Remarks of the Judge Advocate General – University of Ottawa Military Law Conference – 13 November 2015

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MGen B.B. Cathcart
Judge Advocate General

Military Law Conference

Fauteux Building, Faculty of Law, University of Ottawa, ON
13 November 2015, 0840-0900 hours


Good morning, I would like to thank Dean Natalie Des Rosiers for the invitation to speak today.

I would also acknowledge the presence of Chief Justice Richard Bell of the Court Martial Appeal Court, other honourable Justices, Judge Jeff Blackett, and particularly the students who could be with us today.

Military justice is a subject that is extremely important to me as the Judge Advocate General, both because of my statutory responsibilities in relation to military justice, and because of my experience in seeing how a fair and effective military justice system contributes to the operational effectiveness that is necessary for success in Canadian Armed Forces missions throughout Canada and the world.

Under the National Defence Act, as the Judge Advocate General, I am the legal adviser to the Governor General, the Minister, the Department of National Defence and the Canadian Forces in matters relating to military law.  However, today my remarks will focus on my role in relation to the military justice system, that is to say my authority on all matters related to the administration of military justice and my statutory responsibilities to certain players like the Director of Military Prosecutions.

In any of these statutory duties and functions, I am responsible, not to the CDS or anyone in the military chain of command, but to the Minister of National Defence (and through him to Parliament).

I will start with a brief overview of the system.

The Code of Service Discipline, which is part of the National Defence Act, establishes a separate military justice system. The system operates in parallel with the civilian criminal justice system.  Importantly, the military justice system has been recognized by the Supreme Court of Canada as being both necessary and constitutionally valid. Those who are subject to the Code of Service Discipline must adhere to an additional set of rules.  These rules are intended to make certain that our forces maintain the highest standards of discipline, performance, and conduct. 

Discipline, however, is a means, and not an end.  Ultimately, the military justice system strives to achieve two fundamental ends, or purposes:

  1. The first, like the civilian justice system, is to contribute to respect for the law and the maintenance of a just, peaceful and safe society.  
  2. The second and separate purpose is to promote the operational effectiveness of the Canadian Forces by contributing to the maintenance of discipline, efficiency and morale.

Provisions of the Code of Service Discipline create “service offences”, including some that are unique to the military, such as desertion or negligent performance of a military duty. The Code also captures offences created by the Criminal Code or any other Act of Parliament.  The extent to which services tribunals may exercise jurisdiction over these offences is a matter that has recently been argued before the Supreme Court of Canada.

Service offences are tried by way of either a summary trial or a court martial, and the differences between the two are fairly straightforward.  Summary trials are prompt and fair trials presided by officers within an accused person’s chain of command, and are reserved for less serious offences involving less serious punishments.  One of my roles in relation to summary trials is to certify the officers who preside over these trials as qualified to perform their duties.  It is also important to note that whenever true penal consequences may result from a summary trial, an accused has a right to “elect to be tried by court martial” that allows an individual to make an informed choice between having a matter heard at summary trial or court martial. 

Courts martial are trials before military judges who possess all the constitutional hallmarks of judicial independence. These proceedings involve prosecutors representing the Director of Military Prosecutions, and an accused has a right to be represented by a lawyer, either provided by the Director of Defence Counsel Services at no expense to the accused, or by a civilian lawyer at the accused own expenses.  Courts martial can try any service offence, and can impose any punishment under the National Defence Act up to life imprisonment. 

With this brief overview in mind, I will now describe how I as the Judge Advocate General fit into this system: first, through superintendence of the administration of military justice; and, second, through my statutory relationships with different actors in the court martial system. 

Superintendence

The National Defence Act provides that I have superintendence of the administration of military justice in the Canadian Forces, in much the same terms that the Minister of Justice, by virtue of the Department of Justice Act, is responsible within the civilian system for “superintendence of all matters connected with the administration of justice in Canada, not within the jurisdiction of the governments of the provinces.”  

“Superintendence” is not defined in statute.  In older English common law, and now in the British Prosecution of Offences Act, “superintendence” refers to the Attorney General’s power to supervise the Director of Public Prosecutions.  However, Canadian law has taken a different approach.  If we look at the federal Department of Justice Act, we see that it is the Minister of Justice, not the Attorney General, who has superintendence of the administration of justice in Canada.  Indeed it is a different section of the Act that sets out the Attorney General’s responsibilities for supervising and conducting litigation in the name of the Crown.  The National Defence Act mirrors this pattern of separately creating a superintendence responsibility in s. 9.2(1) of the Act, and responsibilities to supervise the Director of Military Prosecutions elsewhere in the Act.  In other words, “superintendence” in Canada means something different than an authority to generally supervise a Director of Prosecutions. 

