Chapter Two: Superintendence and Regular Reviews of the Administration of Military Justice

¹ Under the NDA, the JAG acts as the legal advisor to the Governor General, the Minister, the DND and the CAF in matters relating to military law. The JAG also has several other statutory responsibilities, including separate responsibilities for the superintendence, and for the conduct of regular reviews, of the administration of military justice. In all of these statutory duties and functions, the JAG is responsible, not to the CDS or anyone in the military chain of command, but to the Minister, and through him to Parliament.

Superintendence of the Military Justice System

The NDA provides that the JAG has superintendence of the administration of military justice in the CAF, in much the same terms that the Minister of Justice, by virtue of the Department of Justice Act, is responsible within the civilian system for “superintendence of all matters connected with the administration of justice in Canada, not within the jurisdiction of the governments of the provinces.”

The term "superintendence" is not defined in statute. In older English common law, and now in the British Prosecution of Offences Act, "superintendence" refers to the Attorney General’s power to supervise the Director of Public Prosecutions. However, Canadian law has taken a different approach.

In the federal Department of Justice Act, it is the Minister of Justice, not the Attorney General, who has superintendence of the administration of justice in Canada. Indeed it is a different section of the Act that sets out the Attorney General’s responsibilities for supervising and conducting litigation in the name of the Crown, and a different Act (Director of Public Prosecutions Act) that deals with the Attorney General’s responsibilities and authorities in respect of prosecutions. The NDA mirrors this pattern of separately creating a superintendence responsibility in subsection 9.2(1) of the NDA, and responsibilities to supervise and instruct the Director of Military Prosecutions elsewhere in the NDA. In other words, "superintendence" in Canada means something different than an authority to generally supervise a Director of Prosecutions.

Specifically, the JAG’s superintendence responsibility entails an obligation to ensure that the military justice system is appropriately resourced, and that it operates efficiently, effectively, and in accordance with the rule of law.

In order to discharge this superintendence responsibility, the JAG engages with a variety of individuals, including the DMP, the DDCS, the Court Martial Administrator, senior CAF leaders, the Canadian Forces Provost Marshal, and the legal officers under his command. The JAG also draws information from a variety of sources, such as unit records of disciplinary proceedings, and the reports of different reviews of the administration of military justice.

Regular Reviews of the Administration of Military Justice

Subsection 9.2(2) of the NDA provides that the JAG shall conduct, or cause to be conducted, regular reviews of the administration of military justice. This responsibility is closely linked to the JAG’s superintendence responsibility, both in the NDA (where it is provided for in subsection 9.2(2)) and conceptually. These responsibilities for superintendence and regular reviews are mutually supportive: initiatives to enhance the military justice system that flow from the JAG’s superintendence responsibility should be regularly reviewed in order to assess the effectiveness of the initiatives, and the product of regular reviews will often form the basis for recommended changes to further enhance the military justice system in fulfillment of the JAG’s superintendence responsibilities. Ultimately, the JAG’s strategic goal in discharging his responsibilities for superintendence and regular reviews is to lead proactive military justice oversight, responsible development, and positive change.

Over the past decade, the reviews of the administration of military justice that the JAG has caused to be conducted have included military justice stakeholder interviews, the creation of ad hoc strategic "tiger" teams to consider and recommend focused legislative changes in response to statutory independent reviews and court decisions, and a standing effort to collect, analyze, and report on summary trial and court martial statistics.

During the upcoming reporting period, the JAG will initiate two separate year-long efforts aimed at furthering his strategic goals for the administration of military justice by two dedicated teams of legal officers: a comprehensive review of the court martial system and the design of a military justice audit program. The comprehensive review is intended to drive responsible development and positive change within the military justice system, while the audit program is focused on proactive military justice oversight.

Court Martial Comprehensive Review

The Court Martial Comprehensive Review Team, to be led by the Deputy JAG for Military Justice and additionally comprised of three legal officers, will be conducted in accordance with Terms of Reference issued by the JAG. The purpose of the comprehensive review is to conduct a legal and policy analysis of all aspects of the CAF’s court martial system and, where appropriate, to develop and analyse options to enhance the effectiveness, efficiency, and legitimacy of that system.

At the outset, the Court Martial Comprehensive Review Team will assess the current court martial system’s effectiveness, efficiency, and legitimacy and then will assess whether changes to any features of this system are required or advisable in order to promote greater systemic effectiveness, efficiency, or legitimacy. The Court Martial Comprehensive Review Team will consider the following subject matter areas:

• The status and institutional structure of tribunals/courts with jurisdiction over service offences, including whether they ought to be: military or civilian in character; permanent or ad hoc entities; and, capable of deploying to austere or hostile environments inside and outside of Canada;
• The status and institutional structure of a prosecution service with responsibility for prosecuting service offences, including whether this service ought to be military or civilian in character, and capable of deploying to austere or hostile environments inside and outside of Canada;
• The mechanism through which defence counsel services are provided to persons accused of committing service offences, including whether such services ought to be: provided by military or civilian lawyers; provided in whole or in part at public expense; and, capable of being provided within austere or hostile environments inside and outside of Canada;
• The substantive body of service offences, including full consideration of whether any current offences ought to be updated or repealed, and whether any additional offences ought to be added;
• The punishments, sanctions, and sentencing laws that apply in respect of service offences, including full consideration of whether any current sentencing provisions ought to be updated or repealed, and whether any additional sentencing options ought to be added;
• The laws of evidence that ought to apply at trials in respect of service offences;
• The rights, grounds, and mechanisms of appeal that ought to exist for the Crown and for persons subject to the Code of Service Discipline; and,
• The special needs of any particular groups who may interact with the military justice system, including victims, young persons, and aboriginal offenders.

The comprehensive review will commence no later than July 2016 and will produce a completed report deliverable to the JAG by July 2017.

Military Justice Audits

The military justice audit team, comprised of two legal officers, will develop and pilot a process for conducting unit visits aimed at collecting objective and measurable data from a variety of sources and through a variety of mechanisms in order to assess unit level administration of the Code of Service Discipline. This data will provide Office of the JAG legal advisors with the ability to assist commanders by providing direct and specific recommendations to improve and enhance the administration of military justice specifically, particularly as it relates to the summary trial system. It will also allow the JAG to identify larger trends in the administration of military justice, including those areas that may require further investigation, so that he can make better informed, evidence-based recommendations for responsible development and positive change within the system.

The military justice audits will target all aspects of the military justice system from investigation of service offences through to post-trial administration conducted at the unit level and will focus on key players within the military justice system such as commanding officers, delegated officers, charge layers, unit investigators, assisting officers, custody review officers and accused members.

These two formalized and purposive reviews of the administration of military justice should position the JAG to provide optimal legal and policy advice to the Minister, the CDS, and the CAF about the military justice system today and for the future.

Conclusion

The JAG’s statutory responsibilities for superintendence and regular reviews of the administration of military justice are two of the means through which Parliament has sought to ensure that Canada’s military justice system remains fair and effective. The JAG and the legal officers under his command remain vigilant in their efforts to achieve proactive oversight, responsible development, and positive change within the military justice system, so that the system can continue to fulfill the expectations of the Canadian public and meet the needs of the Government of Canada, the CAF and its members.