**A Perspective on Canada's Code of Service Discipline**

[Brigadier-General Jerry S.T. Pitzul]{.smallcaps}

[and]{.smallcaps}

[Commander John C. Maguire\*]{.smallcaps}

**I. The Development of Canada's Military Justice System to 1950**

It has been suggested that "the procedures for disciplining the military
forces of a nation are a direct reflection of the society that the
forces were created to defend."[^1] To the extent that this hypothesis
may be considered valid, one might expect the study of the evolution of
military law not only to explain the rationale for the creation of a
*Code of Service Discipline*, and its various provisions, but to also
reveal something about the particular society concerned--its origins,
traditions, experiences of war and legal history.

There are many factors which served to influence and shape the
development of Canadian military law. This article is not an exhaustive
analysis of the subject but a general discussion of the major turning
points in the evolution of Canada's military justice system, including
the passage, in 1950, of the *National Defence Act*,[^2] which created
one *Code of Service Discipline* applicable to Canada's then existing
three armed services and the subsequent evolution of that Code.

The *Code of Service Discipline*, which is currently embodied in Part
III of the *National Defence Act*, is the statutory basis for Canada's
military justice system and sets out its main components. Further
amplification is contained in the *Queen's Regulations and Orders for
the Canadian Forces* (*QR&O*), which are regulations made by the
Governor in Council (the Canadian Cabinet) and the Minister of National
Defence, as well as in orders issued by the Chief of the Defence Staff.

Given Canada's historic experiences and status as a former British
colony, it may not be surprising to discover that, like so many of
Canada's public institutions, the Canadian Forces' *Code of Service
Discipline* has clearly defined English roots. Indeed, it has been
suggested that the early history of the Canadian military justice system
is, in effect, the history of British military law.[^3] The proposition
is not without some merit given the pre-eminent role played by Britain
in the defence of Canada in the period immediately prior to the
Confederation of provinces, which, in 1867, gave birth to the modern
Canadian nation state.[^4]

In fact, until 1868 British forces comprised the only regular armed
force in the Dominion of Canada.[^5] As a matter of furthering Britain's
imperial objectives, the approach was largely politic; Canada provided a
ready supply of raw materials for the Empire as well as a secure market
for British goods. The protection of these interests mandated a
proactive role for British naval and land forces in defence of Canada.
It is true that each of the British North American colonies was
responsible for raising a volunteer militia. In each of the Canadian
provinces, however, the militia was largely unarmed, untrained and
unorganized.[^6] It remained so until the infant Canadian nation passed
its first *Militia Act* in 1868[^7] and British regular forces were
gradually withdrawn.[^8] The 1868 Act, which borrowed heavily from
British military law, marked the beginning of a period of development
dominated by the legacy of British military and legal doctrine. A
meaningful understanding of Canada's early attempts at codifying
military law presumes some appreciation of the English experience in
formulating a code of discipline to govern its own armed forces.

Until 1661, *Articles of War* were issued under the hand of the
Sovereign as part of the Royal Prerogative that permitted the King to
place the government of His Majesty's forces under his own command
during time of war but which prevented the Sovereign from maintaining a
standing army in England in time of peace. While the *Articles of War*
prescribed offences, they only governed the conduct and duties of
soldiers serving abroad in time of war. The *Mutiny Act* of 1689[^9]
augmented the *Articles of War* through the establishment of a standing
army and made provision for its peacetime discipline under what has been
described as the first permanent code of military law.[^10] By 1879, the
King's Prerogative to issue *Articles of War* had merged with the
disciplinary provisions of the *Mutiny Act* in a comprehensive *Army
Discipline and Regulation Act*, which would, in turn, be replaced by the
*Army Act* of 1881.[^11] A succession of *Army Acts*, passed annually by
the British government, entrenched the principle of parliamentary
oversight over a code of military law applicable during both peace and
war--a principle which has survived intact in Canada. The *Army Acts*
emphasized the importance of discipline within an armed force and the
need for informal procedures under which offenders could be tried
swiftly.

