Welcome to the Blog for the Law Office of Rory G Fowler. The purpose of this Blog is to provide information to members of Canada’s military community – serving personnel, veterans, retired members, and their families – concerning matters of military law, in order to aid them in identifying when they may require a privately-retained legal advisor, and how such an advisor might be able to assist them.
While this Blog does not constitute legal advice, or create a solicitor-client relationship, I do hope that the contents of this blog will be informative and will assist individuals in making informed decisions concerning legal advice. I have always taken an educational approach to my role as a lawyer, and my goal with this Blog is to help educate members of the Canadian military community, and other stakeholders, of matters of military law.
I served in the Canadian Forces (CF) for nearly 28 years. I had some outstanding opportunities during that service and learned a great deal, about myself and about how the CF functions. I wouldn’t change any of my experiences. However, toward the latter stages of my career, I came to realize that I could assist both the CF as an institution, and its individual members, as much in private practice as I could as a uniformed legal officer. I decided to retire from the CF in order to provide members of Canada’s military community with an advocate who is well-versed in both public and administrative law pertaining to the CF, as well as with the nature of military administration. In short, my goal is to be an advocate for military justice.
The term ‘military justice’ appears to mean different things to different people. Often, it seems, it is defined by the legal advisors in the Office of the Judge Advocate General (OJAG) as synonymous with the Code of Service Discipline. To me, ‘military justice’ means so much more.
Section 9.2 of the National Defence Act (NDA) states:
But what is actually meant by “superintendence of military justice” or the “administration of military justice”?
In her inaugural address in 2017, the new JAG, Commodore Bernatchez, emphasized the importance that the OJAG maintain and strengthen its relevance in the CF. In light of the actions that are being taken by CF leadership in relation to Op HONOUR, the JAG’s superintendence of military justice and the relevance of the role of the OJAG are significant.
The current received wisdom in the OJAG appears to be that ‘military justice’ equates, roughly, to the Code of Service Discipline. The Deputy Judge Advocate General – Military Justice is generally tasked with providing research, analysis, and positional advice regarding various aspects of the application of the Code of Service Discipline: military justice at the summary trial level, courts martial, and similar issues. However, is it accurate or proper to draw this rough approximation?
I suggest (and have suggested) that equating ‘military justice’ to the Code of Service Discipline artificially narrows the JAG’s responsibilities, to the detriment of the true application of military justice. I also suggest that a re-evaluation of the JAG’s role might ensure that ‘justice prevails’ in the broader administration of the affairs of the CF, thereby rejuvenating the relevance of the Office of the JAG.
The ‘superintendence of military justice’ actually empowers the JAG to ensure that the rule of law is observed in the broader administration of the affairs of the CF, including the Code of Service Discipline, but also extending into what some might broadly describe as ‘administrative decision-making’.
The position of the JAG dates back to 1911, from that point, throughout most of the First World War, there was no Office of the JAG, which was created in the closing months of that global armed conflict. Today, the Office of the JAG exists as an ‘other element’ of the Canadian Forces. It is not precisely a unit; nor is it a Formation or a Command (although the JAG has been granted the powers of an Officer Commanding a Command). All legal officers whose duty it is to provide legal advice are – and must be – posted to the Office of the JAG.It is something that distinguishes Canadian Legal Officers from American Staff Judge Advocates – the chain of command for legal advisors of the Canadian Forces is through the Office of the JAG. It is not a ‘Tech Net’. It is their actual chain of command.
The ‘modern’ NDA was first enacted in 1950. This Act combined a variety of distinct legislation concerning the administration of the affairs of the CF, including the diverse disciplinary regimes applying to, what were then, the distinct services that comprised the CF. Note what the Act (in 1950) said of the appointment of, and the exercise of powers by, the JAG:
10. (1) The Governor in Council may appoint a barrister or advocate of not less than ten years standing to be the Judge Advocate General of the Canadian Forces.
(2) The powers, duties and functions of the Judge Advocate General may be exercised by such other person as the Minister may authorize to act for the Judge Advocate general for that purpose.
