Why “The Military Justice Project”?

Lieutenant-Colonel (retired) Rory Fowler, CD, BComm., LL.B., LL.M.

This Blog is intended to provide a platform for scholarship and reasoned discussion and debate concerning issues of military law.  And, if I’m being entirely honest, it will also be an outlet that will permit me to vent – hopefully in a reasonably scholarly fashion – concerning what I perceive to be unreasonable or unsupported decision-making.

By why is the Blog entitled “The Military Justice Project”?

In large part, the name I selected is grounded in what I consider to be an unreasonably narrow perspective concerning the role of the Judge Advocate General (JAG) as ‘superintendent of the administration of military justice in the Canadian Forces’.

Section 9.2 of the National Defence Act (NDA)^[1] presently states:

(1)  The Judge Advocate General has the superintendence of the administration of military justice in the Canadian Forces.

(2) The Judge Advocate General shall conduct, or cause to be conducted, regular reviews of the administration of military justice.

The received wisdom, not only of the current JAG, but several of her predecessors, is that ‘military justice’ is either limited to, or synonymous with, the Code of Service Discipline.  Consequently, the focus of the Office of the JAG, at least when it comes to ‘superintendence of military justice’, has been on the Code of Service Discipline.  Conceptually, this would exclude important issues of justice such as grievances and other significant administrative statutory decision-making.

To me, this never made sense.  Decision-making concerning grievances, compensation and benefits, remedial measures, and any of a number of so-called administrative decisions can have equal, or greater, impact on the career and life of a CF member.  This is particularly true where such administrative decisions appear increasingly to be used instead of the Code of Service Discipline.  So why does the JAG take such a narrow view of her superintendence role (and, equally, why did her predecessors do likewise)?

Consequently, if we are going to examine the role of public statutory decision-making under the NDA, an appropriate title for such an undertaking is: The Military Justice Project.

So, let’s take a look at what it means to superintend military justice.

In her inaugural address when she was appointed JAG, Commodore Bernatchez (as she then was) emphasized the importance that the Office of the JAG maintain and strengthen its relevance in the CF.  In light of the significant actions that are being taken by CF leadership in relation to Op HONOUR, the JAG’s superintendence of military justice and the relevance of the role of the Office of the JAG take on significant proportions.

The current received wisdom in the Office of the JAG appears to be that ‘military justice’ equates, roughly, to the Code of Service Discipline.  The Deputy Judge Advocate General – Military Justice is generally tasked with providing research, analysis, and positional advice regarding various aspects of the application of the Code of Service Discipline – military justice at the summary trial level, courts martial, and similar issues.  However, is it accurate or proper to draw this rough approximation?

I suggest that, conceptually, equating ‘military justice’ to the ‘Code of Service Discipline’ is incorrect and artificially narrows the JAG’s responsibilities, to the detriment of the true application of military justice.  While an expansive examination of the division of responsibilities within the Office of the JAG lies beyond the scope of this blog article, it does suggest that, perhaps, a re-evaluation of the JAG’s role might ensure that ‘justice prevails’ in the broader administration of the affairs of the Canadian Forces, thereby rejuvenating the relevance of the Office of the JAG.

This Blog article suggests that ‘superintendence of military justice’ actually empowers the JAG to ensure that the rule of law is observed in the broader administration of the affairs of the CF, including the Code of Service Discipline, but also extending beyond this subject.  The current application of policies under Op HONOUR provides a useful litmus test to establish whether the JAG is truly superintending military justice in this broader sense.

