Communiqué

Rear-Admiral Geneviève Bernatchez, OMM, CD
Judge Advocate General
of the Canadian Armed Forces

It is with great pleasure that I present my third Annual Report to the Minister of National Defence on the administration of military justice in the Canadian Armed Forces. This report covers the period of 1 April 2019 to 31 March 2020, and is submitted in accordance with subsection 9.3(2) of the National Defence Act.

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.

Shortly after my appointment as the Judge Advocate General on 27 June 2017, I issued strategic direction to the Office of the Judge Advocate General (Office of the JAG), articulating our institutional priorities, orienting all members of the Office of the JAG to a unified set of goals, and ensuring that in achieving those goals, the dedicated professionals of the Office of the JAG could refer to a shared set of principles to guide and shape their actions. The 2018-2021 Office of the JAG Strategic Direction “Excellence Through ServiceFootnote 1  provides our overarching mission statement:

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.

In the increasingly multifaceted, fast paced, and resource limited environment within which we currently operate, our steadfast commitment to this overarching mission statement enables the Office of the JAG to remain responsive to our clients’ needs and deliver the essential legal support that our clients rely upon, while adapting to an increasingly challenging and complex operational environment, both domestically and abroad. This has been especially important during the Canadian Armed Forces’ response to the COVID-19 pandemic under Operation LASER, during which the Office of the JAG has been required to remain responsive and flexible in providing legal services under challenging, fast-paced, and evolving circumstances.

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A "New Era" for Military Justice in Canada

 

The "new era" for military justice in Canada is characterized by increased efficiency, fairness, effectiveness, and unambiguous constitutional legitimacy.

At the close of the last reporting period, the military justice system stood at an important juncture and at the precipice of significant change. In the wake of external reviews recommending sweeping changes to the military justice system, with Parliament moving forward on significant legislative amendments to the National Defence Act, and the Supreme Court of Canada deliberating on important constitutional questions pertaining to the military justice system, change was inevitable. The continued responsible evolution of the military justice system is important, necessary, and positive. As with the civilian criminal justice system, the military justice system constantly evolves through jurisprudence, legislative amendments, policy developments, as well as regular internal and external reviews. These developments contribute to the evolution and enhancement of the military justice system, and enable it to meet the needs of those involved, as well as incorporating Canadian legal requirements and societal norms.

This reporting period marked the realization of a series of significant jurisprudential, legislative, and policy developments, all of which have helped define a "new era" for military justice in Canada. I am confident that the military justice system will continue to operate in accordance with the rule of law, evolve and remain responsive to developments in law and society, and remain a critically important and relevant system for promoting discipline, efficiency, and morale within the Canadian Armed Forces. In my role as the superintendent of the administration of military justice, I am resolute in my commitment to ensure the responsible evolution of the Canadian military justice system while maintaining responsiveness to the unique requirements of the Canadian Armed Forces.

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R v Stillman – Securing the Constitutional Legitimacy of the Military Justice System

 

During this reporting period, the Supreme Court of Canada rendered its landmark decision in R v Stillman,Footnote 2  which represented a watershed moment for military legal practitioners across Canada and a defining moment for the Canadian military justice system. The majority of the Supreme Court unambiguously affirmed the need for a separate system of military justice in Canada and confirmed that the system is constitutional, valid, and necessary. Drawing upon the Supreme Court’s prior rulings in R v GénéreuxFootnote 3  and R v Moriarity,Footnote 4  the Court reaffirmed that the purpose of the military justice system is to “assure the maintenance of discipline, efficiency and morale of the military.”Footnote 5

In its decision, a majority of the Supreme Court recognized that the military justice system functions as a full partner with the civilian criminal justice system, having “evolved from a command-centric disciplinary model … to a parallel system of justice that largely mirrors the civilian criminal justice system.”Footnote 6 .
In discussing the continued evolution of the military justice system, the Supreme Court went on to note that “the continuing evolution of this system is facilitated by the periodic independent reviews … ensuring the system is rigorously scrutinized, analyzed, and refined at regular intervals. This speaks to the dynamic nature of the military justice system. Just as the civilian criminal justice system grows and evolves in response to developments in law and society, so too does the military justice system.” »Footnote 7 .

