Wednesday, June 2, 2021

Plus ça change plus c'est la même chose!


June 1, 2021. Retired Supreme Court Justice Morris Fish, as the Third Independent Review of the National Defence Act, issued his report containing a total of 107 recommendations touching on all aspects of the Canadian Military Justice System. Taken as an ensemble, his report is an unmistakably clear critique of the very poor health of that system which is in need of a major overhaul. It is broken at its very core. It needs major, across the board modifications, updates and, shockingly, the implementation of existing legislation.
  • Consider Bill C-77 which was given Royal Assent in June 2019.  For unexplained reasons, the Bill remains to be put into force by the Office of the Judge Advocate General. 
  • This Bill provides victims of crimes which are prosecuted before a military tribunal with a number of rights already enjoyed since 2015 by every one else on Canadian soil. 
  • Bill C-177 has also repealed the Summary Trial system - a middle-age institution.  Yet, the Canadian military is undeterred by the passage of this legislation as they continue to submit the rank and file to the vagaries of a defunct summary trial system.
Suffice to say, that the probability of having Justice Fish's recommendations implemented is rather low unless the military consider it wise and acceptable. Otherwise it will remain in the proverbial in-basket. For instance, consider what happened to the equally sage  recommendations made by two of his immediate predecessors. In his report, Justice Fish chronicles eleven (11) key recommendations made by retired Chief Justice (CJ) Lamer (2002) and retired Chief Justice (CJ) LeSage (2013) that were never implemented. This highlights a pattern of behaviour of Canadian military authorities ignoring such recommendations:

                                            Ignored recommendations 

  1.  “CJ Lamer recommended the creation of a permanent military court … this recommendation has not been implemented” (para 83-4)
  2. “In 2011, CJ LeSage … recommended that the standing to make an interference complaint be extended … they have not yet been implemented” (para 191)
  3. Victims are deprived of rights guaranteed to them since 2015 by the Canadian Victims Bill of Rights… A corresponding Declaration of Victims Rights for the military justice system was included in Bill C-77 … it may not be implemented for at least several years, and I have been given no firm or even target date for its implementation.” (para 206)
  4. CJ Lamer recommended “additional guidance” on the distinction between military punishments. “His recommendation was not implemented … while some preliminary work was done, the task … was not pursued.” (para 303-304)
  5. “I have been advised that the summary hearing process may not be implemented for several years, and I have been given no firm or even target date for its implementation.” (para 378)
  6. CJ Lamer’s recommendation concerning confidentiality of discussions between an accused and an assisting officer “was not implemented.” (para 388-9)
  7. CJ Dickson, Lamer and LeSage all recommended training for AOs, which were not implemented (para 394-5)
  8. CJ LeSage recommended amending s.187 NDA concerning military judges deciding preliminary issues “which was not implemented.” I agree with his recommendation. (para 448)
  9. CJ LeSage recommended in 2011 that “[t]he Military Rules of Evidence should be superseded by the statutory and common law rules of evidence in the court martial system”. This was “not implemented”. (para 452)
  10. CJ Lamer recommended time limits for the FA in the CAF grievance process, which was “not implemented” (para 629)
  11. Chief Justices Lamer and LeSage both recommended that section 129 of the NDA be amended to clarify the requisite elements of an offence thereunder … I have been informed that their recommendations were not implemented because “[t]here has been no judicial determination or recommendation, at either the trial or appellant level, that s. 129 requires statutory amendment”: (footnote 296)

 Pattern of behaviour

  • The  2015 Report on Sexual Misconduct in the Canadian Forces by retired Madam Justice Marie Deschamps made ten recommendations. None of these were truly implemented.
  •  CJ LeSage’s report notes: “Unfortunately, many of the same concerns were raised by CF members at the bases I visited in the summer of 2011 and also in the submissions forwarded to me, now eight years after the Lamer Report” (para 630).
  • The Somalia Inquiry Report by then Justice Létourneau recommended the creation, by statute, of an Inspector General with broad powers of inspection and investigation. The recommendation was not implemented. (para 724)

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