Summary of Findings and Recommendations
The Military Justice System
The Independence of Military Justice Actors from the Chain of Command
The military is a hierarchical institution par excellence. The concept of command is at the very heart of its structure, operations and ethos. But it was recognized decades ago that the chain of command cannot have absolute and unfettered discretion in matters of military justice. To ensure the legitimacy of the military justice system, institutional safeguards must afford the military justice actors sufficient independence from the chain of command.
As it currently stands, the military justice system needs better protection of the independence of its judges, courts, prosecutors, defence counsel and police.
The fact that military judges remain members of the Canadian Armed Forces (“CAF”) while in office is detrimental to the appearance of justice. There are valid concerns that rank differences between the military judges and other participants in the proceedings may interfere with the proper administration of justice. Or that military judges may improperly take into account the potential impact of their decisions as CAF members subject to the Code of Service Discipline (“CSD”).
I recommend that military judges cease to be members of the CAF and renounce their military rank at the time of their appointment. To ensure their familiarity with military discipline, service offences and military life more generally, they should however be required to have a sufficient degree of military experience. I believe that “civilianizing” military judges is compatible with the continued portability, deployability and flexibility of the military justice system, especially with the benefit of today’s information and communications technology.
Civilianizing military judges helps to ensure their impartiality and independence from the chain of command. But as long as courts martial remain ad hoc judicial bodies, I believe they will continue to lack institutional independence. The significant reliance of courts martial and military judges on the internal mechanisms of the CAF and the Department of National Defence (“DND”) for their administrative, regulatory and budgetary needs creates a clear risk of executive interference.
Like Chief Justice Lamer in 2003, I therefore recommend the establishment of a permanent Military Court of Canada as a superior court of record. I believe that the Canadian constitutional framework permits this. This change would properly locate courts martial within the judicial branch of government, instead of the executive branch. Significantly, a judicial body with permanent, continuing jurisdiction would provide increased flexibility to military judges and courts martial, potentially attenuating the perennial problem of delay in the court martial system.
The concerns that military rank and potential career impacts could be improperly considered in the administration of military justice also exist for military prosecutors and defence counsel. They too need to be sufficiently independent from the executive, which includes both the chain of command and the Office of the Judge Advocate General (“JAG” and “OJAG”). And their independence cannot be left to the strength of their personalities: it needs to be protected by structural safeguards.
Safeguards of this sort already exist to protect the personal independence of the Director of Military Prosecutions (“DMP”) and Director of Defence Counsel Services (“DDCS”). But I believe these safeguards should be bolstered. I recommend that the appointment, tenure and removal conditions of the DMP and DDCS be amended to mirror those of the civilian Director of Public Prosecutions. I also recommend that the authority of the JAG to issue particular instructions or guidelines to the DMP be repealed entirely or, at a minimum, granted to the Minister of National Defence (“Minister”) personally.
No institutional checks and balances currently exist to ensure the independence of the other military prosecutors and defence counsel from the executive. The measures which protect their independence result solely from directions of the JAG to her Chief of Staff, and could easily be repealed or amended by her successors absent statutory or regulatory provisions. This should be rectified.
I recommend that the National Defence ActFootnote 816 (“NDA”) be amended to clarify that the JAG’s superintendence over the administration of military justice in the CAF must respect the independence of military prosecutors, defence counsel and other statutory actors. Further, the Queen’s Regulations and Orders for the Canadian Forces (“QR&O”) should: entrench the “soft” measures currently in place concerning postings of military prosecutors and defence counsel; place them under the exclusive command of the DMP or DDCS, not the JAG, for all purposes; and expressly recognize their distinct roles. Additional reforms, such as full or partial civilianization, the establishment of a separate Office of the DDCS or the creation of a distinct career path, should be considered by a working group.
These recommendations are aimed at ensuring the impartial adjudication of serious service offences. But the integrity of the military justice system requires more: it also depends on the independence and professionalism of the military police, and confidence of CAF members in their performance. Police independence in the performance of law enforcement activities is a recognized constitutional principle.
