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I.  Introduction

The Constitution Act of 1867 grants the Parliament of Canada exclusive authority to legislate in matters related to the “militia, military and naval service and defence.”[1]  The military justice system is predominantly regulated by the federally enacted National Defence Act (NDA)[2] and its subordinate regulations, namely the Queen’s Regulations and Orders for the Canadian Forces (QR&Os).[3]  The NDA creates a separate system of military justice, including a system of military courts.

The Code of Service Discipline, found in Part III of the NDA, consists of approximately one-half of the Act and sets out “the foundation of the Canadian military justice system including disciplinary jurisdiction, service offences, punishments, powers of arrest, organization and procedures of service tribunals, appeals, and post-trial review.”[4]

The Judge Advocate General (JAG) acts as legal advisor to the Governor General, the Minister of National Defence, the Department of National Defence, and the Canadian Forces in respect to military law.[5]  Also, JAG “has the superintendence of the administration of Military Justice”[6] in the Canadian Forces, “which includes regular reviews of the administration of military justice and the provision of an annual report to the Minister on its administration.”[7]

In 1998, the Minister of National Defence established an external independent authority to review the effectiveness of Canada’s military justice system. [8]  The authority reports directly to the Minister and is known as the Bill C-25 Five-Year Independent Review Authority.[9]

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II.  Canada’s Current Military Justice System

A.  Canada’s Service Tribunals

The NDA established “a two-tier system of military justice.”[10]  The first tier, “where most disciplinary matters are dealt with, is the summary trial system.”[11]  The second tier of Canada’s military justice system is a formal court-martial system.  Both tiers are referred to as Service Tribunals.[12]

1.  Summary Trials

The jurisdiction of summary trials is listed in section 163 of the NDA.  A commanding officer (CO) may only try an accused by summary trial if

(a) the accused person is either an officer cadet or a non-commissioned member below the rank of warrant officer;

(b) having regard to the gravity of the offence, the commanding officer considers that his or her powers of punishment are adequate;

(c) if the accused person has the right to elect to be tried by court martial, the accused person has not elected to be so tried;

(d) the offence is not one that . . . the commanding officer is precluded from trying; and

(e) the commanding officer does not have reasonable grounds to believe that the accused person is unfit to stand trial or was suffering from a mental disorder at the time of the commission of the alleged offence.[13]

According to the Office of the JAG, “[t]he summary trial is the overwhelmingly predominant and most important form for the trial of disciplinary proceedings.”[14]  Where a member is charged with a service offense, “a summary trial permits the case to be tried and disposed of, as a general rule, at the unit level.  Summary trials are presided over by superior commanders, CO’s of bases, units or elements, or delegated officers.”[15]  According to the Guide for the Accused by the Directorate of Defence Counsel Services (DDCS),

[t]he vast majority of charges under the Code of Service Discipline are dealt with by summary trial.  Prior to holding a summary trial, the accused is given the opportunity to elect to be tried by court martial, except in the case of certain disciplinary offences where the circumstances surrounding the commission of the offence charged are considered to be minor in nature.[16]

2.  Court-Martial System

The court-martial system “is a formal military court presided over by a legally qualified military judge.”[17]  According to the Office of the JAG, “[t]he procedures followed by a court martial are formal and similar to those followed by civilian criminal courts.”[18]  There are two types of courts-martial: the General Courts Martial and the Standing Courts Martial.

The General Courts Martial, which consists of a military judge and a panel of five military members, has jurisdiction over service offenses.[19]  The Standing Courts Martial also has jurisdiction over service offenses.[20]  However, unlike the General Courts Martial, the Standing Courts Martial is presided over by only one military judge.  Moreover, “[t]he military judge makes both a finding on the charges and imposes sentence if there is a finding of guilt.”[21]

The Canadian Military Prosecution Service (CMPS) is a special entity within the Canadian Forces that “review[s] cases referred for court-martial, to decide which cases should proceed, and to prosecute those cases in the courtroom.”[22]  It was established through “amendments to the National Defence Act that followed the 1997 Report of the Special Advisory Group on Military Justice and Military Police Investigative Services, led by the late Chief Justice Brian Dickson.  That group recommended that the court-martial prosecution process be separated from the chain of command.”[23]  A Directorate of Defense Counsel Services[24] made up of military defense lawyers also exists, which “provides, and supervises and directs the provision of, legal services prescribed in regulations made by the Governor in Council to persons who are liable to be charged, dealt with and tried under the Code of Service Discipline.”[25]

