Chapter one — Who We Are: The Office of the Judge Advocate General

The Judge Advocate General

In accordance with section 9 of the National Defence Act the Judge Advocate General is appointed by the Governor in Council for a renewable term of four years and acts as legal adviser to the Governor General, the Minister of National Defence, the Department of National Defence and the Canadian Armed Forces in matters relating to military law. The Judge Advocate General also has the statutory mandate to superintend the administration of military justice in the Canadian Armed Forces pursuant to section 9.2 of the National Defence Act. The Judge Advocate General is responsible to the Minister of National Defence in the performance of her duties and functions.

Command of the Office of the Judge Advocate General

The Judge Advocate General has command over all officers and non-commissioned members posted to a position established within the Office of the Judge Advocate General. The duties of a legal officer posted to a position established within the Office of the Judge Advocate General are determined by, or under the authority of, the Judge Advocate General 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. This is to ensure legal officers provide independent legal services. All qualified legal officers serving in the Office of the Judge Advocate General are members in good standing at the bar of a province or territory.

100 years of the Legal Branch: Honouring our Past; Embracing the Present; and, Shaping our Future

In 1911, Sir Frederick Borden, the Minister of Militia and Defence in the Laurier Government, was concerned that his only source of advice on military law issues was the British Judge Advocate General. Borden remedied this by appointing the first Canadian Judge Advocate General, Colonel Henry Smith, on 1 October 1911. However, the Legal Branch was not formally established until 28 February 1918 when Colonel Oliver Biggar, K.C. was appointed as the second Judge Advocate General.

The past hundred years have witnessed enormous changes both in Canadian law and in the way this country employs its armed forces. On the one hand, we have seen the legislative evolution and development which led to the National Defence Act, the adoption of the Canadian Charter of Rights and Freedoms, the growing primacy of individual rights, and the increasing use of international agreements to regulate state action. On the other hand, our military has gone from fighting world wars to serving as peacekeepers, to engaging in asymmetric conflicts. Throughout all this, it has been the job of the Legal Branch to translate the requirements of one sphere into the other; helping to ensure that military action complies with the law, and that the law is sufficient to meet the needs of the military.

Since its founding, the Legal Branch has provided the Canadian Armed Forces and the Department of National Defence with client-focused, timely, options-oriented and operationally driven legal services. These legal services have directly contributed to the successes of Canadian military operations, both at home and abroad.

Office of the Judge Advocate General

The Office of the Judge Advocate General supports the Judge Advocate General in carrying out her duties and functions. It is currently composed of 227 Canadian Armed Forces Regular and Reserve Force legal officers, 76 civilian members of the Public Service, and 16 Canadian Armed Forces members from other military occupations.

The Office of the Judge Advocate General is composed of the Canadian Military Prosecution Service, Defence Counsel Services, the Deputy Judge Advocate General Strategic, and the following Divisions: Military Justice, Administrative Law, Operational and International Law, Regional Services, and the Chief of Staff. The Office of the Judge Advocate General has regional offices located across Canada and internationally. Figure 1-1 shows a map of all the different Canadian offices of the Office of the Judge Advocate General.

Office of the Judge Advocate General Chief Warrant Officer

The Judge Advocate General Chief Warrant Officer serves as the senior non-commissioned member advisor to the Judge Advocate General. Based on the command team concept, the Judge Advocate General Chief Warrant Officer provides perspective to the Judge Advocate General and her senior leadership team on strategic issues related to the Judge Advocate General’s statutory roles, the Canadian Armed Forces and the Office of the Judge Advocate General.

Together with the Canadian Armed Forces Chief Warrant Officer, the Judge Advocate General Chief Warrant Officer also co-chairs the Canadian Armed Forces Discipline Advisory Council. This Council includes the most senior non-commissioned members from each command, and from other key level one organizations. The Council meets to discuss strategic issues relevant to the maintenance of discipline, and provides input to both the Armed Forces Council and the Judge Advocate General.

Other experienced Chief Warrant Officers and Chief Petty Officers First Class are posted to positions in the Assistant Judge Advocate General offices within Canada and in some Deputy Judge Advocate offices. The Assistant Judge Advocate General and Deputy Judge Advocate Chief Warrant Officers/Chief Petty Officers First Class provide an invaluable link between senior non-commissioned members at the unit, base and formation level and the local legal office in addressing disciplinary and administrative matters.

