Some Observations on ‘Military Justice’ at Summary Trial – Part II
Code of Service Discipline Proceedings Involving Legal Officers
In Part I of this series, I discussed, briefly, the anticipated shift from summary trials to summary hearings when regulations are enacted under the Queen’s Regulations and Orders for the Canadian Forces (QR&O) in order to implement significant portions of Bill C-77, An Act to amend the National Defence Act and to make related and consequential amendments to other Acts, SC 2019, c 15 (Assented 21 June 2019).
I suggested that one of the driving factors behind the creation of summary hearings is a rather clear intention to make it easier to convict CF personnel of offences, albeit offences that would not be characterized as penal or criminal offences – or even ‘offences’ – and would therefore not attract scrutiny under para 11(d) of the Canadian Charter of Rights and Freedoms (Charter).
This prompted me to examine recent peculiarities arising in the administration of summary trials that tend to signal a seeming desire by statutory decision-makers and their legal advisors to avoid the scrutiny by independent military judges that can arise if a CF member if permitted to elect trial by court martial. In turn, I suggested that these peculiarities may help explain why the CF is shifting to the summary hearing regime and may also highlight some future concerns that we might have regarding the administration of that regime.
And these peculiarities are useful to illuminate not only legal considerations in the administration of what the OJAG refers to as ‘military justice’, but also some of the ethical dimensions of decision-making under the Code of Service Discipline. And these ethical dimensions extend not only to decision-makers, but also their legal advisors, and military lawyers directly involved in these processes.
In the previous Blog post, we examined the issue of when a CF member would, and would not, be entitled to elect trial by court martial if charged with one or more offences under section 129 of the National Defence Act (NDA). Specifically, we examined the nature of the characterization at sub-art 108.17(1) of the QR&O that set out categories of circumstances relating to offences under section 129 of the NDA in which a statutory right to an election for court martial might be withheld. The bulk of our examination focused on the proper characterization of the category ‘dress and deportment’, as that category is relevant to a recent problematic interpretation of sub-art 108.17(1) of the QR&O.
In the present Blog Post, we will add a further factor which will add to the complexity of a determination regarding whether an election for court martial should be offered. And this factor will necessarily incorporate elements of the Office of the Judge Advocate General (OJAG) and its (limited) institutional independence that we discussed in the previous Blog post.
Specifically: what if the accused is a legal officer in the OJAG and the charge layer is a senior decision-maker in the OJAG – perhaps even the JAG herself (or, as appears to be the case presently, the Acting JAG).
I have previously commented on the impracticability of prosecuting certain key senior CF personnel, including the Chief of the Defence Staff (CDS), the JAG, the Director of Military Prosecutions (DMP) and even military judges, notwithstanding the outcome of the appeal in R v Edwards, et. al., 2021 CMAC 2.
But what if the accused was just a common-or-garden-variety legal officer posted to the Office of the JAG (OJAG)? Well, it might not be all that simple either.
The basis of the discussion in Part I of this series was predicated upon an actual circumstance in which a non-commissioned member (NCM) of the CF was charged with one or more offences under section 129 of the NDA in which the accused was alleged to have contravened “… regulations, orders or instructions published for the general information and guidance of the Canadian Forces or any part thereof … or … any general, garrison, unit, station, standing, local or other orders …”. The presiding officer subsequently declared the matter to be ‘minor’ in nature and that, consequently, the CF member was not entitled to an election for court martial under the exception established at sub-art 108.17(1) of the QR&O.
In the matter that gave rise to the example used in Part I, the allegation was that the CF member contravened one or more Defence Administrative Order and Directives (DAOD). However, the specific rule, policy, or regulation that was allegedly contravened is largely immaterial. By virtue of paras 129(2)(b) and (c) of the NDA, the contravention could pertain to a DAOD, a Compensation and Benefit Instruction (CBI), a command, formation, or unit standing order (including Task Force Standing Orders) or even a regulation under the QR&O, such as articles 19.14, 19.36, or 19.44 of the QR&O.
