Wednesday, May 10, 2017

A critic responds to Canada’s JAG

Canada’s Judge Advocate General (JAG) Blaise Cathcart’s 7 May interview with The Lawyer’s Daily carries the dramatic title “Canada’s outgoing judge advocate general fires back at critics.”

Having written several in-depth articles for various publications about Canadian military disciplinary processes that underscore their deficiencies and failings, I am one of those critics, and my criticism continues of a system to which I am reluctant to apply the rubric “justice.” It is simply a summary disciplinary system that too frequently fails to meet the minimum standards required of a justice system.

I am currently writing a series of articles about Canadian military law for the Halifax, Nova Scotia, daily newspaper, the Chronicle Herald. I am also researching a book on this subject.

Cathcart may feel that the Canadian military’s Code of Service Discipline is the envy of the western world, but the reality is substantially different. One-by-one, nations are turning away from traditional military justice in peacetime and assigning this requirement to criminal and civil jurisdictions. These include Britain, Germany, France, Sweden, Finland and Japan. Australian defence officials have indicated an interest in the Canadian practice but this may not bear the weight of a careful analysis by our Australian cousins.

There can be no progress and advancement without discussion and debate, which invariably begins with either the submission of a series of proposed improvements or the argument that the current process is wrong, or both.

When he was in the rank of major, retired Judge Advocate General Kenneth Watkin wrote in his thesis for the degree of Master of Laws at Queen’s University, “The potential exists for a clash” between the Code of Service Discipline and the Charter of Rights and Freedoms. “. . . [T]he Charter, rather than being seen as a vehicle for an attack on the military justice system, should be viewed as providing an effective and pragmatic means of reconciling conflict between guaranteed rights and freedoms and the need for a disciplined armed force.” (Canadian Military Justice: Summary Proceedings and the Charter (1990) – Abstract, page i)

This betrays the opinion, shared among many JAG officers, that this is an “either . . . or” situation, a zero-sum game.

I believe there can be no dichotomy or incompatibility between the Canadian Charter of Rights and Freedoms and the Code of Service Discipline, and if an incompatibility exists then the Charter of Rights and Freedoms, as the preamble to the Canadian Constitution, must take precedence.

The current Comprehensive Review of the Court Martial Process, Cathcart announced, will look at the requisite material and the final report will be unclassified but will be “solicitor/client privilege.”

For there to be a need for “solicitor/client privilege” there must be a solicitor and a client. However, in this instance both are the same entity. Additionally, Cathcart fails to understand that this study takes place within a regime that is mandated by the democracy in which JAG operates. The study being conducted is the property of the Canadian people.

Also, there is the practice of JAG to assign the condition of “solicitor / client privilege” far too frequently, an observation made to me by a former civilian employee of JAG and by Corporal Stuart Langridge’s mother, Sheila Fynes, on CBC Radio’s “The Current” on 25 September 2012.

Cpl Langridge tragically took his own life in 2008.

As a veteran of 37 years in the Canadian Armed Forces I have seen my share of disciplinary investigations and tribunals and their impact on affected service personnel and their families. If Cathcart genuinely wishes for systemic improvement of Canadian military law, rather than “firing back” should he not welcome criticism, opinion and analysis?

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