Judge Advocate General Annual Report 2022-2023

Communiqué

I am pleased to deliver my first annual report to the Minister of National Defence on the administration of military justice since my appointment as Judge Advocate General of the Canadian Armed Forces on 28 June 2023. This report covers the period from 1 April 2022 to 31 March 2023, during which time I served as Acting Judge Advocate General.

Pursuant to subsection 9.3(2) of the National Defence Act,^{Footnote 1} the Judge Advocate General is required to report annually to the Minister of National Defence on the administration of military justice in the Canadian Armed Forces.

The theme of last year’s Annual Report focused on the journey of the military justice system to improve the discipline, efficiency, and morale of the Canadian Armed Forces. Last year’s report traced the system’s ongoing evolution as it adapted to changes in Canada’s social and legal norms to better meet the Canadian Armed Forces’ unique needs in a fundamentally just and equitable manner. This year’s report will focus on one significant milestone on that journey: the implementation of provisions of Bill C-77, An Act to amend the National Defence Act and to make related and consequential amendments to other Acts.^{Footnote 2} While much has been written about one aspect of this Act, the Declaration of Victims’ Rights, this report will focus on the foundation of the military justice system, the Canadian Armed Forces’ new summary hearing system.

The New Summary Hearing System

As of 20 June 2022, the new summary hearing system replaced the previous system of summary trials. The new system is designed to enhance the responsiveness of the military justice system at the unit level, providing a more streamlined, non-penal, disciplinary process to deal with misconduct by Canadian Armed Forces members. This new system allows commanding officers and their delegates to address minor breaches of military discipline swiftly and fairly, holding to account those responsible while still adhering to fundamental principles of fairness.

Implementing the new summary hearing system represented a comprehensive redesign of the military justice system at the unit level. A change of this magnitude required work and input from all Defence Team partners. For several years, the Office of the Judge Advocate General (Office of the JAG) has been part of a whole of government effort to bring this about, consulting with military justice stakeholders from across the Canadian Armed Forces and the Department of National Defence, preparing policy and training materials and working with the Department of Justice to draft legislative and regulatory amendments.

Like several recent changes to the military justice system, including the Declaration of Victims’ Rights, the legal foundations of the summary hearing system were laid by Bill C-77. However, the breadth of the changes required more than just statutory amendments; it also required the most extensive amendments to the Queen’s Regulations and Orders for the Canadian Forces^{Footnote 3} in over five decades before the new process could be effectively implemented. The amendments came into force on 20 June 2022, and the first summary hearing was held on 11 July 2022.

The previous summary trial system was a crucial piece of the Canadian military justice system since the coming into force of the National Defence Act in 1950. Designed to be held wherever a unit was located, whether in garrison, in an exercise area or deployed abroad, summary trials made up more than 80% of all service tribunals during a typical reporting period.^{Footnote 4} They were an invaluable tool for the chain of command, serving as an efficient criminal process to address relatively minor service offences while also providing the accused with robust procedural safeguards. The summary trial system was instrumental in maintaining discipline in the Canadian Armed Forces across the full spectrum of training and operations throughout the cold war era and on into the critical United Nations and NATO international peace and security missions that followed.

However, the military justice system must keep pace with evolving legal and social norms. To better align with contemporary Canadian values, a new, non-penal administrative tribunal was designed with a view to meeting the recognized needs of military justice stakeholders while offering the chain of command flexible and efficient options to deal with minor breaches of discipline.  In the result, more serious misconduct continues to be addressed through the prosecution of service offences in courts martial, but less serious matters can be addressed swiftly in a manner that meets the distinct objectives of the military justice system outside of the penal system.

The change from criminal to administrative law underpinnings is reflected in many aspects of the new hearing process. To begin with, service offences have been removed from the jurisdiction of summary hearings and replaced exclusively with service infractions. Service infractions cover a variety of acts, omissions, or conduct that breach Canadian Armed Forces standards and adversely affect unit morale, efficiency, and discipline. These include such things as the unauthorized use of public property, failing to disclose a conflict of interest, handling a weapon in a dangerous manner, and being impaired while on duty.

The standard of proof has also been modified. Charges heard in the summary hearing system are determined on a balance of probabilities, typical of administrative disciplinary proceedings in other professions, rather than the criminal standard of beyond a reasonable doubt. Finally, a person found to have committed a service infraction will be subject to a sanction rather than a punishment, which can range from minor sanctions like extra work and extra drill to more serious sanctions like a reduction in rank for the most aggravated of infractions.

While the changes have been extensive, certain principles remain the same, including the centrality of the chain of command in the process. In most cases, it is commanding officers or delegated officers who conduct summary hearings. In addition, the new process maintains safeguards for those charged with service infractions, grounded in the principles of procedural fairness and natural justice. These include access to an assisting officer if desired, the right to make representations, and the right to be heard by an impartial decision-maker.

The Superintendence Enhancement and Assessment Project

The establishment of the summary hearing process has been accompanied by ongoing work on the part of the Office of the JAG to enhance transparency and accountability in the military justice system by improving monitoring, statistical analysis, and the use of technology. This work will culminate at the unit level with the Justice Administration Information Management System under the Superintendence Enhancement and Assessment Project that will include and incorporate the Military Justice Performance Monitoring Framework and the Military Justice System Time Standards initiatives.

The aim of these efforts is to maintain an awareness of the efficiency and effectiveness of the military justice system with a view to allowing for improved statistical and evidence-based decision-making. In addition, these new initiatives will also improve the administration of military justice at the unit level by providing unit authorities with a complete picture of disciplinary proceedings within their unit, thereby better engaging them in the disciplinary process.

The Declaration of Victims’ Rights

The coming into force of Bill C-77 also transformed the military justice system by enacting the Declaration of Victims’ Rights within the National Defence Act. Aligning the military justice system with its civilian counterpart, the Declaration statutorily enshrines support mechanisms for victims of crime and provides them with a number of legal rights, including enhanced rights to access information, the right to participate in decision making, the right to protection, and the right to restitution. The Office of the JAG was instrumental in supporting the development of this initiative and continues to support its implementation to ensure victims and survivors of service offences are able to effectively participate within the administration of military justice.

Conclusion

The implementation of the summary hearing system marks an important milestone on the military justice system’s journey. In their role superintending the administration of military justice, the Judge Advocate General remains committed to supporting the Government of Canada, the Department of National Defence, and the Canadian Armed Forces in the continuing evolution of the system, working to improve its fairness, efficiency, and responsiveness to the needs of military discipline. As they have in the past, the Judge Advocate General’s efforts towards this end will be guided by the overlapping imperatives of the rule of law, the rights of all participants and the unique requirements of the Canadian Armed Forces.

Fiat Justitia

Rob Holman, CD
Brigadier-General