Tuesday, October 11, 2016

An independent and external review of the military justice system is absolutely required

The Office of the JAG has announced that a comprehensive review of the Canadian Armed Forces [CAF] court martial system will be conducted by the Deputy JAG, Colonel Robin Holman.

Lets agree that the Canadian military justice system is in dire need of a major overhaul. However, for the reasons that follow, I have some very deep-seated reservations in having a serving military officer leading the process by which reforms to the military justice system are to be reviewed. This would be like having bankers re-tool the Bank Act.

         First, in a democracy this job belongs to “elected officials”, namely legislators. On this, I am happy to report that the Canadian House of Commons already has a Standing Committee on National Defence whose very purpose is to address, on behalf of Parliament, such a legislative requirement. It is Parliament therefore not the military that needs to embark upon a review of the scope of the jurisdiction of the Canadian penal military justice system.

        Second, over the past decade or so the Office of the JAG has shown no appetite or penchant to modernize National Defence Act so as to bring it more in line with global trends or to ensure compliance with our own civilian penal system and the Charter of Rights and Freedoms. In fact, the office of the JAG has stubbornly resisted such reforms at great costs. For example it took 20 years of costly judicial litigation to achieve the judicial independence of military judges.  Also, the disciplinary jurisdiction of military tribunals in Canada has expanded to the point that only the offences of murder, manslaughter and abduction of children, when committed in Canada, cannot be tried by service tribunals. Civilians such as contractors and journalists as well as members of their family including children accompanying the Canadian Forces abroad fall under the jurisdiction of military tribunals. Also, since 1997 the military has been granted jurisdiction for the investigation and prosecution of sexual assaults, a situation which is the subject of increasing public criticism.

Third, reforms are also required to bring the existing military justice system in line with societal norms and values as well as evolving global trends in military justice which reveals a convergence of the military and civilian justice systems and more adherence to human rights standards. 

Such convergence must be examined through the lenses of civil society untrammeled by the executive and the military chain of command. The active participation of civil organizations to conduct a full-scale independent  and external systemic review of our military justice system would ensure that it corresponds only to strict functional necessity for the military, without encroaching, as it currently does, on the jurisdiction that can and should belong to ordinary (civilian) courts.  

Lastly, and most importantly, the task of leading a comprehensive review of the military justice system does not belong to the Judge Advocate General (JAG), or his likely designated successor, because the current multiplicity of roles and functions played by the JAG already present an impermissible situation of conflict lacking any form of independence from the executive branch. To be sure, the very area that needs to be reformed on a priority basis is the current attributes, military status, pay scale and immense powers vested into the Judge Advocate General who also strangely reports not to the Chief of the Defence Staff but the Minister of National Defence.

The current JAG has been conferred a plenipotentiary mandate over the administration of the military penal and disciplinary justice systems. He also has monopolistic authority for providing advice to all stakeholders in the system on practices, procedures, development and reforms. He also advises government on its effectiveness and efficiency. His multi-layered jurisdiction is enhanced further by a very misleading title, Judge Advocate General, since the JAG is not a judge. The position was stripped of that function decades ago. 

Moreover, his functions require him to be totally loyal and partisan to the interests of DND and the CAF as an institution as well as the chain of command. This leaves no scope for the JAG or his alter ego to reform the military justice system in ways that would be seen or perceived to be against the interest of this institution.  Therefore, only soft reforms acceptable and compatible with the military mind are likely to result from this in-house self-initiated review of the military justice system. Reforms that would permit the JAG to continue lording over this military justice system. 

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