Chapter Three — Military Justice: Jurisprudence, Legislative Developments, External Reviews, Policy Initiatives, and Other Developments

Introduction

This chapter highlights key developments that have occurred over the reporting period, which include important court martial and other court decisions, progress towards the implementation of Bill C-77, An Act to amend the National Defence Act and to make related and consequential amendments to other Acts^{Footnote 1}  (Bill C-77), the Third Independent Review, and the advancement of the Justice Administration and Information Management System. Individually and collectively, these developments further the necessary and ongoing evolution and improvement of the military justice system to enable it to do more to combat all types of misconduct and to strengthen its effectiveness in supporting the discipline, efficiency, and morale of the Canadian Armed Forces.

Jurisprudence

Court Martial – Decisions of Note

Judicial Independence – Section 11(d) of the Canadian Charter of Rights and Freedoms

Background

Military judges are appointed by the Governor in Council, after evaluation by the Military Judges Selection Committee and with the recommendation of the Minister of National Defence. To be eligible for selection as a military judge, an individual must be a Canadian Armed Forces officer with at least ten years’ experience, and have at least 10 years’ standing as a lawyer at the bar of a province. As a result of their status as Regular Force officers, military judges are subject to the Code of Service Discipline.^{Footnote 2}

In the previous reporting period, accused persons in two cases raised challenges at court martial with respect to the independence and impartiality of the military judiciary. ^{Footnote 3} In both cases, the applicants argued that a Chief of the Defence Staff Order dated 2 October 2019 (CDS Order),^{Footnote 4}  violated their right to a hearing before an independent and impartial tribunal protected under section 11(d) of the Canadian Charter of Rights and Freedoms (Charter).^{Footnote 5}

These applications alleged that the CDS Order violated the Charter because it subjected military judges to the disciplinary regime administered by the Canadian Armed Forces’ chain of command, and as a consequence, threatened the right of accused persons to be tried by an independent and impartial tribunal. In both cases, the presiding Military Judges ruled that the CDS Order violated the accused person’s rights protected under section 11(d) of the Charter and declared the relevant provisions of the Order to be of no force or effect. The Military Judges allowed both trials to proceed, reasoning that the declaration of invalidity alleviated the section 11(d) Charter concerns.

2020-21 Reporting Period

Similar applications were made by accused persons in 16 additional cases during this reporting period.^{Footnote 6}

In the cases of R v Edwards^{Footnote 7} , R v Crépeau,^{Footnote 8}  R v Fontaine,^{Footnote 9}  and R v Iredale,^{Footnote 10}  the presiding Military Judges con-cluded that the CDS Order violated section 11(d) of the Charter. The Military Judges also ruled that because the Chief of the Defence Staff had not rescinded that Order in light of the decisions rendered in the earlier cases, it was no longer an appropriate remedy to simply find the relevant provisions to be of no force and effect. As such, the Military Judge in each case stayed the proceedings. The Director of Military Prosecutions, on behalf of the Minister of National Defence, appealed the four decisions to the Court Martial Appeal Court of Canada. 

Following these decisions, on 15 September 2020, the Chief of the Defence Staff issued an order to temporarily suspend the CDS Order (Suspension Order)^{Footnote 11}  pending the result of the appeals of these decisions. Of note, the Suspension Order included a provision confirming that Canadian Forces Organization Order 3763, which was issued on 27 February 2008, and pertained to the Office of the Chief Military Judge,^{Footnote 12}  remained in effect. A Canadian Forces Organization Order is an order promulgated by the Chief of the Defence Staff to formalize the organization of a unit, formation or command of the Canadian Armed Forces. Paragraph 9 of Canadian Forces Organization Order 3763 provided that military personnel in the Office of the Chief Military Judge were considered to be on strength at National Defence Headquarters and were to be disciplined in accordance with the regime applicable to the Canadian Forces Support Unit (Ottawa).

Following this Suspension Order, court martial decisions on section 11(d) of the Charter began to diverge along three different streams.

In the first stream, which involved the case of R v MacPherson and Chauhan and J.L.,^{Footnote 13}  the accused members brought an application alleging that Canadian Forces Organization Order 3763 as well as the Suspension Order violated section 11(d) of the Charter. The Military Judge dismissed the application, rejecting the argument that the Office of the Chief Military Judge was not sufficiently independent. The Military Judge concluded that the Suspension Order satisfied section 11(d) of the Charter and the Military Judges Inquiry Committee^{Footnote 14}  served as a sufficient safeguard to alleviate concerns of impartiality.

The second stream included the cases of R v Christmas,^{Footnote 15}  R v Jacques,^{Footnote 16}  R v Pépin,^{Footnote 17}  and R v Brenton.^{Footnote 18}  In R v Christmas, the Military Judge declared paragraph 9 of Canadian Forces Organization Order 3763 to be of no force and effect and stayed the proceedings. He reasoned that Canadian Forces Organization Order 3763 subjected military judges to the same disciplinary regime as other officers, contrary to Parliament’s intention that the Military Judges Inquiry Committee should have the sole authority to deal with the conduct of military judges under the Code of Service Discipline.

