I. The Independence of Military Justice Actors from the Chain of Command

    1. Enhanced independence of military justice actors from the chain of command has been at the heart of the evolution of the Canadian military justice system. The military justice system began as “a command-centric disciplinary model that provided weak procedural safeguards”.Footnote 37 Historically, the chain of command maintained an important role in the military justice system. But over time, the actors involved in the investigation and adjudication of serious service offences were afforded an increased measure of independence from the chain of command.
    2. The original intent was “to ensure that the inherent conflicts that can occur between respect for the chain of command on the one hand, and impartial investigation and adjudication of service offences on the other, do not undermine the legitimacy of the whole military justice apparatus”.Footnote 38 The military justice system has made significant progress in its pursuit of that intended objective, but the objective has not yet been reached.
    3. In my view, the military justice system must continue along the same path in its future evolution. The chain of command still needs to play an important role in the administration of military justice, particularly at the summary trial level. Where safeguards are lacking or insufficient, however, they need to be introduced or bolstered. As it currently stands, the military justice system needs better protection of the independence of its judges, courts, prosecutors, defence counsel and police.
  1. Military Judges
    1. Until the 1990s, Canadian “military judges” were specially-trained members of the legal branch of the Canadian Armed Forces (“CAF”) posted in the Chief Judge Advocate’s Division of the Office of the Judge Advocate General (“JAG” and “OJAG”). They remained posted to this division for as long (or as short) as the JAG considered it appropriate. While posted, they would sometimes be appointed by the JAG to exercise the functions of a judge advocateFootnote 39 in courts martial. Between trials, they would perform other legal duties within the OJAG.
    2. In Généreux,Footnote 40 the majority of the Supreme Court of Canada ruled that the status of judge advocates, combined with other features of the military justice system as it then stood, did not meet the minimum requirements of section 11(d) of the Canadian Charter of Rights and Freedoms (“Charter”).Footnote 41
    3. The status of military judges has changed a great deal since then. They currently hold office during good behaviour until the age of 60 yearsFootnote 42 unless they are released earlier from the CAF at their request.Footnote 43 They may be removed by the Governor in Council only for cause and on the recommendation of the Military Judges Inquiry Committee, which is composed of three judges of the Court Martial Appeal Court of Canada (“CMAC”).Footnote 44
    4. Military judges have been excluded from the OJAG and now belong to a separate unit of the CAF, the Office of the Chief Military Judge (“CMJ” and “OCMJ”).Footnote 45 Their remuneration is subject to quadrennial review by the Military Judges Compensation Committee,Footnote 46 much like the remuneration of civilian judges is subject to judicial compensation commissions.
    5. Other elements of the status of military judges have remained the same for decades. Military judges serve as officers of the CAF. While in office, they maintain the rank which they held at the time of their appointment.Footnote 47 They are subject to the Code of Service Discipline (“CSD”), they are required to comply with lawful orders, and they are subject to the general duties and responsibilities of officers.Footnote 48 Military judges are placed under the command of the CMJ and bound to perform any duties, other than judicial duties, “that the Chief Military Judge may direct”, provided “those other duties [are not] incompatible with their judicial duties”.Footnote 49
    1. Concerns Raised by the Military Status of Judges
      1. By definition, judges are independent and impartial adjudicators. They are instructed to render decisions based solely on the merits of the cases brought before them, according to law and free from external interference. Substantive justice, fair process – and the appearance of justice – are essential components of the Canadian judicial systems, civilian and military.
      2. It is insufficient for military judges to actually act independently and impartially. To maintain its legitimacy and public confidence, the military justice system must also, in so far as reasonably possible, satisfy the persons who appear before military judges that their cases will be decided in a fair, objective and unbiased manner, without improper considerations being taken into account.
      3. During my review, I met all four military judges currently in office. I have no reason to doubt their actual independence and impartiality, and nothing in this Chapter should be understood as a criticism of them. But I believe, like several participants in my review, that the appearance of justice is prejudiced by the fact that military judges remain members of the CAF while holding office.
      4. There are major concerns in this regard.
      5. First, a good number of members of the CAF who attended my town hall meetings, most of them junior non-commissioned members, expressed the belief that military judges are generally more lenient towards accused officers of higher ranks.
      6. Other concerns were that military judges may be reluctant to see high-ranking witnesses as lacking in credibility. Or, conversely, that complainants from lower ranks may be found less trustworthy. Or, that members of a panel who outrank the military judge may show less deference to the military judge’s instructions. These are valid issues, however difficult to verify in practice.
      7. Second, the fact that military judges are subject to the CSD puts them in a position of subordination which is inconsistent with the exercise of judicial duties. This dynamic could lead to concerns that military judges may improperly take into account the disciplinary consequences to which they may be exposed if they adjudicate cases in a certain way. Some members of the CAF were concerned that military judges could be tempted to “toe the party line” in sensitive cases where the legally-correct decision may go against the solution preferred by the military hierarchy.
      8. These questions are not purely about optics. They have had practical consequences on the administration of military justice in recent years. The fact that military judges are subject to the CSD was brought to public attention in 2018, when charges were laid against the then CMJ, Colonel Mario Dutil. The Deputy Chief Military Judge was assigned to the case and decided to recuse himself.Footnote 50 He subsequently decided not to assign any other military judge to preside over Colonel Dutil’s court martial. This decision was upheld by the Federal Court.Footnote 51 A few days later, the charges against the CMJ were withdrawn.
      9. By that time, however, they had generated a ripple effect. To fill a perceived gap in the QR&O, the Chief of the Defence Staff (“CDS”) adopted an order (“CDS Order”) designating the Deputy Vice Chief of Defence Staff as the officer authorized to act as a commanding officer for the purpose of disciplinary matters against military judges.Footnote 52
      10. On January 10, 2020, a military judge deciding an application for a stay of an unrelated court martial concluded that the CDS Order violated section 11(d) of the Charter. The judge ruled it did so by specifically targeting military judges and by imposing on them the disciplinary process driven by the chain of command, without due consideration to the judicial discipline scheme involving complaints to the Military Judges Inquiry Committee. The military judge declared the CDS Order to be of no force and effect, but he did not stay the court martial against the applicant.Footnote 53 A few weeks later, another military judge ordered the same remedy in a separate case.Footnote 54
      11. The CDS Order was not rescinded, and similar applications for stays of court martial proceedings were therefore filed in other cases. On August 14, 2020, a military judge concluded in Edwards and Crépeau that “the public confidence […] could be undermined in relation to military judges’ independence and impartiality in these circumstances, considering that the executive ha[d] not even considered taking any action to ensure the maintenance of the rule of law and to preserve the accused’s right to a fair trial before an impartial and independent tribunal, despite courts martial decisions on this issue”.Footnote 55 That time, the court martial proceedings against the two accused were stayed. Additional stays of proceedings were subsequently ordered in Fontaine and Iredale.Footnote 56
      12. The CDS Order was suspended on September 15, 2020. However, applications for stays of court martial proceedings kept being made, based more generally on the applicability of the military disciplinary process under the CSD to military judges. Some applications were granted, others were dismissed.Footnote 57
      13. The constitutionality of the status of military judges is now in the hands of the CMAC. On January 29, 2021, the CMAC heard the appeals against the stays of proceedings ordered in Edwards, Crépeau, Fontaine and Iredale. The appeals were taken under reserve. Other appeals are expected to be heard jointly at a later date.
      14. I express no views on the constitutionality of the status of military judges. This issue is for the courts to decide. I have recounted the events that have unfolded since 2018 because they illustrate why the military status of judges may be undesirable from a policy perspective. My assessment is not contingent on the outcome of the constitutional challenges.

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    2. Purpose of the Military Status of Judges
      1. Why then do military judges remain members of the CAF while in office? As I understand it, their military status is designed to protect two aspects of the military justice system:
        1. First, it ensures that military judges understand the nature, necessity and requirements of military discipline, the nature of certain service offences as well as the context in which they may be committed.
