Leadership of General George S Patton
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The constitutional basis for military law in Canada is found in the Constitution Act of 1867. Under the Canadian Constitution, the Parliament of Canada has exclusive authority to make laws relating to the “militia, military and naval service and defence.” Therefore, Canadian constitutional law accords the Federal Parliament the right to make laws relating to military justice.
NATIONAL DEFENCE ACT (NDA)
Using its constitutional authority, the Parliament of Canada has over time enacted a number of laws governing the armed forces raised by Canada. The National Defence Act (NDA) is the law currently in force and sets out, among a number of matters, the organization of the Department of National Defence (DND) and the CF as well as the particulars of the Canadian military justice system.
CODE OF SERVICE DISCIPLINE
The Code of Service Discipline is a central part of the NDA and comprises approximately one-half of the Act.
The Code of Service Discipline sets out the foundation of the Canadian military justice system including:
disciplinary jurisdiction
service offences
punishments
powers of arrest
the organization and procedures of service tribunals
appeals
post-trial reviews
As an Act of Parliament, the NDA takes precedence over both Regulations and Orders. This means that nothing in the QR&O, CFAOs, or DAODs may confer greater power or authority than that set out in the NDA itself. However, there are occasions on which the QR&O, for example, may place further limits on powers provided for in the NDA. An example of this is provided by section 147 of the NDA dealing with punishments imposed by service tribunals. Section 147 states: “The authority of a service tribunal to impose punishments may be limited in accordance with regulations made by the Governor-in-Council.”
As a result of this provision, the QR&O place greater limits on the sentences that may be imposed at summary trial than are provided for in the NDA. In the event that it is determined that these limitations should be changed, it is a simpler process to amend the QR&O than the NDA itself, as any changes to the NDA must be approved by Parliament.
In 1982 the existence and validity of the Canadian military justice system was implicitly recognized by the Charter, which forms part of the Constitution of Canada.
Section 11(f) of the Charter recognizes the right of a person