Subsection 10(1) of the 1950 NDA is largely the same as subsection 9(1) of the current NDA (save for the inclusion of “… of a province or territory…” qualifying the standing of the barrister or advocate). Subsection 10(2) is reflected in section 10 of the current NDA.
The “superintendence of military justice” was introduced in the 1998 amendments to the NDA, as were other provisions relating to the JAG. Here’s what the legislative summary, prepared by the staff of the Parliamentary Research Branch, for Bill C-25 states concerning the amendments to the provisions relating to the JAG:
Clause 2 [of Bill C-25] would amend sections 9 and 10 of the Act in order to clarify the qualifications and responsibilities of the Judge Advocate General of the Canadian Forces and to strengthen the office’s independence from the chain of command by providing for some security of tenure for the post.
The amended section 9 would specify that the Judge Advocate General designate would have to be an officer in the Canadian Forces (this is not currently specified in the Act, although it is the practice); the Judge Advocate General would also have to be a lawyer qualified in Canada for at least 10 years; and the appointment would be for renewable terms of up to four years each (currently, no period is specified for the appointment). However, the Judge Advocate General would continue to serve “during pleasure,” meaning that an incumbent could be removed or replaced by the authority that had made the appointment – in this case, the Governor in Council. Under a new section 9.3(1), the Judge Advocate General would be responsible to the Minister of National Defence in the performance of the duties of the position. A new section 9.4 would stipulate that the Judge Advocate General would have to hold at least the rank of brigadier-general, consistent with current practice. Clause 2 would also amend section 10 of the Act to require any officer authorized to act as a substitute of the Judge Advocate General to have the same minimum professional qualifications as the Judge Advocate General.
Clause 2 would also set out in the Act the general duties of the Judge Advocate General to be legal adviser on matters of military law to the Governor General, the Minister of National Defence, the Department of National Defence and the Canadian Forces; and to perform general oversight of the administration of military justice in the Canadian Forces. More specifically, the Judge Advocate General would regularly have to review and report on the administration of military justice and would be responsible for the preparation of an annual report on this subject to the Minister of National Defence, who would, in turn, be required to table the report in Parliament.
Bill C-25 enacted three significant changes to the administration of the affairs of the CF, and to what I suggest constitute elements of military justice. First, it made significant changes to the jurisdiction and practical application of the Code of Service Discipline. Second, it made significant changes to the statutory grievance process. Finally, it introduced statutory provisions relating to the governance of military police. Other amendments were made, but these three areas represented significant changes.
These statutory changes were followed closely by regulatory amendments intended to implement the statutory changes. Although there were further statutory and regulatory amendments to all three subject areas over the past20 years, many of these could be characterized as adjustments arising from ‘lessons learned’ and judgments of appellate or reviewing courts. The nature and scope of the changes introduced in 1998 have direct bearing on determining what ‘military justice’ really means.
The term ‘military justice’ is not defined at section 2 of the NDA. Nor is it expressly defined anywhere else in the NDA. The Code of Service Discipline is also not defined at section 2 of the NDA. However, Part III of the NDA is entitled ‘Code of Service Discipline’ and it is likely not controversial to suggest that the Code of Service Discipline encompasses offences (as well as the incorporation of offences under other Acts of Parliament), summary trials, and courts martial, and is defined as the disciplinary code of the CF under Part III of the NDA and Volume II of the QR&O.
It is also likely uncontroversial to suggest that the Code of Service Discipline does not encompass grievances (which are subject to legislative provisions under Part II of the NDA and Chapter 7, Volume 1 of the QR&O) or the governance of military policing (Part IV of the NDA, and Volume I of the QR&O as well as some provisions in Volume IV of the QR&O).
The seeming received wisdom that ‘military justice’ is roughly equivalent to the Code of Service Discipline is problematic. While neither term is defined in section 2 of the NDA, both terms are used as terms of art under the NDA and can be defined inferentially. Since Parliament uses both terms in the NDA, there is a presumption that Parliament intended separate meanings for the terms. Conceptually, there are three potential relationships between these two concepts: (i) they are not connected; (ii) military justice is a component part of the Code of Service Discipline; or, (iii) the Code of Service Discipline is a component part of military justice. The first two possibilities are not consistent with the structure of the NDA; only the third makes logical sense.