When a charge proceeds to court-martial, “either because the accused has so elected or because the nature of the offence so requires,”[26] the CO or Superior Commander must forward an application to the Referral Authority for disposal.[27]  According to notes to chapter 109 of the QR&Os, in certain circumstances a commanding officer or superior commander is required to refer a charge to a referral authority and in some cases the decision is discretionary.[28]  The Referral Authority’s role

is to ensure the views of the senior chain of command are taken into account in deciding whether to proceed with the charges.  He or she has a broader perspective and a clearer picture of all issues in the units and formations to be considered when determining to continue with the prosecution.[29] 

The Referral Authority also represents the Canadian Forces in prosecuting the charge against the individual.  If a CO or superior commander decides not to proceed with a charge referred by the Military Police, the Military Police may refer the charge directly to the Referral Authority.[30]

The Referral Authority forwards applications for disposal to the Director of Military Prosecutions (DMP) along with any recommendations regarding the disposal of the charge.  The Referral Authority is required to forward the referred charge to the DMP unless the Referral authority directs the commanding officer or superior officer to try the accused by summary trial.[31]  The DMP “is responsible for deciding whether a charge is suitable for court martial based on the sufficiency of the evidence and whether a prosecution is in the public interest and the interest of the Canadian Forces.”[32]  If the DMP concludes that a court martial is warranted the DMP will “prefer” the charge against the accused by signing the charge sheet and referring it to the Court Martial Administrator, who is responsible for convening the court martial.[33]

The DMP is the head of the CMPS.  When a case is referred to the CMPS, as noted above, the CMPS first decides which cases should proceed and then prosecutes those cases in court.[34]

According to subsection 249(1) of the NDA, “[t]he review authority in respect of findings of guilty made and punishments imposed by courts martial is the Governor in Council” (i.e., the Governor General).  Thus, the Command and Control structure does not appear to have the power to review findings of guilt or quash a decision of a Court Martial.

Lastly, a decision by a Court Martial is only appealable to the Courts Martial Appeal Court, “a body of civilian judges drawn from the superior courts across Canada.”[35]  The right of appeal belongs to either the offender or the Minister of National Defence.[36]  The decision of the Courts Martial Appeal Court is only reviewable by the Supreme Court of Canada.[37]

B.  Jurisdiction over Offenses

1.  Service Offenses

A service offense is defined in the NDA as “an offence under the NDA, the Criminal Code or any other Act of Parliament committed by a person while subject to the Code of Service Discipline.”[38]

The Code of Service Discipline includes a number of offenses “that are uniquely military in nature.”[39] However, where a crime or offense is committed under the Criminal Code or other federal law by a person subject to the Code of Service Discipline, the NDA establishes jurisdiction over such offenses to be dealt with under the military justice system.[40]  Subsection 130(1) of the NDA provides that there can be a service trial for offenses punishable by “ordinary law.”[41]  According to section 71 of the NDA, nothing in the Code of Service Discipline, apart from a preemptory plea, can bar a civil court from trying a person for an offense over which it has jurisdiction.[42]

The place where the offense occurred is an important factor in determining whether it will dealt with by the military or civilian justice system.  According to the JAG,

[w]here such an offence is committed on Canadian territory, as a general rule the civilian justice system and the military justice system have concurrent jurisdiction to prosecute the matter.  However, certain criminal offences that are committed in Canada cannot be prosecuted in the military justice system.  These offences include murder, manslaughter and child abduction.  Any offence under the Criminal Code or other Federal law, allegedly committed by a person subject to the Code of Service Discipline outside Canada (including murder, manslaughter and child abduction) can be dealt with under the military justice system.[43]

It is also important to note that at the summary trial level, “[t]he jurisdiction to try offences is limited.”[44]  Moreover,

[o]ffences of a military nature that a CO or superior commander are authorized to deal with at a summary trial are prescribed by the QR&O.  A very limited number of offences that are breaches of the Criminal Code or Controlled Drugs and Substances Act can be tried by a CO or superior commander.[45]

As noted, a service tribunal may not try any person charged with murder, manslaughter, or an offense listed under sections 280–283 of the Criminal Code (the taking of an unmarried minor without parental consent, etc.).[46]

2.  Sexual Offenses

With regard to sexual offenses that have been committed in Canada, the Prosecutor may communicate with the civilian authorities, which have concurrent jurisdiction, in order to determine whether charges should proceed in the military or civilian justice system.[47]  It is the policy of the Department that the Prosecutor consults with the Deputy Director of Military Prosecutions (D/DMP) prior to any such communication.[48]

