Chapter 5 – Observations on the Independent Review Process and Policy Development in the Military Justice System

1. The Independent Review Process: A Statutorily Mandated Review
   695. Subsection 273.601(1) of the National Defence Act^{Footnote 780} (“NDA”) requires the Minister of National Defence (“Minister”) to cause an independent review to be undertaken of key provisions of the NDA and their operation. Subsection 273.601(2) requires the Minister to table a report of a review in each House of Parliament within seven years after the day on which section 273.601 comes into force, and every seven years thereafter. Section 273.601 came into force on June 1, 2014. Subsection 273.601(3) provides that if the NDA is amended based on an independent review, the next report shall be tabled within seven years after the day on which the amending Act is assented to.
        1. Time Frame for the Review
           696. One of the advantages of the review provided for in section 273.601 of the NDA is that it is a predictable event. It has been clear since the coming into force of this provision on June 1, 2014 that the report of the Third Independent Review Authority – the present Report – would have to be tabled by June 1, 2021.
           697. I was appointed on October 16, 2020 and it was only a month later that various notices were published, informing internal and external stakeholders of the review and inviting their input.
           698. The Chapter on “Mandate and Methodology” describes the impressive number of submissions I received and the large number of interviews and town hall meetings my team and I conducted with stakeholders in Canada and abroad. It indicates as well that the total time available for completion of the review, after its existence was made public, has been five-and-a-half months.
           699. The breadth of the mandate set out in the NDA makes this a very ambitious time frame for conducting an extensive, in-depth review of this kind.
           700. I believe that a longer period – at least nine months – should be provided for future independent review authorities (“IRAs”). The nine-month period should run from the completion of all preliminary steps (contract signing, publication of notices calling for submissions, etc.) to the submission of the report to the Minister. This will allow future IRAs to begin their work immediately upon their appointment and provides a reasonable time to conduct the review.
                • Recommendation #98. The independent review process under section 273.601 of the National Defence Act should provide at least nine months to conduct the review and draft the report. This period should run from the completion of all preliminary steps to the submission of the report to the Minister of National Defence.
        2. Preparation for the Review
        701. It is important that the Department of National Defence (“DND”) and the Canadian Armed Forces (“CAF”) assemble certain baseline information necessary for IRAs to conduct their review.
        702. This information should include an explanation of the implementation of recommendations from previous IRAs. Where these recommendations were implemented, there should be a clear explanation of how this was done, whether by statute, regulation, directive, policy statement, training initiative, or otherwise. Where a recommendation has not been implemented at all, or only partially implemented, the reasons should be clearly explained, and relevant materials should be gathered.
        703. The same requirements should apply to recommendations made by other external or internal reviews relevant to the mandate of the IRAs. This would include relevant reports of the Auditor General of Canada, ad hoc external reviews like Justice Deschamps’ review of sexual misconduct in the CAF,^{Footnote 781} and internal audits and program evaluations by the Assistant Deputy Minister (Review Services) (“ADM(RS)”).
        704. As I mentioned in the Chapter on “Mandate and Methodology”, I was informed early in my review that there had not been a systematic tracking of the implementation status of prior review recommendations.^{Footnote 782} I note that a similar issue was raised by the Auditor General in his 2018 report on administration of justice in the CAF. The report noted that there had been inadequate responses to past reviews and that many actions set out in the responses to Chief Justice LeSage’s recommendations had not been implemented.^{Footnote 783}
        705. The DND has, however, committed to having this information available at the beginning of future independent reviews.
             • Recommendation #99. The Department of National Defence should provide future independent review authorities, at the beginning of their reviews, with a report on the implementation status of recommendations from previous independent reviews under section 273.601 of the National Defence Act and other external or internal review exercises relevant to their mandate. Officials responsible for supporting future independent review authorities should work with the Assistant Deputy Minister (Review Services) to accomplish this.
        706. Before I leave the subject of accounting for the implementation of previous recommendations, I think it helpful to offer some specific comments on the issue of training.
        707. Ensuring that actors in the military justice system understand their roles and responsibilities and carry them out properly is essential. That is why this Report contains several recommendations for training of personnel.^{Footnote 784}
        708. It is one thing to make recommendations for specific training. It is quite another to ensure that the training is effective. In the case of training, it will not be sufficient to simply inform future IRAs whether or not my recommendations were implemented. The DND and the CAF should carry out a series of evaluations on each of the training modules: their design, the type of participation included (for example, computer-based or scenario-based), and the frequency and application of acquired skills and knowledge. These could be carried out by the ADM(RS), who has responsibility for program evaluation.
