ARCHIVED - Chapter 1: Who We are: The Office of the JAG - 2012-13

The Judge Advocate General

The Judge Advocate General (JAG) is appointed by the Governor in Council and acts as legal adviser to the Governor General, the Minister of National Defence (MND), the Department of National Defence (DND) and the Canadian Forces in matters relating to military law. The term “military law” describes the broad legal discipline encompassing all international and domestic law relating to the Canadian Armed Forces (CAF), including its governance, administration and activities. In addition, the JAG also has a statutory mandate to superintend the administration of military justice in the CAF. In this capacity, the JAG conducts regular reviews of the military justice system, and provides regular updates to the MND on the administration of military justice in the CAF including the submission of an annual report.

Office of the Judge Advocate General

The Office of the JAG is composed of CAF regular and reserve force legal officers, civilian members of the Public Service, and a small number of CAF members from other military occupations. All legal officers serving in the Office of the JAG are members in good standing of their respective provincial or territorial law societies, and are officers ranging in rank from Captain/Lieutenant (Navy) to Major-General.

The National Defence Act (NDA) provides that the JAG is responsible to the MND in the performance of his duties and functions. Pursuant to the Queen’s Regulations and Orders for the Canadian Forces (QR&O), every legal officer whose duty is the provision of legal services to the CAF shall be posted to a position established within the Office of the JAG. The JAG has command over all officers and non-commissioned members posted to a position established within the Office of the JAG. Therefore, the duties of a legal officer are determined by or under the authority of the JAG and, in respect of the performance of those duties, a legal officer is not subject to the command of an officer who is not a legal officer. Thus, the requirements of the NDA and the QR&O reinforce the obligations of the legal profession and ensure that legal officers are able to provide independent legal advice.

The Office of the JAG is composed of the Directorate of Military Prosecutions, the Directorate of Defence Counsel Services, and the following five Divisions: Military Justice, Administrative Law, Operational Law, Regional Services, and Chief of Staff.

Director of Military Prosecutions

The Director of Military Prosecutions (DMP) is the senior military prosecutor in the CAF. He is responsible for preferring all charges to be tried by court martial and for the conduct of all prosecutions at court martial and also acts as counsel for the MND in respect of appeals to the Court Martial Appeal Court of Canada and the Supreme Court of Canada. The DMP also provides legal advice in support of investigations conducted by the Canadian Forces National Investigation Service, a military police service that reports to the Canadian Forces Provost Marshal.

The DMP is appointed by the MND for a fixed term. He acts independently from the JAG and other CAF and DND authorities when exercising his powers, duties and functions. The DMP is under the general supervision of the JAG and, in this regard, the JAG may issue written general instructions or guidelines in respect of prosecutions, which the DMP must ensure are made available to the public. The JAG may also issue instructions or guidelines in respect of a particular prosecution. The DMP must ensure that these instructions or guidelines are also available to the public, unless the DMP considers that doing so would not be in the best interest of the administration of military justice. During the reporting period, no general or specific instruction was issued to DMP.

In accordance with QR&O 110.11, the DMP has reported to JAG on the execution of his duties and functions during this reporting period.

Director of Defence Counsel Services

The Director of Defence Counsel Services (DDCS) is appointed by the MND for a fixed term. His mandate is to supervise and direct the provision of legal services to persons who are liable to be charged, dealt with or tried under the Code of Service Discipline.

Although the DDCS acts under the general supervision of the JAG, he is independent of the Office of the JAG and other CAF and DND authorities when carrying out a wide array of prescribed duties and functions that pertain to providing defence counsel services to clients at each stage of the investigative and judicial processes. The JAG may issue written general instructions or guidelines in respect of defence counsel services. The DDCS is required to make the general instructions or guidelines available to the public. However, unlike with the DMP, the JAG has no authority to issue instructions or guidelines in respect of a particular defence case. During the reporting period, no general instruction was issued to DDCS.

In accordance with QR&O 101.20(5), the DDCS has reported to the JAG on the provision of legal services prescribed at QR&O 101.20(2) and the performance of any other duties under QR&O 101.20(4) during this reporting period.

