 2018, c 3, Schedule 3, s 2.   80 Ibid., s 6(1).   81 Ibid., s 7.   82 Ibid., s 10.   83 Ibid., s 12.  84 Police Services Act (2018), s 151(10).   85 Ibid., s 152(2).   86 Ibid., s 152(6).   87 Ibid., s 152(7).   88 Ibid., s 160; Statutory Powers Procedure Act, ss 1, 10.  89 Statutory Powers Procedure Act, s 20.  90 Police Services Act (2018), s 153(1).   91 Ibid., s 153(3).  92 Corrections and Conditional Release Act, SC 1992, c 20, ss 38–44 (hereafter ccra ).  93 Corrections and Conditional Release Regulations, sor /92-620 (hereafter ccrr ).   94 Bill C-83, An Act to amend the Corrections and Conditional Release Act and another Act, 1st Sess, 42nd Parl, 2018.  95 ccra , s 38.   96 Ibid., s 40.   97 Ibid., s 41(1).   98 Ibid., s 41(2).   99 Ibid., s 44(1); ccrr , ss 35(1)(a), 36(1)(a), 37(a), 39(1). 100 ccrr , ss 35(1)(b), 36(1)(b), 37(b); ccra , s 44(1)f). 101 ccra , s 42. 102 Ibid., s 43(1). 103 ccrr , s 27(1). 104 Ibid., s 27(2). 105 Ibid., s 24(1), 24(3). 106 Ibid., s 24(4). 107 Ibid., s 30(1). 108 Ibid., s 31(2). 109 ccra , s 43(3). 110 Ibid., s 44. 111 ccrr , s 34. 112 Ibid., s 32.

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Notes to pages 119–21

253

113 Ibid., s 33. 114 Ibid., s 41. 115 Thompson v The United Kingdom – 36256/97 [2004] ec hr 267; (2005) 40 ehrr 11 (15 June 2004); Bell v The United Kingdom – 41534/98 [2007] echr 47 (16 January 2007); Boyle v The United Kingdom – 55434/00 [2008] echr 15 (8 January 2008). 116 With the Armed Forces Discipline Act 2000 (UK ), c 4, which was replaced by the Armed Forces Act 2006 (UK ), c 52, which in turn was continued by the Armed Forces Act 2011 (UK ), c 18. 117 Convention for the Protection of Human Rights and Fundamental Freedoms, 4 November 1950, 213 unts 221 art. 6 (hereafter echr ). The echr had been introduced in the United Kingdom, although not with full constitutional status, by the Human Rights Act 1998 (U K), c 42. 118 UK, Military Court Services and Judge Advocate General, The Court Martial and The Summary Appeal Court Guidance: Guide to Procedure, vol. 1 (2015), para. 7.3, http://www.judiciary.gov.uk/ about-the-judiciary/who-are-the-judiciary/judicial-roles/judges/ judge-advocate-general/. 119 See generally UK, Ministry of Defence, Manual of Service Law: jsp 830, vol. 2, updated ed. (London: MoD, 2015), ch. 27, “The Summary Appeal Court,” http://www.gov.uk/government/publications/court-guide-manual-of-service-law-jsp-830-volume-2. 120 Peter Rowe, “A New Court to Protect Human Rights in the Armed Forces of the UK: The Summary Appeal Court,” Journal of Conflict and Security Law 8, no. 1 (2003): 209. 121 Boyle, Thompson and Bell against the United Kingdom – 55434/00 [2011] echr 2269 (2 December 2011) (Resolution C M/ ResDH(2011)287). 122 Baines v Army Prosecuting Authority & Anor, [2005] ewhc 1399 (Admin) (12 July 2005). 123 echr , arts. 6(1),(3)(c). 124 Baines, paras. 56–9. 125 New Zealand Bill of Rights Act 1990 (NZ ), 1990/109 (hereafter nzbora ). 126 Ibid., s 24(c). 127 Ibid., s 25(a). 128 Ibid., s 25(h). 129 Armed Forces Discipline Act 1971 (NZ ), 1971/53, ss 118–20 (hereafter AFDA ). See, generally, New Zealand, Ministry of Defence,

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254

Notes to pages 121–3

Manual of Armed Forces Law – DM69, 2nd ed., vol. 1 (Wellington: MoD, 2010), ch. 10, “Summary Appeals,” http//www.nzdf.mil.nz/ downloads/pdf/public-docs/dm-69-2ed-vol-1-al3-complete-bk-online. pdf (hereafter Manual of Armed Forces Law). 130 afda , s 131(1). 131 Ibid., s 141(2). 132 Ibid., s 136(1). 133 Ibid., s 117ZE; Armed Forces Discipline Rules of Procedure 2008 (NZ ), 2008/237, ss 18, 19; Manual of Armed Forces Law, ch. 7, para. 7.3.24. 134 afda , ss 117ZC-117ZD. See generally Chris Griggs, “A New Military Justice System for New Zealand,” New Zealand Armed Forces Law Review 6 (2006): 62 and Military Law and Law of War Review 45 (2006): 287; Chris Griggs, “Seminar on Military Jurisdiction: Report of New Zealand,” memorandum sent to the President of the International Society for Military Law and the Law of War (26 April 2011). 135 NZ , Parliamentary Service, “Military Justice Legislation Amendment Bill 2017,” Bills Digest No. 2526, August 2017, 2. 136 afda , s 102A. 137 NZ , “Military Justice Legislation Amendment Bill 2017,” 4. 138 Rowe, “A New Court to Protect Human Rights,” 205. 139 Gerry R. Rubin, “United Kingdom Military Law: Autonomy, Civilianisation, Juridification,” Modern Law Review 65 (2002): 37–8. 140 Criminal Code, s 686(b)iii). 141 Loi n° 2011-1862 du 13 décembre 2011 relative à la répartition des contentieux et à l’allègement de certaines procédures juridictionnelles, JO, 14 December 2011 (France), having modified the Code de justice militaire (nouveau) (France) (1 October 2014), art. L111-1 (hereafter cjm ). 142 Code de la défense (France) (2015 June 22), arts. L4137-1–L4137-5 (hereafter cdd ). 143 Ibid., art. L4137-1 par 2, R4137-114–R4137-133. 144 Ibid., art. L4137-1 par 1. 145 cjm , art. L311-13; cdd , art. R4137-38. 146 cdd , arts. L4137-2, L4138-15. In the first group, the sanction of ‘arrêts’ is analogous to caf confinement to quarters/ship under stringent conditions, while the sanction of ‘consigne’ is akin to c a f confinement under more lenient conditions.