             • Recommendation #100. The Department of National Defence and the Canadian Armed Forces should carry out a series of evaluations on each of the training modules: their design, the type of participation included, and the frequency and application of acquired skills and knowledge. The results of these evaluations should be made available to future independent review authorities.
        709. It is also important for the IRAs to have access to relevant evidence about the operation of the military justice system and the military grievance process. There are several areas described elsewhere in this Report where I noted the unavailability of data on the operation and performance of the military justice system.^{Footnote 785} The issue of inadequate information needed to oversee the military justice system was also raised by the Auditor General in 2018:
             • We found that the Office of the Judge Advocate General did not have the information needed to oversee the military justice system. We also found that various stakeholders, notably the Military Police, the Canadian Military Prosecution Service, Defence Counsel Services, and the Office of the Judge Advocate General, had their own case tracking systems that did not capture all the needed information.^{Footnote 786}
        710. I have mentioned earlier in this Report that, in response to the Auditor General’s recommendations, the Justice Administration and Information Management System and the Military Justice System Performance Monitoring Framework were designed, but are not yet fully operational. I recommended that they be developed and start operating in all elements of the CAF as soon as possible.^{Footnote 787} I also noted the creation, in 2019, of the Military Police Analytics Program to track data on military police investigations.^{Footnote 788} These systems should facilitate the provision of relevant data to future IRAs.
             • Recommendation #101. Future independent review authorities should, prior to the start of the review period, be briefed on all relevant data on the performance and operation of the military justice system, the military grievance process and the regime for complaints about or by military police.
               

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        3. Review of the Role of the Judge Advocate General
        711. Section 273.601 of the NDA does not expressly include, as provisions to be reviewed by IRAs, sections 9 to 9.4 of the NDA which concern the Judge Advocate General (“JAG”).
        712. This review, however, necessarily concerns several responsibilities of the JAG, in particular her relationships with, and legal powers relative to, the Director of Military Prosecutions (“DMP”) and the Director of Defence Counsel Services (“DDCS”). Moreover, the JAG has provided me with a number of helpful insights and suggestions related to the organization of the Office of the JAG (“OJAG”) and possible reforms of the military justice system. My observations and recommendations on these matters are closely connected to the objective of reinforcing the independence of the prosecution and defence counsel functions in the military justice system.^{Footnote 789} I believe that it will be important to monitor the implementation of the reforms I recommend in these areas. This should be examined by future IRAs.
        713. I also received several submissions urging me to conduct a substantial examination of the role of the JAG.
        714. As currently constituted, the JAG has multiple responsibilities. These include:
             1. acting as legal adviser to the Governor General, the Minister, the DND and the CAF in matters relating to military law;^{Footnote 790}
             2. superintending the administration of military justice in the CAF;^{Footnote 791}
             3. conducting, or causing to be conducted, regular reviews of the administration of military justice;^{Footnote 792}
             4. supervising both the DMP and the DDCS;^{Footnote 793} and
             5. overseeing the Canadian Forces Legal Branch, which provides the JAG with the authority to manage the careers of all legal officers including their postings, appointments, and selection for training and performance evaluation.^{Footnote 794}
        715. Some of the issues raised concern the relationship of the JAG to military prosecutors and defence counsel and whether the JAG’s supervisory role of those functions impairs their independence. As mentioned above, my recommendations aim to address this concern.^{Footnote 795}
        716. But among other issues: Should all of the JAG’s current functions be vested in one person? Should the person responsible for the superintendence of the military justice system be a minister with direct accountability to Parliament? Is the same person responsible for overseeing the provision of advice on military law and the administration of military justice best placed to also conduct regular reviews of the military justice system?
        717. There are also practical management issues which should be considered. Given the demanding nature and wide range of the JAG’s current responsibilities, would it not be advisable to appoint a senior deputy to the JAG to handle much of the day-to-day management, thereby enabling the JAG to devote more time to her strategic advisory role?
             • Recommendation #102. Subsection 273.601(1) of the National Defence Act should be amended to expressly include an examination of sections 9 to 9.4 of the National Defence Act concerning the roles and responsibilities of the Judge Advocate General.
        4. Independent Reviews and Other Mechanisms of Military Justice Reform
        718. The independent review process under section 273.601 of the NDA makes an important contribution to reforming the military justice system. But it is not the only method that serves this purpose. The NDA sets out at least one other review mechanism: subsection 9.2(2) of the NDA requires the JAG to conduct regular reviews of the administration of military justice.