In my view, the independence of the military police from the chain of command can be bolstered in a number of ways.
The appointment, tenure and removal conditions of the Canadian Forces Provost Marshal (“CFPM”) should reflect those of the Commissioner of the Royal Canadian Mounted Police. The Chief of the Defence Staff (“CDS”) should not have authority to appoint and remove the CFPM. The CFPM should also be responsible and accountable to the Minister, not to the Vice Chief of the Defence Staff (“VCDS”), in the performance of the CFPM’s duties.
The authority of the VCDS to issue particular instructions or guidelines to the CFPM should also be repealed. This authority has been controversial since its enactment, and I do not believe that it is required to provide members of the military police with information they need to assess risks to their safety, as has been suggested by defenders of the power.
Finally, the ability to complain to the Military Police Complaints Commission (“MPCC”) about improper CAF or DND interference in a military police investigation, currently restricted to members of the military police, should be extended to everyone. This will serve the public interest better by providing an avenue of complaint in cases where members of the military police are aware of improper interference but choose not to file a complaint.
Military Jurisdiction over Civil Offences
A vast array of offences, including all Criminal Code offencesFootnote 817 (“civil offences”), are subject to the concurrent jurisdiction of the civilian and military justice systems. The military police and prosecutors may in those cases decide in which system to proceed. Moreover, the decision to try a civil offence in the military justice system has important repercussions for the accused, for the community at large and for victims.
Some commentators have advocated for the removal of military jurisdiction over civil offences committed in Canada or, alternatively, for its narrowing through mechanisms like excluding certain offences or a judicially-enforceable “military nexus” test. Supporters of these views usually question the legitimacy or the efficiency of trying civil offences in the military justice system.
Several of my recommendations are designed to strengthen the military justice system’s legitimacy and to enable it to meet its need to maintain discipline, efficiency and morale. I am accordingly not prepared to recommend the removal or narrowing of military jurisdiction over civil offences committed in Canada on grounds of illegitimacy or inefficiency. The particular disciplinary needs of the CAF and the risk of creating an “impunity gap” for those offences over which the civilian justice system would not, in practice, exercise its jurisdiction militate against those solutions as well.
It is clear, however, that despite the existence of military jurisdiction, it may be inappropriate to exercise military jurisdiction in certain cases. My recommendations seek to ensure, in so far as one can, that military jurisdiction will be exercised only in appropriate cases.
The members of the military police and military prosecutors are already required to take certain factors into account in their decisions about jurisdiction. However, these factors are extremely broad, offer little clarity about the proper outcome in any given case, and lack transparency.
Members of the military police and military prosecutors should commit to clear and publicly accessible principles and presumptions to determine whether civil offences should be prosecuted in the military or civilian justice system. Preferably, appropriate criteria would emerge from a multilateral understanding between the military and civilian heads of prosecutions, in consultation with the military and civilian police forces. This would increase consistency and predictability in choices of jurisdiction and make them less dependent on the particular personalities of members of the military police or military prosecutors.
Another concern I have with the existing factors is that they provide no satisfactory mechanism to resolve a jurisdictional conflict between the military and civilian authorities. The current solution if no consensus is reached is to continue consultations until it is. I recommend that the civilian jurisdiction and authorities have precedence in the unlikely event of a jurisdictional conflict. In my view, the principle of civilian jurisdictions taking precedence over military jurisdictions is rooted in Canadian military history and continues to prevail.
Other important questions concerning military jurisdiction could not be fully assessed and resolved in the context of my review. They include military jurisdiction over young offenders, civilians and former members of the CAF. They also include the jurisdictional limitations which may impair the CAF’s ability to hold some members of the Reserve Force accountable for conduct which is contrary to the values and ethics of the CAF, but in which they engage in their own time. I recommend that working groups be established to consider those questions.
Service Offences and Punishments
The NDA details the service offences which persons subject to the CSD can be charged or dealt with and tried in the military justice system. It also prescribes the punishments which may be imposed for all service offences, including some that are specific to the CAF, like forfeiture of seniority, severe reprimand, and reprimand.
