Better Know a Court: Canada’s Courts Martial

Taha Hassan (2L)

Those interested in criminal law and procedure may find it interesting to acquaint themselves with Canada’s courts martial. Governed by the National Defence Act, the court martial system provides a comprehensive way to prosecute and punish criminal-type offences in a military context.

An independent system is required because of the unique emphasis military law places on enforcing strict discipline: offences that seem trivial to civilians may be detrimental to the culture of unquestioning obedience and respect for authority that is necessary for the operation of an effective military. The result is a court martial system with broad application, reduced safeguards in prosecution, and severe punishments.

Broad Application

The broad applicability of the court martial system derives from the range of offences listed under the Code of Service Discipline. Some offences are of course expected, as they would be in any civilian criminal code: examples include striking a superior officer, stealing, and injuring another person. Other acts, while not cause for much alarm—and rarely a criminal conviction—in the civilian context, are offences in military law: these include disobedience of a lawful command, insubordinate behaviour, and injuring yourself. The most common offences also belong in the latter category: failure to show up for work (35% of all charges in the last reporting year), shortfalls in maintenance of personal equipment, quarters, or appearance (25%), negligent discharge of a weapon (15%), and drunkenness (9%). For reference, around 1700 charges were laid last year.

Court Martial Appeal Court of Canada Coat of Arms

When abroad, personnel continue to be held liable under Canadian military law, as well as the laws of the jurisdiction in which they are serving. Personnel also remain liable for offences under the Criminal Code. Notably, civilians accompanying a military unit also become subject to the military’s disciplinary system.

Reduced Safeguards

It may be helpful to explain the distinction between “courts martial” and the “court martial system.” The “court martial system” encompasses a range of disciplinary proceedings, from “summary trials” to what are truly “courts martial.” More minor offences proceed by way of summary trial; an overwhelming majority (over 90%) of charges are disposed of in this way.

Summary trial in the military context, however, is significantly different from the criminal context. The trial is not presided over by a judge, but rather by the accused’s higher-ranking officer (think of a business manager) or the unit’s commanding officer (think of a CEO). The only legal training these officers are likely to have received is from the office of the Judge Advocate General (the military’s in-house counsel). The accused does not have a right to legal counsel at a summary trial.

Right to legal counsel becomes available for the more severe offences that are sent to courts martial, which is a formal military court. This court is presided over by a military judge and may also include a panel of senior military officers. Even at this stage, however, safeguards available to the accused are lacking. Those charged can elect to hire a private lawyer, or obtain free representation from the military’s Defence Counsel Services (DCS). DCS, however, is made up of four full-time military defence lawyers working out of Gatineau, and four part-time military lawyers spread across the country. The prosecution service is twice as large.

Also alarming is that while the accused are entitled to be notified and connected to DCS representation when (or soon after) they are charged, there is a delay in their superior officers informing DCS of the accused’s requests for representation. In a shocking 65% of cases over the last reporting year, accused personnel’s requests for representation were not relayed to DCS until 1 to 3 months later. In 9% of cases, it took over 6 months after the charge to relay this information to DCS.

Severe Punishment

The severity of the lack of procedural safeguards, especially at the summary trial level, is worsened considering the types of punishment available to commanding officers. The most severe of these is “detention” for up to a month. Courts martial can issue longer periods of detention, dismissals from the military, and up to life-long prison sentences. The severity of military punishment, however, is perhaps best illustrated by describing “detention”.

Detention involves being sent to Canada’s military prison in Edmonton, where inmates undergo, by regulation, a “routine and training [that] require[s] the maximum effort and the strictest discipline.” Every aspect of the 15-hour days is scheduled, with an emphasis on military drill and scrubbing rooms and equipment, while in uniform. For the first two weeks, inmates are not allowed to smoke or speak without permission. After this first stage, they are allowed to speak to others for a maximum of 30 minutes per day, use the library, and have visitors. Inmates are penalized for such misbehaviours as idleness, inattention, attempting to communicate, swearing, singing, and whistling. The most severe punishment available is days in solitary confinement in a barren cell, unable to lie down, in socks and underwear, fed only bread and water. Consider yourselves warned, I guess.