RECOMMENDATIONS

A Restructured Military Justice System

This chapter highlights many of the deficiencies, theoretical and practical, of the current military justice system. The problems we uncovered are serious and significant. They cannot be addressed through simple cosmetic changes in the military justice system.

In this section we focus on the underlying philosophy of a restructured military justice system that will address many of the problems that have plagued the system, together with the general attributes of a system built on this philosophy.

Underlying Philosophy of the System

With few exceptions, CF members are Canadian citizens. As a basic rule, laws and procedures governing their conduct should be the same as those for other citizens. There is no inherent need for Canadians who happen to be soldiers to be treated differently from those who are not. Indeed, it is on the basis of equality before and under the law that France has abolished the use of military justice tribunals in peacetime. The Canadian military justice system should therefore parallel the civilian justice system unless there is clear justification for it to differ from the civilian system.

Justification for a different system can in fact be found in the goals of military justice, which reach significantly beyond those of civilian criminal justice. As with the civilian criminal justice system, the military justice system must seek to ensure public safety and the observance of important societal standards. CF members, like any other citizens, are subject to the criminal and other federal laws that apply to Canada's civilians. The procedures and safeguards of the military justice system must, in this respect, meet the standards of civilian justice. Otherwise, a soldier's right to equality before and under the law is compromised.

However, the military justice system is also designed to promote strict discipline, efficiency and high morale in the forces in order to achieve the military mission. As Chief Justice Lamer explained in R. v. Généreux:

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 Service Discipline to allow it to meet its particular disciplinary needs. In addition, special service tribunals, rather than the ordinary courts, have been given jurisdiction to punish breaches of the Code of Service Discipline. Recourse to the ordinary criminal courts would, as a general rule, be inadequate to serve the particular disciplinary needs of the military. There is thus a need for separate tribunals to enforce special disciplinary standards in the military.¹⁰⁸

The military must be prepared on short notice to perform a demanding and dangerous task. Strict discipline is an essential tool for ensuring this preparedness.

The peculiar nature of the military justice system, as opposed to the civilian system, can be seen from two examples - the first dealing with rules, the second with procedures for enforcing those rules.

• Obedience to lawful commands is central to effective military operations. Showing cowardice in the face of the enemy is a serious offence under the Code of Service Discipline. There is no counterpart for this offence in civilian life, simply because civilian life is not premised on the need for unswerving obedience to a higher authority.
• Misconduct must be responded to quickly to preserve discipline in the military. The structure, operation and limits of the military justice system should all be designed to achieve the basic goals of military justice - discipline, efficiency and high morale - in order to achieve the mission in a way that is fair and seen to be fair. At the same time, the military justice system must protect the same core values as those protected by the civilian justice system.
  

The Workings of a Restructured

Military Justice System

Reclassifying Misconduct

Part V of the National Defence Act creates a category of misconduct called a "service offence".¹⁰⁹ A service offence is defined as an offence under the act, the Criminal Code or any other act of Parliament, committed by a member subject to the Code of Service Discipline.¹¹⁰ Some service offences are not criminal or otherwise punishable in civilian life - for example, desertion, talking back to a superior, or showing cowardice before the enemy.¹¹¹

All service offences, no matter how minor, are now punishable by up to two years' imprisonment if tried by court martial. Because of the possibility of a substantial term of imprisonment, appropriate cautions must be given to a suspect in every case, often to the prejudice of the efficient resolution of an investigation of a relatively minor incident.

Sharper lines need to be drawn between the disciplinary and criminal kinds of misconduct that are now covered by the Code of Service Discipline, and appropriate investigative and trial procedures need to be established for each type. It is not necessary to create new forms of misconduct. The Code of Service Discipline contains ample provisions to satisfy the legitimate disciplinary needs of the military, but the misconduct identified in the Code should be reclassified, and distinct investigative, prosecutorial and trial procedures should apply according to the classification (see Figure 40.1).