Prior to September 1, 1999, such offenses had to be tried by a civilian court rather than a service tribunal.[49]  As a result of Bill C-25, sexual assault offenses committed in Canada by persons subject to the Code of Service Discipline can now be handled by service tribunals.  As explained in an article on the subject by Brigadier-General Jerry Pitzul and Commander John Maguire,

[t]o the extent that sexual assault offences have the potential to undermine morale and unit discipline, lessen mutual trust and respect, and ultimately impair military efficiency, the Canadian Forces’ inability to deal promptly with such offences was considered problematic.  Bill C-25 therefore removed this limitation on jurisdiction.[50]

Special provisions are in place to deal with the reporting, investigation, and career consequences of sexual misconduct by members of the Canadian Forces (CF).[51] CFAO 19-36 is the CF policy directive for handling cases of sexual misconduct.[52]  Under the CFAO, an act must meet two requirements in order to be considered “sexual misconduct”: it must have a sexual purpose or indecent nature, and it must qualify as an offense either under the Criminal Code or the Code of Service Discipline.[53]  When sexual misconduct is alleged, the CO must ascertain that a proper investigation is conducted by contacting the military police.[54]  Depending on the nature of the allegations, the military police may involve civilian police authorities.[55]

In 2007, the Act to Amend the National Defence Act, the Criminal Code, the Sex Offender Information Registration Act, and the Criminal Records Act was adopted, which requires offenders who have committed service offenses of a sexual nature to provide information for registration under the Sex Offender Information Registration Act.[56]  The purpose of the Sex Offender Information Registration Act is to “help police services prevent and investigate crimes of a sexual nature by requiring the registration of certain information relating to sex offenders.”[57] Every person who commits an offense with relation to the Sex Offender Information Registration Act and is found guilty is liable to imprisonment of less than two years or a lesser punishment on conviction.[58]

According to the 2010 Annual Report of the Canadian Forces Provost Marshal, 584 incidents were reported to the MP over the four years preceding the report (2007–2010).[59]  These appear to be the most recent statistics available.  According to a recent news report, “[m]ilitary members made 290 harassment complaints between 2006 and 2013 resulting in 87 investigations.”[60]

During the 2009–2010 reporting period, eighty-four charges of a sexual nature were brought against fifty-one accused, all of whom were dealt with by summary trial.[61]

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III.  Changes Made to Reduce the Influence of the Military Chain of Command

A.  Historical Overview

Prior to the amendments and changes made to Canada’s military justice system in the late 1990s, the role of the commanding officer (CO), particularly as convening authority, was central to the military justice system.  As described in a Commission of Inquiry Report, a CO had

both disciplinary powers and powers like those available to a judge.  These include[d] the power to issue arrest and search warrants, cause investigations to be conducted, dismiss any charge of any disciplinary or criminal offence, try most military personnel, delegate some powers of trial and punishment to junior officers, and apply for the convening of courts martial.[62]

However, since the 1990s Canada has been “greatly reducing the role of commanders in its military disciplinary system.”[63]  This was done as a result of “legal changes, court challenges, and public opinion.”[64]  A major impetus for change came after the enactment of the Canadian Charter of Rights and Freedoms in 1982, which forced the Canadian Forces to reconcile Canada’s military justice system with the constitutional protections introduced by the Charter.[65]  Moreover, increased public scrutiny resulted from “high profile cases involving particularly egregious acts of misconduct committed by members of the Canadian Forces involved in peacekeeping operations in Somalia, and to a much lesser extent, Bosnia.”[66]  In 1992, the Supreme Court of Canada, in the Généreux decision,[67] held that the General Courts Martial system violated paragraph 11(d) of the Charter, which guarantees a fair and public hearing by an independent and impartial tribunal.  According to Pitzul and Maguire, the Court “concluded that it was unacceptable for anyone in the chain of command to be in a position to interfere in matters which are directly and immediately relevant to the adjudicative function.”[68]  The Report of the Somalia Commission of Inquiry stated that the Court felt “the appointment of the members of the court by the military authority ordering the trial” diminishes its impartiality and independence.[69]

In Généreux, the SCC was also required to examine the constitutionality of various aspects of the Code of Service Discipline.  The SCC affirmed the constitutionality of the Code and the need to maintain a separate justice system for the military, in order to meet the requirements of military discipline.[70]  The SCC also added that a separate military justice system is necessary due to the unique nature of military offenses that do not exist as civil offenses.[71]

B.  Regulatory Changes to the Summary Trial System

One year before the adoption of Bill C-25, regulatory changes were also made to the summary trial system in response to reports and studies by a Summary Trial Working Group and a Special Advisory Group.  Those changes included amendments that

