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

The Judge Advocate General

In accordance with sections 9 and 9.1 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 (Office of the JAG). The duties of a legal officer posted to a position established within the Office of the JAG 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.^{Footnote 1}  This is to ensure legal officers provide independent legal services. All qualified legal officers serving in the Office of the JAG are members in good standing at the bar of a province or territory.

Office of the Judge Advocate General

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

The Office of the JAG is composed of the independent Canadian Military Prosecution Service and Directorate of Defence Counsel Services, the Deputy Judge Advocate General Strategic, along with the following Divisions: Military Justice, Administrative Law, Operational and International Law, Regional Services, and Corporate Services. The Office of the JAG 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 JAG.

The Judge Advocate General Chief Warrant Officer

The Judge Advocate General Chief Warrant Officer serves as the senior non-commissioned member adviser 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 JAG.

Together with the Canadian Armed Forces Chief Warrant Officer, the Judge Advocate General Chief Warrant Officer 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. These members 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 of National Defence 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 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 to act as counsel for the Minister of National Defence in respect of appeals to the Court Martial Appeal Court of Canada 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.

Pursuant to the National Defence Act, 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 Judge Advocate General did not issue any general or specific instructions or guidelines to the Director of Military Prosecutions during this reporting period.

Following recommendations made by the Office of the Auditor General of Canada and in order to assist the Director of Military Prosecutions in developing a highly capable team of experienced prosecutors, the Judge Advocate General issued directions, during the previous reporting period, to ensure that all legal officers assigned to assist the Director of Military Prosecutions will remain in their positions for a minimum of five years, subject to the requirements of the Director.

In accordance with article 110.11 of the Queen’s Regulations and Orders for the Canadian Forces, the Director of Military Prosecutions reports annually to the Judge Advocate General on the execution of his duties and functions. A comprehensive review of the Canadian Military Prosecution Service activities over this reporting period can be found in the Director of Military Prosecutions Annual Report 2019-2020, attached as Annex C 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 the Canadian Armed Forces and Department of National Defence authorities when exercising his powers, duties and functions. Only the Minister of National Defence 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 article 101.11 of the Queen’s Regulations and Orders for the Canadian Forces 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 a person who is the subject of an investigation under the Code of Service Discipline, a summary investigation or a board of inquiry;
• 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 accused person or assisting officer on matters relating to summary trials;
• the provision of legal counsel to a person in respect of an application to review a direction for the conditional release of the person from custody following arrest;
• the provision of legal counsel to a person in respect of pre-trial custody hearings, in situations where the accused person is retained in custody following arrest;
• the provision of legal advice to an accused person with respect to the making of an election to be tried by court martial;
• the provision of legal advice to an accused person with respect to the waiver of the limitation periods;
• 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 advice to an offender, or to an officer or non-commissioned member appointed to assist an offender, in respect of an application to vary a suspension order or an intermittent sentence order or an application to vary conditions or in respect of a hearing into breach of conditions;
• the provision of legal advice to a person who wishes to preserve the right to appeal under the National Defence Act;
• the provision of legal advice to a person who wishes to apply, or has applied, to the Appeal Committee;
• the provision of legal counsel to a person in respect of an application for release pending an appeal;
• the provision of legal counsel to a person released from custody pending appeal, in respect of an application for review or breach of an undertaking or appeal;
• the provision of legal counsel to the respondent on an appeal or an application for leave to appeal by the Minister of National Defence; and
• the provision of legal counsel to an appellant on an appeal or an application for leave to appeal with the approval of the Appeal Committee.

The relationship between the Director of Defence Counsel Services and the Judge Advocate General is set out at section 249.2 of the National Defence Act. The Director of Defence Counsel Services acts under the general supervision of the Judge Advocate General but this general supervision must be exercised through general instructions or guidelines in writing in respect of defence counsel services. Furthermore, the Director of Defence Counsel Services must ensure that any such instructions or guidelines are available to the public. 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. The Judge Advocate General did not issue any general instructions or guidelines to the Director of Defence Counsel Services in respect of defence counsel services, during this reporting period.

In response to the recommendations of the Office of the Auditor General and to assist the Director of Defence Counsel Services in the development of litigation expertise within the Defence Counsel Services team, the Judge Advocate General issued directions, during the last reporting period, to ensure that all legal officers assigned to assist the Director of Defence Counsel Services will remain in their positions for a minimum of five years, subject to the requirements of the Director.

In accordance with paragraph 101.11(4) of the Queen’s Regulations and Orders for the Canadian Forces, the Director of Defence Counsel Services is required to report annually to the Judge Advocate General on the provision of legal services as well as other duties that are prescribed by regulations. A copy of the Annual Report 2019-2020 Director of Defence Counsel Services is attached as Annex D 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 Canada’s Defence Policy-Strong, Secure, Engaged; the 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 during the reporting period included 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 JAG and the Canadian Armed Forces to anticipate and respond to external and internal challenges, while supporting the responsible 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 amendments to 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 JAG, formulating 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 and is responsible for the Superintendence Enhancement and Assessment Project. 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. In addition, it also acts as a principal liaison between the Office of the JAG 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. This includes military personnel policies, administrative investigations, compensation, benefits, pensions and estates, as well as advising 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 important 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; Administrative 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, human rights, remedial measures, and terms of service. The Administrative Law directorate provides legal advice and support in relation to complaint and conflict management, including 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. Additionally, the Administrative Law Division is responsible for the legal adviser assigned to provide legal support to the Office of the Chief of the Defence Staff.