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Notes to pages 123–6

255

147 Ibid., art. L4137-3. Before imposing sanctions of the second group, a disciplinary board (conseil de discipline) must be consulted. In case of sanctions of the third group, it is a board of inquiry (conseil d’enquête). 148 Ibid., art. R4137-25. 149 Ibid., art. R4137-19. 150 Ibid., art. R4137-15. 151 Ibid., arts. R4137-134–R4137-141. 152 Cons const, 25 February 2015, Droits et Libertés – Question Prioritaire de Constitutionnalité, 2014-450 QPC . 153 Stanislas Horvat, Ilja Van Hespen, and Veerle Van Gijsegem, eds., “International Conference on Military Jurisdiction – National Reports – Germany,” The Recueils of the International Society for Military Law & the Law of War 19 (2013): 270 (hereafter National Report – Germany). 154 Ibid., 271. The Disciplinary and Complaints Courts are composed of one legally trained judge assisted by two service members acting as lay assessors; see ibid., 273. 155 Military Disciplinary Code, 16 August 2001, Federal Law Gazette 2093 (Germany), ss 22–6 (hereafter Military Disciplinary Code). 156 Ibid., s 40. 157 Ibid., s 42. 158 Horvat, Van Hespen, and Van Gijsegem, eds., National Report – Germany, 272. 159 Ibid., 272. 160 Military Disciplinary Code, s 58; Horvat, Van Hespen, and Van Gijsegem, eds., National Report – Germany, 274. 161 Horvat, Van Hespen, and Van Gijsegem, eds., National Report – Germany, 277. 162 Ibid., 279–81. 163 “Military Justice Left Me Unaware I Had Criminal Conviction,” Channel 4 News, 4 January 2013, http://www.channel4.com/news/ military-justice-criminal-conviction-raf-tom-deacon. 164 “Minor offences” are defined in US, Department of Defence, Manual For Courts-Martial (2012 Edition) (Fort Belvoir, va: US Army Publishing Directorate, 2012), part V, p V-1, para. 1.e. (hereafter mcm ). 165 Uniform Code of Military Justice, art. 20, 47 USC tit 10 § 820 (hereafter ucmj ); mcm , part II, Rules for Court Martial c XIII, “Summary Courts-Martial” (hereafter rcm ).

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256

Notes to pages 126–8

166 ucmj , art. 15. 167 Takashi Kagawa, “Soldier’s First Offense: Article 15 or Summary Court-Martial?” Army Law 1 (2014): 34. 168 Compare mcm , part V, p V-4–V-7, para. 5 with rcm , art. 1301(d). 169 mcm , part V, para. 7. 170 ucmj , art. 37. 171 See generally US, Department of the Army, Pamphlet 27-7, Legal Services – Guide for Summary Court-Martial Procedure (Washington, d c : Author, 2014). 172 US, Department of Defence, DD Form 2329 Record of Trial by Summary Court-Martial (Washington, dc : Author, 1984), in mcm , Appendix 15. 173 Kagawa, “Soldier’s First Offense,” 35–6. 174 ucmj , art. 60(b)(1). 175 US, Department of the Army, Army Regulations 27-10, Legal Services – Military Justice (Washington, dc : Author, 2011), para. 3-2b (hereafter AR 27-10). 176 Kagawa, “Soldier’s First Offense,” 36. 177 rcm , art. 1303; mcm , part V, p V-2, para. 3. 178 Stephen P, Karns, “Right to Counsel for Non-Judicial Punishment and Court-Martial Action,” http://www.usmilitarylawyer.com/ military-right-to-counsel.asp. 179 US, Secretary of the Air Force, Air Force Instruction 51-201, “Administration of Military Justice” (2019), para. 10.3.2.3. 180 AR 27-10, para. 3-16.a(1). 181 Ibid., ch. 6. 182 Peter Masterton, “The Defence Function: The Role of the U.S. Army Trial Defense Service,” The Army Lawyer (2001): 4. 183 US, Department of the Army, DA Form 2627-1, “Summarized Record of Proceedings under Article 15, ucmj ” (2011), part 2. 184 US, Department of the Army, DA Form 2627, “Record of Proceedings under Article 15, ucmj ” (2011), parts 2 and 3. 185 US, Department of the Army, DA Form 5111, “Record of Proceedings under Article 15, ucmj ” (2009), parts 1 and 2. 186 Middendorf v Henry, 425 US 25, 42 (1976). 187 Stanislas Horvat, Ilja Van Hespen, and Veerle Van Gijsegem, eds., “International Conference on Military Jurisdiction – National Reports – Australia,” The Recueils of the International Society for Military Law & the Law of War 19 (2013): 145 (hereafter National Report – Australia).

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Notes to pages 128–32

257

188 Defence Force Discipline Act 1982 (Cth), s 68 (1)(k) (AustLII); Defence Force Discipline (Consequences of Punishment) Rules 1986 (Cth), r 6 (AustLII). See also Australia, Department of Defence, Discipline Law Manual adfp 06.1.1 – Volume 3 Summary Authority and Discipline Officer Proceedings (Canberra: Defence Publishing Service, 2009), paras. 5.73–5.79. 189 Discipline Law Manual, para. 7.354. 190 Ibid., para. 7.362. 191 Ibid., ch. 11, “Review of Service Tribunal Proceedings,” paras. 11.16– 11.24; Horvat, Van Hespen, and Van Gijsegem, eds., National Report – Australia, 162. 192 Discipline Law Manual, para. 11.25. 193 Ibid., para. 11.25. 194 Horvat, Van Hespen, and Van Gijsegem, eds., National Report – Australia, 148–9; Discipline Law Manual, paras. 12.5–12.16. 195 Discipline Law Manual, paras. 12.7–12.8. 196 Tony McCourt, “Ireland’s Military Justice System Updated: Defence (Amendment) Act 2007,” Military Law and Law of War Review 46 (2007): 430–3. 197 Defence (Amendment) Act 2007 (I R ), 2007 (hereafter DAA 2007), n 24 s 26, adding sections 178E–178G to Defence Act 1954 (IR ), 1954, n 18 (hereafter Defence Act). 198 McCourt, “Ireland’s Military Justice System Updated,” 433–4. The summary trial is called ‘investigation and summary disposal.’ 199 daa 2007, ss 23, 25 adding sections 177D and 178D to the Defence Act. See also Stanislas Horvat, Ilja Van Hespen, and Veerle Van Gijsegem, eds., “International Conference on Military Jurisdiction – National Reports – Ireland,” The Recueils of the International Society for Military Law & the Law of War 19 (2013): 310.

c h a p t e r f i ve   1 Kenneth Watkin, Canadian Military Justice: Summary Proceedings and the Charter, l l m thesis (Kingston, o n : Queen’s University Faculty of Law, 1990) 241–75; Patrick Cormier, “La Justice militaire canadienne: le procès sommaire est-il conforme à l’article 11(d) de la Charte canadienne des droits et libertés ?” McGill Law Journal 45 (2000): 243–57; David J. Corry, “Military Law Under the Charter,” Osgoode Hall Law Journal 24, no. 1 (1986): 104–17.

