A World That Has Walls: A Charter Analysis of Military Tribunals

RUBSUN HO

ABSTRACT

Military tribunals have evolved as a parallel system of justice that is generally insulated from civilian influence. In recent months, however, an increasingly intense public spotlight has focused on the practices of the Canadian military and alarmed civilians have questioned many of its traditional procedures. It has become clear that the Canadian Armed Forces can no longer operate in a vacuum. The advent of the Canadian Charter of Rights and Freedoms has put increasing pressure on the military to modify its judicial regime to conform with the values and guarantees advocated in the post-Charter era. In one of the rare military appeals considered by the Supreme Court of Canada, R. v. Genereux, the Court acknowledged the importance of a separate system of military justice, but also emphasized that such a system must accommodate Charter rights and freedoms. While s.11(f) of the Charter specifically denies the right to trial by jury to those who are tried by military tribunals, the principles underlying the conduct of a jury trial can serve as a useful benchmark in gauging the fairness of proceedings within the military justice system. In this article, the author examines military tribunals in the light of the minimum standards of fairness in criminal proceedings that are guaranteed in ss.7 and 11(d) of the Charter. The author argues that certain procedures used by military tribunals do violate the standards of fairness embodied in these sections, and that these violations cannot be justified under s.1 of the Charter.

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Citation: (1996) 54(1) U.T. Fac. L. Rev. 149.
Copyright © 1996. University of Toronto Faculty of Law Review.
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