Canada’s system of military justice is deeply rooted in the fertile medium of necessity, tradition and history.
Of necessity, it differs in important respects from its civilian counterpart. By tradition, and as a matter of commitment, it has remained loyal to its distinct characteristics – and correspondingly resistant to external oversight, civilian influence, and proposed reforms that would impact the chain of command. As for its history, Canada’s military justice system has always been separate from our civilian system of justice and it embraces that historical fact.
These deep roots are solidly embedded and, in some respects, stubbornly entrenched. But our military justice system must nonetheless conform with evolving social values and contemporary legal norms. It has partly for that reason been made subject by Parliament to external scrutiny, at fixed intervals, by an Independent Review Authority.Footnote 1 As the Supreme Court of Canada noted in Stillman, these independent reviews facilitate the continuing evolution of our military justice system by “ensuring the system is rigorously scrutinized, analyzed, and refined at regular intervals”.Footnote 2
I am the Third Independent Review Authority.Footnote 3 My mandate has required me to “rigorously scrutinize and analyze” the structure and operation of Canada’s military justice system writ large,Footnote 4 and I have sought to do so with due regard to its distinct needs and objectives. More particularly, I have borne in mind the changing nature of Canada’s military missions, foreign and domestic; the evolving gender and ethnic composition of the Canadian Armed Forces (“CAF”); and the impact of modern technology on disciplinary and judicial proceedings.
Elsewhere in my Report I comment on the efficacy and utility of independent reviews of this sort. And I shall have something to say as well about the constraints my review has been subject to – some unavoidable, others unwarranted. But I think it best to begin instead by setting out the principal principles governing this review.
First, the rule of law is a fundamental principle of justice in Canada. Equality before the law is one of its essential components. This means that the same laws apply – and apply equally – to everyone in Canada. Exceptions to the law’s equal treatment of everyone in Canada must be rationally connected to a valid objective. And, as a matter of principle, they should curtail protected rights and freedoms no more than necessary to pursue or achieve that objective.
A separate system of military justice is demonstrably justified by the military’s need to maintain discipline, efficiency and morale. Fostering these requirements is a valid legislative objective. It follows that Canada’s system of military justice may subject members of the armed forces to a standard of conduct and to limitations on due process foreign to civilian law.
To respect the rule of law, however, these departures from the civilian legal system should be reasonable, proportionate and rationally connected to the maintenance of discipline, efficiency and morale in the CAF.
Dealing in MoriarityFootnote 5 with contested provisions of the National Defence Act, Justice Cromwell of the Supreme Court of Canada put the matter this way:
[The purpose of the challenged provisions] is to maintain discipline, efficiency and morale in the military. The real question, as I see it, is whether there is a rational connection between that purpose and the effects of the challenged provisions.Footnote 6
Several decisions of the Supreme Court of Canada, before and since Moriarity,Footnote 7 have considered the limitations in the military justice system on substantive rights and procedural safeguards that apply in civilian proceedings. These cases all deal with the constitutional validity of various elements of Canada’s military justice system. They mainly concern matters of jurisdiction and establish that military status is alone sufficient, as a matter of constitutional law, to justify limitations by the military justice system on the rights enjoyed by an accused in proceedings before civilian courts. Cumulatively considered, they establish the minimum constitutional requirements and not desirable limits on fairness and due process in the military justice system.
My recommendations, on the other hand, are not concerned with the minimum constitutional requirements set out in Généreux, Moriarity and Stillman. They assume jurisdiction and focus on how jurisdiction should be exercised, as a matter of fair policy and sound principle.
More particularly, my recommendations focus on how Canada’s military justice system, consistent with the CAF’s need to maintain discipline, efficiency and morale, can exercise its unchallenged jurisdiction more fairly, more efficiently, more independently, without conflicts of interest – real or apparent – and with appropriate oversight.
Clémenceau notwithstanding,Footnote 8 I view Canada’s military justice system as, above all, a justice system. If it were meant to completely replicate or “mirror” Canada’s civilian justice system, it would be difficult to justify its distinct and separate existence. It has its own history, its own substantive and procedural rules, and its own defining characteristics and objectives. But every justice system, military or civilian, must be measured by the independence of its actors, the clarity of its prohibitions, the fairness and transparency of its proceedings, by how it treats offenders and victims, and by its adherence to universal principles of fundamental justice.
Like others among our allies, Canada’s military justice system has evolved in each of these defining respects. But even bearing in mind the military’s need to maintain discipline, efficiency, morale and operational capability, our military justice system can benefit from periodic review and further reform.
