Chapter 2: Superintendence of the Administration of Military Justice: Proactive Oversight, Responsible Development and Positive Change

In the 2010-2011 Annual Report to the Minister of National Defence, the Judge Advocate General (JAG) and his senior leadership team unveiled a strategic guidance document to all civilian and military members of the Office of the JAG: the JAG Mission and Vision. This document outlined the JAG’s intent to achieve the Mission and Vision through a focus on four strategic goals, and thirteen strategic objectives, and it has been highly successful in orienting the Office of the JAG in a common direction.

The JAG’s Strategic Goal #2 is to “lead proactive military justice oversight, responsible development and positive change.” This goal is clearly linked to the JAG’s statutory mandate to superintend the administration of military justice. The goal has been advanced during the reporting period in several important ways, some of which are described below.

Victims Rights

In terms of responsible development and positive change, the Office of the JAG made considerable efforts during the reporting period in determining how victims rights could be incorporated into the military justice system. Initial policy analysis on victims rights began prior to the start of the reporting period, but the Government’s tabling of Bill C-32 (the Victims Bill of Rights Act) on April 3, 2014, reinforced the important need for continued enhancements to the role of victims within Canada’s justice systems. The Minister of Justice noted during debate on Bill C-32 in the House of Commons that the Victims Bill of Rights Act would not apply in respect of service offences investigated or proceeded with under the Code of Service Discipline because of the particular challenges with extending this bill of rights into the military culture and into the military justice system, particularly for summary trials (disciplinary tribunals that are administered by the chain of command). However, the Minister of Justice indicated that the government was working to ensure that victims rights would be mirrored to the greatest extent possible within the military justice system. The Minister of National Defence confirmed the government’s intention to strengthen victims rights within the military justice system during a speech at the swearing-in ceremony for the new Chief Justice of the Court Martial Appeal Court, the Honourable B. Richard Bell.

The Office of the JAG continues to provide the legal and policy support to the Minister of National Defence in order to achieve the Government’s intent with respect to victims. As the superintendent of the administration of military justice, the JAG fully supports the implementation of additional victims’ rights in the military justice system. Such a change would clearly advance the JAG’s strategic goal of leading proactive military justice oversight, responsible development and positive change.

Accidental and Negligent Discharges

As reported in the last annual report, an important court martial decision (R. v. Brideau, 2014 CM 1005) clarified the law with respect to accidental and negligent discharges of weapons by individuals who are subject to the Code of Service Discipline. Specifically, the Brideau decision stressed that a mental fault element of criminal negligence (involving a marked departure from the expected standard of care) is the minimum mental fault element that must be established before an individual can be found guilty of any offence under section 129 of the National Defence Act (NDA). The court martial stated that offences under section 129 are not absolute liability offences, and that purely accidental discharges of weapons (i.e.: discharges that do not involve any criminal negligence) cannot amount to offences under that section.

As a matter of proactive military justice oversight, and in order to ensure that the law surrounding accidental and negligent discharges is being applied correctly, unit legal advisors were briefed on the impact of the Brideau decision by subject matter experts from the Office of the JAG’s Military Justice Division as part of the Office of the JAG’s annual Continuing Legal Education Conference in October 2014.

Strategic Legal Engagement

Strategic legal engagement (SLE) involves the establishment of links, alliances and partnerships with key stakeholders in order to shape and facilitate the development and understanding of the role of the Office of the JAG in providing solution-oriented legal advice and services across the full spectrum of military law to better achieve CAF, departmental and Government of Canada objectives. SLE represents one of the ways in which the JAG’s strategic goal of “responsible development and positive change” in the field of military justice can be advanced. During the reporting period, a number of important SLE initiatives were undertaken.

First, the Office of the JAG’s Military Justice Division maintained a productive and ongoing dialogue with the Department of Justice’s Criminal Law Policy Section in order to ensure that, where appropriate, the military justice system develops in harmony with Canada’s civilian criminal justice system. The results of this dialogue can be seen in various bills that involve amendments or proposed amendments to both the Criminal Code and the NDA, such as Bill C-14 (the Not Criminally Responsible Reform Act, assented to on April 11, 2014), and Bill C-53 (the Life Means Life Act, introduced in the House of Commons on March 11, 2015). These bills demonstrate how the military justice system continues to evolve in parallel with the civilian criminal justice system.

Second, legal officers from the Office of the JAG were active at various international and academic forums involving military justice study, debate, and discussion. For instance, in November 2014, the Deputy JAG for Military Justice participated in an expert consultation process, convened in Geneva by the United Nations’ Office of the High Commissioner for Human Rights, on the administration of justice through military tribunals. Also in November 2014, another legal officer participated in the Global Military Justice Reform Seminar at Yale Law School, where leading military justice commentators, policy-makers, and practitioners were gathered to discuss global developments and trends in the law. Participation in these forums has helped to broadly promote a better understanding of the fundamental purposes of professional and sophisticated military justice systems, like the Canadian system, and provides the Office of the JAG with valuable opportunities to both learn and teach about best practices in the domain of military justice.

Third, the Office of the JAG provided support to the National Defence Global Engagement Strategy through participation in multilateral and bilateral engagements with key defence partners such as Brazil, Jordan, Israel and Peru. Participation in these engagements provided quality information on military justice, advanced significant international partnerships, and offered constructive opportunities to share the policies and principles entrenched in Canada’s military justice system.

Fourth, the Office of the JAG was fully engaged with the senior leadership of the CAF, and the Military Justice Division was specifically engaged for the purposes of exchanging information about future military justice initiatives. These interactions provided critical perspectives on the military justice system from one of the system’s most important groups of stakeholders: the users of the system who depend on its fair and effective functioning as a means of maintaining discipline, efficiency, and morale within the CAF.

Fifth, the Office of the JAG hosted a very successful one-day international military justice conference in October 2014, as part of the Office of the JAG’s annual Continuing Legal Education Conference. The Office of the JAG was fortunate to benefit from the participation of a wide array of esteemed individuals, including the senior military legal advisors to the United States and British armies, senior military prosecutors from Australia and the United Kingdom, and law professors with renowned expertise in military justice from both Canada and the United States. The building of relationships and the exchange of ideas that took place among the participants was remarkable, and has already produced a valuable benefit to the Office of the JAG by facilitating access to key subject matter experts for legal officers engaged in the comparative study of military justice systems.

Conclusion

Proactive military justice oversight, responsible development and positive change all remain a top priority for the JAG. However, this strategic goal can only be achieved through active and concerted effort, including through the kinds of initiatives undertaken over the last reporting period. The JAG continues to advance these and other new initiatives as a means of furthering his strategic goal, and of ultimately fulfilling his statutory responsibility to superintend the administration of military justice. This, in turn, ensures that Canada’s military justice system is one of which all Canadians can be proud and reaffirms Canada’s role as a leader in military justice in the international arena.

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