  • “precluded commanding officers from trying any case which they have personally investigated”;[72]
  • “enhanced the right to elect trial by court martial,” which must now “be extended to the accused in cases involving all but the most minor disciplinary offences”;[73]
  • “reduce[d] the offence jurisdiction of commanding officers and delegated officers to those offences that are more minor in nature and over which offence jurisdiction is demonstrably necessary for the maintenance of unit discipline,” while at the same time reducing the severity of punishments that may be awarded at summary trial and restructuring the framework for punishments in keeping with the summary trial’s disciplinary character;[74] and
  • “provid[ed] a mechanism, separate and apart from the redress of [the] grievance process, by which an accused found guilty at summary trial is able to request that the findings and sentence be reviewed.”[75]

C.  An Act to Amend the National Defence Act (Bill C-25)

As a result of the Généreux trial (but before the actual Supreme Court decision was issued), amendments to the NDA and the QR&Os were made in order to address some of the problems noted by the Supreme Court.  These amendments constitute the last comprehensive legislative reform of Canada’s military justice system, which occurred in 1998 with the passage of Bill C-25.[76]  The Act made significant changes to the NDA.  Bill C-25 was a response to many recommendations made in several commission reports on the military justice system.[77]

The main purpose of the amendments made in Bill C-25 was to “promote integrity and fairness” within the military justice system established by the NDA.[78]  One of the major changes made under the reform was that the Minister of National Defence no longer has to “make decisions pertaining to individual disciplinary cases such as convening courts-martial, approving punishments of dismissal from Her Majesty’s service, or acting as a review authority in respect of summary trial and court-martial findings and sentences.”[79]  According to Pitzul and Maguire, “[b]y devolving such responsibilities to other authorities, the potential conflict of interest between such matters and the Minister’s duties in respect of the overall management of the Department of National Defence and Canadian Forces” was greatly reduced.[80]

In order to strengthen the independence of courts-martial and to “reduce the exercise of discretionary powers by the military hierarchy,”[81] provisions regulating the courts-martial system were also amended.  Changes included

  • “[S]eparating the functions of convening courts martial and appointing judges and panel members;
  • [A]dopting a random methodology for selecting courts-martial panel members; and
  • [I]mplementing reforms to ensure the protection of tenure, financial security and institutional independence of military judges, including appointing judges for fixed terms, adopting the civilian ‘cause-based’ removal standard and discontinuing the use of career evaluations as a measure of judicial performance.”[82]

One amendment removed the power of the Commanding Officer, as a convening authority, “to appoint the President and members of the court.”[83]  The convening authority “also lost the power to vary the number of officers on the panel”[84] by fixing the number of panelists in the General Court Martial and Disciplinary Court Martial, which was set at five and three members respectively (at the time, Canada had four types of Courts Martial instead of two).  Appointment of panel members was centralized under the independent Office of the Chief Military Trial Judge,[85] whose personnel include military judges, the Court Martial Administrator, and the Deputy Court Martial Administrator.  The amendments gave the Court Martial Administrator the power to convene courts-martial and a random methodology was introduced for selecting panel members.[86]  Moreover, the military judges were no longer responsible to the chain of command.[87]

Bill C-25 also clarified “the roles and responsibilities of the principal actors in the military justice system, including the Minister [of National Defence] and the [JAG], and the establishment of clear standards of institutional separation between the investigative, prosecutorial, defence and judicial functions.”[88]  The creation of a separate Director of Military Prosecutions (DMP) and Director of Defence Counsel Services (DDCS) by Bill C-25 was intended to establish prosecutorial and defense independence.  Most significantly, “the prosecutorial function was removed from the commander’s control.”[89]

The bill also made jurisdictional changes involving sexual assault offenses committed in Canada by persons subject to the Code.  The limitation that these offenses be tried exclusively by civilian jurisdictions was removed.[90]

D.  An Act to Amend the National Defence Act (Bill C-60)

Bill C-60, An Act to Amend the National Defence Act and to make a consequential amendment to another Act, which came into force in July 2008, simplified the structure of the court-martial system, by reducing the types of such courts from four to two.  The amending legislation also allowed “the possibility for accused persons, in certain cases, to select the type of court martial to be convened.”[91]  In addition, it required “that military panels, which act like juries in General Courts Martial, reach unanimous rather than majority verdicts of guilty or not guilty, of unfitness to stand trial or of not responsible on account of mental disorder.”[92]

E.  The Strengthening Military Justice in the Defence of Canada Act (Bill C-15)

The Strengthening Military Justice in the Defence of Canada Act, otherwise known as Bill C-15, was assented to by Parliament on June 19, 2013.[93]  The bill amends provisions of the NDA to, among other things,

