Wednesday, January 20, 2016

Canadian military justice structure remains a throwback to the British or Colonial Empire

In an article published on January 18, 2016 by Hill Times, titled  
Parliamentary Control of armed forces; a matter of national urgency and of Public Interest, retired Justice Gilles Létourneau and Professor Michel Drapeau posit, inter alia, that in Canada the Director of Military Prosecutions (DMP) lacks the required prosecutorial independence.

The article notes that the Judge Advocate General (JAG) who reports directly to the Minister of National Defence actually supervises the DMP. Additionally, lawyers working in the DMP are an integral part of the JAG’s chain of command; their selection for service within the DMP as well as their subsequent postings and assignments, appointments and promotions are all determined by the JAG chain of command to which they are totally subservient and obedient.

The authors also submit that the time has come for the Canadian Parliament to review, if not restrict, the extraordinary reserved authority, powers, control and influence of the JAG over the superintendence of the military justice system. 

Needed military law reforms cannot, they write, realistically come from within the Defence establishment. This onerous task and responsibility, are that of the legislator who should advance strong and pressing legislative corrective medicine in order to modernize and democratize the Canadian military justice system.


  1. The Defence Counsel Services Manual reads as follows:

    "Since they are CF members, DDCS lawyers are at all times subject to the NDA, the Code of Service Discipline, the QR&Os, and all other CF orders and instructions. As noted previously, they perform their duties and provide their services under the general supervision of JAG. It may appear that there is a conflict, or a potential for conflict, between the requirements of membership in the CF and officership on the one hand and the duties and responsibilities of defence counsel on the other.
    To address this misperception it is important to remember that the DDCS is appointed by the Minister of National Defence, not by CF authorities. Furthermore, an examination of the respective oaths they are required to swear, the governing legislation and regulations for DDCS lawyers, and the codes of professional conduct of the provincial and territorial law societies show that the legislative intent is to ensure, to the fullest extent possible, their independence in the provision of defence counsel services. In the final analysis, DDCS lawyers are subject to the same responsibilities and obligations as any other CF officer unless those responsibilities and obligations conflict with defence counsel duties.
    DDCS lawyers perform their duties and provide their services independent of the chain of command and of CF and Department of National Defence disciplinary and enforcement authorities. The sole restraints on the provision of their services are those imposed by law and by professional ethics, including the requirements and constraints of solicitor-client privilege.
    As indicated above, in fulfilling the mandate set out for the DDCS in the NDA, DDCS lawyers provide their clients with the defence counsel and advisory services typically provided by criminal lawyers in the civilian practice of law. They are, in fact and in law, under lawful military orders to provide those services to their clients. Accordingly, in respect of the provision of those services, the DDCS lawyer's allegiance is to the client."

    Constitutional challenges that Canadian military justice has faced during the past 10 years were brought by DCS. It would not have been possible if it was not given some professional independence.

    On that point, the Director of DCS reported in 2014-15:

    “Finally, the constitutional litigation this year has highlighted tensions which are inherent in a system where the Director Defence Counsel Services is commonly described as independent (in the sense that he is appointed by the Minister, for a fixed term, removable for cause and has a statutory mandate and responsibility to “provide, supervise and direct” prescribed legal services) but is, at the same time, described as being “under the command of” the JAG”.
    This tension is caused by professional, statutory and constitutional responsibilities which do not fit well within the concept of command. It is further caused by the two different characterizations of the JAG/DDCS relationship which are found at QR&O 4.081 and within the NDA itself. Within the QR&O the relationship is set out as one of command. Within the NDA, this relationship is set out as one of “general supervision” to be exercised within the statutory constraints of section 249.2. Adherence to the framework in the NDA enhances the transparency of the military justice system, ensures compliance with the Charter and our professional norms. It further allows those subject to the Code of Service Discipline to be confident that the representation that they receive from our counsel is focussed on their interests and their legal needs.”

    Based on these comments, it may be advisable to consider options such as: specifying in the QR&O 4.081 that JAG’s command over legal officers never oust defence counsel’s duty to client; creation of a board of directors - composed of inviduals external to CF - between the DCS and the JAG; career path for DCS lawyers where staying at DCS is the norm, unless exceptions.