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258

Notes to pages 132–3

  2 Canada, Special Advisory Group on Military Justice and Military Police Investigation Services, Report of the Special Advisory Group on Military Justice and Military Police Investigation Services (Ottawa: Department of National Defence, 14 March 1997) (Chair: Rt. Hon. Brian Dickson) (hereafter Dickson Report I), 54 and Annex F, legal opinion from Guy J. Pratte (Special Legal Counsel) and Lise Maisonneuve (Special Legal Advisor), 13 March 1997 (hereafter Pratte & Maisonneuve, ‘Legal Opinion’).   3 Canada, Office of the Judge Advocate General, Summary Trial Working Group Report (Ottawa: ojag, 1994), 54–7, 131–9, 142–6, 150–4, 160–5, 174–5, 179–81, 191–202, 205–8 (hereafter stwg Report).   4 Michel Drapeau, “Canadian Military Justice System: At a Crossroads,” testimony delivered at the US Congress Response Systems Panel on Military Justice and Sexual Assault, 24 Sept 2013 (unpublished), and lecture delivered at the Global Seminar on Military Justice Reform, Yale Law School, 18–19 October 2013 (unpublished), 23–5; Michel Drapeau, “Military Summary Trials: A Victorian System of Justice,” Sword and Scale, March 2010; Michel Drapeau, “A Balancing Act: More Military Judges or Constitutionalizing Summary Trials,” The Hill Times, 14 March 2011, 13; Michel Drapeau and Joshua Juneau, “Canada’s Military Summary Trials Are Frozen in Time,” The Hill Times, 15 February 2016, 10; François LeSieur, A New Appeal to Canadian Military Justice: Unconstitutionality of Summary Trials Under Charter 11(d), llm thesis (Ottawa: University of Ottawa, Faculty of Law, 2010), 32–7, contra Kenneth Watkin, “Military Summary Trials: A Response,” Sword and Scale, March 2010; Michael Gibson, “Canada’s Military Justice System,” Canadian Military Journal 12, no. 2 (2012): 61.  5 R v Oakes, [1986] 1 s cr 103, 1986 CanLII 46 (sc c ).  6 Carter v Canada (Attorney General), [2015] 1 sc r 331, 2015 sc c 5 (CanLII) [Carter].  7 R v Safarzadeh‑Markhali, [2016] 1 s cr 180, 2016 sc c 14 (CanLII).  8 R v Lloyd, [2016] 1 s cr 130, 2016 s cc 13 (CanLII).  9 R v Nur, [2015] 1 s cr 773, 2015 s cc 15 (CanLII). 10 R v Appulonappa, [2015] 3 s c r 754, 2015 s c c 59 (CanLII) [Appulonappa]. 11 R v Smith, [2015] 2 s cr 602, 2015 s c c 34 (CanLII). 12 R v krj , 2016 s cc 31 (CanLII) [krj ]. 13 R v Levi-Gould, 2016 CM 4002, para. 33. 14 Carter, para. 94.

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Notes to pages 133–4

259

15 Ibid., para. 97, citing Saskatchewan (Human Rights Commission) v Whatcott, 2013 s cc 11 (CanLII), [2013] 1 sc r 467, para. 78. 16 krj , para. 58; Oakes, para. 70. 17 R v Généreux, [1992] 1 s cr 259, 1992 CanLII 117 (sc c ), 313 [Généreux]. See also R v Moriarity, [2015] 3 sc r 485, 2015 sc c 55 (CanLII), para. 33 [Moriarity]. 18 Charkaoui v Canada (Citizenship and Immigration), [2007] 1 sc r 350, 2007 s cc 9 (CanLII), para. 68 [Charkaoui 2007]. 19 Pratte & Maisonneuve, ‘Legal Opinion,’ 12; Cormier, “La Justice militaire canadienne,” 244–5; Watkin, Canadian Military Justice, 254–9; LeSieur, A New Appeal to Canadian Military Justice, 32. 20 Section 11(f); Généreux, 296. 21 Criminal Code, s 5. 22 qr&o , arts. 4.02(1)(c), 5.01(1)(c). 23 qr&o , arts. 4.02(1)(a), 5.01(1)(a). 24 Bill C-15, An Act to amend the National Defence Act and to make consequential amendments to other Acts, 1st Sess, 41st Parl, 2013 (assented to 19 June 2013), S C 2013, c 24, cl 62 amends the nda by adding sections 203.1–203.4. These provisions mirror Criminal Code, ss 718 to 718.2 but with adaptations. Fundamental purposes of sentencing are set out at nda , s 203.1(1)(a) and (b). 25 nda , ss 203.1(2) which reads as follows: (2) The fundamental purposes shall be achieved by imposing just sanctions that have one or more of the following objectives: (a) to promote a habit of obedience to lawful commands and orders; (b) to maintain public trust in the Canadian Forces as a disciplined armed force; (c) to denounce unlawful conduct; (d) to deter offenders and other persons from committing offences; (e) to assist in rehabilitating offenders; (f) to assist in reintegrating offenders into military service; (g) to separate offenders, if necessary, from other officers or non-commissioned members or from society generally; (h) to provide reparations for harm done to victims or to the community; and (i) to promote a sense of responsibility in offenders, and an acknowledgment of the harm done to victims and to the community.

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Notes to pages 135–8

26 MacKay v The Queen, [1980] 2 s cr 370, 402, 1980 CanLII 217 (s c c ) (McIntyre J); Rutherford v R, (1983) 4 c ma r 262 (c mac ), 268 (Mahoney CJ). 27 Généreux, 293 (see above ch. I, C.2). 28 Moriarity, paras. 42–3, quoting Lamer C J in Généreux, 281. 29 Dickson Report I, 9. 30 First Independent Review by the Right Honorable Antonio Lamer, pc , c c , c d of the provisions and operation of Bill C-25, An Act to amend the National Defense Act and to make consequential amendments to other Acts, as required under section 96 of the Statutes of Canada 1998, c 35, (September 2003), 48 (hereafter Lamer Report). 31 Canada, National Defence, B-G G -005-027/A F-011, Military Justice at the Summary Trial Level, v 2.2 (Ottawa: Canadian Defence Academy, 12 January 2011), ch. 1, para. 33 (hereafter mjstl ). 32 United States v Burns, [2001] 1 s cr 283, 2001 sc c 7 (CanLII), para. 80. 33 Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts (Protocol 1), 8 June 1977, 1125 unts 3, art. 43(1). 34 Protocol I, arts. 87(1),(3). 35 Geneva Convention Relative to the Treatment of Prisoners of War of August 12, 1949, 12 August 1949, 75 unts 135, art. 4(2). 36 See generally Michael R. Gibson, “International Human Rights Law and the Administration of Justice through Military Tribunals: Preserving Utility while Precluding Impunity,” Journal of International Law and International Relations 4 (2008): 1. 37 qr&o , art. 108.02 was referred to in R v Able Seaman SA FenwickWilson, 2007 CM 4021 (CanLII), para. 41. 38 R v Grant, 2007 cm ac 2 (CanLII), para. 39. 39 mjstl , para. 50. 40 Ibid., para. 51. 41 krj , para. 68, citing Carter, para. 99. 42 Appulonappa, para. 80. 43 Généreux, 313. 44 Pratte & Maisonneuve, ‘Legal Opinion,’ 12; Watkin, Canadian Military Justice, 259–62; Cormier, “La Justice militaire canadienne,” 246–7; stwg Report, 133. 45 LeSieur, A New Appeal to Canadian Military Justice, 32. 46 Ibid., 33. 47 Ibid.