Canada's *Militia Act* of 1868 organized the Canadian Army as the
country's first military force and essentially adopted the British Army
model for a code of discipline. This was a logical step given the
presence of British regular forces in Canada during the colonial period
and the then prevailing philosophy that the Canadian Army should be
trained and organized to support British forces.[^12]

The *Militia Act* of 1868 introduced a two-tier system of summary trials
and courts martial. Although much has changed, Canada's two-tier
tribunal structure dates to this period as does the right to elect trial
by court martial--which, at that time, permitted a soldier to elect the
more formalized court martial mode of trial in any case where the
punishment might have included imprisonment, a fine or a deduction from
pay. The commanding officer's power to award imprisonment ended in 1906
when the new punishment of detention was introduced. By 1929, commanding
officers were allowed to delegate their powers of punishment and a form
of summary proceeding was added to allow general officers to try field
officers of the rank of captain and below, and warrant officers, for
offences which were not serious but which could "not be overlooked."
This was the system which was in use in Britain when the Second World
War erupted. By virtue of the successive *Militia Acts* passed by the
Parliament of Canada since 1868, it was also the system of justice which
the Canadian Army took to war in 1939.[^13]

When Britain's Royal Air Force was formed near the end of World War I,
the British *Army Act* provisions governing discipline were modified as
necessary to account for differences in terminology, but, in most
material respects, were merely repeated in what would become Britain's
new single service *Air Force Act*.[^14] The Order in Council that in
1924 gave birth to the Canadian Air Force specified that discipline
would be in accordance with Britain's *Air Force Act*.[^15] This should
not be particularly surprising given the fact that Canadian airmen had
served within British air units during the First World War where they
had been subject to Britain's Army Act provisions. The British *Air
Force Act* continued to form the basis for the Canadian Air Force's
disciplinary regime until 1950 and the coming into force of the current
*National Defence Act*.[^16]

As was the case in the army, discipline in the British Royal Navy had
initially been governed by *Articles of War*. Trials were originally
conducted by the Office of the Lord High Admiral, then by "councils of
war."[^17] In 1661, a legislative code for the navy was formulated
which, for the first time, used the term "courts martial" to refer to
naval tribunals and established courts martial jurisdiction having
regard to the type of offence, the place of the offence and the status
of the offender.[^18] Courts martial punishments ranged from death to
imprisonment and fines. Corporal punishment―up to forty-eight
lashes―could be awarded in lieu of imprisonment and penal servitude
followed death in the scale of punishments.[^19]

Unlike their army counterparts, naval captains traditionally possessed
the power to summarily punish seamen for most "Faults, Misdemeanours and
Disorders committed at Sea . . . according to the laws and customs of
the sea."[^20] While some of the more draconian features of this Code
were moderated with the passage of the *Naval Discipline Act* of 1866,
[^21] ships captains still had great latitude to order the immediate
execution of sentences with little supervision from higher
authority.[^22]

The provisions of Britain's *Naval Discipline Act* of 1866 were
incorporated by reference into Canada's *Naval Services Act*[^23] when
the Royal Canadian Navy was established in 1910. This development can no
doubt be explained by the fact that Britain's Royal Navy had always
guarded Canada's oceans and for the most part would continue to do so
until the end of the First World War.[^24] British influences can also
be seen in *The Naval Services Act* of 1944.[^25] To the extent that it
marked the end of the practice of simply incorporating by reference one
of the British codes of service discipline, the latter Act, which was
the first truly Canadian naval code of discipline, marked a first step
in the development of a uniquely Canadian as opposed to British military
justice system.[^26] It would in turn serve as the prototype for many
sections of what would, in 1950, become the *National Defence Act*.[^27]

Canadian historian Desmond Morton has argued that the wars of the
twentieth century forced Canadians to "choose between the empire and
independence," that they were "the catalyst for an explosive industrial
expansion and for much of Canada's system of social security" and that
they "transformed almost every Canadian institution."[^28] This was
clearly the case insofar as Canada's system of military justice was
concerned.

While the Canadian Navy had taken the first step towards a distinct
*Code of Service Discipline* in 1944, at war's end the Canadian Army and
Air Force still had what has been described as a "confusion of
authorities," both British and Canadian, which governed discipline.[^29]
The situation had simply become unmanageable. This factor, coupled with
a general "dissatisfaction with the military justice system caused
largely by the influx of a large number of civilians into the armed
forces during World War II," led to a comprehensive review of all
legislation which applied to servicemen.[^30] Of course, Canada was not
alone in doing so. The Lewis Commission was undertaking a similar review
in the United Kingdom, and Canadian observers followed the work of that
commission and similar studies being conducted in the United
States--particularly the efforts being made to develop a uniform code of
military justice which would ultimately be adopted for use by each of
the armed services in that country.[^31]

In Canada this process of review culminated in the enactment, in 1950,
of a comprehensive *National Defence Act* (*NDA*) which included, in one
Canadian statute, all legislation relating to the Department of National
Defence and the Canadian Navy, Army and Air Force, and terminated
reliance upon British statute.[^32] It also created a single *Code of
Service Discipline* applicable to soldiers, sailors and airmen;
established a uniform process for administering military justice; and,
provided rights of appeal from the findings and sentences of Courts
Martial to a Court Martial Appeal Board.[^33]