  2. The article by Justice (ret) Letourneau and Prof. Drapeau deserves to be closely studied because it calls attention to an aspect of military justice reform that has to date received little sustained attention. All will agree (I assume) that a court-martial, like any other court, must be both independent and impartial. "Impartial" is familiar territory, and measures of one kind or another are in place to ensure it, but what does "independence" entail? Contemporary standards make it clear that the criminal adjudicatory process cannot be controlled by an official with a separate interest, such as a commander or "convening authority." But is the prosecution function part of the adjudicatory process such that it, too, must be kept independent of command? This seems elementary, but some countries have not been meticulous about creating a wall between command (even at the highest levels) and prosecution. In the United States, unfortunately, George III remains on the military justice throne after all these years, so that military prosecutors remain merely the servants of command when it comes to deciding what cases to prosecute -- and whether to drop charges once a case has been "referred" for trial. The recent jurisprudence of the European Court of Human Rights, in cases such as al-Jaloud, has properly focused on the importance of investigative independence, but what good is that if the prosecution decision itself -- the main event -- is not independent? More attention needs to be paid, not only in Canada, but elsewhere as well, to whether the prosecution function must be -- and is in fact -- beyond the control of the chain of command.

  3. Interesting point raised by Eugene. Prosecutorial independence was considered in the cases of Morris [2002], Grieves [2003] and Cooper [2003]. The court looked holistically at the British court martial system and whether the entire process was impartial and independent, in the wake of Findlay (1997). In its examinations, it looked at: prosecutor; court administration; judge advocate.

    In Morris at §62 and §63 it held: "In respect of the prosecuting authority, the Government highlighted that he and his staff were entirely independent of senior army command and brought prosecutions on behalf of the Attorney-General. They argued that the current prosecuting authority's coexisting role as Director of Army Legal Services, in which capacity he was answerable to the Adjutant General, did not prejudice his independence or impartiality as a prosecutor, especially since the Director of Army Legal Services was no longer involved with the giving of advice on disciplinary matters to the chain of command. For these reasons, the Court does not find that the applicant's general complaint about the relationship between senior army command, as represented by the Defence Council and the Adjutant General, and those involved in the applicant's court-martial proceedings, of itself gives rise to any violation of Article 6 § 1 of the Convention."

    In other words, prosecutorial independence was an important element of the overall independence and impartiality of the system, free from command influence.
    In Cooper v. UK at §115, the court found that his submissions concerning Higher Authority, the Prosecuting Authority and the Court Administration Officer did not cast any doubt on the genuineness of the separation of the prosecuting, convening and adjudicating roles in the court-martial process. It further considered that there was no reason to doubt the independence of the decision-making of those bodies from chain of command, rank or other service influence. In other words, there was both structural and functional independence.

    In Grieves, the court examined the prosecutorial independence of uniformed Navy officers as prosecutors. The crucial point was that, unlike either the army or RAF prosecuting authorities, the Navy PA (as it then was) occasionally appointed a prosecutor from a list of uniformed naval barristers who were eligible to act as prosecutors but who did not, in their general duties, work directly for the NPA - they were part of the chain of command, although always outside the CoC of the accused and always answerable for their duties as a prosecutor to the NPA [ibid, §22.] All Navy prosecutors were members of the Bar and subject to the ethical duties of the Bar Code of Conduct (including a duty to act with independence and in the interests of justice) and also applied the Code for Service Prosecutors which has been endorsed by the Attorney General. Moreover, the prosecuting authority himself was answerable not to the chain of command but to the Attorney General (Morris-v-UK), and had an absolute discretion, applying similar criteria as those applied in civilian cases by the Crown Prosecution Service, to decide whether or not to prosecute and, if so, to on what charges. What the Court pointed out - and the basis for its decision - was that "the essential point is that the prosecutor in the applicant's case came from the staff of the Prosecuting Authority." In other words, it made no comment about the propriety of appointing a prosecutor from the chain of command. [The court also found that the use of uniformed judge advocates deprived a "naval court-martial of one of the most significant guarantees of independence enjoyed by other services' courts-martial (army and air-force court-martial systems being the same for all relevant purposes")].

    While some might argue that it is not so important for a prosecutor to be independent, as the court will ultimately oversee the justice of the case, this is not the view of the ECtHR.


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