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dc.contributor.authorLévesque, Pascal
dc.contributor.otherQueen's University (Kingston, Ont.). Theses (Queen's University (Kingston, Ont.))en
dc.date2016-09-21 21:13:11.399en
dc.date.accessioned2016-09-22T22:54:17Z
dc.date.issued2016-09-22
dc.identifier.urihttp://hdl.handle.net/1974/14945
dc.descriptionThesis (Ph.D, Law) -- Queen's University, 2016-09-21 21:13:11.399en
dc.description.abstractThere is a place where a Canadian citizen can be sent to 30 days detention, by someone who is not a judge, without being represented by counsel, and without having a meaningful right to appeal. It is the summary trial system of the Canadian Armed Forces. This thesis analyses that system and suggests reforms. It is aimed at those who have an interest in improving the administration of military justice at the unit level but want to sufficiently understand the issues before doing so. Through a classic legal approach with elements of legal history and comparative law, this study begins by setting military justice in the Canadian legal firmament. The introductory chapter also explains fundamental concepts, first and foremost the broader notion of discipline, for which summary trial is one of the last maintaining tools. Chapter II describes the current system. An overview of its historical background is first given. Then, each procedural step is demystified, from investigation until review. Chapter III identifies potential breaches of the Charter, highlighting those that put the system at greater constitutional risk: the lack of judicial independence, the absence of hearing transcript, the lack of legal representation and the disparity of treatment between ranks. Alternatives adopted in the Canadian Armed Forces and in foreign jurisdictions, from both common law and civil law traditions, in addressing similar challenges are reviewed in Chapter IV. Chapter V analyses whether the breaches could nevertheless be justified in a free and democratic society. Its conclusion is that, considering the availability of reasonable alternatives, it would be hard to convince a court that the current system is a legitimate impairment of the individual’s legal rights. The conclusion Chapter presents options to address current challenges. First, the approach of ‘depenalization’ taken by the Government in recent Bill C-71 is analysed and criticised. The ‘judicialization’ approach is advocated through a series of 16 recommendations designed not only to strengthen the constitutionality of the system but also to improve the administration of military justice in furtherance of service members’ legal rights.en_US
dc.languageenen
dc.language.isoenen_US
dc.relation.ispartofseriesCanadian thesesen
dc.rightsQueen's University's Thesis/Dissertation Non-Exclusive License for Deposit to QSpace and Library and Archives Canadaen
dc.rightsProQuest PhD and Master's Theses International Dissemination Agreementen
dc.rightsIntellectual Property Guidelines at Queen's Universityen
dc.rightsCopying and Preserving Your Thesisen
dc.rightsThis publication is made available by the authority of the copyright owner solely for the purpose of private study and research and may not be copied or reproduced except as permitted by the copyright laws without written authority from the copyright owner.en
dc.subjectMilitary Justiceen_US
dc.subjectSummary Trialen_US
dc.subjectLaw Reformen_US
dc.subjectMilitary Lawen_US
dc.subjectLegal Historyen_US
dc.subjectComparative Lawen_US
dc.subjectCanadian Charter of Rights and Freedomsen_US
dc.subjectConstitutionalityen_US
dc.titleThe Evolution and Reform of Summary Trials in Canadian Military Justiceen_US
dc.typethesisen_US
dc.description.restricted-thesisWith my supervisor’s concurrence, Prof Don Stuart, I request to restrict access to my thesis as I am currently in discussion with a legal publisher in order to have my work published as a monograph. That is why I also skipped the part pertaining to 'Creative Commons License'. This embargo on the whole thesis would serve to protect my rights to commercial publication and those of a potential third party. I understand that once restriction is granted by the Associate Dean of the School of Graduate Studies, my name, the thesis title and the thesis abstract (also known as the thesis metadata) shall be available through the usual online databases throughout the duration of the restriction.en
dc.description.degreePh.Den
dc.contributor.supervisorStuart, Donen
dc.contributor.departmentLawen
dc.embargo.terms1825en
dc.embargo.liftdate2021-09-21


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