Department of National Defence

Department of National Defence

June 06, 2008 15:01 ET

Department of National Defence Introduces Amendments to the National Defence Act

OTTAWA, ONTARIO--(Marketwire - June 6, 2008) - The Honourable Peter Gordon MacKay, Minister of National Defence and Minister of the Atlantic Canada Opportunities Agency today introduced legislation in the House of Commons to amend the National Defence Act (NDA) following the recent decision of the Court Martial Appeal Court of Canada (CMAC) in R. v. Trepanier.

"This Bill will more closely align procedures for the selection of mode of trial by court martial and court martial decision-making with the approach in the civilian criminal justice system, while preserving the attributes essential to satisfy the unique needs of the military justice system," said Minister MacKay. "It will ensure that the court martial process continues to function in a manner in which Canadians can have trust and confidence."

On April 24, 2008, the CMAC struck down the provisions of the NDA authorizing the Director of Military Prosecutions to select the type of court martial that will try an accused and requiring the Court Martial Administrator to convene the selected type of court martial. The Court ruled that they violated the accused person's constitutional right to full answer and defence. The decision has removed the authority to convene courts martial, an essential step in bringing a matter to trial.

The legislation introduced today will result in the selection of the mode of trial being governed by operation of law. The number of types of court martial will be reduced from four to two, and the accused will have the ability to choose the type of trial in circumstances similar to those set out in the Criminal Code.

"The changes will bring the needed clarity, certainty and stability to the military justice system," said Brigadier-General Kenneth Watkin, Q.C., Judge Advocate General.


BACKGROUNDER

Legislation Introduced to Amend the National Defence Act (NDA)

Canada, like other western nations, maintains a separate system of military justice. The centrepiece of this system is the Code of Service Discipline (CSD), which is Part III of the National Defence Act (NDA). The military justice system is designed to promote the operational effectiveness of the Canadian Forces by contributing to the maintenance of discipline, efficiency and morale, and to contribute to respect for the law and the maintenance of a just, peaceful and safe society. The Supreme Court of Canada has recognized the need for a separate and parallel system of justice to meet the unique requirements of the Canadian Forces (CF). The system must be fair, just and operate transparently.

The military justice system employs a two-tiered tribunal structure: summary trials, which are conducted by officers who are normally within the accused person's chain of command, are where most disciplinary matters are dealt with; and courts martial, which are more formal and are presided over by military judges. Courts martial are broadly analogous to civilian criminal courts.

In a recent decision in the case of R. v. Trepanier, the Court Martial Appeal Court (CMAC) held that the provisions in the CSD that both authorized the Director of Military Prosecutions to select the type of court martial to be used in each case and required the Court Martial Administrator to convene the type of court martial selected violated the accused person's constitutional right to make full answer and defence and to control the conduct of that defence. As a result, the CMAC ruled that those provisions were of no force and effect.

While the ruling on the constitutional issues is not conceded and leave to appeal has been sought from the Supreme Court of Canada, the Government is amending the NDA. These amendments will more closely align the manner by which the mode of trial by court martial is determined with the approach in the civilian criminal justice system, while preserving the attributes essential to satisfy the unique needs of the military justice system. A number of related amendments and further enhancements to the military justice system are also being undertaken in this bill.

The highlights of this bill are:

- selection of type of court martial will be governed by operation of law, with an enhanced ability for an accused person to make a choice as to the mode of trial in specified circumstances;

- simplification of the court martial structure by reducing the types of court martial from four to two;

- expansion of the ability of military judges to deal with pre-trial matters; and

- requirement for a unanimous decision for certain key court martial panel decisions.

These amendments will assist in maintaining the operational effectiveness of the CF and ensure that the military justice system continues to reflect current Canadian values and legal standards.

Contact Information