Chapter Four — Military Justice: Evolution, Transformation and Modernization
Introduction
This Chapter will examine key activities and developments relating to the military justice system that occurred over the reporting period and outside of the case law, with each of which contributing to the system’s ongoing evolution and change.
The Supreme Court of Canada (SCC) has consistently held that the military justice system is designed to meet the unique requirements of the military as it relates to discipline, efficiency, and morale. As recently as its 2019 decision in R v Stillman,Footnote 1 the SCC has reinforced this fundamental purpose while recognizing that the complexion of the system has changed over time in response to legal and societal developments and expectations.Footnote 2
The Department of National Defence and the Canadian Armed Forces have fundamentally committed to establishing a culture that embodies shared professional values and ethos; embraces the diversity and values of Canada; ensures a dignified, equitable, respectful, and inclusive institution and supports continued operational excellence. In parallel with these culture change initiatives, the military justice system is itself in the midst of profound change and modernization.
As outlined below, the recommended reform of the military justice system that is currently under a comprehensive process of study and development represents, the most significant body of potential change to military justice since the 1950s. While complex and requiring time to fully implement, work is underway to fulfill these initiatives and ensure the system evolves with contemporary legal norms and social values while continuing to promote the operational effectiveness of the Canadian Armed Forces.
The Office of the JAG is committed to ensuring that the military justice system continues to grow and advance to meet the needs of the Canadian Armed Forces and the expectations of Canadians.
Independent Reviews
Section 273.601 of the National Defence Act (NDA) requires that the Minister of National Defence cause periodic independent reviews of specified provisions of the NDA, including those pertaining to the military justice system. The requirement for statutorily mandated independent reviews was first introduced in 1998 and modified in 2014 resulting in the current requirement for the Minister to cause an independent review of specified provisions of the NDA and their operation and to table a report of the review before Parliament at specified regular intervals.
The First Independent Review was completed by the late Right Honourable Antonio Lamer in 2003. In the First Independent Review, 88 recommendations were made designed to enhance the independence of key military justice actors, in particular the military judges and the Director of Defence Counsel Services, and to improve the grievance and military police complaints procedures. Most of these recommendations were accepted by the Government. To address the recommendations requiring statutory amendment, legislation was introduced numerous times over the next 10 years. However, it was finally in 2013 that the NDA amendments required to implement the government’s response to the First Independent Review were made.
The Second Independent Review was completed by the Honourable Patrick LeSage in 2011 and was tabled in Parliament in 2012. Amongst its 55 recommendations was a call for a comprehensive review of the sentencing provisions of the NDA, changes to the eligibility and selection of members for court martial panels, and consideration for certain measures to improve the fairness and efficiency of the grievance process. The Government response to the recommendations, most of which were accepted, is substantially reflected in regulatory amendments brought into force in 2018.
The Third Independent Review
On 1 June 2021, the Third Independent Review was tabled in Parliament [completed by the Hon. Morris J. Fish].
The report of the Third Independent Review is the largest to date in terms of both breadth and depth of proposed changes to the military justice system. Approximately 64 of 107 recommendations directly pertain to the military justice system, and another 43 touch upon aspects of the military justice system more broadly. Among other things, the more substantive recommendations include: establishing a Permanent Military Court of Canada,Footnote 3 civilianizing military judgesFootnote 4 and enhancing the independence of key military justice actors. For example, the Third Independent Review recommends exploring in working groups the full or partial civilianization of military prosecutors and defence counsel or distinct career paths for military litigation counsel inclusive of promotion.Footnote 5
There are two overarching themes in the report of the Third Independent Review: (1) it re-affirms that there is a demonstrably justified need for a separate military justice system to maintain discipline, efficiency, and morale in the Canadian Armed Forces; and (2) it presents a new era of reform by continuing the trend away from a command-centric system by strengthening the independence of military justice system actors.
The Minister of National Defence accepted in principle all 107 recommendations of the Third Independent Review and committed to beginning the implementation of 36 of these recommendations in the short term. The remaining recommendations will be reviewed by the Department of National Defence and Canadian Armed Forces with a view to develop a work plan for implementation.