In a restructured military justice system, the investigative, prosecutorial and adjudicative role of the commanding officer should be recognized and acknowledged as necessary for proper control of conduct defined as 'minor disciplinary misconduct'. Leaving discretion to commanding officers to control investigations and responses to minor disciplinary misconduct gives them the flexibility to apply appropriate measures to promote military discipline, efficiency and high morale. Under a system of reclassified misconduct, however, the commanding officer could use those powers only to investigate, try and punish minor disciplinary misconduct. By definition, such minor disciplinary misconduct could not be punishable by detention, dismissal or imprisonment. It also would not include what are now considered among the most serious service offences - those listed in QR&O 108.31(2).¹¹² By definition, major disciplinary misconduct would include some of the service offences listed in QR&O 108.31(2), such as desertion and traitorous utterances.

Prosecution or dismissal of a charge of minor disciplinary misconduct should no longer be able to block criminal prosecution for the same misconduct. In this sense, the disciplinary powers of the commanding officer would be akin to those afforded professional bodies such as provincial law societies and colleges of physicians and surgeons. Action by those bodies against individual misconduct does not preclude subsequent criminal prosecution for the same conduct. Nor would criminal prosecution prevent the professional body (or the commanding officer, in the case of the CF) from proceeding against the individual through the minor disciplinary process.

Image: Proposed Reclassification of Misconduct and Related Investigative and Trial Procedures

Recommendation

We recommend that:

40.1 The National Defence Act be amended to provide for a restructured military justice system establishing three classes of misconduct:

(a) Minor disciplinary: Any misconduct considered minor enough not to warrant detention, dismissal or imprisonment should be considered minor disciplinary misconduct. Examples might include a failure to salute and quarrelling with another Canadian Forces member. Minor disciplinary misconduct would not include service offences now listed in the Queen's Regulations and Orders (QR&O) 108.31(2);

(b) Major disciplinary: Any misconduct considered serious enough to warrant detention, dismissal or imprisonment should be considered major disciplinary misconduct triable only by court martial. This would include infractions such as some of those listed in QR&O 108.31(2). Examples might include being drunk while on sentry duty during a time of war, insubordination, and showing cowardice before the enemy. Major disciplinary misconduct would not include crimes under the Criminal Code or other federal statutes; and

(c) Criminal misconduct: Any misconduct that would constitute a crime and is to be the subject of a charge under the Criminal Code or other federal statute or under foreign law and triable only by court martial or a civil court.

In most cases,¹¹³ the distinction between minor and major disciplinary misconduct would depend on the type of punishment associated with the misconduct. The commanding officer, on learning of alleged misconduct, would determine whether it should be punishable by detention or imprisonment. If the commanding officer decided that detention or imprisonment would not be appropriate, he or she could try the alleged misconduct under summary procedures similar to those now available to the commanding officer to try service offences. However, if the commanding officer thought that the alleged misconduct should render an offender liable to detention or imprisonment, the misconduct would be dealt with as major disciplinary misconduct, and a much more independent investigative, charging and trial process would apply. Any alleged criminal misconduct would have to be dealt with through that same more independent investigative, charging and trial process.

Confinement to barracks would not be considered imprisonment or detention for the purposes of this misconduct classification scheme. Thus, minor disciplinary misconduct could be punished by confinement to barracks. Some might argue that allowing a penalty of confinement to barracks might violate Charter guarantees of fair legal process, since proceedings for minor disciplinary misconduct would offer no right to counsel and no right of silence. However, even if a prima facie violation of the Charter, the procedures applying to minor disciplinary misconduct would likely be saved by section 1 of the Charter. Section 1 would allow for a recognition of the very great importance of dealing with military discipline expeditiously to ensure safety and effective military operations.

This system of classification of misconduct still leaves the commanding officer with sufficient authority to handle the vast majority of disciplinary misconduct within the military, since most disciplinary misconduct is in fact minor. Yet it removes from the commanding officer control over the investigation, charging and prosecution, and trial of major disciplinary and criminal misconduct. Thus, the system is sufficiently flexible where it needs to be, and sufficiently independent where the dictates of justice demand.