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Notes to pages 138–42

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48 R v Boyd, [2002] ukhl 31, [2003] 1 AC 734 (bailii), para. 4 [Boyd]. 49 Canada, National Defence, Duty with Honour, 2009, A -PA -005-000/ A P -001 (Kingston, on : Canadian Defence Academy, 2009), 62. 50 mjstl , ch. 1, paras. 34–6, quoting the definition of discipline in Canada, National Defence, Report on Certain “Incidents” which Occurred on Board hmc Ships Athabaskan, Crescent and Magnificent and on Other Matters Concerning the Royal Canadian Navy (Ottawa: 1949), 32. 51 Carter, para. 102. 52 Don Stuart, Charter Justice in Canadian Criminal Law, 6th ed. (Toronto: Carswell, 2014), 24, 31–2. However, in the recent case of krj , Karakatsanis J for the majority of the court wrote that the proportionality of effects “permits courts to address the essence of the proportionality enquiry at the heart of s. 1” (krj , para. 79). 53 Stuart, Charter Justice, 31–2; R v Edwards Books and Art Ltd, [1986] 2 s c r 713, 772, 1986 CanLII 12 (s cc ). 54 Alberta v Hutterian Brethren of Wilson Colony, [2009] 2 sc r 567, 2009 s cc 37 (CanLII), para. 55 [Hutterian Brethen]. 55 Canada (Attorney General) v Bedford, [2013] 3 sc r 1101, 2013 s c c  72 (CanLII), 126 [Bedford]. 56 Charkaoui 2007, para. 85. 57 Ibid., para. 87. 58 Hutterian Brethen, para. 53. 59 Carter, para. 102. 60 Chris Griggs, “A New Military Justice System for New Zealand,” New Zealand Armed Forces Law Review 6 (2006): 62, and Military Law and Law of War Review 45 (2006): 300. 61 Peter Masterton, “The Defence Function: The Role of the U.S. Army Trial Defense Service,” The Army Lawyer (2001): 10. 62 Ibid., 10. 63 Defence (Amendment) Act 2007 (I R), 2007, n 24 s 26, adding in particular s 178F(3) to Defence Act 1954 (IR ), 1954, n 18; Armed Forces Discipline Act 1971 (N Z), 1971/53, s 141(2); Armed Forces (Summary Appeal Court) Rules 2009 (UK ), SI 2009/1211, rule 41. 64 Armed Forces Discipline Rules of Procedure 2008 (NZ ), SR 2008/237, rules 18, 19. 65 Takashi Kagawa, “Soldier’s First Offense: Article 15 or Summary Court-Martial?” Army Law 1 (2014): 35. 66 Armed Forces Act 2006 (U K), c 52, s 52(3)(a),(b) (hereafter afa 2006).

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Notes to pages 142–4

67 Defence Force Discipline Act 1982 (Cth), s 106 (hereafter dfda ). 68 Armed Forces Discipline Act 1971 (N Z), 1971/53, ss 2(1), 108(1) (hereafter afda ); New Zealand, Defence Force, Manual of Armed Forces Law, DM69, 2nd ed., vol. 1, “Commander’s Handbook on Military Law” (2010), ch. 7, “Summary Proceedings,” paras. 7.1.3– 7.1.5, 7.1.13. 69 Defence Act 1954 (I R), 1954, n 18, s 177. 70 US, Department of Defence, Manual For Courts-Martial (2012 Edition) (Fort Belvoir, va: US Army Publishing Directorate, 2012), part V, p V-4, para. 5.a(1)(B)(i). 71 afa 2006, s 132, Table row 2; U K, Ministry of Defence, Manual of Service Law: jsp 830, vol. 1 (London: MoD, 2013), ch. 13, “Summary Hearing Sentencing and Punishments,” paras. 85–92. 72 afa 2006, s 132, Table row 3. 73 Ibid., s 132, Table row 1. 74 afda , Schedules 4, 5. 75 Stanislas Horvat, Ilja Van Hespen, and Veerle Van Gijsegem, eds., “International Conference on Military Jurisdiction – Conference Proceedings – National Reports – Responses to Questionnaire – Ireland,” Recueils of the International Society for Military Law and the Law of War 19, no. 1 (2013): ch. IV, “Summary Punishments,” 310–12, paras. 1–3. 76 dfda , Schedule 3 Table A, “Punishments that May Be Imposed by a Superior Summary Authority on Certain Officers,” and Table B, “Punishments that May Be Imposed by a Superior Summary Authority on Other Persons.” 77 Code de la défense (France) (2015 June 22), articles L4137-1–L4137-5 (hereafter cdd ). 78 Ibid., art. R4137-41. 79 Ibid., art. R4137-25. 80 Bedford, para. 126. 81 krj , paras. 77–9. 82 In Généreux, 313 (Lamer CJ). See also Peter Rowe, The Impact of Human Rights Law on Armed Forces (Cambridge: Cambridge University Press, 2006), 59. 83 Bedford, para. 129. 84 Généreux, 293. 85 Boyd, para. 4. 86 See generally Teresa Iacobelli, Death or Deliverance: Canadian Courts Martial in the Great War (Vancouver, b c : ub c Press, 2013). After

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Notes to pages 144–7

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reviewing the files of nearly 200 individuals sentenced to death by courts martial, the author found that the vast majority of them saw their punishment commuted by disciplinary authorities being able to show wisdom and compassion in reviewing those files.   87 Edward F. Sherman, “The Civilianization of Military Law,” Maine Law Review 22 (1970): 15, 28.  88 R v Semrau, 2010 CM 4010 (CanLII), para. 45 (Perron, mj).   89 Bill C-15, House of Commons, Committee, Standing Committee on National Defence, 41st Parl, 1st Sess, No 66 (13 February 2013), 1700.  90 Korponay v Attorney General of Canada, [1982] 1 sc r 41, 49, 1982 CanLII 12 (s cc).  91 Clarkson v The Queen, [1986] 1 s cr 383, 1986 CanLII 61 (sc c ), para. 20.  92 R v Richard, [1996] 3 scr 525, 1996 CanLII 185 (scc), paras. 31–4.  93 Stuart, Charter Justice, 37.  94 qr&o , art. 108.18.  95 nda , s 249.19.  96 qr&o , art. 101.11(c).  97 qr&o , art. 101.11(d).  98 mjstl , ch. 4, paras. 38–9. See also Watkin, Canadian Military Justice, 277–84, whence these measures originated; stwg Report, vol. 1, 209–26; Pratte & Maisonneuve, ‘Legal Opinion,’ 15–16.   99 Canada, National Defence, Annual Report of the Judge Advocate General – A Report to the Minister of National Defence on the Administration of Military Justice from 1 April 2012 to 31 March 2013 (Ottawa: ojag , 2013), 10. 100 Ibid., Annual Report of the Judge Advocate General – A Report to the Minister of National Defence on the Administration of Military Justice from 1 April 2013 to 31 March 2014 (Ottawa: o jag, 2014), 16. 101 Ibid., Annual Report of the Judge Advocate General – A Report to the Minister of National Defence on the Administration of Military Justice from 1 April 2014 to 31 March 2015 (Ottawa: o jag, 2015), 13. 102 Ibid., Annual Report of the Judge Advocate General – A Report to the Minister of National Defence on the Administration of Military Justice from 1 April 2015 to 31 March 2016 (Ottawa: o jag, 2016), 17. 103 Ibid., Annual Report of the Judge Advocate General to the Minister of National Defence on the Administration of Military Justice from 1 April 2016 to 31 March 2017 (Ottawa: o jag, 2017), 17.

