FJAG
Army.ca Legend
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putz said:I'm just hoping that the review of the Military law/NDA that's being conducted can help correct situations like this and move more towards how civilian courts operate.
That's actually harder to do then it sounds.
Civilian courts - specifically the Superior Courts/Courts of Queen's Bench are what are called courts of inherent jurisdiction which means that they have the jurisdiction to deal with any matter brought before them unless the matter is specifically excluded by legislation. They basically inherit the common law jurisdictions of the British courts from before confederation.
Courts Martial, on the other hand, are inferior courts or courts of limited jurisdiction. These courts have no inherent powers and can only do what is specifically allowed for them to do by legislation. In fact the court does not exist from day to day the way that the superior courts do (although the judges and staff are there full time). A court only comes into existence when it is "convened" which you might remember used to be when a general officer who was a convening authority gave an order convening it. This reaches back to the day when serving officers headed by a president of the court (sometimes assisted by a judge advocate) made all the rulings on both law and fact. There are some powers where a military judge has powers without there being a convening order such as an NDA s 159 custody review show cause hearing.
Things have changed significantly but still, every time that we want to work more like civilian courts, we need legislation to make that possible. Legislative changes come very slowly both because the military is a very conservative type of organization which doesn't rush into change and also because parliament is very slow to allocate time for NDA related matters; we're a low priority unless we're embarrassing the government when suddenly things speed up. The Somalia affair allowed DND to ram through much legislation which had been in limbo for a decade or more.
:cheers: