The Office of the JAG

The Office of the Judge Advocate General (JAG) is an element of the Canadian Armed Forces (CAF) that provides support to the JAG in the performance of his duties. The Office is embodied in the regular force of the CAF, and the JAG is designated as an officer having the power and jurisdiction of an officer commanding a command.

The duties of the legal officers posted to a position within the Office of the JAG are determined by or under the authority of the JAG and with respect to the performance of their duties, those legal officers are not subject to the command of any officer who is not a legal officer.

The Office of the JAG comprises regular force and reserve force legal officers. The regular force legal officers are employed throughout the CAF, in Canada and abroad as follows:

  • National Defence Headquarters in Ottawa;
  • Assistant Judge Advocate General (AJAG) offices, six in Canada, one in the United States and one in Germany;
  • Deputy Judge Advocate (DJA) offices across Canada;
  • Regional Military Prosecutor (RMP) offices across Canada;
  • with CAF contingents deployed overseas; and
  • in training with CAF formations and units participating in major national and international exercises.

In addition, legal officers are also employed in the Office of the Legal Advisor to the Department of National Defence and the Canadian Forces (DND/CF LA) and the CAF Military Law Centre.

For additional information on the structure of the Office of the JAG, please refer to the JAG Annual Report.

Military Law

The Judge Advocate General performs two unique statutory roles set out in the National Defence Act (NDA). The Judge Advocate General is the commissioned officer, appointed by the Governor in Council, to superintend the administration of military justice in the Canadian Armed Forces [s. 9.2(1)].

In respect of that superintendence function the late Chief Justice Lamer commented that the intention of the legislative provision “was to recognize and continue the exercise of responsibilities similar to those of the Attorney General as historically performed by the JAG under English common law”.1

The Judge Advocate General also performs a separate function as a legal advisor to the Governor General, the Minister, the Department and the Canadian Armed Forces in matters relating to military law [s. 9.1]. Canadian military law includes the law relating to the constitutionally separate system of military justice as well as the governance, administration and activities of the Canadian Armed Forces.

Military law governs the armed forces in peace and during armed conflict, at home and abroad. The breadth of the scope of military law is reflected in the fact that the Judge Advocate General is a legal advisor to both the Department and the Canadian Armed Forces.

Here s. 9.1 of the National Defence Act reflects the role of the Judge Advocate General in providing advice in respect of matters relating to both international operations and the domestic deployment of the Canadian Armed Forces on operations such as sovereignty patrols and in assistance to civilian law enforcement.

“Military law” means:  “... all international and domestic law relating to the Canadian Forces, including its governance, administration and activities”.2

The areas of military law advice for which the Judge Advocate General is directly responsible include, but are not limited to, international and operational law, criminal law and military justice policy, military training and education, grievances, boards of inquiry and summary investigations, elections law, compensation and benefits, military personnel law and the organization, command and control of the Canadian Armed Forces.

Operational law, which has emerged over the past 30 years as a fundamental area of military law advice, is defined as the body of domestic and international law that applies to the conduct of all phases of a CAF operation at all levels of command.3

It includes, but is not limited to, the law relating to intelligence, information operations, computer network operations, international human rights law, international humanitarian law and weapons reviews.

The Office of the Judge Advocate General provides all legal services at the operational Commands (Canadian Joint Operations Command (CJOC), Canadian Special Operations Forces Command (CANSOFCOM)); at North American Aerospace Defence Command (NORAD); in field offices across Canada and in Germany; and on deployed operations.

Divisions and Directorates of the Office of the Judge Advocate General

The Office of the JAG is composed of the Directorate of Military Prosecutions, the Directorate of Defence Counsel Services, and the following five Divisions: Military Justice, Administrative Law, Operational Law, Regional Services, and Chief of Staff.

Deputy Judge Advocate General/Operations (DJAG/Ops)

The Operational Law Division provides legal support to the CAF and DND in matters related to operational law. Operational law is the body of domestic and international law that applies to the conduct of all phases of CAF international or domestic operations at each level of command.

