Military Justice System

Canada maintains a separate justice system for the Canadian Forces. The relevant legislation on Canada's military justice system falls within federal jurisdiction under the authority of s92(7) of the Constitution Act of 1867; namely, Parliament's authority to enact laws related to the "Militia, Military and Naval Service and Defence." Under this authority, Parliament enacted the National Defence Act, and under that statute the federal government has promulgated the Queen's Regulations and Orders (QR&O) and the Canadian Forces Administrative Orders (CFAO). The foregoing legislative enactments serve as the underpinnings of Canada's military justice system.

Essentially similar to the civilian justice system's categorization of offences as either summary or indictable, the military justice system provides for trials of a summary nature and by court martial. The method of procedure depends upon factors relating to the rank of the accused, the nature of the offence and the severity of the punishment.

The statutory basis for the Canadian system of military justice, in the National Defence Act, is called the Code of Service Discipline. The most essential purpose of the military justice system is to foster the discipline necessary for maintaining an efficient military force. The Code comprises offences and attendant punishments; a system of tribunals consisting of summary trials and courts martial; a Court Martial Appeal Court with civilian judges; and provision for service prisons and detention barracks.

Twice, in 1980 and 1992, the Supreme Court of Canada examined the constitutionality of certain aspects in the Code. On both occasions the Supreme Court affirmed the need for a separate system of justice to meet the unique requirements of military discipline. Additionally, a separate system of justice is required due to the unique nature of certain military offences, such as desertion, that do not exist in civil offences.

In 1997 the Dickson Special Advisory Group on Military Justice and Military Police Investigation Services, and the Somalia Commission of Inquiry, called for a more clearly defined separation between the chain of command and the function of prosecution. Amendments to the National Defence Act, in Chapter 35 of the Statutes of Canada 1998, went into effect on 1 September 1999. The prosecution function, formerly conducted by members of the Office of the Judge Advocate General (JAG), became the purview of the Director of Military Prosecutions (DMP) who, with the support of legal officers, constitutes the Canadian Military Prosecution Service (CMPS).

The CMPS works with internal authorities, such as the JAG, and with the civilian criminal justice system, including civilian judicial and prosecutorial authorities at federal levels, provincial and international levels. The foremost functions of the CMPS are related to the JAG's military justice role, including representing the Canadian Forces at pre-trial custody hearing under the National Defence Act; representing the Canadian Forces in specific cases; reviewing all charges referred for court martial; preferring charges for trial and preparing cases for prosecution for courts martial; and prosecuting courts martial.

Military justice procedures parallel those applied to civilian criminal courts, with some differences, such as the absence of jury trials and preliminary hearings in the military system. The differences between the two systems are due to the various needs of the different communities each represents. However, both serve constitutional objectives and the same public function of trial and punishment of those who break the law.

The military justice system includes responsibility for prosecuting the Laws of Armed Conflict at the Operational and Tactical Levels. Canada, like all Western countries, is subject to the laws of armed conflict as set out by various conventions, including the Hague Conventions; the Geneva Conventions and Additional Protocols; the Charter of the UN; and various other international agreements. These agreements concern general land, sea, air, neutrality and humanitarian law; disarmament; and anti-personnel land mines. They give all countries sharing membership in the convention the right to seek assistance from other member countries. The laws established under such conventions are assembled for the benefit of all members.

For example, on 10 December 1984 the UN set forth the 1984 Convention Against Torture and Other Cruel, Inhumane or Degrading Treatment, or Punishment. It was signed by Canada on 23 August 1985 and came into effect on 24 July 1987. Article 2 demands that each member, called a State Party, "take effective legislative administrative, judicial or other measures to prevent acts of torture in any territory under its jurisdiction." It further states that there is no justification for torture, and that an order "from a superior officer or public authority may not be invoked as a justification of torture."

Another example is the 1997 Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-personnel Mines and on Their Destruction, which instituted international laws concerning anti-personnel mines. The Convention makes each State Party responsible for destroying anti-personnel mines in their jurisdiction within 10 years of the entry into force of the Convention in that country. Canada's Anti-personnel Mines Convention Implementation Act of 1997 "prohibits the possession, placement, acquisition, development and import-export of anti-personnel mines in Canada." Exceptions are military personnel and peace officers having mines in their possession in the course of their duties of rendering them harmless.

The military justice system strives to be fair; only then can it be an effective body for promoting and supporting the discipline that must be an integral part of any military organization.