Members of the CAF accept danger to themselves in order to protect others at home and abroad. Canada owes them more than a minimally acceptable system of justice. They are entitled to “a better system than merely that which cannot be constitutionally denied”.Footnote 9 As a matter of principle, Canada is morally obliged to provide it.
Progress has been made in this regardFootnote 10 but more needs to be done.
Unacceptable systemic delays are prevalent; training, notably of officers and members involved in disciplinary proceedings or grievances, needs to be improved; sexual misconduct and hateful conduct require more effective intervention; military judges, prosecutors, defence counsel and the military police need to be more independent of the chain of command; and members of the CAF, junior members particularly, must be given more help in striving to perform their duties and seeking to exercise their rights under the military justice system that governs their lives.
CAF members cannot unionize or bargain collectively. They do not have employment contracts and do not have access to independent tribunals to defend their interests. When treated wrongly or unfairly, their principal means of redress is the CAF’s grievance system – a broken grievance system, as we shall see below.
CAF members have no right to jury trials. And unless they choose trial by courts martial where that option is open to them, they will be tried summarily without legal representation. They are disadvantaged by the Military Rules of Evidence.Footnote 11 Upon conviction, their rights of appeal are narrower than in the civilian system; upon acquittal, they are subject to broader rights of appeal by the Minister of National Defence or counsel instructed by the Minister for that purpose.
As a matter of principle, I repeat, members of the CAF should not be deprived of legal rights and recourses available to civilians – and certainly not for reasons unrelated to the military’s operational requirements or maintenance of discipline, efficiency and morale. And even where service members are justifiably deprived of civilian rights and recourses, the military system of justice should afford them alternative and effective rights of redress, fortified by independent and empowered oversight.
The military grievance system, in particular, has not done that for decades and it does not do so now. Chief Justice Lamer found “unacceptable” in 2003 the almost 800 grievances then outstanding, some for 10 or more years. The Acting Chief of the Defence Staff acknowledged very recently that the number of grievances at the Initial Authority and Final Authority levels “is unacceptable, and does little to inspire trust in our sailors, soldiers, aviators, and special operators”.Footnote 12 The CAF, he added, “must do better”.Footnote 13
Indeed, it must: There were at least 1304 outstanding grievances in the CAF in mid-2020, almost equally divided between the Initial Authority and Final Authority levels. At least 200 were more than three years old, including 11 that dated back six to 10 years. As of February 21, 2021, the number of outstanding grievances had risen to 1350: 654 at the Initial Authority level, 696 at the Final Authority level.
Here again, the CAF is meeting neither its own objectives of discipline, efficiency and morale nor its special obligations to members. Its grievance system provides neither satisfactory nor timely redress. The CAF, I believe, is morally obliged to make up to its members for the risks they take and the rights they forego. It is bound to provide them with a better system of redress than its unacceptable grievance system now provides – nearly 20 years after its grievance system was found “unacceptable” by Chief Justice Lamer.
Delays of this sort undermine discipline, exemplify inefficiency and sap morale.
The hallmark of a healthy system of justice is the independence of its principal actors: judges, prosecutors, defence counsel and senior court administrators. They must be free and appear to be free to discharge their duties without regard to their own interests, without regard to the rank or status of the witnesses they hear, the litigants they represent, or the officers and members they judge. They must be free to act without concern that the manner in which they discharge their duties might please or displease anyone capable of influencing their promotions or careers.
In my view, increasing the independence of its actors would enhance Canada’s military system of justice without harm of any sort to the discipline, efficiency or morale of the forces. My recommendations, if implemented at least in substance, would foster that CAF objective.
A healthy system of justice must reflect not only the evolving social values of society at large, and not only the evolving cultural attitudes of the CAF itself, but also the emerging shift in its ethnic and gender composition. It must also take into account any structural or operational requirements dictated by the changing nature of its foreign and domestic activities.
Technological advances that shorten distances virtually and facilitate travel-free courts martial and tribunal hearings must be considered as well. In some measure at least, they reduce historic obstacles to timely courts martial, to expeditious disciplinary proceedings and to prompt administrative interventions.
Shortened delays and increased efficiencies inevitably enhance morale and support the distinct objectives of a separate military system of justice.
My recommendations are meant to align with those objectives as well. They are meant to assure confidence in the system,– from within and without – by adding significant elements of fairness and due process to justice within the CAF.