To that end, my superintendence responsibility obligates me to ensure that the military justice system is appropriately resourced, and that it operates efficiently, effectively, and in accordance with the rule of law. 

Of course, in order to discharge my superintendence responsibility, I need to draw information from and consult with a variety of sources.  For instance, the Office of the Judge Advocate General ensures that every Record of Disciplinary Proceedings arising from a summary trial is legally reviewed and where necessary, review authority within the chain of command are given appropriate advice.  I ensure that the information from these trials is captured in a way that allows for reporting and tracking of trends.  I consult with the Director of Military Prosecutions and the Director of Defence Counsel Services regularly, and they have the opportunity to inform me of any issues that may be of systemic importance or concern.

I am also required by statute to conduct regular reviews of the administration of justice and participate in the independent review that the Minister of National Defence is required to undertake every seven years. Ultimately, with all of this information, my Military Justice Division and I continue to work toward the strategic goal of leading proactive military justice oversight, responsible development, and positive change. To me, this is the meaning of superintendence.

A good example of superintendence and responsible development of the military justice system is Bill C-71, An Act Respecting the Rights of Victims within the Military Justice System, tabled last June in Parliament and which died on the order paper in August when Parliament was dissolved.  This draft transformative legislation aimed at strengthening the rights of victims in the military justice system and revised the summary trial system.

Prosecutions

With this concept of superintendence in mind, I will now speak briefly about my relationship with the Director of Military Prosecutions.  The Director of Military Prosecutions is appointed by the Minister of National Defence for a term of four years and is removable only for cause. He is assisted by a team of Legal Officers who serve as his trial and appellate Counsel.  The Director of Military Prosecutions is, by statute, responsible for preferring charges to court martial and for the conduct of all prosecutions at courts martial. 

The National Defence Act gives me a separate responsibility to generally supervise the Director of Military Prosecutions, and an associated authority to issue general instructions and guidelines to the Director of Military Prosecutions in respect of prosecutions.  I also have statutory authority to issue instructions and guidelines in respect of a particular prosecution, which the Director of Military Prosecutions would generally be obliged to make public, just as the federal and provincial Attorneys General have express or implied powers to issue such instructions and guidelines to their respective Directors of Public Prosecutions.  In point of fact, the JAG has issued only two general instructions to Director of Military Prosecutions: one in relation to prosecutions, and a second related to court martial delay. Both of these general instructions are publicly available.

Although the Director of Military Prosecutions falls under my general supervision, this supervision is subject to certain constraints imposed by virtue of the Canadian Constitution. We have a rich history of jurisprudence and academic commentary in Canada essentially pointing to the same conclusion: prosecutorial decision-making has a quasi-judicial dimension to it, and must therefore take place free from any improper political or other influences. 

This principle is commonly known as the Shawcross Doctrine, after it was articulated in 1951 by Lord Shawcross, the Attorney General of England at the time. In the civilian criminal justice system, this doctrine is respected through a recognition that Attorneys General, although they may also be partisan Ministers of the Crown responsible for Departments of Justice, must refrain from improperly influencing the day-to-day workings of the relevant prosecution services.  In other words, it is accepted that a single individual can be appointed as Attorney General and a Minister of the Crown so long as, when he or she is acting in the constitutional Attorney General role and making prosecutorial decisions, he or she does so free from inappropriate influence. 

This constitutional doctrine governs my actions as the Judge Advocate General as well: in the military justice system, I am constitutionally obligated to refrain from improperly influencing the day-to-day decisions of the Director of Military Prosecutions.  Both the law and practice on this point was implicitly recognized by the Court Martial Appeal Court in its 2014 Wehmeier decision, wherein the Director of Military Prosecutions’ entitlement to deference on questions of prosecutorial discretion was acknowledged, and was equated by the Court to the deference that the Attorney General receives on questions of prosecutorial discretion.  The court in this case explicitly noted that the “the Director of Military Prosecutions’ decision to prefer charges and the decision to continue with a Standing Court Martial were his alone to make and come within the core of prosecutorial discretion.” It would be impermissible for me to attempt to interfere with this discretion for any political, personal, or partisan reasons.

