The Canadian Armed Forces Court Martial System
Backgrounder / July 22, 2016
July 22, 2016 — Ottawa — National Defence / Canadian Armed Forces
The Judge Advocate General (JAG) has responsibility under the National Defence Act (NDA) for superintendence, and for the conduct of regular reviews, of the administration of military justice in the Canadian Armed Forces (CAF). The court martial system is a key pillar of the administration of military justice, so it falls clearly within the JAG’s statutory superintendence and review responsibilities.
The ability of the CAF to operate effectively depends on the capacity of its leadership to maintain discipline, efficiency, and morale among CAF personnel. This particular need for maintaining discipline, efficiency, and morale is the raison d’être of the military justice system. When there are breaches in discipline, the CAF leadership must have a legal mechanism that it can use to investigate and sanction misconduct, which requires a formal, fair, and prompt response. In order to accomplish this goal, there is a need for purpose-specific tribunals: the summary trial is one, and the court martial is the other.
The military justice system has a two-tiered tribunal structure. The summary trial is the most common form of service tribunal, and allows for less serious offences to be tried at the unit level. The other, more formal, form of service tribunal is the court martial. Courts martial are presided over by a military judge and are designed to deal with more serious offences. Courts martial are conducted in accordance with rules and procedures similar to those of civilian criminal courts, and have the same rights, powers, and privileges as a superior criminal court in respect of most matters.
The NDA provides for two types of court martial: General and Standing. These courts martial can be convened anywhere, including in austere and hostile environments, both in Canada and abroad, in times of peace and during armed conflicts.
A General Court Martial is composed of a military judge and a panel of five CAF members, who are selected randomly by the Court Martial Administrator. This panel serves a similar function to that of a jury in the civilian courts, as the trier of facts, while the military judge makes all legal rulings and imposes the sentence. Panels must reach unanimous decisions on any finding of guilt.
In a Standing Court Martial, the military judge presides alone, makes any of the required findings, and if the accused person is convicted, the judge imposes the sentence.
Decisions at a court martial may be appealed to the Court Martial Appeal Court. The Court Martial Appeal Court is composed of civilian judges, who are designated from the Federal Court of Canada, the Federal Court of Appeal, and superior courts of criminal jurisdiction of the provinces and territories. Decisions by the Court Martial Appeal Court may be appealed to the Supreme Court of Canada under certain circumstances.
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Canada’s military justice system is a separate and parallel system of justice. It shares many of the same underlying principles as the civilian criminal justice system, and is subject to the same constitutional framework including the Canadian Charter of Rights and Freedoms.
The military justice system is designed to ensure that justice is administered fairly and with respect for the rule of law. It is also designed to promote the operational effectiveness of the CAF, by contributing to the maintenance of discipline, efficiency, and morale.
Department of National Defence
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