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Notes to pages 147–9

104 Ibid., Annual Report of the Judge Advocate General to the Minister of National Defence on the Administration of Military Justice from 1 April 2017 to 31 March 2018 (Ottawa: o jag, 2018), 14. 105 See also Cormier, “La Justice militaire canadienne,” 236–43. 106 LeSieur, A New Appeal to Canadian Miitary Justice, 31. 107 qr&o , art. 107.07, part 3. 108 qr&o , art. 108.20(3)(a). 109 qr&o , art. 108.14(5)(a). 110 qr&o , art. 108.14(5)(b). 111 qr&o , art. 108.17(3)(2). 112 Canada, National Defence, A Review from 1 April 2006 to 31 March 2007 – Annual Report of the Judge Advocate General to the Minister of National Defence on the Administration of Military Justice in the Canadian Forces (Ottawa: ojag, 2007), which included Annex D, “Annual Report 2006–2007 of the Director of Defence Counsel Services,” and Annex E on summary trial statistics. At para. 33, ddcs reported that in 2006, 121 calls were made related to court martial election. During the same period, there were 493 cases where a member was offered the right to be tried by court martial. 113 Canada, National Defence, Defense Counsel Services Manual (Ottawa: d n d , n.p.), ch. 4, 7, note 43, http://www.forces.gc.ca/en/ about-reports-pubs-military-law-defence-counsel-manual/index. page. 114 qr&o , art. 108.15(2). 115 nda , s 129. 116 nda , s 83. 117 nda , s 165.191(1)(a). 118 Canada, National Defence, Annual Report of the Director of Defence Counsel Services 2012–2013 (Ottawa: National Defence, n.p.), 4, para. 18 (hereafter ddcs Report 2012–13), http://www. forces.gc.ca/en/about-reports-pubs-military-law-ddcs-2012-13/index. page?. 119 Ibid., para. 19(1.). 120 The Honourable Patrick J. LeSage, Report of the Second Independent Review Authority to the Honourable Peter G. MacKay (Ottawa: Minister of National Defence, December 2011), 31. 121 ddcs Report 2012–13, para. 19(2.). 122 Ibid., para. 19(3.). 123 afda , ss 69 (2A).

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Notes to pages 150–4

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chapter six   1 Joseph W. Bishop, Justice Under Fire – A Study of Military Law (New York: Charterhouse, 1974), xv.  2 Ibid., xiii–xiv.  3 Ibid., xiv.   4 Eugene R. Fidell, “A Worldwide Perspective on Change in Military Justice,” in Evolving Military Justice, edited by Eugene R. Fidell and Dwight H. Sullivan (Annapolis: Naval Institute Press, 2002), 213.  5 See contra Gilles L. Létourneau, Combattre l’injustice et réformer (Montreal, qc: Wilson & Lafleur, 2015), 150–1, 165.   6 Tom Bingham, The Rule of Law (London: Penguin Books, 2010), 55.   7 First Independent Review by the Right Honorable Antonio Lamer, pc , c c , cd of the provisions and operation of Bill C-25, An Act to amend the National Defense Act and to make consequential amendments to other Acts, as required under section 96 of the Statutes of Canada 1998, c 35 (September 2003), “Foreword,” (1) (hereafter Lamer Report).   8 Major-General Blaise B. Cathcart, “Remarks of the Judge Advocate General,” remarks delivered at the University of Ottawa Military Law Conference, 13 November 2015 (unpublished), http://www.forces. gc.ca/en/about-reports-pubs-military-law/jag-remarks-military-lawconference-2015.page.  9 qr&o , art. 19.10. 10 See generally Dan Reiter and Allan C. Stam, Democracies at War (Princeton, n j: Princeton University Press, 2010); contra Michael C. Desch, Power and Military Effectiveness: The Fallacy of Democratic Triumphalism (Baltimore, m d: John Hopkins University Press, 2010). 11 Standing Senate Committee on Legal and Constitutional Affairs, Equal Justice: Reforming Canada’s System of Courts Martial, Final Report: A Special Study on the Provisions and Operation of An Act to amend the National Defence Act and to Make a Consequential Amendment to Another Act, S C 2008, c 29 (May 2009), 4. 12 Bill C-77, An Act to amend the National Defence Act and to make related and consequential amendments to other Acts, 1st Sess, 42nd Parl, 2018 (as passed by the Senate 18 June 2019). 13 Bill C-71, An Act to amend the National Defence Act and the Criminal Code, 2nd Sess, 41st Parl, 2015 (first reading 15 June 2015). 14 S C 2015, c 13, s 2.

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266

Notes to pages 154–60

15 Bill C-77, cl 2(3) adding the new definition ‘service infraction’ to nda , subs 2(1) and cl 25 replacing nda , s 162.4. 16 Bill C-77, cl 25 adding nda , s 162.5. 17 Bill C-77, cl 25 adding the new definition ‘summary hearing’ to nda , subs 2(1) and replacing nda , s 162.3 and 162.4. 18 Bill C-77, cl 25 adding nda , s 163.4. 19 Bill C-77, cl 25 replacing the terminology at nda , s 163.1, 163.6, 163.7, and 163.8. 20 Bill C-77, cl 25 adding nda , s 163.1. 21 Ibid., s. 162.7. 22 Bill C-77, cl 25 adding nda , s 162.8 replacing nda , ss 163(1)(a) and 164(1)(a). 23 Bill C-77, cl 25 adding nda , s 163.1. 24 Ibid., s 162.6(2). 25 Ibid., s 162.6(1). 26 Ibid., ss 163.6–163.91. 27 Ibid., s 163.9(2). 28 Bill C-77, cl 2(3) amending nda , s 2(1). 29 Bill C-77, cl 4 adding nda , s 55(1). 30 Ibid., s 55(2). 31 Statutory Instruments Act, rs c, 1985, c S-22, ss 5(1), 20(b) (hereafter sia ); Statutory Instruments Regulations, c rc, c 1509, s 7(a) (hereafter sir ). 32 sia , s 3(2) a contrario. 33 sir , s 15(1). 34 Canada, Treasury Board Secretariat, Guide to the Federal Regulatory Development Process (Ottawa: Author, 2014), “Part 2: Overview of the Federal Regulatory Development Process,” http://www.tbs-sct. gc.ca/hgw-cgf/priorities-priorites/rtrap-parfa/guides/gfrpg-gperf/gfrpggperftb-eng.asp. 35 Ibid. 36 Bill C-71, cl 12 adding nda , s 162.7(e). 37 nda , s 139(1)(l); qr&o , art. 104.13(2). 38 Guindon v Canada, [2015] 3 s cr 3, 2015 sc c 41 (CanLII), para. 52. 39 R v Wigglesworth, [1987] 2 s cr 541, 1987 CanLII 41 (sc c ). 40 R v Lieutenant (N) J C Clark, 2017 CM 1006 (CanLII). 41 R c Paquette, 2017 CM 4004 (CanLII) [No English translation yet]. 42 R v Moriarity, [2015] 3 s cr 485, 2015 sc c 55 (CanLII), paras. 53–4. 43 Bill C-77, cl 25 replacing nda , ss 162.1–164.2. 44 Bill C-77, cl 24 replacing nda , ss 160–161.1.

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Notes to pages 160–71

267

45 Bill C-77, cl 25 replacing nda , para. 162.6(2). 46 qr&o , ch. 107–8. 47 Customs Act, rsc 1985, c 1 (2nd Supp.). 48 R v Jackson, 2003 cm ac 8 (CanLII), para. 7. 49 R v Lyons, 1992 CanLII 7809 (cm ac ), 5 c ma r 121, 123. 50 See ch. IV, part B, section 2, above. 51 See ch. IV, part B, section 1, above. 52 See ch. IV, part B, section 3, above. 53 See ch. IV, part B, section 1, above. 54 Canada, National Defence, daod 6001-0, Information Management (Ottawa: National Defence, 28 February 2012); Canada, National Defence, daod 6001-1, Recordkeeping (Ottawa: National Defence, 13 March 2013). 55 qr&o , art. 107.14. 56 qr&o , art. 111.16(1). 57 See ch. IV, part B, section 2, above. 58 Wood v Schaeffer, [2013] 3 s cr 1053, 2013 sc c 71 (CanLII). 59 R v Cawthorne, 2016 s cc 32 (CanLII). 60 Canada, National Defence, Leadership in The Canadian Forces: Leading People (Kingston, on : Canadian Defence Academy, 2007), ch. 6, “Building Effective Teams,” 71. 61 See ch. V, part B, section 2, above. 62 See ch. IV, part B, sections 1 and 3, above. 63 See ch. II, part B, section 7, above. 64 Tony McCourt, “Ireland’s Military Justice System Updated: Defence (Amendment) Act 2007,” Military Law and Law of War Review 46 (2007): 434. 65 Criminal Code, ss 812–38. 66 Ibid., s 822(4)(5). 67 Ibid., s 686(1)(b)(iii) and (iv). 68 See ch. IV, part B, section 1, above. 69 Armed Forces Discipline Act 1971 (NZ ), 1971/53, s 117Z B . 70 nda , subs 163(1) and 164(1). 71 See ch. IV, part B, section 3, above, and Appendix D, this volume. 72 See ch. III, part E. 73 qr&o , arts. 108.15(1),(2) and Notes (A),(B),(C). 74 qr&o , art. 108.33. 75 qr&o , art. 109.04. 76 See ch. IV, part B, section 3, above. 77 qr&o , art. 108.17(1)(a).

