Order Fixing September 1, 2018 as the Day on which Certain Provisions of the Act Come into Force: SI/2018-36

Canada Gazette, Part II, Volume 152, Number 9

Registration

May 2, 2018

STRENGTHENING MILITARY JUSTICE IN THE DEFENCE OF CANADA ACT

Order Fixing September 1, 2018 as the Day on which Certain Provisions of the Act Come into Force

P.C. 2018-441 April 20, 2018

Her Excellency the Governor General in Council, on the recommendation of the Minister of National Defence, pursuant to subsection 135(1) of the Strengthening Military Justice in the Defence of Canada Act, chapter 24 of the Statutes of Canada, 2013, fixes September 1, 2018 as the day on which sections 14, 16 and 20, subsection 22(1), sections 23, 24, 27, 28, 31 to 37, 39, 40, 47, 50 and 51, subsection 52(1) and sections 53, 54, 56 to 59, 61 to 67, 69, 70, 74, 75, 99, 103 and 105 of that Act come into force.

EXPLANATORY NOTE

(This note is not part of the Order.)

Proposal

Pursuant to subsection 135(1) of the Strengthening Military Justice in the Defence of Canada Act, chapter 24 of the Statutes of Canada, 2013 (the Act), this Order in Council fixes September 1, 2018, as the day on which sections 14, 16 and 20, subsection 22(1), sections 23, 24, 27, 28, 31 to 37, 39, 40, 47, 50 and 51, subsection 52(1), and sections 53, 54, 56 to 59, 61 to 67, 69, 70, 74, 75, 99, 103 and 105 of the Act come into force.

Objective

This Order in Council brings into force sections of the Act amending provisions of the National Defence Act (NDA) related to military justice, such as those concerning sentencing, summary trial, suspension of imprisonment or detention, composition of a General Court Martial panel, arrest without warrant, review of directions on release from custody, absconding accused person and criminal records.

Background

The Act amends the NDA by implementing the Government of Canada’s response to the majority of the recommendations related to military justice, the grievance process, military police and the Military Police Complaints Commission made by the First Independent Review Authority, the late Right Honourable Antonio Lamer, former Chief Justice of the Supreme Court of Canada, in his report tabled in Parliament in November 2003 (Lamer Report). The Act also responds to a number of recommendations made by the Standing Senate Committee on Legal and Constitutional Affairs (Senate Committee) in its report of May 2009.

The Act received royal assent on June 19, 2013, at which point certain provisions relating to the security of tenure of military judges and the appointment of reserve force military judges came into force. Other provisions of the Act were brought into force by Orders in Council on October 18, 2013, and June 1, 2014, amending in part matters related to the administration of justice. This third Order in Council brings into force the majority of the outstanding sections of the Act.

Amendments

The Lamer Report recommended undertaking a comprehensive review of the sentencing provisions of the NDA, with a view to providing a more flexible range of punishments and sanctions, as is available in the civilian criminal justice system. This view was also expressed in the 2009 Senate Committee Report. The provisions of the Act now being brought into force introduce into the military justice system the fundamental purposes, objectives and principles of sentencing for service tribunals, in parallel with the sentencing provisions articulated in the Criminal Code, and provide for additional sentencing options in the form of absolute discharges, intermittent sentences, and restitution orders. Furthermore, the amendments provide for the use of a victim impact statement at court martial.

Officers of or above the rank of lieutenant-colonel could not previously be tried by summary trial. In response to the recommendation made in the Lamer Report, the amendments being brought into force expand a superior commander’s summary trial jurisdiction to include officers of the rank of lieutenant-colonel. They also exclude military judges from being tried by summary trial, which protects the perception of their judicial independence.

The NDA previously allowed a superior commander presiding at the summary trial of an officer cadet to impose three types of punishments only: severe reprimand, reprimand and fine. In response to the Lamer Report, the amendments being brought into force add greater flexibility and expand the punishments available to superior commanders over officer cadets by including minor punishments, such as confinement to barracks, extra work and drill and stoppage of leave.

In response to the recommendation of the Senate Committee, the amendments being brought into force introduce an additional limitation period applicable to summary trials. A charge must now be laid within six months from the day on which the offence is alleged to have been committed, in addition to the requirement that a summary trial must begin within one year after the day on which the offence is alleged to have been committed. By the same token, the amendments allow the accused person to waive the limitation periods, which permits the charges to continue to be dealt with by summary trial at the discretion of the accused person. This enhances timeliness in the military justice system and ensures that the less serious offences are dealt with in a prompt and efficient manner.

Courts martial and presiding officers have the power to suspend the execution of the punishment of imprisonment or detention. As recommended by the Lamer Report, the amendments being brought into force extend the same authority to the Court Martial Appeal Court. Also, they set out mandatory and other reasonable conditions to be imposed on the offender when the punishment is suspended.

The amendments being brought into force reduce distinctions based on rank for the composition of a General Court Martial panel, while maintaining the unique military requirements of a panel. By lowering the minimum rank of the senior member of the panel from colonel to lieutenant-colonel and allowing sergeants to serve on a panel, the amendments enhance the military justice system by expanding the pool of Canadian Armed Forces members eligible to serve on a panel.

The amendments address the concerns expressed in the Lamer Report concerning the authority to arrest without a warrant by amending the sections dealing with such authority and imposing conditions similar to those that apply under the Criminal Code when considering an arrest without a warrant for all service offences that are not “serious offences,” as defined in the NDA.

Reflecting Lamer Report recommendations, the amendments being brought into force allow military judges to review release directions and vary them, and require that a charge be laid as expeditiously as the circumstances permit against a person who is retained in custody or released from custody with conditions, thereby providing greater protection of individual liberty interests. Furthermore, in accordance with the decision of the Supreme Court of Canada in R. v. Hall,^{footnote 1} they amend the conditions necessary to retain a person in pre-trial custody.

The Lamer Report recommended amending the NDA to mirror provisions in the Criminal Code by allowing a court martial jurisdiction to try an accused person who absconds during the course of his or her trial. In particular, the amendments being brought into force introduce into the military justice system the principle that accused persons who abscond during the course of their trial by court martial are deemed to have waived their right to be present at their trial.

Finally, the amendments being brought into force introduce a list of service offences along with a range of punishments that do not create a criminal record. This ensures that any person convicted of a listed offence and sentenced to a punishment falling under the prescribed threshold before or after the coming into force of the section has not been convicted of a criminal offence and do not have to apply for a record suspension as the offence does not constitute an offence for the purposes of the Criminal Records Act.

Consultation

Officials from the Department of National Defence led the legislative initiatives surrounding these amendments. These initiatives have been undertaken in consultation with the Department of Justice and the Office of the Judge Advocate General.

Departmental contact

For more information, please contact