The Code maintained the control which each of the separate Services had
over their own forces to the extent that it only permitted an accused to
be dealt with and tried by the service in which the member was
enrolled.[^34] It also adopted the relatively open-ended jurisdiction
scheme that had given jurisdiction over an offence to the army and air
force, no matter where the offence had been committed. Provision was
also made for three forms of summary trial: summary trial by commanding
officer, by delegated officer, and by superior commander. It adopted the
navy's approach in appointing an officer to assist the accused and
allowing the trial of subordinate officers and also incorporated the
army's right to elect trial by courts.[^35]

In terms of courts martial, the new Code blended the pre-existing court
martial structure. While it adopted the army and air force terminology
in naming the highest form of court martial a "General Court Martial,"
it reflected naval practice in the use of the term Disciplinary Court
Martial to describe the court martial having the next highest powers.
Both courts featured a panel of military officers chosen by a convening
authority. Provision was also made for a third form of court martial,
the Standing Court Martial, which is currently presided over by a
military judge sitting alone.

The process of creating a uniform *Code of Service Discipline* was
hardly a straightforward matter, and the finished product reflects a
number of compromises. For example, prior to 1950, the summary powers of
punishment of naval commanding officers included the ability to award
detention of up to three calendar months whereas a twenty-eight day
maximum applied in the army and air force. The *Code of Service
Discipline* adopted a ninety-day ceiling but required commanding
officers to seek approval of any sentence in excess of thirty days.
Nevertheless, some differences in the approach taken with respect to
minor punishments would continue to be reflected in the applicable
single service regulations, thereby perpetuating such venerable
punishments as "stoppage of grog" and "confinement to barracks."[^36]

## II. Subsequent Developments in Canadian Military Law

The first thirty years in the life of Canada's *Code of Service
Discipline* might well be described as a period of reflection, during
which public interest in the development of military justice waned.[^37]
Changes to the Code in this period were largely procedural. However,
there were some notable exceptions.

In 1952, the *National Defence Act* was amended to extend the powers of
punishment of delegated officers to allow for the imposition of up to
fourteen days detention and add the power to award a severe
reprimand.[^38] Regulatory changes followed in 1959 which extended the
right to elect court martial to any accused charged with a service
offence which alleged a breach of the civil criminal law. The election
had traditionally been given after the evidence had been heard but
before the finding was made. That approach, which is still followed in
the British Army, was abandoned in 1959 in favour of a more waiver-like
process under which the right to elect trial by court martial was
extended, and the accused's answer recorded, prior to the start of the
summary trial.[^39]

In 1959, the Act was amended once more; this time to specify that any
court martial decision which awarded death had to be unanimous. This
marked a departure from the majority-vote oriented process for
determining findings and sentence which had applied prior to 1959 and
which continued to apply in all non-capital cases. The 1959 amendments
also marked the establishment of the Court Martial Appeal Court (CMAC)
as a civilian superior court of record having jurisdiction to hear and
determine appeals from courts martial pertaining to the legality of
sentences and findings. This package of reforms did not provide the
Crown with a means of initiating appeals; nor did it allow the CMAC to
entertain severity of sentence applications. Nevertheless, it did add a
further right of appeal to the Supreme Court of Canada which could be
exercised by either the accused or the Minister of National Defence,
provided certain pre-conditions were satisfied.[^40]

Until 1959, Canadian Courts Martial were obliged to apply the rules of
evidence then in force in the province in which the trial was being
held. In trials conducted abroad, the rules of evidence which were
applicable in the accused's home province were to be used. The
uncertainty and confusion which such a complicated process created ended
when the Military Rules of Evidence (MREs) were passed by Governor in
Council in August of that year.[^41] The MREs, which are a codification
of the normal evidentiary rules followed by Canadian criminal courts,
represent a uniquely Canadian approach to the practical problems posed
by the portability requirements of a military justice system.

In 1965, the government of the day integrated the Canadian Navy, Army
and Air Force under a functional command structure. Unification, which
would follow in 1968, led to the creation of a single service--the
Canadian Armed Forces or Canadian Forces as it became known in
regulations. The new service was comprised of full-time regular force
and part-time reserve force components. To the extent that a unified
*Code of Service Discipline* was already in place, the fact of
unification had very little impact on the military justice system,
except to the extent that it led to the creation of a single set of
*Queen's Regulations and Orders for the Canadian Forces* and the
standardization of minor punishments.[^42] A fourth type of court
martial, the Special General Court Martial, was added in 1969. It was
given the exclusive jurisdiction to try civilians who were subject to
the *Code of Service Discipline*. No further significant changes to
Canada's military justice system occurred until 1982 and the coming into
force of the *Canadian Charter of Rights and Freedoms*.[^43]

