A perspective on Canada's Code of Service Discipline.

• Author: Pitzul, Jerry S.T.

1. THE DEVELOPMENT OF CANADA'S MILITARY JUSTICE SYSTEM TO 1950

   It has been suggested that "the procedures for disciplining the military forces of a nation are a direct reflection of the society that the forces were created to defend." (1) To the extent that this hypothesis may be considered valid, one might expect the study of the evolution of military law not only to explain the rationale for the creation of a Code of Service Discipline, and its various provisions, but to also reveal something about the particular society concerned-its origins, traditions, experiences of war and legal history.

   There are many factors which served to influence and shape the development of Canadian military law. This article is not an exhaustive analysis of the subject but a general discussion of the major turning points in the evolution of Canada's military justice system, including the passage, in 1950, of the National Defence Act, (2) which created one Code of Service Discipline applicable to Canada's then existing three armed services and the subsequent evolution of that Code.

   The Code of Service Discipline, which is currently embodied in Part III of the National Defence Act, is the statutory basis for Canada's military justice system and sets out its main components. Further amplification is contained in the Queen's Regulations and Orders for the Canadian Forces (QR&O), which are regulations made by the Governor in Council (the Canadian Cabinet) and the Minister of National Defence, as well as in orders issued by the Chief of the Defence Staff.

   Given Canada's historic experiences and status as a former British colony, it may not be surprising to discover that, like so many of Canada's public institutions, the Canadian Forces' Code of Service Discipline has clearly defined English roots. Indeed, it has been suggested that the early history of the Canadian military justice system is, in effect, the history of British military law. (3) The proposition is not without some merit given the pre-eminent role played by Britain in the defence of Canada in the period immediately prior to the Confederation of provinces, which, in 1867, gave birth to the modem Canadian nation state. (4)

   In fact, until 1868 British forces comprised the only regular armed force in the Dominion of Canada. (5) As a matter of furthering Britain's imperial objectives, the approach was largely politic; Canada provided a ready supply of raw materials for the Empire as well as a secure market for British goods. The protection of these interests mandated a proactive role for British naval and land forces in defence of Canada. It is true that each of the British North American colonies was responsible for raising a volunteer militia. In each of the Canadian provinces, however, the militia was largely unarmed, untrained and unorganized. (6) It remained so until the infant Canadian nation passed its first Militia Act in 1868 (7) and British regular forces were gradually withdrawn. (8) The 1868 Act, which borrowed heavily from British military law, marked the beginning of a period of development dominated by the legacy of British military and legal doctrine. A meaningful understanding of Canada's early attempts at codify ing military law presumes some appreciation of the English experience in formulating a code of discipline to govern its own armed forces.

   Until 1661,. Articles of War were issued under the hand of the Sovereign as part of the Royal Prerogative that permitted the King to place the government of His Majesty's forces under his own command during time of war but which prevented the Sovereign from maintaining a standing army in England in time of peace. While the Articles of War prescribed offences, they only governed the conduct and duties of soldiers serving abroad in time of war. The Mutiny Act of 1689 (9) augmented the Articles of War through the establishment of a standing army and made provision for its peacetime discipline under what has been described as the first permanent code of military law. (10) By 1879, the King's Prerogative to issue Articles of War had merged with the disciplinary provisions of the Mutiny Act in a comprehensive Army Discipline and Regulation Act, which would, in turn, be replaced by the Army Act of 1881. (11) A succession of Army Acts, passed annually by the British government, entrenched the principle of parliament ary oversight over a code of military law applicable during both peace and war-a principle which has survived intact in Canada. The Army Acts emphasized the importance of discipline within an armed force and the need for informal procedures under which offenders could be tried swiftly.

   Canada's Militia Act of 1868 organized the Canadian Army as the country's first military force and essentially adopted the British Army model for a code of discipline. This was a logical step given the presence of British regular forces in Canada during the colonial period and the then prevailing philosophy that the Canadian Army should be trained and organized to support British forces. (12)

   The Militia Act of 1868 introduced a two-tier system of summary trials and courts martial. Although much has changed, Canada's two-tier tribunal structure dates to this period as does the right to elect trial by court martial- which, at that time, permitted a soldier to elect the more formalized court martial mode of trial in any case where the punishment might have included imprisonment, a fine or a deduction from pay. The commanding officer's power to award imprisonment ended in 1906 when the new punishment of detention was introduced. By 1929, commanding officers were allowed to delegate their powers of punishment and a form of summary proceeding was added to allow general officers to try field officers of the rank of captain and below, and warrant officers, for offences which were not serious but which could "not be overlooked." This was the system which was in use in Britain when the Second World War erupted. By virtue of the successive Militia Acts passed by the Parliament of Canada since 1868, it was a lso the system of justice which the Canadian Army took to war in 193 1939. (13)

   When Britain's Royal Air Force was formed near the end of World War I, the British Army Act provisions governing discipline were modified as necessary to account for differences in terminology, but, in most material respects, were merely repeated in what would become Britain's new single service Air Force Act. (14) The Order in Council that in 1924 gave birth to the Canadian Air Force specified that discipline would be in accordance with Britain's Air Force Act. (15) This should not be particularly surprising given the fact that Canadian airmen had served within British air units during the First World War where they had been subject to Britain's Army Act. provisions. The British Air Force Act continued to form the basis for the Canadian Air Force's disciplinary regime until 1950 and the coming into force of the current National Defence Act. (16)

   As was the case in the army, discipline in the British Royal Navy had initially been governed by Articles of War. Trials were originally conducted by the Office of the Lord High Admiral, then by "councils of war." (17) In 1661, a legislative code for the navy was formulated which, for the first time, used the term "courts martial" to refer to naval tribunals and established courts martial jurisdiction having regard to the type of offence, the place of the offence and the status of the offender. (18) Courts martial punishments ranged from death to imprisonment and fines. Corporal punishment--up to forty-eight lashes--could be awarded in lieu of imprisonment and penal servitude followed death in the scale of punishments. (19)

   Unlike their army counterparts, naval captains traditionally possessed the power to summarily punish seamen for most "Faults, Misdemeanours and Disorders committed at Sea ... according to the laws and customs of the sea." (20) While some of the more draconian features of this Code were moderated with the passage of the Naval Discipline Act of 1866, (21) ships captains still had great latitude to order the immediate execution of sentences with little supervision from higher authority. (22)

   The provisions of Britain's Naval Discipline Act of 1866 were incorporated by reference into Canada's Naval Services Act (23) when the Royal Canadian Navy was established in 1910. This development can no doubt be explained by the fact that Britain's Royal Navy had always guarded Canada's oceans and for the most part would continue to do so until the end of the First World War. (24) British influences can also be seen in The Naval Services Act of 1944. (25) To the extent that it marked the end of the practice of simply incorporating by reference one of the British codes of service discipline, the latter Act, which was the first truly Canadian naval code of discipline, marked a first step in the development of a uniquely Canadian as opposed to British military justice system. (26) It would in turn serve as the prototype for many sections of what would, in 1950, become the National Defence Act. (27)

   Canadian historian Desmond Morton has argued that the wars of the twentieth...