Military Justice Division

The Military Justice Division assists the JAG in superintending the administration of military justice and ensuring its responsible development within the Canadian justice system. It comprises two directorates: Military Justice Operations and Military Justice Strategic. Military Justice Operations is responsible for key aspects of the superintendence of the administration of military justice, the provision of legal advice to the Canadian Forces Military Police Group Headquarters and to support the JAG with the day-to-day operation of the military justice system. Military Justice Strategic is responsible for the development and implementation of a strategic military justice vision that will allow the Office of the JAG and the CAF to anticipate and respond to external and internal challenges while bringing positive change to the military justice system.

During this reporting period, the Division dedicated particular effort towards two strategic initiatives. First, it assisted in progressing Bill C-15, Strengthening Military Justice in the Defence of Canada Act, legislation that demonstrates the government’s commitment to continually enhance the Canadian military justice system to ensure its fairness, efficiency, transparency and consistency with Canadian values and legal standards. Second, it supported the Second Independent Review Authority in his examination of the provisions and operation of Bills C-25 and C-60.

Administrative Law Division

Legal officers in the Administrative Law Division are responsible for advising on legal matters pertaining to the administration of the CAF. DND officials and CAF authorities derive their appointments and powers from statutory authorities largely contained in the NDA. Given the size and complexity of the CAF and the multitude of administrative decisions made each day, one of the objectives of providing legal advice in the administrative law realm is to ensure that these decisions are made in accordance with the applicable legislation, the rule of law and the procedural fairness requirements. The Division is composed of three directorates: Military Personnel, Administrative Law and Compensation, Benefits, Pensions and Estates. The Division provides legal services on specific matters such as military personnel policies, administrative investigations, compensation, benefits, pensions and estates and advice on grievances to the Director General CF Grievance Authority.

Operational Law Division

The Operational Law Division is responsible for providing legal support to the CAF and DND in matters related to operational law. Operational law is the body of domestic and international law that applies to the conduct of all phases of CAF international or domestic operations at each level of command. Additionally, the Operational Law Division oversees all legal officers deployed on operations, who provide legal support to deployed CAF elements in terms of to military law. During this reporting period, in addition to its work on every CAF operation, the Division provided continuous support to the planning of the end of the mission in Afghanistan.

Regional Services Division

The Regional Services Division is responsible for the delivery of legal services to CAF units in Canada, the United States and Europe. Its legal offices are divided into various regions, led by an Assistant Judge Advocate General, and provide general legal support and advice to regular and reserve force component commands, formations and units, on all areas of military law, including advice on military justice, administrative law and operational law matters.

Chief of Staff Division

The Chief of Staff Division is responsible for providing internal support and administrative services to the Office of the JAG. This includes military personnel management, financial services, information management, library services and training, as well as overseeing all civilian staff in the Office of the JAG.

Legal Officers Serving Outside the Office of the JAG

In addition to the legal officers serving in the above-mentioned organizations, a number of legal officers serve outside the Office of the JAG. This includes those working at the Canadian Forces Military Law Centre in Kingston, Ontario, the Office of the Legal Adviser to the Department of National Defence and Canadian Forces, the Privy Council Office, the Department of Foreign Affairs, International Trade and Development.

During the reporting period, an arrangement was negotiated between the Office of the JAG and the Office of the Chief Military Judge (CMJ) whereby a legal officer is now working under the authority of the CMJ. The legal advisor to the Court Martial Administrator (CMA) is seconded to the office of the CMJ and is responsible for providing independent legal advice to the CMA. The CMA holds a central position within the military justice system. Acting under the general supervision of the CMJ, the CMA is responsible for, among other things, convening courts martial, and, in cases of General Courts Martial, appointing the panel members.

Civilian Personnel of the Office of the Judge Advocate General

Civilian personnel contribute greatly to the Office of the JAG’s continued excellence. They occupy positions located throughout CAF Bases and Wings in Canada and abroad, where they provide key support to legal officers, such as administrative, analytical, coordinating, clerical and technical tasks. The civilian personnel form an integral and essential part of the JAG team and are involved in the support and fulfillment of each Division’s respective responsibilities.