The Third Independent Review of the National Defence Act and Call for Submissions

December 16, 2020 - Defence Stories

The Honourable Harjit S. Sajjan, Minister of National Defence (MND), announced on November 16 the appointment of the Honourable Morris J. Fish, former Justice of the Supreme Court of Canada, as the Independent Review Authority, to conduct an independent review of specified provisions of the National Defence Act (NDA) and their operation.

The specified provisions under review include those relating to military justice (including the Code of Service Discipline), military grievances, the Canadian Forces Provost Marshal, and the Military Police Complaints Commission.

The NDA requires the MND to initiate an independent review of specified provisions of the Act and their operation, and to table a report of the review before Parliament within a specified timeline. The statutory deadline to table the next report is June 2021.

“Efforts have been underway for some time to prepare for the next independent review. I am pleased to announce the Honourable Morris J. Fish as the Third Independent Review Authority,” said Minister Sajjan. “He will examine the military justice system and provide recommendations on how we can continue to evolve the system so it reflects current Canadian values.”

Two previous independent reviews have been conducted, one by the late Right Honourable Antonio Lamer, former Chief Justice of Canada (report tabled in 2003), and the other by the Honourable Patrick LeSage, retired Chief Justice of the Ontario Superior Court of Justice (report tabled in 2012), under Bill C-25, An Act to amend the National Defence Act and to make consequential amendments to other Acts.

The first independent review resulted in 88 recommendations made by former Chief Justice Lamer, the majority of which pertained to military justice. Most of the recommendations were accepted by the MND and were addressed by amendments to the NDA in Bill C-60, An Act to amend the National Defence Act (court martial) and to make a consequential amendment to another Act, which, among other things, more closely aligned the mode of trial by court martial with the approach in the civilian criminal justice system; Bill C-16 An Act to amend the National Defence Act (military judges), which dealt with the security of tenure of military judges; and Bill C-15, the Strengthening Military Justice in the Defence of Canada Act, which comprised the most significant amendments to the NDA since 1998, serving to further align the military justice system within the larger Canadian legal mosaic while taking into account the unique requirements of that system.

As a result of the second independent review, former Chief Justice LeSage’s report included 55 recommendations, with nearly two-thirds of the recommendations dealing with the military justice system. He observed that significant progress had been made on the grievance process since the first independent review in 2003, and made a number of recommendations for further improvement. Former Chief Justice LeSage’s recommendations are substantially reflected in Bill C-15 regulations which came into force in September 2018, and are also reflected within revised policies.

As with the past two reviews, the third independent review is expected to provide thoughtful analysis that may contribute to legislative, regulatory, and/or policy changes. The third independent review is now underway.

Persons who have an interest in the military justice system (including the Code of Service Discipline), military grievances, the Canadian Forces Provost Marshal, and the Military Police Complaints Commission are encouraged to provide comments to the Third Independent Review Authority. Inquiries and submissions should be addressed to Mr. Jean-Philippe Groleau at Davies Ward Phillips & Vineberg LLP, by mail to1501 McGill College Avenue, Suite 2600, Montreal, Quebec, H3A 3N9, by telephone at 514-841-6583, or by email at: review.authority@dwpv.com.

All submissions must be received by January 8, 2021. Persons making submissions should expect that their submissions will be made public, however the Independent Review Authority maintains discretion in this regard and may receive certain submissions in confidence.