(a) provide for security of tenure for military judges until their retirement;

(b) permit the appointment of part-time military judges;

(c) specify the purposes, objectives and principles of the sentencing process;

(d) provide for additional sentencing options, including absolute discharges, intermittent sentences and restitution;

(e) modify the composition of a court martial panel according to the rank of the accused person; and

(f) modify the limitation period applicable to summary trials and allow an accused person to waive the limitation periods.[94]

Bill C-15 not only “makes the Canadian military justice system more consistent with the justice system established in the Criminal Code [but] also takes into account the unique nature of the military justice system.”[95]  The goal of Bill C-15 is to maintain a degree of flexibility in the military justice system that is deemed necessary for maintaining discipline.[96]  The bill also aims to “enhance the effectiveness of the military justice system and provides greater independence and impartiality for the key players in that system, in particular military judges and the Director of Defence Counsel Services.”[97]

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IV.  Independent Reviews of the Military Justice System

A.  First Independent Review Authority for Bill C-25

Bill C-25 introduced a new grievance process and established the Canadian Forces Grievance Board, which is independent of the chain of command.[98]  Section 96 of the Bill also required the Minister of National Defence to undertake an independent review of the amendments to the NDA every five years following the bill’s coming into force.[99]  The Five-Year Independent Review Authority was therefore established, with the mandate of evaluating the changes brought about by Bill C-25.[100] 

The First Independent Review, conducted by the Right Honourable Antonio Lamer (the Lamer Report),[101] “related solely to the provisions and operation of Bill C-25, and did not encompass the NDA as a whole.”[102]  According to the Lamer Report,

[t]he primary functions of the DMP as set forth in the NDA are the preferral of all charges to be tried by court martial and the conduct of all prosecutions at courts martial.   Because the DMP is outside of the chain of command, conflicts of interest in the convening of courts martial are avoided.  The DMP is given the express authority to withdraw a charge that has been preferred, an authority not previously enjoyed by the prosecution.[103]

The creation of the DDCS was a great step forward in affording members of the Canadian Forces the protection of legal advice and representation that is intended to be independent of the chain of command.[104]

The report made a total of eighty-eight recommendations, which, in large part, related to designing better guarantees of the independence of key players such as military judges and the Director of Counsel Services, and improving the grievance and military police complaints process.  In addition, “the proposed amendments to the Code of Service Discipline reflected a desire to incorporate certain Criminal Code rules into the military justice system.”[105]

Bill C-60 responded to recommendations made in the Lamer Report and made three significant adjustments to the military justice system:

  • Reduced the types of court-martial to two (General Court Martial and Standing Court Martial),
  • Introduced the possibility for the accused to elect the type of court martial to be convened, and
  • Put forth the requirement that military panels reach unanimous verdicts (rather than simply majority verdicts).[106]

B.  Equal Justice: Reforming Canada’s System of Courts Martial

In May 2009, the Minister of National Defence commissioned the Standing Senate Committee on Legal and Constitutional Affairs to study the provisions and applications of Bill C-60 and provide the Minister with observations and recommendations.[107]  In its final report, entitled Equal Justice: Reforming Canada’s System of Courts Martial,[108] the Senate Committee issued nine recommendations relating to the conduct of courts martial and sentencing in the military courts.[109]  The government’s response to this report indicated that the government accepted in principle all of these recommendations.[110]

Bill C-15, which further amended the NDA, was put forth in response to the 2003 Lamer Report and the May 2009 Report by the Standing Committee on Legal and Constitutional Affairs.[111] 

C.  Second Independent Review Authority for Bill C-25

Former Chief Justice LeSage was appointed by Minister of National Defence Peter G. MacKay in March 2011 to conduct the second independent review of the amendments to the NDA made by Bill C-25, as well as a review of Bill C-60.[112]  This review specifically involved consideration of the operation of aspects of the military justice system, the military police complaints process, and the Canadian Forces grievance process.[113]  The report is a follow-up on the work of two of Canada’s most eminent jurists, former Chief Justices of the Supreme Court of Canada Brian Dickson and Antonio Lamer.[114]

In December 2011, the Honourable Patrick J. Lesage published the Report of the Second Independent Review Authority (the SIRA Report).  The document was introduced in the House of Commons on June 8, 2012.[115]

The SIRA report makes fifty-five recommendations for both the military justice system and the Canadian Forces grievance process.[116]  Approximately two-thirds of the recommendations in the SIRA report are related to the military justice system, the remaining third dealing with the Canadian Forces Military Police Group, the Military Police Complaints Commission, and the Canadian Forces grievance process.[117]

The federal government has accepted the majority of the recommendations made in the report and, as a result, the Department of Defence and the Canadian Forces are “actively engaged in implementing those recommendations as well as conducting further study on many of the recommendations that require additional consideration.”[118]

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Tariq Ahmad
Legal Research Analyst*
July 2013

 

* This report was prepared with the assistance of Law Library intern Ashley Munro.

