Section 5 – The Criminal Code and The Canadian Forces: Episode 8 of the Ideablawg Podcasts on the Criminal Code of Canada

The following is the text version of Episode Eight of the Ideablawg Podcasts. The podcast can be found at the end of the text.

In this episode, we are still in Part I, the General part of the Criminal Code. As the title of this Part suggests, many of the sections under this Part are broad statements applying to the Code as a whole – like the previous section 4, which included some general terms and procedures. Section 5 also makes a sweeping statement but about the military. Section 5 reads as follows:

Nothing in this Act affects any law relating to the government of the Canadian Forces.

Well, that sounds very straight forward – The Criminal Code does not affect martial or military law. Or, in other words military laws take precedent over the Criminal Code. Now, that is quite a statement – an exemption from the Criminal Code for the military? Is that what this section is really doing?

Well, not exactly. Certainly members of Canadian Forces are not exempt from the Criminal Code but they are exempt from the procedures found under the Criminal Code if the military decides to try a member for a Criminal Code offence before a military tribunal. Thus, in accordance with Section 130 of the National Defence Act any Criminal Code offence committed by a member of the Canadian Armed Forces or any person accompanying the Canadian Forces has also committed an offence under the National Defence Act (hereinafter NDA) and the Code of Service Discipline, found under Part III of the NDA applies.

These two sections – s. 5 in the Criminal Code and s. 130 in the NDA – create a separate judicial scheme for the armed forces. This concept is not new and has been a cornerstone of our military disciplinary regime from the conception of the armed forces. The Parliamentarian right to legislate on military matters was given under the Constitution Act, 1867 through s. 91(7). It has also been argued that the legitimacy of this federally created military judicial system is recognized by s. 11(f) the Charter of Rights and Freedoms, which exempts military offences, even if punishable by five years imprisonment or more, from the right to a jury trial.

The purpose of such a separate regime is ostensibly to enforce military discipline. However, the courts have interpreted that purpose generously. For instance, in the 1992 Supreme Court of Canada Genereux case, the court considered the application of s. 11 of the Charter to military trials involving Criminal Code offences. The majority of the court speaking through the decision of Chief Justice Lamer, reiterated that s. 11 of the Charter did apply to military courts or, as in the Genereux case, the proceedings of the General Courts Martial. The Chief Justice explained:

Although the Code of Service Discipline is primarily concerned with maintaining discipline and integrity in the Canadian Armed Forces, it does not serve merely to regulate conduct that undermines such discipline and integrity.  The Code serves a public function as well by punishing specific conduct which threatens public order and welfare. Many of the offences with which an accused may be charged under the Code of Service Discipline, which is comprised of Parts IV to IX of the National Defence Act, relate to matters which are of a public nature.  For example, any act or omission that is punishable under the Criminal Code or any other Act of Parliament is also an offence under the Code of Service Discipline.  Service tribunals thus serve the purpose of the ordinary criminal courts, that is, punishing wrongful conduct, in circumstances where the offence is committed by a member of the military or other person subject to the Code of Service Discipline.”

However, we must remember that it is the choice of the military or, in some cases, the federal government, whether or not to prosecute a member under the Code of Service Discipline. For example, the infamous case of Col. Russell Williams was heard in the civilian court. So too was the spying case of sub-lieutenant Jeffrey Delisle (I have written previous blogs and this case here and here), although apparently the military was not pleased with the government’s decision to try him in the civilian court.

This military judicial regime is actually a two-tiered system. Most discipline matters are dealt with under the summary trial procedure at the unit level where the maximum punishment is thirty days incarceration.  The more serious and formal process is a court martial with a “legally qualified military judge” presiding. In this procedure the accused are entitled to counsel and a member of the Judge Advocate General prosecutes the case. A court martial may be by way of a General Courts Martial, which consists of a judge and a panel of five members of the Armed Forces, or a Standing Courts Martial, which is a military judge sitting alone. Both Courts can impose a sentence of life imprisonment.

