Calling the House to Order – Reform of military criminal justice

 After 70 years of peace, it is time for greater civilian control over the Canadian  military criminal justice system

A paper written by MicheL W. Drapeau and Joshua Juneau titled ‘CALLING THE HOUSE TO ORDER!’ was presented at the 30th Annual Conference of the International Society for the Reform of the Criminal Law [ISRCl] held in San Francisco, California, USA during July 9-13, 2017. The ISRCL is an international non-governmental association of judges, legislators, lawyers, academics, governmental officials, police and corrections professionals who have come together to work actively on the administration of criminal justice both in their own jurisdiction and internationally.

ABSTRACT

A copy of the paper is available by CLICKING HERE.

Despite its oversight duty, Canada’s Legislature has arguably not made a meaningful contribution to the development of military law since 1967 resulting in the unification of Canada’s army, navy and air force.  In this way – save for legislative reform in 1997 as a result of the findings of the Commission of Inquiry into the Deployment of the Canadian Airborne Regiment to Somalia – Parliament has been an absentee landlord, which failed to reform an ancient military justice system which so often fails our men and women in uniform and whose compliance with the Charter of Rights and Freedoms is questionable.

Canada’s Minister of Justice is also absent in office on the military justice file. Yet, section 4 of the Department of Justice Act gives the Minister responsibility for “the superintendence of all matters connected with the administration of justice in Canada, not within the jurisdiction of the governments of the provinces and to advise the Crown on all matters of law referred to the Minister by the Crown.” It also names the Minister of Justice as the official adviser of the Governor General – Canada’s Commander in Chief – and as the legal member of the Queen’s Privy Council for Canada. The Minister’s attitude is one of passiveness and non-involvement in military affairs, her legislation goes out of its way to exclude application over the military. It is almost as if there were a line of demarcation between laws intended for civil society and laws enacted for the military.

The corollary to this is that the military is being granted a sort of independence of decision and actions within a wide and widening sphere of competence. To the informed observer, the lines between civil society and military affairs is sharp and clear as if both sides must abstain from trespassing.

Even before the incidents which took place in Somalia and the start of the subsequent Commission of Inquiry, questions were being raised about the fairness of the military penal justice system, especially in view of the constitutional guarantees provided by the Canadian Charter of Rights and Freedoms. The Supreme Court as well as Court Martial Appeal Court of Canada decisions and legislative amendments between 1985 and 2016 had resulted in significant changes in Canadian military law. However, despite all of these changes there are still glaring deficiencies which have yet to be addressed by the Canadian Parliament.

It is the duty of the Legislature – more than anything in peacetime – and, in particular, the Minister of Justice to be vigilant and not cede control of our armed forces to the military, allowing it to operate in a vacuum and in accordance with their own ethos and concepts. Former French Prime Minister Georges Clemenceau once famously quipped:

War is too important a matter to be left to the military.”

Perhaps there is a conventional wisdom to this statement, and military justice, accordingly, is also to important a matter to be left to the military.

 

 

 

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