[1] Constitution Act, 1867, 30 & 31 Victoria, c. 3, § 91(7), http://laws-lois.justice.gc.ca/eng/Const/FullText.htmlSee also Judge Advocate General (JAG), Military Justice at the Summary Trial Level 2.2, Chapter 3: Framework of the Canadian Military Justice System, http://www.forces.gc.ca/en/about-reports-pubs-military-law-summary-trial-level/ch-3-framework-of-cf-military-justice.page (last updated July 25, 2013).

[2] National Defence Act (NDA), R.S.C., 1985, c. N-5, http://laws-lois.justice.gc.ca/eng/acts/n-5/.

[3] Queen’s Regulations and Orders for the Canadian Forces (QR&Os), http://www.admfincs.forces.gc.ca/qro-orf/index-eng.asp (last updated Dec. 22, 2011).

[4] JAG, supra note 1, ch. 3.

[5] NDA § 9.1.

[6] Id. § 9.2.

[7] Department of National Defence – Reports on Plans and Priorities 2013–14, Vice Chief of the Defence Staff, http://www.forces.gc.ca/en/about-reports-pubs-report-plan-priorities/2013-other-reports-plans-priorities.page (last updated Aug. 1, 2013).

[8] Bill C-25, An Act to amend the National Defence Act and to make consequential amendments to other Acts (S.C., 1998, c. 35), received Royal Assent in December 1998 and came into force on 1 September 1999, clause 96, http://www.parl.gc.ca/HousePublications/Publication.aspx?Language=E&Mode=1&DocId=2329899&File=6.  For an overview of the military justice system and the changes made to the military regime, see David Goetz, Bill C-25: An Act to amend the National Defence Act, Publication no. LS-311E, Parliamentary Information and Research Service, Library of Parliament, Ottawa, 25 November 1998, http://publications.gc.ca/Collection-R/LoPBdP/LS/ 361/c25-e.htm#2%29%20%20Sexual%20Assault%20to%20be%20Triable%20as%20Service%20Offence-text.

[9] Id.

[10] JAG, supra note 1, ch. 3.

[11] Id.

[12] Id.

[13] NDA § 163(1).

[14] JAG, supra note 1.

[15] Id.

[16] Directorate of Defence Counsel Services, Guide for Accused and Assisting Officers: Pre-trial Proceedings at the Summary Trial Level (DDCS Guide) (Oct. 6, 2009), http://www.forces.gc.ca/en/about-reports-pubs-military-law/guide-for-accused-and-assisting-officers.page.

[17] JAG, supra note 1.

[18] Id.

[19] NDA §§ 166, 167(1).

[20] Id. § 173.

[21] JAG, supra note 1.

[22] Director of Military Prosecutions, JAG, http://www.forces.gc.ca/en/caf-community-legal-services/mil-prosecutions.page (last updated July 26, 2013).

[23] Id.

[24] See Directorate of Defence Counsel Services, JAG, http://www.forces.gc.ca/en/caf-community-legal-services/defence-counsel-services.page (last updated Jan. 28, 2013).

[25] NDA § 249.19.

[26] “Referral Authority” is defined as “[t]he Chief of the Defence Staff and any officer having the powers of an officer commanding a command are the officers that can forward an application for disposal of a charge to the Director of Military Prosecutions.”  Military Justice at the Summary Trial Level 2.2: Military Justice at the Summary Trial Level 2.2, Annex N: Guide for Referral Authorities, National Defence and the Canadian Forces, http://www.forces.gc.ca/en/about-reports-pubs-military-law-summary-trial-level/annex-n-referral-authorities-guide.page (last modified July 25, 2013).

[27] Id.

[28] QR&Os: Volume II – Chapter 109, Application for Referral Authority for Disposal of a Charge, http://www.admfincs.forces.gc.ca/qro-orf/vol-02/chapter-chapitre-109-eng.asp.

[29] Report of the Second Independent Review Authority, supra note 26, at 32. 

[30] QR&Os: Volume II – Chapter 107, Preparation, Laying and Referral of Charges art. 107.12, http://www.adm fincs.forces.gc.ca/qro-orf/vol-02/chapter-chapitre-107-eng.asp#cha-107-09.

