Court Martial Comprehensive Review

17 January 2018

DRAFT INTERNAL REPORT - COURT MARTIAL COMPREHENSIVE REVIEW

The Canadian military justice system forms an integral part of Canada’s legal mosaic and the requirement for military tribunals have long been recognized in Canadian law, including the Constitution, and reinforced by Canadian courts, including the Supreme Court of Canada. This separate system of military tribunals allows the Canadian Armed Forces (CAF) to deal with matters that pertain directly to the discipline, efficiency and morale of the military.

Furthermore, Canadians have a clear expectation that their armed forces will be a disciplined one while reflecting Canadian values and ethics. All Canadians, including the proud women and men of the CAF, also expect that their military tribunals will continue to evolve in accordance with Canadian law while recognizing the unique role the military justice system plays in reinforcing discipline.

The Court Martial Comprehensive Review was initiated by my predecessor by terms of reference dated 13 May 2016. The purpose of this internal review was to conduct a legal and policy analysis of all aspects of the CAF’s court martial system and provide options to enhance the effectiveness, efficiency, and legitimacy of that system.

The review was also designed to engage a healthy public dialogue over the future of the military justice system through online discussion boards and posted summaries from public consultations and stakeholder submissions, both supportive and critical of the current system.

On 27 June 2017, I was appointed Judge Advocate General (JAG), and in early July 2017 was briefed by the Court Martial Comprehensive Review Team (CMCRT) on the status of its work. At that time, I provided the team with broad guidance as it worked to complete the report, then due in final form by 14 July 2017. On 12 July 2017, I made amendments to the team’s terms of reference. A key amendment was that the report would be changed from a legal and policy analysis, subject to solicitor-client privilege, to a policy-based analysis which would be unprivileged and could be shared publicly. The amended terms of reference also mandated the production of a draft report and extended the deadline for the production of the document to 21 July 2017.

The enclosed internal draft report was submitted to me on time in July 2017. It provides a history and overview of Canada’s court martial system, a comparative international study with selected states’ military justice system, offers an unusual theoretical basis for Canada’s courts martial and provides a number of observations, some from CAF commanders and members, on the military justice system.

In large part due to challenges related to methodology and a paucity of metrics and analytics, the paper is of limited assistance in assessing the current court martial system.

And so, considerable work remains to be done. As with the civilian criminal justice system, the military justice system is in constant evolution and benefits from internal and external reviews that offer meaningful evidence-based analysis and recommendations that serve to enhance it. To that end, I am looking forward to significant consultations with key stakeholders and with those who have expertise and interest in the military justice system. In terms of the external reviews, we will have much to learn from the Office of the Auditor General audit into the military justice system slated for publication in the spring of 2018 and I am looking forward to the results of the next independent review to be undertaken within the next 2 years pursuant to section 273.601 of the National Defence Act.

In light of the forthcoming external reviews, I have determined that no additional revision of the draft internal report will be required and that it will serve as a discussion paper. In that regards, the discussion paper represents the views of its authors. It does not represent my views or those of the Office of the Judge Advocate General. It offers perspectives that may be taken into account following receipt of the Auditor General’s report, the report of the next independent review authority along with other internal and external consultations.

As the superintendent of the administration of military justice, I remain confident it is an important and relevant system to promote the discipline, effectiveness and morale of the CAF. And, as with any other criminal justice system, the military justice system must remain in constant evolution in order to ensure that it continues to meet the needs of those who use it and are impacted by it, while meeting all applicable Canadian legal requirements. Therefore, moving forward, consideration and analysis of the various perspectives will contribute to formulate tangible options and recommendations to decision-makers to enhance the fairness, effectiveness, efficiency and, ultimately, legitimacy of Canada’s military justice system.

Geneviève Bernatchez

Commodore

Judge Advocate General