To be frank: much of the rationale for the name of this Blog will be moot in light of the definition of ‘military justice’, proposed under Bill C-77[2].  [When I initially drafted this Blog, Bill C-77 was still before the Senate.  It has since passed in the Upper Chamber and the House of Commons, and received Royal Assent.  However, only a few of the provision in the Bill came into force at that time.]  Bill C-77 defines ‘military justice’ as “… all aspects of the application of the Code of Service Discipline …”.  Thus, once this provision comes into force, one term of art employed in the NDA will, essentially, be defined by another, separate, term of art in the NDA.  I consider this to be problematic from a conceptual perspective.  If the legislative intent was to give the JAG superintendence over the Code of Service Discipline, why not simply amend sub-section 9.2(1) to state that “The Judge Advocate General has the superintendence of the administration of the Code of Service Discipline.”?  Why use such a convoluted definition?  Could the reason be a rather awkward attempt to ‘retcon’ the definition of ‘military justice’ to conform to the problematic definition that has been applied by the JAG for the past 2 decades?

I suggest that narrowing this definition through a disingenuous statutory amendment further limits the role of the JAG in ensuring respect for the Rule of Law in statutory decision-making in the CF.  While an advocate for this limitation could credibly assert that the amendment – specifically, the addition of a statutory definition for ‘military justice’ – reflects the ‘will of Parliament’, there is an equally credible position that this amendment was tacked onto the ‘Victims’ Rights’ amendments represented by Bill C-77 in a slightly disingenuous manner.  Certainly, this seemingly innocuous definition was not the subject of any meaningful debate in either chamber.

Ultimately, even if Parliament has legislatively narrowed the definition of ‘military justice’ (or, perhaps more accurately, even if the Office of the JAG has pushed a statutory amendment through Parliament), this Blog will take a conceptually broader approach to military justice’.  The ‘inaugural’ post that follows explains why I will do so.

Background

The position of the JAG dates back to 1911^[3], from that point, throughout most of the First World War, there was no Office of the JAG, which was created in the closing months of that global armed conflict^[4].  Today, the Office of the JAG exists as an ‘other element’ of the Canadian Forces^[5].  It is not precisely a unit; nor is it a Formation or a Command (although the JAG has been granted the powers of an Officer Commanding a Command)^[6].  All legal officers whose duty it is to provide legal advice are – and must be – posted to the Office of the JAG.^[7]  It is something that distinguishes Canadian Legal Officers from American Staff Judge Advocates – the chain of command for legal advisors of the Canadian Forces is through the Office of the JAG.  It is not a ‘Tech Net’.  It is their actual chain of command.

The ‘modern’ NDA was enacted in 1950^[8].  This Act combined a variety of distinct legislation concerning the administration of the affairs of the CF, including the diverse disciplinary regimes applying to, what were then, the distinct services that comprised the CF.  Note what the Act said of the appointment of, and the exercise of powers by, the JAG:

10. (1) The Governor in Council may appoint a barrister or advocate of not less than ten years standing to be the Judge Advocate General of the Canadian Forces.

(2) The powers, duties and functions of the Judge Advocate General may be exercised by such other person as the Minister may authorize to act for the Judge Advocate general for that purpose.^[9]

Subsection 10(1) of the 1950 NDA is largely the same as subsection 9(1) of the current NDA (save for the inclusion of “… of a province or territory…” qualifying the standing of the barrister or advocate).  Subsection 10(2) is reflected in section 10 of the current NDA.

The “superintendence of military justice” was introduced in the 1998 amendments^[10] to the NDA, as were other provisions relating to the JAG.  Here’s what the legislative summary, prepared by the staff of the Parliamentary Research Branch^[11], for Bill C-25 states concerning the amendments to the provisions relating to the JAG:

Clause 2 [of Bill C-25] would amend sections 9 and 10 of the Act in order to clarify the qualifications and responsibilities of the Judge Advocate General of the Canadian Forces and to strengthen the office’s independence from the chain of command by providing for some security of tenure for the post.