I have some concerns about the current body of service offences which, in my view, is incoherent in many ways. A coherent structure is important to ensure the predictability of the law. A particular conduct should entail identifiable consequences with a fair degree of certainty. The possibility that discretionary decisions by particular actors in the system can make the consequences of a particular conduct more or less serious should be minimized. My Report includes recommendations to improve the coherence of service offences in the NDA.
Several of my recommendations relate to subsection 129(1) of the NDA, which provides that “[a]ny act, conduct, disorder or neglect to the prejudice of good order and discipline” constitutes a service offence. This prohibition is extremely vague, but I believe that its existence is justified by the necessity to maintain the discipline, efficiency and morale of the CAF. However, in order to make the law clear and predictable, subsection 129(1) should only be a residual power. This is not how that provision is currently used.
I therefore recommend the creation of new service offences for sexual misconduct, hateful conduct, and contravention of rules prejudicial to good order and discipline. I also recommend that the NDA be amended to limit the scope of subsection 129(1) to circumstances where no other service offence prohibits the alleged conduct of a person subject to the CSD.
My recommendations aim to improve the adequacy of the body of service offences, but they are not a substitute for a more comprehensive review. I recommend that the JAG collaborate with the military prosecutors and defence counsel to conduct regular reviews to update service offences, improve their coherence and identify the need for the enactment of new service offences, beyond those identified in my Report.
My most serious concern about the available punishments relates to the meaning and effect of the punishments of forfeiture of seniority, severe reprimand and reprimand. I have been told by military justice experts, internal and external to the CAF, that these sanctions currently have no identifiable effect. The QR&O should clarify their import. I also recommend that the JAG give consideration to making probation, conditional discharges and conditional sentences of imprisonment available options in the military justice system.
From the Disciplinary Investigation to the Laying, Referral and Pre-Trial Disposal of Charges
I heard a number of concerns about unit disciplinary investigations and military police investigations. None warrant firm conclusions or precise recommendations, except the issue of investigative delay in military police investigations. This longstanding concern has resulted in measures that are still in their infancy, and the data currently available is insufficient to assess their likelihood of success in the longer term.
I recommend that data on the length of military police investigations be publicly disclosed in the CFPM’s annual reports and carefully tracked in order for the effectiveness of the measures to be assessed on an ongoing basis. Additional reforms should be implemented if the data indicates the persistence or re-emergence of improper investigative delay.
I recommend that NDA provisions governing search warrants, arrests with and without warrants and pre-trial custody be amended to eliminate, in so far as possible, existing differences from corresponding civilian provisions.
I recommend that search and arrest warrants be issued by military judges rather than commanding officers except where a judicial warrant cannot reasonably be obtained in a timely manner.
With the Criminal Code provisions as a model, I also recommend the enactment of various limitations and clarifications on the powers to arrest without warrant granted to members of the CAF and members of the military police.
I have several concerns about the pre-trial custody process as it currently stands. The process involves recourse to a military custody review officer first, before access to a military judge can be considered. This strikes me as overly burdensome and creates unwarranted delays for persons in custody. It is also likely to lead to inadvertent self-incriminating statements being made by detained persons.
In my view, the military pre-trial custody regime should be reformed. Just as in the civilian justice system, persons committed to service custody should be brought before a military judge without unreasonable delay, and in any event within 24 hours after arrest, if a military judge is available.
I also recommend a number of changes related to the laying, referral and pre-trial disposal of charges.
All members of the military police – not only those assigned to investigative duties with the Canadian Forces National Investigation Service (“CFNIS”) – should have the authority to lay charges in the military justice system. This would make the system more efficient and less susceptible to the fear and risk of bias or arbitrary decisions by a unit’s chain of command.
All charges laid in the military justice system are now referred to the commanding officer of the accused person or to another commanding or delegated officer. The officer to whom charges have been referred has the discretion not to proceed (or to recommend not to proceed) with the charges. For charges laid by the military police, this power could be perceived as an attempt to exercise undue influence over military justice decisions.