Following this decision, the Chief of the Defence Staff reissued Canadian Forces Organization Order 3763 on 18 November 2020, with paragraph 9 removed.

In R v Jacques, R v Pépin, and R v Brenton, the Military Judge in each case concluded that the reissuance of Canadian Forces Organization Order 3763 with the impugned paragraph removed, and combined with the Suspension Order, cured any residual concerns regarding section 11(d) of the Charter when considered with the Military Judges Inquiry Committee as an independent mechanism to review Code of Service Discipline misconduct by military judges.

In the third stream, which involved the cases of R v Proulx,^{Footnote 19}  R v Cloutier,^{Footnote 20}  and R v Brown,^{Footnote 21}  the Military Judge found that the section 11(d) of the Charter violation persisted despite the issuance of the Suspension Order. In R v Proulx, the Military Judge held that the content and duration of the Suspension Order breached section 11(d) of the Charter as it failed to acknowledge the law set out in R v Pett that an officer holding the office of military judge cannot, while in office, be charged and dealt with under the disciplinary regime administered by members of the executive. As a result, the Military Judge directed a stay of proceedings.

In R v Cloutier, the Military Judge found that the amended Canadian Forces Organization Order 3763 failed to rectify the issues affecting the independence of the military judiciary. He reasoned that the Military Judge in R v Jacques erred as the section 11(d) of the Charter violation could only be cured by a clear and unequivocal statement by the Chief of the Defence Staff and the Director of Military Prosecutions recognizing the state of the law as set out in R v Pett, to the effect that military judges cannot be charged and dealt with under the Code of Service Discipline. In recognition of the fact that attempts had been made to respond to the military judiciary’s concerns, the Military Judge directed a termination of proceedings in lieu of a stay of proceedings. The effect of this decision was that an appeal of the decision could be initiated immediately and there remained a possibility for the charges to be reinstated in the future.

In R v Brown, prior to the hearing on the section 11(d) of the Charter application, the Military Judge issued a court order requiring that the Chief of the Defence Staff be informed that he could assuage the court’s concerns regarding section 11(d) of the Charter by acknowledging that the Chief of the Defence Staff, subordinate commanders, and commanding officers were bound by the law as set out by Military Judges in the previous section 11(d) of the Charter decisions. The Military Judge also ordered that the Director of Military Prosecutions be informed that he could satisfy the court’s concerns regarding section 11(d) of the Charter by providing a similar acknowledgement of the binding force of the previous section 11(d) of the Charter jurisprudence. The Military Judge ultimately concluded that the responses provided by the Acting Chief of the Defence Staff and the Director of Military Prosecutions were to the effect that they did not intend to provide the acknowledgment requested. The Military Judge ruled that the accused person’s right under section 11(d) of the Charter was violated by the obligation imposed on him to appear before a court martial, and that the court must impose a stay of proceedings.

Appeals to the Court Martial Appeal Court of Canada

The Director of Military Prosecutions, on behalf of the Minister of National Defence, appealed the decisions in R v Edwards, R v Crépeau, R v Fontaine, R v Iredale, R v Proulx and R v Cloutier, to the Court Martial Appeal Court of Canada.

The appeals in R v Edwards, R v Crépeau, R v Fontaine, and R v Iredale were heard online on 29 January 2021. These appeals focused on whether the Military Judges erred in finding that the CDS Order violated section 11(d) of the Charter and in ordering stays of proceedings.

The appeals in R v Proulx and R v Cloutier were heard online on 11 March 2021. These appeals focused on whether the Military Judge erred in finding that the respondents’ rights under section 11(d) of the Charter were infringed and in directing that the proceedings be stayed in R v Proulx and terminated in R v Cloutier.

On behalf of the accused persons in R v Crépeau, R v Proulx and R v Cloutier, the Director of Defence Counsel Services filed cross appeals on the basis that the Military Judge in each case erred by failing to make a declaration of invalidity in relation to sections 12, 17, 18 and 60 of the National Defence Act, which pertain to the application of the Code of Service Discipline, the appointment and authority of the Chief of the Defence Staff, and the power of the Governor in Council to make regulations relating to the organization of the Canadian Armed Forces. Defence counsel argued that these sections of the National Defence Act allow military judges to be tried under the Code of Service Discipline and provide the military hierarchy with the tools necessary to exert undue pressure on the military judiciary.

