Thursday, January 25, 2018

A breath of fresh air; a call for open communications

The Canadian Military Criminal Justice System
requires a wall-to-wall review by Parliament
As reported in an earlier blog (January 17, 2018) the Canadian Judge Advocate General (JAG), Commodore Geneviève Bernatchez, has announced that she is looking forward to significant consultations with key stakeholders and those who have expertise and interest in the military justice system. This is a new new and welcome direction by the Office of the JAG.

Commodore Bernatchez also noted that she is looking forward to the results of the next independent review to be undertaken within the next two years pursuant to section 273.601 of the National Defence Act.

My only comment to this is: "the sooner, the better"; why wait two years?


The following provides a succinct summary of the origins and status of the independent review of the National Defence Act by external actors:
  • 1997 SOMALIA COMMISSION OF INQUIRY. The five-volume Report by the Commission of Inquiry into the Deployment of Canadian Forces to Somalia titled "Dishonored legacy: the lessons of the Somalia affair".” The inquiry, which took place between 1995-1997, was chaired by the Honorable Mr. Justice Gilles Létourneau of the Federal Court of Appeal and included the Honorable Mr. Justice Robert C. Rutherford and Mr. Peter Desbarats. The inquiry was cut short by the government in the months before the 1997 General Election. The 2,000-page report was critical of the senior leadership of the Department and the Canadian Forces, combat operational preparedness of the deployed troops, discipline and the military justice system. The report was the catalyst for causing fundamental, system-wide structural changes to the military justice system. Due to its sound reasoning based on a foundation of extensive research, abundant evidence and a well-structured analysis, as well as the sober sagacity and candour of its authors, over the course of the past 21 years many of the recommendations contained in the report have been implemented causing a sustained impetus for a broad scheme of necessary ongoing reforms. 

Statutory requirement for an cyclical independent review of the NDA

In the wake of these reports, section 96 of Bill C-25 – An Act to Amend the National Defence Act (Assented to on December 10, 1998, S.C 1998, c. 35) introduced the requirement for the Minister of National Defence to undertake further and regular independent review of the amendments to the NDA every five years - following the bill’s coming into force.

Effectively, since 1998, there has been two such independent reviews, one in 2003 and the other in 2011.
  • 2003 LAMER REPORT. The First Independent Review, conducted by the Right Honourable Antonio Lamer, former Chief Justice of the Supreme Court of Canada, “related solely to the provisions and operation of Bill C-25, and did not encompass the NDA as a whole.” The Lamer Report made a total of eighty-eight [88] recommendations, which, in large part, related to designing better guarantees of the independence of key players such as military judges and the Director of Defense Counsel Services, and improving the grievance and military police complaints process. In addition, the proposed amendments to the Code of Service Discipline reflected a desire to incorporate certain Criminal Code rules into the military justice system. Finally, Bill C-60 – An Act to Amend the National Defence Act (court martial) (assented to June 18, 2008, S.C. 2008, c. 29) responded to recommendations made in the Lamer Report and made three significant adjustments to the military justice system:
  1. Reduced the types of court-martial to two (General Court Martial and Standing Court Martial),
  2. Introduced the possibility for the accused to elect the type of court martial to be convened, and
  3. Put forth the requirement that military panels reach unanimous verdicts (rather than simply majority verdicts). 
  • 2011 LESAGE REPORT. In December 2011, the Honourable Patrick J. Lesage published the Report of the Second Independent Review Authority . The document was introduced in the House of Commons on June 8, 2012. The report makes fifty-five [55] recommendations for both the military justice system and the Canadian Forces grievance process. Approximately two-thirds of the recommendations report are related to the military justice system, the remaining third dealing with the Canadian Forces Military Police Group, the Military Police Complaints Commission, and the Canadian Forces grievance process.

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