Moreover, Parliament did not create two distinct offences under sub-sections 129(1) and (2) of the NDA, respectively. Thus, a charge could be laid under section 129 of the NDA, without recourse to citing a specific regulation, order or instruction published for the general information and guidance of the Canadian Forces or any general, garrison, unit, station, standing, local or other order, provided that the charge layer reasonably believes that the accused is responsible for an “… act, conduct, disorder or neglect to the prejudice of good order and discipline …”. Subsection 129(2) of the NDA is principally a ‘deeming’ provision in terms of identifying acts or commissions that are prejudicial to good order and discipline. But it is not absolutely necessary to rely on that provision.
So, for the sake of the example for the present Blog post, let’s assume that the following facts or factors are alleged or relevant:
As we encountered with the example in Part I of this Blog series, the presiding officer – or, more precisely, the officer purporting to have summary trial jurisdiction – must make pre-trial determinations, including whether the accused will be offered an election for court martial.
In the present example, the officer purporting to have summary trial jurisdiction is a superior commander. All legal officers are commissioned officers at least of the rank of Captain/Lieutenant (Navy). Most legal officers hold the rank of Major or Lieutenant-Commander, so let’s make ours a Major – Major Bloggins (no relation to Sgt Bloggins from an earlier Blog post).
In the example that I have offered, Major Bloggins has been charged under section 129 of the NDA for contravention of a regulation or order published for the general information and guidance of the Canadian Forces or any part thereof. Based upon the analysis that I offered in Part I of this series, if the charge does not relate to: (1) military training; (2) maintenance of personal equipment, quarters or workspace; or (3) dress and deportment, Major Bloggins must be offered an election for court martial, regardless of whether the superior commander having summary trial jurisdiction considers the allegations ‘minor’, or not.
However, if the superior commander adopts the same rationale as the presiding officer in Part I of this Blog series – which was purportedly predicated upon legal advice from the office of the JAG – and the superior commander concludes that the appropriate penalty upon a finding of guilt would not exceed 25% of the accused’s net monthly income, and would be limited to a fine, a reprimand, or severe reprimand – or a combination of a fine (not exceeding 25% of the accused’s monthly income) and a reprimand or severe reprimand – then the superior commander would likely conclude that he or she is not obliged to offer Major Bloggins an election for court martial. [NB: Where the accused is a commissioned officer, the powers of punishment for a superior commander are limited to a fine, a reprimand, or a severe reprimand.]
And remember, under art 107.11, the superior commander exercising summary trial jurisdiction would be obliged to seek legal advice in light of the rank of the accused. So, if the presiding officer were to conclude that he or she is not obliged to offer the accused a right to elect trial by court martial, then it would presumably be based upon legal advice from the OJAG, particularly if the accused expressly asserted a right to elect trial by court martial.
As I indicated in Part I of this Blog series, the interpretation of sub-art 108.17(1) of the QR&O and the interpretation of the term ‘deportment’ offered by the presiding officer was incorrect, improperly construed, and inconsistent with the entirety of that provision. Consequently, I contend that it would be incorrect for the superior commander to refuse to offer Major Bloggins an election for court martial and that such a refusal would amount to a jurisdictional error.
However, is that the only issue arising in our hypothetical scenario when the superior commander considers whether an election should be offered to Major Bloggins? Let’s assume, for the sake of argument, that the overbroad interpretation of sub-art 108.17(1) of the QR&O offered by the presiding officer in Part I of this Blog series is not incorrect at law, and that a presiding officer could withhold that election from an accused for any charge under section 129 of the NDA that concerned the accused’s deportment generally. Are there any other issues that might otherwise oblige the superior commander in the present case to offer the accused an election for court martial?
I contend that there is, and it is directly linked to the nature of the Office of the JAG and the concept of conflict of interest.
Office of the JAG
In Part I of this Blog series, I described the role of the JAG (and the legal officers in the Office of the JAG) regarding the superintendence of military justice and the provision of advice on military law. I also described how the JAG reports to the Minister of National Defence (MND) in the performance of these duties, and therefore benefits from independence (or at least, an arm’s length relationship) from the Chief of the Defence Staff (CDS) and the chain of command of the CF.
The legal officers who advise the CF on behalf of the JAG benefit from this institutional independence through the creation of the element called the Office of the JAG (OJAG) and the fact that all legal officers whose duty is to provide legal services must be posted to the Office of the JAG. Moreover, the legal officers who provide legal service to the CF are responsible (and accountable) only to other legal officers for the provision of those services.
