Canadian Military Law :::  

The Judge Advocate General performs two unique statutory roles set out in the National Defence Act. The Judge Advocate General is the commissioned officer, appointed by the Governor in Council, to superintend the administration of military justice in the Canadian 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 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 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 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 Forces on operations such as sovereignty patrols and in assistance to civilian law enforcement.

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 Forces.

Operational law, which has emerged over the past 30 years as a fundamental area of military law advice, is defined as that body of domestic and international law that applies to the conduct of all phases of a CF operation at all levels of command.²

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 (eg. CEFCOM, CanadaCOM, CANSOFCOM, CANOSCOM); at NORAD; in field offices across Canada and in Germany; at SHAPE; and on deployed operations.

The broad scope of military law is reflected in the attached chart setting out the responsibilities of the various Divisions and Directorates within the Office of the Judge Advocate General.

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 C·25, 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. For a United States definition of international and operational law see FM 1·04 (27·100) Legal Support to the Operational Army, para. 5·14 at p. 5·3 (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."

The broad scope of military law is reflected in the attached chart setting out the responsibilities of the various Divisions and Directorates within the Office of the Judge Advocate General.

JAG - DJAG/Ops
SJS LA	DIOL	D Law/I&IO
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 Forces on both domestic and international operations including: Deployed Air, Land, Naval and SOF operations NORAD and continental operations Humanitarian Disaster Relief Operations Assistance to law enforcement agencies (counter drugs, fisheries, CBRNE) Aid of the Civil Power Supervises the delivery of legal services to CEFCOM, CANADACOM, CANSOFCOM, CANOSCOM and deployed operations Departmental MOU Coordinator	International and Operational Law legal advice on matters affecting the Canadian 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) Legal Review of Weapons Systems Section 38 reviews	Defence Intelligence and Information Operations Law including SIGINT, IMINT, GEOINT, ELINT and HUMINT Intelligence Information Sharing including disclosure, use, sharing and International Intelligence Sharing Cyber Security including CNO Legal Support to IDTC regarding International Tribunals (e.g. ICC, ICTY and ICTR)

DMP	DDCS	DJAG/COS
Criminal Law and Military Justice including: Prosecutions at courts martial Pre-trial custody hearings under the NDA Preferral of charges for trail at courts martial Criminal investigations Representation on appeals from courts martial and CMAC Representation at other hearings relating to specific cases Prosecution policy development	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 pre·trial custody hearing Legal Advice to arrested or detained CF members Representation at other hearings relating to specific cases Legal Advice to assisting officers and persons tried by summary trial Legal advice to CF members being investigation under the Code of Service Discipline, Boards of Inquiry or Summary Investigations	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

JAG - DJAG/Regional Services
Military Justice and Military law legal advice to NDHQ (ECSs, L1s and 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 CF units in Canada, the US and Europe in consultation with DND/CF LA and/or Department of Justice regional offices.

JAG - DJAG/Military Justice and Administrative Law
D Law/MJP&R	D Law/CBP&E
Criminal Law and Military Justice including Support to JAG in the superintendence of the military justice system Military justice policy development, Reviews of the Military Justice System, Policing law, including policing standards and MPCC complaints	Compensation and Benefits including Pay Allowances and other financial entitlements Garnishment CF Pension Law Superannuation Disability Service Estates and Wills

JAG - DJAG/Military Justice and Administrative Law
D Law/MJP&R	D Law/CBP&E
Military Administrative Law including, Grievances Boards of Inquiry and Summary Investigations Ministerial Organizational Orders and Canadian Forces Organizational Orders Elections Law	Organization, Command and Control of CF including, Rank, seniority, command precedence Removal from Command Duties and Responsibilities of CF 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 MP Credentials Review Board

The National Defence Act, R.S.C. 1985, chapter N·5, 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 Forces, the service offences and punishments, provides for arrest and pre·trial 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 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 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. Genereux, [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."