Operational and International Law Division

The Operational and International Law Division is responsible for the provision of 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 six directorates: Strategic Operational Law, Directorate of Law - International, the Canadian Joint Operations Command Legal Adviser, the Canadian Special Operations Forces Command Legal Adviser, the Legal Adviser to the Canadian Commander at the North American Aerospace Defense Command and the Directorate of Law, Intelligence and Information Operations. In addition, during this reporting period 13 legal officers were deployed in direct support of five overseas operations: Operation IMPACT, Operation REASSURANCE, Operation PRESENCE, Operation ARTEMIS, as well as to the NATO Mission in Iraq. Deployed legal officers play a fundamental role in the establishment of the legal foundation for operations, and in providing close support to task force commanders and staff to help ensure that missions are conducted in accordance with applicable law.

The Strategic Operational Law 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 legal basis for the conduct of operations, prospective legal instruments as well as areas such as the law of armed conflict, international human rights law, and international criminal law. This Directorate is a principal liaison with the Privy Council Office Legal Operations, the Department of Justice, and Global Affairs Canada Legal Services. This Directorate 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. In addition, 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 counter-terrorism response domestically and internationally, its mandated response to all domestic and international terrorist attacks, as well as international crises and associated threats. The Legal Adviser to the Canadian Commander at the North American Aerospace Defence Command provides legal advice on national issues to the Deputy Commander of North American Aerospace Defence in his role as the senior Canadian officer in the bi-national command structure as well as advice on North American Aerospace Defence issues generally as part of the overall legal adviser team for the North American Aerospace Defence Command. The Directorate of Law, Intelligence and Information Operations is the primary legal adviser to the Canadian Forces Intelligence Command / Chief of Defence Intelligence and the National Security and Intelligence Review and Oversight Coordination Secretariat. It provides legal advice on strategic, operational and tactical level issues relating to both domestic and international matters of an intelligence nature including information sharing, open source intelligence, counter-intelligence investigations, and the development of cyber capabilities.

Regional Services Division

The Regional Services Division, the largest of the Divisions within the Office of the JAG, delivers legal services principally to Canadian Armed Forces’ commanders in Canada and Europe. It has legal offices located across and within various regions, and each region is led by an Assistant Judge Advocate General. There are 8 Assistant Judge Advocate General offices: Ottawa, Halifax, Montreal, Toronto, Winnipeg, Edmonton, Esquimalt, and Geilenkirchen (Germany). In addition, there are a number of Deputy Judge Advocate offices located across Canada which report directly to their respective regional Assistant Judge Advocate General.

Regular and Reserve Force legal officers in the Regional Services Division provide legal advice to Regular and Reserve Force commands, formations, and units on many aspects of military justice. This includes advice to the chain of command 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.

Legal officers in the Regional Services Division also provide a variety of training to the various Canadian Armed Forces units and other elements they advise, including on topics such as Unit Disciplinary Investigations, the Law of Armed Conflict, use of force, and administrative legal issues. In support of the Judge Advocate General’s role as superintendent of the administration of military justice, legal officers in the Regional Services Division have conducted 86 two-day Presiding Officer Certification Training sessions during this reporting period, 10 of which were delivered in French, with approximately 1117 candidates completing the course.

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

Finally, 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.

Corporate Services Division

The Corporate Services Division is composed of civilian and military staff, who are responsible for providing corporate services and support across a range of areas. They include providing support services required for the proper functioning of the Office of the JAG, including business planning, comptroller and financial information management and technology, civilian human resources, military and civilian training, organization and establishment, and administrative support services. The Corporate Services Division's staff are also responsible for meeting external corporate requirements, and routinely represent the Office of the JAG at meetings and working groups of the larger Department of National Defence and Canadian Armed Forces community. The Corporate Services Division also provides support to the Legal Branch adviser, assisting in the recruiting and professional development of legal officers.

Deputy Judge Advocate/Reserves

The Deputy Judge Advocate General/Reserves is a member of the Office of the JAG Senior Council and provides critical advice to the Judge Advocate General and Office of the JAG senior leadership in matters of Primary Reserve policy and employment in relation to Reserve Force legal officers.

Reserve Force legal officers provide tactical legal support to Canadian Armed Forces reserve elements, offer unique legal skills, and provide a surge capacity  to complete tasks which exceed the Office of the JAG regular force capacity. Primary Reserve List members are located throughout Canada and principally support the Regional Services Division, the Canadian Military Prosecutions Service, and the Directorate of Defence Counsel Services. Reserve Force legal officers undergo the same training and development as their Regular Force counterparts to ensure the readiness and capacity of the Office of the JAG to support the full range of Canadian Armed Forces operations. Primary Reserve List members in regional services maintain personal readiness and may voluntarily deploy on domestic and international operations.

Legal Officers Serving Outside the Office of the Judge Advocate General

A number of legal officers serve outside the Office of the JAG, including those working at the Privy Council Office, Global Affairs Canada, the Canadian Forces Military Law Centre, and the Department of National Defence/Canadian Armed Forces Legal Adviser with the Department of Justice.  During the next reporting period, these positions will be augmented by a new position for the Deputy Judge Advocate General Strategic to be seconded within senior leadership at the Department of Justice.

Civilian Personnel of the Office of the Judge Advocate General

Civilian personnel form an essential part of the Office of the JAG and greatly contribute 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 non-legal military personnel through their work in administrative, analytical, and technical tasks.