A recent Blog post titled “Do Judge Advocates General have incompatible roles?” by Professor Fidell reports on a story out of Israel which raised, in his words, “an issue of principle.” It also led him to conclude that countries that have Directors of Military Prosecutions should not only be independent from the chain of command but should also be independent of the Judge Advocate General if the JAG functions include advising the service chiefs (chain of command) or subordinate commanders. I agree fully with that proposition. For that reason, I very much deplore the fact that although Canada now has a Director of Military Prosecutions the latter does not have the required level of independence from either the chain of command or the JAG.
In Canada, the JAG is first and foremost a political appointee directly and wholly responsible to a political master (Minister of National Defence) who, in turn is answerable to the Governor in Council (Cabinet).
The Canadian JAG has been charged with a cluster of functions which intersect with one another and over which the JAG has a powerful contaminating influence. Consider:
· The JAG provides legal advisory services to a number of senior officials such as the Governor General, the Minister of National Defence and the Chief of the Defence Staff.
· The JAG is the military legal advisor to the chain of command.
· The JAG superintends the entire military justice system.
· The JAG has overall responsibility for the Prosecuting function as well as the Defense counsel services despite the fact that each of these functions required independence and impartiality from the JAG, the chain of command and separation from each other.
Since the Canadian military justice system does not operate constantly in the public spotlight, there is little public accountability as to the JAG’s independence from both the Minister of National Defence and government as a whole, particularly but not limited to the supervision and exercise of the prosecution function. This raises the possibility (or the perception thereof) that the JAG could take direction from the Cabinet or the Minister of National Defence on a given prosecution or defense case without this matter becoming known. This perception applies as well to both the prosecution and defense counsel services since they are not independent from either the JAG or the chain of command.