In the United Kingdom, the control of English feudal armies was exercised under courts of chivalry, curia militaris, which were brought to England by William the Conqueror in 1066. Over the next centuries Articles of War came of age authorizing military courts to apply discipline in deployed operations in a prompt and efficient manner. The requirement for “summary proceedings”—which later came to be known in the United Kingdom and Canada as ‘summary trials’—was formally recognized by the British Parliament with the passage of the Mutiny Act in 1689.
Two centuries later, summary trials were still in existence under British military law when the Canadian Parliament passed An Act Respecting the Militia and Defence of the Dominion of Canada, S.C. 1868, c. 40 [The Militia Act, 1868] to govern Canada’s Armed Forces. In 1950, Parliament enacted a comprehensive National Defence Act which included in a single statute all legislation related to the Department of National Defence, the Royal Canadian Navy, the Canadian Army and the Royal Canadian Air Force which also included summary trials as the tribunal of choice for dealing with discipline in the armed forces.
In recent years, the European Convention of Human Rights (ECHR) and various rulings on its applicability to summary trials have caused some countries, for example the United Kingdom and Ireland, to completely overhaul the summary trials process. These judicial rulings have brought the summary trial process into compliance with the ECHR which held that no one may be deprived of his liberty, except by a competent and impartial tribunal, and that the accused may, on a criminal charge, declare his right to a fair and public hearing by an independent and impartial tribunal as established by law. Since our Charter of Rights and Freedoms is analogous in values and terms to the ECHR, we know of only one reason why similar reforms could not have already been incorporated in Canada’s military justice system: continuing military recalcitrance to democratic reforms and its tacit acceptance by the political class.
Military summary trials are ancient, outdated, and unfair—and they are insulated from judicial scrutiny. Immediate reform is necessary to this system of “justice,” not only to strengthen our military justice system, but to bring it in line with traditional Charter-protected rights and values, and to catch up to the modernizations that have already swept across Europe and beyond. They have more or less remained frozen in time. They are an anachronism of a bygone era, which remains incongruous and discordant with the important reforms in Canadian law brought upon by the enactment of the Canadian Bill of Rights, 1960; the Canadian Human Rights Act, 1997; the Charter of Rights and Freedoms, 1982; and the Canadian Victims Bill of Rights, 2015.
See article written by MIchel Drapeau and Joshua Juneau in HILL TIMES, February 15, 2015 titled: Canada’s military summary trials are frozen in Time. at the following link: Summary Trials frozen in time