Key allies watching closely to see how Canada handles sexual misconduct claims agains…

And they’re all wondering the same things. How would you try a current or former chief of the defence staff? What happens if charges are recommended against Gen. Jonathan Vance or Admiral Art McDonald?

Both Vance and McDonald are facing allegations of sexual misconduct. The top military commander is usually the ultimate disciplinary authority for those in uniform. Serving members of the military at that level tend not to face charges themselves — in fact, experts in military law told CBC News they can’t recall it happening anywhere else.

“I’m not aware of any country that’s had this senior of a leader facing these potential charges,” said retired U.S. Army lieutenant-colonel Victor Hansen, a professor of law at the New England School of Law, in Boston.

“So you guys are going to be the leaders, I guess, in charting the path for what to do or what not to do.”

‘It’s very difficult to hold them accountable’

Every military justice system, he said, is “premised on the fact that your leaders don’t do bad things. And so when they do do bad things, it’s very difficult to hold them accountable because the system doesn’t really anticipate that that’s what’s going to happen.”

Only a few U.S. military generals or admirals have gone to trial since the Second World War — and none of them were the highest-ranking officers at the time.

The U.S. Army has conducted courts martial for fewer than half a dozen major-generals. One U.S. Air Force general was charged recently with sexual offences but has not yet been tried — it’s the first case in the service’s 73-year history. The U.S Navy has conducted a court martial for just one admiral since 1945.

As is the case in Canada, the court martial process in the U.S. military justice system starts by convening a jury or panel to weigh the facts of the case — a jury composed of people with rank equal or senior to that of the person accused.

“You know, three, five or four star generals don’t just fall from the trees. There’s not that many,” said Hansen.

“I think it’s even worse in [Canada’s] situation, because we have, frankly, a large enough military that we can probably cobble together a panel of senior officers.”

Can you court-martial a CDS?

The question of how a court martial would work in a case involving high-level commanders becomes pertinent if charges are preferred against Vance or McDonald under the Code of Service Discipline. The military usually handles such charges through its separate justice system. Very serious criminal cases tend to end up in civilian courts.

CBC News asked the Canadian military’s Judge Advocate General’s Office (JAG) how a case against a current or former defence chief could be prosecuted within the military justice system, and whether it was considering any new mechanism to handle such a trial. The JAG did not respond.

Retired Canadian lieutenant colonel Rory Fowler, a military lawyer now in private practice in Kingston, Ont., said the JAG has a duty to ask and answer tough questions of itself behind closed doors and in public. 

“The first question that has to be asked is — can you actually try the CDS, or a senior general, by court-martial? I think the answer is no,” he said.

“The second question — and you only get to the second question if you’re willing to ask the first question publicly and discuss it — is, if you can’t prosecute them via court-martial, what are the alternatives?”

Fowler said the military could set up a mechanism to transfer disciplinary offences against the most senior officers to a civilian superior court.

“That’s entirely feasible,” he said. “In fact, you could do it now without amending the [National Defence] Act.

“But you only get to that second question if you’re willing to ask the first question and discuss it publicly, and the JAG and the director of military prosecutions clearly are not willing to ask that first question. So we’ll never get to the second question.”

The Americans don’t have that particular problem, said retired U.S. Navy commander Phil Cave, president of the National Institute of Military Justice.

Under the U.S. military justice system, the president, the secretary of defence and the civilian heads of the services have the authority to convene a court martial, if necessary.

“So the problem you’re having — who can prosecute this guy — I don’t think would exist here,” said Cave, who also noted that prosecutions of high-ranking military members are rare in the U.S.

The decision to court-martial a high-ranking American officer “would be purely political and up to the civilian administration.”

That doesn’t mean the American armed forces are immune to the reckoning taking place over sexual misconduct in the military. But there’s an added wrinkle in the American context: the remarkable power commanding officers there can wield over the court martial process itself.

Commanding officers in the U.S. can, in some cases, overturn court martial verdicts. The ability is a little-used prerogative of command — one that many say is outdated.

There was an uproar in 2013 when a U.S. Air Force lieutenant-general used the power to upend the sexual assault prosecution of a subordinate.

The U.S. Congress is seriously contemplating removing, or severely limiting, the authority of commanders under the uniform justice code — and instead leaving such cases entirely in the hands of military lawyers.

Many here in Canada have called for a reform of the military justice system that would take it out from under military authority.

Both U.S. lawmakers and the American military as an institution will be watching what happens in Canada very carefully, Cave said.