What followed was a relatively intense process of review, both internal
and judicial, during which the Canadian Forces was called upon to
reconcile its military justice provisions and processes with the
constitutional protections embodied in the *Charter*. That process,
which is still ongoing, resulted in an unprecedented series of
amendments to the *Code of Service Discipline* and subordinate
regulations and orders as well as what has been appropriately
characterized as the "rapid convergence between military and civilian
criminal justice processes."[^44] Some of the more significant changes
implemented between 1982 and 1992 include:

-   establishing a process under which an accused who had been found
    guilty at court martial and sentenced to a term of incarceration,
    could apply for judicial interim release;

-   developing a Charter compliant scheme for dealing with mentally
    disordered accused;

-   creating a truly comprehensive civilian appellate review process in
    both courts martial findings and sentences accessible by both the
    Crown and the accused; and

-   enhancing the independence of courts martial by

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-   separating the functions of convening courts martial and appointing
    judges and panel members;

-   adopting a random methodology for selecting courts martial panel
    members; and

-   implementing reforms to ensure the security of tenure, financial
    security and institutional independence of military judges,
    including appointing judges for fixed terms, adopting the civilian
    "cause-based" removal standard and discontinuing the use of career
    evaluations as a measure of judicial performance.

The latter reforms were the direct result of court challenges in which
it was argued that the manner in which the Standing and General Courts
Martial were constituted undermined the courts' independence within the
meaning of section 11(d) of the *Charter*.[^45] Of these cases, the 1992
Supreme Court of Canada decision in *Généreux* is particularly
noteworthy.[^46] In ruling that the legal construct for General Courts
Martial, as it had existed at the time of trial, violated the paragraph
11(d) guarantee of independence, the Court in *Généreux* concluded that
it was unacceptable for anyone in the chain of command to be in a
position to interfere in matters which are directly and immediately
relevant to the adjudicative function. In this respect, the Supreme
Court determined that an actual lack of independence need not be
established; rather, the test was whether an informed and reasonable
person would "perceive" the tribunal as independent, based on its
objective status; which is to say, the legal framework governing the
status of the tribunal as opposed to the actual good faith of the
adjudicator. In examining the *Généreux* decision, it is important to
note that many of the reforms in this area had already been implemented
prior to the actual appeal hearing. The Supreme Court of Canada
commented favourably on these changes.

*Généreux* is also of significance in that the Court, in that case,
acknowledged and upheld the requirement for a distinct but parallel
system of military tribunals staffed by members of the military who are
aware of and sensitive to military concerns. In this respect, the Chief
Justice stated that the purpose of such a system is "to deal with
matters that pertain directly to the discipline, efficiency and morale
of the military" and that "\[t\]o maintain the Armed Forces in a state
of readiness, the military must be in a position to enforce internal
discipline effectively and efficiently." Mr. Justice Lamer went on to
note the critical role played by the *Code of Service Discipline* in
allowing the military to meet its "particular disciplinary needs."[^47]

During the latter half of the 1990's, the military justice system was
the subject of a level of scrutiny that was unprecedented in Canadian
history. The continuing requirement to ensure *Charter* compliance
provides an explanation for the process of self-examination which led to
the creation of the Summary Trial Working Group. Its comprehensive
report on the summary trial system was issued in 1994.[^48] That and
subsequent studies, such as the reports of *Special Advisory Group on
Military Police and Investigation Services*[^49] chaired by the Right
Honourable Brian Dickson, a retired Chief Justice of the Supreme Court
of Canada, resulted in the implementation of a comprehensive set of
regulatory changes to the summary trial system. The changes took effect
on 30 November 1997.

While units retain the primary responsibility regarding the
investigation of minor offences, the regulatory amendments preclude
commanding officers from trying any case which they have personally
investigated. Unit authorities also continue to have the authority to
lay charges.[^50] That jurisdiction, however, is shared inasmuch as
military police assigned to a newly created National Investigation
Service (NIS)[^51] now have the mandate to investigate serious and
sensitive offences as well as the power to lay charges. Furthermore, in
all but a few minor cases, advice must now be obtained from a military
legal officer before a charge is laid or when deciding how charges
should be disposed of.

The 1997 regulatory changes also enhance the right to elect trial by
court martial. That right must now be extended to the accused in cases
involving all but the most minor disciplinary offences. Moreover, for
the first time, delegated officers have the power to offer the election
to accused persons appearing before them. Steps have also been taken to
ensure that each accused is fully informed of the implications and
consequences of electing summary trial or courts martial, including
providing accused persons with access to legal counsel in order to
assist them in making a fully-informed election.