Each of these appeals were heard by the same panel of Court Martial Appeal Court of Canada judges. The Court reserved its decisions, and indicated its intention to render a decision first on the R v Edwards, R v Crépeau, R v Fontaine, and R v Iredale appeals. The Court further acknowledged the anticipated impact the decision in the first appeal would have on the military justice system. While neither decision was rendered during the reporting period, the Court Martial Appeal Court of Canada did render its decision on the R v Edwards, R v Crépeau, R v Fontaine, and R v Iredale appeals on 11 June 2021.^{Footnote 22}  The decision in the R v Proulx and R v Cloutier appeals was rendered on 17 June 2021.^{Footnote 23} 

The details of these appeals will be examined in detail in the 2021-2022 Annual Report, but it should be noted that in its 11 June 2021 decision, the Court Martial Appeal Court of Canada allowed the prosecution’s appeals in R v Edwards, R v Crépeau, R v Fontaine, and R v Iredale, vacated the stays of proceedings ordered in each case, dismissed the defence cross-appeal in R v Crépeau, and directed new trials in each case. The Court found that military judges meet the minimum requirements of judicial independence, that military judges can be charged under the Code of Service Discipline, and that the CDS Order does not violate section 11(d) of the Charter. Similarly, in its 17 June 2021 decision, the Court Martial Appeal Court of Canada allowed the prosecution’s appeals in R v Proulx and R v Cloutier, dismissed the cross-appeals, and ordered new trials for substantially the same reasons.

Court Martial Appeal Court of Canada

Extraterritorial applicability of the Canadian Charter of Rights and Freedoms

R v McGregor, 2020 CMAC 8

Corporal McGregor was stationed in Washington, D.C. and resided in Alexandria, Virginia, when he became the subject of a criminal investigation by the Canadian Forces National Investigation Service after another Canadian Armed Forces member discovered an audio recording device in his residence. The Canadian Forces National Investigation Service sought assistance from the Alexandria Police Force to execute a search warrant for Corporal McGregor’s residence and seize any electronic devices found therein.

The Canadian Forces National Investigation Service investigators were unable to obtain a search warrant under Canadian law as, pursuant to article 106.05 of the Queen’s Regulations and Orders for the Canadian Forces,^{Footnote 24}  a commanding officer only has the authority to issue a warrant in relation to property under the control of the Canadian Armed Forces. The Alexandria Police Force agreed to assist but advised that they were unable to apply for a search warrant due to Corporal McGregor’s status as a diplomatic agent throughout his posting abroad, which afforded him immunity of his person, property and residence pursuant to article 31(1) of the Vienna Convention on Diplomatic Relations.^{Footnote 25}

As a result, the Canadian Embassy in Washington waived Corporal McGregor’s diplomatic immunity with respect to his residence, pursuant to article 30 of the Vienna Convention of Diplomatic Relations. This waiver enabled the Alexandria Police Force to obtain a search warrant, issued by a magistrate of the State of Virginia Court. The Canadian Forces National Investigation Service conducted the search alongside the Alexandria Police Force and seized electronic devices found within Corporal McGregor’s residence.

Corporal McGregor was subsequently arrested and charged with seven offences, five of which were under the Criminal Code,^{Footnote 26}  and charged pursuant to section 130 of the National Defence Act for voyeurism (two counts), possession of a device for surreptitious interception of private communication (two counts), and sexual assault (one count). The remaining two charges were for disgraceful conduct contrary to section 93 of the National Defence Act and, in the alternative, for conduct to the prejudice of good order and discipline contrary to section 129 of the National Defence Act.

At court martial, Corporal McGregor brought a motion pursuant to section 24(2) of the Charter to exclude the evidence obtained from the search on the basis of a violation of his right under section 8 of the Charter to be free from unreasonable search and seizure. The Military Judge dismissed the motion and held that the Charter, as Canadian law, did not apply extraterritorially.^{Footnote 27}  Corporal McGregor was found guilty of two counts of voyeurism, one count of possession of a device for surreptitious interception of private communication and one count of sexual assault, contrary to the Criminal Code and pursuant to section 130 of the National Defence Act as well as one count of disgraceful conduct contrary to section 93 of the National Defence Act.^{Footnote 28}  He appealed the decision to the Court Martial Appeal Court of Canada.  

The Court Martial Appeal Court of Canada conducted an analysis into whether the test for the admissibility of evidence obtained on foreign soil by foreign authorities had been met in order to determine if the admission of that evidence in a Canadian trial violated the appellant’s right to a fair trial under sections 7 and 11(d) of the Charter.^{Footnote 29}

In conducting this analysis, the Court first considered the applicability of the Charter based on the facts of the case. The Court referred to R v Hape^{Footnote 30}  to assert that the principles of sovereignty and non-intervention precluded the applicability of the Charter to investigations on foreign soil, except where the host nation consents or where rules of international law allow for the exercise of enforcement jurisdiction in a foreign state. The Court held that while under the North Atlantic Treaty Organization Status of Forces Agreement,^{Footnote 31}  Canada retained primary criminal jurisdiction to prosecute Corporal McGregor, this did not amount to a waiver of American territorial sovereignty with respect to real property in the United States of America.

The Court then considered whether any Charter breaches arose from the conduct of the search and if so, whether those breaches warranted exclusion of the evidence.

