Military Law Under the Charter David J

Osgoode Hall Law Journal Article 3 Volume 24, Number 1 (Spring 1986) Military Law under the Charter David J. Corry Follow this and additional works at: http://digitalcommons.osgoode.yorku.ca/ohlj Article Citation Information Corry, David J.. "Military Law under the Charter." Osgoode Hall Law Journal 24.1 (1986) : 67-120. http://digitalcommons.osgoode.yorku.ca/ohlj/vol24/iss1/3 This Article is brought to you for free and open access by the Journals at Osgoode Digital Commons. It has been accepted for inclusion in Osgoode Hall Law Journal by an authorized editor of Osgoode Digital Commons. Military Law under the Charter Abstract Mr. Corry reviews the courts' approach to the military justice system as it relates to the fundamental rights of service personnel He recognizes that some sacrifice of procedural protections is necessary if the Armed Forces is to fulfill its purpose, but determines that, especially in light of the protections offered by the Canadian Charter of Rights and Freedoms, the courts have adopted an overly passive role in the supervision and review of the military judicial process. This article is available in Osgoode Hall Law Journal: http://digitalcommons.osgoode.yorku.ca/ohlj/vol24/iss1/3 MILITARY LAW UNDER THE CHARTER BY DAVID J. CORRY* Mr. Cony reviews the courts' approach to the military justice system as it relates to the fundamental rights of service personnel He recognizes that some sacrifice of proceduralprotections is necessary if the Armed Forces is to fufill its purpose, but determines that, especially in fight of the protections offered by the Canadian Charter of Rights and Freedoms, the courts have adopted an overly passive role in the supervision and review of the militaryjudicial process. I. INTRODUCTION .................................. 67 II. REVIEW OF PRE-CHARTER LAW GOVERNING THE MILITARY ...................... 69 A. The Common Law .............................. 69 B. The Canadian Bill of Rights ...................... 75 III. THE CHARTER .................................... 79 A. Does the Charter Apply to Military Law ............. 79 B. Supremacy Clause: Section 52(1) ................... 80 C. Remedy Clause: Section 24(1) ..................... 81 D. Court of Competent Jurisdiction ................... 82 IV. MILITARY LAW AND FUNDAMENTAL RIGHTS ..... 83 V. THE LIMITATION OF RIGHTS ..................... 104 VI. PROPOSALS FOR REFORM ........................ 118 VII. CONCLUSION .................................... 120 I. INTRODUCTION The military establishment is, of course, a necessary organ of government, but the reach of its power must be carefully limited lest the balance between freedom and order be upset. The maintenance of the balance is made more difficult by the fact that while the military serves the vital function of preserving the existence of the nation, it is, at the same time, the one element of government that exercises a type of authority not easily assimilated in free society. Earl Warren, Chief Justice of the United States[ o Copyright, 1986, David J. Cony. * Member of the 1985 graduating class of Osgoode Hall Law School. Presently a member of the Alberta Bar with the law firm Fenerty, Robertson, Fraser & Hatch. Former Canadian Naval Officer 1973-82. OSGOODE HALL LAW JOURNAL [VOL. 24 NO. I In a constitutional democracy, in which certain basic rights are held to be fundamental to all persons, the military is a necessary evil. The constitution guarantees that democratic rule will not develop into a tyranny of the majority over the minority. The constitution defines the limits of democratic rule: individual rights are sacred and the will of the majority shall not tread upon them. Military society stands in marked contrast to the constitutional democracy. The fundamental objective of the armed forces is military efficiency to create an effective and integrated fighting force. All private considerations must give way to the fundamental goals of the military organization. Individual rights of service personnel, therefore, are not sacred. They are sacrificed for the sake of military efficiency. The contrast between the military and a constitutional democracy is most clearly reflected in their respective legal systems. It reaches the point of dilemma when the two legal systems come into contact: when the military is subjected to judicial review by the civilian courts. This requires the courts to tread a fine line, balancing the exigencies of the armed forces with the fundamental rights of individual service personnel. Canada matured as a constitutional democracy on April 17, 1982. With the adoption of the Canadian Charter of Rights and Freedoms,2 the courts for the first time have been asked to give serious consideration to the rights of those who are subjected to the military judicial process. The purpose of this paper is to examine the effect that the Charter will have on military law in Canada. Will the civil courts