ARCHIVED - Chapter 2: Military Justice Strategic Developments

As described in the annual report for 2010-2011, the Judge Advocate General (JAG) Mission and Vision document orients all members of the Office of the JAG toward JAG’s strategic goals and objectives. This Chapter encompasses activities related to JAG Strategic Goal #2, “Lead proactive military justice oversight, responsible development and positive change.” In light of this strategic goal and its accompanying objectives,3 this reporting period saw two key developments: Bill C-15 – The Strengthening Military Justice in the Defence of Canada Act and the Second Independent Review Authority (SIRA) on the Provisions and Operation of Bills C-25 (S.C. 1998, c. 35) and C-60 (S.C. 2008, c.29).

Bill C-15: The Strengthening Military Justice in the Defence of Canada Act

Bill C-15 represents the most recent of several efforts to effect comprehensive change to Canada’s military justice system since the enactment of Bill C-25 in 1998. Bill C-25, which also made comprehensive amendments to the National Defence Act (NDA), requires an independent review of the provisions and operation of those amendments to be undertaken within five years following its Royal Assent and every five-year period from the tabling of a report.

The First Independent Review of the provisions and operation of Bill C-25 was conducted by the Right Honourable Antonio Lamer, former Chief Justice of Canada, and his report (the “Lamer Report”) was submitted to the Minister of National Defence (MND) on 3 September 2003. The report made 88 recommendations and recognized that “as a result of the changes made by Bill C-25, Canada has developed a very sound and fair military justice framework in which Canadians can have trust and confidence.

Legislative Response to the Lamer Report

In 2006, the government introduced Bill C-7 in response to the recommendations of the Lamer Report. However, the bill died on the Order Paper when Parliament was prorogued on 17 September 2007. Bill C-45, the successor bill to Bill C-7, was introduced on 3 March 2008 but did not advance beyond First Reading prior to Parliament being dissolved on 7 September 2008. Bill C-41, which largely reproduced the provisions in the former Bill C-45, was introduced in the House of Commons on 16 June 2010, but also died on the Order Paper when Parliament was dissolved on 26 March 2011. Bill C-15, which reproduces the core provisions of former Bill C-41, was introduced at First Reading on 7 October 2011. During the reporting period, the Standing Committee on National Defence completed its study of the bill and presented its report to Parliament.

Principal Amendments - Bill C-15

Bill C-15 adopts the majority of former Chief Justice Lamer’s recommendations as well as several of those made in a May 2009 report of the Standing Senate Committee on Legal and Constitutional Affairs in its study of Bill C-60. The proposals to amend the NDA would continue the process on ongoing improvements to the military justice system by:

The Report of the Second Independent Review Authority

In March 2011, the MND, the Honourable Peter MacKay, appointed former Chief Justice of the Ontario Superior Court, the Honourable Patrick J. LeSage, as the SIRA of the provisions and operation of Bill C-25 with an additional mandate to review the provisions and operation of Bill C-60.4 Former Chief Justice LeSage’s report (LeSage Report) was submitted to the MND on 22 December 2011 and was tabled in Parliament on 8 June 2012.

The LeSage Report makes 55 recommendations: 35 pertaining to military justice, 3 specific to Military Police, 6 regarding the Military Police Complaints Commission, and 13 concerning the Canadian Armed Forces (CAF) grievance process.

While nearly two-thirds of the recommendations deal with the military justice system, Chief Justice LeSage accepted – as did Chief Justices Dickson and Lamer – that “the military justice system is sound but some modifications will assist in ensuring its continued strength and viability.” Importantly, the report also recognized the key role of the chain of command in the military justice system: “a critical component of the military justice system is the strong and effective functioning of the chain of command.” More specifically, Chief Justice LeSage commented favourably on the summary trial process, finding that, “the summary trial system is vital to the maintenance of discipline at the unit level and therefore essential to the life and death work the military performs on a daily basis” and opining that the current system is constitutionally compliant.

The majority of the recommendations made in the LeSage Report were accepted by the government. As a result, the Department of National Defence and CAF officials are engaged in reviewing the recommendations with a view towards implementation in future reporting periods.


Footnotes

3 JAG Strategic Goal #2 - Lead proactive military justice oversight, responsible development and positive change, lists three strategic objectives; namely: 2.1 Discharge the statutorily mandated superintendence function in a manner that facilitates the fair and efficient administration of Canada’s military justice system; 2.2 Advance the principled development of the military justice system ensuring it continues to be fair, efficient and responsive to the unique needs of the Canadian Armed Forces within Canada’s free and democratic society; and 2.3 Promote a broad understanding of the military justice system.

4 Bill C-60 was the legislative response to the 2008 CMAC decision in R. v. Trépanier. At issue were the provisions of the NDA that authorized the Director of Military Prosecutions to select the type of court martial to try an accused person and required the Court Martial Administrator to convene the type of court martial selected. The CMAC found these provisions unconstitutional. Bill C-60 amended the NDA such that the accused person now has the ability to elect the mode of trial by court martial. The bill also reduced the types of court martial from four to two, allowed military judges to deal with certain pre-trial matters and required the court martial panel to make key decisions on the basis of a unanimous vote.

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