In an appeal that has left military prosecutors scrambling, the constitutionality of the Canadian military justice system is being put on trial. In a decision rendered on September 19th, the Court Martial Appeal Court (CMAC) ruled that the Canadian Armed Forces’ (CAF) current process for trying service members violates their charter rights.[efn_note]Beaudry v. R. 2018 CMAC 4[/efn_note] If the government fails to reverse the decision before the Supreme Court of Canada (SCC), an overhaul of the military justice system will be in order. The likelihood of their success is far from certain, but the impact of a decision by the SCC to uphold the ruling will be systemic. The trial has tentatively been scheduled for March 2019.[efn_note]Supreme Court Docket 38308[/efn_note]
At the origin of the problem is Beaudry v. R., an appeal to a guilty verdict of sexual assault involving a military service member. After being refused a trial by jury, Master Corporal (MCpl) Raphael Beaudry argued that military law was in contravention to his civil rights. The decision has been described as catastrophic for the military justice system, but it may just be the crisis that is needed to reform the ageing system. Opinions are divided on the issue, as military leadership claims that there will be severe negative impacts on military discipline and effectiveness, whereas others claim that the system was systematically used to met out draconian sentences.
Canada’s Military Justice System
Canada maintains in its national legal system a separate branch of military justice from that of its civilian counterpart. This branch is built around the Code of Service Discipline, which constitutes part III of the National Defense Act.[efn_note]National Defense Act, (R.S.C., 1985, c. N-5)[/efn_note] With the stated intent to promote operational effectiveness through the maintenance of discipline, efficiency and morale, the military justice system claims to hold its service members to a higher standard than what would be expected of a civilian. These priorities are balanced against fairness, and transparency, so that all members “are afforded their right to a fair trial as guaranteed by the Canadian Charter of Rights and Freedoms.”[efn_note]Canadian Armed Forces, Canada’s Military Justice System – Fact Sheet (October 25, 2013 / Project number: FS 13.004)[/efn_note] As with any complex process, the military legal system was designed as a balance of tradeoffs which were made in a specific context: preparing for war.
As it stands now, the system is divided into a two-tiered tribunal structure: summary trials and court martials. The former is presided by a military commander and are designed to deal with relatively minor offences that are deemed important for the maintenance of discipline and efficiency; enabling a member to return to duty as soon as possible. The latter are formal military courts presided over by independent military judges. These tribunals are similar in nature to civilian criminal courts and are designed to deal with offences that are more serious in nature. In accordance with military policy, an accused service member will generally be offered the choice to be tried by court-martial, if certain criteria are met. [efn_note]Queen’s Regulations and Orders (QR&O) 108.17[/efn_note]
Judge and Jury
The crux of the problem in Beaudry v. R. is a charge of sexual assault causing bodily harm brought against MCpl Beaudry in December 2014. When it was determined that MCpl Beaudry was to be tried by court-martial, he presented a motion to be tried before a jury instead, a request which the military promptly refused. It was argued that the charge brought against him was subject to military law and would be conducted accordingly: at the exclusion of a jury.
The trial proceeded and following his conviction by the court-martial process, MCpl Beaudry appealed the verdict, arguing that the National Defense Act (NDA) and its regulations violated his Charter Rights to a jury for a civil offence, specifically:
“11. Any person charged with an offence has the right (…) (f) 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; (…) ” [efn_note] Canadian Charter of Rights and Freedoms, s 11, Part 1 of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11[/efn_note] (Emphasis added)
The arguments presented by MCpl are not the first of its kind. Not only is the system no longer employed in the United Kingdom, but summary trials date back to the English Mutiny Act of 1689.[efn_note]Drapeau, Michel and Juneau, Joshua. Calling the House to Order! After 70 years of peace, its time for greater civilian control over the Canadian military criminal justice system, Society for the Reform of Criminal Law (San Francisco, 2017)[/efn_note] A proponent of reform, retired major Tim Dunne, has extensively researched the subject and argues that the system needs to be overhauled: “Over the past 15 years, there have been more than 23,400 summary trials. That’s an average of 1,560 annually,” he writes. “Only about five percent of those accused are acquitted.” Up until now, every attempt on this front has been stopped short of its goal.
That’s why this came as a shock to many, despite the seemingly straightforward wording of the Charter and a supply of case history that has invalidated similar appeals. Military commanders have always had the possibility to enforce maximum punishment for insubordination through the widely employed Section 129. Under this section, any infraction to any order, any regulation or any instruction is considered “prejudice of good order and discipline.” The highly subjective nature of the wording meant its employment was somewhat questionable at best and horribly abused, at worst. This catch-all clause virtually assures a guilty verdict in most cases.
With this in mind, it is unlikely that the SCC will overturn the CMAC’s ruling. It’s far more likely that the military legal system will have to undergo a fundamental institutional change.
The greatest risk presented by the SCC trial is not a scenario in which operational efficiency or discipline is reduced amongst the ranks, but it is the real possibility that all prior cases that resulted in similar convictions since 1982, the enactment of the Charter, may be reopened. This outcome would rattle the public’s faith in the military legal system and carry a significant administrative burden.
As with any institution, change is inevitable. Military leaders should stop short of seeking an exception to the charter rights in question and prepare to adapt to new means of disciplinary action, in close cooperation with the rest of the Canadian legal system.
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