ARCHIVED - Chapter 1: The Office of the Judge Advocate General
1.1 The Judge Advocate General (JAG)
The JAG is responsible under the National Defence Act (NDA)1 for the superintendence of the administration of military justice.2 Related to this responsibility is the JAG's statutory mandate to conduct regular reviews and submit an annual report to the Minister of National Defence (the Minister) on the administration of military justice in the CF.3 This is the report of the JAG to the Minister for the reporting period of 1 April 2008 to 31 March 2009.
Under the authority of the NDA, the JAG is appointed by the Governor in Council and serves at pleasure for a term not exceeding four years which can be renewed.4 In addition to his responsibility for the superintendence of the administration of military justice, the JAG's statutory mandate includes his duty as the legal advisor to the Governor General, the Minister, the Department of National Defence (DND) and the CF in all matters pertaining to military law.5 Although the JAG is responsive to the chain of command for the provision of legal services in the CF, he is responsible to the Minister for the performance of his duties.6
The position of the JAG within the CF and DND is illustrated in the organization chart contained at Annex A.
1.2 Office of the JAG
The Office of the JAG supports the JAG in the fulfilment of his duties. The Office of the JAG is constituted as an element of the regular force of the CF. The JAG is designated as an officer having the power and jurisdiction of an officer commanding a command.7
The JAG exercises command over all officers and non-commissioned members (NCMs) posted to an established position within the Office of the JAG.8 The duties exercised by legal officers posted to a position within the Office of the JAG are determined by or under the authority of the JAG and, with respect to the performance of their duties, those legal officers are not subject to the command of any officer who is not a legal officer.9 For military matters not related to the performance of their duties, legal officers, including the JAG, are subject to the orders and direction of the CF chain of command.
1.3 Structure of the Office of the JAG
As of 31 March 2009, there were 151 regular force legal officers and 55 reserve force legal officers serving across Canada and abroad. These numbers included legal officers on post-graduate, second language and other academic training, as well as those legal officers serving with the Canadian Forces Military Law Centre (CFMLC), which is part of the Canadian Defence Academy located in Kingston. Also, legal officers serve with the Office of the Legal Advisor to the DND/CF, an organization which includes CF legal officers and civilian lawyers with the Department of Justice. Permanent legal offices are located in Ottawa at National Defence Headquarters (NDHQ) and the four operational command headquarters, at select bases in each of the regions in Canada, and in Europe and the United States.
Structurally, the Office is composed of six sub-organizations: the Canadian Military Prosecution Service, the Defence Counsel Services and the following four divisions which are each headed by a Deputy Judge Advocate General (DJAG): Military Justice and Administrative Law, Operations, Regional Services and Chief of Staff. Each of these divisions provides direct support to the military justice system.
The Canadian Military Prosecution Service (CMPS)
The CMPS is headed by the Director of Military Prosecutions (DMP) who is a legal officer appointed by the Minister for a renewable term of four years and is a barrister or advocate with at least 10 years standing at the bar of a province.10 As provided by the NDA, the DMP is responsible for preferring all charges for trial by court martial, for the conduct of all prosecutions at court martial, and for representing the Minister on criminal appeals to the Court Martial Appeal Court of Canada and the Supreme Court of Canada.11 In addition to these statutory responsibilities, the DMP provides legal advice in support of criminal and disciplinary investigations to the CF National Investigation Service (CFNIS), which is a unit of the CF Military Police group and is mandated to investigate serious or sensitive service and criminal offences.12
During this reporting period, a change was made in the manner in which the CMPS provides advice to investigators with the CFNIS. A new position was created within the CMPS known as the CFNIS Legal Advisor. Although the CFNIS Legal Advisor serves under the authority of the DMP, the position is one in which a military prosecutor works directly with the CFNIS to provide legal and practical advice to investigators. The creation of this new position serves to enhance efficiency within the military justice system while allowing Regional Military Prosecutors (RMPs), to focus primarily on prosecuting a matter at court martial.13
In exercising prosecutorial discretion to prefer charges and conduct prosecutions, the independence of the DMP is protected by both the institutional structures found in the NDA and the common law.14 In this way, the role of the DMP is analogous to that of a director of public prosecutions in the civilian criminal justice system.