40.2 To prevent abuse of the commanding officer's discretion to determine into which class the misconduct falls, there be formalized safeguards, provided for in the National Defence Act and regulations, including the possibility of independent military investigations into the misconduct, the authority of an independent military prosecutor to lay a charge for criminal misconduct arising out of the same incident, and the oversight performed by an independent Inspector General.
These proposed checks on the commanding officer's discretion are discussed in detail later in this section.

In the next few pages we set out recommendations for changes to the military justice system based on this classification of misconduct. We discuss investigative powers, the power to charge and prosecute, adjudication, and appeals. We also identify other changes to current military justice structures that are necessary to remedy the deficiencies identified during the course of this Inquiry.

Making Complaints about Misconduct

The QR&O require all members of the CF - officers and non-commissioned members - to report to the proper authority any infringement of the pertinent statutes, regulations, rules, orders and instructions governing the conduct of any person subject to the Code of Service Discipline.¹¹⁴ This rule is justified by the nature of the military institution and should not change.

40.3 The National Defence Act be amended to provide clearly that any individual in the Canadian Forces or any civilian can lay a complaint with Military Police without fear of reprisal and without having first to raise the complaint with the chain of command.

Still, there may be reluctance to report misconduct for fear of reprisals - and with very good reason, as we have unfortunately discovered. If Military Police become more independent of the commanding officer's influence, CF members will be more likely to report misconduct to them. (We discuss ways to enhance the independence of Military Police below.) Later in this section we also discuss how an independent Inspector General can protect CF members from reprisals for reporting misconduct.

Investigating Possible Misconduct

This chapter has identified several deficiencies relating to the investigation of misconduct in the CE Among those deficiencies are the influence of commanding officers on the conduct of investigations, conflicts of interest arising from the chain of command investigating its own operations, a lack of respect for the lawful conduct of operations and for the role of the Military Police, competing loyalties within the Military Police and the lack of MP resources to investigate adequately.

Despite the deficiencies we have noted, there appears to remain a need for a commanding officer to have the discretion to decide whether to have an incident involving possible misconduct investigated by a formal board of inquiry, a less formal summary investigation, or an MP investigation.

We did not have an opportunity to examine in depth the applicable regulations and guidelines about boards of inquiry. However, we noted that the board of inquiry investigating the CF deployment to Somalia included at least one member who had been involved in important staff functions related to the deployment. This raised the possibility, or at least the appearance, of conflict of interest or bias. Orders regarding selection of members should be examined with a view to precluding such a possibility in future.

As to summary investigations, we think that the discretion of a commanding officer to order a summary investigation in any manner he sees fit" is too broad. It ought to be circumscribed to ensure that all investigations comply with the guidelines on the use and conduct of summary investigations found in CFAO 21-9.

40.4 The Queen's Regulations and Orders should be amended to circumscribe the discretion of a commanding officer with respect to the manner of conducting summary investigations to ensure that these investigations are conducted according to the guidelines in Canadian Forces Administrative Order 21-9, dealing with general instructions for boards of inquiry and summary investigations.

Further, we think that the guidelines should be strengthened to ensure that summary investigations are more effective and used appropriately.

40.5 The guidelines in Canadian Forces Administrative Order 21-9 be amended to provide that

(a) summary investigations be restricted to investigation of minor disciplinary misconduct or administrative matters;

(b) those conducting summary investigations have some minimum training standard in investigations, rules of evidence, and the recognition of potential criminality;

(c) those conducting summary investigations have a specific duty to report matters of potential criminality directly to Military Police; and

(d) those conducting summary investigations be free from any conflict of interest.

The following recommendations seek to address the deficiencies of MP investigations specifically.

40.6 Military Police be independent of the chain of command when investigating major disciplinary and criminal misconduct.

