The Year in Review

Pursuant to subsection 9.3(2) of the National Defence Act,^{Footnote 1}  the Judge Advocate General is required to report annually to the Minister of National Defence on the administration of military justice in the Canadian Armed Forces. It is with great pleasure that I present my first annual report to the Minister of National Defence on the administration of military justice in the Canadian Armed Forces, covering the period from 1 April 2023 to 31 March 2024.

Highlights of the Year in Military Justice

The 2023/24 reporting period marks yet another full and challenging year for the Office of the Judge Advocate General (Office of the JAG). As noted in previous reports, the military justice system has undergone significant changes in recent years, particularly with the coming into force of Bill C-77, An Act to amend the National Defence Act and to make related and consequential amendments to other Acts.^{Footnote 2}  The Bill, among other things, introduced the Declaration of Victims’ Rights and a new summary hearing system to deal with minor misconduct at the unit level. This evolution continued through the present reporting period with several important developments that are briefly described below.

Bill C-66, The Military Justice System Modernization Act - On 21 March 2024, the government tabled Bill C-66, The Military Justice System Modernization Act,^{Footnote 3}   in the House of Commons. Bill C-66 would introduce changes to the National Defence Act aimed at modernizing the military justice system by responding to a number of recommendations made by the Report of the Independent External Comprehensive Review of the Department of National Defence and the Canadian Armed Forces (IECR) by former Supreme Court Justice Louise Arbour^{Footnote 4}  and the Report of the Third Independent Review Authority to the Minister of National Defence (IR3) by former Supreme Court Justice Morris J. Fish.^{Footnote 5}

The Bill’s proposed changes to the National Defence Act can be divided into four thematic areas. The first area of proposed legislative changes would address IECR Recommendation 5 by definitively removing the Canadian Armed Forces’ jurisdiction to investigate and try Criminal Code sexual offences alleged to have been committed in Canada. With this change, civilian authorities would have exclusive jurisdiction for investigating and prosecuting such offences alleged to have been committed in Canada.

The second area of proposed legislative changes would address eight of the IR3 recommendations (2, 7, 8, 10, 13, 14, 15, 16) by modifying the process for the appointment of three key military justice authorities: the Canadian Forces Provost Marshal (who would be retitled Provost Marshal General), the Director of Military Prosecutions, and the Director of Defence Counsel Services, making these positions Governor in Council appointments and providing for their tenure. The Provost Marshal General would be responsible to the Minister of National Defence in the performance of their responsibilities, as prescribed in the National Defence Act. Further, the Minister of National Defence would be able to issue general instructions or guidelines in writing to the Provost Marshal General in respect of those prescribed responsibilities, as well as instructions or guidelines in writing to the Director of Military Prosecutions in respect of a particular prosecution. Moreover, the proposed legislation would affirm the Judge Advocate General’s respect for the independence of authorities in the military justice system in the exercise of their superintendence of the administration of military justice. The proposed legislation also seeks to expand the eligibility criteria for military judges to include non-commissioned members, which would help diversify the pool of potential candidates. Lastly, the proposed legislation would expand the class of persons who may make an interference complaint in respect of a military police investigation and would provide that a member of the military police or person performing policing duties and functions under the Provost Marshal General’s supervision must make such a complaint in certain circumstances.

The third area of proposed changes aims to remove military judges from being charged under the summary hearing system and builds on supports to victims by expanding Victim’s Liaison Officer access to individuals acting on behalf of a victim under the Declaration of Victims Rights. This expands on previous efforts through former Bill C-77 which introduced the Declaration of Victims Rights.

Finally, Bill C-66 proposes amendments to the National Defence Act that would harmonize the provisions relating to information on sex offenders and publication bans with the amendments made to the Criminal Code in the former Bill S-12^{Footnote 6}  which came into force in October 2023. These modifications are necessary to ensure that the military justice system remains consistent with the Canadian Charter of Rights and Freedoms^{Footnote 7}  and aligned with the civilian criminal justice system.

The Comprehensive Implementation Plan - The Office of the JAG’s continuing efforts towards military justice modernization are now captured in the Department of National Defence and Canadian Armed Forces’ Comprehensive Implementation Plan, a multi-year plan aimed at creating a more open, transparent, and accountable approach to culture change and military justice modernization initiatives. The Comprehensive Implementation Plan incorporates recommendations from four key external reviews: the IR3, the IECR, the Minister of National Defence Advisory Panel on Systemic Racism and Discrimination Report,^{Footnote 8}  and the No. 2 Construction Battalion National Apology Advisory Committee Report.^{Footnote 9} The Office of the JAG plays an important role in contributing to the overarching institutional priorities for advancing the military justice modernization initiatives which form part of the Comprehensive Implementation Plan.