The amended section 9 would specify that the Judge Advocate General designate would have to be an officer in the Canadian Forces (this is not currently specified in the Act, although it is the practice); the Judge Advocate General would also have to be a lawyer qualified in Canada for at least 10 years; and the appointment would be for renewable terms of up to four years each (currently, no period is specified for the appointment). However, the Judge Advocate General would continue to serve “during pleasure,” meaning that an incumbent could be removed or replaced by the authority that had made the appointment – in this case, the Governor in Council. Under a new section 9.3(1), the Judge Advocate General would be responsible to the Minister of National Defence in the performance of the duties of the position. A new section 9.4 would stipulate that the Judge Advocate General would have to hold at least the rank of brigadier-general, consistent with current practice. Clause 2 would also amend section 10 of the Act to require any officer authorized to act as a substitute of the Judge Advocate General to have the same minimum professional qualifications as the Judge Advocate General.

Clause 2 would also set out in the Act the general duties of the Judge Advocate General to be legal adviser on matters of military law to the Governor General, the Minister of National Defence, the Department of National Defence and the Canadian Forces; and to perform general oversight of the administration of military justice in the Canadian Forces. More specifically, the Judge Advocate General would regularly have to review and report on the administration of military justice and would be responsible for the preparation of an annual report on this subject to the Minister of National Defence, who would, in turn, be required to table the report in Parliament.^[12]

Bill C-25 enacted three significant changes to the administration of the affairs of the CF, and to what I suggest constitute elements of military justice.  First, it made significant changes to the jurisdiction and practical application of the Code of Service Discipline.  Second, it made significant changes to the statutory grievance process.  Finally, it introduced statutory provisions relating to the governance of military police. These statutory changes were followed closely by regulatory amendments intended to implement the statutory changes.  Although there were further statutory and regulatory amendments to all three subject areas over the past two decades, most of these could be characterized as adjustments arising from either lessons learned or judgments of appellate or reviewing courts.  The nature and scope of the changes introduced in 1998 have direct bearing on determining what ‘military justice’ really means.

Military Justice^[13]

The term ‘military justice’ is not yet defined at section 2 of the NDA.  Nor is it expressly defined anywhere else in the NDA.  Bill C-77 defines the term as “… all aspects of the application of the Code of Service Discipline.”

Upon reading this proposed amendment to the NDA, my first reaction was: ‘why’?  Why finally get around to defining this term of art after 20 years of no definition?  And why define it, essentially, by using another term of art from the NDA?

It strikes me as being a little disingenuous; it has the appearance of attempting, retroactively, to fix a problematic interpretation of the NDA.  Let’s not delude ourselves about the origin of this proposed amendment to the NDA: its source is likely not a Parliamentarian or even a legislative drafter with the Department of Justice.  Its origin is likely the Office of the JAG and aDivision within that ‘other element’: Deputy Judge Advocate General – Military Justice.

But, it is only a matter of time before this provision from Bill C-77 will become law.  Much of the analysis herein will consequently become moot regarding statutory interpretation.  However, from a conceptual perspective, I still wish to examine how the NDA might presently be interpreted (and how this term of art should have been interpreted for the past two decades).

Like ‘military justice’, the Code of Service Discipline is also not defined at section 2 of the NDA.  However, Part III of the NDA is entitled ‘Code of Service Discipline’ and it is likely not controversial to suggest that the Code of Service Discipline encompasses offences (as well as the incorporation of offences under other Acts of Parliament), summary trials, and courts martial, and is defined as the disciplinary code of the CF under Part III of the NDA and Volume III of the QR&O.

It is also likely uncontroversial to suggest that the Code of Service Discipline does not encompass grievances (which are subject to legislative provisions under Part II of the NDA and Volume 1 of the QR&O) or the governance of military policing (Part IV of the NDA, and Volume I of the QR&O as well as some provisions in Volume IV of the QR&O).

The seeming received wisdom that ‘military justice’ is roughly equivalent to the Code of Service Discipline is problematic.  While neither term is defined in section 2 of the NDA, both terms are used as terms of art under the NDA and can be defined inferentially.  Since Parliament uses both terms in the NDA, there is a presumption that Parliament intended separate meanings for the terms^[14].  Conceptually, there are three potential relationships between these two concepts: (i) they are not connected; (ii) military justice is a component part of the Code of Service Discipline; or, (iii) the Code of Service Discipline is a component part of military justice.  The first two possibilities are not consistent with the structure of the NDA; only the third makes logical sense.

