Communiqué

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 section 9.1 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 superintends the administration of military justice in the Canadian Armed Forces pursuant to section 9.2 of the Act. In carrying out these duties and functions, the JAG is responsible to the Minister of National Defence.

This report covers the period from April 1, 2021, to March 31, 2022, and the reporting period marks another full and challenging year for the Office of the JAG. While continuing to operate within the grips of the COVID-19 pandemic, the Office of the JAG provided wide reaching legal services in support of ongoing Canadian Armed Forces operations as well as its persistent efforts to effect necessary growth and change across the organization including within the military justice system.

Evolution & Change

The principal theme that runs throughout this report is that the 2021-2022 reporting period has seen the military justice system advance on the latest leg of its journey of continuous evolution and growth.

This is a journey that began in 1998 with the implementation of amendments to the National Defence Act that ushered in significant changes to the military justice system and embedded a statutory requirement for the conduct of periodic independent reviews of the Code of Service Discipline and other parts of the National Defence Act.^{Footnote 2}

It is a journey that has continued over the subsequent decades. Aided by regular and rigorous scrutiny and analysis provided by a range of audits, independent reviews and judicial decisions, the military justice system has adapted over time to reflect changes in Canada’s legal and societal norms and to bolster its contribution to the operational effectiveness of the Canadian Armed Forces by promoting the maintenance of discipline, morale and well-being within the Canadian Armed Forces.

It is a journey that is far from its end, and one that must proceed forward to bring change that is needed to strengthen the military justice system and rebuild confidence in it as an effective and vital instrument of accountability within the Canadian Armed Forces. Over the reporting period, the journey continued across three principal fronts that together will bring critical immediate changes to the military justice system, and at the same time, plot a course for future change that will see the military justice system continue to evolve in profound and wide-reaching ways.

First, Bill C-77, An Act to amend the National Defence Act and to make related and consequential amendments to other Acts^{Footnote 3}, that would bring significant immediate change to the military justice system, including establishment of the Declaration of Victims Rights, was worked on extensively during the reporting period. Through a tremendous collaborative effort involving the Office of the JAG, many members of the Defence Team and Department of Justice legislative counsel, the consultations, policy development and regulatory drafting work required to finalize necessary regulatory amendments were completed, and approval to bring Bill C-77 into force on 20 June 2022 was obtained.

While outside the reporting period, we know as we write this report that Bill C-77 and its associated regulations came into force on 20 June 2022. Although beyond the scope of this report, the critical and positive change that these amendments bring for the victims of service offences and for the administration of military justice in general must be acknowledged. The implementation of the Declaration of Victims Rights, gives to victims of service offences, for the first time, statutorily protected rights - the same rights to information, participation, protection and restitution available in the civilian criminal justice system under the Canadian Victims Bill of Rights. Of equal importance, victims of service offences will now have access to a dedicated complaint mechanism should they feel that their rights have been infringed and the possibility of receiving information and support from a trained Victim Liaison Officer.

Additionally, Bill C-77 also brings an important change to the structure of the military justice system with the retirement of summary trials and the introduction of summary hearings, which provide a non-penal process for addressing minor breaches of military discipline at the unit level. The summary hearing process is designed to enhance the responsiveness of the military justice system and allow the chain of command to swiftly and fairly address minor breaches of discipline and hold those who are responsible to account. An overview of the amendments and their implementation is provided in Chapter 4 of this report. Recognizing the importance of the changes that Bill C-77 brings to the military justice system, those changes are but one step in the larger journey of evolution and growth for the military justice system - further steps and changes are needed.

Second, in the Report of the Third Independent Review Authority to the Minister of National Defence,^{Footnote 4} which the Minister of National Defence tabled in Parliament on 1 June 2021, the Canadian Armed Forces was provided a recommended roadmap, which plots an ambitious course to effect important transformations of the military justice system. In the tabled report, 64 of the 107 recommendations made by the Third Independent Review Authority, the Honourable Morris J. Fish, former justice of the Supreme Court of Canada, provide a framework of recommended changes to the military justice system that is expansive and profound. The report recommends changes that, if implemented, would result in a generational overhaul of the structure and functioning of the military justice system and represent the most significant growth for the military justice system since its inception in the 1950s. The recommendations made by Justice Fish and the implementation commitments made during the reporting period are also examined in Chapter 4 of this report.

Third, at the outset of the reporting period, the Minister of National Defence launched a further review that would have important implications for the military justice system. The Report of the Independent External Comprehensive Review of the Department of National Defence and the Canadian Armed Forces,^{Footnote 5} led by the Honourable Louise Arbour, former justice of the Supreme Court of Canada, was commenced in April of 2021, with the mandate to review existing policies, procedures, programs, practices and culture within the Canadian Armed Forces and the DND to identify the causes of the continued presence of harassment and sexual misconduct in the Canadian Armed Forces. This mandate included the identification of any existing barriers to reporting inappropriate behaviour, including the presence of any such barriers within the military justice system. The Office of the JAG was pleased to support Justice Arbour in the conduct of her review, which is discussed in more detail in Chapter 1 of this report.

In October of 2021, Justice Arbour issued interim recommendations that would introduce a significant change to the way in which offences of a sexual nature are handled by the Canadian Armed Forces. Specifically, it was recommended that the investigation and prosecution of all sexual assaults and offences of a sexual nature be moved to civilian authorities. The interim recommendations and the positive response to them are discussed in greater detail in Chapter 4.^{Footnote 6} The final report of the Independent External Comprehensive Review was issued in May 2022, and while outside the timeframe of this reporting period, it is important to note that in the final report, Justice Arbour recommended that the interim recommendations become permanent through legislation - adding another important waypoint onto the roadmap for change. The contents of Justice Arbour’s final report and the significant lasting change she recommends for the jurisdiction of the military justice system will be examined in future annual reports.

Conclusion

This is an exciting and challenging time for the military justice system and for those dedicated professionals within the Canadian Armed Forces and the Department of National Defence who are assisting the Minister of National Defence to develop a comprehensive road map for implementation based on the recommendations of Justices Fish and Arbour. The roadmap will guide the Canadian Armed Forces through future legs of the journey to evolve and transform the Canadian military justice system. Significant and meaningful change does not happen overnight; it requires the committed effort of all partners both internal and external to the Canadian Armed Forces to do it and do it right.

The Office of the JAG remains stalwart it is commitment to support the Government of Canada and the Canadian Armed Forces in their efforts to re-build public confidence in the military justice system and to transform the military justice system in necessary and meaningful ways.

Fiat Justitia