In the present example, the legal officer in question is alleged to have made improper comments while providing these legal services. Consequently, the charge was laid against the legal officer by a senior legal officer in the Office of the JAG, and not someone outside the Office of the JAG or who is not a legal officer.
In our example, the charge layer was the Acting JAG. Presumably, the officer designated the Acting JAG, and who therefore exercises the powers of the JAG in the absence of the JAG, has been properly authorized to do so under section 10 of the NDA:
The powers of the Judge Advocate General may be exercised, and the duties and functions of the Judge Advocate General may be performed, by any other officer who has the qualifications set out in subsection 9(1) that the Minister may authorize to act for the Judge Advocate General for that purpose.
While such an authorization would merit examination itself, in order to ensure that the authorization was properly made, for the sake of the present discussion (and since there is not a great deal of transparency regarding the current authorization during the apparent absence of the JAG), let’s assume that this authorization was properly made.
If that is the case, that officer would have both the powers of a commanding officer as well as the powers of an Officer Commanding a Command. The Office of the JAG is an ‘element’ of the CF. It is not a Command, notwithstanding that MOO 96-082 grants the JAG the powers of an Officer Commanding a Command. The JAG also has command of the Office of the JAG, an ‘element’ of the CF. By virtue of the definition of ‘commanding officer’ at art 1.02 of the QR&O, that makes the JAG (or Acting JAG) a commanding officer. Therefore, the JAG may exercise the powers and functions of both a commanding officer and an Officer Commanding a Command.
As a commanding officer, the JAG (or a properly authorized Acting JAG) may lay charges under the Code of Service Discipline by virtue of para 107.02(a) of the QR&O. Alternatively, the JAG, as a CO, may authorize other officers or non-commissioned members to lay charges by virtue of para 7.02(b) of the QR&O. However, as I am unaware of any such authorizations, for the purposes of our present discussion, we will proceed with the hypothetical circumstance in which the Acting JAG has laid the charge.
It is also possible that the JAG has designated other officers to be commanding officers, consistent with the definition of ‘commanding officer’ at art 1.02 of the QR&O and the CDS Order entitled “Designation of Commanding Officers”, dated 1 December 2020. I believe that the JAG has designated as commanding officers the officers occupying the positions of the Chief of Staff JAG (COS JAG), Deputy Judge Advocate Regional Services (DJAG Reg Svcs), Director of Military Prosecutions (DMP), and Director Defence Counsel Services (DDCS). However, I caveat that statement with the acknowledgement that I am no longer privy to all administration within the OJAG, and such designations are not necessarily public.
In our hypothetical example, the charge has been referred to an officer who falls within the definition of a ‘superior commander’ as that term of art is defined at section 162.3 of the NDA – specifically, in our example, it is an officer holding the rank of at least Brigadier General or Commodore. There is only one General or Flag Officer in the Office of the JAG, and that is the JAG herself. However, in our hypothetical circumstance, as appears to be the actual circumstance at present, the Office of the JAG is presently being led by a legal officer holding the rank of Colonel (or Captain (Navy)) and who is the Acting JAG.
Whether the Acting JAG, who is not a General or Flag Officer, falls within the definition of a ‘superior commander’ (i.e., as an as an “… officer appointed by the Chief of the Defence Staff as a superior commander …” pursuant to section 162.3 of the NDA) is a moot point in our example. The Acting JAG laid the charge, so he cannot be the presiding officer. It would also be problematic for any other officer in the Office of the JAG to exercise the powers of a presiding officer, even if such an officer could be characterized as a ‘superior commander’. After all, all other legal officers posted to the OJAG are subordinate to the JAG (or the Acting JAG) and if the Acting JAG laid the charge against Major Bloggins, there is valid reason to question whether that would influence a presiding officer who is subordinate to the JAG (or Acting JAG). We must remember: “It is not merely of some importance, but is of fundamental importance, that justice should not only be done, but should manifestly and undoubtedly be seen to be done” (R v Sussex Justices, ex parte McCarthy ( 1 KB 256,  All ER Rep 233; Brouillard v The Queen,  1 SCR 39).