It would be difficult to suggest that the Code of Service Discipline is not connected, in some way, to military justice, regardless of how the latter term is defined.  The Code of Service Discipline has been characterized as an internal ‘criminal code’ for the CF.  While crude, such a characterization is not far off the mark.  More recently, the Chief Justice of the Court Martial Appeal Court of Canada (CMAC) has characterized the Code of Service Discipline as a parallel system to the criminal justice system – neither superior, nor subordinate, to the civilian system.^[15]

It would be equally difficult to suggest that the intended meaning of military justice was that it was a component part of the Code of Service Discipline.  Several provisions under Part III of the NDA (“The Code of Service Discipline”) make mention of the “…administration of military justice…” in the context of the exercise of powers.  The manner in which the term is used throughout – and not exclusively in – Part III of the NDA appears to imply that the Code of Service Discipline is a component part of ‘military justice’.

The same amendments that introduced the JAG’s ‘superintendence of military justice’ introduced significant changes to the Code of Service Discipline, the statutory grievance process, and the governance of Military Police.  This was not a mere coincidence.  These amendments were precipitated by a variety of inquiries and examinations in the 1990s, including the Somalia Inquiry^[16], the Doshen Report^[17], and the Dickson Report^[18].  I have suggested previously that the CF grievance process exists within a broader, comprehensive system intended to deliver timely and effective justice to CF personnel.^[19]  Ultimately, the Code of Service Discipline, the CF grievance process, and the statutory Military Police complaints process are all means of ensuring that the rule of law is applied in the administration of the affairs of the CF.

Finally, it would not be a conceptual stretch to suggest that military justice is to the military what justice is to the broader society.  Compare section 9.2 of the NDA to paragraph 4(b) of the Department of Justice Act^[20]:

4 The Minister is the official legal adviser of the Governor General and the legal member of the Queen’s Privy Council for Canada and shall

…

(b) have the superintendence of all matters connected with the administration of justice in Canada, not within the jurisdiction of the governments of the provinces; …

The Minister of Justice (and Attorney General) superintends not just criminal justice, but the administration of justice in Canada.  While it may be a crude comparator, the JAG acts in the same regard to the Canadian Forces and military justice.  While the JAG’s duties, powers and functions do not represent a “… derogation of the authority of the Minister of Justice and Attorney General of Canada under the Department of Justice Act…”, the JAG’s duties, powers and functions may also be interpreted in light of that other Act of Parliament.

Granted, if the NDA is amended to define ‘military justice’ expressly as representing all aspects of the Code of Service Discipline, then much of the foregoing analysis is largely semantic, as the Act would expressly define that term of art.

But I return to my previous question: why make that amendment?  The result would be that one term of art (military justice) would essentially be defined by a different term of art (Code of Service Discipline), which, itself, is not (and would not be) expressly defined under the NDA.

Wouldn’t it be simpler to amend section 9.2(1) of the NDA to read: “The Judge Advocate General has the superintendence of the administration of all aspects of the Code of Service Discipline in the Canadian Forces.”?  That would be the straightest line between two points.

Perhaps the shortcoming of this approach would be that the JAG would have to admit that the received wisdom over the past 20 years was short-sighted, or worse, just plain wrong.

Superintendence

Putting aside the amendment of Bill C-77, there is a compelling argument that the JAG’s ‘superintendence’ encapsulates a broader function of military justice, such as grievances and governance of military police.  But what does ‘superintendence’ entail? As with ‘military justice’ and ‘Code of Service Discipline’, this term is not defined at section 2 of the NDA.  Nor is a definition proposed in Bill C-77.  As indicated above, a parallel can be drawn between the JAG’s role under the NDA with the Minister of Justice’s (Attorney General’s) role under the Department of Justice Act.  This is not a new concept for the Minister of Justice, who has had this role since Confederation^[21].  It was indubitably an inspiration for redefining the JAG’s role in 1998.