Director of Military Prosecutions

The Director of Military Prosecutions, the senior military prosecutor in the Canadian Armed Forces, is appointed by the Minister of National Defence for a renewable term of four years pursuant to subsections 165.1(1) and (2) of the National Defence Act. The Director of Military Prosecutions acts independently from Canadian Armed Forces and Department of National Defence authorities when exercising his prosecutorial powers, duties and functions. Only the Minister may remove the Director of Military Prosecutions from office for cause, and only on the recommendation of an inquiry committee. In accordance with section 165.15 of the National Defence Act, the Director of Military Prosecutions may be assisted and represented, to the extent determined by the Director of Military Prosecutions, by officers who are barristers or advocates with standing at the bar of a province or territory. In this regard the Director of Military Prosecutions is assisted by a number of Regular and Reserve Force legal officers appointed to represent the Director of Military Prosecutions, along with a civilian paralegal and support staff. In instances where there is a risk of conflict of interest, the Director of Military Prosecutions may also appoint special prosecutors who are not legal officers but who are nevertheless Canadian Armed Forces officers and barristers or advocates with standing at the bar of a province or territory. The office of the Director of Military Prosecutions, known as the Canadian Military Prosecution Service, is organized regionally with Regional Military Prosecutors located in Halifax, Valcartier, Ottawa, Edmonton and Esquimalt.

It is the responsibility of the Director of Military Prosecutions, with the assistance of those legal officers appointed to act as military prosecutors, to prefer all charges to be tried by court martial, to conduct all prosecutions at court martial and for acting as counsel for the Minister of National Defence in respect of appeals to the Court Martial Appeal Court and the Supreme Court of Canada. The Director of Military Prosecutions is also responsible to provide 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 Director of Military Prosecutions also acts as counsel for the Canadian Armed Forces during custody review hearings.

The Director of Military Prosecutions is under the general supervision of the Judge Advocate General and, in this regard, the Judge Advocate General may issue general instructions or guidelines in writing in respect of prosecutions, which the Director of Military Prosecutions must ensure are made available to the public. The Judge Advocate General may also issue instructions or guidelines in writing in respect of a particular prosecution. The Director of Military Prosecutions must ensure that these instructions or guidelines are also available to the public, unless the Director of Military Prosecutions considers that doing so would not be in the best interest of the administration of military justice. The Office of the JAG Strategic Direction highlights the importance of respecting the independent roles of statutory actors in the military justice system such as the Director of Military Prosecutions. During this reporting period, no general or specific instructions were issued to the Director of Military Prosecutions by the Judge Advocate General.

In accordance with the Queen’s Regulations and Orders for the Canadian Forces article 110.11 the Director of Military Prosecutions annually reports to the Judge Advocate General on the execution of his duties and functions. A copy of the 2017-2018 Director of Military Prosecutions Annual Report is attached as Annex D to this report.

Director of Defence Counsel Services

The Director of Defence Counsel Services is appointed by the Minister of National Defence for a renewable term of four years pursuant to subsections 249.18(1) and (2) of the National Defence Act. The Director of Defence Counsel Services acts independently from Canadian Armed Forces and Department of National Defence authorities when exercising his powers, duties and functions. Only the Minister may remove the Director of Defence Counsel Services from office for cause, and only on the recommendation of an inquiry committee. In accordance with section 249.21 of the National Defence Act, the Director of Defence Counsel Services may be assisted in his duties and functions by persons who are barristers or advocates with standing at the bar of a province or territory. In this regard the Director of Defence Counsel Services, located in the National Capital Region, is assisted by a number of Regular and Reserve Force legal officers who act as defence counsel, along with a civilian paralegal and support staff.

In accordance with section 249.19 of the National Defence Act, it is the responsibility of the Director of Defence Counsel Services to provide, supervise and direct the legal services available, at no cost, under the Queen’s Regulations and Orders for the Canadian Forces article 101.11 to persons who are liable to be charged, dealt with and tried under the Code of Service Discipline. This includes:

• the provision of legal advice to persons arrested or detained in respect of a service offence;
• the provision of legal counsel to an accused person where there are reasonable grounds to believe that the accused person is unfit to stand trial;
• the provision of legal advice of a general nature to an assisting officer or accused person on matters relating to summary trials;
• the provision of legal advice with respect to the making of an election to be tried by court martial;
• the provision of legal counsel to an accused person in respect of whom an application to a referral authority has been made;
• the provision of legal counsel to the respondent on an appeal or an application for leave to appeal;
• the provision of legal counsel to a person on an appeal or an application for leave to appeal with the approval of the Appeal Committee; and
• the provision of legal advice to a person who is the subject of an investigation under the Code of Service Discipline, a summary investigation or a board of inquiry.

The relationship between the Director of Defence Counsel Services and the Judge Advocate General is statutorily structured at section 249.2 of the National Defence Act such that the Director of Defence Counsel Services acts under the general supervision of the Judge Advocate General. The Judge Advocate General may issue general instructions or guidelines in writing in respect of defence counsel services and the Director of Defence Counsel Services must ensure that any such instructions or guidelines are available to the public. The Office of the JAG Strategic Direction highlights the importance of respecting the independent roles of statutory actors in the military justice system such as the Director of Defence Counsel Services. Unlike with the Director of Military Prosecutions, the Judge Advocate General has no authority to issue instructions or guidelines in respect of a particular case. During this reporting period no general instructions or guidelines were issued by the Judge Advocate General in respect of defence counsel services.

