Urgent need for parliamentary review of National Defence Act

Over the years, attempts to modernize the National Defence Act (NDA) to bring it more in line with globally accepted standards of justice, or even with our own domestic civilian penal system, have been serially resisted by the Canadian military legal establishment. Several of the reforms that have been made are the result of pressures that were initiated from outside, none the least the judiciary, but not, repeat not, within the JAG organization or the military itself.

However, by force of habit and continued reliance on a wide panoply of statutory powers granted to the Judge Advocate General, in July 2016 the JAG directed one of its immediate subordinates to conduct an internal legal and policy analysis of all aspects of the court martial system. As noted recently by the Canadian Bar Association, this internal analysis represents a mere fraction of the overall military justice system. The fact that such internal review runs counter to Principle number 20 of the Draft Principles Governing the Administration of Justice Through Military Tribunals published by the United Nations during its 62nd Session (Doc E/CN.4/2006/58, (2006) did not seem to have had an impact:

Codes of military justice should be the subject to periodic systematic review conducted in an independent and transparent manner, so as to ensure that the authority of military tribunals correspond to the “strict functional necessity, without encroaching on the jurisdiction that can and should belong to ordinary civil courts.”

In conducting such an in-house review creates at least an apprehension of a lack of independence. Such apprehension took an air of reality when, as pointed out by the Canadian Bar Association, one of the key contributor to this internal analysis was the current Director of Military Prosecutions whose submission endorsed in toto the current and existing court martial system

It is now necessary, if not urgent, to bring the military justice system more in line with contemporary Canadian as well as international legal doctrine and principles in order to not only prevent it from falling further behind global standards of justice, but also to ensure that all members of the military benefit from the very fundamental rights and freedoms they defend. This is currently NOT the case.

This can be accomplished by conducting a full-scale parliamentary review of the NDA.