The Oxford English Dictionary defines ‘superintendence’ as responsibility “… for the management or arrangement of (an activity, etc.); supervise and inspect… ”.  While the ‘chain of command’ (a term that is not defined under the NDA but which is used extensively by those who administer the affairs of the CF) will generally be responsible for much decision-making relating to military justice, the JAG’s role appears to be that of an inspector of legal validity.  Such a role is consistent with the JAG’s advisory role, defined at section 9.1 of the NDA: “The Judge Advocate General acts as legal adviser to the Governor General, the Minister, the Department and the Canadian Forces in matters relating to military law.”  Military justice, presumably, is a product of the proper application of military law.

‘Superintendence of military justice’ clearly was not intended to give the JAG exclusive or dominant jurisdiction over ‘military justice’ broadly, or the Code of Service Discipline specifically.  The NDA describes definite duties, powers and functions for a variety of statutory actors within the Code of Service Discipline, the grievance process, Military Police complaints, and other processes in the administration of the affairs of the CF.

For example, a commanding officer (CO) has well-defined roles under the Code of Service Discipline and the CF grievance process.  These duties, powers and functions are amplified under the QR&O.  These processes remain tools within the authority of the ‘chain of command’.  The application of discipline under the Code of Service Discipline, the redress of grievances under the CF grievance process, and the resolution of other complaints, all clearly fall within the exercise of duties, powers and functions of those charged with the leadership of the CF, whether at the unit, Formation, Command, or national level.

However, such exercise of command is not conducted in a vacuum.  Ultimately, whether a CF decision-maker is applying the Code of Service Discipline, resolving a grievance or other complaint, or exercising myriad powers or functions, that decision-maker is exercising statutory powers or functions.  These powers and functions have statutory (read: legal) parameters.  In some cases, the decision-maker is obliged to seek legal advice from a legal advisor from the Office of the JAG.  In such cases, the decision-maker is not obliged to follow that advice, but there are consequences (limited though they may be) for failing to seek advice and, having sought it, failing to follow it without good reason.

Even when a decision-maker is not obliged by legislation to seek legal advice, where decisions involve legal considerations, decision-makers will typically seek the advice of their unit legal advisor.  For example:

• How many CF decision-makers would avoid seeking the advice of their legal advisor when conducting targeting determinations or making other similar significant decisions in the application of lethal (or even non-lethal) force?
• Where a CF member brings a claim against the Crown, or threatens to do so, are CF decision-makers inclined to consult their legal advisor?
• When faced with resolving complex or difficult complaints, would a CO or other decision-maker typically turn to his or her legal advisor?
• When developing significant personnel policies, are legal advisors to CMP involved?

Superintendence does not give the JAG ultimate jurisdiction over the decisions made.  Even if ‘military justice’ somehow equates solely to the Code of Service Discipline, there is no indication that the current or previous JAGs have taken the position that she or he exercises (or exercised) the final decision-making authority for matters under the Code of Service Discipline.  ‘Superintendence’ as it is used at section 9.2 of the NDA appears to equate to the providing legal guidance and review.

Essentially, the JAG’s role is to ensure that statutory decision-makers respect the rule of law and are informed of the consequences if they do not.  I note, tangentially, that the JAG’s role does not supplant that of constitutionally independent judiciary, who can also potentially play a role when statutory decision-makers fail to respect the rule of law.

Why should the definition of ‘Military Justice’ concern members of the CF?

A previous blog article by this author concerning potential pitfalls of Op HONOUR-related rhetoric^[22], postulated the risk of increasingly using administrative measures as disciplinary punishments and in using Op HONOUR as a justification for derogating from basic principles of fairness and reasonableness in statutory decision-making.  These are questions about the extent to which the rule of law will inform CF decision-making.

