In Nystrom v. R., 2005 CMAC 7, at paragraphs 64 to 85, the Court Martial Appeal Court of Canada (CMAC) expressed its deep concern about the then s.165.14 of the National Defence Act which gave the prosecution such a right. At paragraph 84, the CMAC noted that from 2003 to 2005 there were between 120 and 125 trials before courts martial and none of them had taken place before a court composed of panel members assisted by a military judge. The CMAC found that the statistics pointed to "the virtually inescapable conclusion that the power under section 165.14 is being abused".
In a subsequent decision, Trepanier v. R., CMAC 3, the CMAC declared that the provision was unconstitutional because the right to choose the mode of trial is a tactical advantage which partakes of an accused's right to present full answer and defence and control the conduct of his or her defence. At paragraph 103, the CMAC was of the view that "to give the prosecution, in the military justice system, the right to choose the trier of facts before whom the trial of a person charged with serious Criminal Code offences will be held, as do section 165.14 and subsection 165.19(1) of the NDA, is to deprive that person, in violation of the principles of fundamental justice, of the constitutional protection given to offenders in the criminal process to ensure the fairness of their trial ".
As a result of the Trepanier decision the law was changed. The right to elect and choose the mode of trial was given to the accused. In addition, the trial of serious ordinary criminal law offences was mandatorily assigned to the GCM. Consequently the number of trials before GCM has been on the rise.
Originally the selection of the panel members of a GCM was made by the convening authority. Obviously the potential implication of the chain of command in the selection process cast doubts on its integrity. The selection process was changed and, while the authority to appoint the panel members is in the hands of the Court Administrator, the selection is made at random out of a list of eligible candidates.
On the one hand, the actual process is cumbersome, particularly so with the increasing number of GCM. Subsection 111.03 of The Queen's Regulations and Orders sets up a list of exclusions of candidates from office. Questionnaires are sent to potential members of the panel to ensure that they don't fall within the ambit of these exclusions. On the other hand, contrary to the selection of juries in civilian trials, the process leaves little room, if any, for the prosecution and the accused to assess and challenge the compatibility, neutrality, impartiality, knowledge and interest of the would-be members. As a result of the existing process women are well under represented on the panels.
The military penal justice system allows for the trial of ordinary criminal law offences, including the most serious ones. Yet accused before military courts are given far less protection than the protection they would obtain before civilian courts. Ideally the trial of such offences should be returned to civilian courts. Failing that or until this happens, it is imperative that the existing selection process of panel members for GCM be modernized with a view to increasing its efficiency as well as its fairness for all the litigants. Not only justice would then be done, but would also appear to the general public to be done.