I therefore recommend that all charges laid by members of the CFNIS be referred directly to the DMP for prosecution at courts martial, without first being sent to the accused’s chain of command. I also recommend that the units’ chains of command be required to refer to the DMP all charges laid by members of the non-CFNIS military police for which they do not proceed by summary trial, except the most minor charges. Once the remaining provisions of Bill C-77Footnote 818 come into force, summary trial jurisdiction at the unit level will cease to exist, and all service offence charges laid by the military police should then be referred directly to the DMP.
To expedite the administration of military justice, I also recommend that the referral process, by which charges are referred from units to the DMP for prosecution at courts martial, be streamlined by eliminating recourse to referral authorities as intermediaries.
Various concerns about summary trials were brought to my attention by external commentators and by several members of CAF at my town hall meetings. Most concerns related to the presiding officers’ independence and impartiality, the sufficiency of their training or the extent of their understanding of the applicable rules. Assisting officers were also often described as having insufficient training, resources or available time to properly perform their functions, despite their best intentions and efforts.
My Report comes at a peculiar time as far as summary trials are concerned. Once the remaining provisions of Bill C-77 come into force, summary trials will be replaced by summary hearings, with jurisdiction over non-criminal, non-penal service infractions yet to be enacted. Nevertheless, several years may elapse before the full implementation of Bill C-77, and summary trials will continue to be held in a transitional period thereafter. I believe recommendations are still pertinent. And while my recommendations are aimed at addressing the current shortcomings of the summary trial process, there are sound policy reasons to continue to apply most of them to summary hearings.
My main recommendation is to bolster the rights of CAF members convicted at summary trials. The review options currently available to them are inadequate. Beyond the limited circumstances in which judicial review may be granted, CAF members convicted at summary trials have no access to a reviewer who is impartial and independent from the chain of command.
I believe that members of the CAF, like members of the armed forces of the United Kingdom and New Zealand, should have the right to appeal the outcomes of summary trials to independent and impartial military judges. Appeals should require leave, and free legal representation by military defence counsel should be provided.
A right of appeal would address existing concerns about presiding officers’ independence, impartiality and competence by providing a remedy against violations of due process or significant errors. Appeals would have collateral benefits as well. They would increase the caseload of military judges, prosecutors and defence counsel, thus facilitating the development of their expertise. They would also lead to a greater consistency of findings and punishments imposed by different summary trials, and by summary trials and courts martial.
An appeal system can be implemented without defeating the purpose of the summary trial system to provide prompt but fair justice in respect of minor service offences. I have identified basic elements of design to minimize the interference of appeals with the maintenance of discipline at the unit level.
To enable military judges or any other person called to review the outcomes of summary trials to do so effectively, I recommend that presiding officers be required to provide written reasons for their findings of guilt and for the punishments imposed at summary trials. I also recommend that they be required to videotape or, at a minimum, to record the audio of summary trials. Transcripts could be generated if and when necessary.
I make other recommendations of a procedural nature. The accused’s right to elect trial by court martial needs to be reinforced. Military defence counsel’s access to disclosure should be enhanced in order for them to be able to provide proper legal advice to the accused. A longer minimum delay should be provided to make an election: 48 hours from the time the accused, the assisting officer and military defence counsel, if applicable, have been given access to disclosure.
The training of presiding officers and assisting officers should also be improved. And the confidentiality of the exchanges between assisting officers and accused persons should be explicitly protected by the NDA or QR&O. The only “measure” which currently exists is a vague exhortation in a non-binding manual, which is clearly insufficient protection.
Addressing breaches of military discipline promptly is essential to maintaining the discipline, efficiency and morale of the military. While it is clear that summary trials are more expeditious than most criminal trials in the civilian justice system, the same cannot be said of courts martial. The available data suggests that, as a general rule, trials by court martial currently take longer than comparable civilian trials.
