Canadian Military Law. Military Lawyers.
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Canadian Military Law. Military Lawyers. |
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The federal government is granted exclusive jurisdiction over the "Militia, Military and Naval Service, and Defence" pursuant to Section 91(7) of the Constitution Act, 1867.
Parliament established its first codification of military law regulating matters of national defence in 1868 with the Militia Act. The Naval Services Act and the Royal Canadian Air Force Act were subsequently enacted in the 1940's.
Following the Second World War Parliament re-examined all legislation applicable to the armed forces in Canada with the result that in 1950 the National Defence Act (the "NDA") was passed. The NDA remains the governing statute of the Canadian Forces.
Since 1868, the above-noted statutory schemes have made it clear that Canadian troops are subject to ordinary laws that apply to all citizens and to the jurisdiction of civil courts. By joining the armed forces, however, they subject themselves to additional liabilities and responsibilities under Canadian military law.
Many of their special responsibilities and duties are set out in the Queen's Regulations and Orders (QR&O'S) Chapters 4 (officers) and 5 (non-commissioned members).
The NDA contains the Code of Service Discipline (the "CSD"), found in Part III with related provisions in Part VII.
The CSD constitutes a complete code of military law applicable to persons under service jurisdiction. Section 60 deals with the jurisdiction of the CSD over persons. It should be noted that in addition to military personnel, the CSD also applies to civilians accompanying a unit of the Armed Forces and alleged spies for the enemy. The CSD constitutes the basic framework which is filled in by the QR&O's9 , Canadian Forces Administrative Orders (the "CFAO's"), and a multitude of other orders issued at the command, base, and unit levels.
Section 12 of the NDA provides the Governor in Council and the Minister of National Defence with the power to make regulations for the "organization, training, discipline, efficiency, administration, and government of the Forces", so long as such regulations are not inconsistent with the NDA.
The QR&O's, promulgated under the authority conferred by Section 12, amplify the CSD and provide the authoritative manual for military law in Canada.
The purpose of military law is to promote good order and a strict disciplinary standard within the services by providing for prosecution of military personnel determined to have contravened statutes or subordinate regulations. The importance of strict discipline as an operational requirement for any military organization has been long supported by policy-makers.
The
following punishments may be imposed in respect of service offences:
There are four types of courts martial within the Canadian Forces:
These four types of courts martial allow a flexibility for the selection of the most suitable tribunal when considering the status of the accused, the charge and possible punishment, as well as the location where the trial is to be held.
Each court martial is distinguished by different jurisdictions, compositions and powers of punishment. All four types of courts martial are presided over by a military judge and all four administer the CSD.
Office
of the Chief Military Judge
The Office of the Chief Military
Judge is an independent unit of the Canadian Forces established in 1997.
Its personnel include military judges, the Court Martial Administrator
and the Deputy Court Martial Administrator, military and civilian court
reporters and technical, financial, human resource and administrative
support.
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