The Judge Advocate General welcomed the Third Independent Review, noting that it, “provides an important opportunity to ensure the military justice system continues to evolve as it is brought into a new era of modernization.” As noted in Chapter 1, the completion of the Third Independent Review together with the Minister’s appointment of Justice Arbour on 21 April 2021 to conduct her independent and external review led the Judge Advocate General to stand up the Military Justice Modernization (MJM) Division in July 2021. The standing up of the MJM Division was a precursor to the promulgation of the Chief of Defence Staff / Deputy Minister Initiating Directive for the Recommendations of the Third Independent Review of the National Defence Act and Other Related External Comprehensive Reviews, as well as the companion Judge Advocate General Initiating Directive, both of which were signed in the Fall of 2021.
As it relates to implementing external recommendations that impact the military justice system, the Office of the JAG is taking a methodical and deliberate approach. Many of the Third Independent Review recommendations pertaining to the military justice system require in-depth study, policy analysis and the drafting of significant statutory and/or regulatory changes, while other recommendations fall within the responsibility of other government departments and stakeholders.
The MJM Division has been coordinating and working with the Department of Justice to develop a partnership model, study recommendations and collaborate in working groups. The scope of this work is unprecedented, and analyzing and implementing all recommendations, to the extent and in the manner directed by the Minister of National Defence, will require a whole-of-government effort.
Independent External Comprehensive Review of the Department of National Defence and the Canadian Armed Forces
On 29 April 2021, the Minister of National Defence announced the launch of an Independent External Comprehensive Review (IECR) of current policies, procedures, programs, practices, and culture within the Canadian Armed Forces and the Department of National Defence. On 20 May 2021, the Honourable Louise Arbour was engaged to undertake the IECR.
The aim of the IECR was to shed light on the causes for the continued presence of harassment and sexual misconduct within the Canadian Armed Forces despite efforts to eradicate it. Additionally the IECR was mandated to identify barriers to reporting inappropriate behaviour to assess the adequacy of the response when reports are made, and to make recommendations on preventing and eradicating harassment and sexual misconduct. To that end, a review that encompassed the recruitment, training, performance evaluation, posting and promotion systems in the Canadian Armed Forces, as well as the military justice system’s policies, procedures, and practice, relating to the handling of allegations was conducted.
On 20 October 2021, the IECR released interim recommendations that called for the immediate referral of all sexual assault and other criminal offences of a sexual nature under the Criminal Code of CanadaFootnote 6 to civilian authorities.Footnote 7 Shortly thereafter, both the Canadian Forces Provost Marshal and the Director of Military Prosecutions, acknowledged the crisis of public confidence in the military justice system, particularly as it relates to allegations of sexual misconduct. In an exercise of their respective authority as independent statutory actors, they made a joint statement announcing the direction that each had issued, to immediately implement the interim recommendations. The Minister of National Defence also accepted the interim recommendations.Footnote 8 While outside of the reporting period it is important to note that the final report of the IECR was issued in May of 2022.
Governance Structure for the Implementation of External Comprehensive Reviews
In addition to its role in supporting the Judge Advocate General in their role as the superintendent of the administration of military justice, the MJM Division provides leadership and personnel support to the External Comprehensive Review Implementation Committee (ECRIC) governance structure, what was established pursuant to the CDS/DM initiating directive.
The Department of National Defence and the Canadian Armed Forces established the ECRIC as the governance body that would support interdepartmental effort to implement the recommendations of the Third Independent Review as well as those from other external comprehensive reviews, including the IECR, and from other consultations or reports mandated by court-ordered class action final settlement agreements endorsed by the Minister of National Defence, the Chief of Defence Staff or the Deputy Minister.
The structure of the ECRIC is premised on a whole-of-government approach and is the product of considered consultation and collaboration between many stakeholders, including the Judge Advocate General as the superintendent of the administration of military justice. In particular, the Judge Advocate General occupies the role of Co-Chair (with the Vice Chief of the Defence Staff) of the strategic oversight echelon for the ECRIC.
The Deputy Judge Advocate General responsible for the MJM Division holds the role of Deputy Co-Chair of the management echelon of the Permanent Secretariat for the ECRIC (called the Director General External Review Implementation Secretariat (DGERIS)). Additionally, legal officers from the MJM Division are engaged to provide technical/legal advice to the ECRIC and are working in close collaboration and liaison with lawyers from other government departments, in particular the Department of Justice.
