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Military law is not something that applies to most of us. It is a very different system
that operates along with our ordinary law.
Until the end of the Second World War, Canada simply used British military law. After
the war, a review was conducted and resulted in the passage of the National Defence Act.
This Act entrenches the Department of National Defence and the Canadian Forces (air,
sea and land forces).
The Act also sets out a Code of Service Discipline that applies to military personnel.
This code sets up a whole system of “service offences”. They are basically
like criminal offences for the military.
Why a separate system of offences – one for the military and one for all other
Canadians? Mostly because the military wanted a quicker and more efficient system for
punishing offences than the regular criminal system. Also, many service offences have
a more severe punishment than regular criminal offences. Given the requirement for strict
discipline in the military, offences are not viewed with much compassion.
A separate system is also practical because many offences – for
example, desertion – are unique to the military. Many other offences such as theft
or damage to property are similar to regular criminal offences.
What happens to soldiers charged with a service offence? For many offences, they can
be judged in an informal manner by their commanding officers. Commanding officers can
also try many more serious offences, but with these the solider has the right to be tried
by a Court Martial. Technically, this term refers to a military court, not a punishment.
Possible punishments range from minor things such as confinement to barracks or extra
work detail to the reduction in rank, fines, imprisonment and even death.
One interesting aspect is the inter-relationship between the military law and regular
criminal law. The regular law continues to apply to members of the military. But they
will not be tried in two places for the same offence. This is called double jeopardy
in law. Which law ought to be used depends simply on the connection the offence has with
the military. Is it a military matter? Or has the soldier done something – on leave,
for instance – that would better be tried in a regular court?
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