On too many occasions, we have seen the results of a lack of independence of Military Police from the chain of command. Important investigations that should have been conducted were not. Those that were conducted were sometimes delayed at the instance of superiors - and carried out with inadequate resources. Because of their position in the chain of command, Military Police may have felt intimidated when investigating senior officers.

To ensure that Military Police can perform their functions without undue influence by those higher in the chain of command, it is essential that they be independent when investigating major disciplinary and criminal misconduct. However, Military Police who are attached to units or elements of the CF should remain under the command of their commanding officers for all purposes except for the investigation of major disciplinary or criminal misconduct. They would continue to perform tasks such as traffic control, the handling of prisoners of war and refugees, and the investigation of minor misconduct. They could also be assigned other duties by their commanding officer and would continue to serve the needs of the commanding officer.¹¹⁵

40.7 Military Police be trained more thoroughly in police investigative techniques.

40.8 All Military Police, regardless of their specific assignment, be authorized to investigate suspected misconduct of their own accord unless another Military Police investigation is under way.

40.9 Control of the conduct of Military Police investigations of major disciplinary and criminal misconduct be removed from the possible influence of the commanding officer or the commanding officer's superiors. Military Police attached to units or elements of the Canadian Forces should refer major disciplinary and criminal misconduct to the Director of Military Police through dedicated Military Police channels.

The Director of Military Police would be a new position. Military Police responsible for investigating major disciplinary and criminal misconduct would thus be as far removed from the influence of commanding officers as possible. This would enhance police independence, although total independence can never be guaranteed as long as Military Police are members of the CF; they will always face a subtle pressure to consider the impact of an investigation on the CF

40.10 The Director of Military Police should oversee all Military Police investigations of major disciplinary and criminal misconduct and report on these matters to the Solicitor General of Canada.

This would be an unusual reporting relationship, since those responsible for a specific function within the military - the investigation of major disciplinary and criminal misconduct - would not report to the Minister of National Defence in respect of that function. However, it is critical that the military justice system avoid the serious problems of command influence and conflict of interest that have plagued it under the current reporting relationship. Reporting to the Solicitor General would avoid both these pitfalls.

The added independence of this reporting arrangement would allow Military Police to conduct even those investigations that might reflect badly on the unit being investigated, or on the unit's commanding officer.

We recommend reporting to the Solicitor General of Canada because of the Solicitor General's experience in dealing with police matters. The Solicitor General's responsibilities now include the RCMP and it would not represent a major shift in emphasis within the department to handle military policing matters.

40.11 The Director of Military Police be responsible and accountable to the Chief of the Defence Staff for all Military Police purposes, except for the investigation of major disciplinary or criminal misconduct.

40.12 Commanding officers have the power to request Military Police to investigate any misconduct, but commanding officers have no power to control the method of the investigation or limit the resources available to Military Police conducting investigations.

Controlling the resources available to Military Police is one effective means to limit their investigative capabilities. To ensure that commanding officers cannot use the allocation of resources to influence MP investigations, commanding officers should have no role in allocating resources to such investigations.

40.13 The Director of Military Police and all Military Police under the command of the Director have a system of ranking different from the general Canadian Forces system, so that Military Police are not seen or treated as subordinate to those they are investigating.

In an environment where there are two classes within the military - officers and rank and file - and the danger of conflicts of interest is ever present, it is essential that Military Police have absolute confidence in the authority of the Director of Military Police to protect their interests. As well, they must not feel intimidated by the rank of those they are investigating. A separate rank structure for Military Police will help to accomplish this.

40.14 Professional police standards and codes of conduct be developed for Military Police.

Military police are bound by the same regulations and norms of conduct that apply to all soldiers. Yet, because of their position of trust, Military Police must have ethics and standards of professionalism that differ from, and in some ways exceed, those expected of a Canadian soldier. Every police agency requires a system of enforcing these standards to protect individuals from an abuse of police powers and ensure the accountability of the police, while at the same time preserving the requisite degree of independence the agency needs to secure the trust of the public.