In response to recent recommendations of the Auditor General of Canada, the OJAG established the Military Justice System Time Standards and participated in two additional initiatives of the CAF and DND: the Justice Administration and Information Management System (“JAIMS”), and the Military Justice System Performance Monitoring Framework (“PMF”). Limited components of the JAIMS were launched in certain units of the CAF in September 2019, but the features that relate to the court martial system are not yet operational. Every effort must be made to achieve full implementation and operation of the JAIMS and the PMF as soon as possible.
More can be done to minimize delay in the court martial system. Pleas of guilty should be taken, and case management should occur, at the earliest opportunity, not only once the court martial has been convened, which may happen several months after charges are preferred by the DMP. The QR&O should be amended to allow increased use of technology and facilitate remote attendance by any person in court martial proceedings. More flexibility should also be provided in terms of preliminary proceedings.
Another significant concern for the military justice system is to ensure that any member of the CAF, regardless of rank, can be tried by general court martial. Currently, the composition rules for panels, which restrict the pool of eligible members depending on the rank of the accused, make it legally impossible for the CDS and practically impossible for any lieutenant-general or vice-admiral to be tried by general court martial. Should charges be laid against officers of these ranks, the military justice system may not be able to deliver justice.
Panel members hold rank. This creates a risk that they may consider the accused’s rank, the rank of complainants or witnesses, or the wishes of the military hierarchy in reaching their decisions. To minimize the risk of rank-based influence, all officers of the CAF should as a general rule be judged by officers of or above their rank. How can this be done when the accused is among the highest general officers in Canada?
In my view, the solution is to allow the empanelment of retired officers. This increases the number of eligible candidates at the top of the hierarchy and should allow even general officers to be judged by officers of or above their rank. Senior officers of the CAF should only be judged by subordinates if there is an insufficient number of eligible active or retired officers of or above their ranks, or if objections are granted by a military judge about those who exist.
My Report includes recommendations of a procedural nature for the court martial system.
The Military Rules of EvidenceFootnote 819 had justifiable objectives when they were enacted in 1959. But they have not kept abreast of the evolution of common law rules of evidence in Canada. They should now be repealed. They are outdated and have lost their raison-d’être, as military judges, prosecutors and defence counsel have sufficient expertise to apply the civilian rules of evidence, and are already doing so.
The rights of appeal of persons found guilty by courts martial are currently narrower than those of persons found guilty by a civilian court in proceedings by indictment. I recommend that the current rights be expanded. Conversely, the Minister, or counsel instructed by the Minister for that purpose, has broader rights of appeal against acquittals than those of the Crown in the civilian justice system. I am not convinced that those rights are unjustified, but leave should be required for appeals which would not be available in the civilian justice system.
The Court Martial Appeal Court of Canada (“CMAC”) is currently composed of the Chief Justice and 56 additional judges. The CMAC has sat a total 76 days and rendered 79 judgments over a period of 15 years. A smaller roster of judges – 10 to 20 judges – would ensure that each CMAC judge would have sufficient exposure to cases to become proficient in matters of military law and justice.
To preserve a sufficient level of criminal law experience in the CMAC, a majority of its judges should be judges of superior courts of criminal jurisdiction or provincial or territorial courts of appeal, where most criminal law cases are decided, not judges of the Federal Court of Appeal or Federal Court.
Sexual MisconductFootnote *
Sexual misconduct in the CAF remains persistent, preoccupying and widespread – despite the CAF’s repeated attempts to address the problem.
As mentioned above, the government has taken notice. Days before the deadline for delivery of my Report, the government announced in its Budget a major initiative to combat sexual misconduct in the CAF. It promised greater independence to the processes of reporting and adjudicating incidents of sexual misconduct within the military and enhanced support services to victims, including access to free, independent legal advice.
My recommendations were prepared before the Budget was released. Yet they speak largely to the same objectives: to make the military justice system more responsive to the welfare, security and health of CAF members; more protective of the autonomy of victims; and better equipped to monitor both individual accountability and organizational compliance with the CAF’s governing rules and stated objectives.
