Canada's JAG is navigating uncharted shoals at low tide

The current issue of Frontline Defence magazine relates the conundrum in which the office of the Canadian Judge Advocate General finds itself.

In its 25 January 2018 news release, Canada’s defence department announced that the Canadian Forces National Investigation Service, the military’s version of a criminal investigation section, had laid several charges against Colonel Mario Dutil, Canada’s Chief Military Judge.

With this announcement, the military’s legal branch faces an unprecedented situation.

Military judges preside over courts martial, the judicial review of persons held in pre-trial custody, formal boards of inquiry and other military proceedings requiring a member of the military bench.

As an independent unit of the Canadian military, the Office of the Chief Military Judge has three subordinate judges at the rank of lieutenant colonel, one rank level below Colonel Dutil’s, calling into question how a subordinate military officer can sit in judgment of his or her boss.

The process can only lead to a court martial when, and if, the Director of Military Prosecutions determines there is enough evidence to proceed, according to standards used across Canada by civil prosecution services.

One difficulty for the JAG branch arises because of the small size of the military judiciary.

Prosecutors appear before those military judges on a regular basis. This could be seen as inappropriate and possibly unfair, and could create the perception of partiality or unfairness for the same prosecutors then are now assigned to prosecute the chief military judge, or any military judge.

Perhaps this will give Canadian legislators pause to consider following Britain’s example.

In 1948, Britain’s secretary of defence separated the “judge advocate” from the “advocate general” and made the military’s judicial bench a component of Britain’s court services, making the JAG a civilian judicial officer of the High Court with a staff of civilian judge advocates.