        719. The Auditor General, in its 2018 report, noted that the OJAG had not met its duty to carry out a sufficient number of the required regular reviews.^{Footnote 796} The DND and the OJAG promised in their response to “undertake periodic and more formal reviews of the military justice system”.^{Footnote 797}
        720. Subsection 9.2(2) of the NDA offers no guidance on the scope of these reviews. This is for the JAG to decide, depending on her view of those parts of the military justice system that are in need of examination. While independent reviews must remain independent, it would be helpful for future IRAs to be aware of any reviews recently undertaken by the JAG. This could help them establish their priorities, either by focusing less on issues that have been recently reviewed by the JAG or by focusing on the key concerns identified in the JAG’s reviews.
        721. The mandate of IRAs is very broad. It was not possible to do a detailed examination of every issue brought to my attention. In this Report, I identified some areas where it would be helpful for the JAG to conduct reviews under subsection 9.2(2) of the NDA.
        722. One example of the possible use of the JAG’s review power is found in Part III of Chapter 1 on “Service Offences and Punishments”. There, I recommended that the JAG, the Canadian Military Prosecution Service and the Directorate of Defence Counsel Services collaborate to conduct regular reviews of the body of service offences contained in the NDA.^{Footnote 798} A second example is found in Chapter 2 on “Sexual Misconduct”. There, I recommended that the JAG review the desirability of extending the rights afforded to victims of service offences in the Declaration of Victims Rights to victims of service infractions.^{Footnote 799}
2. Effective Independent Oversight and Redress Mechanisms
   723. The independent review exercise itself revealed a cross-cutting theme that was not obvious when I began my review, but which emerged more clearly over the course of the ensuing months. That is the issue of oversight and redress mechanisms and how robust the powers of oversight bodies should be.
   724. The challenge of creating effective redress mechanisms for the CAF has a long history. The Somalia Inquiry Report recommended the creation, by statute, of an Inspector General with broad powers of inspection and investigation.^{Footnote 800} The recommendation was not implemented. Instead, the DND created the Office of the Ombudsman for the Department of National Defence and the Canadian Forces (“Ombudsman”). This implemented a recommendation of the 1997 Dickson Report.^{Footnote 801}
   725. The Office of the Ombudsman was created by ministerial directive.^{Footnote 802} It is not enshrined in legislation. The Ombudsman is intended to be independent of the CAF and reports directly to the Minister. However, the Ombudsman relies on the Deputy Minister of National Defence for financial and human resources issues. The Office is intended to be a neutral and independent investigator of issues brought by members of the Defence community, who have exhausted existing avenues of redress within the system.^{Footnote 803}
   726. I received submissions from both outside the government and from the Office of the Ombudsman calling for stronger oversight and redress mechanisms. Colonel (retired) Michel Drapeau called for the appointment of a civilian Inspector General of the Armed Forces who would act as an adviser to the Minister and Parliament. The Ombudsman advocated for greater structural independence for his office by enshrining it in the NDA. He also recommended that it be set up as a stand-alone agency, with the Ombudsman as deputy head, thus removing it from under the administration of the DND.
   727. During the time I conducted my review, the issue of effective, independent oversight and redress assumed a much higher profile. It extends beyond the question of general redress mechanisms like an Inspector General or an Ombudsman.
   728. It is no secret that the confidence of CAF members in their leadership has been shaken in recent months by allegations of sexual misconduct in the highest reaches of the military. A significant part of Chapter 2 on “Sexual Misconduct” addresses the need for more robust powers and a greater degree of independence for the Sexual Misconduct Response Centre (“SMRC”).^{Footnote 804}
   729. Chapter 3 on “The Military Police Complaints Commission” addresses the types of powers which are required by that entity to play an effective, independent role in overseeing the activities of the military police.^{Footnote 805}
   730. Chapter 4 on “The Military Grievance Process” grapples with the issue of how to effectively address the decades-long problem of undue delays and backlogs and earn the trust and confidence of CAF members in the grievance process. It addresses the need to provide greater powers to the Military Grievances External Review Committee. It also asks whether it is time to reimagine the military grievance system by considering a Final Authority independent of the CAF, at least in some cases.^{Footnote 806}
   731. In its 2021 Budget documents, the Government of Canada already committed to implementing new external oversight mechanisms to bring greater independence to the process of reporting and adjudicating sexual misconduct within the military.^{Footnote 807}
   732. The issues addressed in my Report and the government’s commitment to external oversight and independence in dealing with sexual misconduct involve many potential changes to oversight and redress mechanisms affecting the CAF. However, I believe there is another important issue that requires examination. While not a matter expressly included in my review, I suggest consideration be given to conducting an independent examination of the effectiveness of the Office of the Ombudsman. It could consider the oversight and redress models for the military in other democracies as well as best practices elsewhere in government. It should also consider the roles and responsibilities of a general oversight organization in relation to the subject-specific organizations that I reviewed.
