Communiqué - Judge Advocate General Annual Report 2015-16

It is with great pleasure that I present my report on the administration of military justice in the Canadian Armed Forces (CAF) for the period from 1 April 2015 to 31 March 2016. This is my sixth report, made pursuant to section 9.3 of the National Defence Act (NDA), since my appointment as Judge Advocate General (JAG) in 2010.

Section 9.2 of the NDA provides that the JAG is responsible for the superintendence of the administration of military justice in the CAF. As such, it is my responsibility to ensure that the Canadian military justice system operates efficiently, effectively and in accordance with the rule of law. In addition, my legislatively mandated stewardship function requires me to ensure that the military justice system continues to be both fair and responsive to the unique needs of the CAF while remaining consistent with Canadian law, including the Canadian Charter of Rights and Freedoms (Charter).

The Canadian military justice system is a unique, self-contained system that is designed to promote the operational effectiveness of the CAF. While it shares with Canada’s criminal justice system the purpose of maintaining a just, peaceful and safe society, its fundamental purpose is the maintenance of discipline, efficiency and morale of those who serve in uniform.

This past reporting period has been a particularly eventful one for Canada’s military justice system. Aside from the Supreme Court of Canada decision in R. v. Moriarity that affirmed the constitutionality of paragraph 130(1)(a) of the NDA (which incorporates all offences under the Criminal Code or any other Act of Parliament into the military justice system as "service offences" triable within the military justice system) there were a number of important decisions both from the Court Martial Appeal Court and various courts martial held across Canada. Additionally, a number of significant legislative and regulatory developments have occurred. For example, the development of the regulatory amendments to implement the remaining provisions of Bill C-15, the Strengthening Military Justice in the Defence of Canada Act, continues and has taken a number of steps forward. In addition, in June of 2015, Bill C-71, the Victims Rights in the Military Justice System Act was introduced. This Bill, which died on the order paper when Parliament was dissolved, would have enacted a statutory "Declaration of Victims Rights" within the NDA that would have substantially mirrored the Canadian Victims Bill of Rights. It would have also made a series of procedural changes to the Code of Service Discipline – mostly in relation to courts martial – in order to implement the Declaration of Victims Rights. Finally, the Bill would have enhanced the effectiveness of summary trials in dealing with minor service misconduct by establishing them as non-criminal, non-penal service tribunals.

Also in this reporting period the Chief of the Defence Staff (CDS) issued his order concerning Operation HONOUR which is aimed at eliminating harmful and inappropriate sexual behaviour within the CAF. Inappropriate sexual behaviour of any kind is contrary to the values of the profession of arms, the profession of law, the ethical principles of the Department of National Defence (DND) and the CAF. Accordingly, I have directed the implementation of Operation HONOUR within the Office of the JAG in order to eliminate inappropriate sexual behaviour, to ensure that efforts to implement the CDS’s direction by the chain of command occur with a complete understanding of applicable law and consequent legal risk and to ensure that those individuals who are alleged to have committed a service offence of a sexual nature contrary to the Code of Service Discipline are properly dealt with according to the rule of law.

Although Canada has a strong military justice system supported by ongoing efforts toward responsible policy development and proactive oversight, the system cannot remain static. Therefore, in order to ensure that the military justice system continues to serve the needs of the CAF, during the upcoming reporting period I will initiate two, year-long efforts aimed at furthering my strategic goals for the administration of military justice. The first initiative is a comprehensive review of the court martial system which is intended to advance responsible development and positive change within the military justice system. Led by the Deputy JAG for Military Justice, the Court Martial Comprehensive Review Team will conduct a comprehensive review of the court martial system by conducting a legal and policy analysis of all aspects of the court martial system and, where appropriate, to develop and analyse options to enhance the effectiveness, efficiency, and legitimacy of that system.

The second initiative, focusing on proactive military justice oversight, is the development of a process for conducting audits of how military justice is administered at the unit level. This will enable me to collect objective and measurable data in order to assess the effectiveness of the administration of military justice at the unit level. Ultimately, this data will allow me to assist units in improving their military justice related processes, to identify larger trends in the administration of military justice, and to make better informed recommendations for responsible development and positive change within the system.

As I look back on the number of positive developments that have taken place over the course of the reporting period I am proud to be the superintendent for the administration of military justice in Canada. Our system of military justice is one that is admired across the globe and serves as an example of one that balances the requirement to serve the particular needs of the military while continuing to ensure that it does so in a manner that is fair and consistent with international and Canadian law. I take great pride in knowing that Canada has a military justice system that reflects Canadian values and remains one in which all Canadians can have trust and confidence.

Blaise Cathcart, Q.C.
Major-General
Judge Advocate General