be reluctant to interfere with the administration and enforcement of military law? Will they defer to military tribunals, or will the courts intervene when military justice violates individual rights? These are a few of the many questions that remain to be answered over the years as the military is subjected to review under the Charter. In examining the above questions, this paper will draw on the extensive jurisprudence of the United States, which has subjected the military to constitutional scrutiny over a 200-year history. Canada clearly must chart her own course, but in so doing, the many issues faced and resolved in the United States, and the mistakes that have been made, will be a valuable starting point. Before considering those cases, however, I will begin by examining the state of Canadian law governing review of the military prior to the Charter. 2 Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B of the CanadaAct 1982 (U.K.), 1982, c. 11. 1986] Military Law under the Charter II. REVIEW OF PRE-CHARTER LAW GOVERNING THE MILITARY A. The Common Law The federal government is granted sole jurisdiction over the "Militia, Military and Naval Service, and Defence" pursuant to section 91(7) of the Constitution Ac 1867.3 In exercise of this jurisdiction, Parliament has enacted the National Defence Act,4 which is the governing statute of the Canadian Forces. The Second Division of that statute contains the Code of Service Discipline, which is a complete code of military law applicable to persons under service jurisdiction.5 Also, under section 12 of the National Defence Act, the Governor-in-Council and the Minister of National Defence are empowered to make regulations for the organization, training, discipline, efficiency, administration, and government of the Forces, so long as such regulations are not inconsistent with the NationalDefence Act. Under this authority, the government has promul- gated the Queen's Regulations and Orders (QR & Os). The QR & Os amplify the Code of Service Discipline and serve as the authoritative manual for military law in Canada. The jurisdiction of the civil courts is not affected by the Code of Sevice Discipline, and persons subject to the Code may be triable in both military and civil jurisdictions. 6 In general, the law of Canada, which applies to all citizens, also applies to members of the Forces. Therefore, the person who joins the service is still within the jurisdiction of the civil courts and, as a member of the Forces, is also within the jurisdiction of the military courts. In determining original jurisdiction, one must look at the three types of offences that apply to service personnel: first, those offences that are triable only by the civil courts; second, those that are triable only by a military tribunal; and third, those that are within the jurisdiction of both military and civil courts. In the first type of offence, when charged with murder, manslaughter, or sexual assault, the service person must be tried by the civil court, and cannot be tried under military law. 7 The second type of offence involves those matters that are purely of a military nature.8 These include absence without leave, desertion, disobedience of 3 (U.K.), 30 & 31 VicL, c. 3. 4 R.S.C. 1970, c. N-4. 5 Ibid s. 55 deals with the jurisdiction of the Code of Service Discipline over persons. In addition to military personnel, the Code also applies to civilians accompanying a unit of the Armed Forces, and alleged spies for the enemy. 6 Ibid s. 61. 7 bid s. 60. 8 Ibid Part V, ss 62-119, 121, 122. OSGOODE HALL LAW JOURNAL [VOL. 24 NO. I a lawful command, mutiny, insubordination, and so on. The third type of offence involves matters of the civil law that are brought into the Code of Service Discipline under section 120 of the National Defence Act,9 or certain offences under the Code of Service Discipline that may be triable in the civil courts with the consent of the Commanding Officer of the complainant.' 0 Under section 120 of the National Defence Act, a member of the Canadian Forces may be tried under military law for any offence under the Criminal Code or any other act of the Parliament of Canada. Also, offences that are triable in civil courts, with the consent of the complainant's Commanding Officer, may be triable by military tribunal under section 120. In the case of offences brought under the Code of Service Discipline through section 120, the civil courts maintain jurisdiction whether or not the accused person is tried by a military tribunal. Section 61(1) of the National Defence Act states that "Nothing in the Code of Service Discipline affects the jurisdiction of any civil court to try a person for any offence triable by that court." Therefore, a member of the forces can be brought before a civil court and tried for a matter that has already been disposed of by the military under section 120 of the NationalDefence Act.

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