In enacting Bill C-77 and its Declaration of Victims Rights, Parliament decided to afford victims involved in the military justice system the rights they would enjoy in civilian proceedings under the Canadian Victims Bill of Rights.Footnote 820 The relevant provisions of Bill C-77 should be brought into force as soon as possible. Until this is done, the military justice system should not investigate and prosecute alleged sexual assaults. The NDA should also be amended to incorporate, in substance, the various rights and protections afforded by the Criminal Code to victims and to persons accused of sexual offences.
CAF members have a duty to report all service offences to their chain of command. The duty to report is meant to allow the leadership of the CAF to take steps to eradicate or at least reduce the occurrence of sexual misconduct within its ranks. But it has unintended effects and causes undesirable results for victims. It impacts on their autonomy and, I have been told, risks their exposure to reprisals, ostracization and pressures to withdraw their complaint. The duty to report should be removed for victims of sexual misconduct, their confidants and the health and support professionals consulted by them. A working group should also consider the removal of the duty to report of witnesses of sexual misconduct.
Victims of sexual misconduct who nonetheless wish to report must be provided the support they need to do so – without fear of harm to their well-being, careers or personal lives.
Strengthening the independence of the Sexual Misconduct Response Centre (“SMRC”) would help attenuate these concerns. Providing free, independent legal advice to victims would encourage more frequent engagement with the legal process, thereby protecting their own safety and that of other CAF members.
Restorative justice approaches have been part of the civilian criminal justice system for decades. They promote a sense of responsibility for the offenders, who acknowledge the harm caused to their victims. They also provide the opportunity for the victims and perpetrators to work in tandem toward accountability and restitution. This would, according to the SMRC, foster justice outcomes that better meet the needs of victims, offenders, and the CAF. I strongly support the introduction of restorative justice in the military justice context.
The Military Police Complaints Commission
Public expectations about the robustness of police oversight have increased significantly since the MPCC was created in 1998. As a result, there are now new or significantly strengthened independent police oversight bodies at the federal level with respect to the Royal Canadian Mounted Police and in the provinces. These bodies surpass the MPCC in their oversight authority.
I recommend strengthening the MPCC’s powers to access information, to enable it to more effectively play its role of independent oversight of the military police.
I recommend several procedural improvements to clarify timelines and make explicit the authority of the Chairperson of the MPCC to initiate complaints.
There are several issues that would benefit from further consideration. These include the process of the MPCC’s access to sensitive information as defined by section 38 of the Canada Evidence Act,Footnote 821 a framework for access to solicitor-client privileged information relevant to the MPCC’s mandate and the authority to identify and classify complaints. In these cases, I recommend discussions between the MPCC and appropriate members of the CAF and officials within the DND or other organizations within the Government of Canada.
Moreover, I note that it is important that the MPCC be consulted on legislative, regulatory and policy changes which affect its mandate and operations. I recommend that there be regular consultations between the MPCC and the relevant actors in the CAF and the DND on these matters.
The Military Grievance Process
Members of the CAF have less control over their working conditions than most civilians. They are not permitted to unionize or otherwise bargain collectively. They do not have employment contracts. And when they believe they have been aggrieved by any decision, act or omission of the CAF, they do not have recourse to an independent tribunal.
Their main recourse is the right to file an individual grievance with their chain of command. The right to grieve follows a two-tier process that begins with a decision of an officer within the CAF member’s chain of command (the “Initial Authority”), which may subsequently be challenged by referral to the CDS or an officer directly responsible to him (the “Final Authority”). In its adjudicative role, the Final Authority benefits from the recommendations of the Military Grievances External Review Committee (“MGERC”), an independent body.
The main problem with the current system concerns delays. For decades, the chain of command has failed to address grievances in a timely manner. I believe that is mostly because the Final Authority is not subjected to any time limit within which to adjudicate a grievance, despite recommendations to that effect by the two previous independent review authorities.