[31] QR&Os: Volume II - Chapter 109 Application for Referral Authority for Disposal of a Charge, art. 109.05, http://www.admfincs.forces.gc.ca/qro-orf/vol-02/chapter-chapitre-109-eng.asp.

[32] Report of the Second Independent Review Authority, supra note 26, at 32.  For more information on referral and preferral processes, see NDA §§ 165.12–165.13, http://laws-lois.justice.gc.ca/eng/acts/n-5/page-55.html#docContSee also QR&Os: Volume II – Disciplinary chs. 109–111, http://www.admfincs-smafinsm.forces.gc.ca/qro-orf/vol-02/index-eng.asp.

[33] Report of the Second Independent Review Authority, supra note 26, at 32.

[34] Id.

[35] Director of Military Prosecutions, supra note 22.

[36] Military Justice at the Summary Trial Level 2.2, Chapter 3: Framework of the Canadian Military Justice System, National Defence and the Canadian Forces, http://www.forces.gc.ca/en/about-reports-pubs-military-law-summary-trial-level/ch-3-framework-of-cf-military-justice.page (last modified July 25, 2013).

[37] Structure of the Courts, Canadian Superior Courts Judges Association, http://www.cscja-acjcs.ca/ structure_of_courts-en.asp?l=4 (last visited July 10, 2013).

[38] NDA § 2.

[39] JAG, supra note 1, ch. 3.  “Examples of such offences include misconduct in the presence of the enemy, mutiny, disobedience of a lawful command, desertion, absence without leave, drunkenness, negligent performance of duty and conduct to the prejudice of good order and discipline.”  Military Justice at the Summary Trial Level 2.2, supra note 36, ¶ 26.

[40] JAG, supra note 1, ch. 3.

[41] NDA § 130(1).

[42] NDA § 71.

[43] JAG, supra note 1, ch. 3.

[44] Id.

[45] Id.

[46] NDA § 70.

[47] Director of Military Prosections Policy Directive, Sexual Offences, Directive # 004/00 (Mar. 1, 2000), http://www.forces.gc.ca/assets/FORCES_Internet/docs/en/jag/sexual-offences.pdf.

[48] Id.

[49] Jerry S.T. Pitzul & John C. Maguire, A Perspective on Canada’s Code of Service Discipline, 52 Air Force L. Rev. 1, 15 (2002), http://www.afjag.af.mil/shared/media/document/AFD-081204-027.pdf.

[50] Id.

[51] Military Administrative Law Manual, Chapter 23 – Sexual Misconduct, National Defence and the Canadian Forces, http://www.forces.gc.ca/jag/publications/mal-dam/miladminlaw-droitadminmil/chap23-eng.asp (last modified Feb. 15, 2012).

[52] Id.

[53] Id.

[54] Id.

[55] Id.

[56] Act to Amend the National Defence Act [etc.], S.C. 2007, c. 5, http://laws-lois.justice.gc.ca/eng/AnnualStatutes/ 2007_5/;  Sex Offender Information Registration Act, S.C. 2004, c. 10, http://laws-lois.justice.gc.ca/PDF/S-8.7.pdf

[57] Id. § 2.

[58] NDA § 119.

[59] Canadian Forces Provost Marshal, 2010 Annual Report 8,http://publications.gc.ca/collections/collection_2012/dn-nd/D3-13-2010-eng.pdf.  The annual tally of offenses were as follows: 2007 – 176, 2008 – 166, 2009 – 166, and 2010 – 176.  Id.

[60] Sue Bailey & Alison Auld, Canadian Forces Survey Asks Troops to Shed Light on Sexual Assault, Harrassment, The National Post (June 9, 2013), http://news.nationalpost.com/2013/06/09/canadian-forces-survey-asks-troops-to-shed-light-on-sexual-assault-harassment/.

[61] Office of the Judge Advocate General, Annual Report of the Judge Advocate General to the Minister of National Defence on the Administration of Military Justice in the Canadian Forces – A Review from 1 April 2009 to 31 March 2010, at 15, http://www.forces.gc.ca/assets/FORCES_Internet/docs/en/jag/jag-annual-report-09-10.pdf.

[62] Report of the Somalia Commission Of Inquiry, The Military Justice System (1997).

[63] Lindsy Nicole Alleman, Who Is in Charge, and Who Should Be? The Disciplinary Role of the Commander in Military Justice Systems, 16 Duke J. Comp. & Int’l L. 169, 175 (2006), http://scholarship.law.duke.edu/cgi/ viewcontent.cgi?article=1110&context=djcil.

