Q: A Canadian soldier in Afghanistan is in trouble because he was alleged to have shot a wounded person to put him out of his misery. How can he be tried in a Canadian court for something that happened there?A: A soldier who commits an offence while enlisted is not necessarily subject to the same general justice system that other citizens are. He may be subject to a court martial through the military system of justice.Canada’s armed services run a military justice system that is separate from other legal systems. It administers matters of military discipline, which are set out in the Code of Service Discipline and are part of the National Defence Act of Canada.This law sets out conduct standards for armed services personnel, as well as the practice and procedure for dealing with alleged breaches of standards.While there are similarities, there are also marked differences between the Code of Service Discipline and general civil and criminal law within Canada. For example, being disobedient, disrepectful or insubordinate while on duty or not showing up for duty all constitute serious offences. Lipping off to a boss in civilian life might get you fired, but not jailed.The code also provides for certain standards, such as imposing a duty to look after people of a lower rank. It also prescribes standards on when a person of higher rank can give someone of lower rank discipline, including when that should be private or public.The Canadian Charter of Rights and Freedoms recognizes that a separate military justice system can exist and the Supreme Court of Canada has dealt with challenges to the existence of this system. It has also acknowledged that the system does not provide total coverage. If someone enlisted commits a murder within Canada, that person will be tried in our general criminal courts, not in the military system. An alleged murder outside Canada could arguably be dealt with by that country’s legal system or by Canada’s system of military justice.A trial in this military system is a court martial. It is run by specially trained and appointed military judges. These processes may be conducted anywhere in the world. Also, it can be conducted electronically via satellite to facilitate witness appearances when people have been transferred. As well, officers who hold law degrees act as prosecution through the Canadian Military Prosecution Service and defence counsel (Directorate of Defence Counsel Services) in these matters.Charges range from causing the death of someone to pilfering items of military property or improperly using a military vehicle. Sentences correspond to the seriousness of the offence.There is a high conviction rate. In summary trials held under the code, 97 percent of accused people were found guilty.Convicted service people have a right of appeal to the Court Martial Appeal Court of Canada, a court comprising superior court judges from across Canada.Penalties include fines and jail time, but can also include a reprimand, suspension without pay, change in duties or even reductions in rank. These demotions can have significant effects, including loss of income and a severe impairment to one’s career advancement.Court martials or summary military trials are part of a parallel justice system that is significantly different than the civilian side. It is independent to meet the needs of the military and to ensure that Canada’s troops can maintain discipline, morale and effectiveness to provide the security to keep Canada a sovereign nation.
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