Mandate and Methodology

I. Mandate

Subsection 273.601(1) of the National Defence Act^{Footnote 18} (“NDA”) provides as follows:
- 273.601 (1) The Minister shall cause an independent review of the following provisions, and their operation, to be undertaken:
  1. sections 18.3 to 18.6;
  2. sections 29 to 29.28;
  3. Parts III and IV; and
  4. sections 251, 251.2, 256, 270, 272, 273 to 273.5 and 302.
Section 273.601 of the NDA was implemented in response to the first recommendation of the First Independent Review Authority, retired Chief Justice of the Supreme Court of Canada Antonio Lamer. Chief Justice Lamer recommended “that the requirement that there be an independent review by the Minister of National Defence^{Footnote 19} be amended to specifically require a review of the military justice system and the Canadian Forces grievance process. This requirement for a review should be entrenched in the National Defence Act”.^{Footnote 20}
Pursuant to his authority under section 273.601 of the NDA, the Minister of National Defence, the Honourable Harjit S. Sajjan (“Minister”), issued on November 5, 2020, a Ministerial Direction appointing me as the Third Independent Review Authority.^{Footnote 21} A copy of the Ministerial Direction is appended to this Report as Schedule A.
The Ministerial Direction describes my mandate as follows:
1. The Third Independent Review Authority is to conduct an independent review pursuant to section 273.601 of the NDA and report the outcomes of this review directly to the Minister of National Defence. The provisions subject to review are enumerated in subsection 273.601(1) of the NDA.^{Footnote 22}
The provisions listed in subsection 273.601(1) of the NDA form the basic structure of the military justice system, the military grievance process and the regime for complaints about or by military police. But my mandate is not – and indeed could not be – strictly limited to those provisions: it necessarily includes “their operation”.^{Footnote 23} And those provisions do not operate in a vacuum. Their operation is inseparable from that of other, non-listed provisions of the NDA, of the Queen’s Regulations and Orders for the Canadian Forces (“QR&O”) and of diverse other regulatory instruments including Defence Administrative Orders and Directives (“DAOD”); directives or policies by military justice actors, and Group Orders of the Canadian Forces Military Police Group.
Moreover, the existence of sound statutory and regulatory norms is essential but not sufficient to generate an appropriate system. The rules that govern the system must also be properly – and verifiably – understood and applied by the relevant actors and decision-makers. Understanding the operation of the provisions listed in subsection 273.601(1) of the NDA therefore requires a consideration of institutional practices, training initiatives, and available data. I have understood that all those elements are included in the scope of my review, and make recommendations accordingly in this Report.