There are anecdotal indications that, in an increasing number of instances under the auspices of Op HONOUR, CF decision-makers are rushing to judgment regarding some complaints and taking action in a manner that is neither reasonable nor procedurally fair.  Granted: this is a bold assertion on my part.  It arises from anecdotal observations.  But I am confident that many CF personnel, regardless of position, rank, or role, have likely encountered problematic decision-making under Op HONOUR over the past 3+ years.

Anecdotal evidence has its limitations.  One of those limitations also relates to any purported ‘statistical analysis’: each contentious matter must be determined on its own particular facts.  However, what some anecdotes tend to highlight is that the data gathered under Op HONOUR (or, at least, the data publicized in the Progress Reports) appears to be selectively based upon those results that support the CDS’ desire to demonstrate that ‘something is being done’.  The data does not appear to track any abuse of authority or abuse of process relating to the implementation of Op HONOUR.

Previously, in a Blog published on a different website, I provided an examination of some of the factual and analytical deficiencies of the CDS’ Third Progress Report on Addressing Inappropriate Sexual Behaviour^[23], delivered at the end of April 2017.  While I will not be reiterating that analysis here, in a future Blog post on this site, I will provide commentary on the “Canadian Armed Forces Progress Report #4 Addressing Sexual Misconduct”.

What I have observed is that there appears to be an increasing reliance on ‘administrative measures’ rather than the Code of Service Discipline as a remedial tool for alleged misconduct.  Often, those remedial measures are severe, such as compulsory release under what can be characterized as a ‘negative’ release item.

Consider the differences in the administrative and disciplinary processes.  While the burden of proof in the former is lower than in the latter, I have previously explained that significant administrative action, such as compulsory release, would still require proof that is clear, convincing, and cogent.^[24]  I suspect that it is not simply a question of the evidentiary burden, but, more importantly, the extent to which a constitutionally independent court of competent jurisdiction will review the actions by the chain of command, as well as the timing of such a review.

I also explained in the same previous article^[25] that a compulsory release due to contravention of Op HONOUR or related policies must first be grieved by the affected CF member under the purportedly adequate alternative remedy that is the CF grievance process.  The compulsory release could be implemented as quickly as 30 days after the decision is made by Director Military Career Administration (DMCA).  The grievance might be adjudicated by the initial authority (IA) within 4 months^[26].  If it is not, or if the grievor is not satisfied with the IA’s determination, the grievor can then seek determination by the final authority (FA): the CDS (or his delegate).  There is no limitation period on when the FA must consider and determine the grievance.

But how likely is it that the CDS (or one of his delegates) will criticize the substance or implementation of his own operation order?  If the grievor is lucky, he will have a determination by the FA within a year (or two).  It is only at this point that the grievor may seek review of the determination by a constitutionally independent court of competent jurisdiction.  Of course, he will already be a civilian by then, and the 2013 statutory amendment to the NDA that would permit the CDS to reinstate someone who was ‘improperly released’ administratively^[27], has not yet come into force^[28].

The data being gathered by the CF concerning Op HONOUR does not appear to extend to:

• Allegations that are eventually determined not to have been founded^[29];
• Actions taken by the chain of command against a respondent to an Op HONOUR-related complaint which have subsequently been reversed or over-turned; or
• Actions taken by the chain of command under Op HONOUR that are determined to have infringed a CF member’s Charter rights (e.g. unlawful or unwarranted arrest, unlawful search and seizure) or the member’s rights under administrative law.

Of course, such data does not fit within the narrative that the CDS appears to be pursuing with Op HONOUR.

It is time to take stock of the effect of Op HONOUR.  However, the data being collected by the CDS only tells part of the story.  It is clear that the CF will continue to rely principally upon administrative sanctions against those members of the CF who are accused of sexual misconduct, rather than the Code of Service Discipline.  This marked preference appears to echo a similar trend over 20 years ago when the chain of command appeared to have partially abandoned reliance on the Code of Service Discipline in favour of more expedient ‘administrative punishments’^[30].  It appears that we have come full circle to the point in time that precipitated the ‘military justice’ amendments to the NDA.

