Civilians Under Military Justice: A Canadian Study
Michele A. Pineau*
I. Introduction
Military law in Canada applies not only to service personnel but
the Canadian
also to large numbers of civilians accompanying
Armed Forces outside Canada. Traditionally, “camp followers” in-
cluded servants, pedlars, and other suppliers of wares. Since the
Second World War, this description has applied to a more limited
class of civilians, particularly families who accompanied military
units engaged in peacekeeping operations abroad. Consequently,
when the National Defence Act’ was promulgated in 1950, it was
considered proper to place persons “serving with” and “accom-
panying” the armed forces under the jurisdiction of the military
tribunals when outside Canada. The status of civilians under military
law has changed very little over the years in spite of amendments in
19542 designed to limit and define the ambit of military jurisdiction.
This paper proposes to study the implications of military justice
for civilians accompanying and serving with the armed forces
outside Canada.
II. Contemporary sources of Canadian military law
A. The National Defence Act
Prior to 1950, military law in Canada was based primarily on the
following British and Canadian statutes: the Army Act, 1881, 3 the
Air Force (Constitution) Act, 1917,’ An Act respecting the Militia
and Defence of the Dominion of Canada,5 The National Defence
Act, 1922,1 The Royal Canadian Air Force Act,* and The Naval
* B.C.L., McGill University.
‘S.C. 1950, c. 43, now R.S.C. 1970, c. N-4. To avoid confusion, it should be
noted that the section numbers differ from the 1950 statute to the 1970
revision. All subsequent references will be to R.S.C. 1970, c. NA.
2 S.C. 1953-54, c. 13.
3 44-45 Vict., c. 58 (U.K.).
47-8 Geo. V, c. 51 (U.K.) as am.
5 S.C. 1868, c. 40.
6 S.C. 1922, c. 34.
7 S.C. 1940, c. 15.
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Service Act, 1944.8 After World War II, the federal Parliament
terminated the application of British legislation by enacting the
National Defence Act which amalgamated into one statute all legis-
lation relating to the Canadian Forces. It featured, among other
things, a single code of discipline for all individuals subject to the
Act 9 and provided civilian courts of appeal with the right to review
the findings of military tribunals.10
Part IV of the Act, concerning the disciplinary jurisdiction of
the services, is of particular interest. At the time of its enactment,
it applied in a general fashion to immediate dependents and to
civilian employees who signed an agreement consenting to subject
themselves to the Code of Service Discipline. It should be noted that
these provisions applied only outside Canadian territory; while in
Canada, all civilians came under the jurisdiction of ordinary civil
courts.
In 1954, substantial amendments
to the Act” defined more
precisely the jurisdiction ‘of service tribunals. A review of the
House of Commons Debates for that period provides interesting
insights into these amendments.’ ” According to statements made
in the House by the then Minister of National Defence, these
changes were designed to establish the conditions under which
persons accompanying the forces would be subject to the Code
of Service Discipline –
that is, to limit rather than extend the
jurisdiction of the National Defence Act. In discussion pursuant to
questions from Honourable Members of the House, it became clear
that:
(1)
the application of the National Defence Act would not be
obligatory; 13
(2) the dependents would be tried by a civilian judge or barrister; 4
(3) the National Defence Act was not to apply to petty offences
“such as traffic offences and so on”;’ 5 and
(4) civilian employees would always be tried under Canadian civil
6
law.’
8 S.C. 1944-45, c. 23.
9 R.S.C. 1970, c. N-4, Pts IV-X.
10 Ibid., Pt IX.
“S.C. 1953-54, c. 13.
12[1954] 2 H.C. Deb. 2008-12.
13 Ibid., 2011.
14Ibid., 2012.
15 Ibid., 2010.
16 Ibid., 2011.
1979] CIVILIANS UNDER MILITARY JUSTICE: A CANADIAN STUDY
5
The Minister emphasized that these procedures were not being
instituted for the purpose of acquiring jurisdiction generally, but
rather to acquire it in countries where the interests and protection
of civilians were at stake. As will be illustrated throughout this
study, the original intention of the legislators to limit the scope of
application of the National Defence Act with respect to the above
points no longer appears to be valid.
B. The Queen’s Regulations and Orders to the Canadian Forces
Pursuant to section 12(1) of the National Defence Act and under
the authority of the Governor General in Council, a complete and
detailed set of regulations have been consolidated into what is
familiarly known as the Queen’s Regulations and Orders. 1 These
are divided into administrative, disciplinary, and financial parts.
The secqnd part, consisting of chapters 101 to 117 of the QR&O,
incorporates the disciplinary, regulatory, procedural, and explana-
tory material relating to the Code of Service Discipline. Also in-
cluded are ministerial orders and instructions from the Governor
General in Council, the Minister of National Defence, and the Chiief
of Defence Staff as well as a number of appendices including the
National Defence Act, the Military Rules of Evidence, 8 and other
agreements affecting the application of the Code. Annotations at
the end of each section, although they do not have force of law,
cannot be lightly disregarded.
In practice, the Code of Service Discipline and the QR&O are
often used interchangeably and both are meant to refer to the whole
body of military law. The Code of Service Discipline technically
refers to Parts IV to X of the National Defence Act, whereas the
QR&O regulate the application of the National Defence Act and
the Regulations enacted thereunder. The National Defence Act and
the QR&O create service offences and incorporate selected Canadian
legislation and foreign law. For the civilian accompanying the
Canadian Armed Forces abroad, the QR&O replace Canadian civil
and criminal law to become the only Canadian law applicable to
camp followers abroad.
C. International agreements
There are a number of treaties to which Canada is a signatory
that affect members of the Canadian Forces serving abroad, their
17Hereinafter referred to as QR&O.
18 P.C. 1959-1027 of Sept. 9, 1959, SOR/59-310, 93 Can. Gaz. Pt II 769.
McGILL LAW JOURNAL
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dependents, and other civilians attached to the service. The 1951
Agreement between the Parties to the North Atlantic Treaty re-
garding the status of their forces 19 defines inter alia the jurisdiction
of civil courts and of service tribunals in countries which host
visiting military forces. Along with the National Defence Act, this
agreement governs Canadians stationed in the following signatory
countries: Belgium, Denmark, France, Iceland, Italy, Luxembourg,
Netherlands, Norway, Portugal, Great Britain and Northern Ireland,
and the United States.
In 1959, the NATO-SOFA was supplemented by an Agreement
with respect to Foreign Forces stationed in the Federal Republic of
GermanyY0 This agreement is of vital importance in determining
the status of camp followers in the Federal Republic of Germany
since they are the largest group of civilians attached to Canadian
Forces units overseas.
III. Content of Canadian military law
A. Who is covered
As stated earlier, in addition to military members of the Cana-
dian Forces, the Code of Service Discipline is made applicable to
certain classes of civilians outside Canada as enumerated in section
55 of the National Defence Act:
(1) The following persons, and no others, are subject to the Code of
Service Discipline: …
(f) a person, not otherwise subject to the Code of Service Discipline,
who accompanies any unit or other element of the Canadian
Forces that is on service or active service in any place; …
(j) a person, not otherwise subject to the Code of Service Discipline,
while serving with the Canadian Forces under an engagement
with the Minister whereby he agreed to be subject to that Code.
(2) Every person subject to the Code of Service Discipline under subsec-
tion (1) at the time of the alleged commission by him of a service
offence continues to be liable to be charged, dealt with and tried
in respect of that offence under the Code of Service Discipline
notwithstanding that he may have, since the commission of that
offence, ceased to be a person mentioned in subsection (1).