40.15 To give effect to these new policing arrangements, Military Police be given adequate resources and training to allow them to perform their tasks.

The importance of Military Police in any operation should be recognized more fully and provided for explicitly in the composition of forces. Furthermore, Military Police must receive training adequate to the policing tasks they are required to perform. This may mean specific investigative training programs, secondments to civilian police forces, or co-operative agreements with more specialized civilian police agencies.

40.16 Adequate numbers of appropriately trained Military Police accompany Canadian Forces deployments.
A frequent theme throughout this chapter has been the need for adequate investigative capacity. Only two Military Police were deployed to Somalia with the CARBG - too few to do even the simplest of investigations. Those who were deployed were not sufficiently trained to perform the sophisticated investigations required in Somalia.

Reporting the Results of Investigations

40.17 In general, the results of investigations into all types of misconduct - minor disciplinary, major disciplinary or criminal - be reported to the commanding officer of the unit or element to which the Canadian Forces member concerned belongs.
As explained below, the commanding officer would have no control over the charging process for major disciplinary or criminal misconduct. The results of the investigation would be reported to the commanding officer only to allow the commanding officer to stay abreast of discipline problems within the unit. A commanding officer who learns of misconduct by a subordinate would also, of course, be free to treat the misconduct as minor and proceed by way of summary trial. However, this would not preclude an independent criminal prosecution for the same misconduct.

40.18 Results of investigations of major disciplinary and criminal misconduct be reported to an independent prosecuting authority under the direction of the Director General of Military Legal Services.

Charges

At present, commanding officers do not have the legal authority to lay charges for service offences. Charges can be laid only by an officer or noncommissioned member authorized by the commanding officer to lay charges.¹¹⁶ However, in practice, through their influence over the subordinates vested with charging powers, commanding officers can exert significant control over the decision to charge.

Commanding officers are not well placed to be involved in the decision to charge for major disciplinary and criminal misconduct because of the potential for improper influences, such as bias or conflict of interest, to affect the decision. Removing, to the extent possible, control by the commanding officer over the decision to charge for major disciplinary and criminal misconduct would help eliminate these improper influences from the charging process.

40.19 Control of the decision to charge for major disciplinary or criminal misconduct be removed from the commanding officer and vested in an independent prosecuting authority.

1. The commanding officer have the right to lay charges for minor disciplinary misconduct.

Since a conviction for minor disciplinary misconduct would not carry a possibility of detention or imprisonment, the requirements for procedural fairness need not be as strict as for other forms of misconduct. As well, the additional checks on improper use of discretion that we recommend - the creation of an independent military prosecutor and the office of the Inspector General, for example - should reduce the likelihood that commanding officers would abuse any discretion vested in them to charge for minor disciplinary misconduct.

In a civilian setting, the charging decision is usually left to police. However, in some civilian jurisdictions, police lay charges only after the charges have been screened by a lawyer prosecutor.

For three reasons, we believe it appropriate for an independent prosecuting authority to lay charges for major disciplinary and criminal misconduct:

1. There is no tradition of police independence in the military. Thus, the argument against charges being laid by the prosecutor as an interference with police independence has no application in the military setting. Certainly, there is no reason to think that having the prosecutor lay charges in the military setting would raise constitutional issues.

2. There is no reason to believe that Military Police would be in a better position than a legally trained military prosecuting authority to assess the needs of the military community.

3. The administrative advantages of having the prosecutor lay charges are likely to be greater in the military than in the civilian setting. Military police have no existing role in the charging process and, therefore, no expertise in drafting charges. Military prosecutors would have the legal training necessary to determine whether charges were well founded.

40.21 An independent prosecuting authority decide whether to lay charges for major disciplinary and criminal misconduct and have the responsibility for laying charges.

