Wednesday, August 21, 2019

Brig. Gen. Watkin weighs in on Stillman

Brig. Gen. (ret) Kenneth Watkin, a respected former judge advocate general of the Canadian Armed Forces, weighs in here on Just Security with his views on the Supreme Court of Canada's unfortunate 5-2 Stillman decision, which he describes as "a watershed judgment." He writes:
"Differences in legal approaches may not be limited to the underlying system of law, but also result from national experience regarding the circumstances under which military forces are disciplined and employed. For example, the United States, the United Kingdom, Canada, Australia, and other States have a long history of extra-territorial military operations in times of peace and war. This expeditionary history may lend itself to a greater acceptance by courts of the broad exercise of jurisdiction by service tribunals."
Brig. Gen. Watkin calls into question the utility of the 2006 Decaux Principles, claiming they "have attracted significant criticism," a proposition for which he cites only a single source (a retired Canadian Forces JAG colonel). His overall stance, regrettably, is one of skepticism about the feasibility of identifying basic principles that can safely be applied across national legal-system lines. Like the Supreme Court, he draws comfort from the fact that the Canadian military justice system has evolved quite a lot and that (unstated) future changes cannot be ruled out.

If Brig. Gen. Watkin's views reflect those of the current leadership of the Canadian Armed Forces, friends of reform and the application of broadly accepted standards will have to look elsewhere for positive action. Stillman may embolden partisans of voracious military jurisdiction in Canada and elsewhere and prove an enduring source of dismay for those who believe military justice should remain exceptional and with as narrow a jurisdiction as possible.

1 comment:

  1. Eugene, you hit the nail on the head.

    I also disagree with Brig General (ret’d) Ken Watkin’ analysis.

    In my view, we are where we are because of the etachment of the Canadian political class from the military law scene. Time and again, Parliamentarians appear to be unconcerned and uninterested in the control and management of the military. For instance, members of our House of Commons, particularly its committee overseeing defence and military issues [Standing Committee on National Defence] are seldom part of that committee for more than one election cycle, at best. As a result, individually and collectively these Parliamentarians are always somewhere in the early stage of long learning curve. They simply do not have the opportunity to acquire and develop a good understanding of defence matters, including the most complex military justice issues. This means that Defence and Military officials appearing before SCOND are seldom, if ever challenged, when presenting say, proposed legislative changes to their governing statute. The end result is that the senior leadership of the Canadian Armed Forces - and ths includes the Judge Advocate General - almost have always a sort of a carte blanche to successfully propose or oppose such legislative changes. They are also seldom challenged by parliamentarians advancing the need to reform their much outdated Canadian military justice system. The end result: the status quo!

    Truth be told, in deciding Stillman, the Supreme Court heard ONLY from the military; hence, the pleadings that took place were, to say the least, much constrained in scope and quality.Why?

    Firstly, because the Minister of Justice who has the statutory duty to exercise the “Superintendance of all matters connected with the administration of justice in Canada” [See para 4 b. of the Department of Justice Act:] simply, did not appear.It is hard to see how the Minister of Justice actually exercised his superintendant role over military justice by being totally silent on the issue.

    Secondly, the civil bar and in particular civil institutions such as the Canadian Bar Association, the Canadian Civil Liberties Association or the Criminal Lawyers’ Association did not intervene in Stillman; had they done so, they might have spoken for the literally hundreds and hundreds of thousands of Canadians who, in the many decades ahead, will enrol in the Canadian Forces and in doing automatically lose one of their constitutional rights in return for volunteering their services to the nation. I submit that the views, concerns and aspirations of such organisations on behalf of civil society would have presented a useful, if not necessary, ‘counterpoids’ to the constricted arguments presented by the military lawyers.


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