Although this military system has been in use for years and has seemingly been upheld by SCC decisions, there are significant pressures for reform. In a recent paper, presented by Professor Michel William Drapeau, a retired Colonel who once was the Director of the National Defence Headquarters Secretariat and is now a law professor at the University of Ottawa, for The Global Seminar for Military Reform held at the Yale Law School on October 18-19, 2013, Professor Drapeau argues strongly in favour of reform of the military judicial system based on the worldwide trend to reduce military jurisdiction and reintroduce civilian jurisdiction, particularly where criminal offences are involved.

In Drapeau’s view, reform is needed so our military conforms to accepted human rights practices and based upon previous calls for reform from within Canada through the 1998 Royal Commission into the repugnant actions of some members of the armed forces in Somalia and through the 2003 Lamer Report, written as a five year review of the NDA after legislative changes were implemented as a result of the 1998 Commission. In this excellent paper, Drapeau outlines a number of reform recommendations, which, if accepted by the government, would ensure that military justice is not only on par with our civilian criminal justice system but consistent with our global role as a model of a free and democratic society. I also recommend another paper presented at this seminar written by the Honourable Gilles Letourneau, a retired judge of the Court Martial Appeal Court of Canada and the Federal Court of Appeal but also the Commissioner for the 1998 Somalia Inquiry mentioned earlier, entitled Two Fundamental Shortcomings of the Canadian Military Justice System.

I leave this topic reluctantly as quite frankly it is so complex and interesting I would like to delve deeper into the issues I have briefly raised. I encourage everyone to go out and learn more on how the military judicial system operates. In particular, there are a number of recent Charter cases in which it has been argued that various sections of the NDA are unconstitutional. Although, the applications have been dismissed, they were decided at the court martial level and I believe we will be seeing more such challenges in the future and some on appeal.

Of course, this podcast will be published the day before November 11, Remembrance Day, and whatever criticisms there may be of the military judicial system, I think we can all agree that our veterans and current members of the Armed Forces should be lauded and remembered for their courage and bravery. On that note, I would like to conclude this podcast with a poetry reading. Every November 11, my family and I mark Remembrance Day with readings from war poets such as Wilfred Owen from WW I (I recommend Dulce Et Decorum Est) and Keith Douglas from World War II (I recommend How To Kill). I have written a previous blog on war poetry, which can be found here called “Lest We Forget,” which includes these poems and a poem by F. R. Scott, a civil liberties lawyer and a previous Dean of McGill Law School. I have written a blog posting called Poetic Justice wherein I discuss the role of poetry in law and discuss Scott’s poetic legacy. (As an aside, Norman Bethune was in love with Marian Scott, F.R. Scott’s wife.)

I could, of course, end this podcast with the most famous Canadian war poem, In Flanders Field, by John McCrae, but instead I will read another of McCrae’s poems, not as well known but just as meaningful, entitled Disarmament:

One spake amid the nations, "Let us cease

From darkening with strife the fair World's light,

We who are great in war be great in peace.

No longer let us plead the cause by might."

But from a million British graves took birth

A silent voice -- the million spake as one --

"If ye have righted all the wrongs of earth

Lay by the sword! Its work and ours is done."

Episode 8: Section 5 and Military Law Ideablawg Podcast

In Remembrance: The Legacy of Mr. Justice Henry Nolan

Today, we remember the wars fought, the men and women lost, and the personal sacrifices, which formed Canada. Today we send our appreciation to those presently in service for our country and we are thankful to live in a country that values democracy and liberty. Last Remembrance Day, my posting was entitled “Lest We Forget,” which offered some profound words from poet/soldiers of WWI and WWII, including a moving passage from F.R. Scott, a Canadian lawyer who was an important civil liberties advocate and past Dean of McGill Law School.