Strategic Joint Staff Legal Advisor (SJS/LA)

  • Operational law legal advice (e.g. international humanitarian law, international human rights law, law of the sea, international air and space law, domestic law and crown prerogative), with respect to the deployment of the Canadian Armed Forces on both domestic and international operations including:
    • Deployed Air, Land, Naval and Satus of Forces (SOF) operations
    • NORAD and continental operations
    • Humanitarian Disaster Relief Operations
    • Assistance to law enforcement agencies (counter drugs, fisheries and Chemical, Biological, Radiological, Nuclear & Explosives (CBRNE))
    • Aid of the Civil Power
  • Departmental Memorandum of Understanding (MOU) Coordinator

Directorate of International and Operational Law (DIOL)

  • International and Operational Law legal advice on matters affecting the Canadian Armed Forces and the Department of National Defence including International Criminal Law, Status of Forces Agreements, Arms Control Agreements, customary international law and international instruments (treaties, conventions, MOUs)
  • Review of new weapons, means and methods of warfare under Article 36 of the First Additional Protocol to the Geneva Conventions of 1949

Directorate of Law/Intelligence and Information Operations (DLaw/I&IO)

  • Defence Intelligence and Information Operations Law including Signals Intelligence (SIGINT), Imagery Intelligence (IMINT), Geospatial Intelligence (GEOINT), Electronic Intelligence (ELINT) and Human Intelligence (HUMINT)
  • Intelligence Information Sharing including disclosure, use, sharing and
  • International Intelligence Sharing Cyber Security including Computer Network Operations (CNO) Legal Support to (International Domestic and Criminal Tribunal (IDTC) regarding International Tribunals (International Criminal Court (ICC), International Criminal Tribunal for the Former Yugoslavia (ICTY) and International Criminal Tribunal for Rwanda (ICTR))

Canadian Military Prosecution Service (CMPS)

Criminal Law and Military Justice including:

  • Prosecutions at courts martial
  • Pre-trial custody hearings under the NDA
  • Preferral of charges for trial at courts martial
  • Criminal investigations
  • Representation on appeals from courts martial and Court Martial Appeal Court of Canada (CMAC)
  • Representation at other hearings relating to specific cases
  • Prosecution policy development

Defence Counsel Services (DCS)

Criminal Law and Military Justice including:

  • Legal Counsel at courts martial
  • Legal Counsel on appeal from courts martial
  • Legal Counsel at hearings regarding fitness to stand trial
  • Legal Counsel at pretrial custody hearing
  • Legal Advice to arrested or detained CAF members
  • Representation at other hearings relating to specific cases
  • Legal Advice to assisting officers and persons tried by summary trial
  • Legal advice to CAF members being investigation under the Code of Service Discipline, Boards of Inquiry or Summary Investigations

Chief of Staff - JAG (COS JAG)

Military training and education including:

  • International Humanitarian Law
  • Military administrative law
  • Military justice
  • Air and space law
  • Law of the Sea
  • Domestic law impacting military operations
  • Business law

Deputy Judge Advocate General/Regional Services (DJAG/RegSvs)

  • Military Justice and Military law legal advice to National Defence Headquarters (NDHQ) (Environmental Chief of Staff (ECS), Level One Advisor (L1) and Canadian Forces Support Unit (Ottawa) Commandant (Cmdt CFSU(O))).
  • Supervises the delivery of Military Justice, Military Law, and General legal advice (e.g. claims, contracts, real property, aboriginal law and environmental law) to CAF units in Canada, the US and Europe in consultation with DND/CF LA and/or Department of Justice regional offices.

Deputy Judge Advocate General/Military Justice (DJAG/MJ)

The Military Justice Division assists the JAG in superintending the administration of military justice and ensuring its responsible development within the Canadian justice system. It comprises two directorates: Military Justice Operations and Military Justice Strategic.

Directorate of Law/Military Justice – Strategic (DLaw/MJ Strat)

Military Justice (MJ) & Criminal Law, including:

  • Support to JAG in the superintendence of the military justice system
  • Develop and implement a strategic military justice vision
  • Anticipate and respond to internal and external challenges while bringing positive change to the military justice system
  • Promote a broad understanding of the military justice system and conduct Strategic Legal Engagement
  • Contribute to the active involvement of the chain of command, as well as legislative, executive, professional, and academic communities in the development of the MJ system
  • Work to ensure that the MJ system evolves in a manner reflecting its critical role in the maintenance of discipline, efficiency and morale within the CAF.

Directorate of Law/Military Justice – Operations (DLaw/MJ Ops)

Day-to-day operation of the CAF military justice system, including:

  • Support to the JAG in the superintendence of the military justice system
  • Reviews of the military justice system and producing annual report to the Minister of National Defence (MND)
  • Provides legal advice to the Canadian Forces Military Police Group Headquarters regarding military police policy and professional conduct
  • Support to legal officers advising field units on military justice matters
  • Support to the JAG in fulfilling general supervisory responsibilities with respect to the prosecution and defence functions within the MJ system.

