sites on military law
-Part I --
Canadian Military Law -- Miscellaneous
Inquiry & Government Reaction
- 1995-1997: Somalia Inquiry
- Departmental Reaction to Somalia Inquiry
- Special Advisory Group on Military Justice and Military Police Investigation Services
January 1997 to July 1997
- The Special Senate Committee on the Canadian Airborne Regiment in Somalia (April 1997)
- Report to the Prime Minister on the Leadership and Management of the Canadian Forces (March 1997)
- Minister's Monitoring Committee on Change in the Department of National Defence and the Canadian Forces (October 1997 to 1999)
- Bill C-25--An Act to amend the National Defence Act and to make consequential amendments to other Acts
(Royal Assent, 10 December 1998)
- 2003 -- Five Year Review of Bill C-25
- 2011 -- Second Five Year Review of Bill C-25
Bills 1999-2012 on National Defence Act
Affairs -- Sexual Misconduct
Martial Comprehensive Review 2016-2017
& DND Web Sites
Regulations and Orders
- Superseded Legislation
- Web Sites of Interest
Part II -- Canadian Military Law -- Bibliography
AMENDMENTS TO TERMS OF REFERENCE - COURT MARTIAL COMPREHENSIVE REVIEW
Reference: 0160-1-06551-06-0034 Terms of Reference – Court Martial Comprehensive Review, dated 13 May 2016
- At the reference, my predecessor initiated a comprehensive review of the Canadian Armed Forces’ (CAF) court martial system, pursuant to the Judge Advocate General’s (JAG) statutory responsibilities for superintendence of the administration of military justice under section 9.2(1) of the National Defence Act (NDA), and for the conduct of regular reviews of the administration of military justice under section 9.2(2) of the NDA.
- Since taking up my appointment as the JAG on 27 June 2017, I have been briefed by the Court Martial Comprehensive Review Team (CMCRT) on the status of the review, and have provided the team with some broad guidance to consider as they work towards completion of a draft report. Following my review of the draft report, it is my intent to then seek the input of key stakeholders who have expertise or interest in the court martial system. Any additional policy or legal analysis following my review of the draft report will be provided to me by the CMCRT at my direction.
- In order to permit the CMCRT to consider and incorporate my guidance, and to produce a final report that will assist me in providing advice and recommendations to the Minister of National Defence and the Chief of the Defence Staff, I hereby amend the Terms of Reference for the Court Martial Comprehensive Review, as follows:
- Timing of Review. The comprehensive review shall produce a draft report deliverable to me no later than 21 July 2017.
- Classification/Designation of the CMCRT Final Report. As the final report will be a policy-based analysis and discussion of options for enhancing the court martial system, the report should not be marked or treated as a document that is subject to solicitor-client privilege.
- I fully support the efforts of the CMCRT, and look forward to receiving the team’s draft report. Like my predecessor, I expect each member of the CMCRT to continue to bring to bear the full extent of his or her legal and military expertise throughout the remaining period of this comprehensive review. Fiat Justitia.
992-3019 / 996-847
Cmdre Geneviève Bernatchez (Judge Advocate General, Department of National Defence):
My predecessor mandated a court martial comprehensive review. It pertained to the court martial system, and extensive consultation occurred. The team that carried out the review also did a fantastic job at comparative analysis.
When I took on the position of Judge Advocate General, I had an opportunity to look at the draft report with my military justice division. There were some aspects of it that I wanted to have clarified, because I was brand new at the job and needed a little bit of time to better understand certain aspects. The team was mandated to provide to me on July 21 a draft interim report for me to review.
We are currently in the process of reviewing this report, which I think will not only form the basis of a great opportunity to engage in a dialogue with parliamentarians, the Canadian public, and members of the Canadian Armed Forces as to what the Canadian military justice system is and where it should go, but will also enable me to formulate policy and legal analysis recommendations to the Minister of National Defence and the chief of the defence staff toward the modernization of this piece of the military justice system.
I would very much like to be able to put as much of it as possible on my website soon. There are certain aspects of the report, though, that I think will be classified under solicitor-client privilege because they contain either legal advice or policy analysis for recommendations to the minister.....
My default position will be to communicate as much as possible to the public, to engage them in that dialogue, and to ensure that we get the feedback we require in order to advance in it while protecting the pieces of it that I need to protect because of professional obligations.
Court Martial Comprehensive Review
The Judge Advocate General has recently directed the completion of a comprehensive review of the court martial system. The purpose of the review is to conduct a legal and policy analysis of all aspects of the Canadian Armed Forces’ court martial system and, where appropriate, to develop and analyze options to enhance the effectiveness, efficiency, and legitimacy of that system and then assess whether changes to any features of the system are required or advisable in order to promote greater systemic effectiveness, efficiency, or legitimacy. In terms of harmful and inappropriate sexual behaviour, the review will examine all offences of a sexual nature to determine whether there is a requirement to update or add any service offences to the existing legislation. It will also evaluate if current sentencing provisions are appropriate and if additional measures should be taken to protect the rights or interests of victims.It is significant that all members of the Court Martial Comprehensive Review Team are intimately familiar with the External Review Authority report, including its ten seminal recommendations. They are also fully aware of the Chief of the Defence Staff's and the Judge Advocate General’s orders relating to Operation HONOUR. Additionally, the Judge Advocate General has required that any options considered by the team as a means of achieving greater effectiveness, efficiency, or legitimacy within the court martial system are to be consistent with efforts that are being undertaken by other authorities in support of Operation HONOUR. The review team will deliver its final report to the Judge Advocate General no later than July 2017.
