Communiqué - Judge Advocate General Annual Report 2016-17

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 2016 to 31 March 2017. This is my seventh report, made pursuant to section 9.3 of the National Defence Act (NDA), since my appointment as Judge Advocate General (JAG) in 2010. It is also my final report as I will be retiring from the CAF in the summer of 2017.

The fundamental purpose of Canada’s military justice system is to contribute to the operational effectiveness of the CAF. As stated by the Supreme Court of Canada in the recent decision of R. v. Moriarity, it does so by providing a process that assures “the maintenance of discipline, efficiency and morale of the military”. To achieve this purpose it must operate expeditiously and fairly, remaining consistent with Canadian law, including the Canadian Charter of Rights and Freedoms (Charter). It is my role as superintendent of the administration of military justice to ensure that the Canadian military justice system operates efficiently, effectively and in accordance with the rule of law, and yet continues to be responsive to the unique needs of the CAF.

In order to do this, my team and I proactively support CAF commanders on legal and legal policy matters impacting on discipline, while being direct and fearless in promoting the rights and interests of CAF members in individual disciplinary cases. In that regard, this report not only provides a summary and analysis of the functioning of the military justice system for the current reporting period but it also sets out various initiatives undertaken by me to lead proactive military justice oversight, responsible development and positive change within the system.

This past reporting period has seen a number of developments including important decisions from both the Supreme Court of Canada and the Court Martial Appeal Court of Canada (CMAC). The Supreme Court of Canada, in R. v. Cawthorne and R. v. Gagnon and Thibault, affirmed the authority of the Minister of National Defence (MND) to appeal decisions of a court martial and of the CMAC. Additionally, the CMAC decision in R. v. Royes concluded that 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) is an offence under military law triable by the military justice system. Finally, the Supreme Court of Canada in the case of R. v. Jordan provided a new framework for determining whether an accused is tried within a reasonable period of time. Although this is not a case that proceeded through the military justice system, it will nevertheless impact the military justice system by prescribing those timelines within which an accused person must be tried.

This reporting period shows a decrease in the number of summary trials and the number of charges disposed of by summary trial. As the proper maintenance of discipline through the rule of law is the cornerstone of an effective military force it is of key importance to conduct a proper analysis of this trend to determine its cause and whether any action may be appropriate moving forward. Therefore, in Chapter Two of this report I discuss this issue in further detail and also set out those actions that are being taken to further examine this issue.

In my previous report I announced a comprehensive review of the court martial system which was intended to advance responsible development and positive change within the military justice system. I am pleased to report that this initiative has progressed steadily over the course of the reporting period with the review team assessing the current court martial system along with a variety of options to enhance the effectiveness, efficiency, and legitimacy of that system. The review team has consulted with CAF leaders as well as with interested members of the Canadian public and has also studied the military justice systems of various countries. The review team is diligently continuing its work to deliver a report that will provide a policy based analysis and discussing options.

Over the reporting period, work has also been ongoing to examine ways to enhance my ability to superintend the administration of military justice within the CAF by improving our current system for data collection and case management. The intent is to allow me to maintain a better appreciation and awareness of the efficiency and effectiveness of the functioning of the military justice system so that I am better positioned to make evidence-based recommendations to effect positive change within the system. In addition, these improvements in data collection and case management would also improve the administration of military justice at the unit level by providing unit authorities with a complete picture of disciplinary proceedings within their unit thereby better engaging them in the disciplinary process.

In the previous reporting period the Chief of the Defence Staff (CDS) issued his order concerning Operation HONOUR to eliminate harmful and inappropriate sexual behaviour within the CAF. In order to complement and support the strategy of the CDS to address inappropriate sexual behaviour, this past reporting period, I met with the Canadian Forces Provost Marshal and the Director of Military Prosecutions (DMP) in order to discuss our individual responses as independent actors within the military justice system to address inappropriate sexual behaviour in the CAF. A number of topics were discussed including various legislative initiatives, the investigation and prosecution of offences of a sexual nature, training as well as the policy amendments made by the Director of Military Prosecutions concerning the conduct of prosecutions of offences of a sexual nature. Following the meeting I prepared a report for the CDS outlining those initiatives already undertaken and setting out those areas of future discussion. It is my intent that the military justice system complements the important efforts undertaken under the umbrella of Operation HONOUR by providing commanders with a tool to address the unique needs of the CAF, including in the area of harmful and inappropriate sexual behaviour.

In the preparation of my final annual report as JAG, I have taken the occasion to reflect on my role as the JAG as well as my career in general. Over the course of my career I have been very proud to serve my country in a variety of positions within the Office of the JAG and have had several extraordinary experiences as a legal officer. I have been very lucky to both serve with and lead a number of exceptionally talented legal officers who have dedicated themselves to the pursuit of justice and the advancement of the rule of law. My role as superintendent of the administration of military justice has been a demanding one, but it has also been one that has been very rewarding. I have had the privilege of overseeing a military justice system that serves the particular needs of the CAF while ensuring that it does so in a manner that protects the individual rights of an accused in accordance with Canadian and international law. I take great pride in knowing that Canada’s military justice system continues to reflect Canadian values and supports the rule of law in a free and democratic society.

Fiat Justitia.

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