It is with great pleasure that I present my second annual report to the Minister of National Defence on the administration of military justice in the Canadian Armed Forces in accordance with subsection 9.3(2) of the National Defence Act for the period of 1 April 2018 to 31 March 2019.
Pursuant to sections 9.1 and 9.2 of the National Defence Act, as the Judge Advocate General, I serve as the 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; and I am responsible for the superintendence of the administration of military justice in the Canadian Armed Forces.
As was reported during the last annual report, one of my first priorities as the Judge Advocate General was to develop and issue strategic direction to the Office of the Judge Advocate General (Office of the JAG). The 2018-2021 Office of the JAG Strategic Direction “Excellence Through Service” provides our mission statement:Footnote 1
To deliver client-focused, timely, options-oriented and operationally-driven military legal services in support of Government of Canada, Department of National Defence and Canadian Armed Forces priorities and objectives; and, to superintend the administration of military justice in the Canadian Armed Forces while respecting the independent roles of each statutory actor within the military justice system.
Our mission statement has, and will continue, to shape the activities of the Office of the JAG. We are resolutely committed to deliver concrete results in priority areas, while remaining focused on our clients’ needs and upholding the military ethos of dignity and respect for all.
The reporting period marked an exceptionally eventful year in military justice. As I outlined in my last communiqué, my role as the superintendent of the administration of military justice is to ensure that the Canadian military justice system operates efficiently, effectively and in accordance with the rule of law, while continuing to be responsive to the unique requirements of the Canadian Armed Forces.
The purpose of Canada’s military justice system is to maintain the discipline, efficiency and morale of the Canadian Armed Forces. Canada’s military justice system was developed to deal expeditiously and fairly with service offences, while respecting the Canadian Charter of Rights and Freedoms (Charter) and meeting the expectations of Canadians. It is a separate system of justice which forms an integral part of the Canadian legal mosaic and shares many of the same principles with the civilian criminal justice system. Service tribunals have long been recognized in Canadian law, including the Constitution, and the requirement for them has been reinforced by Canadian courts, including the Supreme Court of Canada.
As with the civilian criminal justice system, the military justice system constantly evolves through jurisprudence, legislative amendments as well as regular internal and external reviews. These important developments all contribute to enhance the military justice system that has, and will continue to evolve in order to meet the needs and expectations of the Canadian Armed Forces and Canadians.
Enhancing the Military Justice System —Significant Legislative Developments
This reporting period was marked by significant legislative developments to the military justice system. These developments were strongly supported by the chain of command, and serve to significantly enhance the promptness, fairness and effectiveness of the military justice system. On 1 September 2018, sections of Bill C-15, the Strengthening Military Justice in the Defence of Canada Act, came into force amending provisions of the National Defence Act along with related provisions of the Queen’s Regulations and Orders for the Canadian Forces. The coming into force of the provisions of Bill C-15 represents the Government of Canada’s committed response to the recommendations made by the late Right Honourable Antonio Lamer, former Chief Justice of the Supreme Court of Canada, in the First Independent Review of the military justice system in 2003 and subsequently by the Standing Senate Committee on Legal and Constitutional Affairs in 2009. The improvements in fairness and flexibility introduced by these amendments enhance the effectiveness, efficiency and legitimacy of the Canadian military justice system. A military justice system reflective of Canadian values is one that will assist the Canadian Armed Forces promote a culture of leadership, respect, and honour – which are the cornerstones of Canada’s Defence Policy, Strong, Secure, Engaged.
In addition, on 10 May 2018, the Government of Canada tabled Bill C-77, An Act to amend the National Defence Act and to make related and consequential amendments to other Acts. At the end of the reporting period, Bill C-77 was at second reading in the Senate. The proposed legislation demonstrates the Government of Canada’s commitment to strengthen victims’ rights within the military justice system by introducing the Declaration of Victims Rights to the Code of Service Discipline. Amongst other significant proposed amendments to the National Defence Act, Bill C-77 would also include provisions related to indigenous sentencing which mirrors the Criminal Code; and simplifying and enhancing military discipline at the unit level.
Further details related to the legislative developments affecting the military justice system are outlined in Chapter Three.
R v Beaudry before the Supreme Court of Canada
Along with the significant legislative developments noted above, this reporting period was highlighted by jurisprudence before the Supreme Court of Canada. On 19 September 2018, in R v Beaudry,Footnote 2 the Court Martial Appeal Court of Canada declared subsection 130(1)(a) of the National Defence Act to be of no force or effect in its application to any civil offence for which the maximum sentence is five years or more. These serious civil offences, traditionally dealt with by the military justice system, include offences under the Criminal Code such as sexual assault and assault causing bodily harm.
On 21 September 2018, the Director of Military Prosecutions filed a notice of appeal on behalf of the Minister of National Defence to the Supreme Court of Canada.Footnote 3 The appeal before the Supreme Court of Canada was heard on 26 March 2019 and was argued by counsel from the Canadian Military Prosecution Service and Defence Counsel Services. At the end of the reporting period, the Supreme Court of Canada had not released its decision.
