The title Judge Advocate General: a misleading misnomer in Canada

Justice (ret) Gilles Létourneau

Canada inherited from the British military penal system the term Judge Advocate  General (JAG). “The Office of the Judge Advocate General can be traced back to the Articles of War of 1639 issued by Charles I. He gave authority “… to the Council of War and the Advocate of the Army to enquire of the actors and circumstances of offences. Orders issued in 1662 by Charles II gave authority to the “… Judge Advocate of the Forces …” to take information and depositions as occasion should require in all matters triable before court martial”: see Letourneau & Drapeau, Military Justice in Action, Thomson Reuters Canada Ltd., Toronto, Ontario, Canada, 2011, at p. 56. The first JAG in Canada was appointed on October 1, 1911: ibidem.

While the term “JAG” leads one to believe that, in Canada, the person appointed to that position is a judge, he is not a judge at all. He is a senior legal adviser to the Governor General, the Minister of National Defence (Minister), the Defence Department and the Canadian Forces, in matters relating to military law. He is also responsible to the Minister in the performance of his or her duties and functions: see ss.9.1 and 9.3 of the National Defence Act. This is a far cry from a judge who enjoys judicial independence, especially independence from the chain of command. In plain and simple words he is a lawyer. He is himself part of the chain of command as the Commander of all military lawyers. He attends all senior management meetings at National Defence Headquarters.

However I suspect the term “Judge” in the title JAG allows him to be paid the salary of a judge of a Superior or High Court although he is not a judge. I have to remain in the realm of suspicions because his salary and consequential benefits are determined in an Annex to the Government Decree appointing him which is kept confidential. Even the members of Parliament do not have a copy of it.

This is quite surprising because in Canada the remuneration of all public servants, be they the Prime Minister, the members of Parliament, the Chief Justice of the Supreme Court of Canada, her colleagues, judges of all courts across Canada, is public and easily accessible. Demands to have access to the Annex have been denied by the very Government that claims to be transparent. I guess Canadians will have to take a rain check on this one for the time being. Usually when a document like that is kept confidential and access is denied, it is not because it is under norms. On the contrary. In fact, his classification should be his military classification with a corresponding salary much inferior to the salary of a superior or High Court judge.

I think it is fair to say that the misnomer is confusing and misleading for everybody, especially the lay person, but convenient for the incumbent. The title JAG is a remnant of a distant past. For the sake of clarity and the better administration of military justice,  the title should be changed to reflect the current reality as well as the conditions and benefits which attach to the function that it is rather than the function that it is not.