Félicitations / Congratulations Rear-Admiral Bernatchez

Yesterday, 16 March 2020, the Chief of the Defence Staff (CDS) announced the retirement, promotion, and appointment of General and Flag Officers, including the promotion of the Judge Advocate General (JAG), from Commodore to Rear-Admiral.  This was amid other announcements including the appointment of Lieutenant-General Mike Roleau as the Vice Chief of the Defence Staff (VCDS), replacing Lieutenant-General Lanthier, who announced his retirement after holding the position of VCDS for less than a year.  Fortunately for the Office of the JAG, and from the perspective of consistency, the position of the JAG has not seen the frequent turn-over that has arisen recently with the position of the VCDS.  Indeed, in the past 20 years, there have been two JAGs who were re-appointed to their position for a second 4-year term: Major-General Jerry Pitzul, who served as JAG from 1998 to 2006, and Major-General Blaise Cathcart, who served as JAG from 2010 to 2017.  Rear-Admiral Bernatchez succeeded Major-General Cathcart in the summer of 2017 and is the fifth JAG (and third in the past two decades) to hold a rank higher than Brigadier/Brigadier-General/Commodore.

The first JAG, Henry Smith, who served as JAG from 1911 to 1918, retired as a Major-General. John Wolfe, who served as JAG from 1978 to 1982, also retired a Major-General.   Indeed, since the significant reforms to the NDA introduced in 1998, only one JAG was not promoted beyond Brigadier-General/Commodore rank.  I suspect this has something to do with the fact that, in December 2008, the United States statutorily ‘upgraded’ the ranks of the Judge Advocates General of each of their services (colloquially referred to as ‘TJAG” for the US Army, US Navy, and US Air Force) to Lieutenant-General/Vice Admiral.  (The head of the Marine Corps’ Judge Advocate Division is referred to as the Staff Judge Advocate (SJA) to the Commandant, and is a Major-General, having been upgraded from Brigadier General contemporaneous with the changes to the TJAG’s for the other services).

What I found most interesting about the announcement of Rear-Admiral Bernatchez’s promotion, was the wording of the announcement.  Paragraph 3B of the ‘Media Backgrounder‘ circulated yesterday stated:

Commodore G. Bernatchez will be promoted to the rank of Rear-Admiral and will remain as Canadian Armed Forces Judge Advocate General, in Ottawa ON.

However, I would suggest that Rear-Admiral Bernatchez will not remain the “Canadian Armed Forces Judge Advocate General”.  That’s because she was never the “Canadian Armed Forces Judge Advocate General”.  She was, and is, the Judge Advocate General of the Canadian Forces.

Words have meaning, particularly when they are used in a statute.

You may be thinking: “OK Fowler, give it a rest, we know what they mean …”.  That’s a fair point.  I do tend to pick at these minor points.  However, hear me out.

I understand (or, at least, I believe I understand) why the public affairs officers used the wording that they did.  Ever since the Canadian Forces was instructed by their political masters to use the term “Canadian Armed Forces” instead of “Canadian Forces”, every media release and backgrounder has emphasized that term.  And don’t misunderstand me: a significant tenet of a democracy governed by the rule of law is that its armed forces must be subject to civilian control.  “Canadian Armed Forces” is used widely and consistently, notwithstanding that it is used precisely twice in the National Defence Act, compared to “Canadian Forces”, which is used over 200 times.  I get that this is about ‘messaging’.  (That said, I also noticed that the Canadian Forces did not go about changing the names of the multitude of units that use “Canadian Forces” to “Canadian Armed Forces” – e.g. the Canadian Forces School of Communication and Electronics retained that name, and is not now named the Canadian Armed Forces School of Communications and Electronics.  So, perhaps the use of “Canadian Armed Forces” is best described as ‘selective messaging’ or ‘messaging, as long as it isn’t too inconvenient…’.)

The problem here is that the ‘messaging’ has resulted in erroneous use of a name, or perhaps, more accurately, an error resulting from ignoring what the governing statute states.  Like the CDS and the VCDS, the JAG is a creature of statute.  The CDS is created and named at section 18 of the NDA.  Similarly, the VCDS is created and named at section 18.1 of the NDA.  We call the CDS the CDS (or Chief of the Defence Staff), and not, say, the Lord High Executioner, because that’s what Parliament named the position of the officer with control and administration of the Canadian Forces (and note: the CDS has control and administration of the Canadian Forces).  Similarly, the Judge Advocate General of the Canadian Forces (or Judge Advocate General) is created at section 9 of the NDA.

As I have mentioned above, the position of JAG pre-dates the 1950 version of the NDA (The National Defence Act (1950), 14 Geo VI, c 43), which created the position of the Judge Advocate General of the Canadian Forces at section 10 of that Act (and which was not as expansive as the current formulation).  The National Defence Act, 1922, 12-13 Geo V, c 34, Canada’s first National Defence Act, was very brief and did not mention the Judge Advocate General, although that position had existed for over a decade by that point (and the Office of the JAG had existed since 1918).  The National Defence Act, 1922 focused principally on creating the Department of National Defence and placing the Minister over the three services that then existed.  Certainly, both the 1922 and the 1950 Acts predated the creation of the combined service known as the “Canadian Armed Forces”.

My point is this: in blind service to a ‘message’ people who are responsible for informing the public are misinforming the public.  You might conclude that this is an inconsequential error.  You may be correct in drawing such a conclusion.  An erroneous use of a name may, in narrow context, be inconsequential.  However, I suggest it is also something that the same public actors can easily get right.  The name is right there in the statute, and it has been a name that has been used consistently and correctly for decades.  It is only recently – again, because of slavish adherence to a ‘message’ – that public officials have been getting it wrong.  And if public officials are getting this wrong, where else are they making errors?  What other statutory expressions of Parliament’s will are they getting wrong?

Canada is a constitutional parliamentary democracy.  Perhaps more accurately, a constitutional representative parliamentary democracy.  Parliament passes laws (on a federal level) for the benefit of all Canadians.  Constitutionally, by virtue of section 91(7) of the The Constitution Act, 1867 (UK), 30 & 31 Victoria, c 3, Parliament has the exclusive jurisdiction to legislate in matters of “… Militia, Military and Naval Service, and Defence.”  Individual statutory actors do not have the authority to defy the will of Parliament.  A key foundation of administrative law, long before Canada benefitted from an entrenched Charter of Rights and Freedoms, was judicial review of executive action to ensure that it complied with the statute that empowered the statutory actor.

Parliament has named the Judge Advocate General of the Canadian Forces, and the name is not “the Canadian Armed Forces Judge Advocate General”.

Here’s a thought: let’s respect Parliament’s will and its constitutional role.  Let’s stick with Parliament’s name.

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