ARCHIVED - Chapter 2: Office of the Judge Advocate General
2.1 The Judge Advocate General (JAG)
Under the authority of the NDA, the JAG is appointed by the Governor in Council and reports to the Minister of National Defence (the Minister). The JAG serves as legal advisor to the Governor General, the Minister, the Department of National Defence (DND) and the CF in matters relating to military law.6 "Military law" is the broad legal discipline encompassing all international and domestic law relating to the CF, including its governance, administration and activities.
Apart from his statutory advisory role, the JAG also has a statutory mandate to superintend the administration of military justice in the CF.7 It should be noted that "military justice" is a sub-set of "military law"8, and is concerned primarily with the maintenance and enforcement of discipline in the CF. In this capacity, the JAG conducts regular reviews of the military justice system and submits an annual report to the Minister on the administration of military justice in the CF.
The JAG serves at pleasure for a term not exceeding four years (which is subject to renewal), is responsive to the military chain of command for the provision of legal services in the CF, and is responsible to the Minister in the performance of his duties.
The JAG's position within the CF and DND is illustrated in the organization chart at Annex A.
2.2 Office of the Judge Advocate General (OJAG)
The OJAG is an element of the CF that supports the JAG in the fulfilment of his duties. It is staffed by regular and reserve force legal officers, civilian members of the public service, and regular and reserve force CF members from other military occupations.
All legal officers are fully qualified lawyers, members in good standing of their respective provincial or territorial law societies, and are commissioned officers in the CF, ranging in rank from Captain to Brigadier-General.
Legal officers who provide legal services to the CF or DND are under the command of the JAG, and in respect of the performance of their established duties, a legal officer is not subject to the command of an officer who is not a legal officer.9
As of 31 March 2010, there were 153 regular force and 55 reserve force legal officers serving across Canada and abroad. These numbers include legal officers on post-graduate courses, second-language and other academic training, as well as legal officers posted to non-advisory positions at the Canadian Forces Military Law Centre (CFMLC), which is part of the Canadian Defence Academy (CDA) in Kingston, Ontario.
Legal officers also serve with the Office of the Legal Advisor to the Department of National Defence and Canadian Forces (DND/CF LA), an organization staffed by both CF legal officers and civilian lawyers from the Department of Justice.
Permanent military legal offices are located in Ottawa at National Defence Headquarters (NDHQ) and at the four operational command headquarters10, at various CF bases and wings in each of the regions across Canada, and in Europe and the United States.
Structurally, the OJAG is composed of six sub-organizations: the Canadian Military Prosecution Service, Defence Counsel Services, and the following four divisions which are each headed by a Deputy Judge Advocate General (DJAG) in the rank of Colonel: Military Justice and Administrative Law, Operations, Regional Services, and Chief of Staff.
In addition to these permanent components of the OJAG, the ad hoc Military Justice Strategic Response Team (MJSRT) was established during this reporting period to address various ongoing military justice policy and legislative challenges. Each of these sub-organizations provides direct support to the military justice system.
Canadian Military Prosecution Service (CMPS)
The CMPS is headed by the Director of Military Prosecutions (DMP).11 The DMP is the senior military prosecutor in the CF, responsible for the conduct of all prosecutions at courts martial, and acting as counsel for the Minister on appeals to the Court Martial Appeal Court of Canada (CMAC) and the Supreme Court of Canada (SCC).12 The DMP also provides legal advice in support of investigations by the CF National Investigation Service (CFNIS).13
The DMP acts independently from the OJAG and other CF and DND authorities when exercising his powers, duties and functions but remains under the general supervision of the JAG, who may issue written general instructions or guidelines in respect of prosecutions. The JAG may also issue instructions or guidelines in respect of a particular prosecution.14
The DMP report to the JAG for 2009-2010 is included at Annex C.15
Defence Counsel Services (DCS)
Defence Counsel Services is headed by the Director of Defence Counsel Services (DDCS).16 The DDCS is the senior defence counsel for the CF. DCS provides legal services to persons who are liable to be charged, dealt with and tried under the CSD.17
Although the DDCS acts under the general supervision of the JAG,18 the incumbent is independent of the OJAG and other CF and DND authorities when carrying out mandated advisory and representation functions. The JAG may issue written general instructions or guidelines in respect of defence counsel services.19 However, unlike with the DMP, the JAG has no authority to issue instructions or guidelines in respect of a particular defence case.
The DDCS report to the JAG for 2009-2010 is included at Annex D.20
Military Justice and Administrative Law (MJ&AL) Division
The MJ&AL Division is responsible for legal issues dealing with military justice, administrative law, and compensation and benefits. Issues include grievances by CF members, administrative investigations and inquiries, pensions and estates, military justice policy issues and military human resources policy. In essence, MJ&AL supports the chain of command in dealing with CF personnel legal issues - whether administrative or disciplinary - across the full career spectrum from enrolment to release.
Operations Division
The Operations Division is responsible for providing legal support to the CF and DND in relation to operational law. This includes advising on current and future operations conducted in Canada and abroad. The legal officers in the Operations Division advise the CF chain of command at the tactical, operational and strategic levels, on a broad range of operational legal issues, whether domestic or international. Additionally, the Operations Division oversees all legal officers on deployed operations, and through them provides legal support to deployed CF formations, units, and military police with regard to military justice issues.
Regional Services Division
Regional Services legal offices are located at various CF bases and wings throughout Canada, as well as in the United States and Germany. Through these offices, Regional Services is responsible for providing general legal support, including advice on military justice matters, to the chain of command.
Chief of Staff Division
The Chief of Staff (COS) Division is responsible for providing internal support and administrative services to the OJAG. This includes military human resource management, financial services, information management, library services and training, as well as overseeing all non-legal military personnel and civilian staff in the OJAG.
