Military Justice

1
Chapter 1

• Military Justice
• At The Summary Trail

2
Objective

• Purpose of Military Justice

3
Main Teaching Points

• Military Law and the Maintenance of Discipline
• Discipline
• Military Ethos

4
Military Law and the Maintenance of Discipline

• Defining Law
• it regulates the affairs of all persons and
• it provides a standard of conduct and morality
  for all of society, including military society

5
The law provides

• Stability
• Predictability
• Control of activity contrary to societal standards

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The law also provides

• Establishment of courts and administrative
  tribunals empowered to regulate disputes between
• Society and its citizens (i.e. criminal law and
  human rights) and
• citizens themselves (i.e. civil law suits).

7
Types of Law in Canada

• Judicial Decisions
• Statutory Law (the National Defence Act-NDA)
• Crown Prerogative (Orders in Council)

8
Political-Legal Interface Affect in Armed Service

• the NDA
• the Code of Service Discipline
• Regulations, orders and instructions that flow
  from the NDA
• the Crown Prerogative (i.e. Orders in Council)

9
International Law on Armed Service

• Charter of the United Nations
• The Hague Conventions
• The Geneva Conventions

10
Constitutional Status of Military Force in Canada

• Section 91 the exclusive Legislative
  Authority of the Parliament of Canada extends
  tothe militia, military and naval service,
  defence

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Legislative Control of the CF

• The NDA has a pervasive impact on
• organization of the CF
• command and control of the military
• service members obligations and terms of service
• creates the Code of Service Discipline

12
The NDA and QROs

• duty and unlimited liability for service
• obedience to authority
• subordination to those in authority
• enforcement of discipline
• welfare of subordinates

13
Procedural Fairness

• Consistency by regulating processes
• Right to be informed of reasons for a decision
• right to make written or oral submissions
• notice of career action or charges
• represented by counsel or given assistance

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Procedural Fairness (continued)

• Higher standards of procedural fairness required
  for disciplinary action which has penal
  consequences (detention and fine)
• a Lower standards of procedural fairness required
  for administrative action which has strictly
  employment consequences

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Rights and Obligations of Military Service

• A Canadian serving in the armed forces does not
  give up the rights and obligations of Canadian
  citizenship
• Members remain protected by the rights set out in
  the Charter of Rights and Freedoms

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Limitation of Rights

• Can be limited in degree in their application to
• members of the CF where the full enjoyment
• of those rights are inconsistent with the basic
• obligations of military service.

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Balancing Rights and Limitations

• Weighing of rights
• is provided for under
• Section 1 of the Charter

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Balancing the Rights and Limitations(continued)

• Limitations on the constitutional rights of a
• the core principles of military service that it
• undermines (i.e. unlimited liability, obedience,
• etc)

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Law and Ethics

• Ethics
• relating to morals, especially as concerning
  human conduct, rules of conduct
• Moral
• concerned with goodness or badness of human
  character or disposition, or with the distinction
  between right and wrong

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DISCIPLINE Role of armed forces

• The ultimate role of the armed forces is to apply
  force, or the threat of force, in the furtherance
  of the interests of the state
• The government controls the use of such
  sanctioned violence
• Responsibility for training and operations rests
  with military officers and NCMs

21
Institutional Values in Armed Forces

• Military institutional values (liability to 247
  service, subject to CSD, inability to resign,
  strike or negotiate working conditions) contrasts
  with civilian occupational values where
  self-interest has greater priority than the
  employing institution.

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Defining Discipline

• Purpose of discipline
• ensures orders are carried out in the face of
  danger
• controls the armed forces from abusing its
  powers, and
• assists the recruit to adopt the military
  institutional values

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Responsibility for Maintaining Discipline

• By QRO the obligation to
• enforce military law
• rests upon all members of the CF

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Accountability

• Officers and senior NCMs will be held more
  accountable than lower ranking members of the
  military for the same breach of discipline

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Threats to Discipline

• Mutiny
• Isolation
• Failure to observe and enforce common standards

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ETHOS Basic Principles

• Duty
• Obedience to authority
• Subordination to those in authority
• Enforcement of discipline
• Welfare of subordinates

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Military Justice

• The
• End

Chapter 1, At The Summary Trial
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