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Notes to pages 171–6

  78 See ch. V, part C, section 2, above.  79 qr&o , art. 110.04(1)(a).  80 qr&o , art. 110.04(2).  81 qr&o , art. 101.09.  82 nda , ss 166.1, 175.  83 R v Korolyk, 2016 CM 1002 (CanLII), paras. 20–8.   84 Marie Deschamps, External Review into Sexual Misconduct and Sexual Harassment in the Canadian Armed Forces (Ottawa: National Defence, 2015), 46.   85 Canada, National Defence, daod 5019-1, Personal Relationships and Fraternization (Ottawa: National Defence, 22 December 2004).  86 Ibid.  87 Ibid., daod 5012-1, Harassment Prevention and Resolution (Ottawa: National Defence, 20 December 2000).  88 Ibid., daod 6002-2, Acceptable Use of the Internet, Defence Intranet and Other Electronic Networks, and Computers (Ottawa: National Defence, 12 February 1999).  89 Ibid., daod 6003-1, Information Technology Security Programme (Ottawa: National Defence, 18 April 2012).  90 qr&o , art. 20.04. Concerning cannabis use by c a f members, see Canada, National Defence, daod 9004-1, Use of Cannabis by caf Members (Ottawa: National Defence, 7 September 2018).   91 See generally R v Brideau, 2014 CM 1005 (CanLII).  92 qr&o , art. 108.17(1)(a).  93 qr&o , art. 108.17(1)(a).   94 Canada, National Defence, A-DH -265-000/AG -001 Canadian Forces Dress Instructions (N.p.: cds , 2010), ch. 2, “Policy and Appearance,” sec 1, “Dress Policy,” paras. 1–58.  95 Canadian Forces Dress Instructions, ch. 2, sec 2, “Appearance,” paras. 1–3; qr&o , art. 17.02.   96 Bill C-15, An Act to amend the National Defence Act and to make consequential amendments to other Acts, 1st Sess, 41st Parl, 2013 (assented to 19 June 2013), S C 2013, c 64 replacing nda , s 215.  97 Criminal Code, s 718.2(b).  98 qr&o , arts. 107.11(2), 107.12.   99 See ch. IV, part B, section 2, above. 100 nda , ss 140–6. 101 See ch. IV, part B, section 3, above. 102 See ch. III, introduction, above; Private Nicholas Detre v Attorney General of Canada (18 June 2015), Montreal T-2145-14

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103 104 105 106 107 108 109

110 111 112 113 114 115 116

Notes to pages 177–85

269

(Prothonotary Richard Morneau) aff’d (14 August 2015), Ottawa T -2145-14 (fctd). nda , ss 139(1)(h), 144; qr&o , art. 104.11. See ch. V, part B, section 2, above. See ch. IV, part B, section 3, above. See ch. IV, part B, section 2, above. See ch. IV, part B, section 3, above. nda , s 9.2(1). nda , s 9.3(2). Auditor General of Canada, Report 3 – Administration of Justice in the Canadian Armed Forces (Ottawa: Office of the Auditor General of Canada, 2018), 8, para. 3.31. Ibid., 8, para. 3.31. jag Annual Report 2017–18, 29–30. See ch. III, part E and part F, section 1, above. jag Annual Report 2015–16, 11. nda , s 273.601. jag Annual Report 2017–18, 29–30. Canada, National Defence, Assistant Deputy Minister (Review Services) (8 July 2015), http://www.forces.gc.ca/en/about-org-­ structure/chief-review-services.page.

C onc l us i o n    1 Senate, Standing Senate Committee on National Security and Defence, Twenty-Fourth Report: Bill C-77, An Act to amend the National Defence Act and to make related and consequential amendments to other Acts, without amendment but with observations (May 2019) (Chair: Gwen Boniface), https://sencanada.ca/en/committees/ report/76661/42-1.    2 Bill C-77, cl 25 adding NDA , s 163.1.   3 Canada (Public Safety and Emergency Preparedness) v Chhina, 2019 S C C 29 (CanLII), paras. 2, 17, 18.

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Index

appeal, 15, 35–6, 8, 94, 121, 123, 129, 140–1, 143, 162, 170, 182, 212–16; and absence of transcript, 82; Court Martial Appeal Court, 21, 45; difference from review, 107–8, 203–4; in German military law, 125; in Irish military justice, 129; justices of the peace in Ontario, 77; in New Zealand military justice, 121; in Ontario police disciplinary process, 117, 205–6; proposed changes, 167–9, 183; in rcm p disciplinary process, 113–14; right to, 103, 107–8; in United Kingdom military justice, 120–2. See also summary trial arrest, 44; warrants, 79–80 Articles of War (1689), 34 Assistant Deputy Minister (Review Services), 180–1 assisting officer, 36, 46–7, 49, 103, 107, 146, 170; Bill C-77, 161; description, 96–7; imbalance between responsibility and training, 97; limits of, 147, 162; proposed training for, 41–2, 97, 177–8; qualitative survey on,

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97–8; right to, 37; role during review, 108 auditor general: report on military justice, 54–5, 178 Australia, 142; comparison with Canada, 129; military justice, 128–9, 212–16 Bill C-7, 41 Bill C-15, 41–2, 145, 164–5; impact on criminal records, 85 Bill C-25, 40 Bill C-41, 41 Bill C-45, 41 Bill C-60, 41 Bill C-71, 42, 54, 132, 153 Bill C-77, 8, 26, 31, 42, 117, 119, 132, 153–62, 183–6; comparison, 209–11; criticism of, 155– 62; description, 154–5; as paradigm shift, 156; and res ­judicata, 154–5 Bill of Rights (1688), 34 Bingham, Thomas, 144, 152 Bishop, Joseph, 150–1 Canadian Bill of Rights: impact on summary trials, 36