40.22 The prosecuting authority be independent in determining whether to charge and prosecute. However, guidelines should be developed to assist in the exercise of prosecutorial discretion.
The guidelines would ensure that prosecutions are mounted on a proper evidentiary footing and that the public interest, including the public interest in a well disciplined and effective military, is respected. A starting point for such guidelines would be the existing federal Crown Counsel Policy Manual, which sets out guidelines for federal prosecutors.¹¹⁷

40.23 Military Police serve as advisers to the independent prosecuting authority, but have no authority themselves to lay charges.

40.24 Commanding officers have no authority to dismiss charges laid by the independent military prosecutor.
Restricting the authority of the commanding officer to dismiss charges would prevent the commanding officer from circumventing the trial process. At present, a commanding officer can simply dismiss a charge, thus enabling the accused to assert the rule against double jeopardy.

Using an independent military prosecutor to decide whether to lay charges for major disciplinary and criminal misconduct would address two main deficiencies within the current military justice system.

• It would restrict the control of the process by commanding officers, a control that has been used in the past to trivialize misconduct; at the same time, it would allow commanding officers control over the investigation and prosecution of minor disciplinary misconduct, a control that is necessary for the efficient functioning of the military.
• It would prevent commanding officers from choosing a relatively gentle military justice process for dealing with misconduct, then relying on the doctrine of double jeopardy to prevent further disciplinary action and the imposition of more appropriate, and more severe, penalties.
  

40.25 The independent military prosecutor have authority to lay charges for minor disciplinary offences when the prosecutor deems it useful to prosecute multiple acts of misconduct, including minor disciplinary misconduct, at the same trial.
The independent military prosecutor would normally not prosecute minor disciplinary misconduct. Such misconduct would normally be handled by the commanding officer. However, if an individual faced multiple charges for both minor and major disciplinary or criminal misconduct, the independent military prosecutor should be permitted to prosecute all charges together.

Trial of Charges

40.26 An accused person have a right to counsel when prosecuted for major disciplinary or criminal misconduct.

40.27 The standard of proof at a trial for major disciplinary or criminal misconduct be proof beyond a reasonable doubt.

40.28 There be no right to counsel in respect of minor disciplinary misconduct, since detention or imprisonment would not be a possibility, but the right to counsel may be permitted at the discretion of the commanding officer.

40.29 The standard of proof at a trial of minor disciplinary misconduct be proof on a balance of probabilities. An accused person may be compelled to testify at a trial of minor disciplinary misconduct.

Summary proceedings for minor disciplinary misconduct could not result in detention or imprisonment. Requiring a CF member to respond to a charge of minor misconduct would increase the efficiency of the process, yet there would be no real hardship caused by not allowing a right to silence. Minor disciplinary proceedings would be less like criminal proceedings, and somewhat more like administrative proceedings where a right to silence would not be expected.

40.30 Accused persons charged with misconduct carrying a possible penalty of five years' imprisonment or more should have the right to elect trial by jury before a civilian court.
Section 11(f) of the Charter allows a jury trial of any offence carrying a penalty of five years or more. Military trials, however, are exempt from this Charter guarantee. Our proposal would promote equality before and under the law.

Punishments

At present, the punishments available after summary trial are limited and do not take into account advances in sentencing programs in civilian society.

40.31 Punishments such as fine options, community service and conditional sentences, which have been made available in the civilian criminal process, be available within the military for minor and major disciplinary and criminal misconduct.
Thus, fine option programs, conditional sentences, and conditional and absolute discharges should all be available to judges or commanding officers trying misconduct cases, except that no minor disciplinary misconduct could result in detention or imprisonment. A CF member convicted of a criminal offence by a civilian court, but not when convicted by a service tribunal, has access to the full panoply of punishments that would apply to a civilian convicted at a criminal trial.

Appeal Mechanisms

40.32 Formal rules be established to permit appeals of summary trials of minor disciplinary misconduct by way of redress of grievance.
At present, the redress of grievance procedure is sometimes used as a means of appealing a conviction at a summary trial. However, there is no formal legal authority setting out the availability of redress of grievance as a means of appeal. Such authority should be set out in the QR&O.