        2. Second, it allows the court martial system to “be portable and deployable, both across the national state and abroad”.Footnote 58 It ensures that the military justice system will be “capable of holding trials in operational theatres at all levels in the spectrum of conflict, from peacetime to combat operations”, thereby protecting its flexibility.Footnote 59
      2. I have considered whether familiarity with military discipline, service offences and military life more generally is truly a requirement for military judges. Civilian judges often adjudicate questions in areas of the law of which they have no prior knowledge. It is incumbent on the parties to apprise them of the facts and the relevant provisions of law. The same principle should arguably apply in the military justice system, especially in general courts martial where a panel of five members of the CAF already has the specific role of “bringing to bear upon the proceedings the military-specific concerns for discipline, efficiency and morale”.Footnote 60
      3. I discussed this question with several current or former military justice actors from Canada and from other Five Eyes countries, as well as external commentators. The overwhelming majority expressed the view that familiarity with military service, life and culture may not be strictly required, but nonetheless is an undeniable advantage for military judges and those who appear before them. I trust their cumulated experience in this regard.
      4. I have more reservations regarding the portability, deployability and flexibility of the military justice system. I agree that a military justice system must retain at least the capacity of exceptionally operating in a theatre of operations. But a healthy dose of realism is required.
      5. Since the coming into force of Bill C-25 in 1998, there have been very few courts martial outside Canada,Footnote 61 and not a single one conducted entirely in a theatre of operations,Footnote 62 despite early emphasis by a former JAG as to their importance in principle.Footnote 63 The authors of the Court Martial Comprehensive Review Report gathered anecdotal evidence that certain commanding officers “would not want to hold a court martial in a theatre of operations”.Footnote 64 This is understandable. I was informed by the OJAG that the average duration of the courts martial held between 2013 and 2018 was 20 days. Given that “[t]he commanding officer of the unit where [a] court martial is to be held is responsible for the provision of adequate accommodation, administration and personnel to the extent required to ensure that the court martial is conducted in a dignified and military manner”,Footnote 65 holding a court martial in theatre would likely prove disruptive to the military operations being conducted.
      6. In my view, both these aspects of the military justice system can be adequately preserved without military judges remaining members of the CAF while in office.
      7. It is not necessary for them to have military status to be familiar with the realities of service. A sufficient degree of military experience ensures their understanding of such matters.
      8. Nor do the portability, deployability and flexibility depend on the military status of judges. Military judges’ conditions of appointment can include a requirement to act anywhere in the world, including in a theatre of operations. I have been warned that practical difficulties related to insurance and to the judges’ status under international law could arise. But I have also been told by knowledgeable officials, including the Deputy Minister of National Defence (the “Deputy Minister”), that they could be resolved and were not a fundamental impediment to the civilianization of judges. By way of example, the judges of the Court Martial of the United Kingdom and the Court Martial of New Zealand are civilians. Yet, both courts may hold hearings overseas, and have done so. Perhaps even more importantly, the CMAC is composed of civilian judges and could currently be called to hold hearings in a theatre of operations.Footnote 66
      9. Moreover, today’s information and communications technology also go a long way towards ensuring the portability, deployability and flexibility of the military justice system. In 2003, Chief Justice Lamer stated that “[a]dvancements in modern technology have worked to reduce the travel requirements for the position of a military judge”.Footnote 67 The COVID-19 pandemic has made this reality inescapable. Most Canadian courts and tribunals have routinely been holding virtual hearings for months. While Chief Justice Lamer and Chief Justice LeSage travelled across Canada to visit military bases, my team and I met people located all across Canada and other countries solely by videoconference.
    3. Civilianization of Military Judges
      1. During my review, the JAG recognized that Canada is at a juncture in history where the civilianization of military judges needs to be considered for the military justice system to maintain its legitimacy. I agree with her assessment. In my view, there is no better way of adequately safeguarding the independence and impartiality of military judges.
      2. The appointment of civilian judges with a sufficient degree of military experience was likewise supported by the Deputy Minister and by virtually all senior members of the military hierarchy.Footnote 68 The overwhelming majority of the members of the CAF who attended my town hall meetings confirmed that they would equally respect the decisions handed down by civilian judges with such qualifications.Footnote 69
      3. The civilianization of military judges would by no means be a revolutionary innovation. Military judges could well continue to be appointed from a pool of candidates having had long and successful careers in the CAF.Footnote 70 However, at the time of their appointment, they would need to be released from the CAF and to renounce their military rank. The NDA would also need to be amended to remove any jurisdiction which the military justice system may have over military judges, either as civilians or as former members of the CAF.
        • Recommendation #1. Military judges should cease to be members of the Canadian Armed Forces, and therefore become civilian. Members of the Canadian Armed Forces appointed by the Governor in Council as military judges should, at the time of their appointment, be released from the Canadian Armed Forces and renounce their military rank.
        • The National Defence Act should be amended to provide that military judges are never subject to the Code of Service Discipline, and may never be charged, dealt with and tried under the Code of Service Discipline for service offences allegedly committed by them while formerly subject to the Code of Service Discipline, if applicable.
        • Military judges’ conditions of appointment should include a requirement to act anywhere in the world, including in a theatre of operations.
        • Unless the context indicates otherwise, references to military judges in this Report include civilianized military judges.
      4. Military judges are currently appointed by the Governor in Council from a pool of barristers or advocates having at least 10 years’ standing as a member of a provincial bar and 10 years of experience as an officer in the CAF.Footnote 71 The JAG has suggested that the second condition be broadened to allow the appointment of anyone having 10 years of experience as a non-commissioned member in the CAF. I also agree with this suggestion. In my view, these eligibility conditions will suffice to ensure that the appointees have a sufficient degree of military experience. The JAG and a number of former legal officers of the CAF have also told me that the Reserve Force includes several experienced lawyers and judges.
        • Recommendation #2. The National Defence Act should be amended to allow the Governor in Council to appoint to the position of military judge anyone who is a barrister or advocate of at least 10 years’ standing at the bar of a province and who has been an officer or a non-commissioned member of the Canadian Armed Forces, including the Reserve Force, for at least 10 years.

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      5. Finally, I believe that requiring military judges to retire once they attain the age of 60 years is overly restrictive. It may hinder the development of judicial expertise, which is already complicated by the low number of cases tried by courts martial. By comparison, while some provincial and territorial judges have a retirement age of 70 years, most civilian judges (including all federally-appointed judges) may remain in office until 75. The fact that military judges travel across Canada and may exceptionally need to sit abroad, potentially in a theatre of operations, is a relevant but not conclusive consideration.
      6. I therefore recommend that the age of retirement of military judges be increased to 70 or 75 years. To leverage the expertise of military judges while acknowledging the exigencies of service, consideration should be given to allowing military judges to become supernumerary judges after a number of years in judicial office or once they attain a certain age.Footnote 72
        • Recommendation #3. The age of retirement of military judges should be increased to 70 or 75 years. Consideration should be given to allowing military judges to become supernumerary judges after a number of years in judicial office or once they attain a certain age.
