Canadian Military Law

• Author: Group Captain J. H. Hollies
• Pages: 03

1. INTRODUCTION

   In an article of this length, it will not be pmsible to give more than a very succinct account of the eseential features of the military law system as it now exista in Canada Refereneea to atatu-tory and other authorities have been kept to a minimum, since such referencetr would add little, if anything, to the value of an article designed primarily for non-Canadian readers. While certain differences in basic concept between the United States system and the Canadian system will no doubt appear from this article, no attempt will be made to draw a studied comparison between the two systems. To do so might be presumptuous, but in m y event would require a much more detailed knowledge of the United State system than is possessed by the author. A note of warning may not, however, be amiss. The constitutional background quite obviously differs as between the United States and Canada. For example, the due process clause of the Constitution of the United States has no counterpart in Canadian constitutional law, in the sense that such a clause is not a part of my statute or written constitution.

   11. SOURCES OF CANADIAN MILITARY LAW

   In 1867 Canada became a Dominion with its own parliament, and in the following year the Canadian Army was organized under the Militia Act' w e d by the Parliament of Canada. It must not be thought, however, that this Act wag in any way one that initiated a peculiarly Canadian body of military law. On the contrary, it made the Army Act of the United Kingdom applicable to Canada, with only minor variations. Similarly, the Royal Canadian Navy, organized in 1910, was administered pursuant to thsprovisionsof the Naval Discipline Act of theunited Kingdom.' When the Royal Canadian Air Force came into being it, too, was

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   Thia la the second in s eeriaa of artidea to be published periodlcdly in the Mititaw Low Rsviaur dealing with the military legal iyatemi of VariOu. foreign countries. The opinions and eonchdoni presented herein sire those of the author and do not neeesaarily represent the ~iews of The Judge Advocate Genersl'i Schwl or m y other govemmentpl s~ency or of the OWec of The Judge Advocate General of Canada.

   **Chid Judge Advocate, OWca of The Judge Advoeste Gsnerd of the Canadian Foreeo; member of the Bar of the Province of Manitoba; graduate of the Manitoba Law Sehwl.

   1 Stat Canada 1808, e. 40.3 2s & an viet. C. 108.*oo $ O W 69

   governed by the law applicable in the United Kingdom to the Royal Air Force, subject to certain specific modifications prescribed by the Parliament of Canada. Ail three services continued to be governed by the adapted British legidation until 1944. In that year the Roysi Canadian Navy adopted a Canadian disciplinary code passed by the Parliament of Canads,' but the other two services remained subject to the modified United Kingdom Acts until after the end of the wu.

   After the Second World War, the United Kingdom and the United States set up commissions to investigate and report upon the existing state of military law and its administration in the armed forces. Canada set up no such commission, but the Department of National Defence made a careful study of the existing legislation and watched with .a great deal of interest and benefit the changes which were being proposed in the United Kingdom and the United States. As a result, new Canadian legislation was devised and enacted by the Parliament of Canada in 1950. This legislation is known as the "National Defence Act,"' and it brought within its ambit all three Canadian services. It provides for a single code of service discipline so that all three services are subject basically to the same law, terminates the application of the United Kingdom acts, extends the powers of summary punishment af commsnding officers, and provides a right of appeal from the findings and sentences of courts-martial-among many other changes not relevant to this article.

   111. JURISDICTION OVER PERSONS

   The National Defence Act sets out the disciplinary jurisdiction of the services, service offenses and punishments, powers of arrest, the composition and jurisdiction of service tribunals. post-trial dealings with findings and sentences, and appeal, review, and petition procedures. These provisions are referred to collectively as the "Code of Service Discipline."

   The Code of Service Discipline is applicable to dl officers and men of the Regular Forces and of any force specially constituted for the purpose of meeting an emergency.> Those officers and men serving In the Reserves are subject to the Code only in certain prescribed circumstances, the mast important of which are when the officer or man is undergoing drill or training, onduty, in uniform, called out on service, or present at any unit or

   8 Stat. Csnnda 1844-46, C. 21.aRev. Stat. Canads 1852, e. 184. (Hereinafter eiCd 81 National Defense

   A&. 5NNlional Defence Act, 5s 56(1)(a) & (b).

