Military law

There are many types of law in Canada.  The varieties express the singular nature of each. Some for example embrace reciprocal behaviour (such as partnership law); others independent action (such as criminal law); others apply before death (inter vivos trust agreements), some only after death (wills). Apart from the Province of Québec which inherited the French Code Civil (the Napoleonic code enacted in 1804 as a child of the French Revolution) we’re predominantly part of the British “common law” system. The varieties of law can be broken among Administrative law, Aerospace law, Constitutional law, Contract law, Commercial (including Consumer, Partnership) and Corporate law, Civil Rights law, Civil Procedure law. Criminal law, Employment law, Environmental law, Esate (including Power of Attorney, Will, Succession, Trust) law, Family (including Marriage and Cohabitation) law, Immigration law, Insurance law, Intellectual Property (including Copyright, Defamation, Patent, Trademark) law, Landlord & Tenant law, Maritime Law, Mercantile law, Tax law and Tort (including Personal Injury) law.

All these laws in Canada are governed by one overriding scheme.

Peace, order and good government

 “Peace, order and good government” is a phrase that is used in section 91 of the British North America Act of 1867 (now called the Constitution Act, 1867). It offers a vague and broad definition of the Canadian Parliament’s lawmaking authority over provincial matters. Since Confederation, it has caused tensions between federal and provincial governments over the distribution of powers. The phrase has also taken on a value of its own with Canadians beyond its constitutional purpose. It has come to be seen as the Canadian counterpart to the American “life, liberty and the pursuit of happiness” and the French “liberty, equality, fraternity.”

Many of our “common law” derivatives (that is, the laws evolving from precedent) have been codified into various statutes (legislation) enacted by either the federal parliament or provincial governments. There are now for example a Criminal Code (federal) and a Partnership Act (Ontario).

There is however one area of law which distinquishes itself dramatically from all others; and that is Military law (not to be confused with martial law; viz., military government involving the suspension of ordinary law). Military law is the law which applies solely (and exclusively) to the military whether during peace time or otherwise. Think of it as independent as the Vatican is from the rest of the world. To be clear, at the federal level (that is, in matters of uniform legal concern throughout the Dominion of Canada) there are two separate legal departments: the Department of Justice (for the ordinary population) and the Judge Advocate General (for the military).

The judge advocate general of the Canadian Forces (JAG) is the senior legal officer who superintends the administration of military justice in the Canadian Armed Forces, and provides legal advice on military matters to the governor general, the minister of national defence, the Department of National Defence and the Canadian Armed Forces. The office is defined in section 9 of the National Defence Act.

When I attended Dalhousie Law School (1970 – 1973) my father, Group Captain C. G. William Chapman DSO got me a summer job in the office of the Judge Advocate General (Brigadier-General James M. Simpson, 1972-1976) in Ottawa, Ontario. Everything about the office and Brig-Gen. Simpson was unique.  A simple anecdote will suffice. Every morning the JAG and all lawyers in the office (including the 5 students – each of whom had some prior connection to the JAG whether by blood or otherwise) met at ten o’clock in the library where we sat at a long board table while coffee was served to us by a clerk.  First however we congregated at table and awaited the arrival of the Judge Advocate General. Upon his appearance in the library we all stood, greeted him, waited for him to be seated, then regained our positions.

This account illustrates what over centuries has become the very private domaine of military law governed independently by the Judge Advocate General. Prior to George III things were very different. I mention this to give you a sense of where it all began.

George III (George William Frederick; 4 June 1738 – 29 January 1820) was King of Great Britain and Ireland from 25 October 1760 until his death in 1820. The Acts of Union 1800 unified Great Britain and Ireland into the United Kingdom of Great Britain and Ireland, with George as its king.

Previously the British people were very reluctant to allow the creation of a standing army by either the king or parliament.  The underlying fear – which had already proven to be well founded – was that any one with a standing army was a threat to safety of the masses including the king himself. But when the threat of invasion by the Dutch with a standing army of 300,000 upon the shores of England occurred, the king and parliament began to take another look at the matter of confronting a skilled army with pitch forks and pikes in the hands of an untrained military.

“The Whigs had been in the constant habit of repeating that standing armies had destroyed the free institutions of the neighbouring nations. The Tories had repeated as constantly that, in our own island, a standing army had subverted the Church, oppressed the gentry, and murdered the King.”

A short bill was brought in which began by declaring, in explicit terms, that standing armies and courts martial were unknown to the law of England.

Enacted that, on account of the extreme perils impending at that moment over the state, no man mustered on pay in the service of the crown should, on pain of death, or of such lighter punishment as a court martial should deem sufficient, desert his colours or mutiny against his commanding officers. This statute was to be in force only six months; and many of those who voted for it probably believed that it would, at the close of that period, be suffered to expire. The bill passed rapidly and easily.