In accordance with the Queen’s Regulations and Orders for the Canadian Forces paragraph 101.11(4) the Director of Defence Counsel Services is required to report annually to the Judge Advocate General on the provision of legal services prescribed by regulations and the performance of any other duties that are not incompatible with the duties as defence counsel and which have been undertaken. A copy of the Annual Report 2017-2018 Director Defence Counsel Services is attached as Annex E to this report.

Deputy Judge Advocate General Strategic

The Judge Advocate General authorized the position of Deputy Judge Advocate General Strategic to develop and facilitate strategic initiatives to ensure that the provision of statutorily mandated legal services fully integrates, aligns with and supports the Government of Canada, Departmental and Canadian Armed Forces objectives and priorities promulgated in the Strong, Secure, Engaged: Defence Policy; Defence Plan (2018-2023); the Defence Results Framework initiative; as well as the Force Posture and Readiness and Defence Program Analytics directives. The mandate of the Deputy Judge Advocate General Strategic includes the renewal of a performance measurement system and support to the development and implementation of personnel management and professional practice policies and directives.

Military Justice Division

The Military Justice Division assists the Judge Advocate General in superintending the administration of military justice and ensuring its responsible development within the Canadian justice system. It is comprised of four directorates: Military Justice Strategic, Military Justice Policy, Military Justice Operations, and Canadian Forces Provost Marshal Legal Services.

The Directorate of Law/Military Justice Strategic supports the Judge Advocate General in the development of her strategic vision for military justice. This enables the Office of the Judge Advocate General and the Canadian Armed Forces to anticipate and respond to external and internal challenges and support ongoing development of the military justice system. The other directorates support the Judge Advocate General in the implementation of her vision for military justice in three convergent ways. The Directorate of Law/Military Justice Policy plays a key role in the development of legislation and regulation related to the military justice system. These initiatives arise from projects seeking comprehensive reform of the National Defence Act as well as from legislative proposals led by other government departments. The Directorate of Law/Military Justice Operations is responsible to provide direct operational support to the Judge Advocate General as the superintendent of the administration of military justice in the Canadian Armed Forces. This includes providing support on military justice issues to all legal officers within the Office of the Judge Advocate General, formulating Office of the Judge Advocate General policy on military justice issues and providing the necessary support for the appointment of individuals to the various military justice committees. This Directorate is also responsible for the production of the Judge Advocate General’s Annual Report to the Minister of National Defence. Finally, the Directorate of Canadian Forces Provost Marshal Legal Services is responsible to provide legal advice and services to the Canadian Forces Provost Marshal and the Canadian Forces Military Police Group. This Directorate enables the efficient and effective lawful conduct of policing operations, investigations, custody and mandated security tasks. This Directorate also acts as a principle liaison between the Office of the Judge Advocate General and the Canadian Forces Provost Marshal.

Administrative Law Division

The Administrative Law Division provides legal advice to Canadian Armed Forces leaders at the strategic level on matters pertaining to the administration of the Canadian Armed Forces such as military personnel policies, administrative investigations, compensation, benefits, pensions and estates as well as on matters relating to the governance, organization and command structure of the Canadian Armed Forces and the operation of the military grievance system. Given the size and complexity of the Canadian Armed Forces and the multitude of administrative decisions made each day, one of the objectives of providing legal advice in the military administrative law realm is to ensure that these decisions are made in accordance with the applicable legislation, the rule of law and procedural fairness requirements.

The Administrative Law Division is composed of three directorates: Military Personnel; Adminis-trative Law; and Compensation, Benefits, Pensions and Estates. The Military Personnel Directorate provides legal advice on the development and application of personnel policies spanning recruitment to release, including such topics as universality of service, remedial measures and terms of service. The Administrative Law Directorate provides legal advice and support in relation to military grievances, grievance-related litigation, administrative investigations, and the Canadian Armed Forces organization and command structure. The Compensation, Benefits, Pensions and Estates Directorate provides legal advice and support on the full spectrum of financial and compensation policies and instructions that support the military human resources management framework, as well as legal and administrative support in relation to Service Estates and Elections.

Operational and International Law Division

The Operational and International Law Division is responsible for the provision of legal support for all domestic and international operations. Additionally, this Division oversees all legal officers deployed on operations. These legal officers provide legal support to deployed Canadian Armed Forces elements in all aspects of military law, including the military justice system.