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   on any defense establishment. Certain civilians are also made subject to the Code of Service Discipline.+ These include persons serving with the Csnadian Forces under an agreement by which they have consented to subject themselves to the Code, alleged spies for the enemy, and persons who accompany any unit or other element of the Canadian Forces that is on service or on active service in any place. This last category has been further defined in such a way as to be inapplicable within the conflnffi of Canada.' It does, however, cover all dependents resident outaide of Canada when the officer or man concerned is also serving beyond Canada.

   Provision is also made by the Code of Service Discipline to enable offenders to be dealt with, although, between the commission of the offense and the time of trial, they have otherwise ceaaed to be subject to the Code. This will occur, for example, by reason of the release from the forces of an offender or by the return to Canada of a dependent. So long as the trial is held within the period within which the trial must be commenced far the offense in question, the alleged offender is deemed to have the status and rank that he held immediately before his change of status,

   There are certain special provisions governing the trial of civilians but these may more conveniently be dealt with when examining the powers of punishment of commsnding officers and of courts-rnsrtial.

4. JURISDICTION OVER OFFENSES

   The offenses specified in the Code fall into three main categories. The firat of these comprises speciflc Bervice offenses, including such matters as misconduct in the prffience of the enemy, insubordination, desertion. absence without leave. offenses in relation to service arrest and custody, offenses in relation to aircraft and vehicles, offenses in relation to property, negligent performance of duties, and sundry other offenses. The second category consists of that omnibus provision that is to be found in so many of the world's military discipline code&"an act, conduct, disorder or neglect to the prejudice of good order and discipline." The third category might be described as comprising the offenses punishable by ordinary law. Anything that is contrary to the Criminal Code of Canada or any other Act of the Parliament of Canada is constituted an offense under the Code of Service Dis-

   cipline.' Further, when an officer or man is serving outside of Canada, an act or omission that would be an offense if committed by a person subjwt to the foreign law in the place where the officer or man is aerving, is an offense under the Code of Service Discipline when committed by the offleer or man.'

   It might seem to follow that service tribunals are invested with jurisdiction over offenses to a somewhat greater extent than are the ordinary courts of the land, since the latter cannot be concerned with such purely military offenses as absence without leave, nor with offenses committed against the laws of a foreim state which are not also offenses under the Canadian Criminal Code. There are however two principles which cut dawn the jurisdiction of service tribunals. The first of these is that no alleged commission within Canada of murder, rape, or manslaughter may be tried by a service tribunal.'O The second restriction is that the paramount and primary jurisdiction over any offense committed in Canada involving the Criminal Code or other Act of the Parliament of Canada remains in the civil courts." A trial and acquittal or conviction by a civil court in Canada will bar a trial for the same offense under the Code of Service Discipline, but an acquittal or conviction by a military tribunal will not bar a subsequent trial for the same offense by a civil tribunal. The civil court is however enjoined, if it convicts, to have regard to any sentence imposed by a service tribunal for the same offense.'? In actual practice, conflict between service and civilian tribunals never occurs. When the matter is one in which the civil courts may be interested, it has been the custom far the service to ascertain from the local Crown prosecutor, or if need be from the attorney general of the province, whether it is desired to have the case tried in the civil courts. Amicable arrangements as towhether it should be a military or civil trial invariably follow. The jurisdiction of civil courts and of service tribunals in places outside of Canada is governed by international arrangements in the same general fashion 88 is the jurisdiction in respect to forces of the United States. For example, the NATO Status of Forces Agreement is applicable when Canadian forces are stationed abroad in NATO countries, other than in Germany where special arrangements prevail. Similarly, the jurisdiction over Canadian forces sewing as part of the United Nations contingent

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   in Egypt is determined in accordance with the agreement between the United Nations and Egypt.

   For all service offenses there is a time limit within which the trial must...