These civilians fall into three major categories: civilian employees,
dependents, and individuals under continuing liability for previous
offences. The effect of this section is to give jurisdiction over non-
19 199 U.N.T.S. 67 [hereinafter referred to as the NATO-SOFA].
20481 U.N.T.S. 262 [hereinafter referred to as the Supplementary Agree-
ment].
1979] CIVILIANS UNDER MILITARY JUSTICE: A CANADIAN STUDY
7
military persons to military courts under the authority of the Judge
Advocate General.
1. The three categories
Under section 55(1)(j), persons “serving with the Canadian
Forces under an engagement” voluntarily agree to be governed by
military law while in the employ of the Department of National
Defence, as a condition of employment. This group includes elemen-
tary and secondary school teachers who instruct the children of
members of the Canadian service, language teachers, and meteoro-
logists among others. A notable exception are the employees from
other federal government departments who may be temporarily
attached to the Department of National Defence. Subjection to the
Code of Service Discipline is not within the terms of their em-
ployment and, as a consequence, they come within the jurisdiction
of the law of the country where they serve.
The largest group falls under section 55(1)(f) and includes
persons who accompany any unit or element of the forces. Under
section 55(4):
For the purposes of this section, but subject to any limitations prescribed
by the Governor in Council, a person accompanies a unit or other element
of the Canadian Forces that is on service or active service if such
person…
(c) is a dependant outside Canada of an officer or man serving beyond
Canada with that unit or other element….
When the National Defence Act was first passed, this class of in-
dividuals was not included. Dependents were subject to local tri-
bunals in the countries in which they were posted. The establish-
ment of Canadian Armed Forces bases outside Canada as part of
NATO peacekeeping operations brought about legislation to regulate
the status of the visiting forces and their families. The following
statement made by the Minister of National Defence in the House
of Commons at the time of the amendment concerning dependents
best explains the situation:
It is not intended that the services will in fact exercise jurisdiction over
civilians unless it is absolutely essential or in the best interests of the
civilians themselves that they do so. Within Canada the civil courts, by
virtue of the National Defence Act, will continue to be supreme and have
the power to supplant the jurisdiction of service courts and themselves
to try persons accused of any offence against the criminal law of
Canada.
The legislation is being introduced at the present time as it is important
for the protection of dependents and other civilians accompanying the
forces abroad that the extent to which they are subject to Canadian
jurisdiction be clearly defined. In other words, we are trying to create
McGILL LAW JOURNAL
[Vol. 25
the necessary machinery to exercise maximum jurisdiction under all
existing agreements and laws that we can acquire to ourselves in regard
to our people abroad.
The arrangements made by Canada with a number of the countries in
which our forces are or may be stationed enable Canadian criminal law
and procedures to be applied in respect of persons accompanying our
forces as an alternative to having the criminal law and procedures of
the country in which an alleged offence has been committed applied.
In order to secure the benefits of these arrangements we must not only
be in a position –
to exercise effective jurisdiction over such persons but it must also be
clear to the authorities of the foreign country that we have and can
exercise such jurisdiction.21
It is notable that dependents are the only group to which the
Code applies (excluding an alleged spy for the enemy) where there
is no element of real consent to the jurisdiction of military law.
This is contrary to the situation of service personnel who accept
this extra liability as part of their employment and that of other
civilians who normally sign specific agreements and contracts.
I think this is the important fact about this clause –
The third and final group to which the National Defence Act
applies are those who, no longer having any relationship with the
Department of National Defence, remain subject to the Code of
Service Discipline because of an alleged offence comrhitted before
leaving the forces.2 This applies to both civilians and discharged
military personnel. Thus the Code may remain applicable to an
offender even though, between the time of the offence and the
trial, he has ceased to be subject to it. However for most offences,
there is a limitation period of three years from the date of the
offence to the commencement of trial. Nevertheless, for an offence
which would carry with it the death -penalty under the Code,23
there is a continuing liability. In the United Kingdom, the classifica-
tion of camp followers is similar. However, in the United States,
the Supreme Court has held that the jurisdiction of military courts
ends when a serviceman is released from the forces 2 4
2. Jurisdiction
The NATO-SOFA defines a “dependent” as “the spouse of a
member of a force or of a civilian component, or a child of such
21 Supra, note 12, 2009-10.
22R.S.C. 1970, c. N4, s. 55(2).
23Ibid., s. 59; but see R. v. Mallard S.C.M., Feb. 11, 1975. [Note: all S.C.M.
and S.G.C.M. cases are unreported and are available in transcript form from
military authorities.] It is interesting that the death penalty still exists
under the National Defence Act [R.S.C. 1970, c. N4, s. 125(1)] and applies
to civilians by virtue of the QR&O, art. 113.03.
24 Toth v. Quarles 350 U.S. 11 (1955).
1979] CIVILIANS UNDER MILITARY JUSTICE: A CANADIAN STUDY
9
member depending on him or her for support” 5 The Supplementary
Agreement widens the above definition to include:
A close relative of a member of a force or of a civilian component not
falling within the definition contained in subparagraph (c) of paragraph I
of Article I of the NATO Status of Forces Agreement who is financially
or for reasons of health dependent on, and is supported by, shich member,
who shares the quarters occupied by such member and who is present
in the Federal territory with the consent of the authorities of the force
shall be considered to be, and treated as, a dependent within the meaning
of that provision.20
The QR&O has its own definition:
(a) his spouse; and
(b) any other person wholly or mainly maintained by him or in his
custody, charge or care.2 7
The definition of the QR&O may be considered narrower in
its
terms, in view of the Department of National Defence’s policy to
consider a “spouse” as being the legal spouse, and children as the
only legal dependents of service personnel.
When a legal spouse, a “dependent”, or a civilian employee who
has signed a service agreement is charged with an offence on West
German soil he may be arrested by West German authorities. To
decide under which jurisdiction the offence is punishable, the au-
thorities dealing with the case will notify Canadian military au-
thorities who must advise within twenty-one days whether the act
is punishable under Canadian law, and if so, the legal basis on which
the act is “punishable as well ‘as the penalty prescribed.28 Jurisdiction
to try the offence is then decided in accordance with Artiole VII
of the NATO-SOFA 2 9 Generally the host state has jurisdiction over
acts committed within its borders and punishable by its own laws,
while the sending *state has jurisdiction over acts committed within
its territory and punishable under its laws.
The laws of the state of posting are incorporated into Canadian
military law by virtue of section 121 of the National Defence Act.
Therefore, in the case of civilians who accompany the Canadian
Forces, there would be a concurrent jurisdiction. In such a case the
NATO-SOFA provides the following rules:
(a) The military authorities of the sending State shall have the primary
right to exercise jurisdiction over a member of a force or of a
civilian component in relation to
25 199 U.N.T.S. 67, Art. I(1)(c).
20481 U.N.T.S. 262, Art. 2(2)(a).
27 QR&O, art. 105.05.
28481 U.N.T.S. 262, Art. 17.
‘9199 U.N.T.S. 67.
McGILL LAW JOURNAL
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(i) offences solely against the property or security of that State,
or offences solely against the person or property of another
member of the force or civilian component of that State or of
a dependent;
(ii) offences arising out of any act or omission done in the per-
formance of official duty.
