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, ^{Footnote 1}  the Judge Advocate General is appointed by the Governor in Council for a renewable term of up to four years and acts as legal advisor 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 their 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 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 2}  This is to ensure that 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.

During this reporting period, the Office of the JAG was comprised of five divisions and two directorates, all led by legal officers of the Colonel/Captain (N) rank, whose military members are drawn from both the Regular Force and the JAG Primary Reserve List. These are the Canadian Military Prosecution Service, Defence Counsel Services, the Chief of Staff and Corporate Services Division, the Military Justice Division, the Operational and International Law Division, the Administrative Law Division, and the Regional Services Division.

The Office of the JAG’s Strategic Direction “Excellence through Service” is dedicated to delivering client focused, timely, options-oriented and operationally-driven legal services in support of Government of Canada, Department of National Defence, and Canadian Armed Forces priorities and objectives.

The Judge Advocate General also has a Deputy Judge Advocate General-Strategic, a position that was created 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. During this reporting period, and with a view to obtaining direct and relevant experience with senior management within the Department of Justice, the Deputy Judge Advocate General Strategic was seconded to the Department of Justice as a Visiting Special Advisor/General Counsel within the Office of the Assistant Deputy Minister, Public Law and Legislative Services Sector.

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 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 and in certain Deputy Judge Advocate offices within Canada. 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, wing, and formation levels, 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 up to 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 their 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 independent 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 in another occupation and who are also barristers or advocates with standing at the bar of a province or territory. 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 for providing 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 section 165.17 of 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.

In its report on the Administration of Justice in the Canadian Armed Forces dated 20 May 2018, the Office of the Auditor General of Canada made nine recommendations designed to enhance the efficiency and effective oversight of the military justice system.^{Footnote 3}  In response to this report, and in order to assist the Director of Military Prosecutions in developing a highly competent team of prosecutors with experience and expertise in litigation, the Judge Advocate General issued direction to the Office of the JAG Chief of Staff during the 2018-2019 reporting period, requiring that all legal officers posted to the Canadian Military Prosecution Service remain in their positions for a minimum of five years, subject to the operational 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 their 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 2020-2021, 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 up to 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 their 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 independent inquiry committee.

In accordance with section 249.21 of the National Defence Act, the Director of Defence Counsel Services may be assisted in their 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 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, at no cost. 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 its report on the Administration of Justice in the Canadian Armed Forces dated 20 May 2018, the Office of the Auditor General made nine recommendations designed to enhance the efficiency and effective oversight of the military justice system. In response to this report, and in order to assist the Director of Defence Counsel Services in developing a highly competent team of defence counsel with experience and expertise in litigation, the Judge Advocate General issued direction to the Office of the JAG Chief of Staff during the 2018-2019 reporting period, requiring that all legal officers posted to Defence Counsel Services remain in their positions for a minimum of five years, subject to the operational 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 Director of Defence Counsel Services Annual Report 2020-2021 is attached as Annex D to this report.

Chief of Staff and Corporate Services Division

Composed of both civilian and military staff, the Chief of Staff and Corporate Services Division is responsible for providing staff and corporate services and support across a range of functions, including military personnel and civilian human resources management, business planning, comptroller and financial management services, information management and technology,  military and civilian training, organization and establishment, and administrative support services. 

The Division is further responsible for addressing external corporate requirements, and is the Office of the JAG lead on a number of key departmental and governance processes within the Department of National Defence and Canadian Armed Forces including the Business Plan, the Departmental Plan, the Departmental Results Framework, the Departmental Results Report, the Defence Team Establishment Plan, as well as the development, submission and implementation of Office of the JAG action plans for various programs such as Official Languages, Employment Equity Diversity and Inclusion, and the Public Service Employment Survey. The Division also provides support to the Chief of Staff in their capacity as Legal Branch Advisor, working with Military Personnel Command staff in the recruiting, training, career management and professional development of Canadian Armed Forces legal officers. 

The Legal Branch Advisor continues to sponsor a multi-year military employment structure study of the legal officer occupation. The study, which is led by a legal officer posted to the Director Personnel Generation Requirements, analyzes all legal officer work requirements including jobs, positions, occupation structures, and employment qualifications. Among other issues, the study is analyzing the possible specialization of military justice litigators along with other changes to legal officer employment that have the potential to enhance the independence of key actors in the military justice system. It is anticipated that the study will be completed during the next reporting period.

Finally, the Division serves as the locus of Office of the JAG efforts to work with the broader Defence Team to align personnel and financial resources to achieve Department of National Defence, Canadian Armed Forces and Judge Avocate General priorities. During this reporting period, these efforts included ad hoc requests for “total force” growth to Regular Force, Reserve Force, and civilian components of the Office of the JAG establishment and the preliminary analysis of options to reorient and reorganize the Office to enable the timely analysis and implementation of the forthcoming recommendations of independent reviews impacting the military justice system.

Military Justice Division

The Military Justice Division assists the Judge Advocate General in superintending the administration of military justice and ensuring its responsible evolution. In this reporting period, it was organized into four directorates: Military Justice Policy, Military Justice Operations, Canadian Forces Provost Marshal Legal Services, and the Judge Advocate General Independent Review Support Team.

The Military Justice Division 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 regulations related to the military justice system. These initiatives arise when amendments to the National Defence Act are sought and also when other government departments pursue legislative proposals that would have implications for the military justice system. The Directorate of Law/Military Justice Operations is responsible for providing 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 as well as the management of the Superintendence Enhancement and Assessment Project. Finally, the Directorate of Canadian Forces Provost Marshal Legal Services is responsible for providing 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.