It would be difficult to suggest that the Code of Service Discipline is not connected, in some way, to military justice, regardless of how the latter term is defined. The Code of Service Discipline has been characterized as an internal ‘criminal code’ for the CF. While crude, such a characterization is not far off the mark. More recently, the Chief Justice of the CMAC has characterized the Code of Service Discipline as a parallel system to the criminal justice system – neither superior, nor subordinate, to the civilian system.
It would be equally difficult to suggest that the intended meaning of military justice was that it was a component part of the Code of Service Discipline. Several provisions under Part III of the NDA (“The Code of Service Discipline”) make mention of the “…administration of military justice…” in the context of the exercise of powers. The manner in which the term is used throughout – and not exclusively in – Part III of the NDA appears to imply that the Code of Service Discipline is a component part of ‘military justice’.
The same amendments that introduced the JAG’s ‘superintendence of military justice’ introduced significant changes to the Code of Service Discipline, the statutory grievance process, and the governance of Military Police. This was not a mere coincidence. These amendments were precipitated by a variety of inquiries and examinations in the 1990s, including the Somalia Inquiry, the Doshen Report, and the Dickson Report. I have suggested previously that the CF grievance process exists within a broader, comprehensive system intended to deliver timely and effective justice to CF personnel. Ultimately, the Code of Service Discipline, the CF grievance process, and the statutory Military Police complaints process are all means of ensuring that the rule of law is applied in the administration of the affairs of the CF.
Finally, it would not be a conceptual stretch to suggest that military justice is to the military what justice is to the broader society. Compare section 9.2 of the NDA to paragraph 4(b) of the Department of Justice Act:
4 The Minister is the official legal adviser of the Governor General and the legal member of the Queen’s Privy Council for Canada and shall
(b) have the superintendence of all matters connected with the administration of justice in Canada, not within the jurisdiction of the governments of the provinces;
The Minister of Justice (and Attorney General) superintends not just criminal justice, but the administration of justice in Canada. While it may be a crude comparator, the JAG acts in the same regard to military justice. While the JAG’s duties, powers and functions do not represent a “… derogation of the authority of the Minister of Justice and Attorney General of Canada under the Department of Justice Act…”, the JAG’s duties, powers and functions may also be interpreted in light of that other Act of Parliament.
There is a compelling argument that the JAG’s ‘superintendence’ function encapsulates broader considerations of military justice, such as grievances and the governance of military police. But what does ‘superintendence’ entail? As with ‘military justice’ and ‘Code of Service Discipline’, this term is not defined at section 2 of the NDA. As indicated above, a parallel can be drawn between the JAG’s role under the NDA with the Minister of Justice’s (Attorney General’s) role under the Department of Justice Act. This is not a new concept for the Minister of Justice, who has had this role since Confederation. It was indubitably an inspiration for redefining the JAG’s role in 1998.
The Oxford English Dictionary defines ‘superintendence’ as the act of being “…responsible for the management or arrangement of (an activity, etc.); supervise and inspect… ”. While the ‘chain of command’ (a term that is not defined under the NDA but which is used extensively by those who administer the affairs of the CF as analogous to the ‘leadership’ of the CF) will generally be responsible for decision-making relating to military justice, the JAG’s role appears to be that of an inspector or guarantor of legal validity. Such a role is consistent with the JAG’s advisory role, defined at section 9.1 of the NDA: “The Judge Advocate General acts as legal adviser to the Governor General, the Minister, the Department and the Canadian Forces in matters relating to military law.” Military justice, presumably, is a product of the application of military law.
‘Superintendence of military justice’ clearly was not intended to give the JAG exclusive or dominant jurisdiction over ‘military justice’ broadly, or the Code of Service Discipline specifically. The NDA describes definite duties, powers and functions for a variety of statutory actors within the Code of Service Discipline, the grievance process, Military Police complaints and other processes in the administration of the affairs of the CF. For example, a commanding officer (CO) has well-defined roles under the Code of Service Discipline and the CF grievance process. These duties, powers and functions are amplified under the QR&O. These processes remain tools within the authority of the ‘chain of command’. The application of discipline under the Code of Service Discipline, the redress of grievances under the CF grievance process, and the resolution of other complaints, all clearly fall within the exercise of duties, powers and functions of those charged with the leadership of the CF, whether at the unit, formation,command, or national level.