In unanimously dismissing the appeal, the Court Martial Appeal Court of Canada held that the test for admissibility favoured the inclusion of evidence as the conduct of the investigation would have complied with the Charter had it been wholly conducted in Canada. The Court also concluded that the search and seizure were executed in a reasonable manner and in accordance with the authorization obtained by the Virginia State magistrate. 

Corporal McGregor filed a notice of application for leave to appeal to the Supreme Court of Canada on 25 January 2021. The Supreme Court’s decision on the application was not rendered before the end of the reporting period, but it should be noted that in a decision issued on 14 October 2021, leave to appeal to the Supreme Court of Canada was granted.^{Footnote 32}

Determination of a moot matter 

R v Champion, 2021 CMAC 1

On 13 November 2020, Sailor Third Class Champion was arrested for drunkenness and released with conditions by a custody review officer. He was arrested again on 17 November 2020 for drunkenness and for breaching his conditions. He was released on conditions by a Military Judge following a custody review hearing. At the time of his release, Sailor Third Class Champion had not yet been charged with an offence.

Shortly after his release, Sailor Third Class Champion filed a notice of motion to the Court Martial Appeal Court of Canada, seeking that his release conditions be cancelled and that he be released without conditions. Sailor Third Class Champion relied on the Court’s decision in R v Larocque^{Footnote 33}  in support of his position that Canadian Armed Forces members are to be released without conditions if charges have not been laid by the time the member appears before a military judge at a custody review hearing.

Although Sailor Third Class Champion was eventually charged with one count of absence without leave, contrary to section 90 of the National Defence Act, and one count of drunkenness, contrary to section 97 of the National Defence Act, his commanding officer ultimately decided not to proceed with either charge. Despite the subject matter of the motion being moot, Sailor Third Class Champion requested that the motion still be heard. After receiving written submissions from the parties, the Court first had to decide whether it should hear the matter despite its mootness.

The Court Martial Appeal Court of Canada rendered its decision on the motion to proceed despite mootness on 19 February 2021.^{Footnote 34}  In its decision the Court referred to the five non-exhaustive factors laid out by the Supreme Court of Canada in R v. Smith^{Footnote 35}  and R v Paulin^{Footnote 36}  to assess whether a moot matter should nevertheless be considered by the Court. Prior to reaching a determination, the Court also reviewed its earlier decision in R v Larocque and acknowledged that it had created confusion among commanding officers, prosecutors and even military judges as to whether charges must be laid before a custody review hearing. The Court considered that the issue raised by the applicant constituted “special circumstances” and that the military justice system would benefit from clarity on the correct procedure to follow in these instances. The Court Martial Appeal Court of Canada therefore ordered that the motion be set down for a hearing despite its mootness.

The motion was heard outside the reporting period on 7 May 2021, and the Court subsequently rendered its decision on 29 September 2021. This decision will be reported in greater detail in the 2021-2022 Annual Report, but it should be noted that the Court dismissed the motion and found that, based on the legislative scheme that allows for the imposition of release conditions when no charge has been laid, the manner by which the conditions were imposed in this case met the applicable constitutional norms.^{Footnote 37} 

Federal Court

Recusal of a Military Judge

Thibault v Canada (Director of Military Prosecutions), 2020 FC 1154

On 18 February 2020, Sergeant Thibault was found guilty at court martial of one count of sexual assault contrary to section 271 of the Criminal Code, pursuant to section 130 of the National Defence Act.^{Footnote 38}  Prior to his sentencing, however, decisions were rendered in a series of courts martial^{Footnote 39}  in which a CDS Order dated 2 October 2019 was found to have violated the right of the accused members to a hearing before an independent and impartial tribunal protected under section 11(d) of the Charter.^{Footnote 40} 

In light of these decisions, Sergeant Thibault filed a motion for a mistrial before the presiding Military Judge on 8 July 2020,^{Footnote 41}  on the basis that he had been found guilty by a tribunal which was not independent and impartial, contrary to section 11(d) of the Charter. On 7 October 2020, Sergeant Thibault filed a subsequent motion seeking a preliminary hearing for the mistrial motion for the purpose of seeking recusal of the Military Judge from hearing his motion for a mistrial. The motion for recusal was formally filed on 1 December 2020, and it alleged a reasonable apprehension of bias on the part of the Military Judge based on the following factors: her previous role as legal advisor within the Office of the Chief of Defence Staff; her comments made during a conference call regarding the motion for a mistrial wherein she indicated her intention to recuse herself, and her decision to recuse herself in another case involving a similar application alleging a section 11(d) of the Charter violation.

Concurrent with these motions, Sergeant Thibault filed an application with the Federal Court on 30 October 2020, seeking a writ of prohibition under sections 18 and 18.1 of the Federal Courts Act^{Footnote 42}  for the purpose of preventing the Military Judge from hearing the mistrial motion. Also, on 13 November 2020, Sergeant Thibault filed a motion for an interim writ of prohibition under section 18.2 of the Federal Courts Act in order to prevent the Military Judge from hearing the recusal motion on the basis of an appearance of bias on the part of the Military Judge and supported this motion using the same arguments as those relied on for the recusal motion.