Bill C-77
Legislative and Regulatory Development and Implementation
Bill C-77, An Act to amend the National Defence Act and to make related and consequential amendments to other Acts, received Royal Assent on 21 June 2019, and at the time writing this report, we are aware that the provisions of Bill C-77 that did not come into force on Royal Assent were brought into force on 20 June 2022.Footnote 9 Bill C-77 is a critically important milestone in the evolutionary journey of the military justice system, and while its remaining provisions came into force after the close of the reporting period, it is important to briefly describe here the changes that Bill C-77 has made to the military justice system.
Of particular importance, Bill C-77 established a statutory Declaration of Victims’ Rights (DVR), which introduce new rights for victims of service offences, including the rights to information, protection, participation, and restitution. Bill C-77 also created the role for a Victim’s Liaison Officer (VLO), whose support may be requested by the victim of a service offence. The VLO will serve to assist victims of service offences by explaining how service offences are charged, dealt with, and tried under the Code of Service Discipline.
Additionally, Bill C-77 introduced the summary hearing process - a non-penal, non-criminal disciplinary process grounded in administrative law principles - and retired the former penal law summary trial system. Finally, Bill C-77 included a series of procedural changes aimed at enhancing the independence of key military justice system actors and aligning certain court martial powers and procedures with the civilian criminal justice system.
Consultation and Engagement in Support of the Implementation of the DVR
Over the reporting period and to ensure that the implementation of the DVR would appropriately address the needs of victims of service offences as well as the interests of justice, significant consultations were undertaken with a variety of internal and external organizations, as well as experts, interested parties, and victim and survivor advocacy groups. The Department of National Defence and the Canadian Armed Forces recognized that the military justice system required greater procedural support for victims of service offences, and as a result, conducted two surveys for the purpose of consulting and obtaining the views of participants. The first internal survey received 1735 responses from current Department of National Defence employees and members of the Canadian Armed Forces. The second external survey conducted in cooperation with Veterans’ Affairs Canada received 299 responses from former Canadian Armed Forces members.
These consultations provided enlightening and useful information that was used in the development of the regulations needed to support Bill C-77 implementation, with regard to establishing the eligibility conditions for appointment as a VLO and developing the DVR complaint mechanism. From the surveys, the views expressed on the military justice system were generally negative. Half of the participants in the surveys indicated that access to information for victims was difficult to obtain. In addition, most participants expressed a belief that the military justice system favors the accused. Amongst those who self-identified as victims of service offences, 84% reported the following: experiencing barriers to reporting due to a fear of reprisal and retaliation; lack of support from the chain of command and peers; and an overall lack of confidence in the military justice system.
Overview of Changes and Impacts on the Military Justice System
Regulations & Policies
During this reporting period, the Office of the JAG was dedicated to developing the regulations and policies needed to support the implementation of Bill C-77. Together, Department of Justice legislative drafters, the Corporate Secretary, and the Office of the JAG worked as a team and succeeded in developing and achieving approval of over 230 regulatory amendments to the Queen’s Regulations and Orders for the Canadian Forces.Footnote 10 The new regulations were developed in consultation with internal and external stakeholders and with the expert assistance of the Department of Justice and were critical for supporting the implementation of the DVR, the summary hearing process, and the changes to the court martial system. Additionally, to supplement the changes brought in by the new summary hearing process, the Military Justice at the Unit Level Policy (MJULP) was developed to support the existing NDA and QR&O provisions. The MJULP is meant to provide guidance on the pre-charge, pre-hearing, hearing, review, and post-hearing phases – essentially all the phases touching military justice at the unit level.
Declaration of Victims’ Rights (DVR)
The DVR applies to the interactions that victims of service offence have with the military justice system, which begins from the moment a service offence is reported and ends with the offender’s sentencing. The DVR applies uniquely to individuals who are the victim of a service offence as defined in s. 2(1.1) of the NDA. Modeled after the Canadian Victims Bill of Rights,Footnote 11 the statutory rights introduced by the DVR are grouped in four categories and include a complaint mechanism if any rights are denied.
The first category of rights, provide the victim of a service offence the right to information. The DVR grants victims the right to request general information about the military justice system and the role of victims in it.
The second category of rights is the right to protection under which, victims have the right to have their security and privacy considered by the appropriate authorities in the military justice system inclusive of identity protection.
The third category of rights is connected to participation. The DVR provides to victims the right to express their views about decisions to be made by appropriate authorities that affect their rights under the DVR and to have those views considered. An example is the victim impact statement. Furthermore, Canadian Armed Forces statement of the impact of the offence on the community and on the military's discipline, efficiency and morale can be submitted.