However, the charge need not be referred to an officer who is normally in the accused’s chain of command. It need only be referred to a superior commander. Similarly, if the circumstances permitted the charge to be heard by a commanding officer at summary trial, it need not be referred to the accused’s commanding officer. Therefore, there is nothing improper about referring the charge to a superior commander who is not a legal officer, notwithstanding that a legal officer whose duty is to provide legal services must be posted to the Office of the JAG and is accountable only to other legal officers for the performance of such duties and functions.
Assuming that the superior commander in question is duly trained and certified as a presiding officer, the problem does not arise from the jurisdiction of the superior commander who will preside over the putative summary trial, but from the source of the legal advice.
Conflict of Interest
Due to the rank of the accused, the superior commander is obliged to seek legal advice from the unit legal advisor. (Ostensibly, pursuant to art 107.03 of the QR&O, the Acting JAG was also obliged to seek legal advice from the ‘unit legal advisor’ in the laying of the charge. Presumably, a legal officer from the office of the Deputy Judge Advocate, CFB Ottawa, would be the ‘unit legal advisor’ for the Office of the JAG, which is headquartered in Ottawa. Alternatively, since the JAG is the statutory legal advisor to the CF for matters of military law, perhaps the Acting JAG advised himself…)
In any event, the superior commander to whom the charge against Major Bloggins was referred is not a legal officer and is obliged to seek legal advice from her or his ‘unit legal advisor’: art 107.11 of the QR&O. And that is where the nature and role of the JAG and Office of the JAG generate some problematic considerations, including a rather clear conflict of interest.
The JAG is the statutory legal advisor to the CF on matters of military law, including the Code of Service Discipline. The JAG is responsible to the MND for the performance of these functions and duties. The JAG is aided in this function and duty by legal officers posted to the Office of the JAG. The JAG commands the office of the JAG. The JAG has institutional independence from the CF leadership in the performance of these functions by virtue of section 9.3 of the NDA, and the legal officers under the JAG’s command benefit from this institutional independence by virtue of their posting to the Office of the JAG and art 4.081 of the QR&O, reinforcing the JAG’s statutory institutional independence.
But legal officers, generally, are manifestly not independent from the JAG (or Acting JAG). Select legal officers, such as DMP and DDCS, benefit from some legislated protections regarding their independence of action in the performance of their functions under the Code of Service Discipline. However, the common-or-garden-variety legal officers do not enjoy independence from the direction of the JAG (or Acting JAG). On the contrary, art 4.081 of the QR&O rather clearly states that the “…duties of a legal officer posted to a position established within the Office of the Judge Advocate General are determined by or under the authority of the Judge Advocate General …” to the exclusion of those officers who are not legal officers.
Even if the superior commander, as putative presiding officer, were advised by a relatively senior legal officer – say, a Lieutenant-Colonel – who had no prior involvement in the matter, the putative presiding officer would still be advised by a legal officer subordinate to the officer who laid the charge. Even if that legal officer was the ‘poster child’ for ethical and professional legal advice, that would not alter the fact that the legal advisor for a charge against another legal officer was drawn from the same element as the accused, over which the charge layer exercises command.
Worse still, would be a circumstance in which the officer who referred the charge to the putative presiding officer were the supervisor of the legal officer who provided legal advice to the presiding officer. In our example, the Acting JAG laid the charge. But what if the Acting JAG then referred the charge to another officer who purported to possess the powers of a commanding officer. As I mention above, it is my understanding that select ‘Deputies’ of the JAG have been designated as CO by the JAG. One of those is COS JAG, who is also the current Acting JAG.
What if Major Bloggins were a legal officer in the Regional Services Division of the OJAG? The Regional Services Division is one of the largest of the Divisions within the OJAG and provides legal advisors to all Canadian Forces Bases across the country, divided into regions, headed by Assistant Judge Advocates General. DJAG Reg Svcs is one of the ‘designated COs’ in the OJAG. Ostensibly, if Major Bloggins belonged to Regional Services, then, in our hypothetical example, the Acting JAG could refer the charge to DJAG Reg Svcs as Major Bloggins’ CO. Since DJAG Reg Svcs is not a superior commander, DJAG Reg Svcs would have to refer the charge to a superior commander pursuant to para 108.16(3)(b) of the QR&O. Note that such a role and function require DJAG Reg Svcs to turn his mind to the merit of referring the charge. DJAG Reg Svcs must, at the very least, have a reasonable and actual belief that the service offence occurred, if not a belief that there is a reasonable prospect of conviction.