By the time the Final Authority has the recommendations of the MGERC in hand, it should not take more than three months to determine whether or not to accept them. If the Final Authority fails to adjudicate the grievance within this delay, then the findings and recommendations of the MGERC should be deemed to constitute the Final Authority’s decision. I also recommend that the NDA be amended to provide a review by the MGERC of all grievances submitted to the Final Authority.
This should also help resolve the problem of delays at the Initial Authority. The Initial Authority has a four-month time limit to adjudicate a grievance, but it all too often exceeds it by a good margin. This gives grievors the right to ask that their file be referred to the Final Authority. In the current system, grievors find themselves in limbo: they can leave their grievance with the Initial Authority, hoping that it will be resolved more quickly than at the next level; or they can decide to refer their grievance to the Final Authority, who has no time limit. By imposing a time limit on the Final Authority, the Initial Authority is pressed to meet its own time limit and avoid overburdening the senior military hierarchy with grievances that could be solved at a lower level.
Other initiatives could help reduce delays. One is to impose a mandatory notice of intent to grieve. This would permit the early involvement of the Conflict & Complaint Management Services centres, which offer assistance to grievors and the chain of command; allow the prompt identification of non-grievable matters, including complaints asking for Treasury Board policies to be amended or interpreted contrary to their plain language, that should be dealt with elsewhere; and permit the informal resolution of certain matters at an early stage. Another initiative is to implement a fully-digitized grievance system. That would favour transparency and, as a result, accountability.
Another problem with the current grievance process is its lack of independence. The right to have one’s entitlements and obligations determined by an independent tribunal is well established. That right does not exist in the CAF.
Providing members with recourse to an independent tribunal would ensure members of the CAF that their complaints about wrongful or unwarranted treatment will be dealt with fairly and impartially. That would increase rather than impair the discipline and morale of the troops. This solution would also relieve the CDS of a time-consuming burden, without depriving him of regular reports on the grievances of members that allow him to identify systemic issues confronted by his troops.
The Deputy Minister of National Defence, Chief Justice LeSage, the former independent review authority, and Brigadier-General (retired) Kenneth Watkin, a reputed author on military law and former JAG, all agree with me that it is time to consider whether grievors should have recourse to an independent tribunal. Other experts on military law whom I consulted and members of the CAF who attended my town hall meetings expressed the same sentiment. I therefore recommend that a working group, which should include an independent authority, be established to evaluate this option.
Observations on the Independent Review Process and Policy Development in the Military Justice System
The experience of conducting the third independent review of the NDA has given me some insight into how to improve the process for the future. I make several recommendations on the need for more time to conduct such an extensive review and on the preliminary work that the DND and the CAF should undertake to ensure that the next independent review authority can hit the ground running.
The role of the JAG is integral to understanding the operation of the military justice system. I felt it was necessary to discuss certain aspects of the JAG’s role in my review.
The provisions concerning the appointment and mandate of the JAG are not expressly mentioned in section 273.601 of the NDA among the provisions subject to an independent review. I recommend that those provisions be expressly included within the mandate of independent review authorities.
I discuss the role of other review mechanisms, and notably, the authority of the JAG in subsection 9.2(2) of the NDA to carry out regular reviews of the administration of military justice in the CAF. These reviews could complement the independent review process by either allowing it to focus less on issues that have been recently reviewed by the JAG or to concentrate on key concerns identified by the JAG.
I recommend two specific reviews on issues that it was not possible for me to adequately consider, either due to lack of sufficient information or lack of time. The first is a review of the Office of the Ombudsman for the Department of National Defence and the Canadian Forces. The second is an examination of the role of the military justice system in combatting hateful conduct.
Finally, I offer some observations on improvements to the policy-making process in the military justice system. These include the desirability of closer collaboration with the Department of Justice Canada. The objective is to ensure that military justice policy-makers are aware of proposals for reform in the civilian justice system. This would enable them to assess the appropriateness of similar reforms in the military justice system. This could help mitigate some of the delays in military justice reform, which has been brought to my attention as a longstanding challenge.
Report a problem or mistake on this page
- Date modified: