2003 N.Z. Armed F. L. Rev. 51 (2003)
Military Law Reform in Canada

handle is hein.journals/nzaflr3 and id is 51 raw text is: MILITARY LAW

Military Law
REFORM in Canada

David McNairn

n many respects, the last decade has been
a painful one for Canada's Department of
,m National Defence and armed forces. Fiscal
restraint during the 1990s resulted in severe
budget cuts for the defence department.
Numbers of military personnel have been in
decline, the quality of life of service
personnel has been questioned, the tempo of
operations has strained military resources,
and some would argue that military
capabilities have eroded. The activities of the
Canadian Forces (CF) came under
increasing, frequently unfavourable scrutiny
in the media and public arena. However, it
was the deployment of the CF to Somalia on a
peacekeeping mission in 1992 -1993 that
proved to be a turning point and catalyst for
fundamental changes in the way Canada
conducted its military affairs. During that
mission, a Somali youth in the custody of the
CF was brutally beaten and died of his
injuries. This crime set off a chain of events
that led to intense public examination of
military affairs, a series of courts martial, a
government commission of inquiry, a variety
of independent studies commissioned by the
government, and a wholesale overhaul of
Canada's 50 year old defence legislation. Bill
C-25,2 passed by Parliament in 1998, brought
about fundamental changes to Canadian
military law, particularly the military justice
system. A unique legacy of Bill C-25 is a
provision that requires an independent
review of the provisions and operation of this
amending law to be carried out every five
years. The formidable task of conducting
such an independent review was placed in
the hands of one of Canada's leading jurists
in March 2003 and will be completed by
September 2003. The independent review
process set out in Bill C-25 has the potential
to become a model for the review, reform and
1. BA, LLB, MA. Barrister and solicitor of
Ontario. The author has served as a regular and
reserve force legal officer with the Office of the
Judge Advocate General of the Canadian Forces
and is currently employed as a lawyer with the
Canadian Department of Justice. Past chair of
the National Military Law Section, Canadian Bar
Association. The views expressed in this article

Military courtroom at the Asticou Centre in Gatineau, Quebec.

continuing revitalization of military law,
although only time will tell if the Government
of Canada will embrace the changes
recommended by the independent review
authority.
History of Canadian defence legislation
Under the Canadian constitution, the
Parliament of Canada (ie federal
government) has the exclusive authority to
make laws relating to the 'militia, military
and naval service, and defence.' Since
Canada came into existence as a nation in
1867, the federal government has passed a
variety of laws dealing with defence.4 This
legislation favoured expediency and
integration with British military institutions
do not necessarilyv represent the views or official
policy of the Government of Canada, Department
of Justice, Department of National Defence or
Canadian Forces.
2. n Act to amend the National Defence Act and
to make consequential amnendments to other Acts,
SC 1998, c 35.
3. Constitution Act, 1867 (formerl.y British North

over the development of a uniquely Canadian
military code. By and large, this early
Canadian defence legislation simply
incorporated British military law and their
military justice system into Canadian law by
reference. Therefore, for the period 1867
until World War II, the history of Canadian
military law is essentially identical to the
history of British military law.
World War I brought a rapid and
tumultuous expansion of Canada's armed
forces. Canadian soldiers were tested in the
trenches and on the battlefields of Europe.
Some were found to be lacking and faced the
judgment of the military justice system.
Under the authority of the British armed
forces, of which Canada's military forces
America Act 1867'), 30 & 31 Victoria, c 3, s 91(7).
Canada's 10 provinces have the legislative powers
set out in s 92 of the Constitution Act 1867.
4. For example, Militia Act, SC 1868, c 40; Naval
Service Act, SC 1909 10, c 43; and Royal
Canadian Air ForceAct, SC 1940, c 15.

[2003] New Zealand Armed Forces Law Review e 51

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