Military Justice Strategic Response Team (MJSRT)
In mid-February 2010, the MJSRT was established as a stand-alone team reporting directly to the JAG. The team is responsible for addressing a wide range of policy and legislative initiatives relating to military justice. For example, the MJSRT is responsible for the re-introduction of the legislative response to the Lamer Report recommendations21 and for effecting any related regulatory changes. The MJSRT is also responsible for supporting the work of the next independent review of Bill C-25 (required under section 96 of S.C. 1998, c. C-25), and for the response to the recommendations made on the military justice system by the Senate Standing Committee on Legal and Constitutional Affairs (SCOLCA) - entitled "Equal Justice, Reforming Canada's System of Courts Martial," dated May 2009.
JAG Chief Warrant Officers (CWO) and OJAG CWOs and Chief Petty Officers 1st Class (CPO1s)
There are ten CWO/CPO1 positions within the OJAG. The JAG CWO is located at JAG headquarters in Ottawa, and serves as the senior non-commissioned member (NCM) advisor to the JAG in support of the JAG's statutory role in the superintendence of the military justice system and legal advisor on military law. Based on the command team concept, the JAG CWO provides perspective to the JAG leadership command team on strategic issues related to the CF and JAG Branch. The incumbent of the JAG CWO position ensures that the OJAG 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. The AJAG and DJA CWOs/CPO1s perform an important role by maintaining direct contact with senior NCMs and disciplinarians at the unit, base and formation levels, and providing an invaluable link between them and the local legal office to address disciplinary matters. The OJAG CWO/CPOs, with the assistance of their regional legal officers, also provide valuable military justice training to their clients. They assist legal advisors in their objectives to provide solution-oriented and operationally focused legal advice. They also look after the welfare of all JAG personnel, promoting excellence, professionalism and teamwork.
2.3 Legal Officers Serving Outside the OJAG
Canadian Forces Military Law Centre
The Canadian Forces Military Law Centre (CFMLC) is not a sub-organization of the OJAG. Rather, it is the military legal education and training delivery organization for the CF, located in Kingston, Ontario. The CFMLC, and the legal officers posted there, are under command of the Commander, Canadian Defence Academy (CDA). While occupying positions at CFMLC, legal officers do not provide legal advisory services to CDA, but instead focus on the design, development and delivery of military legal education and training. The focus of CFMLC is to provide and extend legal education and training to the CF at all levels, with a view to enhancing the overall operational effectiveness of the CF.
Legal Support on Deployed Operations
When elements of the CF deploy on operations across Canada or around the world, legal officers deploy with those elements to provide dedicated legal support to commanders and staff on the ground. As uniformed members of the CF, legal officers are trained and equipped to live and work in almost any operational environment. This flexibility means that they can provide the chain of command with direct and independent legal advice during the actual conduct of operations.
During the 2009-2010 reporting period, the OJAG deployed thirty-four (34) legal officers - both Regular Force and Reserve - in support of international operations in Afghanistan, the Democratic Republic of Congo, Sudan, Haiti, and onboard Her Majesty's Canadian Ships at sea. As with the 2008-2009 reporting period, this number represents an international deployment percentage of over 20% of the OJAG's regular force establishment strength.
On the domestic front, the OJAG deployed 16 additional legal officers to British Columbia in support of CF units assisting the RCMP with security during the 2010 Winter Olympic Games in Vancouver.
Office of the DND/CF Legal Advisor (DND/CF LA)
While the JAG superintends the administration of military justice and provides advice on matters relating to military law, the DND/CF LA also provides legal support to 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 OJAG.
The areas of military 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, DND/CF LA 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.
Legal Community
In addition to their regular duties, legal officers also make an effort to participate in outside activities related to military law issues. For instance, during this reporting period, legal officers continued to occupy leadership positions in the legal community, including chairing the Canadian Bar Association's National Military Law Section (NMLS). The NMLS focuses on the military justice system and operational law, as well as the uniquely military aspects of criminal, human rights, air, maritime and international law. This section of the CBA has a strong membership comprised of both civilian legal practitioners and uniformed legal officers.
Footnotes
6 Supra note 1, s.9.1
7 Ibid, s.9.2(1)
8 The three "pillars" of military law - or put another way, the three principal sub-sets of military law - on which the JAG advises are military justice, operational law and administrative law.
9 QR&O Article 4.081(4)
10 Canada Command, Canadian Expeditionary Forces Command, Canadian Operational Support Command, and Canadian Special Operations Forces Command, all located in the National Capital Region.
11 Supra note 1, s.165.1
12 Ibid s.165.11
13 The CF National Investigation Service is a unit of the CF Military Police Group that investigates serious or sensitive service and criminal offences.
14 Supra note 1, 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.
15 QR&O Article 110.11 requires the DMP to report annually to the JAG on the execution of the DMP's duties and functions.
16 Supra note 1, s. 249.18.
17 Ibid s.249.19 and QR&O Article 101.20.
18 Ibid s.249.2
19 The DDCS must make any general instructions or guidelines available to the public. See for example, JAG Policy Directive 009/00 General Instructions in Respect of Defence Counsel Services issued on 23 March 2000, http://jag.mil.ca/publications/directives/Directive009-00.pdf
20 Under QR&O Article 101.20(5), the DDCS is required to report annually to the JAG on the DCS provision of legal services and performance of other duties.
21 The First Independent Review by the Right Honourable Antonio Lamer P.C., C.C., C.D. of the Provisions and Operation of Bill C-25, An Act to amend the National Defence Act and to Make Consequential Amendments to Other Acts, as required under section 96 of Statutes of Canada 1998, c. 35, (2003).