Wednesday, July 22, 2015

Should CEO of the Canadian Bar Association (CBA) take on honorary military role?

 In its July 20, 2015 edition, LAW TIMES, a Thompson Reuters publication providing the latest news, analysis, and other developments in the Province of Ontario's legal scene, reports on concerns being voiced about the recent appointment of John Hoyles, the Chief Executive Officer of the Canadian Bar Association to an Honorary Colonel appointment within the Judge Advocate General Branch. 

A former President of the CBA and senior practitioner, Eugene Mehan, says that the appointment seriously compromises the CBA's ability to take positions on military justice issues.
"The problem is that the Canadian Bar Association, by making this honorary appointment, have basically taken themselves out of the game. They diminish their position whereby they can neither speak for nor against any position regarding military justice with credibility.
However, David Bright, another senior practitioner who practises military law says he doesn’t see a problem with the appointment.
I don’t see it as a conflict. I’m an honorary colonel at one of the air force bases [12 Air Maintenance Squadron, Sheerwater, Nova Scotia] here, which never caused a conflict problem for me. I defend without hesitation. It’s an honorary position and very much a PR position.”
As a quintessential national institution the Canadian military has been under the spotlight for its inability, if not unwillingness, to deal with the prevalence of inadequate sexual conduct by its members as well as the failure of its leadership to tackle this issue. The military justice system has also been open to much debate in the idea that it should become increasingly placed under civilian authority. However, up to now, the Canadian military justice system appears to be both impervious and very much recalcitrant to these developments. On the other hand, the CBA has been totally silent on all and any military law issues. It is now proper to ask whether having his CEO serve as Honorary Colonel of the military legal branch could actually undermine both the appearance and reality of the institutional independence and integrity of the CBA in respect to the current clamour for reforming the military justice system.


  1. For the parties who find themselves at the core of a conflict of interests it is often very difficult to see it, let alone acknowledge its existence. Normally their initial reaction is one of strong denial even when it is pointed out to them by neutral or friendly observers. Of course there are many reasons for the denial. Chief among them are the mutual advantages and benefits the parties gain from the situation.

    The reaction of a senior practitioner who practises military law in Nova Scotia clearly highlights that. He sees no actual or potential conflict of interests in the fact that the Chief Executive Officer (CEO) of the Canadian Bar Association (CBA) has been appointed Honorary Colonel in the Judge Advocate Branch just like he does not see any conflict of interests in his own Honorary Colonel appointment at one of the air forces bases. But the latter is an issue for another day.

    The most critical aspect of the conclusion of the senior practitioner is that we are looking at two honorary appointments of quite a different magnitude in terms of possible impact on the development of military law and on one of the fundamental roles of the CBA. Indeed the CBA is very active at the legislative level, intervening before Parliament and making submissions on proposed Bills. It provides a strong voice on any law reform proposal. Most obviously the JAG has a high professional interest in such matters. Permit me to doubt, however, that the Commanding Officer of 12 Air Maintenance Squadron would have any interest, involvement or ambition to pursue or not pursue military law issues before Parliament.

    In recent years the Department of National Defence filed before Parliament contentious legislative proposals which were in the end enacted, one of which being the creation of a criminal record for soldiers convicted of a service offence. As if this was not enough, it made the existence of the criminal record dependant on the gravity of the sentence actually imposed by the military tribunal rather than the objective gravity of the offence as is normally the case, thereby making it extremely difficult to challenge the criminal record. Appeals against the severity of a sentence are subject to very strict and restrictive conditions. Nowhere was the CBA to be seen when these proposals were debated before the House of Commons and the Senate parliamentary committees.

    The honorary appointment of the CEO of the CBA in the Judge Advocate Branch, cautioned as it appears by the Executive of the CBA, certainly raises serious concerns about the institutional independence of the CBA, whether actual, future or perceived. In the public interest and in the interest of maintaining public confidence in the administration of justice, including military justice, justice must not only be done, but must also be seen to be done.

    In my respect view this honorary appointment unfortunately fails the test.

  2. In the last sentence of my comment above, the word "respect" should read "respectful".

  3. Having had the honour (in deference to my Canadian friends and colleagues) of being invited to present at a CBA Annual Meeting's Military Law Section, I can attest to the robustness of the CBA's interest and involvement in military justice matters. I offer this as an "interested" outsider only, but in the case of the Canadian "boy soldier," Omar Khadr [Disclaimer: I had a small role in his defense early on], the CBA clearly had interests in both his treatment and whether or not, as a minor, he could even be subject to prosecution by a U.S. Military Commission. The CBA's interests - at least as relayed to me - did not coincide with the Government's interests, which presumably included the Senior JAG leadership's official positions. While that is quite understandable and not necessarily at all controversial, at a minimum at least to this observer, making the CEO of the CBA an honorary Colonel in the JAG Branch, gives the appearance of a conflict at a minimum. And appearances, both within the military and the citizenry in general are important to the continued integrity of any military justice system. This is an interesting debate and thank you all for bringing it to our attention.


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