Monday, April 10, 2017

The Canadian JAG office is clearly behind the times

In 1537, the Honourable Artillery Company (HAC) was incorporated by Royal Charter by King Henry VIII and is considered one of the oldest military organisations in the world. In 1587, another institution was created when Queen Elizabeth I appointed a special officer to conduct courts martial -- a Judge Martial (or Marshall).

In those days, the Judge Martial was independently responsible for military discipline.

In the 1630s, the phrase 'judge advocate’, or variants thereof, came increasingly into common use. In 1639, an Advocate served with the Army of King Charles I. On June 7, 1645, an Ordinance for constituting Commissioners and a Council of War for trial of all persons . . . appointed a Judge Advocate and a Provost Marshall.

The Ordinance enabled and authorized the Judge Advocate to receive all “... accusations, articles, complaints and charges against all or any of the offenders...” By 1659, the Office of the JAG was created to supervise ‘courts martial’.

Prior to 1893, in the U.K. the JAG was a Privy Councillor, a junior Minister in the government, usually a Member of Parliament and a spokesman for the Commander in Chief in Parliament. In those days, the appointment was regarded as a political office and the JAG had direct access to the Sovereign on matters pertaining to his office.


In 1948, the UK Parliament decided to appoint a civilian member of the bench as the JAG and entrusted him with the exclusive role of chief magistrate of the penal military justice system accountable not to the military chain of command but to the Lord Chancellor.


In 1997, in the wake of the Somalia Inquiry, the Canadian JAG was divested of all judicial functions when full-time military judges were appointed to ensure, to the fullest extent possible, judicial independence from the chain of command.

Inexplicably, however, the JAG was allowed the continued use of the title of “Judge” which not only misrepresents the factual reality but caused it to be wrongly viewed and perceived, to this day, as the titular head of the military judiciary apparatus which is clearly not.

Most curiously, in addition to acting as the military legal Advisor to a host of senior officials and the military chain of command, the Canadian JAG also retained supervision of both the military prosecutorial and defence functions.

Given that the current JAG, Major-General Blaise Cathcart, is expected to retire in June 2017, his replacement should be appointed as the CF Legal Advisor to the Armed Forces. He should be simultaneously. divested of his supervisory role over the Prosecution and the Defence functions.

As head of the JAG branch and the JAG Command, the JAG not only determines the total number of personnel to be assigned to each such function, but decides which military lawyers will be posted to each of these two directorates. The JAG also has the authority to manage the career of all legal officers serving in these two directorates including their postings, assignments, appointments, selection for postgraduate training and performance evaluation and eventually promotions to higher rank. This is matter of continued debate raising very very serious apprehension about the real independence and impartiality of those particular offices.

1 comment:

  1. Having spent years (un)burnishing the military justice reputation of George III, I find myself trumped (okay, outdone) by this invocation of Elizabeth I.


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