(b) In the case of any other offence the authorities of the receiving
State shall have the primary right to exercise jurisdiction3 0
Hence one of two situations may arise. Where Canada has
primary jurisdiction, the case will be disposed of by a Canadian
service tribunal and the results communicated to the appropriate
foreign authorities. 31 When an accused has been so tried and acquit-
ted, or has been convicted and has served his sentence, or has been
pardoned, he may not be tried again for the same offence by the
authorities of the host state.3 2 Where Canada has concurrent juris-
diction, Canadian authorities may request West German authorities
to waive their primary right to prosecute.3 Provisions exist under
both agreements to expedite the disposal of offences; and in prac-
tice, West German jurisdiction over Canadian civilians has always
been waived.34
A second group of civilians includes those working for an
armed forces unit who have not agreed to be governed by the Code
of Service Discipline, common law spouses or other persons coha-
bitating with (but not legally related to) military personnel, and
relatives visiting service personnel abroad. Although this hybrid
group may be covered by the provisions of the NATO-SOFA and the
Supplementary Agreement, they do not fall under the Code of
Service Discipline according to the QR&O.
When such persons are accused before the laws of the host
country, Canadian military authorities will be notified. However,
unlike the situation of other civilians attached to a military com-
ponent, Canadian authorities must decline jurisdiction since they
are not in a position to apply the Code of Service Discipline to
these individuals. With no alternative but to appear before the
host tribunals, these persons’ only recourse lies in the following
provisions of the NATO-SOFA:
30 Ibid., Art. VII (3).
31Ibid., Art. VII (6)(b).
32 Ibid., Art. VII (8).
-3 Supplementary Agreement, 481 U.N.T.S. 262, Art. 19(1).
34Ibid., Art. 19(3) provides that a waiver once granted may be recalled
where “major interests of German administration of justice make im-
perative the exercise of German jurisdiction”.
1979] CIVILIANS UNDER MILITARY JUSTICE: A CANADIAN STUDY
11
Whenever a member of a force or civilian component or a dependent is
prosecuted under the jurisdiction of a receiving State he shall be entitled
(a) to a prompt and speedy trial;
(b) to be informed, in advance of trial, of the specific charge or charges
made against him;
(c) to be confronted with the witnesses against him;
(d) to have compulsory process for obtaining witnesses in his favour,
if they are within the jurisdiction of the receiving State;
(e) to have legal representation of his own choice for his defence or to
have free or assisted legal representation under the conditions pre-
vailing for the time being in the receiving State;
(f) if he considers it necessary, to have the services of a competent in-
terpreter; and
(g) to communicate with a representative of the Government of the
sending State and, when the rules of the court permit, to have such
a representative present at his trial.35
Upon careful reading of these provisions it becomes obvious that
these protections are of a tenuous nature. There is no definition of
“prompt and speedy” and nothing that ensures the opportunity to
cross-examine witnesses. Furthermore the accused must bear the
expense of an interpreter which in practice is prohibitive. Finally,
freedom to communicate with one’s own government does not
guarantee a fair trial.
B. Offences
While the preceding section has established the legal basis for
jurisdiction over the person, this section analyses the foundations
for jurisdiction over the offence. In the National Defence Act, three
main sections incorporate or create offences which apply to civi-
lians:
(1) the general provision –
(2) offences against Canadian laws –
(3) offences against foreign law –
A “service offence” is defined in section 2 of the National Defence
Act as an “offence under this Act, the Criminal Code, or any other
Act of the Parliament of Canada committed by a person while
subject to the Code of Service Discipline”. 6
1. Scope of the service offence
section 120; and
section 119;
section 121.
Section 119 provides:
Any act, conduct, disorder or neglect to the prejudice of good order and
discipline is an offence….
W199 U.N.T.S. 67, Art. VII (9).
36 R.S.C. 1970, c. N4, s. 2.
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Subsection 119(3) further provides that the contravention by any
person of:
(a) any of the provisions of this Act;
(b) any regulations, orders or instructions published for the general
information and guidance of the Canadian Forces or any part
thereof; or
(c) any general, garrison, unit, station, standing, local or other orders,
is an act, conduct, disorder, or neglect to the prejudice of good order
and discipline.
Although worded to be particularly applicable to service per-
sonnel, this is the first major category of liability for civilians under
the National Defence Act and is comparable to provisions in many
of the world’s military codes. Here the word “neglect” refers to a
failure to perform a duty imposed by law, practice, or custom, of
which the accused knew or ought to have known. The words “good
order” are sufficiently wide to include almost any disturbance or
act prejudicial to good order and discipline. There is a restriction,
however, in that the act must be prejudicial to both good order and
discipline. The justification for such a blanket provision would
appear to be based on the principle that dependents overseas are
part of the military community and as such, they accept military
controlY
The QR&O state that:
Where a contravention mentioned in subsection (3) is the basis of a
charge, all that the prosecutor needs to prove is:
(i) that the alleged contravention actually occurred, and
(ii) in the case of a breach of regulations, orders or instructions under
(3)(b) or (c), that the regulation, order or instruction was issued
and was published in the manner prescribed. …
Upon proof by the prosecutor that the regulation, order or instruction
was issued and promulgated in the manner so prescribed, the accused
is deemed to have knowledge of its contents, and it is no defence for
him to say that he was unaware of its existence or was ignorant of its
contents.0 8
Typical matters which might commonly be charged and alleged
under this section are improperly possessing property without
evidence of actual theft, giving a false name to a military policeman,
or driving a motor vehicle while not in possession of a driver’s
licence3 9 As a result, when a civilian is charged under section 119,
37Fay, Canadian Military Criminal Law (1974)
(unpublished thesis, Dal-
housie University), 39.
38 QR&O, art. 103.60, n. (D).
39R. v. Johnson S.G.C.M., Oct. 1, 1974; R. v. Winterton S.G.C.M., Mar. 25,
1975.
1979J CIVILIANS UNDER MILITARY JUSTICE: A CANADIAN STUDY
13
the service tribunal applies its general military knowledge of what
“good order and discipline” are required in given oircumstances
and decides whether the conduct, disorder, or neglect complained
of was prejudicial to both good order and discipline.
2. Offences against other Canadian law
Section 120 of the National Defence Act provides:
(1) An act or omission
(b) that takes place out of Canada and would, if it had taken place
in Canada, be punishable under Part XII of this Act, the Criminal
Code or any other Act of the Parliament of Canada,
is an offence under this part and every person convicted thereof is
liable to suffer puishment as provided in subsection
(2).
The effect of this section is to designate all civil and criminal
offences described in federal statutes as service offences. Under
the National Defence Act, acts proscribed by provincial statutes
(for example, a highway act) are not service offences and cannot
be tried by service tribunals. Section 119, however, would allow a
comparable offence to be created in relation to the territory of a
Canadian Forces base. It may be noted that in section 120(1)(b) of
the National Defence Act, the Criminal Code” and federal acts of
Parliament are complementary. Thus an act which would not be an
offence under the Criminal Code may be an offence under the
National Defence Act. The wide scope of this provision is illustrated
by the following example. Under section 158 of the Criminal
Code, homosexual acts between consenting adults no longer consti-
tute offences. However, under section 83 of the National Defence
Act, any civilian behaving in a “disgraceful manner” could be so
charged:
Every person who behaves in a cruel or disgraceful manner is guilty
of an offence and on conviction is liable to imprisonment for a term not
exceeding 5 years or to less punishment.