Office of the Auditor General and Standing Committee on Public Accounts Reports on the Military Justice System
On 29 May 2018, the Office of the Auditor General tabled its report on the Administration of Justice in the Canadian Armed Forces. The report concluded that the Canadian Armed Forces did not administer the military justice system efficiently and that the Office of the JAG did not provide effective oversight of that system. The report contained nine recommendations to enhance the efficiency of the military justice system. This report was later studied by the House of Commons Standing Committee on Public Accounts, which released its report on 6 December 2018. The Committee’s report echoed and supplemented the findings and conclusions of the Office of the Auditor General’s report, and also made nine recommendations, three of which differ from the recommendations contained in the Office of the Auditor General’s report.
As with the civilian criminal justice system, the military justice system is in constant evolution and benefits from internal and external reviews that offer meaningful evidence-based analysis and recommendations that serve to enhance it. In response to the reports of the Office of the Auditor General and the House of Commons Standing Committee on Public Accounts, the Department of National Defence and the Canadian Armed Forces acknowledged the findings and accepted all of the recommendations. The Government of Canada’s response to the Committee’s report is expected during the next reporting period. At the conclusion of the reporting period, I am pleased to advise that four of the nine recommendations made by the Office of the Auditor General were fully implemented, thereby also addressing the related concerns expressed by the Committee.
The remaining recommendations will be addressed through a critical initiative reported in last year’s report that will serve to improve the collection of information on the military justice system and the management of cases progressing through the system. This new tool, named the Justice Administration and Information Management System (JAIMS), is an innovative system that will electronically track discipline files from the time a complaint is received to the time a file is closed. JAIMS will also be integrated with a new military justice performance measurement system expected to be launched concurrently. This system will deliver measureable data on the performance of the military justice system, allowing us to identify any emerging challenges, including delays, while informing measures to address them. During this reporting period, JAIMS underwent pilot testing and roll-out is expected to begin during the next fiscal year.
JAIMS and the Military Justice System Performance Monitoring Framework are scheduled to be launched across the units of the Canadian Armed Forces in September 2019 and will result in the implementation of the remaining five of the nine recommendations from the Office of the Auditor General and will respond to the Committee’s recommendations. Further information on the Office of the Auditor General’s report and the report of the House of Commons Standing Committee on Public Accounts are provided in Chapter Three.
Enhance Support to Victims and Operation HONOUR
The Office of the JAG remains closely engaged with the Department of National Defence and the Canadian Armed Forces’ efforts to enhance victim support in the military justice system. This includes examining how the restorative approaches of the Canadian Armed Forces can assist in creating a more supportive environment that respects the dignity of all employees and military members. In addition, members of the Office of the JAG working with the Military Police have been integral to the launch of the Sexual Assault Review Program. The Director of Military Prosecutions also introduced an initiative enhancing communications with victims, as per the enclosed Director of Military Prosecution Annual Report 2018-2019 at Annex C. Not only will these efforts enhance the mission success of Operation HONOUR, but they will also help to foster a culture of leadership and respect within the Canadian Armed Forces and the Department of National Defence.
Recognizing the Office of the Judge Advocate General — “Excellence Through Service”
Beginning in February 2018, the Office of the JAG celebrated and honoured the Legal Branch’s 100 years of service in support of the rule of law and democracy in Canada. The Office of the JAG was guided by the centennial’s motto: “Honouring our Past, Embracing the Present, Shaping our Future.” In February 2019, we concluded our tributes to this important anniversary, but continued the conversation in order to encourage all members of the Office of the JAG to keep our past, present and future in mind. As the Judge Advocate General, it is a true privilege and honour for me to lead such an incredible team of professionals who are trusted and respected at home and abroad.
I would like to take this opportunity to recognize the dedicated team of military and civilian professionals who make up the Office of the JAG and extend my sincerest thanks to each of them: The exceptional leaders that make up the Senior Council team of the Office of the JAG provide great wisdom and advice to ensure that we properly look after our people; Honorary Captain (Navy) the Right Honourable Beverley McLachlin, P.C. for her wealth of experience and wise counsel; and the military and civilian members of the Office of the JAG, without whose talents, dedication, sacrifice and enduring professionalism, we would not be able to accomplish our mission in support of the Government of Canada, the Department of National Defence and the Canadian Armed Forces priorities and objectives.
As a trusted partner in the Defence Team, the Office of the JAG remains committed to delivering “Excellence Through Service” in support of the Government of Canada, the Department of National Defence and the Canadian Armed Forces.
It is an exciting and meaningful time to serve as the superintendent of the administration of military justice in the Canadian Armed Forces. I am confident that the activity during this reporting period has enhanced the ongoing development of the military justice system. Canadians can continue to have confidence in the military justice system and its importance in supporting the operational missions of the Canadian Armed Forces both at home and abroad. To that end, the military justice system serves an integral role in maintaining the discipline, efficiency and morale of the Canadian Armed Forces while respecting the Charter and meeting the expectations of Canadians.
Geneviève Bernatchez, OMM, CD
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