The NDA provides that the DMP acts under the general supervision of the JAG, and that the JAG may issue general instructions or guidelines to the DMP in respect of prosecutions in general or in relation to a particular prosecution.15 During the reporting year, no instructions or guidelines were issued.16
Annex C of this report contains the annual report of the DMP.17
Defence Counsel Services (DCS)
The Director of Defence Counsel Services (DDCS) is an officer appointed by the Minister for a renewable term of four years and is a barrister or advocate with at least 10 years standing at the bar of a province.18 The DDCS provides, supervises and directs the provision of legal services to accused persons as defined in regulations.19
The DDCS is statutorily independent from other CF and DND authorities for the purpose of protecting the DDCS from potentially inappropriate influence. Legal officers assigned to DCS represent their clients in accordance with DDCS and JAG policies and their respective Code of Professional Conduct from their provincial or territorial law society. These safeguards are designed to preserve and enhance the legal and ethical obligations that DCS legal officers owe to the CF members they represent. Furthermore, communications with their clients are protected at law by solicitor-client privilege.
Although, the DDCS acts under the general supervision of the JAG, the JAG is not authorized to issue instructions or guidelines in respect of a particular defence or court martial. The JAG, however, may issue general instructions or guidelines in writing in respect of defence counsel services.20 During the reporting year, no such general instructions or guidelines were issued.
Annex D of this report contains the annual report of the DDCS.21
Deputy Judge Advocate General / Military Justice and Administrative Law (DJAG/MJ&AL)
DJAG/MJ&AL is responsible for providing DND and CF authorities with legal support in relation to military justice, military administrative law, compensation and benefits and other military personnel matters. The DJAG/MJ&AL organization comprises the Directorate of Law/Military Justice Policy and Research (DLaw/MJP&R), the Directorate of Law/Military Personnel (DLaw/Mil Pers), the Directorate of Law/Administrative Law (DLaw/Admin Law), and the Directorate of Law/Compensation, Benefits, Pensions and Estates (DLaw/CBP&E).
With the support of DLaw/MJP&R, the DJAG/MJ&AL develops and advises the JAG on military justice policy, collects and maintains information and statistics related to the military justice system, in particular the maintenance of the Summary Trial Database, and advises the Canadian Forces Provost Marshal in relation to professional standards and military police policies and doctrine. DLaw/MJP&R is responsible for the Summary Trial Process Survey, an annual survey of summary trial participants and other stakeholders designed to measure the efficacy of the summary trial process and provide a means of determining ways of improving that system.
Deputy Judge Advocate General / Operations (DJAG/Ops)
The DJAG/Ops is responsible for providing legal support to CF and DND authorities in relation to all matters related to operational law. The DJAG/Ops division is comprised of the Strategic Joint Staff Legal Advisor (SJS LA), the Directorate of International and Operational Law (DI&OL) the Directorate of Law/Intelligence and Information Operations (DLaw/I&IO) and the legal advisors to the four operational commands: Canada Command (Canada COM), Canadian Expeditionary Force Command (CEFCOM), Canadian Special Operations Forces Command (CANSOFCOM) and Canadian Operational Support Command (CANOSCOM).22
Prior to the current reporting period, DI&OL was known as the Directorate of Strategic Legal Analysis (DSLA). This change was effected on 8 September 2008. DSLA was itself the successor organization of the Directorate of Law International.
Through each of the operational command legal advisors, DJAG/Ops is responsible for providing all legal support relating to military justice matters within the respective commands. In particular, through the CEFCOM legal advisor, DJAG/Ops oversees all legal officers on deployed operations and provides legal support to deployed military police, CF formations and units on military justice issues. While participating in operations, members of the military police assigned to the CFNIS continue to receive legal support from the DMP on investigatory matters.
