Time for Canada to improve military tribunals, not abolish them

KINGSTON, ONT.—In the June 8, 2020, edition of The Hill Times, the headline that called for the abolishment of military tribunals in Canada may have been a bit misleading. Many of the suggestions offered in the accompanying article suggested reform of courts martial, rather than their outright abolishment. A need for reform does not equate to a basis for abolition. As recently as 2019—a year after the auditor general of Canada published 'Report 3: Administration of Justice in the Canadian Armed Forces'—the Supreme Court of Canada upheld, in R vs. Stillman, 2019 SCC 40, the continued system of military justice, parallel to, and concurrent with, the civilian criminal justice system. The majority of the court rejected a ‘military nexus’ test. Moreover, the auditor general of Canada recommended reform and improvement, not abolishment, of the military justice system. Canada is obliged under its international commitments to maintain a system of military justice. Her obligations under the additional protocols to the Geneva Conventions, and customary international law, require Canada to maintain a system by which it can hold its commanders and soldiers responsible for adherence to those international commitments. That disciplinary system can take many forms, so let’s consider where the weaknesses arise. In The Hill Times opinion column, we again read of assertions of an overwhelming trend to abolish courts martial. However, the examples that are offered are almost exclusively within European continental systems. These are countries with a long history of using conscript forces, and whose judicial and legal systems are markedly different than Canada’s. The sole common law example offered is the United Kingdom, which continues to maintain a separate military disciplinary system. As do the other anglo common law jurisdictions, with which Canada and the Canadian Forces are most similar and most closely allied: the United States, Australia, and New Zealand. Other, jurisdictions, with mixed or non-common law judicial systems, and which maintain separate military tribunals, include India (the world’s largest democracy), Ireland, and South Africa. Internationally, there are generally two legitimate trends regarding this subject: (1) incorporating justice for members of the armed forces within national legal norms, representing an extension of the principle that ‘there’s only one justice’; or, (2) adapting a system of justice to fit within the specific context of the armed forces, representing an extension of the principle that equality does not require uniformity. The former tends to prevail in European continental systems. The latter tends to prevail in anglo-common law systems and those influenced by British law. Neither is normatively "better" than the other. Individual nations within these two systems will tend to vary, one from the other, and will be influenced by their own legal tradition. Not surprisingly, as it follows the anglo-common law tradition, Canada falls within the latter group. The abolition of courts martial would represent a paradigm change for Canada and would involve abandoning the ‘anglo-common law’ model to move to the Euro-continental one. Doing so has great risk and presents unknowns. It may well raise more problematic issues than it does solutions, as jurists involved would be required to alter their juridical perspective. While Canada’s court martial system is not inexpensive, neither is the civilian criminal justice system. Many aspects of the administration of the affairs of the Canadian Forces represent a cost to taxpayers. The mere fact that there is a cost does not represent sufficient justification for abolishing a system. The Canadian Forces maintains separate fire departments, particularly on bases administered by the Royal Canadian Air Force. Reliance on civilian fire departments might be cheaper, but such reliance would undermine operational effectiveness. Concerns about cost signal the need for a critical review of where savings can be achieved, not outright abolishment. Take, for example, the ‘permanent’ court martial facility at Asticou Centre in Gatineau, Que. Although the opinion column asserts that it is not commonly used, no statistics are offered. And, at present, no court, civilian or military, is functioning as it should due to restrictions imposed during COVID-19. What is certain is that civilian courts are not better equipped to meet the dynamic needs of the Canadian Forces. They are not sufficiently portable and flexible to support the full spectrum of international operations. And, having a two-tiered system (i.e., civilian in peace-time and military during war-time) would give us a false sense of ‘equality’. Moreover, what constitutes ‘peace-time’ within the present paradigm? Due to the nature of the Canadian Forces, regardless of where courts martial are convened, participants will have to travel. Even a ‘civilianized’ military justice system will require people to travel. Even if all courts martial were conducted in Ottawa (which would then require multiple court rooms), the accused and witnesses would have to travel. Even if matters were prosecuted before civilian courts, due to the geographically transient nature of military service, it is inevitable that participants would have to travel. This doesn’t mean that the Code of Service Discipline cannot be improved. Any system of justice for an armed force must benefit from: (1) independence of the judiciary; (2) expertise; (3) portability; (4) uniformity (within the Armed Forces); and, (5) efficiency. Many of the existing short-comings in the court martial system can be addressed by the creation of a permanent court—not just a physical building or structure, but a legislated framework in which courts need not be convened on an individual basis. In effect, it would be a standing court, just as civilian courts have permanent standing. This permanent court would still require judges with expertise of military offences, and experience with the military context, either through past experience as legal officers or through particular training. As a permanently established court, they could exercise jurisdiction over a proceeding as soon as the matter is referred to court martial. They would require the resources to hold trials on short notice anywhere in the world—something which civilian courts are unlikely to do. Economies of scale could still be obtained if the permanent courts martial could rely on administrative support from the Federal Court Administration Service. And, while we’re at it, the National Defence Act, which mandates a quadrennial review for military judicial compensation, could be amended to incorporate this review into the quadrennial review for all other federally-appointed judges. The independence of the judiciary was raised recently in courts martial R. versus Pett, 2020 CM 4002 and R vs. D’Amico, 2020 CM 2002. However, no notice of constitutional question regarding the specific relevant legislative provisions was raised in those proceedings. It has been raised in a more recent court martial and we can anticipate that it will likely be the subject of review by the Court Martial Appeal Court of Canada, and perhaps the Supreme Court of Canada. The prosecution of Col. Mario Dutil, the former chief military judge, raised many concerns relating to judicial independence. (The military ended its prosecution of its top judge and withdrew all charges against him in March.) The criminal justice system operates concurrently with the Code of Service Discipline. It was open to director of military prosecutions (DMP) to pursue that matter before civilian courts. No legislative reform of the code of service discipline was necessary to do so, and the resulting failure of DMP when he pursued that matter before court martial could be characterized as a judicially imposed correction of problematic prosecutorial discretion. The chief military judge is not the supreme authority in the military justice system, any more than the chief justice of Canada is the supreme authority for civilian justice. He is simply the ‘first among equals’. The chief military judge is the head of the military bench and, in that role, has administrative duties, such as assigning judges to courts martial and other management tasks for the Office of the Chief Military Judge. Indeed, his administrative role was allegedly part of the factual context of the charges brought against him. There is merit, however, in the proposition that military judges do not require rank. That was one of the recommendations in the second ‘Five Year Review’ of Bill C-25 conducted by Associate Chief Justice Patrick LeSage. There is scope for exempting military judges from the Code of Service Discipline. That was, essentially, the outcome (if as obiter dicta) of the judgments in Pett and D’Amico. And that aspect of independence will be examined in the notice of constitutional question that has been brought in a more recent court martial. Contrary to what has been asserted, military courts in the anglo common law world are not being disbanded or ‘completely’ civilianized. Many of the reforms that have been suggested do not require abolishment of the military justice system. Moreover, in light of Canada’s international obligations, Parliament could not completely abandon a system of military justice. Reform is needed. In addition to the ‘Dutil Saga’ and the auditor general’s report, the current challenges in light of COVID-19 offer a further catalyst to legislative reform, as will the judgment arising from the ‘Constitutional Question’ that has been raised relating to military judicial independence. However, the solution is not to ‘throw the baby out with the bathwater.' The goal should be meaningful reform of the military justice system in order to ensure independence of the judiciary, expertise, portability, uniformity of application, and efficiency. Rory Fowler is a lawyer and PhD candidate in public and administrative law at Queen’s University in Kingston, Ont. The Hill Times