However, such exercise of command is not conducted in a vacuum. Ultimately, whether a CF decision-maker is applying the Code of Service Discipline, resolving a grievance or other complaint, or exercising myriad powers or functions, that decision-maker is exercising statutory powers or functions. These powers and functions have statutory (read: legal) parameters. In some cases, the decision-maker is obliged to seek legal advice from a legal advisor from the Office of the JAG. In such cases, the decision-maker is not obliged to follow that advice, but there are consequences for failing to do so.
Even when a decision-maker is not obliged by legislation to seek legal advice, where decisions involve legal considerations, decision-makers will typically seek the advice of their unit legal advisor. For example:
Superintendence does not give the JAG ultimate jurisdiction over the decisions made. Even if one takes the position that ‘military justice’ somehow equates solely to the Code of Service Discipline, there is no indication that the current or previous JAGs have taken the position that she or he exercises (or exercised) the final decision-making authority for matters under the Code of Service Discipline.‘Superintendence’ as it is used at section 9.2 of the NDA appears to equate to the providing legal guidance and review. Essentially, the JAG’s role is to ensure that statutory decision-makers respect the rule of law and are informed of the consequences if they do not. I note, tangentially, that the JAG’s role does not supplant that of constitutionally independent judiciary, who can also potentially play a role when statutory decision-makers fail to respect the rule of law.
Why should the definition of ‘Military Justice’ concern members of the CF?
On 26 March 2019, the Supreme Court of Canada will hear the appeals from the Court Martial Appeal Court (CMAC) judgments in R v Stillman and R v Beaudry. These appeals concern the jurisdiction of the Code of Service Discipline over serious Criminal Code offences – specifically, offences incorporated under paragraph 130(1)(a) of the NDA, and which carry a maximum punishment of 5 years or more imprisonment. These offences are created under Acts of Parliament other than the NDA and, at least according to the majority of the CMAC in R v Beaudry, constitute offences other than offences under military law.
The Supreme Court of Canada will eventually hand down a judgment responding to one or more of the issues raised in these appeals. What our apex court will likely not address is the proper definition of ‘military justice’. However, the impact of the CMAC judgement in R v Beaudry highlights the importance of the definition of ‘military justice’ and the role of the OJAG in reinforcing the rule of law in the CF.
After Beaudry was handed down last September, the jurisdiction of the Code of Service Discipline – specifically courts martial – over Op HONOUR-related criminal offences such as sexual assault (under s 271 of the Criminal Code) was essentially barred. In select cases, the Director of Military Prosecutions proceeded with ‘military offences’ under the NDA, with varying results.
However, the response by the chain of command to alleged Op HONOUR-related misconduct has not been solely, or even principally, through the Code of Service Discipline. Arguably, the Code of Service Discipline has been a secondary vehicle for the chain of command to punish alleged wrong-doing. Based upon statistics presented by the CDS, there have been hundreds of cases of HISB – Harmful Incidents of Sexual Behaviour – resulting in administrative actions in, again, hundreds of cases.
There have not been hundreds of courts martial.
So what has been the response by the chain of command?
Apparently, many of the responses have been through administrative remedial measures, including compulsory release. Ostensibly, there is a procedure in place to ensure that such decisions, particularly those with significant impact on a person’s career, are procedurally fair. The procedures for the more significant actions call for disclosure to be provided to the affected CF member, followed by an opportunity to make informed representations to the decision-maker. The decision-maker for Op HONOUR-related administrative reviews that can lead to compulsory release is Director Military Career Administration (DMCA).
As will all such procedures, the ‘devil is in the details’.
When a decision is made to conduct an administrative review that could lead to compulsory release, most CF personnel will be presented with a Notice of Intent (NoI) to recommend compulsory release. They will then be given an opportunity to respond. Almost invariably, a decision will be made to proceed with the administrative review. DMCA will spend several weeks putting together an administrative review file. This will then be disclosed to the affected CF member, who will be given 15 working days to respond.