II. Methodology

Third Independent Review Authority Team
1. I was assisted in my review by:
  1. Morris Rosenberg C.M. (B.A., LL.B., LL.M.), a former Deputy Minister of Justice (1998-2004), Health (2004-2010) and Foreign Affairs (2010-2013) with the Government of Canada, as my Consultant;
  2. Jean-Philippe Groleau (LL.B., LL.M.), a partner with the law firm of Davies Ward Phillips & Vineberg LLP, as my Senior Counsel; and
  3. Guillaume Charlebois (LL.B., LL.M.), an associate with the same law firm, as my Associate Counsel.
Retainer and Preliminary Announcements
1. I was formally retained on October 16, 2020, prior to the issuance of the Ministerial Direction on November 5, 2020. Pursuant to my contract with the Department of National Defence (“DND”), I was required to provide my Report no later than April 30, 2021.^{Footnote 24}
2. My review was publicly announced in a news release issued by the Minister on November 16, 2020 and appended to this Report as Schedule B. The news release encouraged “[p]ersons who have an interest in the military justice system […], military grievances, the Canadian Forces Provost Marshal and the Military Police Complaints Commission” to provide written comments or submissions by January 8, 2021. A dedicated email address (review.authority@dwpv.com) was created by my counsel to allow any person to send information or documents directly to my team and in full confidentiality. That email address was provided in the news release.
3. Other communications to the same effect were issued in the same period by the DND or the Canadian Armed Forces (“CAF”):
  1. A Canadian Forces General Message (“CANFORGEN”) was posted on November 16, 2020 on the DND/CAF Intranet.^{Footnote 25}
  2. In the following days, the Independent Review Authority Secretariat of the DND (“IRA Secretariat”) sent out letters to external stakeholders and senior CAF officials to alert them to my review, to advise them that I may seek introductory discussions, and to encourage them to make submissions.
  3. A dedicated webpage for my review went live on November 26, 2020.
  4. A message was also posted on November 27, 2020 on the CAF’s Facebook and Twitter accounts.
4. On November 27, 2020, I decided to issue my own news release to address any potential concern that I may not be acting at arms’ length from the DND and the CAF. My news release was published in both official languages on Canada Newswire, and was picked up in articles published in various newspapers in both English and French. It included a detailed list of the matters subject to my review, a presentation of my team, a statement of our independence from the DND and the CAF, and a renewed call for submissions by “any member of the public or of the Canadian Armed Forces” by January 8, 2021. A copy of my news release is appended to this Report as Schedule C.
5. Finally, an announcement of my review and a call for submissions were published on December 16, 2020 in The Maple Leaf – the national, online source for stories about the DND and the CAF. A copy of the article is appended to this Report as Schedule D.
Educational Briefings on Military Justice Foundations
1. Like all members of my team, I am a civilian with no military experience. None of us have any prior or current affiliation with the DND or the CAF.
2. On October 27, 2020, I was provided with “Military Justice Reference Materials” by the IRA Secretariat. The list of those materials is appended to this Report as Schedule E. Over the course of my review, additional references were provided by the DND or CAF officials, external commentators and foreign experts with whom I met.
3. From November 3 to 13, 2020, my team and I took part in several multi-hour educational briefings on the foundations of the military justice system. Most of the sessions were given by legal officers from the Judge Advocate General Independent Review Support Team (“JAGIRST”). Two were given by the Canadian Forces Provost Marshal and the Director Canadian Forces Grievance Authority teams.
Interviews with Officials of the Department of National Defence and Canadian Armed Forces
1. From the first days of December 2020 to the end of March 2021, my team and I attended over 30 briefings or meetings with DND or CAF officials, as well as representatives of organizations involved in the military justice system, military grievance process and regime for complaints about or by military police. The officials and organizations I met with are listed in Schedule F of this Report.
2. I learned about the particular functions, roles and concerns of those officials and organizations. My team and I also asked many questions, including a significant number relating to potential areas of reform. Most of our questions were directly answered during the meetings. Those which required further study or more detailed answers were noted as requests for information (“RFIs”) and answered subsequently in writing.
Implementation Status of Recommendations and Other Requests for Information
1. In considering my appointment, I asked what had become of the recommendations of Chief Justice Lamer and of those of the Second Independent Review Authority, retired Chief Justice of the Ontario Superior Court of Justice Patrick J. LeSage.^{Footnote 26} Once I was appointed, I formally requested further details on the implementation status of previous recommendations from several independent, external or parliamentary committee reviews of the Canadian military justice system.
2. On November 4, 2020, my team provided the IRA Secretariat with the template for a Report as to the Implementation Status of Previous Recommendations (“Implementation Status Report”). The template listed the recommendations contained in reports ranging from the 1997 Report of the Commission of Inquiry into the Deployment of Canadian Forces to Somalia^{Footnote 27} (“Somalia Inquiry Report”) to the 2019 Report of the Standing Senate Committee on National Security and Defence on Sexual Harassment and Violence in the Canadian Armed Forces.^{Footnote 28} I enquired about the implementation status of each recommendation, as well as the means of implementation or the rationale for non-implementation or partial implementation.
3. When I made this request, I expected the information to be readily available within the DND or CAF. I believed that I would be provided with the details sought within a matter of days, or weeks at most. I was soon informed, however, that there had not been a systematic tracking of the implementation of prior review recommendations. I appreciate the significant efforts of DND and CAF officials to pull this information together during the ensuing months. From December 2020 onward, I was provided with partial answers on a rolling basis. The Implementation Status Report was finally completed in March 2021.^{Footnote 29}
4. The RFIs taken during briefings or meetings, and additional RFIs asked over the course of my review, were tracked by the IRA Secretariat. The answers were, for several months, slow in coming. By February 24, 2021, I had not received answers to the bulk of the RFIs (excluding iterations of the Implementation Status Report). At that time, I requested that all remaining information be sent by March 9, 2021, so that I would have a complete record on which to draft my Report. The DND and the CAF complied with my request for the vast majority of remaining RFIs.
5. I am grateful for the substantial efforts that were made by all to answer the RFIs. However, I am particularly appreciative of the assiduous efforts of the JAGIRST, who drafted close to 50 detailed papers, supported by helpful annexes, statistics and references, to answer those of my RFIs which were directed to the Office of the Judge Advocate General (“OJAG”).
Interviews with External Commentators and Foreign Experts
1. I did not limit my consultations to the briefings or meetings with the officials and organizations listed on Schedule F. On the contrary, to better understand the diversity of views which exist on the Canadian military justice system, and to compensate for our lack of military experience and initial lack of military law expertise, my team and I actively sought input from commentators external to the CAF, including lawyers, academics and retired members of the CAF. We contacted several of them even before receiving their written submissions, if any.
