BOOK REVIEWS
Military Justice in Action book cover
Military Justice in Action: Annotated National Defence Legislation
by Mr. Justice Gilles Létourneau and Professor Michel W. Drapeau
Toronto: Carswell, 2011
1761 pages, $108.00
Reviewed by Richard Evraire
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Book reviews can be useful beyond enticing someone to download, borrow, or buy and read a book, or allowing that ‘pretend’ reader to feign knowledge of a book without ever actually having read it. They can be extremely critical, of course, and/or spur authors on to greater heights, to greater accomplishments, whether or not the authors intended to follow their initial or latest outpourings with an updated or more elaborate sequel on the same or a similar subject. Emphatically, in the case of the book under review,which follows their publication, in 2006, of Canadian Military Law Annotated,1 the authors have been spurred on, adding a second publication to what can only be described as a dearth of Canadian military law research and scholarly writing; a puzzling situation, given that over a million Canadians are subject to the provisions of military law.
This latest book is intended, in the authors’ own words, “… to present jurists and the lay reader with a comprehensive jurisprudential survey of Canadian military law and provide a reliable, relatively complete and authoritative companion reference work to our earlier text covering the entire sweep of Canadian military law.” In a review published in the Canadian Military Journal in 2007 of the authors’ Canadian Military Law Annotated, it was suggested that, while effective in its attempt to fill what is acknowledged to be a huge void in the literature addressing military law, the book had, in the judgement of the reviewer, “both minor and major shortcomings,” some related to editing, and some, attributed to omissions of important points of military law. The reviewer concluded by expressing “… [the] hope that others will fill the gaps left by this first effort.”
The authors’ second tome on Canadian military law not only contributes in an important way to filling the void in the literature, it brings to the attention of those responsible for providing the best possible legal education to aspiring members of the legal profession the importance of military law as a valid component of a good legal education, and allows an ever-increasing number of aspiring jurists to undertake courses in it.
It is important for those who are subject to the Code of Service Discipline – the officers and non-commissioned members of the Regular, Special Forces and Reserve components of the Canadian Forces, and others – to have access to and understand the legal framework under which they serve and/or have a responsibility for the application of the provisions of the National Defence Act (NDA). In the 1761 pages of this hefty volume, they will find the complete texts of the NDA, the Queen’s Regulations and Orders (QR&Os) [Vol. 1 – Administration, Vol. 2 – Disciplinary and Vol. 3 – Financial], the Military Rules of Evidence, and the Rules of the Court Martial Appeal Court of Canada. A very detailed and user-friendly index completes the volume, and headings on top of each page of the book provide the reader a quick reminder of which section of the NDA is being discussed.
Those who consult Military Justice in Action will delight in the annotation (the inclusion of critical or explanatory notes and commentary) of nearly all sections of the NDA. This feature, the result of extensive research by the authors who reviewed some 400 court judgements, makes understanding of the provisions of the Act much easier than would otherwise be the case. It also provides the legislator, the military law specialist, the member of the military hierarchy, the pedagogue, and the student of the law with jurisprudence reference points that connect each annotated section of the NDA to Canadian law. This is a feature of the book that should be of particular interest to all members of the Canadian Forces, given the challenges that are being brought to some sections of the NDA by the Charter of Rights and Freedoms, and by other phenomena of societal evolution.
It is good to be reminded, as the authors do, that those who are subject to the Code of Service Discipline do not suspend, displace, or supplant their rights under the Charter of Rights and Freedoms, and that any ‘limit’ to a given right or freedom must be shown by the Crown to be demonstrably reasonable and justified in a free and democratic society. In addition, readers of the book will benefit from knowing that, despite recent efforts to modernize sections of NDA, disparities continue to exist between Canadian common law and military law. For example, contrary to basic tenets of common law, Summary Trials conducted by the commanding officer of a member accused of disciplinary or criminal transgressions do not require that the commanding officer be legally trained, or that records of proceedings be kept. Furthermore, legal counsel may not attend the proceedings, nor does there exist a right to appeal Summary Trial findings, despite the fact that a maximum penalty of 30 days detention can be given. In addition, a civilian who is subject to the Code of Service Discipline, and who is tried by a General Court Martial, would face a military judge, a military prosecutor, and a panel of five Canadian Forces officers. Were this same civilian tried by a criminal court, he would be judged by 12 of his peers. As the authors make clear in their ‘Word of Introduction,’ legislators face a challenge in finding a way to bring the NDA more in line with the common law and Canada’s Charter-protected rights and freedoms by, for instance, reducing to a minimum possible the disparities between military criminal law and civilian criminal law.
Pointing to errors of fact or omission is usually an indispensable part of any book review. Given the enormity of the task the authors undertook, and the time needed to assemble and have the book published, it is understandable that some, but remarkably little information contained in the ‘Commentary’ provided on sections of the NDA needs correcting or updating. The reader who, for instance, is intimately familiar with today’s Canadian Forces and its educational institutions and Service Associations will notice that no mention is made of the post-graduate and distance learning programs provided by the Royal Military College of Canada (RMCC) (p. 141), nor is mention made (p. 143) of the fact that the Federation of Military and United Services Institutes of Canada (FMUSIC), created in 1973 to bring together into a cohesive whole the various autonomous and independent Military and Unites Services Institutes in Canada, was disbanded just over a year ago, causing the various Institutes to revert to their independent status. In fairness to the authors, these ‘inaccuracies’ are of no consequence to the main objectives of this book.
Finally, and most importantly, it is to Canadian military legal doctrine that Military Justice in Action makes its greatest contribution; a field almost devoid of the written works (legal texts, professional journal articles, treatise, précis, etc., authored by jurists, in the penal, disciplinary, administrative, and organizational domains) that one would assume would exist in great quantity on the subject of Canadian military law, and that explain, interpret, analyse, or comment on legislation or on Court decisions. Because these doctrinal writings are in such short supply, legislators, our military and civilian jurists, as well as our law faculties, are denied the quantity and quality of tools needed to better understand the principles and theories that underpin Canadian military law, tools that would include judicial references needed to undertake research projects on Canadian military legal matters and the information required to study and/or resolve specific legal problems related to Canada’s military.
The authors are to be congratulated for having accomplished what can only be described as a highly welcome tour de force.
Lieutenant-General (ret’d) Richard Evraire, C.M.M., C.D., is a highly experienced infantry officer who has commanded and served in high and varied appointments. He is currently Chair of the Conference of Defence Associations, and Chair of the Board of Governors of Royal Military College Saint Jean.