Extensions in the time period by which a CF member may respond are rare, and the CF member will typically be informed: “If you are not satisfied with this response, you may submit a grievance” or words to that effect.
The difficulty faced by CF personnel in this position is that the administrative review file compiled by DMCA will almost invariably focus on anything negative that can be presented against the member. A reasonable observer may be inclined to say: “Fair enough, but the responding CF member can always present his or her own evidence.”
This is true, notwithstanding the marked imbalance in the power of DMCA to obtain information, and that of CF personnel to obtain information.
But consider this: in some cases, particularly arising from Op HONOUR, the administrative review may be based, at least in part, on information contained in a Military Police Investigation Report (MPIR). After all, many Op HONOUR-related complaints lead to military police investigations, often by the Canadian Forces National Investigation Service (CFNIS).
But the affected CF member won’t receive the full MPIR. Often, the administrative review file will contain only the summary drafted by the MP investigator. This summary will also be redacted, and not always correctly. The administrative decision-maker (i.e. DMCA) will then, presumably, rely on this summary as ‘evidence’. The problem is that such summaries, which are typically only a few pages, are not written by an impartial author. They are written by an investigator focused on finding evidence of wrong-doing. While this may be acceptable for the purpose for which such summaries are typically drafted (i.e. prosecution under the Code of Service Discipline), it is problematic when relied upon as ‘evidence’.
The summary drafted by the investigator is not a statement from the complainant or any other witness. While it might (and I emphasize:might) accurately summarize the contents of one or more witness statements, it is not, itself, evidence. It would not be admissible in a court martial, or even summary trial, as evidence of the factual content of the summary. It would not normally be admissible in administrative proceedings in light of the availability of the actual witness statements upon which it was based.
The problem then arises when a statutory decision-maker, such as DMCA, relies upon such summaries as evidence in making a decision to terminate someone’s service in the CF, sometimes after years of loyal service. In so doing, DMCA will often fall back on the caveat that he (or she) need only decide matters on a balance of probabilities, rather than beyond a reasonable doubt.
While this is true of administrative decisions, generally, the decisions must still be based upon evidence, not simply a suggestion that there might be some evidence. It is difficult for a CF member to make a full and meaningful response to an accusation of serious wrong-doing when the actual witness statements that have purportedly been given to the military police, are not actually disclosed to the responding CF member.
Also, many of these processes arise where, despite the completion of a military police investigation, no charges are laid, or prosecuted. It is difficult to conceive of a circumstance where there is insufficient evidence to support the laying of a charge, which merely requires a reasonable belief that an offence has occurred, but the same evidence would justify a compulsory release on a balance of probability. This questionable basis for proceeding with administrative action is compounded when one recalls that, while the CFNIS or a CO has the benefit of the full MPIR in making a decision, the administrative decisions by DMCA, in some cases, appear to be based solely on the MPIR summary.
If one takes an expansive approach to the definition of ‘military justice’ – as I suggest would be appropriate under the circumstances – the role of the OJAG becomes critical in such administrative decision-making.
In a court martial, the determination of guilt is made by a constitutionally independent military judge, sitting alone, or by a military panel instructed by the same constitutionally independent military judge. Any decision arising from that process is potentially subject to appeal, again before constitutionally independent civilian judges. There are judicial actors involved, early on, to ensure that the rule of law is respected.
In administrative processes, if a CF member is not satisfied with the procedural or substantive fairness of a decision, act, or omission in the administration of the affairs of the CF, he or she is obliged to grieve that decision, act or omission. The initial authority will have 4 months to consider and determine the grievance. This limitation period commences not when the grievance is submitted, but when the initial authority receives the grievance. It can take days, weeks, or even months for the initial authority to receive the grievance. And there is no guarantee that the initial authority will consider and determine the grievance in that period of time. A grievor may then refer the grievance to the final authority if: (a) he or she is not satisfied with the determination by the initial authority; or, (b) if the initial authority does not determine the grievance within 4 months and the grievor does not wish to wait further.
