Canadian Supreme Court’s Chance to Reform Its Military Justice System

This month, the Supreme Court of Canada will hear the case of Corporal Raphael Beaudry, a decision that may force significant changes to Canada’s military justice system and in turn affect the Canadian Armed Forces as a whole.

Canada’s military, which fields 68,000 active duty personnel and 27,000 reservists, currently has some 2,000 members deployed on operations outside of Canada. From Central and Eastern Europe, where these forces are taking part in NATO assurance and deterrence measures, to Mali, where Canadians are operating an air task force in support of the United Nations, Canadian troops are engaged in complex missions that require a firm understanding of international humanitarian law and international human rights law.

The Supreme Court’s decision may usher in reforms to the military justice system that shape how the Canadian military conducts itself in 21st century operations. The Supreme Court could affirm the jurisdiction of courts martial over all offences, whether civil or military, just as the U.S. Supreme Court did in its 1987 Solorio decision. Conversely, the Supreme Court could narrow the jurisdiction of the military justice system, perhaps going so far as to shunt off civil offences to the civilian court system.

The Supreme Court has recognized the importance of a “separate and parallel system of military justice.” That said, Canada’s military justice system has evolved significantly in the last two decades alone. In the late 1990s, Parliament introduced wide-ranging military justice reforms, partly in response to the so-called Somalia Affair. In 1993, Canadian troops, operating in Somalia in support of the United Nations, beat and tortured to death a Somali teenager, Shidane Arone, for breaking into a Canadian compound. The Somalia Inquiry, which released its report in 1997, revealed that Canadian troops had committed a number of crimes, and lambasted the military’s culture and leadership.

The Somalia Inquiry, combined with former Chief Justice Brian Dickson’s separate and comprehensive report on the military justice system as well as the increasing influence of the Charter of Rights and Freedoms, led Parliament to introduce the landmark Bill C-25. The bill, in addition to other provisions, notably created the offices of Director of Military Prosecutions and Director of Defence Counsel Services. Since 1998, Parliament has continued to reform the military justice system. The Supreme Court has also kept the Canadian Armed Forces in the spotlight. Beaudry marks the third time that the Supreme Court has addressed the military justice system in the last three years alone.

Beaudry’s case revolves around a key question: To what extent should the Canadian Charter of Rights and Freedoms apply to service personnel? Section 11(f) of the Charter grants individuals the right “except in the case of an offence under military law tried before a military tribunal, to the benefit of trial by jury where the maximum punishment for the offence is imprisonment for five years or a more severe punishment.” Section 130(1)(a) of the National Defence Act holds that an act or omission “punishable under…the Criminal Code” constitutes an “offence under this division” and can thus be tried in the military justice system. In effect, service personnel tried by courts martial for civil offences are not afforded the same right to a jury that all other Canadians enjoy. General Courts Martial do seat five-member “panels,” the military equivalent of a jury, though it should be noted that those panels are constituted by military personnel, not civilians.

In September of last year, the Court Martial Appeal Court voided Section 130(1)(a) in a split 2-1 decision. Judge Vital Ouellette, delivering the judgment, argued that the drafters of the Charter in Section 11(f) were referring only to military offences, not to civil offences. In other words, the 11(f) exception no longer kicks in for civil offences tried before courts martial. As a result, courts martial can no longer deprive service personnel accused of civil offences of the right to a trial by jury.

In Parliament, both Conservative and Liberal MPs have opposed the Court Martial Appeal Court’s decision. James Bezan, the Conservatives’ Critic for National Defence, argued in Parliament that the decision, if affirmed by the Supreme Court, would compromise discipline and morale within the Canadian Armed Forces. Bezan has also argued that the civilian justice system remains backlogged and unprepared to pick up the extra slack. Harjit Sajjan, Liberal MP and Minister of National Defence, similarly characterized the “military justice system” as critical for the maintenance of “discipline and morale” when announcing the government’s decision to appeal. The New Democratic Party has yet to take a firm stance on the case.