Deputy Judge Advocate General / Regional Services (DJAG/Reg Svcs)
The DJAG/Reg Svcs division comprises the legal offices located on selected bases and areas in each of the regions of Canada (Pacific, Western, Prairie, Central, Eastern and Atlantic) as well as in the United States and Germany.23 Through these offices, the DJAG/Reg Svcs is responsible for providing general legal support, including advice on military justice matters, to the chain of command.
In terms of military justice matters, the regional offices provide direct legal support to regular and reserve force units, including the military police, in relation to military justice issues including the conduct of investigations, the laying of charges, the disposal of charges at summary trial and the referral of charges to courts martial. Members of the military police assigned to the CFNIS receive legal support from the DMP on investigatory matters.
Deputy Judge Advocate General / Chief of Staff (DJAG/COS)
The DJAG/COS division is responsible for providing the necessary support and administrative services to the Office of the JAG including financial services, information management, library services and training as well as overseeing all non-legal military personnel and civilian staff in the Office of the JAG.
Canadian Forces Military Law Centre (CFMLC)
The CFMLC is the military legal education and training delivery organization for the CF. The centre provides legal education and training with the aim of enhancing discipline across the CF and ensuring that the CF is capable of carrying out its current and future missions in accordance with domestic and international law.24 Its mission includes providing legal research, training and education to the CF, including legal officers. The CFMLC and its complement of nine legal officers deliver a broad range of legal education and develop various military law publications for the CF.
In particular, CFMLC is responsible for administering training programs for the certification and re-certification of presiding officers. The JAG, however, is responsible for certifying that CF members are qualified to perform their duties in the administration of the Code of Service Discipline. The CFMLC and its mandate are discussed in further detail in Chapter 5.
Chief Warrant Officers (CWOs) and Chief Petty Officers 1st Class (CPO1s) within the Office of the JAG
There are nine CWO/CPO1 positions within the Office of the JAG. The JAG CWO is located with the Office of the JAG in Ottawa and serves as a conduit between the JAG, the chain of command and NCMs in respect of the administration of military discipline.25 This position ensures that the Office of the JAG has direct access to the knowledge and experience of senior NCMs in relation to discipline.
The remaining CWOs and CPO1s are located in each of the regions of Canada and are associated with either an Assistant Judge Advocate General (AJAG) office in each region or a designated Deputy Judge Advocate (DJA) office.26 The AJAG and DJA CWOs/CPO1s perform an important role by maintaining direct contact with the NCMs situated in their respective regions and providing an invaluable link between the local legal office and the senior NCMs in relation to disciplinary matters.
1.4 International Operations
The Office of the JAG continues to deploy legal officers to provide direct legal support to CF operations. During this reporting year, a total of 40 legal officers (39 regular force legal officers and one reserve force legal officer)27 were deployed in support of several international operations: Operation ATHENA in Afghanistan; Operation CROCODILE in the Democratic Republic of the Congo; Operation SAFARI in Sudan; Operation ALTAIR, a naval operation in the Persian Gulf region; and Operation SEXTANT, a naval operation in the Gulf of Aden.28 The number of regular force legal officers deployed in support of operations during the reporting period represents approximately 25% of the regular force positions within the Office of the JAG.
1.5 Office of the DND/CF Legal Advisor (DND/CF LA)
While the JAG superintends the administration of military justice and provides advice on all matters relating to military law, the DND/CF LA also provides legal support to the DND and the CF. The Office of the DND/CF LA is a Legal Services Unit of the Department of Justice, and its staff is comprised of both lawyers from the Department of Justice and military legal officers posted from the Office of the JAG.
The areas of the law for which the Office of the DND/CF LA has primary responsibility are: legislative and regulatory services, finance (other than military compensation and benefits), claims and civil litigation, materiel procurement, intellectual property, environment and real property, civilian labour relations, and public law – including human rights, Aboriginal law and information and privacy issues. As well, the Office has dedicated counsel to provide specialized legal services in the area of non-public property – a valuable resource to legal officers giving advice in this area. The Office of the DND/CF LA also advises on national security issues related to information sharing; privacy and access; intellectual property and civil liberties; legal challenges to national security-related legislation and government activities; and legislative initiatives.
