Friday, December 4, 2020

Waiting for Godot?

On May 18, 2018 the Minister of National Defence,the Honourable Harjit Sajjan. introduced Bill DC-77, An Act to amend the National Defence Act in the House of Commons. The Bill received third reading in the House of Commons on 28 February 2019. It passed the Senate without amendment and received Royal Assent on 21 June 2019.  An important purpose of the bill is to give victims of service offences the rights already enshrined in the civilian criminal justice system by the Canadian Victims Bill of Rights in 2015.  Of note, Bill C-77 contains many of the changes which had already been proposed in a previous Bill C-71 which died on the Order Paper when Parliament was dissolved in August 2015.
Despite a five years wait, Bill C-77 is still not in force. DND has yet to enact a statutory “Declaration of Victims Rights” (DVR) within the National Defence Act which would give victims of service offences, access to information, protection, participation and restitution that substantially mirror the rights afforded to victims in the Canadian Victims Bill of Rights. In a recent press report, the Minister noted that he was unable to provide a timeline as to when the Bill be put into force, "we are working [on it]".

Meanwhile, victims of service offences continue to be 'second-class citizens' denied of rights which have been part of the Canadian legal landscape since 2015.  

Full house

The Senate yesterday confirmed Liam P. Hardy to be a judge of the U.S. Court of Appeals for the Armed Forces. The court will now be back at full strength for the first time since Judge Margaret A. Ryan's term expired on July 31.

Conference Report on FY21 NDAA

The Conference Report for the proposed William M. (Mac) Thornberry National Defense Authorization Act for Fiscal Year 2021 is now out and can be found here. Readers will want to look in particular at § 542, which imposes a 12-years-of-law-practice qualification for judges of the service Courts of Criminal Appeals and alters the current provision on factual sufficiency review by those courts. It's found at pp. 544-48. Here is the conferees' explanation:
Qualifications of judges and standard of review for Courts of Criminal Appeals (sec. 542)
The House bill contained a provision (sec. 540J) that would require a minimum of 12 years of experience in the practice of law to qualify as a military judge on the Court of Criminal Appeals. The provision would also amend Article 66 of the Uniform Code of Military Justice (10 U.S.C. 866) to require the Court of Criminal Appeals, when considering appeals of court-martial convictions, to consider whether the finding is correct in fact only upon a specific showing by the accused of deficiencies of proof. Under the provision, the Court could set aside and dismiss a finding if clearly convinced that the finding was against the weight of the evidence. Further, the provision would require the entire Court of Criminal Appeals review a determination by a panel of the Court that a finding of guilty was clearly against the weight of the evidence.
The Senate amendment contained a similar provision (sec. 532).
The Senate recedes with an amendment that would remove the requirement for the entire Court of Criminal Appeals to review a determination by a panel of the Court that a finding of guilty was clearly against the weight of the evidence and would amend Article 67 of the Uniform Code of Military Justice (10 U.S.C. 867) to authorize the United States Court of Appeals for the Armed Forces to review such a determination.
When (if?) the bill becomes law, watch for even fewer grants of relief on factual sufficiency grounds than the current trickle.

Thursday, December 3, 2020

Third Independent Review (Canada)

The Honourable Morris J. Fish, CC, QC, a retired Justice of the Supreme Court of Canada, has been appointed by The Honourable Harjit S. Sajjan, Minister of National Defence, as the third Independent Review Authority. As such, Justice Fish is tasked with conducting an independent review of the entire military justice system in Canada, embracing but not limited to the following matters:
The content of the Code of Service Discipline and its application by military authorities, including: the persons subject to the Code of Service Discipline; the entire body of substantive service offences, including offences of a sexual nature and offences with racial motives; the punishments prescribed to sanction service offences, including imprisonment and detention; arrest and pre-trial custody; summary trials by commanding officers or superior commanders, and their upcoming replacement by summary hearings; trials by Court Martial, including the process for preferring charges, the conduct of preliminary proceedings and of the trials themselves, and the applicable laws of evidence; the office and role of the Director of Military Prosecutions; the office and role of the Director of Defence Counsel Services; the office and role of the Chief Military Judge and of military judges; sentencing; appeals to the Court Martial Appeal Court and the Supreme Court of Canada; The military police, including: the office and role of the Canadian Forces Provost Marshal; inspections, searches and seizures, the conduct of investigations, training; complaints about or by military police, including the role of the Military Police Complaints Commission; and The system of military grievances, including: the manner and conditions of submitting grievances; the handling of grievances by the Canadian Armed Forces; the role of the Military Grievances External Review Committee; and the roles of initial authorities and of the Chief of Defence Staff as final authority in the grievance process.
Justice Fish is assisted in his independent review by his Senior Counsel, Jean-Philippe Groleau, a partner at Davies Ward Phillips & Vineberg LLP; his Junior Counsel, Guillaume Charlebois, an associate at the same firm; and his Senior Consultant, Morris Rosenberg CM, a former deputy minister of justice, of health and of foreign affairs with the government of Canada. Justice Fish and the members of his team are all independent of the Department of National Defence and the Canadian Armed Forces. Justice Fish and his team invite any member of the public or of the Canadian Armed Forces who has an interest in the above-mentioned subjects particularly or in the military justice system in general to contact them at Anyone without easy access to the internet or to an email address can also contact Mr. Groleau at 514.841.6583. Justice Fish and his team are prepared, upon request and in the exercise of their discretion, to receive submissions in confidence from members of the public and members of the Canadian Armed Forces alike. Submissions may otherwise be made public. The deadline for submissions is January 8, 2021. Requests for an extension on exceptional grounds must be addressed to Mr. Groleau before January 8. SOURCE The Independent Review Authority For further information: Jean-Philippe Groleau, Senior Counsel to the Independent Review Authority,, 514-841-6583

Don't miss Town Hall 10 -- December 7th -- The Ansell-Crowder Controversy

Monday, December 7, 9:00 – 10:30 a.m., US East Coast Time The topic for Town Hall 10 is "The Ansell-Crowder Controversy, 100 years later." Our distinguished speakers will be Senior Judge Andrew S. Effron and Professors Jonathan Lurie (Rutgers) and Joshua Kastenberg (New Mexico). This will be a very special and interesting event. Please join us and share this invitation with friends. Meeting ID: 867 0990 7335 Passcode: 723836 One tap mobile +13017158592,,86709907335#,,,,,,0#,,723836# US (Washington D.C) +13126266799,,86709907335#,,,,,,0#,,723836# US (Chicago) Dial by your location +1 301 715 8592 US (Washington D.C) +1 312 626 6799 US (Chicago) +1 646 876 9923 US (New York) +1 346 248 7799 US (Houston) +1 408 638 0968 US (San Jose) +1 669 900 6833 US (San Jose) +1 253 215 8782 US (Tacoma) Meeting ID: 867 0990 7335 Passcode: 723836