Keeping Up with the Common Law O'Sullivans? The Limits of Comparative Law in the Context of Military Justice Law Reforms
28 Pages Posted: 25 May 2013 Last revised: 4 Feb 2014
Date Written: May 25, 2013
Critics of the Canadian military justice system have recently suggested that Canada should follow developments in military law that have taken place in Ireland, particularly with respect to the expansive procedural rights that are now afforded to accused persons who face summary forms of trial within the Irish system. This article will demonstrate that these calls for comparative-based law reform fail to appreciate important differences in the Irish and Canadian environments within which the respective military justice systems operate, specifically through a case study that discusses the distinct international human rights law obligations that bind the two states, and the unique labour climates within the two armed forces. Ultimately, after illustrating how unwise any comparative-based law reforms would be for Canada in light of these differences, the article will refer to the Irish/Canadian case study in order to argue that knowledge of comparative law is now more useful to responsible scholars as a law reform shield than a sword: in an era of significantly improved access to foreign legal materials, the scholarly study of comparative law is needed more in order to critique and deconstruct unprincipled law reform proposals than to generate new law reform ideas.
Keywords: fair trial, military justice, comparative law, Ireland, Canada, court martial, summary trial, summary disposal, non-judicial punishment, Defence Act, Findlay, ECHR, independent and impartial
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