Military Justice :::  

• Canadian Military Prosecution Service
• Office of the Director of Defence Counsel Services

---

Military Justice is one of the three “pillars” of Canadian military law (the other two pillars being operational law and military administrative law). Legal officers working in the field of military justice undertake a variety of work, including the development of legal policy, the review and proposed amendment of laws and regulations related to military justice, ongoing research into the actual operation of the military justice system, the prosecution and defence of individuals at courts martial, acting as appellate counsel before the Court Martial Appeal Court of Canada, as well as many other tasks relating to the system of maintaining and enforcing discipline in the Canadian Forces.

Structurally, the Office of the JAG is composed of six sub-organizations: the Canadian Military Prosecution Service, the Defence Counsel Services and four divisions that are headed by Deputy Judge Advocate Generals (DJAG) and include Military Justice and Administrative Law, Operations, Regional Services and Chief of Staff. Each of these divisions provides direct support to the military justice system. The following are the components of the Office of the JAG that deal with military justice issues.

Canadian Military Prosecution Service

The Canadian Military Prosecution Service (CMPS) is comprised of the Director of Military Prosecutions (DMP) and a team of regular and reserve force military prosecutors, along with civilian paralegals and support staff. The DMP holds office upon appointment by the Minister for a period not to exceed four years, and may be removed from office only by the Minister, for cause, on the recommendation of an Inquiry Committee.

The primary duties and functions of the CMPS are:

• Reviewing all charges referred through the chain of command and determining whether:
  • These charges should be tried by either a summary trial, court martial or not tried at all; and
  • If charges are deemed appropriate to be tried by court martial then prefer any other charge that is founded on facts disclosed by evidence in addition to or in substitution for the charges referred.
• Conducting – in Canada or overseas – the prosecution of all charges tried by courts martial.
• Exercising the right to appeal from all courts martial and acting as appellate counsel for the Minister of National Defence on all appeals from courts martial and the Court Martial Appeal Court of Canada.
• Acting as the representative of the Canadian Forces at all custody review hearings and before other boards and tribunals whose jurisdiction touches upon matters relevant to the military justice system.
• Providing legal advice to military police personnel assigned to the Canadian Forces National Investigation Service (CFNIS).

When exercising prosecutorial discretion in relation to the preferral of charges and the conduct of prosecutions, the DMP’s independence is protected by the institutional structures in both the NDA and common law. In this, the DMP’s situation is analogous to that of a Director of Public Prosecutions in the civilian criminal justice system. The legislation also explicitly empowers the DMP to withdraw charges that have been preferred.

The relationship between the JAG and the DMP is defined in the NDA. The DMP is under the “general supervision of the Judge Advocate General,” and the JAG who “may issue general instructions or guidelines in writing in respect of prosecutions or in respect of a particular prosecution”.  Except in limited cases, the DMP must ensure that such instructions are made available to the public, and the JAG must give the Minister a copy of every such instruction and guideline.

Should the JAG issue instructions to DMP, a copy of those instructions would be included in the JAG’s Annual Report to the MND for that year.

Click here for the Annual Report of the DMP, which includes:

• the DMP/CMPS organization, structure, role and personnel;
• training and communications within the CMPS; and
• DMP discussion of the challenges facing the CMPS.

Office of the Defence Counsel Services

The Office of the Defence Counsel Services(DCS) comprises the Director and the legal officers appointed to assist and represent the DDCS. Like the DMP, the DDCS is appointed by the Minister.

The duties of the DCS are defined pursuant to regulations. Further details are included in the Annual Report of the DDCS. Like the DMP, the DDCS is, by statute, insulated from other DND/CF authorities to protect the DDCS from potentially inappropriate influence. The DDCS performs his or her duties independently of the chain of command.

The DDCS “acts under the general supervision of the Judge Advocate General,” and the JAG  “may issue general instructions or guidelines in writing in respect of defence counsel services”. The JAG, however, is not authorized to issue instructions or guidelines in respect of a particular defence or court martial. Should the JAG issue instructions to DDCS, a copy of the instructions would be included in the JAG’s Annual Report to the MND for that year.