3. Offences against foreign law
Foreign offences are of special interest in view of their unique
Canadian application to civilian dependents and service workers
posted abroad. The National Defence Act incorporates foreign offen-
ces under section 121 –
a provision that is peculiar to Canadian
military law:
An act or omission that takes place out of Canada and would, under
the law applicable in the place where the act or omission occurred, be
an offence if committed by a person subject to that law, is an offence
40 R.S.C. 1970, c. C-34 as am.
McGILL LAW JOURNAL
[Vol. 25
under this Part, and every person who is found guilty thereof is liable to
suffer punishment as provided in subsection (2).
Thus an act or omission which would be an offence under the
law of the country where the civilian is stationed is an offence
under the Code of Service Discipline even though it would not be
an offence under any law of Canada. The effect of this provision is
to include in military law all the offences of any country where
troops happen to be stationed.
In terms of contemporary military codes this section is unusual.
Neither Britain nor the United States has made foreign law a part
of its military law. Thus the military tribunals of these countries
only have jurisdiction if the act or omission complained of is also
an offence under the laws of their country. The original National
Defence Act did not provide for the incorporation of foreign offen-
ces into Canadian military law. Indeed, no such provision existed in
any of the acts on which Canadian military law is based.
This provision was imposed in two stages. The section creating
these offences was enacted in 195241 when Canadian troops were
first dispatched outside Canada for lengthy peacetime service. The
reason for this enactment was to ensure that offences against
foreign law could be adequately dealt with by Canadian service
courts, and that service personnel would not be tried by foreign
courts – memories of World War II were still vivid in Canadian
minds. Dependents and other civilians were later included under
this provision by the 1954 amendments to the National Defence
Act.42
It is important to note the difference between section 121 of the
National Defence Act and section 6(2) of the Criminal Code with
regard to employees of the Public Service who commit offences while
serving outside Canada:
Every one who, while employed as an employee within the meaning of
the Public Service Employment Act in a place outside Canada, commits
an act or omission in that place and that, if committed in Canada, would
be an offence punishable by indictment, shall be deemed to have com-
mitted that act or omission in Canada.43
Therefore, under the Criminal Code, to be prosecuted under
Canadian law, public servants not under military jurisdiction (for
example, those working for the Department of External Affairs)
would have to commit an indictable offence under Canadian law.
41 S.C. 1952-53, c. 24, s. 5(1).
42 S.C. 1953-54, c. 13, s. 16.
43 Criminal Code, R.S.C. 1970, c. C-34, s. 6(2).
1979] CIVILIANS UNDER MILITARY JUSTICE: A CANADIAN STUDY
15
It is interesting that civilian employees of the Department of Na-
tional Defence are covered by the terms of the Public Service Em-
ployment Act44 and would, if the National Defence Act were not
applicable, normally come under the provisions of section 6(2).
Nevertheless they have been excluded from the narrower head of
liability by the much broader provisions of the National Defence
Act.
For comparison’s sake, it is equally relevant to look at section
5(2) of the Criminal Code which states:
Subject to this Act or any other Act of the Parliament of Canada, no
person shall be convicted in Canada for an offence committed outside
of Canada.
Thus the National Defence Act considerably extends the liability of
persons under the Code of Service Discipline, compared to that of the
ordinary citizen abroad, by giving military courts the jurisdiction
to try persons subject to the Code even when such persons would
not normally be tried in Canada.
Notwithstanding these very wide provisions, section 231 of the
National Defence Act does provide a reserve authority whereby
Canadian criminal courts may step in when military service tri-
bunals have proved inadequate in a given situation:
Where a person subject to the Code of Service Discipline does any act
or omits to do anything while outside Canada which, if done or omitted
in Canada by that person would be an offence punishable by a civil court
that offence is within the competence of, and may be tried and punished
by, a civil court having jurisdiction in respect of such an offence in the
place in Canada where that person is found in the same manner as if
the offence had been committed in that place, or by any other court to
which jurisdiction has been lawfully transferred.
It
is debatable whether any of the provisions of the National
to any civilian employee or
Defence Act should be applicable
dependent in light of pertinent provisions of the Criminal Code.
Section 4 provides in relation to the Canadian Forces:
Nothing in this Act affects any law relating to all or any of the Canadian
Forces.
Section 2 defines “military” as follows:
“military” shall be construed as relating to all or any of the Canadian
Forces;
“military law” includes all laws, regulations or orders relating to the
Canadian Forces;
4 R.S.C. 1970, c. P-32 as am. See the definitions of “employee” and “Public
Service” in s. 2 which should be read with the provisions of the Public
Service Staff Relations Act, R.S.C. 1970, c. P-35 as am.
McGILL LAW JOURNAL
[Vol. 25
“Canadian Forces” means the armed forces of Her Majesty raised by
Canada [.]
The question here is: Are civilians part of the “Canadian Forces”
or “armed forces”? Since criminal law must be interpreted restric-
tively, it is a moot point whether the terms “military” and “armed
forces” can be extended to include civil employees and dependents.
This is reinforced by the fact that the definitions in the National
Defence Act clearly separate civilians from enlisted personnel by
stating that they “serve with” or “accompany” the armed forces as
opposed to forming “part of” the armed forces. Another view
is that Canadians abroad should be subject to the laws of the
foreign land insofar as they are almost like citizens due to the
length of their postings; in addition, a country’s apparent desire
to “protect” its citizens from allies would be difficult to justify in
diplomatic circles.
A further difficulty in applying the National Defence Act to
civilians lies in the fact that the provision incorporating foreign
law offences only takes into Canadian law the foreign offence itself
and none of the procedural laws that may surround such an offence
in the foreign state. As a result, Canadian military courts are put in
a position where they must enforce a foreign law without its ac-
companying detail.
In summary, it has become clear that civilians fall under a triple
disability; not only are they subject to the laws of Canada, they
are also liable under the laws of the host country and under those
offences created by the National Defence Act. The global effect of
these provisions is that it is incredibly easy to come under one or
another of the provisions in some way; for an act which is not an
offence in Canada might be one in the host country, and if not, it
might still fall under the blanket provisions of section 119.
No attempt will be made at this point to pass judgment on
the desirability of these conditions. Suffice it to say that the limita-
tion of jurisdiction contemplated by Parliament in amending the
National Defence Act in 1954 seems to have had quite an opposite
effect. The situation might be said to have a limiting effect if a
civilian came under the laws only of Canada, or only those of the
host state, or only those created under the National Defence Act.
But rather, as it stands in 1979, civilian dependents and employees
come under all three.
19793 CIVILIANS UNDER MILITARY JUSTICE: A CANADIAN STUDY
17
C. Penalties
“Only those punishments prescribed in paragraphs 125(1)(a),
(b), (d), and (k) of the National Defence Act shall be imposed by
a Special General Court Martial”45 :
125(1)
(a) death;
(b) imprisonment for two. years or more;
(d) imprisonment for less than two years;
(k) fine [.I
The particularities of sentence and punishment are contained in
sections 125 to 127. In practice, the authority of a Special General
Court Martial to prescribe punishment has been limited to terms
of imprisonment of less than two years and fines up to $500. How-
ever, “[a] civilian may only be committed to undergo imprison-
ment in a service prison or detention barrack on. the authority of
the Chief of the Defence Staff” 6
IV. Application of Canadian military law
A. Rights and disabilities of civilians under the Code of
Service Discipline
At the present time, a civilian charged with an offence under the
Code of Service Discipline while abroad does not enjoy certain of
the rights he would have in Canada. For example, there are no
provisions for bail, no rights regarding the type or fdorm of trial,
no realistic access to -a choice of civilian counsel, no right to a jury
trial, and no access to legal aid assistance. In addition, the range of
sentences that may be pronounced is severely limited in comparison
to that available in ordinary criminal courts. The accused, how-
ever, does benefit “from certain advantages which he would not have
before regular courts in that, as far as possible, the defence and
prosecution are on an equal footing; with regard to the evidence
produced, there are no surprises at the trial.