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272 Index

Canadian Charter of Rights and Freedoms: applicability, 59–67; breaches, 30, 39, 55, 56–110, 132, 137, 162; contextual approach, 67–71; impact on military justice, 36–8; impossibility of raising, 67–9; judicial independence, 56; Lamer’s contextual approach, 67–9; L’Heureux-Dubé’s contextual approach, 69; Oakes test, 133– 45; probability of constitutional challenge, 57; section 1, 132–3; section 7, 57, 70, 144, 162, 185; section 11, 60, 61; section 11(c), 62; section 11(d), 57–8, 68, 72, 138, 162, 185; section 11(f), 68; section 11(h), 63; section 11(i), 61; section 12, 57; section 15(1), 37, 84–95, 163; section 24(1), 58; waiver, 59 Canadian Military Prosecutions Service, 49, 164. See also Director of Military Prosecutions Cathcart, Blaise, 153 charge laying, 45–6; pre-charge legal advice, 46, 48, 89; sixmonth limitation period, 46. See also military justice Chief of the Defence Staff, 20, 39, 77, 166–7 civilianization: of military justice, 24–6 Code of Service Discipline, 15–16, 19, 45; dual role of, 60 commanding officer, 47–8, 64; powers of punishment, 51; proposed changes, 177. See also presiding officer

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comparative law, 19; in military justice, 22–4, 111–12. See also military justice confinement to barracks/ship, 64, 185–6; comparison with basic training, 65; example of conditions, 198–201; and right to elect court martial, 65; proposed change, 176 Constitutional Act (1982): section 52, 58 Cormier, Patrick, 71 court martial, 163; jurisdiction, 49; origins, 34; pressure on choice, 42, 148–9, 171–2; reference to, 64; right to elect, 64. See also military justice Court Martial Appeal Court, 21, 45 Criminal Records Act, 41, 85, 102; proposed exemption from, 42, 164 custody review officer: role, 44–5; lack of independence, 72; acting judicially, 77, 80–1; proposed training for, 177 Dahl, Willy Arne, 24–5, 26; axis in military justice, 25 Defence Administrative Orders and Directives, 19–20 Defence Counsel Services, 29, 50, 101, 146, 149; policy directives, 20; proposed change, 170; in US military justice, 127–8 delegated officer, 57, 86; Bill C-77, 154, 209–11; definition, 47, impartiality, 75; independence, 79–80; jurisdiction, 47, 86, 163; in National Defence Act (1950),

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Index 273

36; powers of punishment, 51, 63–4, 86, 202; power to detain, 36–7. See also presiding officer Denning, Alfred, 98–9 depenalization approach, 123–6; assessment, 125–6; comparison with judicialization approach, 125–6; in French military law, 123–4; in German military law, 124–5 deprivation of liberty: exposure to, 59 deprivation of pay: Bill C-77, 154, 157, 160, 209–11. See also fine detention, 9, 36–40, 49, 51, 63, 167, 175–6, 202, 209–11; Bill C-77, 154–7, 183; proposal to maintain, 156, 162 Director of Military Prosecutions, 149; Ireland, 130; proposal for change, 171; New Zealand, 122. See also Canadian Military Prosecutions Service disciplinary: comparison with civilian systems, 72; ‘disciplinary exception,’ 99; dual sense of word, 26–7, 39; inmate disciplinary regime, 117–20; international humanitarian law, in, 135; meaning in military context, 15, 59, 62–3; police disciplinary process, 112–17. See also military discipline disclosure, 103–4, 148–9, 178, 196–7 double jeopardy, 63, 125, 154–5 Drapeau, Michel, 22–3, 103–4 election (between court martial and summary trial), 49; information

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provided for, 49–50, 196–7; pressure on, 148–9, 171–2; proposed changes, 169–71; threshold, 170–1; waiver, 169 European Court of Human Rights (ec hr ), 92–4, 111, 120 Fiddell, Eugene, 22, 151 fine, 3–5, 8, 37, 49, 51, 58, 65–6, 86, 157, 161, 171, 176, 202, 209–11; in German military law, 124; in inmate disciplinary regime, 118–19. See also ­deprivation of pay foreign jurisdictions: alternatives in, 120–31; comparison with Canada, 130–1; judicialization approach, 120–3 France, 30, 130, 140, 142, 166, 177; military law, 123–4, 212–16 Germany, 30, 140, 130; military law, 124–5, 161, 212–16 Gibson, Michael, 24 government: fixing problems in, 150 Hansen, Victor, 22 hybrid approach, 126–30; in Australian military justice, 128– 9; in Irish military justice, 129– 30; United States military justice, 126 independence, 56, 116, 137, 140, 167; adjudicators, 72–82; in Bill C-25, 40; in Bill C-77, 161–2; comparison, 72; contextual approach to, 67; and impartiality, 73; of presiding officers,

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73–7; of quasi-judicial functions, 77–81; in United Kingdom, 120; Valente’s criteria, 73 inmate disciplinary process, 117– 20; comparison with summary trial, 118–19, 209–11; disciplinary offences, 118, 207–8 investigation, 43, 79; delay of, 54; by military police, 44; by unit, 44 international humanitarian law, 135–6 Ireland, 141–2, 163, 167–8; military justice, 129–30, 212–16; summary court martial, 129 Judge Advocate General (jag), 54, 177–8, 180. See also Office of the Judge Advocate General (o jag) judicial independence. See independence judicialization approach, 31, 39, 120–3, 126, 129; comparison with depenalization approach, 125–6; as proposed change, 162 judicial review, 56–8; oversight over summary trials, 108–10. See also review juridification, 26, 123. See also civilianization Lamer, Antonio, 62; contextual approach, 68–9; first independent review (Lamer Report), 40–1; on military justice’s dual nature, 60; on pre-charge legal advice, 90; on purpose of military justice, 12–13, 155; on unique needs of the military, 135, 144; views on rational link, 137,

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144. See also National Defence Act (nda ) Lamer Report. See Lamer, Antonio language of the proceedings, 46, 48 legal advice: by defence counsel, 148–9; post-charge, 47–8, 86, 101; pre-charge, 46, 48, 86, 101; proposed changes, 166–7, 169– 70; rank-based distinction in, 89–90, 202 legal counsel, right to, 64, 141 LeSage, Patrick: second independent review (LeSage Report), 42, 149. See also National Defence Act (nda ) LeSage Report. See LeSage, Patrick LeSieur, François, 137–8 Létourneau, Gilles, 22–4, 103–4, 136 L’Heureux-Dubé, Claire: contextual approach, 69 Madden, Mike, 22–3 Martineau/Guindon test, 60–1, 63; and Bill C-77, 157–61. See also ‘true penal consequences’ test military discipline: collective, 17; definition, 16–17; evolution of maintenance, 18–19; self-­ discipline, 17–18 military justice: assessment, 122–3; case law, 20–1; charge laying, 45–6; civilianization of, 24–6; Clémenceau on, 11–12; comparative law in, 22–4, 111–12, 212– 16; comparison with civilian justice, 109; comparison with foreign jurisdictions, 120–30; comparison with other disciplinary regimes, 71, 112–20;

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Index 275

contextual approach to Charter, 67–71; definition, 11, 155; delay in, 54; dual nature of, 134–5; evolution in Canada, 36–43; and international humanitarian law, 135–6; judicialization of, 120–3; juridification of, 26, 123; jurisdiction, 12, 14–15, 63, 158; modifications, 35–7, 40; in New Zealand, 121–2; origins, 33–5; peacetime vs wartime, 144; portability, 43, 112, 120, 135, 143; purpose, 12–13, 70, 134–6; rank-based distinctions in, 84–95, 202; reform in, 24–30, 35, 151–2; scope, 13–14, 62–3, 155; surveys, 179–81; trinity of interests in, 28–9; in United Kingdom, 120–1 Military Justice at Summary Trial Level, 40, 97, 105 Military Justice Information System (mj i s ), 178–9 military law, 19–24; comparative law in, 22–4; primary sources, 19–21; reform in, 150–1, 186–7; secondary sources, 21; specialization, 151 minor sanctions, 154, 157, 161, 183, 185, 209–11; in inmate disciplinary regime, 118. See also Bill C-77 Mutiny Act (1689), 34 National Defence Act (nda ), 12, 14, 19, 80, 97, 160; amended following the Charter, 63; amendments to, 37, 40–1, 90, 153; and criminal record, 42, 164–5; duty to observe and enforce, 134;