The Military Judge Selection Process - A new military judge selection process commenced on 31 August 2023, with a Canadian Armed Forces General Message soliciting applications from those interested in becoming a Regular or Reserve Force military judge. The applications of qualified candidates are reviewed by the Military Judges Selection Committee, an independent committee of five Ministerial appointees who evaluate candidates and assist the Minister in the selection process. The Committee provides the Minister with advice on the qualifications, competence, and overall suitability of candidates. The aim of the process is to ensure that a current pool of assessed candidates for the military judiciary is available to fill vacancies on the bench.

The Retirement of the Chief Justice of the Court Martial Appeal Court - On 30 October 2023, the Chief Justice of the Court Martial Appeal Court, the Honourable B. Richard Bell, retired from the Court. Chief Justice Bell had served on the Court Martial Appeal Court since 2015, during which time he led many significant initiatives to improve the court and the military justice system. He directed that Court decisions be published simultaneously in both official languages and instituted a specialized training program for judges on topics such as sexual assault, international humanitarian law, and sentencing. The Honourable Elizabeth A. Bennett will serve as Acting Chief Justice until a new Chief Justice is named. Acting Chief Justice Bennett has been a judge of the Court of Appeal of British Columbia since 2009 and has served on the Court Martial Appeal Court since 1999.

The Report of the Military Judges Compensation Committee - On 31 January 2024, the Military Judges Compensation Committee released the report of its recommendations on the appropriate remuneration for military judges during the period of 2019 to 2023. The Military Judges Compensation Committee is a body created by Parliament to ensure an independent, objective, depoliticized process for establishing judicial salaries. The Committee, which is mandated under the National Defence Act to submit recommendations to the Minister of National Defence concerning the adequacy of military judicial compensation every four years, performs a similar role and operates according to similar legal principles as its civilian counterpart, the Judicial Compensation and Benefits Commission. In making its recommendations on remuneration for military judges, the Committee considers such factors as the need to attract outstanding candidates to the Bench, the necessity of ensuring judicial independence, and the prevailing economic conditions in Canada. In its latest report, the Committee’s recommendations included that military judges be remunerated to achieve parity with other federally appointed judges and that military judges receive a new annual incidental allowance of $3,000. The Minister accepted these recommendations on 31 July 2024.

The Designation of a New Chief Military Judge - On 21 March 2024, the Governor in Council designated a new Chief Military Judge: Capt(N) Catherine Julie Deschênes. Capt(N) Deschênes has been serving as a military judge since 2019. Prior to that, she was a legal officer in the Office of the JAG where she served in numerous roles both in Canada and on operations around the world, including as the Legal Advisor to the Chief of Defence Staff’s office. The position of Chief Military Judge had been vacant since March 2020, during which time the position’s powers, duties, and functions had been performed by the Deputy Chief Military Judge, LCol Louis-Vincent d’Auteuil.

The Military Justice at the Unit Level Policy 2.0 - The summary hearing process has been in place since 20 June 2022. As part of continuous modernization of the military justice system, the Military Justice at the Unit Level Policy (MJUL Policy) was updated on 12 April 2024, just outside of the current reporting period. The MJUL Policy 2.0 includes annexes which outline elements of service infractions, guidance for appropriate military justice authorities on the rights of victims, and on the entitlements of persons affected by service infractions. The MJUL Policy 2.0 also includes further guidance for officers conducting a summary hearing on determining appropriate sanctions and preparing written reasons. The Office of the JAG will continue to work with Canadian Armed Forces commanders and all stakeholders to modernize the military justice system, including the summary hearing process, to meet the requirements of the Canadian Armed Forces.

Military Justice and the Supreme Court in the Charter Era

Another important development occurred in October 2023, when the Supreme Court of Canada heard arguments in the case of R v Edwards^{Footnote 10}  concerning the independence of military judges. This is the latest military justice case heard by Canada’s highest court. The Supreme Court’s decision affirming that courts martial meet the constitutional requirements of an independent and impartial tribunal, was released in April 2024, shortly after the conclusion of the reporting period. Nevertheless, the R v Edwards case presents an occasion to highlight the instrumental role the Supreme Court has played in guiding the evolution of the military justice system.

The Supreme Court’s first significant contribution to the development of military justice of the Charter era was its 1992 decision in R v Généreux.^{Footnote 11}  The case is foundational for a number of reasons. First, it affirmed the legitimacy, necessity, and constitutionality of the military justice system as a whole. Writing for the majority, Chief Justice Lamer observed that:

At the same time, the Court also addressed the question of whether courts martial were sufficiently independent to meet the requirements of section 11(d) of the Charter, the same question considered by the Court in R v Edwards. On this point, the Court found that the General Court Martial, as it was then constituted, did not accord with the accused’s right to be tried by a fair and independent tribunal. Specifically, the Court found that the ad hoc appointment of legal officers from the Office of the JAG to preside at General Courts Martial did not meet the requirements of financial security or security of tenure, while the involvement of senior officers in key stages of the courts martial process undermined their institutional independence. Canada’s response to the R v Généreux decision, as well as to a report of former Chief Justice Brian Dickson,^{Footnote 13} was An Act to amend the National Defence Act and to make consequential amendments to other Acts.^{Footnote 14} At the time the most extensive set of amendments to the National Defence Act since its enactment in 1950. The legislation established military judges to be permanent positions, appointed by the Governor in Council, and independent of the Office of the JAG.