Deputy Judge Advocate General/Administrative Law (DJAG/AL)

The Administrative Law Division advises on legal matters pertaining to the administration of the CAF. The Division is composed of three directorates: Military Personnel, Administrative Law and Compensation, Benefits, Pensions and Estates.

Directorate of Law/Administrative Law (DLaw/Admin Law)

  • Military Administrative Law including:
    • Grievances
    • Judicial Review
    • Boards of Inquiry and Summary Investigations
    • Ministerial Organizational Orders and Canadian Armed Forces Organizational Orders
  • Elections Law

Directorate of Law/Compensation, Benefits, Pensions & Estates (DLaw/CBP&E)

  • Compensation and Benefits including:
    • Pay
    • Allowances and other financial entitlements
    • Garnishment
  • CAF Pension Law
    • Superannuation
    • Disability
  • Service Estates and Wills

Directorate of Law/Military Personnel (DLaw/Mil Pers)

  • Organization, Command and Control of CAF including:
    • Rank, seniority, command precedence
    • Removal from Command
    • Duties and Responsibilities of CAF members
  • Military Personnel Law including:
    • Career Administration (e.g. Conditions and Terms of Service, Administrative Action, Releases and Misconduct)
    • Personal Records and Documents including pardons
    • Civilian employment, political activities
    • Military Police (MP) Credentials Review Board

The National Defence Act (NDA)

The National Defence Act, R.S.C. 1985, chapter N5, was amended by the passing by Parliament of the National Defence Act, S.C. 1998, chapter 35, which was assented to on 10 December 1998 and came into force on 1 September 1999. All references are to the latter statute.

The National Defence Act is the legal basis for the formation of the Canadian system of military justice. It is an Act of Parliament passed under the powers reserved to the federal government to provide for national defence. As a part of the National Defence Act, a Code of Service Discipline is established under Part III.

This Code sets out the jurisdiction of the Canadian Armed Forces, the service offences and punishments, provides for arrest and pretrial custody of service members, sets out the military tribunals empowered to hear cases under the Code, and establishes a Court Martial Appeal Court composed of civilian judges.

Members of the Canadian Armed Forces are subject to the Code of Service Discipline and are also subject to all other laws of Canada.

The need for a separate and distinct military justice system that can work in times of peace and conflict in Canada and abroad, wherever the Canadian Armed Forces are deployed, has been recognized by the Special Advisory Group on Military Justice and Military Police (Investigation) Services.

That group was headed by the Right Honourable Brian Dickson, former Chief Justice of the Supreme Court of Canada. It made recommendations for changes that touch on all aspects of the military justice system. The recommendations have been incorporated into the National Defence Act.

The Supreme Court of Canada states in the case of R. v. Généreux, [1992] 1 S.C.R. 259:

"The purpose of a separate system of military tribunals is to allow the Armed Forces to deal with matters that pertain directly to the discipline, efficiency and morale of the military. The safety and well-being of Canadians depends considerably on the willingness and readiness of a force of men and women to defend against threats to the nation's security. To maintain the Armed Forces in a state of readiness, the military must be in a position to enforce internal discipline effectively and efficiently. Breaches of military discipline must be dealt with speedily and, frequently, punished more severely than would be the case if a civilian engaged in such conduct. As a result, the military has its own Code of Discipline to allow it to meet its particular disciplinary needs."

The Charter of Rights and Freedoms is a part of the Constitution, the paramount law of the land. All statutes of Parliament are subject to the Charter. This includes the National Defence Act and the system of military justice provided by the Act. The Constitution Act states at section 52(1):

"The Constitution of Canada is the supreme law of Canada, and any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect".

Footnotes

1 The First Independent Review by the Right Honourable Antonio Lamer P.C., C.C., C.D. of the Provisions and Operation of Bill C25, An Act to amend the National Defence Act and to Make Consequential Amendments to Other Acts, as required under section 96 of Statutes of Canada 1998, c. 35, (2003) at 12.

2 Similarly, at section 2 of the Criminal Code of Canada, the definition of  “military law includes all laws, regulations or orders relating to the Canadian Forces”.

3 For a United States definition of international and operational law see FM 104 (27100) Legal Support to the Operational Army, paragraph 514 at p. 53 (15 April 2009): “International law is the application of international agreements, U.S. and international law, and customs related to military operations and activities. Operational law is the body of domestic, foreign, and international law that directly affects the conduct of military operations.” 

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