The last category of rights is the right to restitution. Whereby victims now have the right to have the court martial consider making a restitution order against the offender and to have it enforced. As previously mentioned, these important changes for the victims of service offences bring the military justice system in closer alignment with the parallel system of civilian justice.
Victims Liaison Officer (VLO)
The victim of a service offence can request the appointment of a VLO to assist them in navigating the military justice system. VLOs are a unique feature of the DVR, and are members of the Canadian Armed Forces who, in order to be selected for their role, must meet regulatory criteria and have completed the necessary training. The responsibilities of the VLO are statutorily defined and include but are not limited to the following: explaining the military justice system, assisting victims in obtaining information; and transmitting information on behalf of the victim.
Complaint Mechanism for Victims
Where a victim believes that one of their rights under the DVR has been infringed or denied, they may choose to submit a complaint. At the time of writing this report, a complaint can be submitted by a victim of a service offence to the Director of External Review. The purpose of the new complaint mechanism is to provide greater transparency and accountability to victims.
Victims and Survivors of Service Offences Web Page
During the 2020-2021 reporting period, the Canadian Armed Forces developed a Victims and Survivors of Service Offences website. Maintained with current information, this Government of Canada web page provides a one-stop source of information relevant to victims concerning: the military justice system in general; services and programs offered to victims in the military justice system; service offence investigations; court martial proceedings; the right to make a victim impact statement and its contents; the right to restitution; and the protection of privacy and identity. The web page also contains a link to a comprehensive list of services and programs available outside of the Department of National Defence and the Canadian Armed Forces.
Summary Hearings
As of 20 June 2022, the existing summary trial process was effectively retired, and a new summary hearing process, along with a series of service infractions and applicable sanctions were introduced. The summary hearing process establishes unit-level disciplinary proceedings that are non-penal and administrative in nature. The summary hearing is restricted to resolving charges on a balance of probabilities for service infractions, which are acts, omissions, or conduct of a less-serious nature that breach Canadian Armed Forces standards. The summary hearing process is intended to simplify the disciplinary process at the unit level and to improve the chain of command’s ability to efficiently address minor breaches of military discipline while maintaining procedural fairness.
Court Martial Changes
In addition to the general rights articulated as part of the DVR, Bill C-77 introduced several statutory and regulatory changes to court martial procedure to enshrine the support to victims at court martial into the law. The following procedures were addressed by Bill C-77: the use of testimonial aids; the availability of publication bans; new procedures for third-party record applications; and new procedures for Military Judges to issue no contact orders. These changes will more closely align court martial proceedings with the civilian criminal justice system’s handling of similar issues, allowing the necessary evolution and improvement of the military justice system.
Changes relating to Independent Actors
Legislative and regulatory changes introduced by Bill C-77 have the effect of enhancing the independence of key military justice system actors, such as the military police and the Director of Military Prosecutions. For example, since 20 June 2022, all members of the military police assigned to investigative services have been given the authority to lay charges and to refer service offence charges directly and exclusively to the Director of Military Prosecutions for preferral to court martial. Additionally, these changes empower the Director of Military Prosecution to exercise final authority over service offences.
The C-77 Canadian Armed Forces Secretariat (C-77 Secretariat)
In March 2021, the Vice Chief of the Defence StaffFootnote 12 designated the Deputy Vice Chief of the Defence Staff as the instructing officer for Bill C-77. A Secretariat was established to support the Deputy, as well as to plan and coordinate the implementation of Bill C-77. The C-77 Secretariat synchronized concurrent activities and critical tasks in accordance with the Master Implementation Directive for Bill C-77,Footnote 13 in close coordination with Level 1 authorities, other Canadian Armed Forces / Department of National Defence initiatives and other external initiatives to the Bill C-77 effort. The C-77 Secretariat was responsible for the creation and implementation of policies and the development of the training for Canadian Armed Forces members on their new roles and responsibilities arising out of Bill C-77.
The Superintendence Enhancement and Assessment Project
The Superintendence Enhancement and Assessment Project (SEAP) was established in 2017 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 overall enhancement of the military justice system. The SEAP comprises three main projects: the Justice Administration and Information Management System (JAIMS), the Military Justice System Performance Monitoring Framework, and the Military Justice System Time Standards. Each project is designed to contribute to a more efficient and effective military justice system.
