Chapter Five — The Way Ahead

The Canadian military justice system forms an integral part of Canada’s legal mosaic, and the requirement for military tribunals has long been recognized in Canadian law, including in the Constitution. The unambiguous need for a separate system of military justice has been reinforced by Canadian courts on various occasions, and in an unequivocal manner this reporting period in the Supreme Court of Canada’s landmark case of R v Stillman.Footnote 1  Recognized by the Supreme Court of Canada as a parallel and full partner with the civilian criminal justice system, the military justice system significantly contributes to the ability of the Canadian Armed Forces to achieve its mission in Canada and around the world, by assisting military commanders in maintaining discipline, efficiency, and morale.

In support of priorities and objectives of the Government of Canada, the Department of National Defence and the Canadian Armed Forces, the Office of the Judge Advocate General (Office of the JAG) remains dedicated to its strategic directive in delivering "Excellence Through Service" and providing client-focussed, timely, options-oriented, and operationally-driven military legal services. This has remained the guiding objective for the Office of the JAG in the complex and unprecedented operational environment shaped by the COVID-19 pandemic. In order to maintain high responsiveness to the unique requirements of the Canadian Armed Forces, and as the superintendent of the administration of military justice, the Judge Advocate General, supported by the Office of the JAG, remains committed to ensuring the continued responsible evolution of the Canadian military justice system.

The military justice system constantly evolves as a result of jurisprudence, legislative amendments, policy developments, and internal and external reviews. This reporting period was particularly highlighted by such developments, all of which have contributed to ushering in a “new era” for military justice. The Supreme Court of Canada decision in R v Stillman not only confirmed the constitutional legitimacy of the military justice system, but it also emphasized its dynamic nature.Footnote 2  While expressing confidence in the fact that growth and evolution would continue in the future, the Supreme Court of Canada signaled that the Executive and the Legislative branches must ensure that the military justice system's growth is in line with legal and societal developments. Accordingly, the Office of the JAG will continue its important work in the coming reporting periods to ensure that the military justice system continues to meet these expectations.

In R v Stillman, a majority of the Supreme Court of Canada recognized that over the years, the complexion of the military justice system has significantly changed in response to developments in law, military life, and society more broadly.Footnote 3 

The evolution of the military justice system was also highlighted by the enactment of Bill C-77, An Act to amend the National Defence Act and to make related and consequential amendments to other Acts (Bill C-77), through which Parliament confirmed that the purpose of the Code of Service Discipline is to maintain the discipline, efficiency, and morale of the Canadian Armed Forces. The Office of the JAG provided dedicated and continued support towards the Royal Assent of Bill C-77. While certain Bill C-77 legislative amendments came into force upon Royal Assent, many provisions have yet to come into force. Bringing about these important amendments to the National Defence Act will require several years of policy development, consultations, and work with the Department of Justice regulatory drafters. Accordingly, to further enhance the military justice system, the next reporting period will be dedicated to comprehensive consultation with numerous stakeholders with a view to move towards drafting of the voluminous number of regulations required to bring into force the provisions of Bill C-77.

The Office of the JAG is committed to supporting the Canadian Armed Forces in creating an environment free from sexual assault, inappropriate sexual behaviour, racism, discrimination, hateful conduct, and harassment. The military justice system plays a pivotal role in supporting Operation HONOUR and provides a valuable mechanism to aid in the elimination of harmful and inappropriate sexual behaviour which seriously undermines discipline, efficiency, and morale. The Office of the JAG remains committed to supporting the Chief of the Defence Staff and the chain of command in the promotion of a culture of leadership, respect, and honour—the cornerstones of Canada’s Defence Policy − Strong, Secure, Engaged. To that end, efforts are being devoted to ensure enhanced support to victims and survivors of service offences.  In the next reporting period, the Office of the JAG will continue providing legal support to various stakeholders' initiatives to develop policy instruments that bolster the victims’ support framework within the Canadian Armed Forces.

The Judge Advocate General and the Office of the JAG remain committed to supporting the Canadian Armed Forces in the promotion of a culture of leadership, respect, and honour.

The Office of the JAG will continue its partnership with the Assistant Deputy Minister (Information Management) and support them in the ongoing development of the Justice Administration and Information Management System by providing subject matter expert advice. This initiative, in addition to the Military Justice System Performance Monitoring Framework, the Military Justice Stakeholder Engagement Project, and Military Justice Time Standards, will continue to significantly improve the ability of the Judge Advocate General to superintend the administration of military justice. These projects provide institutional strategic oversight and have already begun to create a pool of objective and measurable data in support of evidence-based decision making. In addition, these initiatives directly contribute to the Department of National Defence and the Canadian Armed Forces’ response to the 2018 reports of the Office of the Auditor General of Canada and the House of Commons Standing Committee on Public Accounts regarding the military justice system.Footnote 4  Although the COVID-19 pandemic has impacted the pace of development, work has, and will, continue on these important projects. Over the next reporting period, while adapting to this operational reality, the Office of the JAG will continue its steadfast work towards the full implementation of these projects. Both individually and collectively, these initiatives will modernize the military justice system, enhance efficiency, effectiveness, and oversight, and will serve as yet another hallmark of the "new era" in Canadian military justice.

As noted by the Supreme Court of Canada in the Stillman decision, independent reviews also facilitate the responsible evolution of the military justice system. The National Defence Act requires the Minister of National Defence to cause periodic independent reviews of the military justice system, and the results of the next review are expected to be tabled before Parliament in June 2021. Independent Reviews are incremental in providing important recommendations to the government in order to ensure that the military justice system continues to evolve in response to legal and societal developments, while promoting the operational effectiveness of the Canadian Armed Forces. As such, the next reporting period will see significant focus on providing responsive support to this external review.

To maintain high responsiveness to the unique requirements of the Canadian Armed Forces, the Judge Advocate General, supported by the Office of the JAG, is commited to ensuring a steady and responsible evolution of the military justice system.

Conclusion

This reporting period called for dedicated work towards the improvement and evolution of the military justice system. As a result of landmark jurisprudence, critical legislative amendments, and policy developments, the Canadian Armed Forces have entered a "new era" of military justice with the reinforcement of the principles of efficiency, fairness, operational effectiveness, and constitutional legitimacy. In advancing a multitude of policy and legislative initiatives, legal officers and civilians from the Office of the JAG have demonstrated the highest level of professionalism and expertise. They have upheld the motto of the legal branch, “Let Justice Prevail.” While the domestic and international operational environments have become increasingly challenging and complex, the Office of the JAG has been resolute in providing unparalleled legal services to its clients and in ensuring the continued and responsible evolution of the military justice system. Entering the next reporting period under the conditions stemming from the COVID-19 pandemic, the Office of the JAG will ensure it remains fully responsive and flexible in providing legal services under such a challenging, fast-paced, and evolving environment.

Moving into this new decade—and this "new era"—of military justice, it is resoundingly clear that, as with the civilian criminal justice system, the military justice system must remain dynamic and continue to evolve in response to legal and societal developments. Moving forward, the Judge Advocate General, supported by the Office of the JAG, will ensure that the military justice system continues to operate in accordance with the rule of law and remains inextricably linked to promoting discipline, efficiency, and morale within the Canadian Armed Forces. As part of the larger Canadian legal mosaic, the Canadian military justice system will continue to be one that represents Canadian values and in which Canadians can have confidence.

The Code of Service Discipline is designed to meet the required operational flexibility and will allow the military justice system to continue operating during these unique times.

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