Key allies watching closely to see how Canada handles sexual misconduct claims against Vance, McDonald

It'sa uniquely Canadian conundrum.

The political, institutional and social meltdown in the Canadian Forces over misconduct allegations involving the country's most senior military commanders has piqued the interest of experts in allied nations particularly legal scholars.

And they're allwondering the same things. How would you try a current or formerchief of the defence staff? What happens if charges arerecommended against Gen. Jonathan Vance or Admiral Art McDonald?

Both Vance and McDonald are facing allegations of sexual misconduct.The top military commander isusuallythe 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.

"Soyou 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 trialsince the Second World War and none of them were the highest-ranking officersat the time.

The U.S. Army has conducted courtsmartialfor fewerthan half a dozen major-generals. One U.S. Air Force general was chargedrecently with sexual offencesbut hasnot yet been tried it's the first case in the service's 73-year history. The U.S Navy has conducted a courtmartial forjust one admiral since 1945.

As is the case in Canada, the court martial process in the U.S. military justice systemstarts by conveninga juryor panel to weigh the facts of the case a jurycomposed of people with rank equal or senior to thatof 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, becausewe 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 pertinentif charges are preferred againstVance orMcDonaldunder the Code of Service Discipline.The military usually handles such charges throughits separate justice system. Very serious criminal cases tend toend up in civilian courts.

CBC News asked theCanadian military's Judge Advocate General's Office (JAG)how a case against a current or formerdefence chief could be prosecuted within the military justice system,and whether it was considering any new mechanism to handle such a trial.TheJAG 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 askand answertough 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 questionif 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 amechanism 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 questionif 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 Americanofficer"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 oversexual 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 powerto upend the sexual assault prosecution of a subordinate.

TheU.S. Congress is seriouslycontemplating 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 militaryjustice 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.