[64] Id.

[65] Id.

[66] Pitzul & Maguire, supra note 49, at 9.  

[67] R. v. Généreux, [1992] 1 S.C.R. 259, available at http://www.law.yale.edu/Genereaux.pdf.

[68] Pitzul & Maguire, supra note 49, at 9.

[69] Report of the Somalia Commission of Inquiry, supra note 62.

[70] Military Justice System, The Canadian Encyclopedia, http://thecanadianencyclopedia.com/articles/military-justice-system (last visited July 9, 2013).

[71] Id.

[72] Pitzul & Maguire, supra note 49, at 10.

[73] Id.

[74] Id.

[75] Id. at 11.

[76] Library of Parliament, Bill C-15: An Act to Amend the National Defence Act and to Make Consequential Amendments to Other Acts, Pub. No. 41-1-C15-E (Apr. 24, 2012, rev’d May 2, 2013), at 2, http://www.parl.gc.ca/ Content/LOP/LegislativeSummaries/41/1/c15-e.pdf.

[77] IdSee also Report of the Special Advisory Group on Military Justice and Military Police Investigation Services, Department of National Defence (Dickson Report I) (Mar. 1997); Commission of Inquiry into the Deployment of Canadian Forces to Somalia, Dishonoured Legacy: The Lessons of the Somalia Affair (Somalia Report) (June 1997); Minister of National Defence, Report to the Prime Minister on Leadership and Management in the Canadian Forces (Young Report) (Mar. 1997).

[78] Library of Parliament, supra note 76, at 2.

[79] Pitzul & Maguire, supra note 49, at 12.

[80] Id.

[81] Michel Rossignol, National Defence Act: Reform of the Military Justice System (rev’d Jan. 22, 1997), http://publications.gc.ca/Collection-R/LoPBdP/CIR/961-e.htm.

[82] Alleman, supra note 63, at 177 (quoting Pitzul & Maguire, supra note 49, at 8).

[83] Rossignol, supra note 81 (construing Bill C-25 clause 42). 

[84] Id.

[85] Id.

[86] Id.

[87] Id.

[88] The First Independent Review by the Right Honourable Antonio Lamer P.C., C.C., C.D. of the provisions and operation of Bill C-25 (Lamer Report), An Act to amend the National Defence Act and to make consequential amendments to other Acts, as required under section 96 of Statutes of Canada 1998 c.35 at 3 (Sept. 3, 2003), http://www.cfgb-cgfc.gc.ca/documents/lamer-eng.pdf .

[89] Alleman, supra note 63, at 177.

[90] Pitzul & Maguire, supra note 49, at 15.

[91] Library of Parliament, supra note 76, at 4.

[92] Id.

[93] An Act to amend the National Defence Act and to make consequential amendments to other acts, S.C. 2013, c. 24, http://parl.gc.ca/HousePublications/Publication.aspx?Language=E&Mode=1&DocId=6246510.

[94] Id., Summary.

[95] Library of Parliament, supra note 76, at 1.

[96] Id.

[97] Id.

[98] David Goetz, Bill C-25: An Act to amend the National Defence Act, Publication no.LS-311E, supra note 8.

[99] Id.

[100] Report of the Second Independent Review Authority, supra note 26, at 1.

[101] Lamer Report, supra note 88.

[102] Library of Parliament, supra note 76.

[103] Lamer Report, supra note 88, at 12.

[104] Id. at 14.

[105] Library of Parliament, supra note 76, at 3.

[106] Id. at 4.

[107] Id.

[108] Standing Senate Committee on Legal and Constitutional Affairs, Equal Justice: Reforming Canada’s System of Courts Martial, Final Report: A Special Study on the Provisions and Operation of An Act to amend the National Defence Act and to Make a Consequential Amendment to Another Act, S.C. 2008, c. 29 (May 2009), http://www.parl.gc.ca/Content/SEN/Committee/402/lega/rep/repfinalmay09-e.pdf.

[109] IdSee App. B for a detailed list of the nine recommendations.

[110] Library of Parliament, supra note 76, at 5.

[111] Id. at 7.

[112] Id.

[113] Id.

[114] Id.

[115] House of Commons Debates, 1st Session, 41st Parl., June 8, 2012, at 9093, http://www.parl.gc.ca/content/ hoc/House/411/Debates/137/HAN137-E.PDF.

[116] For a detailed list of recommendations, see Report of the Second Independent Review Authority, supra note 26, at 76.

[117] Press Release, National Defence and the Canadian Forces, supra note 112.

[118] Id.

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Last Updated: 02/28/2014