I am persuaded that the current leadership of the CAF has the will to materially improve its deep-rooted system of justice. And I have endeavoured, with the benefit of its input and the guidance of my team, to help show the way. My findings and recommendations are set out in the chapters that follow, with a summary at the end.
The day before my Report was due, the Minister of National Defence launched an independent, external review of sexual misconduct in the CAF and the Department of National Defence (“DND”). I am delighted that this review will be conducted by the Honourable Louise Arbour. I will be happy to assist Justice Arbour’s review however I can.
And I am pleased to see that Justice Arbour’s mandate provides for interim reports and recommendations. To the extent that she sees fit, this will enable Justice Arbour to benefit from the breadth and depth of my own review,Footnote 14 which for nearly six months heard extensive evidence from victims of sexual misconduct, from support groups, from other experts in the field and from officers and members of the CAF, past and present.
My review has confirmed the factual findings of the Honourable Marie Deschamps, who in 2015 completed her independent review on sexual misconduct in the CAF:Footnote 15 the nature, extent and human cost of sexual misconduct in the CAF remain as debilitating, as rampant and as destructive in 2021 as they were in 2015.
Unlike Justice Deschamps, who had a more restricted mandate, my review has focused on the military justice system and related aspects of sexual misconduct in the CAF. My recommendations nonetheless complement or reiterate Justice Deschamps’s, in substance at least.
I hope that my Report will enable rapid implementation of the pressing reforms I recommend. I see no reason, for example, to delay removal of the present duty of victims to report their victimization to the chain of command, which impacts on their autonomy and, I have been told, risks their exposure to reprisals, ostracization and pressures to withdraw their complaint.
Nor is there any compelling reason to delay the provision of free and independent legal advice to victims. Or to continue to investigate and prosecute sexual offences in the military justice system without affording victims the rights that would protect them in proceedings before civilian courts for the same offences.Footnote 16
Finally, I would urge the priority implementation of the Declaration of Victims Rights provided for in Bill C-77, which was adopted in 2019.Footnote 17
The prompt adoption of these recommendations will help spare victims of sexual misconduct the inevitable harm to their health and careers that delayed implementation would cause.
Another fresh initiative, this one related to the CAF’s broken grievance system, was also launched by the CAF during the latter part of my review. The details are set out below in my Chapter on “The Military Grievance Process”. Some of my recommendations regarding the CAF’s grievance system can likewise be implemented immediately. They would help to ensure the timely disposition of grievances and thus reduce the stress and anxiety of present and future grievors. Many have had to wait years – and will likely otherwise have to wait still longer – to have their grievances finally decided.
It is my fervent hope that the sexual misconduct and grievance initiatives launched by the DND and the CAF on the eve of my Report will not delay the implementation of the urgent reforms regarding both.
I recognize, of course, that some of my other recommendations will require legislative amendments. Others will need consideration by working groups or further study by the DND or the CAF. This neither requires nor justifies postponement of what can and should be done now for members of the CAF.
In short, I hope that my urgent recommendations will be implemented promptly and that all others will be considered with an appropriate degree of priority.
Following tradition, my Report is written in the first person singular. I take full responsibility, but not full credit, for its contents.
My Report is in fact the product of my team: Jean-Philippe Groleau, Senior Counsel; Guillaume Charlebois, Associate Counsel; and Morris Rosenberg, C.M., Consultant. Messrs. Groleau and Charlebois are both accomplished counsel with Davies Ward Phillips & Vineberg, a law firm with which I am associated as Jurist in Residence. Mr. Rosenberg has had a distinguished career in the federal public service, where he served, successively, as Deputy Minister of Justice, Health and Foreign Affairs. All three have my unreserved gratitude. So too does Marie-Chantale Lantin, our administrative assistant.
In a sense, this Report belongs as well to dozens of Canadian and foreign experts who graciously shared their time, insights and experience with my team; to the CAF officers of all ranks who met with us alone and in groups; and to the many service members who joined us in 16 town hall meetings.
I am also indebted to senior officials in the DND, notably the Deputy Minister, Jody Thomas, and the Assistant Deputy Minister (Review Services), Julie Charron.
I owe a special word of thanks to the Judge Advocate General, Rear-Admiral Geneviève Bernatchez, and members of her office. I am grateful as well for the coordination and logistical support provided throughout by the members of the Independent Review Authority Secretariat, Marta B. Mulkins and Christopher French, and by the CAF officer who assisted them, Captain Jeffrey Pittman.
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