The Federal Court issued its decision on the motion for an interim writ of prohibition on 14 December 2020,^{Footnote 43}  and found that the applicant’s assertion that there was a reasonable apprehension of bias was based on mere speculation. The Court indicated that the evidence presented neither met the threshold for flagrant bias, which was the test to be met in order to prevent the Military Judge from hearing the motion for recusal, nor was sufficient for the Military Judge to be unable to consider the matter with an open mind. The Federal Court also highlighted that the Military Judge had already demonstrated her capacity to consider the matter with an open mind as she had recently heard a motion for recusal in another case and determined that she was indeed required to recuse herself.

Additionally in its consideration of the matter, the Federal Court reviewed the three-prong test in RJR MacDonald Inc v Canada (Attorney General),^{Footnote 44}  which outlines the criteria for granting an interim relief order and concluded that the requirements for obtaining interim relief had not been satisfied. According to the Court, Sgt Thibault failed to demonstrate that he would suffer irreparable harm if the relief was not granted and that the balance of convenience leaned in his favour. The Court dismissed the application and stressed that the motion was premature as the Military Judge had not yet had the opportunity to render a decision on the motion for recusal. 

On 21 December 2020, the Military Judge heard the recusal motion and a mistrial motion at the same time and rendered her decision on 27 January 2021.^{Footnote 46}  The Military Judge found that Sergeant Thibault’s claim that he was not tried before an independent and impartial tribunal to be baseless and speculative. In dismissing the motion for a mistrial, the Military Judge held that her previous position as a legal advisor in the Chief of the Defence Staff Office did not create a reasonable apprehension of bias and stressed that her comments made during the pre-trial conference were simply an expression of intent and not a judicial decision. She further noted that, in accordance with R v Quinn,^{Footnote 47}  neither her communication of such an intent nor her recusal in another case were sufficient to raise bias concerns, and that such claims must be analysed on a case by case basis, so her recusal in another case was not binding.

On 5 February 2021, Sergeant Thibault abandoned his application for a writ of prohibition.

Legislative Developments

Bill C-77

Once fully implemented, the amendments to the National Defence Act that were introduced in Bill C-77 will strengthen the military justice system and further align it with the civilian criminal justice system while respecting the unique requirements of the Canadian Armed Forces. Most significantly, those amendments will establish the Declaration of Victims Rights as part of the Code of Service Discipline and provide the victims of service offences with specific rights within the military justice system. The amendments will also transform the summary trial process into a non-penal, non-criminal summary hearing process designed to address minor breaches of military discipline at the unit level, and give to courts martial the sole jurisdiction over service offences. 

During this reporting period, the substantial work required to implement the remaining provisions of Bill C-77 continued and was focused on three principal activities: conducting meaningful consultations with key stakeholders including victim and survivor advocacy groups; enabling consultation with individual victims and survivors of service offences; and developing the specific regulations required to support implementation of the remaining provisions. Details of this work is provided below.

Victims and Survivors of Service Offences Web Page

In order to consolidate the key policies related to military justice in one place, relevant Department of National Defence and Canadian Armed Forces stakeholders were consulted to develop the Victims and Survivors of Service Offences web page, which became operational in March 2021.^{Footnote 48}  The web page was developed to provide a one-stop source for information relevant to victims and survivors, which included details on the military justice system, a listing of services and programs available to victims and survivors of service offences, as well as information about investigations and court martial proceedings. Victims and survivors of service offences can also use the web page to learn about victim impact statements, restitution orders, and issues such as privacy and identity protection. The web page also contains a link to a comprehensive list of services and programs available outside the Department of National Defence and the Canadian Armed Forces.

While the web page went live in March 2021, its official launch occurred in May 2021. This important resource will remain in place and will continue to be updated throughout the next reporting period in order to maintain information necessary for victims and survivors, even after the remaining provisions of Bill C-77 have come into force.

The Declaration of Victims Rights Survey and Feedback Page

The Office of the JAG moved forward with developing the Declaration of Victims Rights Survey. The online survey was created to gather information from Canadian Armed Forces members and Department of National Defence employees (particularly the victims and survivors of service offences) in order to receive important input from survey participants to inform and facilitate the development of the regulations and policies relevant to the Declaration of Victims Rights.^{Footnote 49}  At the same time, a feedback page was developed for inclusion on the Victims and Survivors of Service Offences web page to give the Canadian public the opportunity to provide input on the implementation of the Declaration of Victim Rights.

The Survey and that feedback page were launched on 13 and 14 May 2021, respectively. Details pertaining to both as well as the survey results will be included in the 2021 - 2022 Annual Report.^{Footnote 50}  On a related note, a second Survey aimed at providing former Canadian Armed Forces members the opportunity to give input on the implementation of the Declaration of Victims Rights was launched on 19 July 2021, in collaboration with Veterans Affairs Canada. This Survey and its results will also be examined in the 2021-2022 Annual Report. 