The amendments also reduce the offence jurisdiction of commanding
officers and delegated officers to those offences that are more minor in
nature and over which offence jurisdiction is demonstrably necessary for
the maintenance of unit discipline. At the same time, the severity of
the punishments that may be awarded at summary trial has been reduced
and the scheme of punishments restructured in keeping with the summary
trial's disciplinary, as opposed to penal character. For example, while
commanding officers are still able to award detention, the maximum
amount of detention, which may be awarded, has been reduced from ninety
to thirty days.

Until November of 1997, the decision of a summary trial could only be
challenged by way of a grievance submitted through the military chain of
command. The regulations now provide a mechanism, separate and apart
from the redress of grievance process, by which an accused found guilty
at summary trial is able to request that the findings and sentence be
reviewed.

The heightened public and media interest alluded to earlier would seem
to be the direct result of a small number of high profile cases
involving particularly egregious acts of misconduct committed by members
of the Canadian Forces involved in peacekeeping operations in Somalia,
and to a much lesser extent, Bosnia. Without commenting in any detail on
the broader implications and significance of these regrettable acts,
their impact on public opinion in Canada has led to comparisons with the
American experience in the Vietnam War era. The Canadian government
responded to these events, and the public concern they provoked, by
convening a public *Commission of Inquiry into the Deployment of
Canadian Forces to Somalia* [^52] and by commissioning the Special
Advisory Group studies referred to earlier. The Somalia Commission
Report and the reports of the Special Advisory Group were released in
1997.

The government reacted quickly to the various recommendations contained
in these reports by sponsoring Bill C-25,[^53] an *Act to Amend the*
*National Defence Act.*[^54] Bill C-25 adopted the recommendations of
the Special Advisory Group and responded to the recommendations of the
Somalia Commission. The vast majority of the provisions contained in
Bill C-25 and the implementing regulations came into force on 1
September 1999.[^55]

## III. The Future: Canadian Military Justice in the 21^st^ Century

The comprehensive package of amendments to the *National Defence Act*
contained in Bill C-25 and the supporting regulations were designed to
promote greater accountability and transparency in the military justice
system and strengthen the Canadian Forces as a national institution in
which Canadians may continue to repose their trust and confidence. The
changes resulted in a structure that is more consistent with civilian
criminal procedure while still taking into account the military
requirements that underscore the rationale for a distinct military
justice system, including the requirement to maintain portable service
tribunals capable, with prompt but fair processes, of operating in time
of conflict or peace, in Canada or abroad.

One of the most important changes concerned the steps being taken to
clarify the roles and responsibilities of the various actors in the
military justice system. With the implementation of the reforms, the
Minister of National Defence no longer has the responsibility to make
decisions pertaining to individual disciplinary cases such as convening
courts martial, approving punishments of dismissal from Her Majesty's
service, or acting as a review authority in respect of summary trial and
court martial findings and sentences. By devolving such responsibilities
to other authorities, the potential conflict of interest between such
matters and the Minister's duties in respect of the overall management
of the Department and Canadian Forces has been reduced; as has any
perception of interference by the Minister in the routine administration
of individual cases.

The requirement for specialized military legal advice is of utmost
importance to the Department of National Defence and the Canadian
Forces. Since 1911, the Judge Advocate General has acted as legal
advisor to the Governor General, the Minister of National Defence, the
Department and the Canadian Forces. For the first time however, the
Judge Advocate General's duties have been clearly set out in the
*National Defence Act* together with the requirement to superintend the
administration of military justice across the Canadian Forces by
conducting regular reviews and assessments and reporting annually to the
Minister.

As representatives of the Judge Advocate General, Canadian Forces legal
officers have traditionally given advice pertaining to the investigation
of service offences and charge laying, have been appointed by convening
authorities to serve as prosecutors, and, have acted as defence counsel
at courts martial. These services continue to be performed by legal
officers. However, under the amended *Code of Service Discipline,* the
prosecution function has been assigned exclusively to the Director of
Military Prosecutions (DMP). The person appointed by the Minister to
occupy the position of DMP is directly responsible for the preferring of
all charges to be tried by court martial, for determining the type of
court martial to hear those charges, and, through the assignment of
individual uniformed prosecutors, responsible for the conduct of court
martial proceedings. The DMP also acts as counsel for the Minister in
respect of appeals. The DMP acts under the general supervision of the
Judge Advocate General who may issue specific, written instructions or
guidelines in respect of particular prosecutions. Where such
instructions or guidelines are issued the DMP must ensure that those
instructions or guidelines are made publicly available.