The matter of enforcement of the law became critical.

“For, of all the maladies incident to the body politic, military insubordination is that which requires the most prompt and drastic remedies. If the evil be not stopped as soon as it appears, it is certain to spread; and it cannot spread far without danger to the very vitals of (the nation).”

“For the general safety, therefore, a summary jurisdiction of terrible extent must, in camps, be entrusted to rude tribunals composed of men of the sword. A strong line of demarcation must be drawn between the soldiers and the rest of the community. For the sake of public freedom, they must, in the midst of freedom, be placed under a despotic rule. They must be subject to a sharper penal code, and to a more stringent code of procedure, than are administered by the ordinary tribunals.”

The debate which recurred every spring on the Mutiny Bill came to be regarded merely as an occasion on which hopeful young orators fresh from Christchurch were to deliver maiden speeches, setting forth how the guards of Pisistratus seized the citadel of Athens, and how the Praetorian cohorts sold the Roman empire to Didius. At length these declamations became too ridiculous to be repeated.

A mitigating clause indeed, which illustrates somewhat curiously the manners of that age, was added by way of rider after the third reading. This clause provided that no court martial should pass sentence of death except between the hours of six in the morning and one in the afternoon. The dinner hour was then early; and it was but too probable that a gentleman who had dined would be in a state in which he could not safely be trusted with the lives of his fellow creatures.

By slow degrees familiarity reconciled the public mind to the names, once so odious, of standing army and court martial. It was proved by experience that, in a well constituted society, professional soldiers may be terrible to a foreign enemy, and yet submissive to the civil power. What had been at first tolerated as the exception began to be considered as the rule.

As a student in the office of the Judge Advocate General I had two memorable instances.  I had overheard talk of Courts Martial in Europe. But the event which caused especial fuss was the tale of a soldier in Jamaica who went AWOL (Absent Without Leave).  He was drunk.  He drove off the base where he was stationed onto the open roads of Jamaica and hit a Cadillac containing 6 American businessmen, killing them all.  The issue at law was whether the Canadian government (the soldier’s employer) was accountable.  Initially the law was clear: namely, because the soldier acted beyond his accredited duties, the employer was not responsible.

I recall being in the office of the senior lawyer who was handling the case. The Crown (that is, Her Majesty in right of the government of Canada) was being sued by the New York lawyers of the American decedents for millions of dollars. The only evidence the American lawyers submitted to support the amount of their claim for compensation was a portfolio of photographs of the homes and summer residences of the deceased Americans.  The Judge Advocate General, after lengthy review of the matter, adjudicated that, in the best interest of foreign affairs between Canada and the United States of America, the claim of the American lawyers be accepted.  It is what in law is called an ex gratia settlement.

Compensation payments are often made ex gratia if a government or organization is prepared to compensate victims of an event such as an accident or similar but not to admit liability to pay compensation or for causing the event.

The other event I recall arose when we 5 law students were instructed to attend a meeting at another government office located nearby.  When we got there it was immediately apparent that we had been summoned there to “encourage” us to apply some of our excessive summer pay to a worthy charity (I think it was UNICEF).  I was livid.  During the presentation being given to us students by the appointed fund raiser, I stood up, removed myself from the room and walked back to the office.

Not long after I returned to the office I was called by the secretary of the Judge Advocate General himself, “inviting” me to come to his office. Naturally I did so.

To my surprise, when I got there, the JAG asked me very politely to have a seat.  He then joined me on my side of the desk for a more intimate conversation.  He apologized for having caused me to endure the recent fund raising pressure which he explained was part of a program previously developed throughout the entire Public Service Commission as a fund raising campaign.  He went on to embellish his apology by adding that, as a result of my action, the entire campaign had been aborted.

Well, I don’t mind telling you, I hadn’t been ready for that one!

The further embarrassment arose weeks later (shortly before I returned to law school) when a senior lawyer of the JAG offered me a job.  The specification was that, if I agreed to work for JAG for five years, I would be immediately elevated to the rank of an officer, my entire law school tuition would be paid, and if I didn’t like the work I could leave after five years, no strings attached. I turned it down.  It was the second most critical decision I have made in my entire lifetime.  The compensating recoveries are attributable first, to the Dean of Devonshire House, Univeristy of Toronto and the marvelous inhabitants of the Town of Almonte all of whom succeeded to mirror me to and elevate me from Trinity College, University of Toronto; and second, to my partner, Denis Arial, who has given me the best 28 years of my life. Without qualification all ’round!