2. We also consulted eight military justice experts from other countries, including all of our Five Eyes partners, to learn about relevant military justice experiences in their jurisdictions.
3. From the first days of December 2020 to the end of March 2021, close to 40 meetings of this sort were organized, usually one or two hours in length each. The persons we met are listed in Schedule G of this Report, except for those who asked that their participation be held in confidence.
4. Several methods were used to identify the commentators whom we decided to contact to organize meetings. Some directly contacted my team or me. Others were suggested by observers of military justice or, as we progressed through our meetings, by other interviewees.^{Footnote 30} My team also reviewed academic and media articles on military justice published in recent years to identify frequent and prominent public commentators. Every effort was made to avoid echo chambers and, in this regard, Schedule G confirms that we have met persons with diverse and sometimes opposing views.
Written Submissions
1. Several actors in the military justice system, military grievance process and regime for complaints about or by military police responded to my call for submissions. Written submissions and background, policy and issue papers were sent to me by the OJAG, the Canadian Military Prosecution Service, the Directorate of Defence Counsel Services, the Court Martial Administrator, the Chief Justice of the Court Martial Appeal Court of Canada, the Canadian Forces Military Police Group, the Military Police Complaints Commission, the Military Grievances External Review Committee, the Ombudsman for the Department of National Defence and the Canadian Forces, and the Sexual Misconduct Response Centre.
2. I also received written submissions from approximately 65 individuals, who are listed in Schedule H of this Report, except again for those who asked that their submissions be received in confidence.^{Footnote 31}
3. I am greatly appreciative of the comments, concerns and anecdotes raised or provided by all. While some submissions are specifically referred to, all submissions were considered in the preparation of this Report.
Town Hall Meetings with Members of the Canadian Armed Forces
1. My predecessors, Chief Justice Lamer and Chief Justice LeSage, visited several bases of the CAF and met members on those occasions. In contrast, my review was conducted in the midst of the global COVID-19 pandemic, and I regrettably could not do the same.
2. I nevertheless attempted to meet with as many members of the CAF as possible through virtual town hall meetings. There may in fact have been some advantages to this approach. For example, it allowed me to meet members of the CAF from smaller bases across Canada which I would likely not have been able to visit physically if my review had occurred under different circumstances. Virtual town hall meetings also permitted greater confidentiality than in-person meetings would have allowed, as the details required to connect could be sent only to specific invitees having expressed their interest and the admissions could be controlled by my team.
3. The CAF initially suggested that commanding officers identify town hall participants from their bases, wings and units. The coordinates of those participants would have been sent to my team to allow the organization of the meetings. I was concerned, however, that proceeding in this way could have a chilling effect on full and frank discussions. I enlisted the assistance of the chain of command to inform the members of the CAF of the upcoming meetings, but I requested that it refrain from directing any member to participate or not to participate.
4. On January 17, 2021, CANFORGEN 002/21, Independent Review – Virtual Town Hall with CAF Members was issued on the DND/CAF Intranet with the following content:
  1. The Honourable Morris J. Fish, former Justice of the Supreme Court of Canada, has been appointed by the Minister of National Defence (MND) to conduct the third independent review (IRA3) of specified provisions of the National Defence Act (NDA) and their operation, pursuant to NDA section 273.601.
  2. Section 273.601 of the NDA can be consulted at the following hyperlink: A. https://laws-lois.justice.gc.ca/eng/acts/n-5/
  3. The IRA3 will be engaging virtually, in full confidentiality and in both official languages, with CAF members, regular and primary reserve forces, across Canada who have comments about the subjects under review. The IRA3 will organize virtual town hall meetings with various groups of CAF members based on their rank, in order to encourage full and frank discussions. There will be a town hall meeting for junior non-commissioned members including Private/Sailor Third Class to MCpl/Master Sailor, a town hall meeting for CAF members from Sergeant/Petty Officer 2nd Class to Master Warrant Officer/Chief Petty Officer 2nd Class, a town hall meeting for junior officers and a town hall meeting for Lieutenant Colonels/Commanders and Majors/Lieutenant Commanders in a command team as well as their Chief Warrant Officers/Chief Petty Officer 1st Class (command teams). CAF members from ranks not included in these four groups can also contact the IRA3 who will determine where to best allocate them. These town hall meetings are expected to commence in February 2021.
  4. CAF members who have an interest in the military justice system (including the code of service discipline), military grievances, the external review of military grievances, military policing, and the Military Police Complaints Commission and wish to participate in the town hall meetings are encouraged to contact the IRA3 at Davies Ward Phillips & Vineberg LLP, by mail to 1501 McGill College Suite 2600, Montreal, Quebec, H3A 3N9, by telephone at […], or by email at: review.authority(at)dwpv.com.
  5. To facilitate the organization of these meetings, interested CAF members must contact the IRA3 no later than 28 January 2021.
  6. CAF members who communicate with the IRA3 should only provide their name, their rank and their base/wing, and should refrain from providing their comments about the above-mentioned subject matters in writing, as these written submissions will not, save exception, be considered by the IRA3 at this point.
  7. The IRA3 will contact those retained by them to participate in the town hall meetings via the IRA3’s own confidential email address. The virtual meetings will be held on the IRA3’s own platform on a fully confidential basis to foster open and transparent discussion. Overall themes and results of the discussion are expected to become public, however identities of individual participants shall remain confidential.^{Footnote 32}
5. I received expressions of interest from more than 330 people. Everyone who contacted my team prior to the town hall meetings, even after the deadline of January 28, 2021, was invited to participate in one of them.^{Footnote 33}
6. As most people expressed their interest in meeting with me without knowing the date and time where their particular town hall meetings would be convened, not all those I invited were able to attend. My team and I made efforts, in so far as possible, to reschedule people who notified us of their conflicting commitments. In the end, we met with 234 people, as broken down below.
7. Once we began receiving the expressions of interest, we decided that we should meet separately with members of the military police, members of the OJAG and grievance analysts in order for the discussions in general town hall meetings to be full and frank, and for those in specific town hall meetings to be focused on the particular issues of those constituencies.
8. To encourage active participation, we limited the number of invitees for any town hall meeting to approximately 30 people.
9. In the end, we held 16 town hall meetings of 90 minutes each from February 16 to 26, 2021, namely:
  1. three for junior non-commissioned members, attended by 20 members of the CAF;
  2. four for senior non-commissioned officers, attended by 53 members of the CAF;
  3. two for junior officers, attended by 35 members of the CAF;
  4. five for senior officers below the rank of lieutenant-colonel and members of command teams, attended by 90 members of the CAF;
  5. one attended by 12 members of the military police of all ranks;
  6. one attended by 8 chief warrant officers of the OJAG; and
  7. one attended by 16 grievance analysts or members of ICCM personnel.