Court Martial Comprehensive Review
The Court Martial Comprehensive Review Team, to be led by the Deputy JAG for Military Justice and additionally comprised of three legal officers, will be conducted in accordance with Terms of Reference issued by the JAG. The purpose of the comprehensive review is to conduct a legal and policy analysis of all aspects of the CAF’s court martial system and, where appropriate, to develop and analyse options to enhance the effectiveness, efficiency, and legitimacy of that system.
At the outset, the Court Martial Comprehensive Review Team will assess the current court martial system’s effectiveness, efficiency, and legitimacy and then will assess whether changes to any features of this system are required or advisable in order to promote greater systemic effectiveness, efficiency, or legitimacy. The Court Martial Comprehensive Review Team will consider the following subject matter areas:
- The status and institutional structure of tribunals/courts with jurisdiction over service offences, including whether they ought to be: military or civilian in character; permanent or ad hoc entities; and, capable of deploying to austere or hostile environments inside and outside of Canada;
- The status and institutional structure of a prosecution service with responsibility for prosecuting service offences, including whether this service ought to be military or civilian in character, and capable of deploying to austere or hostile environments inside and outside of Canada;
- The mechanism through which defence counsel services are provided to persons accused of committing service offences, including whether such services ought to be: provided by military or civilian lawyers; provided in whole or in part at public expense; and, capable of being provided within austere or hostile environments inside and outside of Canada;
- The substantive body of service offences, including full consideration of whether any current offences ought to be updated or repealed, and whether any additional offences ought to be added;
- The punishments, sanctions, and sentencing laws that apply in respect of service offences, including full consideration of whether any current sentencing provisions ought to be updated or repealed, and whether any additional sentencing options ought to be added;
- The laws of evidence that ought to apply at trials in respect of service offences;
- The rights, grounds, and mechanisms of appeal that ought to exist for the Crown and for persons subject to the Code of Service Discipline; and,
- The special needs of any particular groups who may interact with the military justice system, including victims, young persons, and aboriginal offenders.
The comprehensive review will commence no later than July 2016 and will produce a completed report deliverable to the JAG by July 2017. [Chapter 2, pp. 10-11]
Terms of reference in pdf format at http://www.forces.gc.ca/assets/FORCES_Internet/docs/en/jag/court-martial-comprehensive-review.pdf (accessed 29 July 2016);
. Consultation document at http://www.forces.gc.ca/en/about-reports-pubs-military-law-court-martial-comprehensive-review/index.page (accessed 12 October 2016)
. Document de consultation http://www.forces.gc.ca/fr/a-propos-rapports-pubs-droit-militaire-revision-globale-cour-martiale/index.page (vérifié le 12 octobre 2016)
Ordered in May 2016, the 560-page draft document titled “Court Martial Comprehensive Review Interim Report”
was completed in July 2017 but it still has not been released to the public.
Senior commanders have criticized the military justice system for being slow, light on punishment, and failing
to protect victims’ rights.
Over the years, attempts to modernize the National Defence Act (NDA) to bring it more in line with globally accepted standards of justice,
or even with our own domestic civilian penal system, have been serially resisted by the Canadian military legal establishment. Several of
the reforms that have been made are the result of pressures that were initiated from outside, none the least the judiciary, but not, repeat
not, within the JAG organization or the military itself.
It is Parliament NOT the military that needs to embark upon a review of the scope of jurisdiction of the Canadian penal military justice system and the resulting modus operandi of the court martial system. Therefore, they write, only soft reforms acceptable and compatible with the military mind and the views of the chain of command are likely to result from this in-house JAG self-initiated review of the military justice system.
These in-house reforms would have no significant effect as they would permit the JAG to continue lording over this broken military justice system. See Opinion Piece; "It's time for a civilian review of the military justice system" published today in Hill Times (the Parliamentary Precinct newspaper).
Over the past decade or so, the JAG has been conferred a plenipotentiary mandate over the administration of the military penal and disciplinary justice system. The JAG has monopolistic authority for providing advice to all stakeholders in the system on practices, procedures, development, and reforms. (source: https://www.hilltimes.com/2016/11/14/civilian-review-military-justice-system-required/86788 , accessed 15 November 2016)
The book comes as the Office of the Judge Advocate General has been conducting a review of the Canadian military
justice system. In the authors' view, the terms of reference for that review are too narrow, and a more comprehensive
review is required. They hope that Behind the Times may inspire and assist in understanding the challenges the system
faces, and some areas in need of urgent reform.
Le droit militaire est en mal de réformes substantives nécessaires pour entrer dans l'ère de la modernité et corriger les injustices qu'il comporte.
Immédiatement il m'en vient à l'esprit. Une dizaine que je désire porter à l’attention des lecteurs et développer dans une courte série de blogues.
The senior military lawyer overseeing the judge advocate general’s (JAG) internal review of Canada’s court martial system raised a few
eyebrows at the Canadian Bar Association’s (CBA) military justice conference by reproaching his host for purportedly failing to provide
“meaningful, substantive” input during a recent public consultation on court martial reform.
Col. Robert Holman“I think my biggest concern is — notwithstanding that three-and-half extra months were taken [by the CBA] to
provide ‘meaningful’ comments, there were no meaningful, substantive comments on any of the areas that...