Annex A: Military Justice: Evolution, Transformation and Modernization

Background

1. Canada's Military Justice System (MJS) is a unique, self-contained system of justice that forms an integral part of the Canadian legal mosaic and has the promotion of readiness and operational effectiveness through the maintenance of the discipline, efficiency, and morale of the Canadian Armed Forces (CAF) as its core purpose. The Canadian MJS is designed to be flexible, and like the civilian criminal justice system, it has continuously adapted and evolved to reflect ever-changing Canadian legal and societal norms.
2. The Supreme Court of Canada (SCC) has consistently recognized that the MJS is designed to meet the unique requirements of the military as it relates to readiness and operational effectiveness. As recently as 2019 in R v. Stillman, and 2024 in R. v. Edwards, the SCC has validated the unique design and purpose while recognizing that the complexion of the system has changed over time in response to legal and societal developments and expectations.
3. The Department of National Defence (DND) and the CAF have embarked upon a fundamental commitment to establish a culture that embodies shared professional values and ethos; one that embraces the diversity and values of Canada; ensures a dignified, equitable, respectful and inclusive institution and supports continued operational excellence.
4. Similar to these reforms, the MJS continues to modernize, driven in large part by the recommendations made in two recent independent reviews. While these proposed reforms are complex, and will take time to fully analyze and implement, work is well underway.

Independent reviews

Responsibilities of the Minister of National Defence and Independent Reviews

5. Section 4 of the National Defence Act (NDA) provides that the Minister of National Defence (MND), "…has the management and direction of the Canadian Forces and of all matters relating to national defence." Ministerial responsibility for matters within the MJS is consistent with the Minister's overarching role at the apex of the institution.
6. Section 273.601 of the NDA requires that the MND cause independent periodic reviews of specified provisions of the NDA, including those pertaining to the MJS. The requirement for statutorily mandated independent reviews was incorporated into the NDA by Bill C-25, which received Royal Assent in 1998. This provision was slightly modified in 2014 through Bill C-15 resulting in the current requirement for the MND to cause an independent review of specified provisions of the NDA and their operation. The substance of the review is not limited to the MJS, and the most recent report included a review of military grievances, external reviews of grievances, and independent review processes. The law requires that a report of the review be tabled before Parliament within seven years after the day on which the previous report was tabled, or within seven years after the day on which an amending act is assented to which amends the NDA based on an independent review.
7. The first independent review was completed by the late Right Honourable Antonio Lamer, retired Chief Justice of Canada, in 2003. The Lamer Report made 88 recommendations designed to enhance the independence of key players, in particular military judges and the Director Defence Counsel Services, and to improve the grievance and military police complaint processes. Most of these recommendations were accepted by the government and the majority were implemented. In order to address the recommendations requiring statutory amendment, legislation was tabled numerous times over the 10 years following the report; however, it was Bill C-15 that ultimately was given Royal Assent in 2013 and that served to implement these recommendations.
8. The second independent review was completed by the Honourable Patrick LeSage, retired Chief Justice of the Ontario Superior Court of Justice, in 2011. The report was tabled in 2012, while Bill C-15 was before Parliament. Amongst the 55 recommendations in the report were 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 Bill C-15 and regulations made pursuant to the statute.

Third Independent Review

9. On 5 November 2020, the MND appointed the Honourable Morris J. Fish, former Justice of the SCC, as the Third Independent Review (IR3) Authority. On 1 June 2021, Justice Fish's report was tabled in Parliament, setting out 107 recommendations.
10. The IR3 Report was the largest independent review report to date – in both breadth and depth of proposed changes to the MJS – and it reaffirms the demonstrably justified need for a separate MJS. Approximately 64 of its 107 recommendations directly pertain to the MJS. The more substantial recommendations include: establishing a Permanent Military Court of Canada composed of civilian judges, and enhancing the independence of key military justice actors (for example, by considering the civilianization of the prosecution and defence counsel). The MND accepted in principle all 107 recommendations from the IR3 report.

Independent External Comprehensive Review of the DND and the CAF

11. On 29 April 2021, shortly before receiving the report of Justice Fish, the MND announced the launch of an independent external comprehensive review (IECR) of current policies, procedures, programs, practices, and culture within the DND/CAF. On 20 May 2021, DND/CAF engaged the Honourable Louise Arbour, former Justice of the SCC, to undertake the IECR.
12. The aim of this review was to shed light on the causes for the continued presence of harassment and sexual misconduct within DND/CAF, identify barriers to reporting inappropriate behaviour and 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 of the recruitment, training, performance evaluation, posting and promotion systems in the CAF, as well as the MJS' policies, procedures and practice to respond to such allegations was also conducted.
13. On 20 October 2021, Justice Arbour made interim recommendations to immediately refer all investigations, charges, and prosecutions related to allegations of sexual assault and other criminal offences of a sexual nature under the Criminal Code to civilian authorities. Shortly thereafter, both the Canadian Forces Provost Marshal and the Director of Military Prosecutions, acting under their independent authorities and acknowledging the crisis of public confidence in the MJS, particularly as it relates to allegations of sexual misconduct, issued directions to implement Justice Arbour's interim recommendations immediately.
14. The final IECR report was released on 20 May 2022, setting out 48 recommendations to strengthen CAF policies, procedures, programs, practices, and culture. On 30 May 2022, the MND welcomed all 48 recommendations in the IECR, announced that work to implement 17 of the recommendations would begin immediately, and instructed DND/CAF to provide an assessment and path forward for the remaining recommendations in short order. On 13 December 2022, the MND tabled a report in Parliament that outlined the path forward DND/CAF had to undertake on all 48 of Justice Arbour's recommendations.

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Implementation of External Comprehensive Reviews

16. The Judge Advocate General (JAG) noted that IR3 "provides an important opportunity to ensure the military justice system continues to evolve as it is brought into a new era of modernization." The reviews led to the JAG standing up the Military Justice Modernization Division in July 2021 to support the implementation of military justice-related recommendations.
17. Efforts to implement these recommendations are being tracked through the DND/CAF Comprehensive Implementation Plan, a multi-year, phased, plan aimed at creating a more open, transparent, and accountable approach to culture evolution and military justice modernization initiatives.
18. On 21 March 2024, Bill C-66 was introduced in Parliament. The Bill reflected the continued evolution of the MJS, and it included amendments related to recommendations made in IR3 and IECR reports. With the prorogation of Parliament on 6 January 2025, Bill C-66 died on the order paper.