Tuesday, June 24, 2014

Full transparency required in making non-judicial appointments such as the JAG

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The Canadian JAG is not a Judge!

In April, a fellow blogger noted that in Canada the Judge Advocate General (JAG) is not a judge! That’s a fact. At least, not since 1998 when following a major restructuring of the National Defence Act the Office of the Chief Military Judge was created. Since that time, the Chief Military Judge sits at the apex of the Canadian military justice system having jurisdiction over all military and civilian personnel subject to the Code of Service Discipline which includes the JAG. Since then, our JAG has been relegated to the role and functions of  a legal advisor whose duties are somewhat akin to those performed by several of his colleagues serving at Justice Canada.

Why is the Canadian JAG paid on a judge's scale?

As pointed out by retired Justice Gilles Létourneau, ironically the legacy term “Judge” in the title of the JAG – which was imported to Canada from Britain with the remainder of our military justice system at the turn of the last century - allows the current office holder who is not a judge to be paid the salary of a judge of a Superior or Federal Court. Something which was confirmed by the external Military Judges Compensation Committee in its December 2012 report to the Honourable Peter MacKay, the then Minister of National Defence, noting that the JAG’s pay was indexed to “that of federal court judges”.

In Canada federally-appointed judges are paid $300,800 annually while a Chief Justice and an Associate Chief Justice are paid $329,000.  For sake of comparison, the Compensation Committee confirmed also that the “Chief of the Defence Staff (CDS) [was] paid $327,000.” 

What will be of interest to the military community, is that the JAG is, at the very least, the second best paid officer in the Canadian Forces. In the meanwhile, the pay of our most senior component commanders such as the Commander of the Royal Canadian Navy, the Commander of the Canadian Army and the Commander of the Royal Canadian Air Force, who are all serving at the rank of lieutenant-general, is capped at $252,804 which is just a shade over the salary of the Minister of National Defence set at $240,000.

Absence of limits on Canadian ministerial authority

The Governor-in-Council (GIC) appointments such as that of the JAG are made on the recommendation of a cabinet minister in accordance with the relevant statutory authority  or enabling statute. Normally, compensation for the more than approximately 500 full-time and 1,900 part-time GIC appointments such as a Deputy Minister or other appointees for service with and within over 200 agencies, boards, commissions and Crown Corporations are normally published in the applicable Order-In-Council which specifies such things as the tenure of the appointment as well as the terms and conditions for their remuneration. 

However, quite exceptionally and quite inexplicably, the salary level and the consequential benefits paid or to be paid to the JAG (severance pay, special retirement plan, business travel entitlements, leave entitlements, insurance plans benefits, relocation provisions) have not been made public and hence, until this is done, his appointment, salary and benefits cannot benefit from a modicum of public scrutiny.

Democratic reform requires more robust Canadian parliamentary oversight 

Even tough, in accordance with the terms of Standing Order 110 (1) of the House of Commons, the Government is required to table copies of all Order-in-Council appointments to non-judicial posts and that these are automatically referred to the standing committee overseeing the organization to which the individual has been appointed, any such standing committee has limited powers. It may call the appointee to appear before it to answer questions respecting his or her qualifications and competence to perform the duties of the post to which he or she has been appointed but it has no power to revoke the appointment or to give their judgment as to the qualifications or competence of the nominee. It has also no power to review or comment on the rank and salary level of the appointment to ensure that taxpayer-funded appointments are done in a publicly accountable manner.


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