Major (retired) Tim Dunne is a veteran of 37 years as a Canadian Forces military public affairs officer, and has served in Canada, the U.S., Eastern and Western Europe, the Middle East and Africa. He was the chief of media relations at NATO’s Southern European Headquarters in Naples, Italy, from 2000 to 2004.
Military service is synonymous with discipline and tradition. But we wouldn’t expect regulations from more than four centuries ago to remain in force today.
So why is Section 129 of Canada’s National Defence Act, titled Conduct to the Prejudice of Good Order and Discipline, rooted in military law from the 1600s?
During the Thirty Years War, which lasted from 1618 to 1648, Sweden’s King Gustavus Adolphus set out his rules of warfare, or Articles of War, to govern the conduct of the army and naval forces in combat. They are believed to have been authored by his ally, the Scottish general Robert Monro (who held a command in Adolphus’s army), and then recorded by Robert Ward in his two-volume treatise, Anima’dversions of warre; or a militarie magazine of the truest rules, and ablest instructions, for the managing of warre, which drew from the experiences of the “Netherlandish” and Swedish wars. And in Gustavus’s rules, broad allowances were explicitly made so that commanders could punish soldiers for “whatsoever is not contained in these articles, and is repugnant to military discipline.”
Other monarchs would institute similar rules, too. In 1625, England introduced its own Articles of War, which were supplemented by the Mutiny Act in 1689 and, later, by the Army Act of 1881. But English military law lacked a catch-all provision for unspecified offences against military discipline until Adolphus’s rules were incorporated. By 1642, the Earl of Essex’s Articles of War specified that “all other faults, disorders, and offences not mentioned in these articles shall be punished according to the general customs and laws of war.” And by the early 18th century, Article 23 of Britain’s Army Act allowed for punishment for “all disorders or neglects … to the prejudice of good order and military discipline.”
This rule was useful for commanding officers, who enjoyed greater flexibility and ease in the assignment of punishments to military members. But it is not good law. In general, a good law should include a list of potential offences and the possible punishments that can be assigned to violators. But this is not the case with the Army Act, which stated that a conviction by court martial under Article 23 could lead to “imprisonment for a term not exceeding two years or any less punishment provided by this Act.” A superior officer could decide that just about anything prejudices “good order and discipline,” even if the offender did something as minor as wearing the wrong shade of socks with their uniform. With this formidable potential for abuse, it is little wonder that British soldiers labelled it the “Devil’s article.”
British traditions, of course, tend to flow into Canadian institutions. The British Army Act served as the source for Canadian military justice during the Boer War and in both World Wars. Then, in 1950, Canadian defence minister Brooke Claxton, a First World War veteran, rewrote Canada’s National Defence Act just as our military was preparing to deploy to Korea – and included a version of the Devil’s article. This relic of 17th-century military justice lives on in the act’s Section 129, which states that “any act, conduct, disorder or neglect to the prejudice of good order and discipline is an offence and every person convicted thereof is liable to dismissal with disgrace from Her Majesty’s service or to less punishment.”
With the implementation of the final increments of Bill C-77, which amended the National Defence Act (NDA) in 2019, minor breaches of discipline (termed “infractions”) are now addressed by summary hearings: a non-penal, non-criminal process based on administrative law principles and conducted at the unit level. A service offence is a more serious contravention of the NDA, the Criminal Code or any other act of Parliament committed by individuals while subject to the Code of Service Discipline (CSD). Service offences are dealt with at courts martial.
While Canadian soldiers may not have given it a satanic moniker, Section 129 strikes fear in their hearts all the same. As one retired senior non-commissioned member with a 26-year career in the Royal Canadian Navy told me, “Section 129 tends to turn simple summary trials or summary hearings into unfair proceedings, resembling a kangaroo court. Courts martial follow a similar pattern, often resulting in harsher punishments. It’s seen as a way for distant leaders and controlling officers to force obedience among troops.” This retired officer has asked to remain anonymous because he still worries about potential retribution by the military police – a testament to the problems with Canadian military law.
Another problem with Section 129′s flexibility is that it can offer an alternate route for those facing criminal charges. In 2015, a Quebec-based senior officer faced two counts of harassment under Section 129, and two counts of sexual assault under Section 130 (which states that Criminal Code charges are punishable under the National Defence Act). He was reassigned to Ottawa and charged. At the ensuing court martial, Brigadier-General Stéphane Lafaux, the accused’s superior commander, explained that the officer was relieved from his position one week after the event, as he “no longer trusted his capacity to command the unit.” He opined that there was no greater punishment for a commander than to be relieved of one’s responsibilities.
Following plea bargaining, the charges of sexual assault under Article 130 were stayed and the accused pleaded guilty to two lesser, non-criminal charges of harassment under Section 129, conduct to the prejudice of good order and discipline. By doing so, he avoided the consequences that would have come if he had been found guilty of equivalent criminal offences: a criminal record and, in the case of sexual assault, being listed in the National Sex Offender registry. His ultimate sentence, instead, was a “severe reprimand” and a fine of $2,000.
This kind of plea bargaining is a regular feature of the Canadian criminal justice system: an accused can barter for reduced sentences for a myriad of reasons, from saving the court’s time to gaining consideration for providing other information. But things can operate quite differently in the Canadian military system, where the Military Prosecution Service can lay charges for offences against an accused, but additional “alternate” charges are frequently added on under Section 129.
Some change in military law is happening, but not fast enough. In 2019, Bill C-77 amended the National Defence Act to eliminate detention up to 30 days for minor offences adjudicated at what are now called summary hearings. But it took another three years for the amendment to come into effect – and during that time, several military members were incarcerated. While these cases should be reviewed, the liberty that was stolen from them can never be returned.
Section 129 may have been designed to empower commanding officers with greater authority in punishing their subordinates, but jurisprudence in this country is not predicated on easing the burden of proof for the prosecution. Our military members, who are responsible for protecting our country and our people, even at the cost of their own lives, deserve the same principles of justice that we enjoy.
Editor’s note: March 19, 2024: This article has been updated to clarify the distinction between summary trials and summary hearings – which were created by the enactment of Bill C-77 – and the offences dealt with at courts martial.