1. Counsel
After the convening order for a court martial has been signed,
the accused has two options with respect to the selection of defence
counsel. The accused may choose a legally trained officer of the
Office of the Judge Advocate General 7 or he may retain civilian
counsel at his own expense. In the case of a court martial where
45 QR&O, art. 113.04.
41 Ibid., n. (A).
4-1 Ibid., art. 108.26.
McGILL LAW JOURNAL
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the accused has chosen civilian counsel, a military officer may be
assigned to assist civilian counsel with administrative matters.
Where the charge is one of murder, rape, or manslaughter, military
defence counsel is made available immediately upon arrest. How-
ever, this does not affect the accused’s right to choose a civilian
attorney.
The major advantage of choosing a legally trained military officer
is that such counsel will normally have far greater knowledge of the
military and its administration than will civilian counsel. As Fay
has noted:
This knowledge of his, together with his close association with the military
society, often results in the presentation of a defence case that is likely
to be far more effective; for it will be presented within the military
system instead of appearing to challenge it. Criticism of military defence
counsel is sometimes based on the argument that he may not, because of
his military connection, have sufficient independence to adequately re-
present the interests of his service accused, as would a civilian who is
bound by no military considerations. This is not valid. Any military
defence counsel who appears to have placed military considerations
ahead of the interests of the accused will be severely criticized, and a
conviction of his accused in such a case may well be quashed on the
ground of miscarriage of justice. Furthermore, the reputation of counsel
within the military legal fraternity is, as in civilian life, often made as
defence counsel. This factor alone assures a high standard of representa-
tion. 48
2. Access to evidence and witnesses
Prior to the commencement of trial, the accused may review
all the evidence against him. He is given access to all reports which
are relevant to the investigation. The accused and his counsel will
discover from the synopsis4 9 the identity of the witnesses as well
as the evidence to be introduced. Unless suitable notice has been
given before trial, all witnesses in the synopsis are required to be
called by the prosecution so that defence counsel may cross-examine.
At the time of trial, if such a request is reasonable, the accused
may ask for an adjournment to review information presented of
which he had no prior knowledge.
3. Availability of resources
Perhaps one of the greatest advantages of trial within the military
system is the equalizing of resources of both the defence and pro-
secution. Because of this, the Canadian Forces approach has been
advocated for use in the civil system to ensure equality of justice
48 Supra, note 37, 161.
49 See text, infra, p. 24.
1979] CIVILIANS UNDER MILITARY JUSTICE: A CANADIAN STUDY
19
by removing the financial constraints which normally impede an
investigation. The resources of the investigatory and police branches
of the military become openly available to the defence. The defence
may have access to experienced service investigators to locate and
interview witnesses, and expenses are borne by the system. Financial
and technical experts may also be appointed at the defence’s re-
quest.
B. The situation of young offenders
Unfortunately, a major -deficiency of the court martial system
relates to young offenders. To date, presiding judges have chosen
not to apply the provisions of the Juvenile Delinquents Act”, to
juvenile offenders and there are no decisions in the higher courts
on this issue. It
is this writer’s opinion that the rationale for
applying the Juvenile Delinquents Act is based on section 2(e) of
the Canadian Bill of Rights.51 In the court martial decision of R. v.
Mallard,2 the effect of the Canadian Bill of Rights on the National
Defence Act was successfully raised. The principle of this decision,
although it involved a serviceman, remains valid for civilians and
should be made to operate to protect the rights given to juvenile
offenders under the Juvenile Delinquents Act. In allowing a plea
under section 2(e) -in Mallard, the presiding judge held:
I find there is nothing in the National Defence Act which specifically
contains an express statutory declaration that its provisions shall operate
notwithstanding the Canadian Bill of Rights. … In my view, while”I
am bound to note the limitation period set out in section 59 of the
National Defence Act, I must note it and apply it in such a way so as to
ensure that the accused is not denied a right enshrined in the Canadian
Bill of Rights; that is the right of equality before the law. In so doing
I find s. 59 of the National Defence Act to be inapplicable to the degree
it purports to set a greater limitation period for an offence contrary
to the Criminal Code that is punishable under the National Defence Act
than would in all events, apply to such an offence if tried under the
Criminal Code.53
The discussion that follows centers on how military courts have
limited the principle of section 2(e) of the Canadian Bill of Rights
and refused to apply the Juvenile Delinquents Act to juveniles
charged under the National Defence Act. The case of R. v. Fey-
predates Mallard by one week and it is interesting to speculate on
50 R.S.C. 1970, c. J-3, as am. by S.C. 1972, c. 17, s. 2(2).
51R.S.C. 1970, App. III.
52Supra, note 23.
5
CIbid.,
5S.G.C.M., Feb. 4, 1975.
74:
McGILL LAW JOURNAL
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what might have happened had Mallard been decided first. It was
held in Fey that the sixteen year old accused did not come within
the ambit of the Juvenile Delinquents Act because that act was
superseded by the provisions of the National Defence Act, not-
withstanding the Canadian Bill of Rights. In the later cases of R. v.
Olson 5 and R. v. Arsenault,6 6 the judges chose to follow the reason-
ing in the Fey case, rather than the Mallard decision. 7
In both the Olson and Arsenault decisions the accused were
fifteen years of age and charged with indictable offences. In both
instances defence counsel made pleas in bar of trial with reference
to the rights of the accused pursuant to the Canadian Bill of Rights
and the Juvenile Delinquents Act, but the motions were dismissed
and the youths were subsequently found guilty at the trial. In
summary, the reasons cited were that:
(1) sections 4 and 9 of the Juvenile Delinquents Act are matters of
procedure and do not of themselves bar’ the trial of juveniles
in a Special General Court Martial, nor do they dictate the
procedures of the court;
(2) the Juvenile Delinquents Act does not bar the trial of all juve-
niles by courts of criminal jurisdiction;
(3) section 55 of the National Defence Act covers all persons ac-
companying the forces and is not restricted to adults only;
(4) there is no denial of equality before the law since the youths
have been treated like any other juvenile dependents falling
within the provisions of section 55 of the National Defence
Act.58
While it is possible to accept some of the disadvantages of military
tAals, the decisions in.Olson and Arsenault are difficult to justify.
It is both surprising and unfortunate that these rulings were never
appealed.
In Canada, the Juvenile Delinquents Act provides for an excep.
tional procedure with respect to all juveniles up to the ages of sixteen,
0 S.G.C.M., July 17, 1975.
6 S.G.C.M., Nov. 6, 1975.
7The effect of R. v. Mallard would appear to have been reversed by the
recently reported case of Re Mackay & The Queen (1977) 78 D.L.R. (3d) 655
(F.C.T.D.), where it was held that members of the armed services are
subject to the provisions of the National Defence Act regarding trial by court
martial notwithstanding the guarantee of equality before the law provided
for in the Canadian Bill of Rights.
88These reasons were gleaned from the transcripts of the Olson and
Arsenault decisions, supra, notes 55 and 56.
19792 CIVILIANS UNDER MILITARY JUSTICE: A CANADIAN STUDY
21
in most provinces, and eighteen in New Brunswick and Quebec.