40.33 All Canadian Forces members convicted at summary trials be served with a notice stating that an application for redress of grievance is available to appeal their conviction.
Some CF members simply do not know that they have the right to have a conviction reviewed. This recommendation attempts to fill this gap.

40.34 The Queen's Regulations and Orders be amended so that the Minister of National Defence has no adjudicative role in redress of grievance matters.
At present, redress of grievance procedures can be taken, in successive steps, all the way to the Minister of National Defence. It is not appropriate, or necessary, for the minister to perform this quasi-judicial function. The minister should have no role in minor disciplinary matters, including redress of grievance. A person relying on an application for redress of grievance in appealing a conviction for minor disciplinary misconduct or sentence can have the application reviewed by at least two, and possibly three, levels of authority before the application reaches the minister. At each level of appeal, the authority has the power to alter the conviction or sentence.¹¹⁸ There is no practical need for the additional level of appeal to the minister.

Nor should the minister be involved in reconsidering the legality of convictions and fitness of sentences for major disciplinary and criminal misconduct. The minister's involvement in these matters is a vestige of an era when there was no right of appeal to the courts. This era has now passed, and adequate rights of appeal do exist.

Appeals of trials of major disciplinary and criminal misconduct should continue to be handled by the Court Martial Appeal Court and, ultimately, by the Supreme Court of Canada.

Reforming and Replacing

Military Justice Institutions

Abolishing the Office of the Judge Advocate General

40.35 The National Defence Act be amended to

(a) replace the office of the Judge Advocate General with two independent institutions:

(i) the office of the Chief Military Judge, to assume the judicial functions now performed by the office of the Judge Advocate General; and

(ii) the office of the Director General of Military Legal Services, to assume the prosecution, defence and legal advisory roles now performed by the office of the Judge Advocate General;

(b) specify that the office of the Director General of Military Legal Services consists of three branches: a Directorate of Prosecutions, a Directorate of Advisory Services, and a Directorate of Legal Defence;

(c) provide that the Director General of Military Legal Services reports to the Minister of National Defence;

(d) provide that the Chief Military Judge and all other judges be

civilians appointed under the federal Judges Act; and

(e) state that judges trying serious disciplinary and criminal misconduct are totally independent of the military chain of command.

The office of the JAG is another unfortunate vestige of the past. The very title, Judge Advocate General, highlights the inherent conflict of interest - that between judge and advocate - and the lack of independence within the present military justice system (see Figure 40.2). Abolishing the office of the JAG would go beyond a cosmetic name change and would have profound significance for the rule of law and the integrity of the military justice system.

Image: Present Structure of the Office of the Judge Advocate General

Although defence and prosecution directorates would be housed under one organizational roof, professional interaction between the two would not be permitted. However, advisory services lawyers could interact professionally with lawyers from the prosecution or legal defence directorates, as there would be no conflict of interest in their doing so.

The Chief Military Judge, and all other judges appointed to adjudicate military misconduct, would be civilian appointees, appointed under the federal Judges Act. Thus, military judges would stand completely outside the chain of command. The sole function of judges would be to adjudicate or assist at courts martial, and the Chief Military Judge would also carry out administrative tasks relating to adjudications.

Reform along these lines is clearly necessary in the Canadian military context (see Figure 40.3). First, it would sever the judicial from the legal advisory function, resolving the current conflict of interest in the office of the JAG. Second, it would sever the judicial from the prosecution and defence functions. It would also enhance independence in the exercise of prosecutorial authority and in the conduct of legal defence.

