Sui Not-So-Generous: The Unconstitutionality of Canadian Court Martial Jury Trials

Appeal: Review of Current Law and Law Reform, Vol. 14, pp. 24-36, 2009

14 Pages Posted: 16 Apr 2009 Last revised: 8 Mar 2011

Mike Madden

Dalhousie University - Schulich School of Law

Date Written: April 14, 2009

Abstract

In April 2008, the Court Martial Appeal Court (CMAC) decided that the Prosecution's authority to elect mode of trial (judge alone, or judge with panel of fact-triers) denied an accused Canadian Forces (CF) member of his right to a fair trial in a way that was inconsistent with principles of fundamental justice, contrary to ss. 7 and 11(d) of the Canadian Charter of Rights and Freedoms. The CMAC decision, by forcing an accused to now make an election as to mode of trial, has created an environment in which military jury trials may become much more prevalent, so all stakeholders within the military justice system now have a renewed incentive to satisfy themselves that such trials adhere to the constitutional principles of fundamental justice. Careful study reveals, however, that military trials by rank-influenced and unrepresentative (jury) panels violate accused CF members' constitutional rights to "to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal." Furthermore, the Charter violations cannot be saved under s. 1 as "reasonable limits prescribed by law" that can be demonstrably justified in a free and democratic society. Although General Courts Martial are recognized as part of a legitimately distinct military justice system that has coordinate jurisdiction over elements of Canadian criminal law, the tribunals disproportionately impair constitutional rights of accused personnel.

Keywords: Military Law, Military Justice, Court Martial, Courts Martial, Jury, Charter of Rights and Freedoms, panel

Suggested Citation

Madden, Mike, Sui Not-So-Generous: The Unconstitutionality of Canadian Court Martial Jury Trials (April 14, 2009). Appeal: Review of Current Law and Law Reform, Vol. 14, pp. 24-36, 2009. Available at SSRN: https://ssrn.com/abstract=1384178

Mike Madden (Contact Author)

Dalhousie University - Schulich School of Law ( email )

6061 University Avenue
Halifax, Nova Scotia B3H 4H9
Canada

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