III. Identification of Priorities for the Independent Review and Limitations

The provisions listed in subsection 273.601(1) represent most of the entire NDA. It is obvious that, in the limited timeframe I was allotted, it was impossible for my team or me to conduct a review of the operation of every single provision included in my mandate. Therefore, as Chief Justice Dickson before me, “[w]hile, in some instances, [I] have commented on what may be considered to be technical matters, [I] have generally tried to concentrate on the larger issues, so as to provide direction and principles to guide future reform”.^{Footnote 34}
My team and I had to establish priorities for our independent review of the military justice system. We did so mindful of (a) the concerns which were presented to us, which we raised ourselves or which were otherwise discussed in our briefings and meetings; and (b) the written submissions and answers to RFIs received, including the information contained in the Implementation Status Report.
I should not be understood, as a result of not explicitly addressing in this Report certain provisions of the NDA, to be confirming that no concern exists about their operation. I may simply not have been alerted to issues regarding those provisions.
In areas in which I obtained a sufficient number of comments and submissions, I generally identify in this Report the concerns raised by the particular provisions at stake, as well as specific solutions to those concerns. Conversely, there are a number of areas for which I instead recommend that questions be put to working groups or reviewed by other military justice actors. I do so especially (a) where I was not presented with sufficient information to allow me to adopt a single solution within a range of acceptable outcomes; (b) where specific determinations involved wide policy ramifications, including issues of institutional design or “government machinery”; and (c) where I was otherwise of the view that my team and I did not have sufficient time, resources or subject-matter expertise to deal appropriately with a question.

