Friday, November 14, 2014

Access to Canadian military jurisprudence (pre-2004) not available to civilian practitioners

In Canada, the full complement of court martial decisions prior to 2004 are stored in paper-format in a single location: the library of the Judge Advocate General. These court records are not available electronically or otherwise, to the general public or to civilian military law practitioners even though they may be acting for an accused before a court martial, facing criminal charges.

Ready access to the JAG library is however provided to the Director of Military Prosecutions as well as the Director Defence Services Counsel who are both immediate subordinates of the Judge Advocate General. Presumably, the Office of the Military Judge can also knock on the door of the Judge Advocate General to request access to this important body of jurisprudence. We sincerely hope so since access to court martial jurisprudence created prior to 2004 is, in my considered opinion, crucial and central to the delivery of a fair and just military justice system.

Be that as it may, it is rather strange that such a key component of a judicial process, jurisprudence, be controlled by a non-judicial body. The Office of the Chief Military Judge, created in September 1999 currently enjoys a high level of independence in relation to the rest of the Canadian Forces and includes a Court Martial Administrator, military and civilian reporters and support staff.  One would think that its Registry, as the permanent administrative organ of the Office of the Military Judge, would have actual and full control over such judicial archives; they do not – control in Canada over (military) jurisprudence created prior to 2004 is currently vested with the JAG. Strange indeed.  

              Stranger still, not only is this full body of military jurisprudence situated outside the Canadian military courts system but its custodian, the Judge Advocate General, has,, it appears, uninhibited discretion to decide who can have access to these jurisprudential holdings! 

To use a real world example, despite being the solicitor of record for a CF member for an upcoming court martial trial, repeated requests to the Office of the JAG to gain access to these pre-2004 records have been denied.  In the meanwhile, suggestions have been made that Freedom of Information (FOI) legislation should be used to gain access to court martial decisions. In reality, because the case names and neutral citations are only known to Canadian Forces lawyers, a civilian practitioner is unable to even draft proper FOI requests, without knowingly attracting enormous search fees allowable under the FOI regime. 

            Having a duty to safeguard the client’s right to a full defence (as guaranteed by section 7 Charter of Rights and Freedoms) at present the only option available to a civilian (military law) practitioner is to move a court martial for a writ of certiorari to overturn the JAG’s decision, and seek a court Order to perform legal research.  

Only in Canada!

1 comment:

  1. Why am I not surprised to read of this. Unfair doesn't even begin to describe this process.


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