Similarly, the defence function has been assigned exclusively to the
Director of Defence Counsel Services, who is responsible for the
supervision of prescribed legal services to persons subject to the *Code
of Service Discipline*. The Director of Defence Counsel Services also
acts under the general supervision of the Judge Advocate General and may
be subject to general instructions and guidelines that must be made
available to the public. However, to avoid any perception of
interference, the Act does not allow the Judge Advocate General to issue
instructions or guidelines pertaining to the conduct of any particular
defence. Enhancing the separation between military defence counsel and
other actors in the military justice system was intended to provide
greater assurance that persons subject to the Code receive independent
legal advice.

Changes were also made to the *National Defence Act* to reflect the
regulatory changes pertaining to the institutional independence of
military judges referred to earlier. It is important to note that
military judges are not responsible to the chain of command. Indeed, the
Office of the Chief Military Judge has now been established as a
separate unit of the Canadian Forces.

Bill C-25 also made provision for the establishment of a Court Martial
Administrator to convene courts martial on the request of the Director
of Military Prosecutions and appoint members to sit as General and
Disciplinary Courts Martial panel members. The Court Martial
Administrator performs these important administrative functions under
the general supervision of the Chief Military Judge.

Under the new scheme for referring matters to courts martial, a
commanding officer or superior commander who lacks jurisdiction to
proceed, or considers that it would not be appropriate to refer the
charges to another officer having summary trial jurisdiction, is
required to refer the charges to a referral authority--typically an
officer commanding a command.[^56] In most cases the referral authority
will be required to refer the application on to the Director of Military
Prosecutions together with any recommendations which may be considered
appropriate. The involvement of the referral authority ensures the
valuable and essential participation of the chain of command in the
decision to prefer charges to courts martial.

I have already discussed some recent changes to the investigation and
charging process. The recent statutory reforms continue the process of
making the military justice system more efficient and transparent. For
example, while commanding officers and superior commanders are able to
decide not to proceed with a matter, they no longer have the
jurisdiction to dismiss charges. Moreover, members of the recently
created National Investigation Service are able to refer a charge which
was laid by a member of that service directly to a referral authority,
for further transmission to the Director of Military Prosecutions, in
any case where a commanding officer or superior commander has decided
not to proceed with a charge. Other legislative amendments have enhanced
the independence of the military police through the establishment of an
independent, external Military Police Complaints Commission which
reports annually to Parliament, as well as through the creation of a
Military Police Professional Code of Conduct establishing standards for
military police in the conduct of their policing duties.

A new procedure has also been implemented for reviewing cases of
pre-trial custody. While the initial review of custody is still
conducted by the commanding officer or a designate, all subsequent
reviews must be conducted by a military judge. As was the case in
release pending appeal applications, the direction to release a member
from pre-trial custody is now capable of being made the subject of a
conditions order. Such directions are reviewable on application to the
Court Martial Appeal Court.

The reforms also complete the process of modernizing the summary trial
system. In particular, the largely procedural distinctions between trial
by superior commander and other forms of summary proceedings have been
eliminated, and the nature of certain forms of punishment have also been
changed. For example, a presiding officer's power to impose a punishment
of reduction in rank has been limited to one substantive rank and
reduction in rank is no longer deemed an included punishment where a
non-commissioned member has been sentenced to detention.

Changes to the courts martial system include:

-   providing for non-commissioned members at or above the rank of
    warrant officer to sit as members of General and Disciplinary Court
    Martial panels when the accused is a non-commissioned member;

-   formally requiring the military judge presiding at a General or
    Disciplinary Court Martial to make all decisions of a legal nature
    and determine sentence;

-   reducing the period of detention that may be awarded at courts
    martial from two years to ninety days in keeping with the
    rehabilitative objectives of detention and to enhance the
    distinction between that punishment and the more penal punishment of
    imprisonment;

-   removing the monetary limits on the fines that may be imposed; and

-   eliminating the death penalty from the scale of punishments in the
    *Code of Service Discipline* on the basis that it was no longer
    required as a punishment for service offences and its removal was
    consistent with other federal law. For the most serious offences,
    imprisonment for life with no eligibility for parole for twenty-five
    years has been substituted.

Some jurisdictional changes were also incorporated into the Bill C-25
reforms. For example, the three-year limitation period on the
prosecution of service offences was repealed. That limitation period was
considered to pose an unreasonable limitation on disciplinary action in
particularly complex investigations and in those cases where offences
were not reported or disclosed within the relevant period. A one-year
limitation, however, is considered to be an appropriate period within
which to deal with offences at summary trial given the nature of the
proceeding and its objectives.

Another jurisdictional change involves sexual assault offences committed
in Canada by persons subject to the *Code of Service Discipline*. Prior
to 1 September 1999 such offences had to be tried by civilian court
rather than by a service tribunal. To the extent that sexual assault
offences have the potential to undermine morale and unit discipline,
lessen mutual trust and respect, and ultimately impair military
efficiency, the Canadian Forces' inability to deal promptly with such
offences was considered problematic. Bill C-25 therefore removed this
limitation on jurisdiction.