Pursuant to section 273.601 of the National Defence Act, the Minister of National Defence must cause an independent review of specific provisions of the Act and their operation, and table a report of the review before Parliament. On 4 November 2020, the Honourable Morris J. Fish, former Justice of the Supreme Court of Canada, was appointed by the Minister of National Defence to conduct the Third Independent Review of the National Defence Act. The Military Justice Division instituted and designed the Judge Advocate General Independent Review Support Team to support the departmental independent review secretariat. The Judge Advocate General Independent Review Support Team was responsible for assisting Departmental efforts to support the Independent Review Authority. This support included providing briefings to the Independent Review Authority, developing position papers, and providing liaison with interested organizations and stakeholders. The Third Independent Review of the National Defence Act is discussed in detail below, in Chapter 3.

Operational and International Law Division

The Operational and International Law Division is responsible for the provision of military legal services 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 on all aspects of military law, including the military justice system. 

The Operational and International Law Division is made up of seven directorates: the Strategic Joint Staff Legal Advisor, the Directorate of Law - International, the Canadian Joint Operations Command Legal Advisor, the Canadian Special Operations Forces Command Legal Advisor, the Legal Advisor to the Canadian Component at the North American Aerospace Defense Command, the Directorate of Law - Intelligence and Information Operations, and the Directorate of Law – Cyber Operations. In addition, 13 legal officers were deployed in direct support of four overseas operations during this reporting period: Operation REASSURANCE, Operation ARTEMIS, Operation IMPACT, as well as to the NATO Mission in Iraq. Deployed legal officers provide close support to task force commanders and staff to help ensure that missions are conducted in accordance with applicable law. 

The Strategic Joint Staff Legal Advisor 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 the international legal basis for the conduct of operations, and in areas such as the law of armed conflict, international human rights law, and international criminal law. As well, this Directorate is the principal liaison with 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 Advisor provides legal advice to the Commander of the Canadian Joint Operations Command on all military law 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 Advisor. The Canadian Special Operations Forces Command Legal Advisor provides legal advice in all aspects of military law related to the conduct of Canadian Special Operations Forces Command operations including its domestic and international counter-terrorism response and its mandated response to all domestic and international terrorist attacks, international crises, and associated threats.

The Legal Advisor to the Canadian component at the North American Aerospace Defence Command provides legal advice on national issues to the Deputy Commander of North American Aerospace Defence in their 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 advisor team for the North American Aerospace Defence Command. The Directorate of Law, Intelligence and Information Operations is the primary legal advisor 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. Key areas of legal advice include information sharing, open source intelligence, and counter-intelligence investigations. The Directorate of Law - Cyber Operations was stood up during this reporting period. This new directorate provides legal support at the strategic, operational, and tactical level on issues relating to the development and employment of cyber capabilities.

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 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 applicable law and policy.

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 from recruitment to release, including such topics as universality of service, human rights, and conduct deficiencies. 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 this 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 advisor assigned to provide legal support to the Office of the Chief of the Defence Staff.

Regional Services Division

Regional Services is the largest Division within the Office of the JAG, and delivers legal services principally to Canadian Armed Forces commanders across Canada and abroad. There are eight regions within Regional Services, each of which is led by an Assistant Judge Advocate General (AJAG). The AJAG offices are located in: Ottawa, Halifax, Montreal, Toronto, Winnipeg, Edmonton, Esquimalt, and Geilenkirchen (Germany). Additionally, there are several legal officers who hold the position of Deputy Judge Advocate (DJA) and work directly for their respective AJAGs. They are situated in satellite DJA offices located across Canada, typically in more remote areas.

The Regional Services Division is comprised of both Regular and Reserve Force legal officers, all of whom provide legal advice to both Regular and Reserve Force commands, formations, and units on various aspects of military law. One of those aspects is military justice, which captures pre-charge and pre-trial advice at the summary trial level, and at times, pre-trial advice at the court martial level. Legal officers within the Regional Services Division also assist Referral Authorities in their duties to outline public interest factors or lack of those factors when referring files to the Director of Military Prosecutions for potential trial by way of court martial. Additionally, legal officers may advise Presiding Officers during the course of a summary trial, and are responsible for providing advice on any requests for reviews of findings and/or sentences at the summary trial level. These legal officers function as an independent safeguard to ensure that the summary trial process is carried out in accordance with the law.

Another key aspect of the duties of the legal officers within the Regional Services Division is to provide training to Canadian Armed Forces commands, formations, and units. Examples of the variety of training topics include: 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 within the Regional Services Division have conducted 46 two-day Presiding Officer Certification Training sessions during this reporting period, six of which were delivered in French, with approximately 994 candidates completing the course. Regional Services also conducted 87 Unit Disciplinary Investigation courses in this reporting period.

Two other critical areas in which legal officers within the Regional Services Division provide legal advice is in the fields of administrative law and operational law. The Regional Services Division is the principal source of generating legal officers for Canadian Armed Forces exercises, training, and operational deployments in Canada and abroad. In this reporting period, legal officers from Regional Services provided support to domestic operations including Operation LASER and Operation VECTOR. Regional Services members also deployed internationally as part of Operation IMPACT, Operation REASSURANCE, Operation ARTEMIS, and the NATO Mission in Iraq.

Deputy Judge Advocate General/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's regular force capacity. Members on the Office of the JAG Primary Reserve List are located throughout Canada and principally support the Regional Services Division, the Canadian Military Prosecution Service, and 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 the Regional Services Division maintain personal readiness and may voluntarily deploy on domestic and international operations.

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 JAG. They include the Deputy Judge Advocate General Strategic, who is seconded within senior leadership at the Department of Justice, and legal officers serving with the Department of Justice at the Privy Council Office, Global Affairs Canada, the Canadian Forces Military Law Centre, and the Department of National Defence/Canadian 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 JAG 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.