Pursuant to Subsection 9.3(2) of the National Defence Act,Footnote 1 the Judge Advocate General (JAG) is required to report annually to the Minister of National Defence on the administration of military justice in the Canadian Armed Forces.
Under sections 9.1 and 9.2 of the Act, the JAG 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 JAG also oversees the administration of military justice in the Canadian Armed Forces.
This report covers the period April 1, 2020 to March 31, 2021. This coincided almost exactly with Canada’s first year of the COVID-19 global pandemic and Canadians’ resilient response to it. Like all Canadian organizations, the Office of the JAG had to adapt to the public health crisis in order to maintain operations. And like many other Canadians, our team rose to the challenges of COVID-19 with innovation, dedication and personal sacrifice. Despite the challenges, we have maintained our support to the military justice system and the chain of command that uses it.
One theme that runs throughout this report is accountability, and more specifically the need to recognize weaknesses in the military justice system, and to be accountable for addressing them. During the period covered by this report, no single issue underscored this imperative more than the public controversy over sexual misconduct in the Canadian Armed Forces.
Several high-profile cases of alleged impropriety cast a long shadow and undermined confidence in the military justice system among both Canadian Armed Forces members and the Canadian public. In turn, the heightened public awareness of this kind of misconduct brought to the forefront issues of discipline and accountability at all levels of the military, and produced an increased sense of urgency throughout the Canadian Armed Forces and the Government of Canada to address key issues such as providing greater support for victims and survivors of sexual misconduct.
But commitments are not enough. Accountability today dictates that everyone involved in the administration of military justice will be judged by our actions and results in helping to restore confidence in the system and the Canadian Armed Forces. For example, a series of extensive consultations that were commenced in late 2020 were recently concluded with victims and survivors of sexual misconduct and other service offences, and with victim and survivor advocacy and support organizations. Their input has proven to be integral to efforts to implement a new Declaration of Victims Rights that forms part of a major reform of the military justice system.
The military justice system is itself a key element of accountability. While it has been in existence since well before the enactment of the National Defence Act in 1950, the progressive evolution of Canada’s military justice system has been driven by various accountability mechanisms, including judicial decisions, external reviews, and internal regulatory reform – a continuous process of improvement that remains ongoing today.
Throughout so many decades of review and resulting change, the military justice system has been and remains an indispensable tool for maintaining the discipline, efficiency, and morale of the Canadian Armed Forces and its members. Misconduct of all kinds is unacceptable. Misconduct undermines the morale and well-being of members and their families, and it equally impacts the cohesion and operational effectiveness of the military. But as the institutional crisis around sexual misconduct underscored, some aspects of the military justice system need significant reform and modernization.
A statutory review of the military justice system commenced in 2020 has provided a timely and invaluable roadmap to further reform. 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 certain provisions 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 2 all of which were accepted in principle by the Government of Canada and collectively represent a pathway to help evolve military justice into a new era and make necessary changes to ensure its proper functioning. Although the review by Justice Fish was commissioned during the time period covered by this Annual Report, it was not tabled in Parliament until June 1, 2021, and will therefore be appropriately detailed in our 2021-2022 Annual Report. Likewise, structural reforms pursuant to Justice Fish’s recommendations will also be closely covered in future reports. In the meantime, the work of Justice Fish is noted here and selectively referenced elsewhere in this Annual Report to reflect the importance of his recommendations, and their centrality to efforts currently underway to reform the military justice system.
The Office of the JAG 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. As the review was launched after the reporting period of this Annual Report, detailed coverage of its findings and recommendations will be provided in future reports.
During the reporting period, the Court Martial Appeal Court of Canada heard six military prosecution appeals from separate court martial cases, all of them centering on whether military judges are sufficiently independent to satisfy the requirements of the Canadian Charter of Rights and Freedoms.Footnote 3 After the reporting period of this Annual Report, the Court allowed the appeals and confirmed the independence of military judges, consistent with the Charter.Footnote 4 More detailed coverage of those decisions will be included in the next Annual Report.
This report, and the developments that it describes, would not have been possible without the unwavering dedication and professionalism of the military and civilian members of the Office of the JAG. Despite the constraints and challenges of the past year of pandemic, our team members have remained committed to supporting the Canadian Armed Forces, the Department of National Defence and indeed the whole of Government. At the same time, coping with COVID-19 prompted the Office of the JAG to modernize the way we deliver our services every day, and how we care for our staff and their families in times of crisis.
In his recent report, Justice Fish stated he is “persuaded that the current leadership of the CAF has the will to materially improve its deep-rooted system of justice.”Footnote 5
Our mission is to provide our full support to the
Canadian Armed Forces and to do our part to make the required improvements happen. We look forward to working with our partners in the military and government to get it done and get it right.
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