Civilian and military courts work side by side in Canada
By Jakub Vodsedalek, a Vancouver Lawyer with Bernard LLP
Admiral Sir Clowdisley Shovell was returning home to England with his fleet following a successful military campaign in the Mediterranean. His siege of the French city of Toulon had taken much of the summer of 1707. It was now late October and the weather had grown hazy.
As the legend goes, Sir Clowdisley summoned his navigators to discuss the location of the fleet. The fog made it hard to pin down the ship’s exact point on a map, but he and his navigators were confident that they were somewhere off the coast of France.
A junior sailor who had been keeping his own log of the fleet’s progress had a different view. He reckoned the fleet was actually near the Isles of Scilly, a collection of small islands off the southwest of England. Fearing for the safety of the fleet, the sailor raised his concerns with the Admiral. Furious at the sailor’s insubordination, Sir Clowdisley immediately had him hanged from the yardarm for mutiny.
In a twist of irony, the junior sailor’s calculations were accurate. That night most of the fleet was dashed against the rocks of the Isles of Scilly. Four of the five ships were lost in what was one of the worst naval disasters in British history. Sir Clowdisley did not survive.
While it’s likely that the earnest sailor is a detail added after the fact, this anecdote is a revealing insight into the state of military justice in the 18th century. As the Admiral of the Fleet, Sir Clowdisley held the highest rank in the British Royal Navy. Out on the sea, his word was law and capital punishment without a trial was a form of punishment he could enact.
Although the Canadian Navy still applies a unique form of justice, there have been considerable advancements since Sir Clowdisley’s day. The modern Canadian military justice system is codified in the National Defence Act which sets out the Code of Service Discipline (CSD) that applies to all of the Canadian Armed Forces. In addition to the ordinary civilian laws, the CSD describes the unique offences, punishments and organization of military justice.
The need for this distinct but parallel system of justice was acknowledged in the 1992 Supreme Court of Canada decision of R. v. Généreux. The Court recognized that an effective chain of command required a framework that could swiftly address breaches of discipline, anywhere around the world, and often more severely than if a civilian had engaged in the same conduct. The ordinary courts were deemed inadequate. The Court also held that the military system would hold service members to a higher standard of behaviour, but this did not mean giving up their fundamental rights such as the Charter of Rights and Freedoms.
The CSD applies to regular service members at all times and in all countries, whether in uniform or not. Any civilian offence committed by a member under the Criminal Code or other laws can result in a charge under the CSD. Some charges are unique to the CSD, such as mutiny, poor dress and deportment on parade, disobedience of a lawful command and negligent performance of duty.
In certain cases, both military and civilian charges can apply to the same event and a choice needs to be made about which judicial system is the best avenue. If a naval officer strikes another crew member in a fight in Canada, the authorities must choose whether to pursue charges under the CSD or the Criminal Code. However, the highest crimes such as murder or manslaughter are exclusively the jurisdiction of the Criminal Code.
If a non-commissioned service member on a naval vessel commits a service offence under the CSD, they may be arrested without a warrant by any officer or other service member of higher rank. If an investigation is required, the unit or Military Police will evaluate the circumstances first. Once the charges have been laid, the service member is assigned an assisting officer who provides information about all the unique procedures and rights of the military justice system.
One such right is that every service member who is liable to be charged, investigated and tried under the CSD is entitled to the services of a lawyer at no cost from the Directorate of Defence Counsel Services (DDCS). These lawyers are military officers who are also licensed legal professionals. In order to maintain the level of independence required to represent their clients’ best interests, the DDCS lawyers operate independently of the traditional chain of command of the military.
The counterpart to the DDCS is the Canadian Military Prosecution Service, which is composed of military prosecutors along with civilian paralegal and support staff. In British Columbia, the regional military prosecutors’ offices are located at the Canadian Forces Base Esquimalt.
The hearing of a charge under the CSD can be held in one of two forms: summary trial or court martial.
The summary trial is used for the hearing of minor service offences. Instead of a judge, the trial is presided over by a member of the chain of command that holds the rank of captain or above and is not legally trained. The accused won’t usually have a representation by a lawyer but they can get guidance from the DDCS. Summary trials are a speedy and portable system of justice that allow for the efficient maintenance of military discipline. If the service member is on a vessel that is deployed abroad, the summary trial will be conducted aboard the ship.
The court martial is a formal military court presided over by a military judge. Hearings at this level involve formal procedures that are similar to civilian criminal courts. The military prosecutor will conduct the prosecution and the service member is entitled to full representation by the DDCS. The punishments available at this level greatly exceed those available at a summary trial and include imprisonment for life. Unlike Sir Clowdisley’s judgement in 1707, courts martial cannot impose capital punishment — even for mutiny.
Those charged under the CSD face tough odds. Between 2016 – 2017, findings of guilt were made at approximately 87 per cent of summary trials and 83 per cent of courts martial. Decisions made at a court martial may be appealed to the Court Martial Appeal Court, which is composed of civilian judges. There is also a final avenue of appeal to the Supreme Court of Canada.
The most common sentences at both levels by a large margin are fines, confinement to the ship and reprimands. The level of punishment imposed is informed by the nature of the offence. The severity will increase when the service member engages in behaviour that, if left unchecked, places the operational effectiveness, discipline and ship’s morale at risk. A Master Seaman watching a video on his laptop while on watch over the brow of the ship was sentenced to a fine of $200.00. In contrast, an Ordinary Seaman found guilty of trafficking cocaine was sentenced to imprisonment for a period of five months.
The National Defence Act and CSD continue to operate alongside the civilian courts, providing a framework that is both fair and effective. The CSD promotes order and morale, ensuring that the Armed Forces can achieve their goals. The Canadian military justice system evolves with the broader Canadian jurisprudence as the Constitution and Charter continue to develop. Importantly, it also lets Seamen warn their commanding officers that the Isles of Scilly are coming up ahead.
Jakub Vodsedalek is a Maritime Lawyer with Bernard LLP and can be reached at firstname.lastname@example.org.