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overbreadth of, 70; proposed changes to, 164–5, 167–9, 173; regulations under, 156; reviews of, 21, 40–2, 90, 97, 151; terminology in, 61; tri-service act of 1950, 36 New Zealand, 141, 142, 149, 165, 166, 167, 168, 212–16; military justice, 121–2; New Zealand Bill of Rights Act (nzbora ), 121 Oakes’ test: description, 133–4; minimal impairment, 138–43; proportionality test, 137–45; proportionate effect, 143–5; rational connection, 137–8; reasonably available alternatives, 143; societal concern, 134–7. See also Canadian Charter of Rights and Freedoms Office of the Judge Advocate General (o jag), 54, 96, 104, 146, 178–81. See also Judge Advocate General (jag) Operation Honour, 5, 77, 158 offences: new, 173–5. See also service offence orders, 16, 20, 95, 134–5, 153, 158, 173 Parliament, 16, 25, 28, 34–5, 139, 156, 183–4, 186 police disciplinary process, 112–17, 130; comparison with summary trial, 71, 117, 205–6; in Ontario, 116–17; in rc mp, 113–14; in Sûreté du Québec, 114–16 presiding officer, 73–7, 147; oath, 50; post-charge legal advice to, 47–8; role during hearing, 50–1;

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proposed changes to role of, 175–6 pre-trial disclosure. See disclosure punishment powers, 5, 7, 38, 40, 51, 91, 136; in French military law, 124; in German military law, 125; proposed change to, 166, 177 Queen’s Regulations and Orders, 156; Bill C-77, 160; as primary source of military law, 19; proposed changes to, 164, 167, 172, 175–6; terminology, 61–2. See also military law recommendations, author’s, 162– 81; desirable, 171–81; necessary, 163–70 record of disciplinary proceedings: absence of waiver on, 147; access to, 62; definition, 46; and election, 146; example of, 192–3; proposed changes to, 165, 169, 175–6 reduction in rank, 65; Bill C-77, 161; and right to elect court martial, 65 reform, of military justice, 24–30, 151–2; civilianization, 25–6; continuous, 151; dualistic approach to, 24, 186–7; new model, 28–30; recommendations for, 152. See also military justice repatriation: of service members, 171–3 reprimand, 5, 51, 66, 209–11; in German military law, 124; in New Zealand military law, 142; in prison law, 118; and severe

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reprimand, 177; in Sûreté du Québec disciplinary process, 115–16 review, 37, 51–4, 58, 82, 86, 162–3, 176; of Bill C-77, 155, 160–1; of custody, 45, 80–1; difference from appeal, 107–8, 203–4; external, 151; on face of the record, 52–3, 90, 113; in French military law, 124; judicial, 56–8, 108–10; meaningful, 82–3, 102; of military justice, 38, 40, 42, 54–5, 97, 132, 135, 179–81; in prison law, 119; proposed changes, 122, 141, 143, 165, 167–8, 170, 178–9; in rc mp ­disciplinary process, 113–14; on request, 52; review authority, 52–3, 113; in United States, 129. See also National Defence Act (nda ); summary trial right to appeal. See appeal right to counsel, 28–9, 95–103, 112, 132, 163, 185; in New Zealand military justice, 121; in rc mp disciplinary process, 114; in US military justice, 127–8; waiver, 145 Rubin, Gerry, 25, 123 sanction, 16, 27, 59, 61, 88–9, 129, 156; Bill C-77, 154–5, 157–60, 183, 209–11; in French military law, 142–3; of other disciplinary regimes, 71; in police disciplinary process, 112; in prison law, 118– 19. See also minor sanctions Senate: Standing Senate Committee on Legal and Constitutional Affairs, 41; Standing Senate

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Index 277

Committee on National Security and Defence, 184 service infraction, 154, 156–7. See also Bill C-77 service members, rights and obligations of, 153 service offence, 14, 38, 43, 46, 48, 61, 63, 80, 106, 160; ‘baby five,’ 49; and Criminal Records Act, 85–6; definition, 12; list, 194–5; minor, 33, 209–11; and purpose of summary trial, 136; proposed changes, 170–1, 173–4 service tribunal, 61 severe reprimand, 5, 51, 66, 85, 202, 209–11; in Australian military justice, 142; in French ­military law, 123; in German military law, 124; in New Zealand military justice, 142; and reprimand, 177 Somalia Commission of Inquiry Report, 38–9 Special Advisory Group on Military Justice and Military Police Investigation Services, 39; 1997 legal opinion on summary trials, 39–40 Summary Appeal Court, 121–3, 140, 212–16; in New Zealand, 121; proposed changes, 167–9; in United Kingdom, 121 summary proceedings. See summary trial summary trial: accessible to public, 62; or administrative measures, 42; ‘baby five,’ 49; challenges, 9, 56, 162–3; comparison with civilian system 9, 35, 43, 54; comparison with police

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disciplinary process, 71, 117, 205–6; comparison with prison disciplinary process, 118–19; constitutional challenges to, 37; depenalization, 39; description of current system, 43–54, 191; double jeopardy, 63; guilt determination phase, 50–1; hearing, 50–1; judicialization, 39, 162; jurisdiction, 48–9, 194–5; limitations periods, 48; ‘minor circumstances,’ 63–4; minor offences, 9–10, 49, 85; modifications, 35–7, 40–1; origins, 35; portability, 43, 48, 112, 136; proposed changes, 162–81; purpose, 30, 33, 43, 136; reasonable doubt standard, 32–3, 50–1; review, 51–4; right to appeal, 38, 107–8, 121, 129; sentencing phase, 51; training, 40; vital element, 112; waiver, 146–9 Summary Trial Working Group, 38 superior commander, 90–1; Bill C-77, 154; change in appointment of, 39; Germany, 125; National Defence Act (1950), 36; jurisdiction, 42, 47; powers of punishment, 51; proposed changes, 163–4, 166–7. See also presiding officer transcript, 103, 108–9, 112, 132, 137, 143, 182, 203–4; absence of, 15, 56, 82–4, 162–3; in Bill C-77, 161; New Zealand, 141; proposed changes, 168 ‘true penal consequences’ test, 60; compared to ‘criminal in nature’ test, 60–2, 157; test altered,

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60–1, 63. See also Martineau/ Guindon test United Kingdom, 141–2, 144, 166– 8, 212–16; military justice, 120–1 United States, 141–2, 212–16; comparison with Canada, 128; military justice, 126–8; non-judicial punishment, 126–7, 142; right to counsel, 127–8; summary court martial, 126–7; waiver, 128, 217 unit investigator, 44; proposed training, 177–8 unit registry of disciplinary proceedings, 165

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waiver: conditions, 59, 71, 145–6; election as unequivocal, 169; influence over, 171–3; New Zealand, 122; one-year limitation period, 46; in rc mp disciplinary process, 114; of rights, 36, 59, 102, 145–9, 183; sixmonth limitation period, 46; United States, 128, 217; validity, 146–9 Watkin, Kenneth, 30, 63, 99; thesis, 37–8

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