The implementation of Op HONOUR is unmistakably a central issue in the administration of justice within the CF – or, perhaps more accurately, the administration of military justice.  The fact that the actions by the chain of command focus predominantly on administrative, not disciplinary, actions does not alter this undeniable reality.

The question is whether the JAG will play a role in ensuring that such decisions comply with the basic principles of procedurally fair and substantively reasonable decision-making.  In other words, will the JAG superintend such processes to ensure that they comply with even the basic principles of the rule of law?

Certainly, under the current interpretation of ‘military justice’ afforded by the senior leadership of the Office of the JAG, the JAG has no superintendence role outside the Code of Service Discipline.  When Bill C-77 comes into force, that unreasonably narrow interpretation of the JAG’s role will be reinforced.

But is that a ‘good thing’?

Conclusion

There is a compelling argument that ‘military justice’, as it is presently used at section 9.2 of the NDA, is much broader than simply the Code of Service Discipline.  Rather, military justice relates to the administration of justice – both administrative and disciplinary – within the CF.  The JAG’s superintendence of military justice is a statutory recognition of the need for an independent legal advisor to counsel CF leadership on the requirement to respect the rule of law.  Failure to respect the rule of law can, and likely will, result in constitutionally independent courts sanctioning the CF and the federal executive for such failure.  However, than supervision and sanction by constitutionally independent courts can often be ‘too little, too late’.  Moreover, it will only arise where the CF member, whose rights, interests, or privileges have been adversely affected, has the financial wherewithal to seek such justice, and where the impugned decision is sufficiently unreasonable or unfair that the courts will intervene.  Perhaps the chain of command is relying on these barriers of access to justice and the margin of appreciation to skirt the threshold of the rule of law.

However, the risk is not just that a court might overturn an unfair or unreasonable decision, but that morale of the CF may be adversely affected, and the CF’s operational effectiveness will diminish.  I would suggest that, in a democracy, it is never a ‘good thing’ when public decision-makers act with impunity or conclude that they may do so.

Such risk can be mitigated if the JAG embraces an expansive role in superintending military justice, and if the CF leadership recognizes the importance of that role.  This will maintain and strengthen the relevance of the Office of the JAG.  Failure to do so will leave the field unoccupied, which could lead to another CF actor, or even reviewing courts, filling this capability gap.  Maladministration under Op HONOUR provides a tangible and practical context in which the JAG can seek to revitalize her statutory role in superintending military justice.

However, in light of the definition of ‘military justice’ that is introduced by Bill C-77, it is markedly unlikely that the current JAG – or even future JAGs – will embrace such a role.

Defining the statutory term of art ‘military justice’ by equating it to a different term of art in the same statute is not only a pointless endeavour of rearranging legislative deck chairs; more importantly, it needlessly narrows the functional scope of the CF’s military legal advisor and undermines the available mechanisms to promote decision-making based upon the rule of law.

One of the principal goals of this Blog is to promote CF decision-making based upon a respect for the rule of law.  Through such decision-making, military justice, and not impunity, will prevail.  Thus, notwithstanding the narrowed definition of ‘military justice’ introduced in Bill C-77, this Blog, and the endeavour it represents, will retain the name: The Military Justice Project.

Rory Fowler

Kingston, Ontario

July 2019 [Revised 6 June 2020]

 

[1]RSC 1985, c N-5.  NB: I use the term ‘presently’ because of anticipated amendments arising from Bill C-77 infra.

[2] Bill C-77, An Act to amend the National Defence Act and to make related and consequential amendments to other Acts, 1st Session, 42nd Parliament,64-65-66-67 Elizabeth II, 2015-2016-2017-2018.

[3] R. Arthur McDonald, The story of Canada’s military lawyers (Ottawa: Office of the Judge Advocate General, 2002).