In 2016, the Supreme Court again considered the issue of independence in the military justice system in the case of R v Cawthorne.^{Footnote 15} That case centered on the authority of the Minister of National Defence to initiate appeals under the National Defence Act. The Court rejected arguments that conferring this authority on the Minister violated the right to an independent prosecutor protected under sections 11(d) and 7 of the Charter. The Court found that the Minister is entitled to a strong presumption that they exercise prosecutorial discretion independent of partisan concerns and that this presumption is not displaced by the fact that the Minister was a member of Cabinet. Accordingly, the Court upheld the provisions of the Act granting the Minister authority to initiate appeals.

In addition to affirming the constitutional underpinnings of the military justice system and addressing issues of independence, decisions of the Supreme Court have also been pivotal in clarifying the scope of that system’s jurisdiction. In R v Moriarity^{Footnote 16} , the Court considered whether the provisions of the National Defence Act that incorporate offences under the Criminal Code^{Footnote 17}   and other Acts of Parliament into the jurisdiction of the military justice system were unconstitutionally overbroad. The appellants in that case argued that military justice system jurisdiction over Criminal Code offences required a nexus between the circumstances of the alleged offence and military duties. The Court rejected this argument, finding that Parliament’s objective in creating the military justice system was to establish procedures to ensure the discipline, efficiency, and morale of the military. The Court concluded that criminal conduct, even when committed in circumstances that are not directly related to military duties, may have an impact on the standard of discipline, efficiency, and morale and, therefore, fall within the jurisdiction of the military justice system.^{Footnote 18} 

The Supreme Court was called upon to consider the question of the military justice system’s jurisdiction over Criminal Code offences a second time in R v Stillman.^{Footnote 19} The central argument before the Court in that case was whether the provision of the National Defence Act giving the military justice system jurisdiction over Criminal Code offences violated an accused’s right to a jury trial guaranteed under section 11(f) of the Charter. Section 11(f) provides that anyone charged with an offence, where the maximum punishment is imprisonment for five years or more, has the right to a trial by jury, except in the case of an offence under military law tried by military tribunal. The Court ruled that the impugned National Defence Act provision is consistent with section 11(f), confirming that Parliament had validly enacted the service offences referred to as an “offence under military law” in section 11(f) of the Charter. Relying on its reasoning in R v Moriarity, the Court also held that an accused’s status as a service member was sufficient to charge a person with a service offence under the National Defence Act and that a military nexus was not required. In reaching this conclusion, the Court reaffirmed its finding in R v Généreux that the military justice system exists to ensure the maintenance of discipline, efficiency, and morale of the Canadian Armed Forces. Surveying the development of the military justice system since the R v Généreux decision, Justices Moldaver and Brown observed that “the military justice system has come a long way. It has evolved from a command-centric disciplinary model that provided weak procedural safe-guards, to a parallel system of justice that largely mirrors the civilian criminal justice system.”^{Footnote 20} 

The most recent development in the Supreme Court’s ongoing role in the evolution of the military justice system is its decision in R v Edwards, in which the Court returned to the question it first considered in R v Généreux: whether courts martial are sufficiently independent and impartial tribunals to meet the requirements of section 11(d) of the Charter. R v Edwards covers a series of cases^{Footnote 21} in which Canadian Armed Forces members appealed their convictions for service offences on the grounds that the military status of their court martial judges violated their 11(d) rights.

In dismissing the appeal, the Court affirmed that accused members of the Canadian Armed Forces who are tried by court martial are entitled to the same guarantee of judicial independence and impartiality as an accused person who is tried in the civilian system. However, the Court found that this does not require that the two systems be identical in every respect and that section 11(d) does not require either absolute or ideal independence. As Justice Kasirer wrote for the majority:

Woven into the decision of the Court is the central idea that military judges are and can be both military officers and judges. The system of military justice in Canada has evolved to the point of being parallel to the civilian criminal justice system in that members can draw comfort in knowing that if they face trial by court martial, they will be tried by a constitutionally guaranteed independent and impartial judge.

Conclusion

This is an exciting and challenging time for the military justice system as it continues to develop to match Canada’s evolving legal and social norms. As this process unfolds, the Office of the JAG remains fully committed to ensuring that the military justice system keeps pace with those changes, guided by the overlapping imperatives of the rule of law, the rights of all participants, and the unique requirements of the Canadian Armed Forces.

Fiat Justitia

Robin F. Holman, MSM, CD
Brigadier-General