The Operational and International Law Division is comprised of five directorates: Strategic Operational Law, Directorate of Law International, the Canadian Joint Operations Command Legal Adviser, the Canadian Special Operations Forces Command Legal Adviser, and the Directorate of Law, Intelligence and Information Operations. In addition, during this reporting period five legal officers were deployed in direct support of two overseas operations: Operation IMPACT and Operation REASSURANCE. Five legal officers were also deployed in support of Operation LENTUS (Canadian Armed Forces response to natural disasters in Canada).

The Strategic Operational Legal Adviser provides legal advice on all strategic level operational issues affecting Canadian Armed Forces operations around the world such as domestic and international legal authorities, rules of engagement and use of force. The Directorate of Law International provides strategic legal support and advice on the international legal framework for Canadian Armed Forces activities. This includes advice on international authorities, prospective legal instruments as well as areas such as the law of armed conflict, international human rights law and international criminal law. The Directorate of Law International is a principal liaison with Global Affairs Canada Legal Services, the Department of Justice and the Privy Council Office Legal Operations. The Directorate of Law International also works closely with partners and allies as well as non-governmental organizations like the Canadian Red Cross and the International Committee of the Red Cross. The Canadian Joint Operations Command Legal Adviser provides legal advice to the Commander of the Canadian Joint Operations Command on all legal matters related to the conduct of conventional military operations at the operational level, in both continental and expeditionary contexts. Deployed legal officers report to the Canadian Joint Operations Command Legal Adviser. The Canadian Special Operations Forces Command Legal Adviser provides legal advice in all aspects of military law related to the conduct of Canadian Special Operations Forces Command operations including its mandated response to all domestic and international terrorist attacks, international crisis and associated threats. The Directorate of Law, Intelligence and Information Operations is the primary legal adviser to the Canadian Forces Intelligence Command and provides legal advice on strategic, operational and tactical level issues relating to both domestic and internal matters of an intelligence nature.

Regional Services Division

The Regional Services Division, the largest of the Divisions within the Office of the Judge Advocate General, delivers legal services principally to Canadian Armed Forces commanders in Canada, Europe and the United States. It has legal offices located across and within various regions, and each region is led by an Assistant Judge Advocate General. Regular and Reserve Force legal advisers in the Regional Services Division provide legal advice to Regular and Reserve Force commands, formations and units on many aspects of military justice including at the pre-charge and pre-trial phases, to referral authorities when charges are referred to the Director of Military Prosecutions, to presiding officers during the course of a summary trial and to review authorities where there is a request for review by an accused or a review has been independently initiated by a review authority. In support of the Judge Advocate General’s role as superintendent of the administration of military justice, legal advisers in the Regional Services Division have conducted 70 two-day Presiding Officer Certification Training sessions during this reporting period, 10 of which were delivered in French, with a total of 1084 candidates completing the course.

Legal advisers in the Regional Services Division also provide legal advice to Canadian Armed Forces commanders on administrative law and operational law matters and support Canadian Armed Forces expeditionary and domestic operations.

The Regional Services Division is the principal source for generating legal officers for Canadian Armed Forces exercises, training, and operational deployments in Canada and abroad.

There are nine Assistant Judge Advocate General offices located in Ottawa, Halifax, Montreal, Toronto, Winnipeg, Edmonton, Esquimalt, Geilenkirchen (Germany) and Colorado Springs (United States of America). In addition, there are 14 Deputy Judge Advocate offices located across Canada which report directly to their respective regional Assistant Judge Advocate General.

Chief of Staff Division

The Chief of Staff Division is composed of legal officers, other Canadian Armed Forces officers and non-commissioned members along with civilian staff. This division is responsible for providing inter-nal support and administrative services to the Office of the Judge Advocate General. This includes access to information and privacy requests, recruiting and development of new legal officers from all entry programs (Direct Entry Officer, Component Transfer, and Military Legal Training Plan), military personnel management including staffing requirements, occupational training and professional development, the administration of the Judge Advocate General primary reserve list, library services and training, information services, Central Registry, as well as overseeing all civilian staff in the Office of the Judge Advocate General. The non-legal military and civilian personnel are an essential part of this division and key contributors to Office of the Judge Advocate General administrative and financial tasks.

Legal Officers Serving Outside the Office of the Judge Advocate General

In addition to the legal officers serving in the above-mentioned organizations, a number of legal officers serve outside the Office of the Judge Advocate General. They include those working at the Privy Council Office, Global Affairs Canada, the Canadian Forces Military Law Centre and the Department of National Defence and Canadian Armed Forces Legal Advisor with the Department of Justice.

Civilian Personnel of the Office of the Judge Advocate General

Civilian personnel form an integral and essential part of the Office of the Judge Advocate General and contribute greatly to its continued success. They occupy positions located throughout Canadian Armed Forces bases and wings in Canada and abroad to provide key support to legal officers and their non-legal military personnel through their work in administrative, analytical and technical tasks.