This Remembrance Day, I recall Justice Henry Grattan Nolan, a Justice of the Supreme Court of Canada from March 1956 to July 1957, was born in Calgary, Alberta in 1895. His father, Patrick or Paddy Nolan, was one of the greatest criminal trial lawyers of his time. Paddy Nolan was a flamboyant character. A man of the new west, he was involved in all aspects of Calgary society, even appearing in the Gilbert and Sullivan comic opera “Trial By Jury.”

His son, Henry Nolan, was more serious by nature. A Rhodes Scholar, Henry served in the 49^th Canadian Battalion (from Edmonton, Alberta) in France. There he was wounded fighting in the Battle of Cambrai in November 1917. He received the Military Cross in 1918. After completing his studies at Oxford, England, Henry joined R.B. Bennett’s law firm. Bennett had often been opposing counsel to his father, Paddy. It has been said when Bennett was opposing Nolan in the Supreme Court of Canada in 1908, Bennett entered into the courtroom with his junior, issuing orders: “Boy, give me Phipson on Evidence,” “Boy, give me Kenny on Crimes.” To this, Paddy replied “Boy, get me Bennett on Bologney.”  

Henry Nolan re-enlisted at the outbreak of World War II and served with the Canadian Army. Rising through the ranks, Nolan became a Brigadier as the Vice-Judge Advocate General. From the end of the war to 1948, Nolan served in Tokyo as a Prosecutor for Canada before the International Military Tribunal for the Far East (IMTFE). Since then, Canada has taken a strong role in the prosecution of war criminals, most notably with Louise Arbour, who acted as Chief Prosecutor before the Rwanda and Yugoslavia War Crime Tribunals.

Although, Justice Nolan died prematurely, at the age of 64 and only spent one year on the Supreme Court of Canada, he authored a number of the cases. Most notably however was his commitment to his country as a soldier in World War I and II and as a protector of civil liberties and human rights as a military lawyer and war crimes prosecutor. We remember Justice Nolan as we remember all who contributed to our country in this way.

Lest We Forget

Remembrance Day is a time of reflection. Every November 11 at 10:50 a.m., my family and I honour the day by sharing passages of poetry written by war poets. We then, at 11:00 a.m., observe a moment of silence. Last year we also went to Lunchbox Theatre in Calgary and watched the musical, In Flanders Field, based on the poet John McCrae's life. It was a moving production which left none of us with a dry eye. This year, we will repeat the observance and watch Lunchbox Theatre's play on World War II, entitled Jake's Gift. 

I have already decided which poems, I will present tomorrow and among them are three poems which exemplify the war poetry genre. The first poem is written by the World War One British poet, Wilfred Owen, entitled Dulce Et Decorum Est,  which refers to the words of Horace: dulce et decorum est pro patria mori. The phrase translates to "it is sweet to die for one's country." Wilfred Owen uses the phrase in a stunning description of death by gas where he warns against teaching young children "ardent for some desperate glory" the old lie as expressed in the phrase. Owen, a friend of another famous British poet Siegfried Sasson, died only 7 days before the Armistice was announced.

The second poet, Keith Douglas, served for Britain in World War II in the Middle East and in North Africa. He was shipped back to England in time to participate in the Normandy invasion of D-Day where he died. There are two of his poems I will read: Vergissmeinnicht (Forget-me-not) and How To Kill. His poetry holds deadly visceral energy yet lands softly as he declaims that "A shadow is a man when the mosquito death approaches."

Finally, I will read a poem written by the Canadian poet, rights advocate, and previous Dean of McGill Law School - F. R. Scott. I have discussed Scott in my previous posting, which can be read here. His poem, entitled Lest We Forget  was written in contemplation of World War II, with the death of his brother during World War One in mind. It has a more cynical tone as he suggests:

And many a brave Canadian youth

Will shed his blood on foreign shores,

And die for Democracy, Freedom, and Truth,

With his body full of Canadian ores,

Canadian nickel, lead and scrap,

Sold to the German, sold to the Jap,

With Capital watching the tickers.

 We shall not forget this Remembrance Day.