Other Important Consultations

A number of other critical consultations took place during the reporting period. In total, consultations occurred with more than 16 external organizations, which included the Sexual Misconduct Response Centre, the Office of the Federal Ombudsman for Victims of Crime, the Policy Center of Victims Issues at the Department of Justice, the Public Prosecution Service of Canada, the Royal Canadian Mounted Police, the Correctional Service of Canada and the Parole Board of Canada. Furthermore, the following four victims' advocacy groups have been consulted including “It’s Not Just 700”, the Canadian Resource Centre for Victims of Crime, the Ontario Office for Victims of Crime, and the Association québécoise Plaidoyer-Victimes. Additionally, the Canadian Armed Forces chain of command was consulted regarding key aspects of the summary hearing system. The information garnered from these various consultations was of vital importance providing invaluable insight that greatly enabled the ongoing policy and regulatory development efforts.

The C-77 Canadian Armed Forces Secretariat

In January 2021, the Vice Chief of the Defence Staff took on the role of the Canadian Armed Forces representative responsible for providing the strategic policy orientations required to ensure the regulations developed in support of Bill C-77 implementation would meet the needs of the Canadian Armed Forces. To support the Vice Chief of the Defence Staff in discharging this essential responsibility, the decision was made to establish a Secretariat that would coordinate consultations with and inputs received from representatives across the Canadian Armed Forces in order to develop the necessary strategic framework and policy orientations. To this end, an Initiating Directive that provided for the launch of the Canadian Armed Forces Bill C-77 Secretariat (C-77 Secretariat) was issued on 23 March 2021, and on 20 April 2021, the C-77 Secretariat was launched. The work of the Secretariat and its important contribution to the regulatory and policy development process will be detailed in the 2020-2021 Annual Report. 

The Regulatory Drafting Effort

The Office of the JAG has worked closely with the Department of Justice to develop the regulatory scheme required to bring the remaining provisions of Bill C-77 into force. To this end, the Queen’s Regulations and Orders for the Canadian Forces Drafting Section within the Department of Justice provided the Office of the JAG with specialized advice related to the choice of legislative instruments, the enabling authorities, and the legal risks associated with the proposed regulatory scheme, and at the request of the Office of the JAG, began the process of drafting the necessary supporting regulatory amendments and Governor in Council orders. At the end of the reporting period the drafting of the required regulations was well underway.

The Third Independent Review of the National Defence Act

The National Defence Act requires that the Minister of National Defence cause an independent review of specified provisions of the National Defence Act be conducted, and that the report of the independent review be tabled in Parliament within specified timelines.^{Footnote 51}  The relevant timelines are provided in section 273.601 of the National Defence Act and are defined in relation to particular events, which trigger a seven year clock. The report must be tabled by the expiration of the seven years, unless a subsequent triggering event re-sets the clock. Triggering events include the coming into force of the governing section, the tabling of a previous report, and amendments to the National Defence Act if based on an independent review.

The Supreme Court of Canada has recognized the importance of conducting periodic independent reviews as mandated by section 273.601 of the National Defence Act for ensuring that the reviewed provisions, including those that underpin the military justice system, are rigorously scrutinized, analyzed, and refined at regular intervals to enable the continuing evolution of the military justice system.^{Footnote 52}  These regular examinations help to ensure that the military justice system continues to serve as a full partner alongside the Canadian criminal justice system, and that it continues to effectively support the maintenance of discipline, efficiency and morale in the Canadian Armed Forces while reflecting their evolving cultural attitudes along with the values and norms of Canadian society. 

On 5 November 2020, the Minister of National Defence appointed the Honourable Morris J. Fish, former Justice of the Supreme Court of Canada, as the Third Independent Review Authority to review specified provisions of the National Defence Act and their operation.^{Footnote 53}  These specified provisions comprise approximately 60% of the National Defence Act and include the Code of Service Discipline, the Canadian Forces grievance process, the Canadian Forces Provost Marshal, and military policing and oversight.

The Ministerial Direction enabled the Third Independent Review Authority to enjoy full discretion to sit at such times and at such places in Canada, and to adopt the methods and procedures that the Independent Review Authority deemed appropriate in the discharge of his mandate. To enable access to all the information needed to effect the review, the Minister of National Defence granted the Third Independent Review Authority, subject to the requirements and limitations of applicable laws and regulations, complete access to:

1. the employees of the Department of National Defence;
2. the officers and non-commissioned members of the Canadian Armed Forces;
3. the members and staff of the Military Grievances External Review Committee;
4. the members and staff of the Military Police Complaints Commission;
5. the Ombudsman for the Department of National Defence and the Canadian Armed Forces and staff; and
6. any information held by the Department of National Defence and the Canadian Armed Forces relevant to the review.

To provide the necessary legal support and assistance to the Minister of National Defence, the Department of National Defence and the Canadian Armed Forces, the Judge Advocate General established the JAG Independent Review Support Team during the previous reporting period to enable the successful fulfillment of the statutory requirement for the Third Independent Review. This dedicated team continued its work during the current reporting period, which spanned from conception and planning to support during the conduct of the review itself.