Of course, the conflict of interest that I describe above then becomes more problematic. If the superior commander is advised by a legal officer from Regional Services, then we have two points of conflict: (1) the charge was laid by the Acting JAG, who exercises command over all legal officers “… whose duty is the provision of legal services to the Canadian Forces …”; and, (2) the charge was referred to the superior commander by the officer who is the designated CO for all legal officers posted to a position in Regional Services.
Again, we must remember that, in the administration of military justice, justice must not only be done, but must manifestly be seen to be done.
Importance of Independent and Impartial Legal Advice
One of the reasons why legal advice is mandatory whenever a charge is laid against an accused higher in rank than Sergeant, or when a presiding officer proceeds with such a charge, is that the independence of the Office of the JAG acts as a safeguard for fairness in the functioning of the Code of Service Discipline. In the present example, that independence is significantly compromised.
And legal advice applies throughout the process employed by a disciplinary tribunal, from the determination of pre-trial and jurisdictional issues, to the determination of legal issues in the conduct of a summary trial on the merits of the charge, and to the legal issues arising during sentencing. After all, the requirement for an independent and impartial tribunal under para 11(d) of the Charter is not limited solely to the determination of guilt, but to the fair and public hearing by the independent and impartial tribunal. The hearing extends both to pre-trial considerations and, if necessary, to sentencing.
Even if Major Bloggins admits to the particulars of the charges before the putative presiding officer, there may be relevant issues regarding the disposition of the charge following the finding of guilt. Some of those issues may be issues of law or mixed law and fact that requires reliably independent legal advice.
Again, the involvement of the Acting JAG – not just the Office of the JAG, but the officer in command of the Office of the JAG – in the charge laying process undermines the independence and impartiality of the legal advice that can be offered to the presiding officer. Again, it is not simply an issue of whether the ‘unit legal advisor’ approaches his or her duties fairly and ethically – it is a question whether a reasonable person could reasonably conclude that the nature and identity of the charge layer would not influence the legal advice that is offered.
Certainly, if the accused were willing to proceed by summary trial, after having been offered an election for court martial, there is a compelling argument that can be made that the accused expressly accepted these conflicts of interest. However, that does not accurately describe our hypothetical example.
In our example, as with the accused in Part I of this series, the statutory right of election for court martial has been withheld from Major Bloggins by virtue of what I have explained is a misinterpretation of sub-art 108.17(1) of the QR&O. And note that this interpretation almost certainly is predicated upon legal advice from the OJAG.
Consequently, in light of the absence of such an election, the independence and impartiality of the legal advice given to the presiding officer takes on even greater significance, as that is the principal measure by which the accused, or any reasonable observer, may have confidence that justice will be done. Unfortunately, in the example that I have described, the clear conflict of interest arising within the senior leadership of the OJAG precludes the ‘reasonable person’ from having such confidence.
The issue of so-called ‘institutional bias’ has been raised, unsuccessfully, in litigation relating to statutory decision-making in the CF. Normally, the reliance on ‘institutional legal advisors’ does not undermine the objectivity of statutory decision-makers. However, the nature of the hypothetical circumstance that I have described alters the context significantly.
There is a presumption that, absent evidence to the contrary, a tribunal will act in an unbiased manner. However, that is not the specific issue arising in the example that I have offered. The presiding officer is required to make determinations of law and mixed law and fact. And, in light of the absence of formal legal training, the presiding officer will not only have to rely heavily on the legal advice from the OJAG, but the presiding officer is also obliged to seek legal advice from the OJAG. And the reason for the obligation at art 107.11 of the QR&O is because the Governor in Council acknowledges that presiding officers have limited training in the Code of Service Discipline.
Even with the obligation imposed on a presiding officer to provide reasons for any decision, the incontrovertible reality is that the presiding officer, who lacks both the hallmarks of independence and the legal knowledge of a military judge, will rely on legal advice from the very element and its leadership that is responsible for the charges before the presiding officer.