[4]Ibid.

[5]Ministerial Organization Order 96-082 Re: Office of the Judge Advocate General, dated 1 August 1996.

[6]Ibid.

[7]QR&O 4.081.

[8]SC 1950, 14 Geo VI, c 43.

[9]Ibid, s 10.

[10]Bill C-25, An Act to Amend the National Defence Act to make consequential amendments to other Acts, SC 1998, c 35.

[11] The summary was prepared by the staff of the Parliamentary Research Branch to provide Canadian Parliamentarians with plain language background and analysis of proposed government legislation. They are not government documents; they have no official legal status; and they do not constitute legal advice or opinion. They are nevertheless informative.

[12]Library of Parliament, LS-311E, online: <http://publications.gc.ca/Collection-R/LoPBdP/LS/361/c25-e.htm>.

[13]I feel compelled to acknowledge that the analysis concerning ‘military justice’ in this article is not as comprehensive as the analysis that will be provided in a forthcoming publication by a colleague of mine, M^e Pascal Levesque, PhD.  However, until that treatise is published, I offer this meagre substitute.

[14] The presumption of consistent expression: Agraira v Canada (Public Safety and Emergency Preparedness), [2013] 2 SCR 559, para 81, per Lebel J; see also R Sullivan, Sullivan on the Construction of Statutes, 5th ed (Markham: LexisNexis, 2008) at 214.

[15]R v Déry, 2017 CMAC 2, per Bell CJ.

[16] Commission of Inquiry into the Deployment of Canadian Forces to Somalia, Dishonoured Legacy: The Lessons of the Somalia Affair, (Ottawa: Public Works and Government Services Canada, 1997) [Somalia Inquiry].

[17] L.T. Doshen, Report on the Study of Mechanisms of Voice/Complaint Resolution in the Canadian Forces (Vista Knowledge Services, 30 November 1995) [Doshen Report].

[18] Report of the Special Advisory Group on Military Justice and Military Police Investigation Services (Ottawa: Ministry of National Defence, 1997) [Dickson Report].

[19] Fowler, “The Canadian Forces Grievance Process: How Adequate an Alternative Remedy Is It?” (2014), 27 CJALP 277, 281.

[20]RSC 1985, c J-2.

[21]See, for example, R v Hauser, [1979] 1 SCR 984, 1031.

[22] Fowler, “The Potential Pitfalls of Op HONOUR-related Administration”, online: <http://cswan.com/wp-content/uploads/The-Potential-Pitfalls-of-Op-HONOUR-related-Administration-Blog-96-Rory-Fowler.pdf>, first posted February 8, 2017.

[23] Canadian Armed Forces Third Progress Report on Addressing Inappropriate Sexual Behaviour, online: <http://www.forces.gc.ca/en/caf-community-support-services/third-progress-report.page>, April 28, 2017.

[24]Fowler, n 22; F.H. v McDougall, [2008] 3 SCR 41.

[25]Fowler, n 22.

[26]QR&O art 7.15.

[27]Strengthening Military Justice in the Defence of Canada Act, SC 2013, c 24, s 13.  I note, tangentially, that an Act intended to ‘strengthen military justice’ included an amendment of an administrative power intended to permit the CDS to reinstate former CF personnel who were released from the CF for reasons other than under the Code of Service Discipline; such nomenclature tends to support the contention that ‘military justice’ is not limited to the Code of Service Discipline.

[28]The provision will only come into force once regulations are enacted implementing the provision.  There is no indication when this might occur, or if it is currently part of the government’s legislative agenda.

[29]Admittedly, the Third Progress Report does offer a brief comment comparing data on matters investigated by the Military Police, in which the Military Police concluded that the allegations were unfounded.  However, that does not represent the full scope of how a matter might be determined to be unfounded, and there is no mention of specific results or conclusions arising from disciplinary and administrative processes.

[30] Dickson Report, n 18.

 

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