R v Stillman confirms the constitutional legitimacy of the military justice system and represents a clear recognition of the hard work done over many years to create a sound system of military justice. I recognize that this validation comes with great responsibility. As the Supreme Court clearly signaled, the Executive and Legislative branches of government are expected to ensure that the military justice system continues to grow and evolve alongside the broader legal community and society at large. As such, my team of dedicated professionals in the Office of the JAG and I will continue our efforts to ensure that the military justice system consistently meets these legitimate expectations.

 

Enhancing the Military Justice System through Legislative Developments

 

On the heels of the final implementation of legislative reform brought forth during the last reporting period by Bill C-15, the Strengthening Military Justice in the Defence of Canada Act, the Office of the JAG continued to press forward during this reporting period in its effort to further enhance and strengthen the military justice system by providing dedicated support to Bill C-77, An Act to amend the National Defence Act and to make related and consequential amendments to other Acts (Bill C-77). I am very pleased to report that Bill C-77 received Royal Assent during this reporting period, on 21 June 2019.

The reform to the National Defence Act brought forth by Bill C-77 represents the most significant legislative update to the National Defence Act since 1999 and serves as a further catalyst for this "new era" of military justice. The reform resulting from the enactment of Bill C-77 represents the Government of Canada’s commitment to strengthening victims’ rights within the military justice system and enhancing the fairness of the system. To this end, Bill C-77 introduces the Declaration of Victims Rights to the Code of Service Discipline, which enshrines a number of rights for victims of service offences within the military justice system, such as the right to information, protection, participation, and restitution. These rights largely mirror those found in the Canadian Victims Bill of Rights, and their introduction aligns the victims’ rights framework in the military justice system with that of the civilian criminal justice system. Amongst other significant amendments to the National Defence Act, Bill C-77 includes provisions requiring the consideration of the unique circumstances of indigenous offenders during sentencing, mirroring similar provisions found in the Criminal Code. Bill C-77 also simplifies and enhances military discipline at the unit level by reforming the summary trial process into a non-penal, non-criminal summary hearing process designed to address minor breaches of discipline more efficiently and effectively.

While certain provisions of Bill C-77 came into force upon Royal Assent, the full implementation of the provisions of Bill C-77 calls for significant regulatory changes requiring several years of policy development, consultations with internal and external partners and stakeholders, as well as working closely with regulatory drafters from the Department of Justice. The Office of the JAG is prepared to fully support these efforts and has commenced the necessary consultations during this reporting period. The Office of the JAG will continue its efforts to enhance the military justice system by fully implementing the provisions of Bill C-77 over the coming years.

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Policy Initiatives – Implementing the Recommendations of the Office of the Auditor General of Canada and the House of Commons Standing Committee on Public Accounts Reports on the Administration of Justice in the Canadian Armed Forces

 

As noted in my last Annual Report, 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 could improve efficiency in the administration of the military justice system and that the Office of the JAG could improve effective oversight of the system. This report was later studied by the House of Commons Standing Committee on Public Accounts, which released its own report on 6 December 2018. Each of these reports contained nine recommendations, which were ultimately designed to enhance the efficiency and effective oversight of the military justice system.

In response to the reports, the Department of National Defence and the Canadian Armed Forces acknowledged the findings and accepted all of the recommendations. At the conclusion of the last reporting period, the Office of the JAG had fully implemented four of the nine recommendations of each report. I am proud to report that during this reporting period, the Office of the JAG has made progress towards the full implementation of the remaining recommendations through the launch of numerous initiatives. These initiatives include the Justice Administration and Information Management System (JAIMS), the Military Justice System Performance Monitoring Framework, Military Justice Time Standards, and the Military Justice Stakeholder Engagement Project. These initiatives—both individually and collectively—serve to modernize the military justice system, enhancing efficiency, effectiveness, and oversight and serving as yet another hallmark of the "new era" in military justice.

 

During this reporting period, the Office of the JAG has made progress towards the full implementation of all of the recommendations from the reports of the Office of the Auditor General of Canada and the House of Commons Standing Committee on Public Accounts.