Thus, before a juvenile can be indicted before an ordinary court,
there must be a hearing in a juvenile court:
Where the act complained of is, under the provisions of the Criminal
Code or otherwise, an indictable offence, and the accused child
is
apparently or actually over the age of fourteen years, the court may, in
its discretion, order the child to be proceeded against by indictment in
the ordinary courts in accordance vith-the provisions of the Criminal
Code in that behalf; but such course shall in no case be followed unless
the court is of the opinion that the good of the child and the interest of
the community demand it.
The court may, in its discretion, at any time before any proceeding has
been initiated against the child in the ordinary criminal courts, rescind
an order so made.59
For the juvenile, the advantages of juvenile court are that his
convictions are not recorded, punishment is more lenient, and the
trial proceedings are less formal. Since the Act does not threaten to
undermine the effectiveness of the’ National Defence Act (and, in-
deed, would only mitigate its harsh consequences on juveniles),
there appears to be no valid reason to deny these advantages to
Canadian juveniles abroad. Further, the Juvenile Delinquents Act is
a federal statute and as such is incorporated under section 120 of
the National Defence Act. In addition, it may be argued that iection
4 of the Military Rules of Evidence provides that where there is
no rule of evidence on a matter before a court martial, the ques-
tion is to be decided in the same manner as it would be before
a civil court.
The arguments against applying the Juvenile Delinquents Act
are based on the provisions of sections 55 and 155 of the National
Defence Act, giving jurisdiction to Special General Courts Martial
over all dependents. However, taking into account the principle
enunciated in Mallard, there is nothing in the National Defence Act
which contains an express statutory declaration that its provisions
operate notwithstanding the Canadian Bill of Rights. Consequently,
the National Defence Act cannot be interpreted to abrogate special
rights conferred on juveniles under another federal statute without
a specific provision to that effect.
The other argument made is that a juvenile court is a provincial
court established under a provincial statute and therefore has no
extra-territorial jurisdiction. This is easily defeated on the ground
09 R.S.C. 1970, 2. J-3, s. 9.
w0 P.C. 1959-1027 of Sept. 9,1959, SOR/59-310, 93 Can. Gaz. Pt 11 769.
McGILL LAW JOURNAL
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that the Juvenile Delinquents Act is a federal statute which super-
sedes any provincial statute. Furthermore, section 38 provides:
This Act shall be liberally construed in order that its purpose may be
carried out, namely, that the care and custody and discipline of a juvenile
delinquent shall approximate as nearly as may be that which should be
given by his parents, and that as far as practicable every juvenile delin-
quent shall be treated, not as criminal, but as a misdirected and mis-
guided child, and one needing aid, encouragement, help and assistance.
But the overriding argument would appear to be in section 4 of
the Act, which speaks of the exclusive jurisdiction of the juvenile
court:
Except as provided in section 9, the juvenile court has exclusive juris-
diction in cases of delinquency including cases where, after the com-
mitting of the delinquency, the child has passed the age limit mentioned
in the definition “child” in subsection 2(1).
Section 9 deals with the situation where a juvenile court authorizes
a regular or adult court (such as a Special General Court Martial)
to handle the case. It follows that the Juvenile Delinquents Act bars
all trials of juveniles by criminal courts without the prior authori-
zation of a juvenile court. Thus it would appear that in both Olson
and Arsenault the presiding judge erred in law by holding that the
provisions of the Juvenile Delinquents Act were procedural in nature
and of solely provincial application.
V. Procedure
The purpose of this section is to describe the manner in which
a service court disposes of offences by way of court martial. The
Judge Advocate General is appointed by the Governor in Council.
He is in a unique position as a member of the armed forces who is
responsible directly to the Minister of National Defence for the
administration of justice and not to the Chief of Defence Staff.
The Judge Advocate General and his staff, consisting of qualified
legal officers, deal with all legal matters affecting the forces. Each
major headquarters has a representative to serve as legal adviser
to the commander. However, the supervision of military law is the
most important responsibility of the Judge Advocate General and
his authority extends to both service personnel and civilians. Pro-
ceedings against accused service personnel and civilians differ in
several areas although the legal principles are the same. This
section will focus only on those rules applicable to civilians.
The arrest of persons without warrant under the National
Defence Act is effected under three separate provisions. Generally
persons are subject to arrest as provided in section 132(1):
1979] CIVILIANS UNDER MILITARY JUSTICE: A CANADIAN STUDY
23
Every person, who has committed, is found committing, is suspected of
being about to commit, or is suspected. of or charged under this Act
with having committed a service offence, may be placed under arrest.
For those persons who have ceased to be subject to the Code of
Service Discipline, section 133(3) provides in part:
Every person who is not an officer or man, but who was subject to the
Code of Service Discipline at the- time of the alleged commission by
him of a service offence may without warrant be arrested or ordered to
be arrested by such a person as a commanding officer may designate
for that purpose.
The arrest and transfer of dependents in foreign countries is cover-
ed by the special provisions of section 230:
The dependents, as defined by regulation, of members of the Canadian
Forces on service or active service in any place out of Canada who are
alleged to have committed an offence under the laws applicable in such
place may be arrested by such officers and men as are appointed under
section 134 and may be handed over to the appropriate authorities of
such place.
The QR&O provide that civilians0 ‘ who are subject to the Code
of Service Discipline are not liable to summary trial by a com-
manding officer.0 2 A civilian can only be tried by a General Court
Martial if the offence is a military one. Where the offence is pri,
marily of a civilian nature, the accused must be tried by a Special
General Court Martial,6 which is held only outside Canada and
consists of a presiding judge who is designated by the Minister.4
Pursuant to section 163 of the National Defence Act, the accused
civilian may object to the presiding judge for any reasonable cause
and it is the presiding judge himself who hears and disposes of the
objection. If the objection is allowed, he will adjourn and inform
the officer directing the proceedings, who, in turn, will then inform
the Minister. The prosecutor has no right to object to the presiding
judge. The judge’s decision is recorded in the minutes of the pro-
ceedings. If there is no objection, the judge swears himself in before
the proceedings commence according to the oath prescribed in the
QR&O.6 r5
In addition to the presiding judge, the proceedings must include
an individual to direct the trial of civilians by the Special General
61The term “civilian” is defined in the QR&O, art. 113.01.
2 Ibid., art. 102.19.
63Ibid., art. 113.03.
04The presiding judge must be or have been a judge of a Superior Court
in Canada or a barrister or advocate of at least ten years’ standing. See the
National Defence Act, R.S.C. 1970, c. N4, s. 155.
6 QR&O, arts. 113.11 and 113.12.
McGILL LAW JOURNAL
[Vol. 25
Court Martial. This may be the Minister, the Chief of Defence
Staff, a commanding officer or any other authority who may be
appointed by the Minister.”
The Special General Court Martial was originally intended to
give the accused the opportunity of having a “trial judge” whose
background and experience would be comparable to a criminal
court judge. However, a review of Special General Court Martial
transcripts shows that generally a representative of the Judge
Advocate General’s office sits, although on at least one occasion a
justice of the Supreme Court of Manitoba was appointed to try
a dependent.6 7
The prosecutor for each Special General Court Martial may be
a military officer above the rank of corporal, and is appointed by
or under the authority of the officer who has directed the trial by
court martial. 8 Nevertheless, with the concurrence of the Judge
Advocate General, counsel may be appointed ‘to aot as prosecutor.
