JAG propelled into global leadership

“Our government is proudly introducing changes to our military justice system. These changes mean better support for victims, and a fast and fair process that reflects our Canadian values,” Defence Minister Harjit Sajjan announced at a news conference in Ottawa on 10 May. Joined by his Parliamentary Secretary Jean R. Rioux and Judge Advocate General Commodore Geneviève Bernatchez, Sajjan outlined the provisions of Bill C-77. If passed, this amendment to the National Defence Act will bring significant changes to provide increased support and assistance for victims of crime committed within Canadian military jurisdiction and eliminate summary trials.

CVBR Double Standard
The Canadian Victim Bill of Rights, which passed into law on 23 April 2015, gave victims of crime the right to request information about the investigation into the offence that affects them; the location and time of proceedings; its outcome; and reviews relating to the offender’s conditional release. It also provides an element of protection for the victim’s security; to protect him or her from intimidation and retaliation; to apply for compensation and to have his/her privacy considered.

Sadly, the CVBR’s section 18(3) notes that “This Act does not apply in respect of offences that are service offences, as defined in subsection 2(1) of the National Defence Act, that are investigated or proceeded with under that Act.” It excludes victims from any protection for any crimes that fall under the National Defence Act.

The Canadian military’s new declaration of victims rights now conforms to the provisions of the CVBR, and “will ensure victims of service offenses are heard, informed and protected throughout the process,” Sajjan noted.

Victims will now be able to seek compensation for losses they suffered resulting from the offense and to make a complaint if they feel any of their rights have been denied or disregarded. They will also be able to request a military judge to direct an order protecting them from being contacted by the accused. 

Victim liaison officers will be appointed to help victims understand their rights within the military’s disciplinary system and what to expect each step of the way. This will be particularly important to civilian victims to whom the military system can appear confusing, intimidating and strange.
 

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Indigenous Service Offenders
Sajjan also explained that Bill C-77 will mandate military tribunals to consider the circumstances of indigenous offenders when determining sentences, in keeping with the government’s mandate to repair and renew its relationship with indigenous peoples – conforming to the PM’s often-repeated mantra that “No relationship is more important to Canada than the relationship with Indigenous Peoples.”

Cmdre Bernatchez explained that Bill C-77 takes into consideration the evolution of the law since 2015, and mandates the consideration of indigenous offenders when sentencing may involve the incarceration of the offender.

“This is already part of the Canadian criminal system,” she noted. “This is also something that courts martial currently do, even if there is no legislation mandating them to do, because it is part of the consideration that judges will make when they pass sentencing. In this specific instance, […] it enshrines in legislation for our courts martial to take these considerations into [account] when they pass sentences that may carry the sentence of incarceration for indigenous offenders.”

Summary Trials Eliminated
The Canadian Armed Forces Code of Service Discipline has its roots in the Thirty Years War (1618-1648), the English Civil War (1642-1651) and the Mutiny Act of 1689. Following the Mutiny Act, these tribunals took the form of “Regimental Courts Martial,” the unit-level version of the more formal general courts martial. Punishments were normally excruciatingly painful and included “riding the wooden horse” with muskets tied to their ankles to add weight and to prevent efforts to relieve the pressure of sitting on the sharp edge of a wooden plank; flogging with the “cat-o’nine-tails’ with lashes numbering in the hundreds; and “The Black Hole,” incarceration with a diet of bread and water.

While the more physical punishments disappeared from the lists of British punishments in the late 1800s, there still remains provisions for incarceration and a criminal record for minor offenses such as insubordination and absence without leave. The civilian equivalent to AWOL is being late for work (the more extended absenteeism is “desertion”). 

Currently, and with little legal training, commanding officers and their designated representatives presiding at summary trials are not required to prepare a transcript of the proceedings. So, while there can be a review of the sentence, there is no provision for appeal. Also, there is no requirement to apply accepted rules of evidence to assure an accused a fair trial; an accused can be compelled to testify against himself or herself, so the constitutional right to protection against self-incrimination does not apply; and adverse inferences can be drawn from the silences of the accused. 

While the accused has some basic rights, including questioning witnesses and presenting evidence, statements can be obtained by the presiding officer in writing or by phone or fax, limiting the accused’s ability to challenge such “testimony.” 

At the top of the graduated scale of punishments is the possibility of detention and a possible civilian criminal record for a relatively minor offence that often does not exist as an infraction in Canada’s civil law. A criminal record can have profound impact on an individual, creating difficulty finding employment and travelling.

Despite the potentially overwhelming impact on the accused of a fundamentally flawed system, with the possibility of detention and a criminal record, he or she is not permitted legal representation. 

When (and if) passed by the House, and on receipt of Royal Assent, Bill C-77 will replace summary trials with summary hearings for minor infractions, with more serious offenses referred to a court martial.

Cmdre Bernatchez told the news conference that “the military justice system is an integral part of the Canadian legal system and is specifically recognized in the Canadian Charter of Rights and Freedoms. Parliament and the Supreme Court of Canada have also recognized the unique demands of military service and the vital role that the military justice system plays in maintaining discipline, efficiency and morale of the Canadian Armed Forces.” She emphasized that changes in this new legislation – if and when it is passed and becomes an integral part of the National Defence Act – demonstrates that the military disciplinary system evolves by design to serve the interests of Canadians and its armed forces in maintaining discipline, efficiency and morale. 

The summary hearings process will address minor breaches of military discipline that will not be criminalized. Detention and the possibility of a criminal record are to be removed. 

Conclusion
Defence Minister Sajjan and Judge Advocate General Bernatchez have taken a major step towards overturning 500 years of medieval conventions of transactional discipline within national military forces. This new legislation will bring Canada’s military disciplinary system into the 21st century. In less than a year, Bernatchez has propelled this nation into a global leadership position in the practice of service-related discipline. That being said, I will refuse to refer to it as a “justice system” until the Canadian military disciplinary system addresses its many remaining legacy challenges. Justice remains absent from many of its processes.

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Tim Dunne is FrontLine’s Atlantic Canada correspondent and a veteran of 37 years service in the Canadian Armed Forces. He is a long-time analyst, writer and critic of the Canadian military’s disciplinary practices.