Establishing the Office of the Inspector General

The changes proposed here to the structure of the military justice system (see Figure 40.4) will help resolve many of the individual deficiencies of the system. However, as with any civilian justice system, the military justice system needs a mechanism for its overall and continuing review. Many countries have independent agencies, such as law reform commissions and policy bodies within government departments, to review justice issues. The same need clearly exists for the military justice system. As well, a mechanism is needed to ensure civilian control of the military - a fundamental principle of Canadian society.¹¹⁹

In Volume 2, Chapter 16, Accountability, we discussed the need for an Office of the Inspector General of the Canadian Forces. The Inspector General would incorporate the concepts of a military inspector general and an ombudsman. The Inspector General would perform several roles in relation to the military justice system.

Image: Proposed Replacement of Office of the JAG

Image: Main Organizations and Players in the Proposed Restructured Military Justice System

Inspector General's Military Justice Functions

40.36 The National Defence Act be amended to establish an Office of the Inspector General, headed by an Inspector General with the following functions relating to military justice:

(a) Inspection: Inspections would focus on systemic problems within the military justice system.

(b) Investigations: The Inspector General would receive and investigate complaints about officer misconduct and about possible injustices to individuals within the Canadian Forces. Among the types of officer misconduct the Inspector General could investigate are the following:

(i) abuse of authority or position (for example, failure to investigate, failure to take corrective actions, or unlawful command influence); and

(ii) improper personnel actions (for example, unequal treatment of Canadian Forces members, harassment (including racial harassment), failure to provide due process, reprisals).

(c) Assistance: among the Inspector General's functions would be to correct or assist in correcting injustices to individuals.

The Inspector General would be in charge of planning the measures to frilfil the mission of the office. However, the Governor in Council, the Minister, or the Chief of the Defence Staff could also direct the Inspector General to investigate a specific issue relating to the military justice system.

Inspector General's Military Justice Powers

40.37 The Inspector General have the power to inspect all relevant documents, conduct such interviews as may be necessary, review minor disciplinary proceedings and administrative processes, and make recommendations flowing from investigations.

Bringing Issues to the Attention of the Inspector General

40.38 Any person, Canadian Forces member or civilian, be permitted to complain to the Inspector General directly.
There should be no need to report the complaint to a superior or ask the superior's permission to make the complaint.

In Chapter 16, we reported that some members of the CF who appeared before this Inquiry did so against a backdrop of fear and intimidation. We concluded that because of the past actions of the chain of command, there must be a mechanism available to redress any reprisals that may be taken against witnesses after the Inquiry issues its report. We also called for a specific process to protect soldiers who bring reports of wrongdoing to the attention of their superiors. These are both roles that the Inspector General could perform.

Other Military Justice Recommendations

Publication of QR&O and CFAO

At present, regulations made under the authority of section 12 of the National Defence Act are exempt from publication.¹²⁰ The lack of ready access to the information contained in the QR&O and the CFAO impedes the fair operation of the system.

40.39 To the extent that such regulations and orders contained in the QR&O and CFAO can be made public without compromising overriding interests such as national security, the QR&O and Canadian Forces Administrative Orders be published in the Canada Gazette.

Ensuring Adequate Numbers of Legal Officers

40.40 Adequate numbers of legal officers be deployed with units to allow them to perform their respective functions - prosecution, defence, advisory - without putting them in situations of conflict of interest.

The number of legal officers accompanying units should not be affected by manning ceilings. A shortage of legal officers on missions creates a situation where these officers may have to combine functions - prosecution, defence, advisory - putting them in a situation of conflict of interest.

40.41 Legal officers receive increased training in matters of international law, including the Law of Armed Conflict.

40.42 Legal officers providing advisory services be deployed on training missions as well as actual operations.

40.43 Legal officers providing advisory services guide commanding officers and troops on legal issues arising from all aspects of operations, including Rules of Engagement, the Law of Armed Conflict, Canadian Forces Organization Orders and Ministerial Organization Orders.

40.44 Legal officers providing advisory services educate Canadian Forces members before and during deployment on local law, the Law of Armed Conflict, and Rules of Engagement.

40.45 A Law of Armed Conflict section of legal officers be established and staffed as soon as possible within the office of the Judge Advocate General and moved to the office of the Director General of Military Legal Services once that office is established.