On 27 September 2019, the Canadian Armed Forces launched JAIMS, an innovative case management system that enables the Canadian Armed Forces to leverage technology, data, and analytics to improve and enhance the military justice system. JAIMS is a web-based case management system that electronically tracks discipline files from the time a complaint is received to the time a file is closed, including the carrying-out of the sentence. JAIMS will serve to improve the speed and efficiency through which military justice cases are processed, thereby bolstering the efficiency and overall legitimacy of the military justice system. JAIMS was rolled out to select units in Petawawa during this reporting period. While JAIMS can currently support many routine cases, further testing and development continue to ensure that all system requirements are functional and delivered, and that all types of military justice cases can progress through JAIMS. Although the Canadian Armed Forces’ response to the COVID-19 pandemic under Operation LASER has temporarily delayed the development and rollout of JAIMS, work on JAIMS will continue in the coming reporting periods, with the system being rolled out gradually, methodically, and responsibly across the Canadian Armed Forces.

Furthermore, in order to improve upon the Office of the JAG’s capability for evidence-based decision making and to better track the progress of military justice files while minimizing delays, the Office of the JAG has concurrently launched two additional initiatives which will be fully integrated into JAIMS – the Military Justice System Performance Monitoring Framework and Military Justice Time Standards. During this reporting period, the Office of the JAG completed and approved the metrics for the Military Justice System Performance Monitoring Framework. This system will deliver measureable data on the performance of the military justice system, that identifies emerging challenges (including delays) while informing measures to address them. Additionally, Military Justice Time Standards were also developed for every phase of the military justice process during this reporting period. These time standards ensure that actors throughout every stage of the military justice system are aware of, and aim to comply with, efficiency-driven time standards. In addition to integrating them into JAIMS, the Military Justice Time Standards have also been communicated to all Canadian Armed Forces members by way of a Canadian Forces General Message (CANFORGEN).

Finally, as part of the Office of the JAG’s ongoing effort to regularly monitor the military justice system, the Military Justice Stakeholder Engagement Project was launched during this reporting period. The Military Justice Stakeholder Engagement Project consists of an online survey designed to collect measurable qualitative data from a variety of actors involved in the summary trial process, including charge layers, accused persons, and assisting officers among others. During the reporting period, the Military Justice Stakeholder Engagement Project collected its first round of data and findings were presented in the "2018-2019 − Summary Trial Stakeholder Survey Results." The data from the Military Justice Stakeholder Engagement Project has been, and will continue to be, leveraged by the Office of the JAG in the ongoing effort to support sound, data-driven policy decision-making concerning the superintendence of the military justice system.Footnote 8

 

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Conclusion

 

As we move into a new decade, we face an increasingly complex and challenging operational environment. Nothing better demonstrates these growing complexities than our ongoing fight to contain the COVID-19 pandemic. The Office of the JAG, along with members of the Defence Team as well as Canadians from all walks of life, have been forced to adapt and respond to our collective civic duty to protect ourselves and each other by following the instructions of federal, provincial, local, and Canadian Armed Forces authorities. In these challenging times, I am filled with admiration for the dedication and enduring professionalism demonstrated by the military and civilian professionals of the Office of the JAG, who, in spite of the challenges, remain committed to the success of our mission and to delivering “Excellence Through Service” in support of the Government of Canada, the Department of National Defence, and the Canadian Armed Forces.

I am especially thankful to the exceptional leaders that make up the Senior Council team of the Office of the JAG for their exemplary dedication, energy, and guidance, particularly as we navigate our way through these unprecedented and extremely demanding circumstances. They are a formidable team and their individual and collective insights are invaluable.

Despite the challenges, we move into this new decade with purpose and readiness to respond to our clients’ needs while positioning ourselves for ongoing success. This is indeed a very meaningful time to serve as the superintendent of the administration of military justice in the Canadian Armed Forces. The collective accomplishments of the Office of the JAG during this reporting period have been plenty, and have directly contributed to the successful attainment of our mission. These accomplishments have helped define a "new era" for military justice, which is characterized by increased efficiency, fairness, effectiveness, and constitutional legitimacy. I am confident that this has increased confidence in the Canadian military justice system as well as enhanced its capability to support the operations of the Canadian Armed Forces both at home and abroad. The military justice system continues to serve an integral role in maintaining the discipline, efficiency, and morale of the Canadian Armed Forces while respecting the rule of law and meeting the expectations of Canadians.

 

Fiat Justitia

Geneviève Bernatchez, OMM, CD
Rear-Admiral

 

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