Is the CMAC a “civilian” interpreter of military law?




The Court Martial Appeal Court of Canada [CMAC] was established by section 234 (1) of the National Defence Act which was declared at subsection 236 (1) to be a superior court of records  The CMAC is a civilian court of appellate jurisdiction which hears appeals from courts martial. A person subject to the Code of Service Discipline may appeal to the Supreme Court of Canada against a decision of the Court Martial Appeal Court.

At present, the Court is composed of a Chief Justice and a total of sixty (60) trial and appellate judges drawn from the Federal Court, the Superior Courts as well as the Courts of Appeal of the Provinces and the Federal Court of Appeal.

One of the recently appointed judge to the CMAC has well over 30 years  of  service in the Regular Force. Prior to his appointment to the bench, he held numerous positions as a legal officer in the Office of the Judge Advocate General [JAG]. From there he was appointed directly to the Federal Court and the CMAC. Moreover on June 9, 2016,the CMAC Chief Justice confirmed to  Lawyer’s Daily  that this former Regular Force officer, who  is now a Federal Court justice, was  appointed as head of  the CMAC  Rules Committee. A pivotal appointment since the mandate of the committee is to make recommendations for Rules in relation to the practice and procedure of the CMAC.In fact, the committee could be called upon to play an even larger role – at least a more active reform role – in order to  modernize what the  Lawyer’s Daily  calls “creaky rules.” 

As an aside, in 1951 the US Congress  established the Court of Military Appeals  as the civilian interpreter of military law and as the observer of the court-martial system.”That Court  was subsequently renamed by the US Congress as the US Court of Appeals for the Armed Forces. To ensure that the US Court of Appeals  be seen and perceived as an independent civilian court unencumbered by ties to the military service,  the US Uniform Code of Military Justice, 64 Stat. 109, 10 U.S.C. sub-chapter XKK, article 142 (b) (2)(B)(4) stipulates that:

A person may not be appointed as a judge of the court within seven years after retirement from active duty as a commissioned officer of a regular component of an armed force.

In  Canada, no such restriction exists and, therefore, the situation may be perceived as being inconsistent with the role of the CMAC as a true civilian tribunal.

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