Whether one applies the test for bias from Committee for Justice and Liberty et al. v National Energy Board et al.,  1 SCR 369, or the test for judicial independence from Ref re Remuneration of Judges of the Prov. Court of P.E.I.; Ref re Independence and Impartiality of Judges of the Prov. Court of P.E.I.,  3 SCR 3, R v Lippé,  2 SCR 114, and Mackeigan v Hickman,  2 SCR 796, the test remains the same:
… what would an informed person, viewing the matter realistically and practically – and having thought the matter through – conclude?
This is not a typical matter of ‘conflict of interest’ for a lawyer – which usually arise when a lawyer is retained by, or acts for, different parties with conflicting interests. This ‘conflict of interest’ arises in the unique circumstances of the Canadian Forces, where the institutional, statutory legal advisor is directly involved in the decision-making process that leads to circumstances in which that institutional legal advisor will also play a key advisory role. The issue then becomes whether the institutional, statutory legal advisor is providing impartial and independent legal advice to the decision-maker, and, consequently, whether a reasonable person would perceive that such decision-making is sufficiently impartial and independent in light of that conflict of interest.
And no reasonable person, informed of the relevant facts and law in this circumstance, could conclude that the presiding officer’s legal advisor would be sufficiently free from conflict of interest that the advice would be truly independent and impartial.
I hasten to add that I am not suggesting that a legal officer could not be tried under the Code of Service Discipline or even tried by summary trial, where the accused does not elect trial by court martial. This is not a circumstance in which someone like the JAG herself, or the DMP, is accused of committing a Code of Service Discipline offence. As I have observed before, neither the JAG nor DMP could be conceivably prosecuted under the Code of Service Discipline. Due to their rank, they could only be tried by court martial. However, all courts martial are prosecuted by, or under the authority of the DMP. And the JAG is the superintendent of the Military Justice System. It would be manifestly impracticable to prosecute either officer under the Code of Service Discipline.
What I am saying is that, in addition to the fact that sub-art 108.17(1) of the QR&O, when interpreted correctly and reasonably, requires an election to be offered in the hypothetical circumstance presented, there is a second factor in our hypothetical example that also strongly suggests that an election must be given. Where an accused is a legal officer in the Office of the JAG, and is charged with an offence under section 129 of the NDA arising from the performance of that legal officer’s duties as a legal officer, if an election is withheld, the presiding officer is not only failing to interpret and apply sub-art 108.17(1) of the QR&O correctly, the circumstances will give rise to a separate, and distinct, conflict of interest, which undermines the fairness of the summary trial. This reinforces the contention that an election must be offered to the accused in order to safeguard the fairness of the process.
In Part III, we will examine the peculiar power of the DMP under section 165.13 of the NDA to refer charges ‘back’ to the chain of command for prosecution at summary trial, even when charges have been referred for court martial. We will examine the circumstances under which this might arise, and whether it gives rise to ethical considerations. We will then conclude this series with some observations and questions regarding ethical issues arising from the processes we have discussed.
 National Defence Act, RSC 1985, c N-5, [NDA], s 129.
 NDA, id, s 162.1.
 NDA, n 1, paras 129(1)(b) and (c).
 NDA, n 1, para 60(1)(a).
 NDA, n 1, para 60(1)(c).
 Ministerial Organization Order (MOO) – MOO 96-082 Re: Office of the Judge Advocate General, dated 1 August 1996.
 Note A to art 108.12 of the QR&O states: “… The Chief of the Defence Staff has appointed, pursuant to section 162.3 of the National Defence Act, the following categories of officers to be superior commanders: (i) officers, other than general officers, commanding a formation, including base commanders not below the rank of lieutenant-colonel, and commanders of squadrons of Her Majesty’s Canadian Ships; and (ii) commanding officers of Her Majesty’s Canadian Ships who do not have a superior commander on board or in company with the ship.” The JAG does not command a Command, but the Minister has granted the JAG the powers of an Officer Commanding a Command. However, a Command is distinct from a formation: see the NDA, n 1, s 17(1).
 NDA, n 1, s 9.1.
 NDA, n 1, s 9.3.
 QR&O, art 4.081.
 Id, sub-art 4.081(2).
 See, in particular: for DMP, NDA, n 1, s 165,17; for DDCS, NDA, s 249.2.
 Rory Fowler, “Breaking the Deadlock: Independence of the Military Judiciary and the Court Martial Appeal Court of Canada”, (5 January 2021), online: SSRN <https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3760834>.