However, once the grievance is with the final authority, there is no time limit for considering and determining the grievance.
And even at this stage, there has been no involvement of an independent decision-maker. The first opportunity a CF member has to have a constitutionally independent judge review the decision is once the final authority makes a determination (which could take several months, or even years) and the grievor then seeks judicial review before the federal court.
At that point, if the decision that was the subject of the grievance was a compulsory release ordered by DMCA, the grievor may have been released from the CF, under an adverse release item, several months, or years, before any independent decision-maker has an opportunity to review the merits and process of the decision.
So, we ask the question again: What is military justice?
If ‘military justice’ is broader than simply the Code of Service Discipline, and if it has its basis in ensuring that statutory decision-making for the CF is grounded in the rule of law, then perhaps the JAG and OJAG have a broader responsibility regarding ‘superintendence’ than focusing on ensuring that the rule of law is applied in the Code of Service Discipline.
 National Defence Act, RSC 1985, c N-5 [NDA].
 R. Arthur McDonald, The story of Canada’s military lawyers (Ottawa: Office of the Judge Advocate General, 2002).
 Ministerial Organization Order 96-082 Re: Office of the Judge Advocate General, dated 1 August 1996.
 QR&O 4.081.
 SC 1950, 14 Geo VI, c 43.
 Ibid., s 10.
 Bill C-25, An Act to Amend the National Defence Act to make consequential amendments to other Acts, SC 1998, c 35.
 The summary was prepared by the staff of the Parliamentary Research Branch to provide Canadian Parliamentarians with plain language background and analysis of proposed government legislation. They are not government documents; they have no official legal status; and they do not constitute legal advice or opinion. They are nevertheless informative.
 Library of Parliament, LS-311E, online: <http://publications.gc.ca/Collection-R/LoPBdP/LS/361/c25-e.htm>.
 The presumption of consistent expression: Agraira v Canada (Public Safety and Emergency Preparedness),  2 SCR 559, para 81, per Lebel J; see also R Sullivan, Sullivan on the Construction of Statutes, 5th ed (Markham: LexisNexis, 2008) at 214.
 R v Déry, 2017 CMAC 2, per Bell CJ.
 Commission of Inquiry into the Deployment of Canadian Forces to Somalia, Dishonoured Legacy: The Lessons of the Somalia Affair, (Ottawa: Public Works and Government Services Canada, 1997).
 L.T. Doshen, Report on the Study of Mechanisms of Voice/Complaint Resolution in the Canadian Forces (Vista Knowledge Services, 30 November 1995).
 Report of the Special Advisory Group on Military Justice and Military Police Investigation Services (Ottawa: Ministry of National Defence, 1997).
 Fowler, “The Canadian Forces Grievance Process: How Adequate an Alternative Remedy Is It?” (2014), 27 CJALP 277, 281.
 RSC 1985, c J-2.
 NDA, supra n 1, s 10.1.
 See, for example, R v Hauser,  1 SCR 984, 1031.
 See R v Déry, 2017 CMAC 2 [Déry].
 R v Beaudry, 2018 CMAC 4 [Beaudry].
 See, for example, R v Cpl Spriggs, 2019 CM 4002.
 See the ‘Progress Reports’ published by the CF at: <https://www.canada.ca/en/department-national-defence/services/benefits-military/conflict-misconduct/operation-honour.html>.
 QR&O 15.21, 15.22, 15.31.
 Defence Administrative Order and Directive 5019-2 Administrative Review, art 5.3. Although this directive indicates that the “… time limit is to be interpreted flexibly and reasonably in the CAF member’s circumstances …” extensions are rare. One point of flexibility is that members of the Reserve Force on part time service tend to be given 30 calendar days to respond.
 See Fowler, supra n 17, for a comprehensive examination of this point.
 QR&O 7.15(2).
 QR&O 7.18.
 QR&O 7.15(4).
 While the Military grievances External Review Committee, created at s 29.16 of the NDA, is an ‘arm’s length’ advisory Committee, it does not determine grievances.
 NDA, supra n 1, s 29.15.