        • Recommendation 103. There should be an independent review of oversight and redress mechanisms for the Canadian Armed Forces.
        • The review should examine the operation of the Office of the Ombudsman for the Department of National Defence and the Canadian Forces, and whether additional measures are needed to reinforce its independence and effectiveness. The review should examine the experience of other democracies and best practices elsewhere in government. It should consider the roles and responsibilities of a general oversight organization in relation to subject-specific oversight organizations within the Defence portfolio.
          

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3. Hateful Conduct
733. My team and I debated whether we should address the issue of hateful conduct. I heard of several disturbing incidents of members of the CAF posting hateful, openly racist comments online. I heard of members being allowed to remain in the CAF despite belonging to white supremacist or other far right groups. I was also told about a brutal assault motivated by hate, where the perpetrator was not impeded in his career. Moreover, there have been regular reports in the media of hateful acts by members of the CAF.
734. There is no question that this is a serious problem that undermines public confidence in the military. It also affects the CAF’s ability to achieve its objective of promoting diversity in the military. Nonetheless, I have concluded that a broad based review of the NDA was not an appropriate mechanism to address this issue. Moreover, my team and I received little hard data and had insufficient time to treat this important issue in a comprehensive manner.
735. I note that several initiatives have been undertaken recently to confront the problem of hateful conduct in the CAF. A provision of the NDA enacted by Bill C-77^{Footnote 808} allows service tribunals to take into account, when considering an appropriate sentence, evidence that “the offence was motivated by bias, prejudice or hate based on race, national or ethnic origin, language, colour, religion, sex, age, mental or physical disability, sexual orientation, or gender identity or expression, or on any other similar factor”.^{Footnote 809} This provision is already in force.
736. As of July 10, 2020, the CAF modified DAOD 5019-0, Conduct and Performance Deficiencies^{Footnote 810} and issued a Canadian Forces General Message and military personnel instructions to specifically define and prohibit hateful conduct and to establish a detailed framework for intervention in cases of hateful conduct.^{Footnote 811}
737. The CAF has also established a Hateful Conduct Incident Tracking System that uses the Operation HONOUR Tracking and Analysis System and in which all hate incidents are to be reported or tracked. In October 2020, the CAF launched a survey to provide a snapshot of how often harassment, micro aggression, discrimination and hateful conduct occurred over the past year.
738. Finally, in December 2020, the Minister appointed a four-member advisory panel to investigate and report on incidents of hate and racism in the Canadian military. The advisory panel will report by December 31, 2021. The news release announcing the panel described its mandate as follows:
     • As part of its mandate, the Advisory Panel will provide advice on how we can ensure […] that individuals who hold racist or white supremacist views are not allowed to enter into or remain in our organization. The Advisory Panel will be asked to identify the policies, process and practices that enable discriminatory behaviours and provide recommendations on how as an institution the Department of National Defence and the Canadian Armed Forces can eliminate them.^{Footnote 812}
739. This is a laudable initiative. However, I did not notice in its mandate specific reference to an assessment of how the military justice system and the Code of Service Discipline are addressing these issues. It will be important to ensure that the military justice aspects of this problem are addressed. This should include a review of training provided to military police to investigate hateful conduct. It should examine training for military prosecutors. It should examine the types of charges that are laid and whether they are commensurate to the seriousness of the issue. There should be an analysis of outcomes when these matters are tried before service tribunals. Are the sentences handed down adequate to achieve the objectives of effective punishment, denunciation and deterrence?
740. Moreover, there should be a review of the adequacy of the process by which administrative measures can be applied to CAF members who engage in hateful conduct, including the impediments to releasing them from the CAF in a timely manner.^{Footnote 813}
741. There should also be a review of the types of victim supports that are available. Here, there are similarities to the problem of sexual misconduct.^{Footnote 814} Should the duty to report be modified to be more sensitive to the needs of victims? Should there be a dedicated support centre like the SMRC to support victims of hateful conduct? Should victims be entitled to free, independent legal advice?