In December 2019, the JAG Independent Review Support Team temporarily assumed a secretariat function and conducted initial project planning and engaged the Department of National Defence and the Canadian Armed Forces to coordinate the Independent Review until the Independent Review Secretariat was formally established. The JAG Independent Review Support Team directly supported the Department of National Defence and Canadian Armed Forces Independent Review Secretariat during both the contracting process and the conduct of the review. The Independent Review Secretariat served a liaison function between organizations within the Department of National Defence, the Canadian Armed Forces and external partners, assisted with managing the contract, scheduled meetings, and tracked the Independent Review Authority’s requests for information.

To assist the Independent Review Authority and his team in their preparations for conducting their review, the Office of the JAG and the JAG Independent Review Support Team prepared extensive reference materials and provided the Independent Review Authority with approximately 15 hours of familiarization briefings on the military justice system and other subjects relevant to the review mandate. Furthermore, over the course of the review itself, the Office of the JAG and the JAG Independent Review Support Team responded to approximately 50 requests for information from the Independent Review Authority on a range of complex subjects that involved significant qualitative and quantitative research and analysis, including historical research spanning a 25-year period.

In pursuing his mandate, the Third Independent Review Authority and his team adopted a methodology which included receiving educational briefings, interviewing officials from the Department of National Defence and the Canadian Armed Forces, conducting interviews with external commentators and foreign experts, receiving written submissions from actors and organizations across the Canadian Armed Forces, and holding 16 online town hall meetings with members of the Canadian Armed Forces.

The Report of the Third Independent Review Authority was tabled in Parliament on 1 June 2021,^{Footnote 54}  after the close of the reporting period, and while the report will be examined in detail in the 2021-2022 Annual Report, it is important to note that in the report, the Independent Review Authority made 107 wide-ranging recommendations to the Minister of National Defence with the majority of which pertaining to the military justice system. The Minister of National Defence has accepted all of the recommendations in principle, and the significant work involved with implementing the recommendations has already begun. A whole-of-government approach will be required to implement the recommendations. 

The Judge Advocate General has welcomed the Report of the Third Independent Review Authority. The Independent Review Authority has made recommendations that will provoke profound and critical changes for the military justice system and has provided an important opportunity to further the evolution of the military justice system, bring it into a new era of modernization, and enable it to fully support culture change within the Canadian Armed Forces.

Policy Initiatives

Support to Victims and Survivors of Service Offences

Aligned with its commitment to support culture change and the elimination of sexual misconduct in the Canadian Armed Forces and to ensure that victims and survivors of service offences are appropriately recognized and supported, the Office of the JAG was engaged with a number of related initiatives over the reporting period. 

One such initiative was the Defence Administrative Order and Directive 9005‑1 - Sexual Misconduct Response,^{Footnote 55}  which was issued on 18 November 2020, to enhance the response of the Canadian Armed Forces to sexual misconduct by defining and prohibiting sexual misconduct, clarifying reporting obligations, and providing a comprehensive Victim Support section. During the reporting period, the Office of the JAG contributed to the development of this Directive through the provision of direct legal support to the multiple stakeholders engaged in the development, drafting, and approval processes.

Over the reporting period, the Office of the JAG also continued the work to implement the remaining amendments to the National Defence Act introduced in Bill C-77, which includes the establishment of the Declaration of Victims Rights. In particular, the Office of the JAG moved forward on a number of initiatives to advance the regulatory amendments required to support implementation of the remaining Bill C-77 provisions and to ensure that victims and survivors of service offences as well as the organizations that support and represent them were able to provide input during the regulatory development process. In total, 16 external organizations, the majority of which provide advocacy and other support services for victims and survivors of crime, were consulted and provided input relevant to the policies and regulations being developed to support implementation of the Declaration of Victims Rights.

Additionally, the Office of the JAG developed in partnership with the Director General Military Personnel Research and Analysis two online surveys to enable consultation with individual victims and survivors of service offences for the purpose of receiving important input that would be used to inform the development of regulations and policies relevant to the Declaration of Victims Rights. These surveys were created to gather information directly from current and former members of the Canadian Armed Forces and Department of National Defence employees and were launched after the close of the current reporting period.

A further initiative undertaken during the reporting period was the launch of the Victims and Survivors of Service Offences web page, which was developed to provide a one-stop source for information relevant to victims and survivors. The web page went live in March 2021.^{Footnote 56}  An important feature of the web page is a feedback tool which provides an avenue for victims and survivors of service offences as well as other interested persons to provide input on the implementation of the Declaration of Victim Rights.

Additional details relating to the initiatives undertaken to support the implementation of Bill C-77 and the Declaration of Victims Rights can be found in the Legislative Development section of this chapter.