During the reporting period, the strategic importance of the SEAP led the Office of the JAG to create a new directorate within the Military Justice Division entitled the Directorate of Law/ Military Justice Superintendence that is entirely dedicated to the SEAP. By the end of the reporting period, the new directorate was augmented to a total of 20 departmental and Canadian Armed Forces positions. Collectively, this directorate and these initiatives will bring the military justice system into a new era aligned with recent reforms and will also allow the system to quickly adapt to future change.
The Justice Administration and Information Management System (JAIMS)
The JAIMS is an electronic case management tool designed specifically for the military justice system. It is being developed by the Office of the JAG, in partnership with the Assistant Deputy Minister (Information Management) (ADM (IM)), to seamlessly and electronically track military justice files from the reporting of an alleged offence, through to investigation, charge laying, trial disposition and review or appeal in both summary hearing and court martial procedures.Footnote 14 Development of the JAIMS is a key initiative within the SEAP.
In the first half of the reporting period, JAIMS (1.0) entered into production and was rolled out to a small number of units. These units have provided valuable feedback that has enabled continuous development of the system. In the fall of 2021, the Office of the JAG and ADM (IM) commenced this next phase of development for the JAIMS, which will incorporate the changes to the NDA that will be implemented with the coming into force of Bill C-77, known as JAIMS (2.0). Using the Bill C-77 draft regulations and policies, the teams from the Office of the JAG and ADM(IM) developed and began implementing new business requirements to reflect the new summary hearing system.
In order to ensure proper resourcing would be available to the JAIMS project, in January of 2022, a budget letter submission was made to the Treasury Board for over $15 million in funding to continue JAIMS (2.0) development through to its planned launch at the end of 2024 and through to the completion of further planned upgrades by the end of fiscal year 2026-2027. Additionally, during this reporting period, the Office of the JAG completed both a privacy impact assessment and a security review of the JAIMS in cooperation with the Director of Access to Information and Privacy, and the Director of Information Management Security, respectively. Both initiatives will greatly assist in the development of JAIMS (2.0).
Military Justice System Performance Monitoring Framework
The Military Justice System Performance Monitoring FrameworkFootnote 15(MJS-PMF) is a robust series of justice indicators that will report on the effectiveness, efficiency, and legitimacy of the military justice system. The indicators were developed to identify emerging trends, including challenges, while informing measures to address them. The MJS-PMF will permit the Judge Advocate General as superintendent of the administration of military justice, to monitor the performance of the military justice system, draw attention to potential issues, assist with the development of benchmarks for future performance, and monitor the impact of changes to the military justice system. The indicators will provide valuable feedback to policy makers and will ultimately make the military justice system more transparent and accountable.
In February 2022, the MJS-PMF team commenced working again with Professor Yvon Dandurand, a leading international expert on performance monitoring and justice system analytics. With his assistance, the next version of the MJS-PMF will ensure that the indicators accurately reflect the military justice system following the coming into force of the remaining provisions of Bill C-77. An updated MJS-PMF and report is anticipated to be published and integrated into JAIMS in the fall of 2023.
Military Justice System Time Standards
The Military Justice System Time Standards (MJSTS)Footnote 16 are an important SEAP initiative that set out expectations for the timely completion of every phase of the military justice system process. The current MJSTS were developed through consultations with internal stakeholders and were published by Canadian Forces General Message in February 2020. A review and update of the time standards was undertaken in January 2022 to determine what changes are necessary following the coming into force of the remaining provisions of Bill C-77.
The definition, consultation and approval of the new time standards is anticipated to be completed in the fall of 2023. The updated MJSTS will be incorporated into the JAIMS, requiring users to provide a justification should they not meet the time standards. This will assist in identifying and resolving the causes of delays in the military justice system. In combination with the other initiatives under the SEAP, the MJSTS will contribute to the effective operation of the military justice system and the maintenance of discipline, efficiency, and morale of the Canadian Armed Forces.
Other Policy Initiatives
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. Following a meeting on 28 May 2020 the forum’s regular rhythm was disrupted by the COVID-19 pandemic. The forum did not meet during this reporting period; however, by the end of the period, the forum was scheduled for its sixth meeting on 16 June 2022 with a second meeting planned for later in the 2022-2023 reporting period.
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