The Office of the JAG has recently approved a new policy titled “Appointment of Special Prosecutors”. The Special Prosecutor is a Canadian Armed Forces (CAF) officer who is a member of the bar of a province in good standing but who is not a member of the Legal Branch! Presumably, to be appointed Special Prosecutor one would have to be in the active practice of criminal law and be competent to assume such onerous duties. Such individuals would only be found among officers (and non-commissioned members) of the Reserves Component of the armed forces.
The purpose of the policy is to permit the appointment of a Special Prosecutor whenever there is a risk of an actual or perceived ‘conflict of interest’ in the conduct of military prosecution duties.
- Actual or perceived conflicts of interest would arise when there is already a relationship between the prosecutor in the Directorate Military Prosecution and the accused, the complainant or the victim.
- The Directive specifies that such a conflict would exist and the appointment of a Special Prosecutor would be required when the accused, complainant or victim is: a) the Judge Advocate General; b) a Deputy Judge Advocate General; or c) a Military Judge.
On the other hand, when the accused, complainant or victim is: a) the Director or Deputy Director or Assistant Director of Military Prosecutions or, b) the Regional Military Prosecution the matter shall be referred to a legal officer in the Office of the JAG. Obviously, this would not only keep the whole matter in-house within the Office of JAG and assumes that in doing so, the real or perceived conflict of interest would be eliminated. This is perhaps a pious hope.