Other Developments

The Military Justice Stakeholders’ Forum

The Military Justice Stakeholders’ Forum provides an opportunity for the key stakeholders in the military justice system to assemble on a regular basis and engage in a sustained exchange of knowledge, expertise and best practices in relation to subjects of common interest while respecting the professional obligations and independence of the participants. The regular membership of the Forum includes the Judge Advocate General, the Chief Justice of the Court Martial Appeal Court of Canada, the Chief Military Judge, the Canadian Forces Provost Marshal, the Director of Defence Counsel Services, the Director of Military Prosecutions, and the Deputy Judge Advocate General (Military Justice).

Owing to the COVID-19 pandemic, the Forum’s regular rhythm of meeting was interrupted during the reporting period with the Forum being convened once for an online meeting on 28 May 2020.  In attendance at this meeting were the Judge Advocate General, the Chief Justice of the Court Martial Appeal Court of Canada, the Acting Chief Military Judge, the Canadian Forces Provost Marshal, the Deputy Judge Advocate General (Military Justice), the Director of Military Prosecutions, the Director of Defence Counsel Services, the Court Martial Administrator, the Legal Counsel to the Office of the Chief Military Judge, and the Executive Director and General Counsel to the Federal Court of Appeal and Court Martial Appeal Court of Canada. This meeting was the fifth since the Forum’s inception, and the discussion centred on the challenges that the COVID-19 pandemic presented for the administration of military justice.

The Justice Administration and Information Management System

The Justice Administration and Information Management System is an electronic case management tool for the military justice system. With the support of the Office of the JAG, it is being designed by the Assistant Deputy Minister (Information Management) to seamlessly and electronically track military justice files from the reporting of an alleged offence, through to investigation, charge laying, trial disposition and review in both the summary trial and court martial processes. Development of the Justice Administration and Information Management System^{Footnote 57}  is a key initiative within the Superintendence Enhancement and Assessment Project,^{Footnote 58}  which was established to enable the gathering of objective and measurable data to facilitate the assessment of the administration of the Code of Service Discipline at the unit level and the enhancement of the military justice system. 

While the COVID-19 pandemic and the resulting health protection measures caused development to be halted during the early months of the reporting period, development resumed in June and led to the achievement of improved functionality, a more stable system platform, and a simplified user interface. In November 2020, a system update was delivered to existing Justice Administration and Information Management System users that improved functionality and introduced the ability to support all service offences and military justice cases at every stage in the process beginning with the investigation of an alleged offence through to post-trial administration and the summary trial review process. Additionally, the Military Justice Time Standards,^{Footnote 59}  which set out the time standards applicable to every phase of the military justice process were also fully incorporated into the system at this time to facilitate their tracking and application. With this upgrade, the Justice Administration and Information Management System is enabled to require that decision makers  provide a justification when the established time standards are not met, which will assist in identifying and resolving the causes of delay in the military justice system. 

With the further upgrades introduced in March 2021, the security of personal information was strengthened, and the system’s ability to generate a Record of Disciplinary Proceeding based on data already entered into Justice Administration and Information Management System was improved. Moreover, this upgrade also saw the introduction of a new Legal Officer Document Review process that will further facilitate the oversight and superintendence of the military justice system. 

Also during the reporting period, the Office of the JAG and the Assistant Deputy Minister (Information Management) continued in their efforts to integrate the Justice Administration and Information Management System with other departmental platforms, including the Security and Military Police Information System (SAMPIS), and the Director of Military Prosecutions’ Court Martial System (CMS). 

Over the next reporting period, the Office of the JAG and the Assistant Deputy Minister (Information Management) will undertake the next phase of development for the Justice Administration and Information Management System, which will incorporate the changes to the National Defence Act that will be implemented with the coming into force of the remaining provisions of Bill C-77. These changes will see the transformation of summary trials into a summary hearing process, and with that, the introduction of service infractions and the resulting sanctions. Additionally, the changes will require the addition of new software functionality to incorporate the protections that will be provided for with the implementation of the Declaration of Victims Rights.

Conclusion

Despite the COVID-19 pandemic and the significant challenges it brought, especially at the beginning of the reporting period, the 2020/21 reporting period saw a number of important developments for the military justice system. For example, significant strides were taken to complete the needed consultations with stakeholders, victim and survivor advocacy groups and individual victims and survivors of service offences and to further the regulatory development required to implement the remaining amendments to the National Defence Act introduced in Bill C-77, including the Declaration of Victims Rights. Additionally, the Honourable Morris J. Fish, former Justice of the Supreme Court of Canada was appointed to conduct the Third Independent Review of specific provisions of the National Defence Act. The Review was conducted during the reporting period and its report, which was tabled in Parliament on 1 June 2021, sets out critical direction that will see profound and essential change within the military justice system.

The processes of growth and improvement seen over the reporting period are essential for the continuing modernization of the military justice system and for ensuring that the system undergoes the changes needed to remain in step with Canadian law and societal values, and at the same time, provide the chain of command with an effective tool for holding members accountable for all forms of misconduct.