1 Recueils de la Societe Internationale de Droit Penal Militaire et de Droit de la Guerre 85 (1960)
Report on Canadian Military Law

handle is hein.journals/reindrom1 and id is 85 raw text is: REPORT ON CANADIAN MILITARY LAW

by Major F. R. BICKELL,
Deputy Judge Advocate
Mr. President and Members of the Congress :
In Canada, as in most other countries of the world, Military Law is an
integral part of the law of the land.
Our civilian and military societies are separate entities in the Canadian
community only insofar as the armed forces are organized and administe-
red under special laws created for the effective defense of Canada. This
principle obtains in times of war and peace and at home and abroad. Every
seaman, soldier and airman of the Canadian Forces is girst and foremost
a civilian, and secondly, a member of the armed forces. By status, there-
fore, members of the three services comprising the armed forces of Canada
are at all times amenable to the jurisdiction of both civil and military tri-
bunals.
The Parliament of Canada in 1950 enacted new legislation called
(<The National Defence Act a which was designed to satisfy the needs of
the Forces in a period wherein it became evident that there was a requi-
rement to gather together in one Canadian statute a re-statement of the
traditional principles which had been followed in the Canadian Forces.
The tradition and approaches being based on that inherited from the Uni-
ted Kingdom. The National Defence Act is the statute which provides for
the organization, discipline and administration of the Canadian Forces in
and outside of Canada >>.
It is noteworthy to mention that Canadian Military Law as it exists
today is largely the product of a careful and exhaustive study of the Mili-
tary Laws of other countries which have systems of criminal justice closely
resembling our own, namely the United Kingdom and the United States of
America. On the other hand, the substantive and procedural aspects of the
National Defence Act, particularly from the standpoint of trial and pu-
nishment, are identifiably Canadian in respect of the jurisdiction of a
commanding officer and are, in this matter; quite different from those of
other nations.
The organization of the Canadian Forces is based up on the theory of
a solidarity )) of units - from the largest to the very smallest. The Parlia-
ment of Canada, in recognition of this theory, has granted powers and im-
posed obligations upon Commanding Officers of units to enable and re-
quire them to exercise discretion in the first instance. This applies to all
cases in which proceedings against a member of a unit are contemplated
under the Code of Service Discipline.

85

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