Other oversight and review measures which have not been discussed, but
which nonetheless deserve mention, include: the appointment of an
ombudsmen, the creation of a monitoring committee and the requirement
that the Minister of National Defence review the statute and report to
Parliament within five years of its coming into force.

While this paper does not address all of the changes made to the *Code
of Service Discipline*, I trust it has provided some appreciation of the
wide-ranging scope and nature of the recent reforms to the Canadian
system. While it is still early in the reform process, the changes will
result in a modern but in many ways different *Code of Service
Discipline* as the Canadian Forces enters the 21^st^ century.

[^1]: *\* Brigadier-General Jerry S.T. Pitzul is the Judge Advocate
    General of the Canadian Forces. Commander John C. Maguire is a legal
    officer employed in the Office of the Judge Advocate General. This
    article was first presented at the American Bar Association's 1998
    ABA Annual Meeting, Toronto, Canada on 1 August 1998 and published
    in the program materials for the ABA General Practice, Solo and
    Small Firm Section's program entitled "A Retrospective: After Fifty
    Years Under the UCMJ -- Is There Justice in the Military?" It has
    been reviewed and updated for publication in the Air Force Law
    Review. The views in this article do not necessarily represent the
    views of the Department of National Defence or the Canadian Forces.*

    ^?^ R.A. McDonald, *The Trail of Discipline: The Historical Roots of
    Canadian Military Law* 1 C.F. JAG J. 1, 1 (1985).

[^2]: National Defence Act, S.C. 1950, c.43.

[^3]: K.W. Watkin, *Canadian Military Justice: Summary Proceedings and
    the Charter,* 35 (1990) (unpublished L.L.M. thesis, Queen's
    University).

[^4]: *Constitution Act,* (U.K.), 30 & 31 Vict., c.3 (1867)
    \[hereinafter *Constitution Act, 1867*\].

[^5]: J.B. Fay, *Canadian Military Criminal Law: An Examination of
    Military Justice* (1974) (unpublished L.L.M. thesis, Dalhousie
    University).

[^6]: D. Morton, *A Military History of Canada* (1990), Toronto:
    McClelland & Stewart Inc.

[^7]: *An Act Respecting the Militia and Defence of the Dominion of
    Canada*, S.C. 1868, c.40.

[^8]: Morton, *supra* note 6, at 86.

[^9]: *An Act for punishing Officers or Soldiers who shall Mutiny or
    Desert Their Majesty's Service*, 1 Will & Mar., c.5 (U.K.) (1689).

[^10]: W.J. Lawson, *Canadian Military Law* 29 Can. Bar Rev. 241, 243
    (1951).

[^11]: *Army Discipline and Regulation Act,* 42 & 43 Vict., c.33 (U.K.)
    (1879); *Army Act,*44 &45 Vict., c.58 (U.K.) (1881).

[^12]: Fay, *supra* note 5, at 3.

[^13]: These developments are discussed in more detail in Watkin,
    *supra* note 3, at 37-44.

[^14]: Air Force (Constitution) Act, 7 & 8 Geo. V. c.51 (U.K.) (1917),
    discussed in McDonald, *supra* note 1, at 19.

[^15]: Passed under the authority of *The Air Board Act*, S.C. 1919,
    c.11.

[^16]: McDonald, *supra* note 1, at 19-20.

[^17]: Watkin, *supra* note 3, at 45-46.

[^18]: An *Act for the Establishing Articles and Orders for The
    Regulating and Better Government of His Majesty's Navies Ships of
    War & Forces by Sea*, 1661, 13 Car.II, c.9 (U.K.).

[^19]: See McDonald, *supra* note 1, at 7.

[^20]: *Id*. at 7.

[^21]: *Naval Discipline* Ac*t*, 29 & 30 Vict., c.109 (1866).

[^22]: Watkin, *supra* note 3, at 47.

[^23]: The *Naval Services Act*, S.C. 1909-1910, c.43.

[^24]: [M]{.smallcaps}orton, *supra* note 6 at XI.

[^25]: *Naval Services Act*, S.C. 1944-45, c.23 (1944).

[^26]: Fay, *supra* note 5, at 4.

[^27]: Lawson, *supra* note 10, at 246.

[^28]: [M]{.smallcaps}orton, *supra* note 6, at IX.

[^29]: McDonald, *supra* note 1, at 20.

[^30]: Watkin, *supra* note 3, at 49.

[^31]: Fay, *supra* note 5, at 4.

