The ball is clearly in the parliamentary domain

The Canadian political class appears to be detached from the military law scene. They appear to be unconcerned and uninterested in the design, control and management of the military justice system and unperturbed  by the systemic weaknesses as reported in the 2018  Report by the Auditor General of Canada titled "Administration of Justice in the Canadian Armed Forces." i

As an aside, members of the House of Commons serving on the  parliamentary committee overseeing defence and military issues, namely the Standing Committee on National Defence [SCOND], are seldom part of that committee long enough to develop an expertise in this subject. As a result, individually and collectively these committee members are almost always somewhere in the early stage of long and steep learning curve and are not having the opportunity to acquire and develop a good understanding of  the broad defence and military matters, including the more complex military justice issues. 

This means that defence and military officials appearing before SCOND are seldom, if ever, truly challenged, when presenting say, proposed legislative changes to their governing statute. The end result is that the senior leadership of the Canadian Armed Forces (CAF) - and this includes the Office of the Judge Advocate General (JAG) - have a sort of a free pass to successfully propose or oppose almost any legislative change. They are also seldom challenged by a parliamentarian advancing the need for reform to the outdated Canadian military justice system. Any such call for reform normally originates outside the Parliamentary Precinct by members of the military bar. The end result: the status quo reigns!

This state of affairs is aided in no small way, by the simultaneous absence of a public debate on the military justice system.  Institutions such as the Canadian Bar Association, the Canadian Civil Liberties Association or the Criminal Lawyers’ Association, to name but three, seldom take position or intervene in military justice issues when such matter is discussed before a parliamentary committee or being brought up in national media. Also, they rarely intervene when such critical matters are being considered by the Court; a case in point, in the recent Supreme Court decision of R. v. Stillman , SCC 40 the lawyers for both parties who were all members of the Regular Force not only dominated the debate, they were alone at the lectern.  

What was at issue in Stillman was  the exemption  of military law from the constitutional right to a jury trial in criminal trials for the most serious offences. This means that following enrolment in Her Majesty's armed forces, Canadians are treated  to a different set of rules and laws. Disappointingly, however, no one spoke for the hundreds and hundreds of thousands of Canadians who, in the many decades ahead, could be enrolled in the CAF.  Whether the loss of such a constitutional right could be seen as a form of inhibition to the motivation and willingness of volunteers for military service and the pull for patriotism ought to be a vital consideration for any democracy.  Therefore, the views, concerns and aspirations of the Canadian citizenry including soldiers-in-waiting and its long-term impact on the CAF volunteer force structure could  have acted as a ‘countrepoids’ to the constricted pleadings, in scope and quality, presented by the CAF lawyers. 

As importantly, however, Canada’s Minister of Justice  was also ‘absent' during these proceedings. Yet, section 4 of the Department of Justice Act gives the Minister responsibility for:

“the superintendence of all matters connected with the administration of justice in Canada, not within the jurisdiction of the governments of the provinces and to advise the Crown on all matters of law referred to the Minister by the Crown.” [My emphasis.]

The Minister’s absence is in keeping to its usual passiveness and non-involvement in military affairs. It is almost as if there were a line of demarcation between laws intended for civil society and laws enacted for the military. This is almost as if the military was being granted a sort of independence of decision and actions within a wide and widening sphere of competence.  Yet, the Minister of Justice has the statutory duty to exercise the “superintendance of all matters connected with the administration of justice in Canada”. It is hard to see how the Minister of Justice actually exercised his superintendent role over military justice by being totally silent on the issue.

In my respectful opinion, it is the duty of the Legislature - particularly in peacetime - and, in particular, the Minister of Justice to be vigilant and not cede control of our armed forces to the military, allowing it to operate in a vacuum and in accordance with their own ethos and concepts. Former French Prime Minister Georges Clemenceau once famously quipped: “War is too important a matter to be left to the military.” Perhaps there is a conventional wisdom to this statement, and military justice, accordingly, is also too important a matter to be left to the military.

Such an attitude was reflected upon by Brigadier-General W.J. Lawson in 1951, as the then Judge Advocate General for the Canadian Forces when the National Defence Act [NDA] came into force. He wrote in the Canadian Bar Review: “It is important that lawyers practicing in this field should appreciate that military law is not, as many seem to think, a code of law separate and apart from the ordinary law. It is an integral part of law of the land based on the same fundamental principles of justice and giving the same protection to an accused as our civil law.” [My emphasis.]

The time has come for the Canadian Parliament under the guiding hand of the Minister of Justice to address and redress the current deficiencies  embedded into the National Defence Act.