IV. Terminology

In this Report:
1. When referring to victims of service offences, I use the term “victim” (rather than “survivor” or analogous expressions) as victim is the term used in the Declaration of Victims Rights enacted by Bill C-77^{Footnote 35} and in the Canadian Victims Bill of Rights;^{Footnote 36}
2. I use the term “participant” to refer to the individuals whom I met over the course of my review, whether in briefings or meetings with DND or CAF officials or organizations, in meetings with external commentators or foreign experts or in town hall meetings; and
3. To refer to DND or CAF officials, I use the pronouns which reflect the genders of the current incumbents of positions.

Footnotes

Footnote 18

RSC 1985, c N-5.

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Footnote 19

Subsection 96(1) of An Act to amend the National Defence Act and to make consequential amendments to other Acts, SC 1998, c 35 (“Bill C-25”) provided that “[t]he Minister [was to] cause an independent review of the provisions and operations of this Act to be undertaken from time to time”. Subsection 96(1) of Bill C-25 defined the mandates of the First Independent Review Authority, in 2003, and Second Independent Review Authority, in 2011. I am the first independent review authority appointed pursuant to subsection 273.601(1) of the NDA.

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Footnote 20

Lamer Report, supra note 9 at 10.

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Footnote 21

Ministerial Direction, Schedule A at para 1.

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Footnote 22

Ibid at para 2.

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Footnote 23

Subsection 273.601(1) of the NDA.

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Footnote 24

As a result of subsection 273.601(2) of the NDA, the Minister must cause this Report to be laid before each House of Parliament by June 1, 2021.

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Footnote 25

CANFORGEN 149/20, Independent Review.

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Footnote 26

Report of the Second Independent Review Authority to the Honourable Peter G. MacKay, Minister of National Defence, by the Honourable Patrick J. LeSage, C.M., O.Ont., Q.C. (December 2011) (“LeSage Report”).

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Footnote 27

Dishonoured Legacy: The Lessons of the Somalia Affair, Report of the Commission of Inquiry into the Deployment of Canadian Forces to Somalia (June 1997).

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Footnote 28

Sexual Harassment and Violence in the Canadian Armed Forces, Report of the Standing Senate Committee on National Security and Defence (May 2019).

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Footnote 29

In the meantime, Brigadier-General (retired) Kenneth Watkin, who was Judge Advocate General from 2006 to 2010, helpfully provided me with a detailed chart of his own making identifying the status of the 57 recommendations of Chief Justice Lamer pertaining to military justice. I am highly appreciative of the time he devoted to prepare this document.

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Footnote 30

While several individuals were helpful, I am particularly appreciative of the early assistance provided by Lieutenant-Colonel (retired) François Lareau, a former legal officer of the CAF who, on November 25, 2020, provided my team with a list of 43 individuals with whom I may be interested to meet. Lieutenant-Colonel Lareau also helped my team find the coordinates of certain retired members of the CAF who I wished to interview.

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Footnote 31

Several of those written submissions were received later in my review. I invited the members of the CAF who participated in my town hall meetings, discussed below, to provide me with short written submissions if they felt that they had not been able to convey certain points during the meeting. All submissions of this sort were taken in confidence, in keeping with the confidentiality of my town hall meetings, and are therefore not listed in Schedule H of this Report.

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Footnote 32

I was informed at the beginning of February 2021 that CANFORGEN 002/21 would likely not have been distributed to the civilian personnel of the Integrated Conflict and Complaint Management service (“ICCM”). On February 8, 2021, my team therefore sent an email to the distribution lists of all Conflict and Complaint Management Services centres located across Canada. The email invited the civilian or military members of the personnel of the ICCM having comments about the military grievance process or suggestions for its improvement to express their interest in attending a town hall meeting. The town hall meeting was held on February 26, 2021.

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Footnote 33

By way of exception, some officers of the CAF of the rank of colonel or above were considered to be too high in rank, and were instead offered an individual meeting with my team and me.

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Footnote 34

Report of the Special Advisory Group on Military Justice and Military Police Investigation Services to the Minister of National Defence (March 14, 1997) (“Dickson Report”) at 6. The Special Advisory Group was composed of the Right Honourable Brian Dickson, P.C., C.C., C.D. as Chairman and Lieutenant-General (retired) Charles H. Belzile, C.M.M., C.D. and J.W. Bud Bird as Members.

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Footnote 35