This paper may not be reproduced, quoted or copied except with the express permission of the Canadian Department of National Defence. In examining the evolution of military bail, this paper provides a historical treatment of the law of bail in Canada as it relates to the military justice system, explores the current legislative framework and finally compares the military and criminal justice systems in certain key areas. Has the military justice system kept pace with the criminal justice system in meeting the demands of the Charter, or is it falling behind, creating a perception of disparity of justice for those in custody awaiting trial for service and civilian offenses tried before military courts be put in danger?.
In fact, criminal law has a natural lead in the development of bail law, and military law is on a consistent path and following suit. Specifically, section 11(f) of the Charter speaks of the existence of separate legislation for the military, which has its own powers of trial and punishment. Regardless of the further development of military law, whether the military justice system has caught up with the criminal justice system in meeting Charter requirements in this regard or is lagging behind risks the perception of unequal justice for those in custody awaiting trial for service offences.
Criminal law has a natural lead role in the evolution of bail law in Canada; military law is on a consistent path and keeping pace with it. With the advent of the Charter, the different legal departments in Canada could no longer remain unequal to each other.4 The Charter weakened the power of the supremacy of parliament by empowering the courts with full judicial review over the.
Historical Overview
Abuse of this process through corruption by sheriffs eventually led to the passing of this responsibility to Justices of the Peace in 1275 under the Statute of Westminster, I. Justices of the Peace trace their roots to 1195 under Richard I, who appointed local knights as Constables of Peace. Over time, the principles of the presumption of innocence and the right to release (section 11(d) and (e) of the Charter, respectively) have replaced concerns over the responsibility of the prison guard.
Justice of the Peace Act, Revised Statutes of Ontario, Chapter, J.4, as amended and repealed in 2009. Before the war, Claxton had identified flaws in the British military justice system in the Canadian model. Prior to the Charter, the constitutional roots of the law of bail in Canada appeared in the Canadian Bill of Rights passed in 1960 during the Diefenbaker government.
On the other hand, a right to bail began to appear in military justice in the year of the Charter's enactment in R. 11(e) on the development of military law has been far greater than that of the Canadian Bill of Rights, p.
Legislative Framework
Everyone has the right upon arrest or detention a) to be immediately informed of the reasons for it;. Every person who is accused of a criminal offense has the right .. a) to be informed about the specific criminal offense without unreasonable delay;. 15 and 91(7) sets out the National Defense Act, which provides for the composition of the Canadian Forces and the appointment of officers.
The provisions of the Seals Act further govern an officer's commission as he or she bears the Privy Seal:. Legal orders come from non-commissioned officers, starting with the Chief of the Defense Staff and descending. It is practice that the name of the party bringing the proceedings is mentioned first in the 'style of the case' (i.e. the title of the proceedings).48.
The legislative framework for this is also contained in Division 3 of the EPA as follows: 159.4 (1) The military judge may order that the person be released unconditionally or that the person be released on giving an undertaking to fulfill any of the conditions mentioned in article 158.6 that the military judge considers appropriate.
Comparison of Military and Criminal Justice Systems
Any understanding of the importance of a Custody Review Officer's role within the military justice system requires comparison with similar provisions of the Criminal Code under the Criminal Code of Canada. These lines and features must not be crossed or confused, especially in the public eye. Fortunately, the military bail provisions mirror those of the Criminal Code, reflecting the same bail grounds and many of the principles of the Bail Reform Act.
The fact that the military duty officer was present in the courtroom and ensured that the suspect's commanding officer would be informed of the facts. Custody Review Officers are authorized to review the continued detention of the suspect in custody immediately following his arrest and pending trial for offenses not designated under NDA, s. Private Thompson was subsequently released by a justice of the peace under the Criminal Code, s.
During this test, a Custody Review Officer must determine what the strength of the evidence is against the accused person. This is one of the most important tests in the law of bail for a number of reasons. During this test, a Custody Review Officer must determine the nature or seriousness of the alleged offense(s) and what the potential sentence might be if the person is convicted at trial.
The evidence in this context which the Custody Review Officer must consider relates only to the tests of bail and not guilt or innocence in respect of the alleged substantive offences. CROs and military judges must weigh the rights of the individual against the good of society. The creation of Custody Review Officers (CRO), combined with the provisions for hearing bail hearings before military judges, is an essential step in keeping up with the subsequent case law arising from challenges under section 11(e) of the Charter.
Law and Order: The Effectiveness of the Canadian Military Justice System in the 21st Century.” Toronto: Canadian Forces College, 2004. Report to the Attorney General of Ontario on the Office and Function of Justices of the Peace in Ontario. If so, have you determined why and is retention of the person still necessary.
158.6 (1) The detention officer may order that the person be released without conditions or that the person be released and as a condition of release be ordered to fulfill one of the following conditions: When deciding whether to issue instructions, the military judge shall take into account (a) the location of the person in custody ;