The accused has no right to object to the prosecutor 0
A case coming before a court martial will first be evaluated
within the unit the civilian is accompanying. The alleged offence
will be investigated and the results communicated to the command-
ing officer who has the power to direct a trial by Special General
Court Martial. When the application is received, the commanding
officer must decide whether the charges should be proceeded with.
If there does not appear to be sufficient evidence to justify a trial,
he may dismiss the charge and so inform the accused. 0 However,
when the officer decides that the charge should be proceeded with,
a charge sheet is prepared and the available evidence is gathered
together in a document known as a “synopsis”. The synopsis is
not admissible as evidence. It serves only to establish whether there
exists a prima facie case against the accused and to allow the
accused and his counsel to know the nature of the evidence to be
introduced. The accused may make a written statement to accom-
pany the synopsis to the higher authority in order to disclose an
absolute defence to the charge or a plea in bar of trial.71
66 Ibid., art. 113.06.
6 7 Deniset J. in the case of R. v. MacDonald S.G.C.M., Apr. 1974.
080R&O, art. 113.107.
69 Ibid., art. 113.11.
TO Ibid., art. 113.09. The commanding officer has the discretion to dismiss
the charge for any other reason.
71 R.S.C. 1970, c. N4, s. 56.
1979J CIVILIANS UNDER MILITARY JUSTICE: A CANADIAN STUDY
25
Contrary to his position in “civil” criminal courts, the accused
civilian does not have a right to elect the form of trial. There is no
distinction made between summary, indictable, eleotive, or civil
offences in this respect. There is no preliminary hearing and all
offences are tried by judge alone. This is explained by the fact
that the National Defence Act incorporates the offences of the Cri-
minal Code and of the host country without any of their procedural
aspects. The absence of a preliminary inquiry is not as prejudicial
as it might initially appear to be, in view of the provisions for com-
plete disclosure which prevail under the military system. It is note-
worthy, however, that service personnel have a limited right of
election under the Code of Service Discipline.
At the present time, the National Defence Act does not have any
provision for interim judicial release pending trial by court martial.
However, in practice, where the offence is not of a particularly
serious nature, the accused may be released on his own recognizance.
The unfolding of a court martial closely resembles that of any
Canadian criminal court. The prosecutor presents evidence through
the examination of witnesses, followed by cross-examination by the
accused or his counsel. The judge is under the same constraints
as any judge in a civilian criminal court in that he may question
the witnesses only to clarify matters that have remained obscure.
Once all the evidence has been presented, the accused may make a
motion that there is no prima facie case. If this is not done, the
court may, on its own motion, request the accused to do so. Should
the motion be successful, the accused ‘is found not guilty.
The presentation of the case for the defence and the rebuttal
again follow the same rules as in ordinary criminal courts. Although
rarely exercised, the court has the power to call witnesses
to
clarify or amplify existing evidence. Following the completion of
the hearing of evidence, the prosecutor and defence counsel sum
up their cases. An element unique to the system is that the accused
is entitled to have the last word in court whether- or not he has
brought any evidence. The presiding judge then retires to decide
alone any matter or question to be determined. After deliberating,
he returns and announces the verdict. If there is a finding of guilt,
the accused may present evidence and address the court to mitigate
the penalty, which is then determined by the court. Trials are
normally open to the public and all proceedings are recorded by a
court reporter, including the judge’s decision. There is no separate
written opinion handed down at a later date.
McGILL LAW JOURNAL
[Vol. 25
Prior to the enactment of the National Defence Act, there was no
right of appeal to civilian courts or any other judicial body. The
National Defence Act has remedied the situation by providing a
right of appeal to the Federal Court with respect to the legality
of any or all of the findings, and the legality of the whole or part
of the sentence. 72 Section 198 further provides that such right of
appeal is deemed to be in addition to, and not in derogation of, any
rights that the accused has under the laws of Canada; that is, re-
course may also be had to the Supreme Court under the same
conditions as any civil or criminal offence. The severity of the
sentence may be appealed but only to the administrative bodies of
the Canadian Forces. The period in which an appeal may be lodged
is fourteen days. 3
The Court Martial Appeal Board (a division of the Federal
Court) has the general powers of any civilian court of appeal and
is constituted by both Federal Court judges and judges appointed
from superior courts of criminal jurisdiction from the provinces.
It should be noted that the Crown has no right of appeal against an
acquittal.
The appellant may appear in person before the Court Martial
Appeal Board if he obtains the consent of the chairman or the
presiding member, although this is requested only rarely. If he
desires to be represented, it is his responsibility to retain civilian
counsel. At this level, counsel will not be provided at the expense
of the Crown except where, because of the serious nature of the
offence and the financial circumstances of the appellant, it is
considered necessary in the interests of justice, or where an im-
portant question of law which needs to be settled is raised. A
serving officer with legal qualifications may appear on behalf of the
Crown, although it is possible to have civilian counsel appointed by
the Minister of Justice.
The Appeal Board has the following options: it may dismiss the
appeal or quash the conviction, substitute a conviction on a lesser
included offence, or direct a new trial. Should the Board rule in
favour of a new trial, the Minister may dispense with such trial
where, for example, in the cases of offences overseas, the witnesses
have dispersed. This power is discretionary; a result of its use is
the release of the appellant from any further proceedings by the
services. When an appellant has been successful in whole or in part
72Ibid., s. 197.
73 Ibid., s. 199(1) and (3).
1979] CIVILIANS UNDER MILITARY JUSTICE: A CANADIAN STUDY
27
on his appeal or where his counsel was appointed by the Minister
of Justice, the Minister may order that appellant’s costs be paid by
the Crown.
The question has been raised as to whether or not the trial judge
need give reasons for his decision. A case in point is that of R. v.
MacDonald.7 This case involved the sixteen year old dependent son
of an armed forces officer, accused inter alia of. robbery and joy
riding under sections 55 and 120 of the National Defence Act. The
issue to be decided was whether or not the trial judge, sitting at a
Special General Court Martial in Lahr, West Germany, was re-
quired to give his reasons for finding the accused guilty.
The majority of the Supreme Court of Canada upheld the Court
Martial Appeal Board’s decision. 5 Laskin C.J. stated that the reasons
for judgment given were “highly desirable”:
These considerations and others that could be mustered go to show what
is the preferable -practice, but the volume of criminal work makes an
indiscriminate requirement of reasons
impractical, especially in pro-
vincial criminal courts, and the risk of ending up with a ritual formula
makes it undesirable to fetter the discretion of trial Judges…
It does not follow, however, that failure of a trial Judge to give reasons,
not challengeable per se as an error of law, will be equally unchallengeable
if, having regard to the record, there is a rational basis for concluding
that the trial Judge erred in appreciation of a relevant issue or appre-
ciation of evidence that would affect the propriety of his verdict.’ 6
However, Spence J. (dissenting) noted:
I am in agreement with the statement of the Chief Justice that the mere
failure of a trial judge to give reasons in the absence of any statutory
or common law obligation to give them does not raise a question of law
and that such a statutory obligation would be most fettering especially
when one considers the enormous number of trials which must be
handled by provincial court judges in the ordinary carriage of their
official duties.
I think it is relevant, however, to point out that in this particular case
Deniset J. was not acting as a provincial court judge nor even as a
judge sitting in assize but was a Special General Court Martial appointed
by the Minister of National Defence for the purpose of carrying out the
trial of this accused youth. The trial lasted five days and it is more
than regrettable that Deniset J., presiding as such Special General Court
Martial did not devote the few minutes necessary to dictate reasons for
judgment.’
74 (1976) 9 N.R. 271 (S.C.C.).
