The monolith of Canadian military justice: blindness, deafness and general recalcitrance

In this interview conducted by laureate journalist Noémi Mercier for the French-language Actualité magazine following an international conference this past November on penal military justice systems held at the University of Ottawa for the first time in Canada, the United Kingdom Judge Advocate General, His Honor Judge Jeff Blackett, deplored the lack of independence and impartiality of the Canadian penal military justice. The following summarizes the essence of the interview with Judge Blackett and compares it with the prevailing situation in the Canadian system.

Resume of Judge Blackett Interview and comparison with the Canadian system

In his interview, Judge Blackett reiterated the known principle that justice must not only be done, but must also be seen to be done. And it does not appear to be done and equitable when a soldier appearing before a court martial is defended by a major, prosecuted by a colonel and also tried by a colonel.

Moreover the fact that Canadian military judges, including the Chief Military Judge, hold a rank (in fact a rank inferior to over 150 other serving officers in the military establishment), Judge Blackett said, compromises their independence and impartiality. He himself is a civilian judge not accountable to the military while the Canadian Judge Advocate General (JAG), notwithstanding his misleading title, is a military advocate, not a judge. [Oddly enough, his salary, as far as we can ascertain, is that of a federal judge.] Indeed the Canadian JAG is a military lawyer directly and uniquely accountable to the Minister of National Defence.

In addition the Canadian JAG supervises both the Prosecutions and the Defence Services. While the Canadian Director of Military Prosecutions is a military lawyer acting under the general supervision of the JAG, in the UK, as pointed out by Judge Blackett, the Prosecutions Service is independent: the Director of Military Prosecutions is a civilian. He is the one who decides to prosecute or not without referring to the military chain of command.

In the exercise of his functions, Judge Blackett added, the UK civilian Director of Military Prosecutions is assisted by military lawyers. Moreover civilian prosecutors are also involved in the majority of serious cases. As for defence counsel they are generally civilians. In the UK, since 2003, all judges of the court martial are civilian judges. In addition they sit one third of their time in a civilian court, something which, Judge Blackett says, reinforces their independence.

In Canada there is no formal mechanism in place to determine who of the civilian or the military authority will prosecute an ordinary criminal law offence. By contrast in the UK, as is the case in Australia, Judge Blackett reminds us that there is a Memorandum of Understanding between the civilian and the military prosecutions authorities addressing this issue among others.

Now all these deficiencies and lacuna plaguing the Canadian penal military justice and creating unfairness have been raised at home and on the international scene in numerous legal articles and before House and Senate Committees, but to no avail. It took over 19 years of costly court litigation to achieve partial independence of Canadian military judges while it was obvious in the early stages of that specific litigation that it was a mere matter of time before the existing law and regulations would have to be changed.

For more than 20 years the leaders of the Canadian military justice system have closed their eyes to the requirements of the Canadian Charter of Rights and Freedoms, the obvious lack of independence and impartiality of the system and the resulting unfairness for soldiers and civilians alike subject to the overarching Code of Service Discipline.

These leaders have turned a deaf ear to repeated calls for necessary and long overdue structural improvements and changes to the system. Their deliberate unresponsiveness and self-inflicted blindness have been detrimental to the Canadian penal military justice system and the persons subject to it.This is  not surprising, however. According to Judge Blackett, the British military reacted to military reforms in the very same recalcitrant manner:

“The British Forces had enormous difficult to accept such changes. At each step of the way, the British military has offered stiff resistance and have done as little as possible to implement the changes. Each one of the changes was met with robust opposition on the pretext that the reforms would negatively affect operational effectiveness and that the world would collapse. The military would not change unless it is pushed to do so.” Amen.

Conclusion

As was the case in the United Kingdom, Canadian military “justice” is screaming out for reform. At present, the Canadian penal military justice is but a preserve of a traditional middle-age legal process with a uniformed courts staff, salutes, a panel of officers some of whom equal in military rank to that of the Chief Military Judge and his colleagues, antiquated rules of procedure, an organization built on a structure of rank and deference.

In our modern Canadian society with a sophisticated legal and justice system, seen by many as one of the world’s best, one is entitled to query whether the penal military justice system should enforce criminal law at all, still less at the expense of accused rights, and whether this separate closed-in scheme of military justice should at all be under the autocratic centralized control of the JAG and the chain of command. If the system needs to exist, why can't the actors in it be independent and the system offer fair justice and equality of treatment and benefits under the law? If it cannot, then it simply does not deserve to exist and continue to spread unfairness.