Canada’s Military Justice System
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- 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 maintenance of 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, to continuously adapt and evolve to reflect ever-changing Canadian legal and societal norms.
- Most recently in 2019, the Supreme Court of Canada (SCC) recognized the capacity of the MJS to evolve, to respond to calls for change, and to take the action needed to respond to developments in law and society:
The military justice system has come a long way. It has evolved from a command-centric disciplinary model that provided weak procedural safeguards, to a parallel system of justice that largely mirrors the civilian criminal justice system. Many of the key recommendations contained in the various reports referred to above have been implemented by Parliament through amendments to the NDA and associated regulations over the last 30 years. The continuing evolution of this system is facilitated by the periodic independent reviews mandated by s. 273.601 of the NDA ensuring the system is rigorously scrutinized, analyzed, and refined at regular intervals. This speaks to the dynamic nature of the military justice system. Just as the civilian criminal justice system grows and evolves in response to developments in law and society, so too does the military justice system. We see no reason to believe that this growth and evolution will not continue into the future.Footnote 1
- The MJS operates in a near-constant state of evolution and reform. When allegations of sexual misconduct involving the senior-most leadership of the Canadian Armed Forces (CAF) were emerging, and public attention was intensely focused on the continuing problem of systemic sexual misconduct in the CAF, there was already significant work in progress to further reform and modernize the MJS. For one, Bill C-77, An Act to amend the National Defence Act and to make related and consequential amendments to other Acts (Bill C-77) had received Royal Assent and work was well underway to develop the regulations required to bring its remaining provisions into force.
- These provisions include the Declaration of Victims Rights (DVR), which will provide the victims of service offencesFootnote 2 a number of rights that mirror those provided in the Canadian Victim Bill of Rights (CVBR). For another, the third regular independent review (IR3) of specified provisions of the National Defence Act (NDA), as mandated by section 273.601 of the NDA, was also well underway. The IR3 was launched in November 2020, when the Minister of National Defence (MND) appointed the Honourable Morris J. Fish, former justice of the Supreme Court of Canada (SCC), to conduct the review.
- The sexual misconduct crisis has highlighted a serious lack of trust and confidence among CAF members and the Canadian public in the ability of the MJS to effectively address this grave problem. Of particular note, these revelations provoked serious reflection at all levels on how victims and survivors of sexual misconduct are treated in the military justice system as well as on the deeply corrosive effect of sexual misconduct on the maintenance of good order, discipline, and morale in the CAF. Specific criticisms aimed at the MJS include: the perceived lack of support for complainants, victims and survivors of sexual misconduct; the perceived lack of independence of certain military justice actors; and the inability to pursue court marital proceedings against the Chief of the Defence Staff (CDS) given that officer’s position at the apex of the military chain of command. Recent events have also reintroduced the debate as to whether the MJS should retain jurisdiction over offences of sexual assault.
- The MJS exercises a key function in support of the critical culture change initiatives currently taking shape throughout the DND/CAF. Linked to its core purpose, it serves as an essential mechanism for enforcing the rules and regulations governing the conduct of CAF members, and for holding members accountable for their misconduct. There is no question that the present crisis has clearly emphasized those aspects of the system that require improvement and strengthening. To remain relevant and regain the trust and confidence of the public and the CAF, the MJS must be agile, it must respond to the evolving legal and social environment, and it must quickly and decisively embrace needed change.
- The MJS is currently in a state of significant evolution and modernization. In addition to the wide-ranging reforms that will come with the completed implementation of Bill C-77, other recent developments including the recommendations of the IR3, the recommendations of various parliamentary committees, the sexual misconduct crisis and ensuing media and public scrutiny, and the launch of the Independent External Comprehensive Review (IECR) led by the Honourable Louise Arbour, former justice of the SCC, are driving an accelerated and unprecedented modernization of the MJS. The implementation of these changes will result in a generational overhaul of the structure and functioning of the system – the most significant since it took its modern form in the 1950s – requiring significant time and resources, and necessitating a whole of government effort beyond DND/CAF.
- Section 4 of the NDA provides that the MND, “…has the management and direction of the Canadian Forces and of all matters relating to national defence.” MND responsibility for matters within the MJS is consistent with the Minister’s overarching role at the apex of the institution. For example, the MND is responsible for the appointment of certain key military justice actors – the Director of Military Prosecutions (DMP) and the Director of Defence Counsel Services (DDCS) – and for enabling the conduct of the regular independent reviews of specific provisions of the NDA, such as that recently conducted by Justice Fish, and by Justices Lamer and Lesage on prior occasions. Additionally, the MND has the authority to appeal court martial decisions to the Court Martial Appeal Court of Canada (CMAC) – this role is effected in practice by the DMP who, on the instructions of the MND, exercises delegated authority to carry out the appeals function. The MND also has a reporting requirement under the NDA to table certain reports in Parliament, such as the reports of the periodic Independent Reviews, and the Annual Report of the Judge Advocate General on the Administration of Military Justice in the CAF.
- As it pertains to the modernization of the MJS, MND’s role includes ensuring that IRA recommendations, as well as those from other external reviews such as the IECR, are studied and implemented as appropriate in order to effect necessary positive change in the MJS. In relation to the IR3 recommendations made by Justice Fish, the MND accepted all 107 recommendations in principle, and committed to finalize their analysis and prepare an implementation plan by fall 2021, and provide this plan to the Standing Committee on National Defence (NDDN). The MND further committed to providing twice yearly updates on implementation progress to the NDDN. Additionally, the MND committed to begin implementation on 36 of the IR3 recommendations in the short term. Implementing these recommendations requires consultation with stakeholders and survivors to ensure that the work is done right. In this vein, the MND will be called upon to approve the CAF MJS modernization implementation plan on an ongoing basis.
- The MND’s role also involves supporting the legislative and regulatory initiatives related to the MJS modernization. Regarding Bill C-77, and in order to implement its remaining provisions including the Declaration of Victims Rights, the MND’s role is anticipated to be threefold: [REDACTED].
- A more comprehensive note building on the context above will be provided as part of the transition briefing materials, to inform MND in greater detail about the key MJS modernization and reform initiatives currently underway in DND/CAF, including key recommendations of the IR3. It will also provide background discussion of the purpose, foundations, and structure of Canada’s MJS, which will be relevant to MND both for a broader understanding of the MJS as well as for the practical fulfillment of MND’s roles within the MJS – particularly in relation to MJS modernization.
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