75 The Board had decided that the failure of the trial judge to give reasons
was not in itself a sufficient reason to quash the conviction.
l0 Supra, note 74, 277.
77Ibid., 280.
McGILL LAW JOURNAL
[Vol. 25
It is indeed to ‘be hoped that judges, for the reasons given by
Spence J., heed such advice and substantiate their judgments in
the future.
VI. Conclusion and recommendations
In assessing the impact of the application of military law to
civilians, the question remains as to what policy Canada should
adopt vis-h-vis its citizens accompanying the armed forces outside
its boundaries. In the 1950’s the immediate problem was dealt with
by enacting amending legislation to “include” such civilians under
a military code of justice rather than develop a civilian-oriented
policy. Today a comprehensive civilian policy should take into ac-
count the following factors:
(1) diplomatic relations between Canada and foreign governments;
(2) the number of civilians concerned;
(3)
the length and number of postings which may occur within a
given military or civilian career;
(4) the quasi-permanent nature of Canadian presence abroad;
the fact that civilians are not part of the military establishment.
(5)
With these considerations
in mind, alternative solutions which
might be available to define the legal status of civilians serving
with and accompanying the forces will be examined.
At present the one main advantage of having Canadian military
courts try camp followers is that trial under Canadian military
law does not place the accused in an unfamiliar foreign court
situation with different laws, language, sympathies, and customs.
It is undeniable that the families of service personnel and civilian
support staff are essential to the success of the Canadian Forces
operations abroad. However, this is not necessarily a justification
for the wholesale application of military law to a group of civilians
who are there by necessity rather than by choice.
There would appear to be no international prohibition in apply-
ing ordinary Canadian criminal law, as opposed to military criminal
law, to citizens accompanying the Canadian Forces abroad. Ac-
cording to the NATO-SOFA and the Supplementary Agreement,
Canadian authorities have jurisdiction in those areas specified under
the treaties. In practice, the host country’s jurisdiction is usually
waived in favour of the sending or home country and the case is
left for Canadian authorities to dispose of –
unless the accused
is not covered by the Code of Service Discipline. There is no re-
quirement in either agreement that prosecution be by military
tribunal.
1979] CIVILIANS UNDER MILITARY JUSTICE: A CANADIAN STUDY
29
The proposal of the United States for the extra-territorial appli-
cation of criminal laws which would affect civilians accompanying
the armed forces overseas is of particular interest to Canada because
it offers a viable alternative to military jurisdiction over Canadian
civilians abroad. Consequently, it is proposed that for camp follow-
ers abroad, Canadian military jurisdiction be replaced by com-
plete Canadian civil jurisdiction, notwithstanding that certain mili-
tary facilities might continue to be used to prevent expensive du-
plication of services.. The enactment of such a proposal providing
for the application of the Criminal Code in its entirety and the
common (and civil) law would ensure equality before the law. for
all Canadian civilians.
A second argument in favour of a non-military system woud be
the constitutional protections and safeguards afforded under the
Canadian Bill of Rights, certain of which are absent in military
courts. In addition, this proposal would eliminate inconsistencies
in the application of criminal laws abroad. The effect of this pro-
posal would be to require an updating of the present system: the
National Defence Act could still be retained with respect to camp
followers, but section 119 (the blanket provision) and section 121
(incorporating foreign offences) should be inapplicable to civilians.
In 1954, the Minister of Defence asserted that the purpose of
acquiring jurisdiction over civilians was to permit the exercise of
some form of control over Canadian nationals within a military
unit with regard to foreign authorities, especially when the best
interests of Canadians were at stake. This principle is sound and
the proposed revisions would support it. Thus the major reforms
of the revision would comprise:
(1) the incorporation of the whole of the Criminal Code with
certain adaptations as specified in (2), (4) and (5) below;
(2) the enacting of legislation reinforcing the application of the
Juvenile Delinquents Act;
(3) the operation of the common (or civil) law with respect to
civil offences, rather than local foreign law;
(4) the appointment of non-military judges;
(5) the adoption of a limited jury system.
The reason for incorporating the Criminal Code in its entirety,
as opposed to only the -offences, is self-evident in view of earlier
comments and would ensure that the accused is given the same
rights and treatment as he would enjoy in Canada. With the con-
tinued operation of the National Defence Act, there would be no
reason to discontinue present benefits under the military system.
McGILL LAW JOURNAL
[Vol. 25
The Juvenile Delinquents Act should be made applicable
to
young offenders overseas and it is proposed that the age limit be
raised to eighteen years for all (as in Quebec and New Brunswick).
Since young dependents may be from any one of the ten provinces,
all should be given optimum rights, even if this may be slightly more
favourable to some.
The application of the common (or civil) law with respect to
civil offences would be a viable alternative to incorporating the
foreign law and probably acceptable to the host country since the
law, although not identical, would at least be parallel. If need be,
the statutes of one of the Canadian provinces might be suitably
applied to fill any gaps.
Of paramount importance is the need to appoint non-military
judges to try civilian cases. This would be in keeping with the
original intention of Parliament that the accused be given the op-
portunity to be heard before a judge with a non-military back-
ground and experience, and would also convey the impression that
justice be not only done but seen to be done.
The adoption of a limited jury system (where allowable in the
civil system) would permit the accused the right to elect (or be
compelled to elect, as the case may be) a jury trial. Reducing the
number of jurors to six, as in the Northwest Territories, would
take into account the reduced size of the Canadian population
at a given post. There could be biannual sessions when all jury
cases would be heard. Provisions for interim judicial release could
be suitably enlarged or modified to accommodate such a situa-
tion. It is further suggested that section 457 offences in the Criminal
Code be appropriately tried in Canada, again in keeping with the
spirit of the 1954 amendments. It is not possible to study all the
modifications that might be needed in this regard, but on balance
these would be relatively minor.
Therefore, in view of the above observations, it is recommended
that serious consideration be given to modifying the applicability
of the National Defence Act with respect to civilians –
not to
remove them from the control of Canadian law, but rather to make
the law as appropriate as possible to their civilian stfatus. The
American proposals to make national laws apply extra-territorially
are especially compatible with the present system and should not
be overlooked by our Canadian legislators.
A number of issues have been raised, criticisms expressed, and
changes advocated, but nevertheless the military system as it pre-
sently operates may be said to favour the civilian insofar as he or
1979] CIVILIANS UNDER MILITARY JUSTICE: A CANADIAN STUDY
31
she is not thereby subjected to an indigenous system of law while
abroad. In retrospect, the main observation is that the possibilities
of “getting caught” are broad indeed; however, once within the
system, the accused enjoys advantages which, in many instances,
outweigh the harshness of the charging provisions. Notable in this
respect is the equality of defence and prosecution before the court.
It may be said that Canadian military law is in need of a
maturing process. On the whole it is good law, and the military are
well served by it, but the civilians themselves could be better
served. This paper takes the position that sections in the Nationial
Defence Act in relation to civilian employees and dependents are
unnecessarily wide and are neither justified nor required today.
These sections may have appeared appropriate in the past, but the
cases of Fey,78 Olson,”9 and Arsenault 0 raise serious questions as
to their continuing validity. Departmental and legislative re-evalua-
tion should take into consideration the fact that a deoision to change
the iaw must involve not only military interests but also the private
interests of the civilians concerned. The above proposals for
change are consistent with these factors and would enhance the
administration of justice for a significant group of Canadians.
78 Supra, note 54.
79 Supra, note 55.
8o Supra, note 56.
