Chapter Five — The Way Ahead

In November 2020, the Minister of National Defence appointed the Honourable Morris J. Fish, a former justice of the Supreme Court of Canada, to conduct an independent review of the National Defence Act. The statutory review, required by the Act itself, was the third such periodic study since 2003. In total, Justice Fish made 107 recommendations,Footnote 1  most of which were aimed at improving the military justice system, and all of which being immediately accepted in principle by the Government of Canada.

Collectively, these recommendations represent a pathway to help evolve military justice into a new era and make necessary changes to the system to ensure its proper functioning and the public's confidence in it. While his report identifies shortcomings in the current system, Justice Fish was nonetheless moved to express a hopeful vote of confidence in the command of the Canadian Armed Forces. He stated: “I am persuaded that the current leadership of the Canadian Armed Forces has the will to materially improve its deep-rooted system of justice. And I have endeavored … to help show the way.”Footnote 2

While the statutory review by Justice Fish was conducted within the reporting period of this Annual Report, the tabling of his findings were not, and therefore will be appropriately included in the 2021-2022 Annual Report. In the meantime, his recommendations have indeed helped to “show the way” on key issues such as sexual misconduct and harassment, and will guide the Office of the Judge Advocate General as it further engages in its mission to support the Canadian Armed Forces in making material improvements to the system of military justice.

The events of 2020 have shone a harsh but useful spotlight on the military justice system. In particular, several high-profile cases of alleged sexual misconduct in the Canadian Armed Forces undermined confidence, both internally and among the public, in the military justice system. But they also heightened public awareness of vulnerabilities in the system, catalyzed both an institutional introspection and a public dialogue, and created momentum for change. As we look to the future, we know that the status quo is not an option.

Eradicating sexual harassment, sexual assault and other forms of discriminatory and hateful conduct within the Canadian Armed Forces will require a profound culture change.

The military justice system is a key contributor to that culture change, and represents an important tool to combat service misconduct of all kinds, while supporting victims, survivors, and others impacted by it.

The Office of the Judge Advocate General is committed to helping lead this change. During the reporting period, for example, the Office of the Judge Advocate General undertook a series of extensive consultations with victim and survivor advocacy and support organizations, and with individual victims and survivors of sexual misconduct and other service offences. The input received through these consultations has proven to be integral to implement a new Declaration of Victims Rights that forms part of a major reform of the military justice system. For the first time, victims and survivors of service offences will have statutory rights to information, protection, participation in the judicial process, and restitution. These and other reforms are expected to come into force during 2022.

The Office of the Judge Advocate General is also assisting the Honourable Louise Arbour, a former justice of the Supreme Court of Canada, who was appointed by the Minister of National Defence to conduct a comprehensive and independent external review of existing policies, procedures, programs and culture within the Canadian Armed Forces and Department of National Defence with respect to sexual misconduct and harassment. The review will seek to identify barriers to reporting inappropriate behaviour; determine whether the system of responding to complaints is adequate; and make recommendations for the prevention and ultimately elimination of sexual misconduct and harassment. Detailed coverage of the review’s findings and recommendations related to military justice will be provided in future reports.

One of the more prominent challenges in the administration of the military justice system has been the lack of comprehensive data about the operation of the system and the members of the Canadian Armed Forces impacted by it. This has understandably impeded the work of fact-finders, most recently Justice Fish. But more fundamentally, Canadian Armed Forces leaders cannot remedy problems that cannot be recognized or identified due to a lack of full and accurate data.

This issue is now being addressed with the development and deployment of a powerful new data management tool called the Justice Administration and Information Management System (JAIMS). Throughout the 2020-2021 reporting period, the system was being developed and deployed at Canadian Forces Base Petawawa, and will be adapted to align with the Bill C-77 amendments and expanded to more new users going forward.

Once the new system is fully deployed, the Office of the Judge Advocate General will be able to analyze and report all relevant aspects of the military justice system. This data-driven effort will transform the government's ability to strengthen operations and service delivery, while empowering the chain of command to monitor its disciplinary files in real time and resolve underlying causes of delays in the delivery of military justice.

COVID-19 continues to be a disruptive and destructive force in every corner of Canada and indeed around the world, and the Office of the Judge Advocate General is no exception. Coping with the pandemic has, of necessity, driven innovation in our use of technology, and accelerated modernization of the administration and delivery of military justice. The Office of the Judge Advocate General will continue to adapt to the pandemic context while ensuring it meets its overall mission goals.Footnote 3

Conclusion

In a landmark case in 2019 known as R v Stillman, the Supreme Court of Canada noted that:

"The military justice system has come a long way. It has evolved from a command-centric disciplinary model that provided weak procedural safeguards, to a parallel system of justice that largely mirrors the civilian criminal justice system … The continuing evolution of this system is facilitated by the periodic independent reviews mandated by s. 273.601 of the NDA, ensuring the system is rigorously scrutinized, analyzed, and refined at regular intervals … 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. We see no reason to believe that this growth and evolution will not continue into the future."Footnote 4 

As we close the book on the 2020-2021 reporting period and look to the future, our mission in the months and years ahead is to ensure that growth and evolution continue to give Canadians a military justice system that is fair, efficient, and takes a more victim-centered approach; a system that helps to rid the Canadian Armed Forces of racism, sexism, misogyny, harassment and sexual misconduct; and a system that promotes a culture where every uniformed and civilian member is respected and valued.

Our ultimate mission moving forward is to earn the trust of all members of the Canadian Armed Forces, and indeed all Canadians. They deserve nothing less.

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