By repeating tired references to discipline and morale, however, Bezan and Sajjan have failed to acknowledge serious criticisms of the military justice system. A 2017 draft report by the Court Martial Comprehensive Review Team, while characterizing the military justice system as “somewhat effective,” revealed a number of problems. Notably, the report warned that the “court martial system is overwhelmingly perceived by the chain of command as too slow, too complicated and too expensive and that sentences are seen as too lenient.” The report concluded that the “current court martial system…appears to have considerable room for improvements in efficiency, and, as a result, faces challenges to its legitimacy.”

Parliament has not spent nearly enough time discussing the advantages of the Appeal Court’s decision. First, its holding has the potential to make Canada’s military justice system more equitable without leading to decreased operational efficiency. Service-specific infractions—disgraceful conduct or absence without leave, for example—would obviously remain punishable offences even in a post-Beaudry system. But when it comes to civil offences, there is no reason why Canadians who choose to put on a uniform should be entitled to fewer constitutional protections than their civilian counterparts. France and Germany have abolished courts martial in times of peace despite boasting much larger militaries than Canada. Moreover, post-Beaudry reforms would not necessarily have to be revolutionary. As some military lawyers have argued, a simple way of adhering to the Appeal Court’s holding would be to introduce civilian-style juries into courts martial of civil offences.

Second, the Appeal Court’s holding also has the potential to further transform the Canadian Armed Forces into a 21st century force. The Canadian Armed Forces already benefits from the services of the Office of the JAG’s Operational and International Law Division, which coordinates “legal support for all domestic and international operations.”

Yet going further and diverting trials of civil offences out of the military justice system would leave legal officers with more time for international deployments and key tasks like advising and teaching. Chris Madsen, in his history of Canadian military justice, argues that “better instruction in military law must receive high priority.”

Certainly, 21st century security operations require a firm understanding of the law. Canadian troops deployed in Ukraine, with the United Nations, or as advisors for counter-insurgency missions need to be well versed in the basics of international humanitarian law and international human rights law. With foreign actors—China and Russia as well as transnational terror organizations—using grey-zone tools like cyberwarfare, Canadian military personnel’s understanding of the legal landscape will need to grow.  A post-Beaudry system could result in legal officers having more time to educate enlisted personnel, to advise officers on their legal responsibilities, and to train the legal corps of international partners.

Members of Parliament, in criticizing the Appeal Court’s decision, have demonstrated themselves to be out of step with an historical Canadian trend: support for partial, if not full, civilianization of the military justice system. Ever since then-Minister of National Defence Brooke Claxton introduced the National Defence Act to Parliament in 1949, MPs have argued that the military justice system ought to mirror the civilian system’s example to the greatest extent possible. As Hansard demonstrates, many MPs sitting in the 1940s and 50s had served in one or both of the World Wars and were aware of the depredations that an unchecked military justice system could create. Continuing well into this decade, MPs of all parties have often criticized or voted against national defence bills for not going far enough in reforming the military justice system.

Indeed, while Members of Parliament have proven willing to criticize the Beaudry decision, many have been supportive of the progressive Bill C-77, which adds a “Declaration of Victims Rights” to the Code of Service Discipline. If enacted, C-77 would transform the summary trial system into a “non-penal, non-criminal summary hearing process.” Bezan and a number of other Conservative MPs have argued in favour of the Bill’s most progressive elements, stressing that personnel in summary hearings ought to have the right of “appeal to a higher authority.” The irony is that these same MPs have criticized the similarly-progressive Beaudry decision.

French prime minister Georges Clemenceau once acerbically quipped that “military justice is to justice what military music is to music.” He was wrong. A separate military justice system has an important role to play in keeping the Canadian Armed Forces an agile and responsive organization. But just as the Canadian military will need to continually adapt to 21st century standards, so too will Canada’s military justice system. An affirmation by the Supreme Court of the Appeal Court’s holding will not weaken, but rather strengthen, Canada’s military.  

IMAGE: Canada’s Prime Minister Justin Trudeau looks at military equipment as he meets with NATO battle group troops in Adazi, Latvia, July 10, 2018. (Photo by ILMARS ZNOTINS/AFP/Getty Images)

 

About the Author(s)

Preston Lim

J.D. student at Yale Law School, former Schwarzman Scholar at Tsinghua University - Follow him on Twitter (@PrestonJordanL1).