Footnotes
1 R.S.C. 1985, c. N-5 [NDA].
2 Ibid. at s. 9.2(1).
3 Ibid. at ss. 9.2(2) and 9.3(2).
4 Ibid. at s. 9(2) and 9(3).
5 "Military law" means: “
” ... all international and domestic law relating to the Canadian Forces, including its governance, administration and activities. Similarly, at section 2 of the Criminal Code of Canada, the definition of "military law" includes "all laws, regulations or orders relating to the Canadian Forces"
.
6 Supra note 1 at s. 9.3(1), and Ministerial Organization Order 96-082 dated 1 August 1996. For a detailed description of the concepts of responsibility, authority and accountability within the CF and DND generally, see the DND publication "Organization and Accountability", 2nd edition, September 1999.
7 Ministerial Organization Order 96-082 dated 1 August 1996. For the authority relating to command generally, and command of commands specifically, see Queen's Regulations and Orders for the Canadian Forces [QR&O], Chapter 3, Section 2 – Command, and article 3.21 – Command of Commands.
8 QR&O, article 4.081(2).
9 QR&O, article 4.081(4).
10 Supra note 1 at s. 165.1. On 17 January 2005, Captain (Navy) Holly MacDougall was appointed DMP.
11 Ibid. at section 165.11.
12 See http://www.vcds.forces.gc.ca/cfpm-gpfc/cfp-gcp/nis-sne/index-eng.asp.
13 This is consistent with the November 2008 Lesage-Code Report to the Attorney General of Ontario.
14 See R. v. Balderstone (1983), 8 C.C.C. (3d) 532 (Man. C.A.). Leave to appeal to the Supreme Court of Canada denied: see [1983] S.C.C.A.No. 44, 52 N.R. 72. Canadian courts have placed significant legal restrictions on the review of the exercise of prosecutorial discretion. Courts will undertake such reviews only in the clearest case of abuse of process. See e.g. Krieger v. Law Society of Alberta, [2002] 3 S.C.R. 372.
15 Supra note 1 at s. 165.17. The JAG must give a copy of every such instruction to the Minister. The DMP must ensure that such instructions are made available to the public, except in limited cases where the DMP decides that release to the public of an instruction or guideline would not be in the best interests of the administration of military justice.
16 See JAG Policy Directives to DMP.
17 This report is made pursuant to DMP's requirement to report annually to the JAG. See QR&O, article 110.11 – Annual Report.
18 Supra note 1 at ss. 249.18 (1) and 248.18(2). On 19 April 2007, Lieutenant-Colonel Jean-Marie Dugas was reappointed DDCS for a second four-year term, commencing 1 September 2007.
19 See QR&O, article 101.20 - Duties and Functions of Director of Defence Counsel Services.
20 Supra note 1 at s. 249.2. The DDCS must make any general instructions or guidelines available to the public.
21 This report is made pursuant to the DDCS's requirement to report annually to the JAG. See QR&O, article 101.20(5) – Duties and functions of Director of Defence Counsel Services.
22 For further information concerning these Commands, see: Canada COM, CEFCOM, CANSOFCOM, and CANOSCOM.
23 For particulars, see Annex B.
24 See CF Military Law Centre.
25 CWO Normand Trépanier was appointed as the JAG CWO in April 2006.
26 There is an AJAG CWO/CPO1 at the following offices: AJAG Pacific in Esquimalt; AJAG Western in Edmonton; AJAG Prairie in Winnipeg; AJAG Central in Petawawa; AJAG Eastern in Valcartier and AJAG Atlantic in Halifax. The DJA CWO/CPO1 positions are located in Borden and Gagetown.
27 Additionally, two reserve force legal officers were sent overseas to backfill deployed legal officers during leave periods.
28 DHH Operations Database