  2. Military Courts
    1. The Recommendation of Chief Justice Lamer
      1. The civilianization of military judges goes a long way towards safeguarding their impartiality and independence from the chain of command. But it is not in itself a complete solution. Military judges form part of courts martial. And as Chief Justice Lamer noted in his report, “the independence of a tribunal is a matter of its status”.Footnote 73 He relied on Généreux, in which the majority of the Supreme Court of Canada wrote that “[t]he status of a tribunal must guarantee not only its freedom from interference by the executive and legislative branches of government but also by any other external force, such as business or corporate interests or other pressure groups”.Footnote 74
      2. Chief Justice Lamer observed that courts martial were individual (ad hoc) tribunals without any jurisdiction before they are convened by the Court Martial Administrator (“CMA”). He stated that, as a result, “preliminary proceedings [were] problematic”.Footnote 75 He also noted that the Court Martial Rules of Practice (“CMRP”) were a voluntary agreement entered into by the Director of Military Prosecutions (“DMP”) and the Director of Defence Counsel Services (“DDCS”). In light of the authority of the JAG to issue general instructions to them, he believed that this situation “created a reasonable apprehension of bias and interfer[ed] with one of the primary goals of Bill C-25, which was to set clear standards of institutional separation for the investigative and prosecutorial defence and judicial functions”.Footnote 76
      3. Chief Justice Lamer recommended the creation of a permanent military court of record pursuant to the authority granted to Parliament under section 101 of the Constitution Act, 1867.Footnote 77
      4. This recommendation has not been implemented. The courts martial remain ad hoc judicial bodies. They do not exist until they are convened by the CMA and they are deemed to be dissolved when they terminate their proceedings.Footnote 78
      5. At the beginning of my review, I asked why the recommendation of Chief Justice Lamer was set aside. I was informed that a working group, the JAG Advisory Panel on Military Justice, met in 2003 and 2004 to consider the creation of the permanent military court, among other proposed reforms. According to the information I received, it “identified some factors in coming to [its] view to retain the current court martial construct: [a permanent military court] would not automatically address [Chief Justice Lamer’s] concerns; the court martial would be further separated from the [Canadian Armed Forces] and from the experience and conditions of service life; [and] many of the issues identified were addressed through a number of other measures within the court martial construct”.Footnote 79 I asked for further information but was not provided with any meaningful details.Footnote 80
    2. Concerns Raised by the Ad Hoc Status of Courts Martial
      1. Some of Chief Justice Lamer’s concerns were addressed. For example, section 187 of the NDA was amended to allow a military judge to hear and determine “any question, matter or objection” in respect of a charge “[a]t any time after a charge has been preferred”, without having to wait for the court martial to be convened.
      2. Also, following the Lamer Report, the CMJ can “with the Governor in Council’s approval and after consulting with a rules committee established under regulations made by the Governor in Council, make rules governing” several aspects of practice and procedure at courts martial and in preliminary proceedingsFootnote 81 (“CMJ Rules”).
      3. Despite these improvements, I believe that ad hoc courts martial continue both to lack institutional independence and to generate inefficiencies in the military justice system.
      4. Courts martial remain dependent on commanding officers. The commanding officer of the unit where the court martial is to be held is responsible for providing adequate accommodation, administration and personnel.Footnote 82 The commanding officer must also ensure the appointment of an escort and of an officer of the court so “that all administrative and domestic arrangements for the efficient functioning of the proceedings are effected”.Footnote 83 Given that a court martial ceases to exist once the trial ends, the commanding officer is, in addition, responsible for “tak[ing] the necessary action to ensure that any sentence is carried out”.Footnote 84
      5. A certain degree of reliance by the tribunal on units of the CAF may be unavoidable, but such reliance should be reduced where possible without impairing the ability of the military justice system to foster discipline, efficiency and morale in the CAF.
      6. Despite sections 165.3 and 187 of the NDA, in current practice, several pre-trial events only occur once a court martial has been convened and a military judge has been assigned to preside over it. The CMRPFootnote 85 state that preliminary applications may start after the completion of these steps. They also require that “[n]otice […] be given at least three working days before the date requested for the hearing of the application”.Footnote 86
      7. According to the Canadian Military Prosecution Service (“CMPS”), this “does not provide sufficient lead time in order to permit most applications to be dealt with without leading to a postponement of the trial”.Footnote 87 The system does not rely on early case management conferences to solve this issue, because the CMRP do not provide for pre-trial conferences prior to the convening of the court martial.Footnote 88 The Auditor General of Canada found in its 2018 report that “[i]t took an average of 5.5 months for the prosecutor and the defence counsel to hold a teleconference call with the Chief Military Judge” simply to set the date of the trial.Footnote 89
      8. Unfortunately, amending the CMRP by enacting a set of new CMJ Rules is not a simple process. Draft CMJ Rules must first be prioritized by the Director Defence Programme Coordination (“DDPC”), an officer within the Chief of Programme division of the CAF.Footnote 90 For the submission to proceed to the Governor in Council, it must then be directed accordingly by the Director Corporate Submissions and Financial Arrangements of the Department of National Defence (“DND”). This process leads to the publication of the draft CMJ Rules in Part I of the Canada Gazette, to allow for public consultations. Once the consultation phase is complete, a second Governor in Council submission (and the entire process associated with it) is required to formally enact the CMJ Rules.
      9. The delays caused by this process are not hypothetical. I was informed by Lieutenant-Colonel (retired) André Dufour, legal counsel to the OCMJ, that draft CMJ Rules were initially prepared and presented to representatives of the DND in 2018. The matter had not progressed by June 2020, when slight revisions to the draft became necessary and were ultimately made.
      10. On June 11, 2020, Mr. Dufour wrote to the DDPC that the revised draft CMJ Rules would “enhance the independence of military judges” and were “essential to military judges to enhance their capacity to manage the proceedings, make the litigant parties more accountable and overall reduce delays”.Footnote 91
      11. On September 10, 2020, Mr. Dufour was told by the DDPC that “[w]e are putting this as “Priority A” for the second session of 2021 (i.e. July-December). It is […] 15th in the priority list, so that means that our initial estimate would be that it would be seen by [the Program Management Board] in September or October 2021”.Footnote 92 This is in the context of the first submission to the Governor in Council.
      12. The fact that the OCMJ is a unit of the CAF has other impacts of this sort. For example, on December 23, 2019, the CMA was advised by a representative of the DND that, unlike the CMJ, she has no authority under Treasury Board policy to approve military judges’ travel expenditures. This runs contrary to established practice since the creation of her position and is a problem because military judges are continuously required to travel in the course of their duties.
      13. The CMA was advised that, while an exemption would be pursued, travel requests for judges would need to be submitted to the Minister of National Defence (“Minister”) or Deputy Minister for approval. She was asked to prepare a travel plan to consolidate their known travels for courts martial and training in the ensuing months.
      14. In a nutshell, courts martial and military judges continue to rely to a great extent on the internal mechanisms of the CAF and the DND for their administrative, regulatory and budgetary needs. Contrary to the Department of Justice Canada (“DOJ”), which is responsible for most federal matters connected with the administration of justice in Canada,Footnote 93 the CAF and the DND are in the business of operations. Therefore, they may not be able to adequately prioritize needs of courts martial and military judges or have the appropriate sensitivity to deal with some of the issues. The risk of executive interference with their institutional independence is clear.

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    3. Establishment of a Permanent Military Court of Canada
      1. In this light, the words of Chief Justice Lamer are as true today as they were in 2003: “The most efficient way of dealing with the myriad of difficulties faced by military judges as they try to contort the current system of ad hoc courts martial into an independent judicial institution would be to create a permanent “Military Court” of Canada pursuant to the authority granted to Parliament under s. 101 of the Constitution Act, 1867”.Footnote 94
      2. Piecemeal reforms and quick fixes are not sufficient.
      3. The creation of a permanent Military Court of Canada would properly locate courts martial within the judicial branch of government, instead of the executive branch. It would also grant courts martial and military judges more flexibility to manage their rules of court and their own proceedings. For example, this continuous jurisdiction would facilitate the taking of pleas and the organization of case management conferences at the earliest opportunity after the preferral of charges.Footnote 95 I was assured by most military justice actors I met that court martial cases would be expedited.
      4. This would be a significant gain. The military justice system justifies its separate existence on the basis of its ability to punish breaches of military discipline more quickly than the civilian justice system.Footnote 96 But as I will further explain in Part VI of this Chapter,Footnote 97 it is hardly evident that it has that ability in its present form.
      5. The establishment of a permanent Military Court of Canada is supported by the Deputy Minister and the CMA. The JAG also offered it as one option for consideration in relation to the civilianization of military judges. Several commentators who I met over the course of my review, including former legal officers of the CAF, were also supportive of this proposal.
      6. The Canadian military justice system has evolved in a manner similar to those of the United Kingdom, New Zealand and Australia.Footnote 98 Notably, both the United Kingdom and New Zealand established a permanent Court Martial in the last 15 years.
      7. Australia also attempted to establish a permanent military court, the Australian Military Court (“AMC”). However, on August 26, 2009, the High Court of Australia decided in Lane v MorrisonFootnote 99 that the AMC had been unconstitutional since its establishment on October 1, 2007. The ad hoc court martial system was revived shortly thereafter. Between 2010 and 2012, new bills were introduced in the Parliament of Australia to establish another permanent military court, the Military Court of Australia, but these bills died on the order paper. Australia therefore continues to convene its courts martial on an ad hoc basis.Footnote 100
      8. The constitutional defect of the AMC arose from the fact that the Commonwealth of Australia Constitution Act requires the federal courts exercising the judicial power of the Commonwealth to meet certain requirements of tenure, manner of appointment and security of remuneration of judges. The AMC was never intended to comply with such requirementsFootnote 101 as the government’s view was that the AMC was valid as an exercise of the defence power, rather than the judicial power. The High Court of Australia disagreed and concluded that the AMC did, unconstitutionally, exercise the judicial power of the Commonwealth.
      9. The JAG and some of her predecessors were concerned that a permanent Military Court of Canada could meet the fate of the AMC. I believe that this is unlikely. Beyond the fact that our Constitutions differ, the judges of a permanent Military Court of Canada would be provided with the hallmarks of judicial independence in all respects.
      10. From a division of powers perspective, section 101 of the Constitution Act, 1867 allows the Parliament of Canada to provide “for the Establishment of any additional Courts for the better Administration of the Laws of Canada”. This power is granted “notwithstanding anything in [the] Act”. This rule would protect the establishment of a permanent Military Court of Canada from claims of interference with the provincial legislatures’ powers over the administration of justice.Footnote 102
      11. I concur entirely with Chief Justice Lamer’s assessment:
        • I have considered the question of whether or not the Parliament of Canada is able to validly create a permanent court that would overlap with the provincial criminal jurisdiction, given subsections 91(27) and 92(14) of the Constitution Act, 1867. It is my respectful belief, and that held by other esteemed jurists and academics alike, that section 101 of the Constitution Act, 1867 grants to Parliament the authority to create a court supplementary to provincial superior courts notwithstanding the jurisdiction of provinces over the creation of criminal law courts. I would refer you also to the reasoned opinion I obtained from Dr. Alain-Robert Nadeau, Attorney and Doctor of Constitutional Law as found at Annex G in which my reasoning is confirmed. Dr. Nadeau states:
          • Thus, like the Court Martial Appeal Court, the creation of a trial court martial, the jurisdiction of which would be confined to matters under the jurisdiction of Parliament for the purpose of deciding matters arising out of an offence committed under the National Defence Act and Canadian penal laws, would comply with these principles. In our opinion, the constitutionality of such court could not be questioned.
        • The Court Martial Appeal Court was created by Parliament in 1959 and is a superior court of record identical in function and status to the provincial superior courts having final appellate jurisdiction in criminal matters. It is my belief, in agreement with that expressed above, that the creation of the Court Martial Appeal Court is further evidence that the Parliament of Canada would be validly working within the parameters established by the Constitution Act, 1867 should it choose to create a permanent Military Court and thereby at once increasing the independence of the judiciary, and solving a multitude of difficulties currently plaguing the Office of the Chief Military Judge.Footnote 103
      12. From a Charter perspective, I have considered whether a service offence tried by a permanent Military Court of Canada comprised of civilianized military judges would qualify as “an offence under military law tried before a military tribunal” for which no right to trial by jury is guaranteed.Footnote 104 In my view, it would. The majority of the Supreme Court of Canada decided in Stillman that both elements of the military exception were to “be read together as denoting the military justice system as a whole, as the French text makes clear”.Footnote 105
      13. The permanent Military Court of Canada would continue to form part of the military justice system. It would continue to have separate jurisdiction over the adjudication of service offences and special powers of punishment to that end. And it would keep distinct military characteristics, notably the requirement for military judges to have a sufficient degree of military experience; and the involvement of panels of five members of the CAF in the context of general courts martial.
      14. In any event, these remote and unascertained constitutional risks must not stand in the way of the desirable evolution of the Canadian military justice system. If doubt remains, the Governor in Council could refer questions on the constitutionality of a proposed permanent Military Court of Canada to the Supreme Court of Canada.Footnote 106
        • Recommendation #4. A permanent Military Court of Canada should be established as a superior court of record in accordance with section 101 of the Constitution Act, 1867. The Military Court of Canada should be enabled to sit at such times and at such places in Canada and abroad as it considers necessary or desirable for the proper conduct of its business. The Minister of Justice should have responsibility for the administrative and budgetary needs of the Military Court of Canada.
        • In this Report, unless the context indicates otherwise, references to military judges include the judges of the Military Court of Canada, and references to courts martial include the Military Court of Canada sitting as a court martial.
      15. Should the Military Court of Canada be established as a court in its own right? Or should it be a division of the Federal Court? Or should both the Military Court of Canada and the CMAC be continued respectively as the trial and appeal divisions of a unified Court Martial? Should the Military Court of Canada be included under the Courts Administration Services ActFootnote 107?Should complaints against military judges continue to be directed to the Military Judges Inquiry Committee or should the Canadian Judicial Council assume disciplinary responsibilities for them? Should their remuneration be reviewed by the Judicial Compensation and Benefits Commission in the same manner as that of all federally-appointed judges? Should an address of the Senate and House of Commons to the Governor General of Canada be required for the removal of military judges?
      16. I recommend that a working group be established to answer the constellation of questions around the establishment of a permanent Military Court of Canada and that it report to the Minister.
        • Recommendation #5. A working group should be established to identify the most effective framework for the creation of a permanent Military Court of Canada. The working group should include an independent authority, representatives from the Department of Justice Canada and representatives from the military justice system. The working group should report to the Minister of National Defence.
      17. In the interim, the concerns raised by the ad hoc status of courts martial should be mitigated to the greatest extent possible within the current construct of the military justice system. The CMA and JAG should consider reforms which may be desirable and recommend their implementation to the appropriate authorities.
        • Recommendation #6. The rules of practice and procedure of the Chief Military Judge under section 165.3 of the National Defence Act should be enacted by the Governor in Council as soon as possible. The Canadian Armed Forces and the Department of National Defence should prioritize their enactment to meet this objective.
        • Pending the establishment of a permanent Military Court of Canada, the Court Martial Administrator and the Judge Advocate General should consider the reforms which may be desirable to mitigate the concerns raised by the ad hoc status of courts martial in so far as possible. They should recommend the implementation of these reforms to the appropriate authorities.

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  3. Military Prosecutors and Defence Counsel
    1. In 1997, Chief Justice Dickson recommended the appointment of an independent director of prosecutions responsible to the JAG. He also recommended that “whenever a Canadian Forces member is entitled to legal advice under the Code of Service Discipline, the Judge Advocate General [should] provide such advice in a manner that is independent of the Judge Advocate General’s prosecution and judicial functions”.Footnote 108
    2. Combined with earlier recommendations of the Somalia Inquiry ReportFootnote 109 and the impact of the Supreme Court of Canada’s ruling in Généreux, his recommendations led to the creation of the positions of DMP and DDCS.
    3. The DMP “is responsible for the preferring of all charges to be tried by court martial and for the conduct of all prosecutions at courts martial. [He] also acts as counsel for the Minister in respect of appeals when instructed to do so”.Footnote 110
    4. The DDCS “provides, and supervises and directs the provision of, legal services […] to persons who are liable to be charged, dealt with and tried under the Code of Service Discipline”.Footnote 111 The CAF has made the policy choice to provide all members of the CAF involved in the military justice system with either free legal advice or free counsel, depending on the circumstances. In particular, free legal counsel is provided to all accused persons whose files are referred to the DMP for potential prosecution and trial by court martial.Footnote 112
    5. The DMP and DDCS are the respective directors of the CMPS and Directorate of Defence Counsel Services (“Directorate of DCS”). The CMPS and Directorate of DCS are currently two divisions of the OJAG. The divisions are respectively staffed by military prosecutors and defence counsel.
    6. Military prosecutors are not advocates for the chain of command. Rather, they play the same role as Crown attorneys in the civilian justice system. Justice Rand of the Supreme Court of Canada explained this role as follows:
      • It cannot be over-emphasized that the purpose of a criminal prosecution is not to obtain a conviction, it is to lay before a jury what the Crown considers to be credible evidence relevant to what is alleged to be a crime. Counsel have a duty to see that all available legal proof of the facts is presented: it should be done firmly and pressed to its legitimate strength but it must also be done fairly. The role of prosecutor excludes any notion of winning or losing; his function is a matter of public duty than which in civil life there can be none charged with greater personal responsibility. It is to be efficiently performed with an ingrained sense of the dignity, the seriousness and the justness of judicial proceedings.Footnote 113
    7. By contrast, military defence counsel are advocates for their clients, and only for them. They have a duty of loyalty which requires them to commit to their clients’ cause and to avoid conflicting interests, including their own personal interest.Footnote 114 Canadian law recognizes, as a principle of fundamental justice, that the state cannot impose duties on lawyers that undermine their duty of commitment to their clients’ cause.Footnote 115 The words of Henry Brougham in his defence of Queen Caroline of Brunswick are often cited to describe the duties of defence counsel:
      • [A]n advocate, in the discharge of his duty, knows but one person in all the world, and that person is his client. To save that client by all means and expedients, and at all hazards and costs to other persons, and, among them, to himself, is his first and only duty; and in performing this duty he must not regard the alarm, the torments, the destruction which he may bring upon others. Separating the duty of a patriot from that of an advocate, he must go on reckless of consequences, though it should be his unhappy fate to involve his country in confusion.Footnote 116
    8. I have discussed earlier my concerns about the military status of judges, namely that military rank and potential career impacts could be improperly considered in the administration of military justice.Footnote 117 These concerns also exist for military prosecutors and defence counsel.
    9. Neither should have to fear negative consequences for performing their duties, even if doing so may require them to act against the wishes of the military hierarchy. Military defence counsel and prosecutors therefore need to be sufficiently independent from the executive, which includes both the chain of command and the OJAG.
    10. Safeguards already exist to protect the personal independence of the DMP and DDCS. But I believe such safeguards, while desirable, should be bolstered.
    11. I also believe institutional checks and balances need to be introduced for the other military prosecutors and defence counsel. Currently, none exist to ensure their independence from the executive. The measures which protect their independence result solely from directions of the JAG to her Chief of Staff. They could easily be repealed or amended by any subsequent JAG absent statutory or regulatory provisions. In other words, these measures are tied to the personality and integrity of the individual JAG. That is not sufficient and should be rectified.
      1. Services Provided by Military Defence Counsel
        1. I was told by a number of military justice actors that military defence counsel often file many applications in defence of their client, including challenges based on the Charter. I was encouraged to recommend that there be mechanisms to control the expenditures of military defence counsel. This, I was told, would ensure that they focus only on applications with greater chances of success and, in particular, that they do not repeatedly raise identical constitutional challenges to the military justice system.
        2. I fundamentally disagree with this submission.
        3. Access to free legal counsel, regardless of income, is a benefit extended to the members of the CAF as a counterpart to the extraordinary duties that are imposed on them. Those extraordinary duties include the “unlimited liability” of CAF members, by which they may at any time be ordered into harm’s way, potentially risking their lives.
        4. The fact that military defence counsel can do the utmost to defend their clients without being required to consider “fiscal responsibility” as part of their decisions is part and parcel of the special benefit which Canada decided to grant to members of the CAF. I would only very reluctantly interfere with this fundamental quid pro quo. No satisfactory basis for a recommendation of this sort has been provided to me.
        5. Military defence counsel must, of course, comply with the rules of ethics which apply to them as members of the bar of a province. Moreover, the DDCS is statutorily mandated to “supervis[e] and direc[t]” the provision of defence counsel services.Footnote 118 Accordingly, he must intervene if a military defence counsel of the Directorate of DCS files abusive, frivolous or vexatious proceedings or otherwise behaves inappropriately.
        6. It is also worth noting that applications filed by military defence counsel have historically played an important role in the evolution of the military justice system. The Directorate of DCS has been involved in important constitutional cases which have triggered amendments to the NDA, as well as in challenges which have failed, but which nevertheless provided important clarifications on the jurisdiction of the military justice system.Footnote 119 Beyond furthering the interests of their particular clients, military defence counsel ensure the ongoing legitimacy of the military justice system.
        7. Applications, including constitutional challenges, may be presented repeatedly only as a consequence of the current structure of the military justice system. Because courts martial are not superior courts, they cannot issue general declarations of invalidity if a provision is found to be unconstitutional. Only the CMAC and the Supreme Court of Canada may do so in military cases. This will cease to be true if a permanent Military Court of Canada is established as a superior court of record.Footnote 120
        8. I also believe that the establishment of a permanent court will allow military judges to intervene more easily in respect of abusive, frivolous or vexatious proceedings, should any be filed by military defence counsel.
      2. Appointment, Tenure and Removal of the Director of Military Prosecutions and Director of Defence Counsel Services
        1. The appointment and tenure of the DMP and DDCS are governed by the NDA. Both may be appointed from the officers of the CAF who are barristers or advocates with at least 10 years standing at the bar of a province.Footnote 121 They hold office during good behaviour for fixed, but renewable, terms of four years.Footnote 122
        2. Both the DMP and DDCS act “under the general supervision” of the JAG,Footnote 123 who is responsible for the “superintendence of the administration of military justice in the Canadian Forces”.Footnote 124 While they are in office, their performance is not assessed and their files are not placed before a promotion board.Footnote 125 The DMP and DDCS may only be removed from office by the Minister for cause and on the recommendation of an inquiry committee.Footnote 126
        3. The functions of the DMP are analogous to the functions of the Director of Public Prosecutions (“DPP”) in the civilian justice system. It is therefore instructive to compare their appointment and tenure as well as the conditions governing their removal from office. The DPP is appointed by the Governor in Council, on the recommendation of the Attorney General of Canada (“Attorney General”).Footnote 127 The DPP holds office during good behaviour for a single, non-renewable term of seven years.
        4. Moreover, the DPP may only be removed by the Governor in Council for cause and with the support of a resolution from the House of Commons.Footnote 128 These conditions are “important safeguard[s] that enabl[e] the DPP to resist any improper interference” and ensure that the executive will unlikely attempt to remove the DPP “absent clear incompetence, impropriety or disability”.Footnote 129
        5. I asked the OJAG to provide its comments on the current appointment and tenure conditions of the DMP and DDCS. The OJAG advised that it was in favour of maintaining the status quo. It first noted that the DMP and DDCS are “not supervised by a political official”, contrary to the DPP, as “the JAG is a senior Canadian Armed Forces officer and a non-partisan official appointed by Governor in Council”.Footnote 130

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        6. The OJAG recognized that appointments for a longer term would have the desirable effect of fostering the development of experience and litigation skills within the CMPS and Directorate of DCS. But it noted practical difficulties which could arise from non-renewable terms of service:

            Individuals appointed as the DMP or the DDCS for a limited non-renewable term could encounter career related difficulties upon completion of their appointment. If the individual is a legal officer, there are limited positions, mostly advisory, which are available at their rank level within the Office of the JAG which they could return to. During the course of their appointment, they may need to exercise their duties in a manner that may sometimes not accord with the views of the chain of command. The knowledge that they would be expected to return to advising the chain of command after their appointments could introduce perceptual concerns relating to the decisions they make while holding these appointments. These considerations could also apply if the individual appointed as the DMP or the DDCS is an officer from another occupation (regular or reserve force) were they to return to their previous military occupation. It may be in some circumstances that the most appropriate course of action would be for the individual to retire from the CAF upon completion of their appointment as the DMP or the DDCS. This is different than the circumstances faced by individuals who serve as the DPP, as there are substantially more career opportunities within the Department of Justice and wider Public Service.Footnote 131

        7. In my view, the fact that the DMP and DDCS “may need to exercise their duties in a manner that may sometimes not accord with the views of the chain of commandFootnote 132 is sufficient reason to reconsider the current renewability of their terms. As a matter of principle, the DMP and DDCS should, in performing their functions, give no consideration whatsoever to the possibility of their re-appointment by the Minister. This is particularly true in light of the Minister’s interest in all matters prosecuted in the military justice system.
        8. The current tenure of the DMP and DDCS does not achieve this objective. On the contrary, I was told by the DMP that the possibility of renewal makes them vulnerable to political pressures.
        9. I have met both directors and I am confident that their individual personalities have allowed them to resist such pressures. But this result should be guaranteed by the institutional structure and not left to individual personalities and character traits. Placing the DMP and DDCS under the supervision of the JAG is an insufficient buffer as the JAG herself only holds office at pleasure.Footnote 133
        10. The mechanisms for the removal of the DMP or DDCS by the Minister also fail to protect their independence to a sufficient degree. The acceptable causes for removal provide substantial leeway to the DMPIC, DDCSIC and to the Minister.Footnote 134
        11. That is not a problem in itself. The problem is the lack of transparency. An inquiry committee’s report is made available to the public only if the inquiry is itself held in public, which the Minister has discretion to decide.Footnote 135 A system in which removals would be subject to significant public attention would be preferable.
        12. I therefore recommend that the appointment, tenure and removal conditions of the DMP and DDCS be amended to mirror those of the DPP. I acknowledge with respect the practical concerns of the JAG, but do not consider them obstacles to my recommendation.
        13. I understand that most (and perhaps all) previous incumbents of the positions of DMP and DDCS have directly retired from the CAF during or at the end of their terms. Should future appointees choose not to retire, the possibility remains that they could be appointed as the JAG or as military judges.
          • Recommendation #7. The Director of Military Prosecutions and Director of Defence Counsel Services should be appointed by the Governor in Council, on the recommendation of the Minister of National Defence.
          • The Director of Military Prosecutions and Director of Defence Counsel Services should hold office during good behaviour for a term of seven years, subject to removal by the Governor in Council at any time for cause with the support of a resolution of the House of Commons to that effect. They should not be eligible to be reappointed for a further term of office.
      3. Authority of the Judge Advocate General to Issue Particular Instructions or Guidelines to the Director of Military Prosecutions
        1. The JAG is authorized to issue “general instructions or guidelines in writing” regarding prosecutions or defence counsel services to the DMP and DDCS.Footnote 136 Such instructions or guidelines are available to the public.
        2. The JAG may also issue to the DMP (but not to the DDCS) written instructions or guidelines with respect to particular prosecutions.Footnote 137 If this happens, the DMP must ensure that they are made available to the public, unless the DMP “considers that it would not be in the best interests of the administration of military justice for any instruction or guideline, or any part of it, to be available to the public”.Footnote 138 Moreover, the JAG must provide the Minister with a copy of all instructions or guidelines issued to the DMP.Footnote 139
        3. Similar authority is granted to the Attorney General, who may issue written directives to the DPP with respect to the initiation or conduct of specific prosecutions.Footnote 140 All directives of this sort must be published in the Canada Gazette, but the Attorney General or the DPP may delay their publication until the completion of the specific prosecutions if either of them “considers it to be in the interests of the administration of justice”.Footnote 141
        4. Chief Justice Lamer commented on the authority of the JAG to issue particular instructions or guidelines to the DMP. In his opinion, “this power is in keeping with the role of the JAG as superintendent of the administration of the military justice system and does not adversely affect prosecutorial independence. Indeed, part of the superintendence function of the JAG must be to recognize the legitimate concerns of the chain of command in the disciplinary process”.Footnote 142
        5. According to the JAG, the authority to issue specific directives to the DMP is intended to allow rapid interventions to safeguard the legitimacy or stability of the military justice system (in rare cases). I have been informed that the CMPS has no record of particular instructions or guidelines having ever been given by the JAG to the DMP. This does not mean that the power could not be used more expansively by a future JAG having a broader view of what superintendence entails.
        6. In my view, the existence of this power clearly limits the independence of the DMP. The fact that it exists for the DPP cannot, by itself, justify its existence within the military justice system. Important differences must be taken into account.
        7. In the civilian system, the directives are given by a member of Cabinet who will be directly accountable to Parliament at the latest at “the completion of the prosecution or any related prosecution”.Footnote 143 In the military justice system, where the need for independence is arguably made greater by the existence of a strong chain of command, particular instructions or guidelines may never be made public and are issued by an actor who is only indirectly – through the Minister – accountable to Parliament.
        8. In my view, this power should be removed. The outgoing DMP shares this view. I believe that the legitimate concerns of the chain of command in the disciplinary process can adequately be conveyed to the DMP without the existence of this power. Those concerns could be discussed with the DMP just as they would currently be discussed with the JAG. Discussions of this sort could lead the DMP to voluntarily reconsider positions taken by the CMPS. A general directive of the JAG could instruct the DMP to give due consideration to the concerns of an accused’s chain of command.
        9. If the decision is made not to remove the power entirely, it should, at a minimum, be exercised by the Minister, subject to the conditions found in the DPP Act. This would ensure the appropriate public transparency of the instructions given to the DMP.
          • Recommendation #8. Subsections 165.17(3) to 165.17(6) of the National Defence Act should be repealed.
          • If a power to issue directives in respect of a particular prosecution is to remain, this power should, at a minimum, be granted to the Minister of National Defence personally and not the Judge Advocate General. Any directive issued to the Director of Military Prosecutions should be required to be in writing and to be published in the Canada Gazette. The Minister of National Defence or the Director of Military Prosecutions should be authorized to direct that the publication be delayed at the latest until the completion of the prosecution or any related prosecution if either considers this delay to be in the interests of the administration of military justice.
        10. In its submissions, the OJAG also recommended that the NDA be amended:
          1. to require that the DMP notify the JAG in a timely manner, of any issues of strategic relevance to the administration of military justice that arise in the performance of the DMP’s duties, akin to the notices that the DPP is required to give to the [Attorney General] under section 13 of the DPP Act”;Footnote 144 and
          2. to require the DMP “to notify the JAG when instructed to act for the [Minister as counsel in respect of appeals], and to provide the JAG with a summary of any advice provided in this regard”.Footnote 145
        11. I believe it is unnecessary for me to make such recommendations. The first proposed requirement could adequately be enacted in a general instruction or directive of the JAG to the DMP. The concerns which underlie the second proposed requirement can also be addressed through the institutional relationships which exist between the Minister, the JAG and the DMP. In particular, the JAG may already discuss such concerns with the Minister in her capacity as his legal adviser in matters relating to military law.Footnote 146

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      4. Independence of Military Prosecutors and Defence Counsel
        1. Most military prosecutors and defence counsel, apart from the DMP and DDCS, are legal officers of the CAF who are temporarily posted to the CMPS and to the Directorate of DCS as part of their career path.Footnote 147 As such, they remain at all times within the command of the JAG, and their duties are determined by or under the JAG’s authority.Footnote 148 The JAG can assign legal officers to the CMPS or the Directorate of DCS or remove them. The JAG can also assess their performance while they act as military prosecutors or defence counsel, including for the purpose of their eventual promotion. If a promotion happens, it is made “in accordance with orders and instructions issued by the Chief of the Defence Staff” and subject to the approval of “such officer as the Chief of the Defence Staff may designate”.Footnote 149
        2. This poses clear risks to the independence of legal officers posted to the CMPS or the Directorate of DCS. The risks are particularly acute for military defence counsel who are required, on a daily basis, to take positions which may be adverse to those taken by the chain of command.Footnote 150
        3. I have no doubt that most defence counsel actually act independently of the chain of command. But unfortunately I have heard anecdotal evidence of some being reluctant to make certain applications or to vigorously cross-examine high-ranking witnesses, particularly as the time for their promotion approaches. I have also been told, and have myself observed in town hall meetings, that some members of the CAF have concerns that military defence counsel may not effectively represent their interests at trial due to their own military affiliation.
        4. I hasten to add that none of my comments should be understood as a criticism of the current JAG, Rear-Admiral Geneviève Bernatchez, or as a suggestion of improper interference on her part. Quite the opposite: the DMP, the DDCS and several other CAF and DND officials with whom I have met spoke highly, and with one voice, of her respect for the independence of the various actors of the military justice system. My team and I were also very impressed by her integrity and objectivity.
        5. As reassuring as this may have been to us, it was also cause for concern. Personalities come and go, especially in the military which is characterized by temporary postings. I have, for example, heard of a former incumbent refusing to appoint new defence counsel to the Directorate of DCS until they would reduce the number of applications filed at courts martial.
        6. And in early 2017, a former DDCS reported to the Assistant Deputy Minister (Review Services) that in the last years, he had “effectively [been] shut out of knowing which legal officers had expressed a desire to come to DCS”.Footnote 151 He stated that this “ha[d] the potential to severely influence the competence level within the organization as others unilaterally select who will come”.Footnote 152 Again, the integrity of the military justice system cannot depend on the respective personalities of the JAG, DMP and DDCS. Structural safeguards need to be implemented.
        7. In my view, the first and necessary step to providing military prosecutors and defence counsel with sufficient independence from the executive is to expressly recognize their distinct roles in regulations.
          • Recommendation #9. Specific provisions should be enacted in the Queen’s Regulations and Orders for the Canadian Forces in respect of military prosecutors and military defence counsel. These provisions should expressly state that:
            1. military prosecutors are local ministers of justice and have broader responsibilities to the military justice system and to the accused;
            2. military defence counsel are advocates to their clients and have a duty of loyalty which requires them to commit fully to their clients’ cause; and
            3. military prosecutors and defence counsel may need to exercise their duties in a manner that may sometimes not accord with the views of the chain of command or of the Judge Advocate General.
        8. An amendment to the NDA is also required to clarify the meaning of the JAG’s “superintendence of the administration of military justice in the Canadian Forces”.Footnote 153 This amendment is intended to avoid interpretations which could prove prejudicial to the independence of military prosecutors and defence counsel. The 2018-2021 Office of the JAG Strategic DirectionFootnote 154 already recognizes that the mission of the OJAG includes “to superintend the administration of military justice in the Canadian Armed Forces while respecting the independent roles of each statutory actor within the military justice system”.Footnote 155 But this is a minimum. The precise meaning of the superintendence of the JAG may depend on the policy choices made in response to my recommendations below.
          • Recommendation #10. Section 9.2 of the National Defence Act should be amended to clarify the meaning of the Judge Advocate General’s “superintendence of the administration of military justice in the Canadian Forces”. At a minimum, the National Defence Act should expressly provide that the superintendence must respect the independence of military prosecutors, military defence counsel and other statutory actors within the military justice system.
        9. The concerns described above were raised by the Auditor General in his 2018 report.Footnote 156 In response, the OJAG adopted a number of policy directions to provide the DMP and DDCS with more autonomy to manage their personnel.
        10. Among these measures was a commitment to keep legal officers in prosecution and defence counsel positions for a minimum of five years. The JAG also provided the DMP and DDCS with complete authority and responsibility to approve the evaluation of prosecutors and defence counsel. The JAG, the DMP and the DDCS are of the view that such practices must be entrenched. I agree with their position and add some recommendations to address other concerns mentioned above.
          • Recommendation #11. The Queen’s Regulations and Orders for the Canadian Forces should expressly provide that:
            1. the Director of Military Prosecutions and Director of Defence Counsel Services must be informed of legal officers’ interest in being posted to their respective divisions, and consulted by the Judge Advocate General about postings;
            2. legal officers will normally be posted to the Canadian Military Prosecution Service or Directorate of Defence Counsel Services for a minimum term of five years;
            3. legal officers posted to the Canadian Military Prosecution Service or Directorate of Defence Counsel Services are under the exclusive command of the Director of Military Prosecutions or Director of Defence Counsel Services, as the case may be, for all purposes, including the determination of their duties, disciplinary matters against them and performance assessments.
        11. Various commentators invited me to consider further reforms, such as:
          1. civilianizing the positions of DMP and DDCS, or military prosecutors and defence counsel more generally;Footnote 157
          2. having the Directorate of DCS rely principally on members of the Reserve Force who practice law in their civilian lives;Footnote 158 or
          3. establishing an Office of the Director of Defence Counsel Services (“ODDCS”) as an independent unit, separate from the OJAG and responsible for its own budget and resources. This was recommended both by the DDCS and by the JAG, who stated her belief that the Directorate of DCS should not even continue to be under the general supervision of the JAG. The Deputy Minister also had a positive view of this proposed change.
        12. The benefits sought to be achieved are easily understood. Civilianizing the positions of DMP and DDCS, or military prosecutors and defence counsel more generally, would provide them with entire independence from the chain of command. Having the Directorate of DCS rely on reservist legal practitioners would ensure that defence counsel would be less involved in the OJAG environment, but nevertheless have some degree of familiarity with the military. An independent ODDCS would provide substantially greater institutional independence to military defence counsel.
        13. However, I am concerned that the proposed reforms may also have unintended drawbacks. For example, contrary to military judges, military prosecutors and defence counsel will not hold office until their retirement from the CAF, and may well wish to return to the OJAG at some point in their career. Requiring them to forego their military status could substantially reduce the pool of interested applicants from the OJAG. This could deprive the CMPS and the Directorate of DCS of applicants with considerable military experience, which I have accepted is an advantage in the military justice system.Footnote 159
        14. Moreover, an independent ODDCS would constitute a small unit of the CAF. I am concerned that it may, on its own, have difficulties securing a sufficient budget as well as administrative and human resources. The OJAG could need to continue to provide some administrative support. Furthermore, if defence counsel remain military, most of them will likely be former legal officers of the OJAG. When they leave the ODDCS, they likely will wish to reintegrate into the OJAG to serve in some other capacity. If this is how things unfold, it would defeat the benefits of institutional “separation”. Establishing a distinct military litigation career path for prosecutors and defence counsel could be a promising solution, but would likely entail important changes to legal officers’ current progression within the OJAG.
        15. I believe a working group should fully weigh the benefits and drawbacks of these proposed reforms.
          • Recommendation #12. A working group should be established to consider further reforms aimed at enhancing the independence of military prosecutors and defence counsel. The working group should include an independent authority, as well as the Judge Advocate General, the Director of Military Prosecutions and the Director of Defence Counsel Services or their representatives. The reforms considered should, at a minimum, include:
            1. the full or partial civilianization of the positions of Director of Military Prosecutions and Director of Defence Counsel Services, or military prosecutors and defence counsel more generally;
            2. increased reliance by the Directorate of Defence Counsel Services on members of the Reserve Force who are legal practitioners;
            3. the establishment of an Office of the Director of Defence Counsel Services as an independent unit, separate from the Office of the Judge Advocate General and not subject to its general supervision; and
            4. the establishment of a distinct career path for military prosecutors and military defence counsel, potentially including special mechanisms for their promotion.
  4. Military Police
    1. Members of the military police play an important role in enabling the military justice system to achieve its objectives of fostering the discipline, effectiveness and morale of members of the CAF. The independence and professionalism of the military police, and confidence of CAF members in its performance, are important factors in achieving these objectives.
    2. Members of the military police have a multifaceted role. They are first members of the CAF with operational military duties. They are simultaneously members of the military police who “provide professional policing, security and detention services to the CAF and DND globally, across the full spectrum of military operations”.Footnote 160 As such, they are responsible for traffic enforcement, emergency response, investigation into criminal and service offences, crime prevention, community relations programs, and several other roles.Footnote 161
    3. The importance of the independence of the military police from the executive, or the chain of command, cannot be understated. In Campbell,Footnote 162 the Supreme Court of Canada decided that in terms of their law enforcement activities “police are independent of the control of the executive government”.Footnote 163 The Court recognized that police independence is a constitutional principle which “underpins the rule of law”.Footnote 164
    4. All members of the military police belong to the Canadian Forces Military Police Group. The Canadian Forces Provost Marshal (“CFPM”) heads this group. The CFPM:
      1. is “an officer who has been a member of the military police for at least 10 years” and who “holds a rank that is not less than colonel”;Footnote 165
      2. holds office during good behaviour for a term not exceeding four years”, which may be renewed, but may be removed by the CDS for cause, on the recommendation of an inquiry committee;Footnote 166
      3. acts under the general supervision of the Vice Chief of the Defence StaffFootnote 167 (“VCDS”), who may issue both general or particular instructions or guidelines to the CFPM.
    5. Until 2011, most members of the military police were subject to the chain of command in whichever division of the CAF they were posted.Footnote 168 In 2011, the CDS directed that all members of the military police be brought under the full command of the CFPM while conducting policing duties and functions. Members of the military police remain subject to lawful orders of the chain of command in the context of their other duties and functions.Footnote 169

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    6. In my view, the independence of the military police from the chain of command in the context of their policing duties and functions can be bolstered in a number of ways.
      1. Appointment, Tenure, Removal and Title of the Canadian Forces Provost Marshal
        1. The JAG suggested that the independence of the CFPM from the chain of command could be reinforced by amending the appointment, tenure and removal conditions of the CFPM. The CFPM would be appointed and removable by the Governor in Council, not the CDS, and made accountable to the Minister, not the VCDS, in the performance of his duties and functions.Footnote 170 In practice, the tenure of the CFPM would therefore reflect the tenure of the Commissioner of the Royal Canadian Mounted Police. I believe that this outcome is desirable.
          • Recommendation #13. Section 18.3 of the National Defence Act should be amended to provide that the Canadian Forces Provost Marshal be appointed by the Governor in Council and hold office during pleasure. The Chief of the Defence Staff should accordingly have no authority to remove the Canadian Forces Provost Marshal.
          • The Canadian Forces Provost Marshal should be responsible to the Minister of National Defence in the performance of his duties and functions. References to the Vice Chief of the Defence Staff in section 18.5 of the National Defence Act should consequently be replaced by references to the Minister of National Defence. Moreover, section 18.6 of the National Defence Act should be amended to provide that the Canadian Forces Provost Marshal report annually to the Minister of National Defence on the activities of the Canadian Forces Provost Marshal and the military police during the year.
        2. In its submissions, the Canadian Forces Military Police Group has also suggested that the title of the CFPM be changed to Provost Marshal General. This would be in keeping with other senior specialist designations in the CAF, such as the Surgeon General, the Chaplain General and the JAG. The military police asserts that the change of title would (a) ensure that it is understood that the holder of this position is the senior law enforcement officer within the CAF; and (b) reinforce the independence of the CFPM from the chain of command in policing matters. Other CAF and DND officials, including the JAG, were in favour of this change.
        3. I have been informed that Director Generals in the CAF usually rank as generals. In a hierarchical institution like the military, future incumbents of the CFPM position holding a rank of colonelFootnote 171 may not receive the recognition and deference to which their law enforcement functions entitle them. I therefore recommend that the CFPM at least hold the rank of brigadier-general or its naval equivalent of commodore. In light of the reasons put forward by the military police, I am also supportive of the proposed change of title. However, I am of the view that these changes should not be viewed as substitutes for the more substantive changes recommended above, which are essential to safeguard military police independence.
          • Recommendation #14. The National Defence Act should be amended to restyle the Canadian Forces Provost Marshal as the Provost Marshal General and to provide that the Canadian Forces Provost Marshal holds a rank that is not less than brigadier-general.
      2. Authority to Issue Particular Instructions or Guidelines to the Canadian Forces Provost Marshal
        1. Bill C-15Footnote 172 added subsection 18.5(3) to the NDA in 2013. It provides that the VCDS “may issue instructions or guidelines in writing in respect of a particular investigation”. The CFPM must ensure that such instructions or guidelines are available to the public, but may decide against making them public if he “considers that it would not be in the best interests of the administration of justice for the instruction or guideline, or a part of it, to be available to the public”.Footnote 173 I am informed that no particular instructions or guidelines have been issued to date.
        2. Prior to this amendment, it was deemed inappropriate for the VCDS to issue directions regarding particular military police investigations. The 1998 Accountability Framework signed by the VCDS and CFPM of the day confirmed the authority of the VCDS to “give orders and general direction to the CFPM to ensure professional and effective delivery of policing services”, but stipulated that “the VCDS [would] not direct the CFPM with respect to specific military police operational decisions of an investigative nature”.Footnote 174 It also provided that “the VCDS [would] have no direct involvement in individual ongoing investigations but [would] receive information from the CFPM to all necessary management decision making”.Footnote 175 The CFPM had discretion to determine the information which would be shared with the VCDS.
        3. Subsection 18.5(3) of the NDA was controversial when it was enacted. It was justified by the government of the day on the basis that it would allow the VCDS to provide the military police with information needed when its members would be operating in zones of armed conflict. Opposition members took issue with this rationale during the parliamentary debates on Bill C-15. They argued that military police do not go into live fire zones to conduct investigations. In any event, they noted that the wording of the provision is much broader than would be necessary to address this specific situation. Various amendments were unsuccessfully proposed.Footnote 176
        4. I am skeptical of this rationale. I do not believe any particular authority is required to provide members of the military police with information they need to assess risks to their safety, in the unlikely event they would choose to investigate in a battlefield situation.
        5. In my view, subsection 18.5(3) of the NDA significantly encroaches on police independence. The threat posed by this provision is even greater than the threat from the authority of the JAG to issue particular directives to the DMP. This power of the VCDS (or the equivalent power which would be transferred to the Minister if Recommendation #13Footnote 177 is implemented) may prevent the constitution of any evidentiary record to begin with. I agree with the following submission of the MPCC:
          • The authority conferred upon the VCDS is specifically and exclusively aimed at the heart of military policing duties, i.e., the investigation of offences. The fact that Military Police members have a dual role as police officers and as soldiers does not diminish the applicability of the legal principle of police independence to the Military Police when conducting law enforcement investigations. If it were otherwise, then questions must be raised as to why Parliament created the interference complaint mechanism in the 1998 National Defence Act amendments that established the Commission.Footnote 178
        6. The CFPM, the MPCC, the JAG and a number of other people I consulted called for the repeal of this provision.Footnote 179 Both the CFPM and Professor Kent Roach also recommended that there be some codification of police independence in the NDA. I agree with their submissions.
          • Recommendation #15. Subsections 18.5(3) to 18.5(5) of the National Defence Act should be repealed.
          • For greater clarity, section 18.5 of the National Defence Act should be amended to provide that the general supervision and authority of the Vice Chief of the Defence Staff (or of the Minister of National Defence if Recommendation #13 is implemented) to issue general instructions or guidelines do not include a power to give directions regarding specific law enforcement decisions in individual cases.
      3. Standing to Make Interference Complaints
        1. Subsection 250.19(1) of the NDA provides that “[a]ny member of the military police who conducts or supervises a military police investigation, or who has done so, and who believes on reasonable grounds that any officer or non-commissioned member or any senior official of the Department has improperly interfered with the investigation may make a complaint about that person” to the MPCC.
        2. In 2011, Chief Justice LeSage adopted a submission of the MPCC and recommended that the standing to make an interference complaint be extended “to include persons seconded to [military police] positions”.Footnote 180 He also recommended that subsection 250.19(1) of the NDA be amended “to include improper interference with a policing duty or function”.Footnote 181 I was informed that the CFPM agreed with my predecessor’s recommendations in this regard. Nonetheless, they have not yet been implemented.
        3. Circumstances may arise where a member of the military police is aware of interference with a policing duty or function but chooses not to make a complaint. A number of commentators argued that police independence could be reinforced by broadening the standing to make a complaint to include any officer or non-commissioned member. This is the standing which currently applies for complaints about the conduct of members of the military police.Footnote 182
        4. I agree with their submissions. The public interest will be better served if every person informed of interference with the military police has a right to complain to the MPCC. The Chairperson of the MPCC already has the power to direct that no investigation be started or that an investigation be ended if “the complaint is frivolous, vexatious or made in bad faith”.Footnote 183
          • Recommendation #16. Subsection 250.19(1) of the National Defence Act should be amended to provide that “[a]ny person, including any officer or non-commissioned member, who believes on reasonable grounds that any officer or non-commissioned member or any senior official of the Department has improperly interfered with a policing duty or function” may make an interference complaint to the Military Police Complaints Commission.

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