• Recommendation #104. The Minister of National Defence and the Judge Advocate General should ensure that the role of the military justice system in combatting hateful conduct is examined. They should consider whether this is best accomplished through the Advisory Panel established in December 2020, through an independent review that would include in its mandate the role of the military justice system in combatting hateful conduct or in some other way.
4. The Policy-Making Process in the Military Justice System
742. I would also make several other observations on how to improve the timeliness and quality of reforms to the military justice system.
743. As I noted in the Introduction, there is no question that there is a need for a separate military justice system that responds to the unique requirements of the CAF. No system of justice can afford to remain static, lest it becomes less relevant to the evolving needs of the community it serves.
744. Reform must take into account a number of factors. These include an assessment of the changing needs of the CAF, given the shifting demographic composition of the military and challenges to which they give rise. Issues of sexual misconduct and hateful conduct are good examples of matters that were not examined in past independent reviews but have since become priorities for action. The evolving operational context of the CAF must also be taken into account. The same is true for the impact of new technologies. For example, the development of video conferencing may reduce the need for courts martial to physically take place in a theatre of operations. The emergence of social media creates new challenges to the ability to discipline hateful or misogynistic speech.
745. There should also be an ongoing exchange of information with other democratic countries, and especially with our Five Eyes allies, on how their military justice systems have evolved. There is need for caution in simply adopting reforms from other countries. Differences in culture, legal systems and operational requirements must be taken into account. Nevertheless, I found it very useful to have had an opportunity to speak with experts in military justice in all of our Five Eyes partners. Understanding the experience in the United Kingdom and New Zealand with the creation of independent and permanent military courts, and the reasons why a similar initiative failed in Australia, were very helpful to me in formulating recommendations on increasing the independence of military judges in Canada. My team and I also benefitted from learning about the experience of the United Kingdom and New Zealand with respect to their service members’ rights to appeal from summary trials.
746. Reform must also take into account developments in the civilian justice system. An assessment must be made on whether such reforms are appropriate for adoption into the military justice system. A good example is the decision to include a Declaration of Victims Rights in Bill C-77. Its provisions largely mirror those of the Canadian Victims Bill of Rights^{Footnote 815} enacted in 2015. However, the military provisions were only enacted by Parliament in 2019 and are unlikely to come into force for a number of years. This deprives members of the CAF of the same protections that have been available to victims in the civilian system for years.
747. In my view, there are a few other areas that should be explored further with a view to improving the effectiveness of reform efforts.
748. First, I believe there should be a review of the adequacy of resources for military justice policy development. The Department of Justice Canada (“DOJ”), which is responsible for most policy development in the civilian justice system, has put in place a robust policy infrastructure. The DND and the CAF should also examine what is needed to deliver an effective program of ongoing policy development. This should include resources to maintain information management systems and to undertake regular reviews of the administration of justice, as recommended in the 2018 report of the Auditor General.
749. Second, I believe there needs to be improved collaboration with the DOJ on policy development. I understand, from speaking with the JAG and senior DOJ officials, that there is some interaction between the OJAG and the Criminal Law Policy Section at the DOJ. However, military justice is certainly not the priority mandate of those responsible for policy development in the DOJ.
750. Senior OJAG officials should undertake discussions with senior DOJ officials to strengthen this collaboration. The goal should be to improve the ability of the OJAG to be made aware, on a systematic basis, of areas for reform in the civilian system and to provide an earlier opportunity to consider whether and to what extent such initiatives should be adopted into the NDA. These discussions could also examine the opportunity to identify legislative strategies to accelerate the adoption of civilian justice reforms into the NDA, where appropriate.
751. Discussions between the OJAG and the DOJ could also examine the possibility of more personnel interchanges between the OJAG and the Criminal Law Policy Section at the DOJ so there is better mutual understanding of opportunities for collaboration.
752. On a similar note, the OJAG should, in cooperation with the DOJ and the Department of Public Safety and Emergency Preparedness, review its participation in federal-provincial-territorial working groups on the justice system. I understand that there is currently some participation in such groups, for example, by military prosecutors. Participating in working groups on issues like policing or family law should be considered as well.
     • Recommendation #105. There should be a review of the adequacy of resources for military justice policy development.
     • Recommendation #106. Senior officials of the Office of the Judge Advocate General should undertake discussions with senior officials of the Department of Justice Canada to improve information sharing and collaboration on policy initiatives.
     • Recommendation #107. The Office of the Judge Advocate General should, in cooperation with the Department of Justice Canada and the Department of Public Safety and Emergency Preparedness, review its participation in federal-provincial-territorial working groups on the justice system.

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