A well accepted corollary of the Shawcross Doctrine is that there must nonetheless be accountability of, and control over, the way in which a prosecution service operates, ultimately to Parliament or the legislature, and through these bodies, to the public.  In England, the Attorney General who supervises the Director of Public Prosecutions is by convention a Member of Parliament.  In the Canadian civilian system, although the federal Attorney General is part of Cabinet when acting in his or her Minister of Justice capacity, she is accountable as Attorney General to the House of Commons.  In the military justice system, the Director of Military Prosecutions is responsible to me – a Governor-in-Council Appointment just like the federal Attorney General – and I, in turn, am accountable to the Minister of National Defence, who answers in Parliament for matters relating to the military prosecution service. 

In other words, Canadian law recognizes that prosecutorial independence is not absolute.  If there is to be accountability for prosecutions and control over prosecution services, then someone - whether an Attorney General, a Judge Advocate General, or a Minister - must ultimately be able to supervise, and then answer in Parliament for, a prosecution service.  Canadian law does not permit improper influences on prosecutions, but in both the civilian and military justice systems, our law accepts that properly published and transparent, non-partisan instructions and guidelines to a Director of Prosecutions can be both necessary and lawful. 

Director of Defence Counsel Services

My relationship with the Director of Defence Counsel Services is somewhat different.  Like the Director of Military Prosecutions, the Director of Defence Counsel Services is appointed by the Minister for a fixed term of 4 years, and may only be removed for cause related to a number of factors set out in the regulations by the GIC.  The Director of Defence Counsel Services is also assisted by a team of legal officers who represent individual accused members. As with the Director of Military Prosecutions, the National Defence Act places the Director of Defence Counsel Services under my general supervision, and authorizes me to issue instructions and guidelines to the Director of Defence Counsel Services, which would be made public, regarding the provision of defence counsel services. To date, I and my predecessors have only issued one publicly available general instruction to the Director of Defence Counsel Services, related to court martial delay.

I am fully aware, however, that constitutional dimensions of the right to a fair trial preclude me from exercising my general supervisory authority in a way that could create a real or perceived conflict of interest on the part of defence counsel. Given this requirement, I must, and do, fully respect that defence counsel, according to their own rules of professional conduct, owe a duty of undivided loyalty to their clients that I must not undermine through any general instructions or guidelines to the Director of Defence Counsel Services.  And of course, unlike with the Director of Military Prosecutions, the National Defence Act does not give me any authority to issue instructions or guidelines to the Director of Defence Counsel Services in respect of a particular case, since this would always create a real or perceived obstacle to a defence counsel’s duty of undivided loyalty to his or her clients.

Nonetheless, my responsibility to generally supervise the Director of Defence Counsel Services and my authority to issue general instructions and guidelines are necessary control and accountability mechanisms that allow the public, through Parliament, through the Minister of National Defence, through me, to have confidence that defence counsel services are being provided in a fair, efficient, and effective manner.  Without these provisions in the National Defence Act, there would be no accountability for or control over the important public resources that are expended on defence counsel services in the military justice system. 

Conclusion

In conclusion, my responsibilities and my authority as Judge Advocate General ensures that the Canadian military justice system remains effective, fair and responsible.

The system has operated successfully through periods of intense operational activity while elements of the Canadian Armed Forces were deployed in Afghanistan and throughout the world, and this operational crucible - through which military justice systems must all ultimately be tested - provides a clear example of the ways in which our military justice system continues to meet Canada’s needs.  Simply put, an effective military justice system, guided by the correct principles, is a prerequisite for the effective functioning of the armed forces of a modern democratic state governed by the rule of law.

With a better understanding of my responsibilities, you should also have confidence that I, and the legal officers who support me in my statutory duties and functions, remain vigilant in our efforts to achieve proactive oversight, responsible development, and positive change within the military justice system, so that the system can continue to fulfill the expectations of the Canadian public and meet the needs the Government of Canada, the Canadian Armed Forces and its members.  Moreover, the military justice system must always fiercely promote and protect the very democratic values and the rule of law that our men and women in uniform willingly put themselves in harm’s way and are willing to die for.

With these brief remarks, I hope that you will all enjoy this conference.  As you listen closely to the various speakers, I would also ask that you keep an open mind and actively challenge all you hear.  Thank you. 

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