ARCHIVED - Judge Advocate General Communiqué - Judge Advocate General Annual Report 2008-09

I am pleased to deliver my third and final annual report to the Minister of National Defence on the administration of military justice in the Canadian Forces (CF) since my appointment as Judge Advocate General (JAG). It is an honour to serve as the Judge Advocate General responsible for the superintendence of the administration of military justice. It is a justice system that contributes directly to the operational effectiveness of the Canadian Forces and thereby the defence of Canada and its interests throughout the world.

As the Supreme Court of Canada has noted, “the rule of law expresses a preference for law and order within a community rather than anarchy, warfare and constant strife.”¹ Commitment to the rule of law is a fundamental aspect of CF operations both domestically and internationally. In addition, many of the CF operations in failed and failing States are focused on re-establishing the "rule of law". It has also been said that discipline is the soul of an armed force. The operational effectiveness of the Canadian Forces is directly a result of the enforcement of discipline in an effective and efficient manner.² For the Canadian Forces this includes a trial system that can be employed within Canada or wherever the CF operates in the world.

The maintenance of an effective discipline system requires regular monitoring to ensure that the needs of the chain of command are balanced with the requirement for CF members to be treated fairly and in accordance with the law. I am pleased to report the continued high level of confidence by the chain of command and other actors in the military justice system. The findings of this report reflect that the military justice system remains uniquely tailored to address the disciplinary needs of the CF while encompassing a fair and just process for all of its members in a manner that complies with the Canadian Charter of Rights and Freedoms. In 1982 the Charter itself acknowledged the unique constitutional status of military tribunals and the military justice system with its exception to jury trials.³

The military justice system must continue to evolve to meet the needs of discipline in the 21^st Century. The activity within the Office of the Judge Advocate General this reporting period underscores such evolution through legislative, regulatory and policy initiatives that serve to enhance the unique requirements of the CF. These initiatives help ensure the military justice system keeps in step with the changes in the Canadian criminal justice system while remaining fully responsive to the unique needs of military society.

Particular emphasis this reporting period was placed on the response to the Court Martial Appeal Court decision in R. v. Trepanier.⁴ That decision resulted in two major changes to the National Defence Act (NDA) through the implementation of Bill C-60.⁵ First, the NDA was amended to provide that an accused service member facing trial by court martial can generally select the type of trial (e.g. military judge alone or a military judge and panel members) in a manner that is similar to the civilian criminal justice system. Second, the types of courts martial were reduced from four to two with the abolishment of the Disciplinary Court Martial and Special General Court Martial. These amendments were promulgated during the early portion of the reporting period and have been met with positive results.

Amendments such as those brought forth in Bill C-60 serve to reinforce to the CF and the Canadian public the responsiveness of the military justice system in adapting to changing circumstances in the law. Other broader legislative initiatives based on the 2003 report of Chief Justice Lamer were placed before Parliament. On 7 September 2008 this legislation which largely mirrored its predecessor, Bill C-7, died on the Order Paper with the calling of a federal election. It is anticipated that a successor to Bill C-45 will be introduced in the next reporting period.

It is also important to note that initiatives undertaken to reduce delay are starting to have an effect. For example, the Canadian Military Prosecution Service underwent an external review designed to identify inefficiencies in its operations. The Director of Military Prosecutions has made significant amendments to various prosecution policies including setting strict timelines to complete pre- and post- charge screenings of investigations. In addition, a prosecutor was embedded in the Canadian National Investigation Service to provide legal advice at the investigative stage. This initiative mirrors similar steps being taken by civilian prosecution authorities in Canada.

There continues to be general compliance with regulatory requirements in the summary trial process, fair treatment of accused persons and a responsive review process. A review of the statistical data indicates a slight reduction in the number of service tribunals with a total of 1898 summary trials and 65 courts martial during the reporting period. The reduction in the number of summary trials, from 2035 in the previous reporting period, does not appear to suggest any significant trend for the military justice system. Indeed, the number of summary trials held within the reporting period continues to reinforce the importance of this critical tool to the chain of command to enforce discipline in a fair and efficient manner. The number of courts martial decreased from 78 to 65 (a 17% decrease from the previous reporting period). However, the total number of courts martial for this reporting period is slightly above the average number of courts martial over the past five years. The court martial remains an essential tool for the maintenance of discipline designed not only to deal with more serious service offences, but also in appropriate cases to allow an accused to elect a mode of trial that offers a full range of constitutional protections.

One area where there has been a significant change has been the number of disciplinary proceedings involving negligent discharges while on operations. While the overall percentage of summary trials in the CF involving negligent discharges remains significant at 22%, the number of negligent discharge trials in an operational theatre dropped from 69 to 29. This represents a notable drop in percentage for negligent discharges from 37% in 2007-2008 to 19% of operational summary trials. This suggests that the emphasis the CF leadership has placed on weapons handling in training and the deterrent effect of the disciplinary process is having an impact.

I want to close by stating that it has been an honour to have served as Judge Advocate General leading a team of legal officers dedicated to ensure that justice is done in the defence of our nation.

Kenneth W. Watkin, Q.C.
Brigadier-General
Judge Advocate General

Footnotes

¹ See Re Manitoba Language Rights, [1985] 1 S.C.R. 721at para. 60 [quoting Wade and Phillips, Constitutional and Administrative Law (9th ed. 1977), at p. 89].

² Généreux v. R, [1992] 1 S.C.R. 259.

³ Charter of Rights s. 11(f):

• 11. Any person charged with an offence has the right
• (f) except in the case of an offence under military law tried before a military tribunal, to the benefit of trial by jury where the maximum punishment for the offence is imprisonment for five years or a more severe punishment.

⁴ [2008] C.M.A.J. No. 3.

⁵ R.S.C. 1985, c. N-5. Bill C-60: 2^nd Sess., 39^th Parl., 2008.