Canadian Military Justice. Military Deprived of Constitutional Right to a Jury Trial

March 9, 2014.  Mr. Justice (retired) Gilles Létourneau writes in the Ottawa Citizen that under Canadian law a member of the military charged with the crime of murder, manslaughter or abduction of children cannot be tried by a service tribunal if the crime is committed in Canada. However, if any of these crimes are committed abroad a service tribunal will likely be prosecuted and tried by a service tribunal. Should this happen, the accused would be deprived of the constitutional right to a jury trial guaranteed by paragraph 11(f) of the Charter of Rights and Freedoms.

The same negation of the constitutional right to a jury trial for CF members would apply to a number of other serious offences tried by a service tribunal since this constitutional protection applies to persons tried by civilian courts for serious offences punishable by an imprisonment of five years or more. At present, it is denied when the trial takes place before a military tribunal such as a court martial.

Justice (retired) Létourneau postulates that, as a matter of public policy, equality of rights and treatment before and under the law as well as fairness, no serious ordinary criminal law offence punishable by imprisonment for five years or more should be prosecuted before a military tribunal under the guise of discipline in peacetime.

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