[^32]: In fact, as McDonald, *supra* note 1, at 21, observes:

    > From the time of the First World War, British control over the
    > actual administration of military discipline in the Canadian
    > Forces had been gradually eroded to the point where *de facto*
    > control rested solely with Canadian authorities by the end of the
    > Second World War. The *NDA* strengthened the *de facto* control by
    > adding purely Canadian legislative authority thereby eliminating
    > the final vestiges of British influence in the disciplinary
    > process.

[^33]: *See* Watkin, *supra* note 3, at 49, and Fay, *supra* note 5, at
    5.

[^34]: McDonald, *supra* note 1, at 22.

[^35]: As Watkin, *supra* note 3, at 51-52, observes, the right was only
    extended to those accused who were above the rank of private.

[^36]: For a more thorough discussion of the applicable provisions see
    McDonald, *supra* note 1, at 23-24.

[^37]: Fay, *supra* note 5, at 1.

[^38]: *The Canadian Forces Act*, S.C. 1952, c.6 (1952).

[^39]: Watkin, *supra* note 3, at 52.

[^40]: *An Act to amend the National Defence Act*, S.C. 1959, s 191-196.

[^41]: Fay, *supra* note 5, at 186-87.

[^42]: McDonald, *supra* note 1, at 25.

[^43]: *Constitution Act, (1982)* Part I \[hereinafter referred to as
    the *Charter*\].

[^44]: A.F. Fenske, "*Evolution of the Code of Service Discipline into
    the twenty-first Century: A Canadian Perspective*" (Address to the
    Canadian Bar Association, Commonwealth Association of Armed Forces
    Lawyers, 28 August 1996) \[unpublished\] at 11.

[^45]: *See* R. v. Ingebrightson , 61 CCC (3d) 541 (C.M.A.C.) (1990); R.
    v. Généreux 1 S.C.R 259; 70 CCC (3d) 1 (S.C.C.) (1992) \[hereinafter
    *Généreux* cited to CCC\].

[^46]: *Généreux*, *supra* note 45.

[^47]: *Id.* at 33.

[^48]: Canada, Summary Trial Working Group, *Report of the Summary Trial
    Working Group* (Ottawa, 2 March 1994). This report contained 59
    recommendations which were approved by Armed Forces' Council in May
    of 1994.

[^49]: Canada, Special Advisory Group on Military Justice and Military
    Police Investigation Services, *Report of the Special Advisory Group
    on Military Justice and Military Police Investigation Services*
    (Ottawa: Public Works and Government Services Canada -- Publishing,
    March 1997); Canada, Special Advisory Group on Military Justice and
    Military Police Investigation Services, *Report on Quasi-Judicial
    Role of the Minister of National Defence* (Ottawa: Public Works and
    Government Services Canada--Publishing, July 1997) \[hereinafter
    Special Advisory Group Reports\].

[^50]: For the purposes of proceedings under the *Code of Service
    Discipline*, a \"charge\" is a formal accusation that a person
    subject to the Code has committed a service offence. A charge is
    laid when it is reduced to writing in Part 1 (Charge Report) of the
    Record of Disciplinary Proceedings and signed by a person authorized
    to lay charges.

[^51]: The NIS is responsible to a Provost Marshal who reports outside
    the operational chain of command to the Vice Chief of the Defence
    Staff.

[^52]: Canada, Commission of Inquiry into the Deployment of Canadian
    Forces to Somalia, *Dishonoured Legacy: The Lessons of the Somalia
    Affair, Report of the Commission of Inquiry* *into the Deployment of
    Canadian Forces to Somalia* (Ottawa: Public Works and Government
    Services Canada -- Publishing, June 1997) *available at*
    http://www.dnd.ca/somalia/

    somaliae.htm \[hereinafter Somalia Commission Report\].

[^53]: Bill C-25, *An Act to Amend the National Defence Act* and to make
    consequential amendments to other Acts, S.C. 1998, C-35, introduced
    in Canada's House of Commons on 30 November 1997. Bill C-25
    completed third reading in the Senate on 1 December 1998 and
    received Royal Assent on 10 December 1998.

[^54]: *National Defence Act*, R.S.C.1985, c.N-5, as amended.

[^55]: P.C. 1999-1304, July 8, 1999.

[^56]: The term \"referral authority\" will be defined to include the
    Chief of the Defence Staff and any officer commanding a command. By
    virtue of this definition the environmental Chiefs (the Chief of the
    Maritime Staff, Chief of the Land Staff and Chief of the Air Staff),
    subordinate commanders of commands and any officer who is able to
    exercise the powers of a \"commander of a command\" by virtue of a
    special Ministerial order would be able to act as referral
    authorities.