Barriers to Legal Representation – Part I

19 August 2024

 

When members of the Canadian Forces (CF) face consequences of statutory decision-making – whether those consequences are significant (which is often the case), or not – they may be inclined to seek the assistance of privately retained legal counsel.  However, there are potential barriers to such courses of action, and the nature of those barriers varies.  Some barriers arise from practical considerations; others arise from intransigence of statutory decision-makers (and the legal advisors upon whom statutory decision-makers rely).  This blog post is the first of four that will discuss some of the key barriers that a CF member may encounter.

The three blog posts that follow will examine the following specific barriers:

1. Cost;
2. The position consistently adopted by the Office of the JAG (OJAG) regarding communication from privately retained counsel; and
3. The position adopted by both statutory decision-makers in the CF and their legal advisors in the OJAG regarding representation by counsel before statutory decision-makers.

Before delving into each of those specific barriers, the present blog post will address the question begged by those topics:

Do members of the CF require the assistance of privately retained legal counsel when faced with various statutory decision-making processes?

And the answer to that question is archetypical of the answer that a lawyer may offer to a variety of questions posed by a client (or potential client): It depends.

 

What kind of decision-making processes are we talking about?

As indicated in my previous blog post at the start of August, our focus of discussion for the next few weeks will be on the Code of Service Discipline, including recent developments in the Code of Service Discipline.  And we will examine barriers to legal representation principally in the context of the Code of Service Discipline.  However, these barriers are not unique to this specific facet of statutory decision-making in the CF.  They extend to what many may describe as “administrative decision-making”.

As I have explained previously, what we are really talking about – whether we are examining the Code of Service Discipline in the context of the so-called “Military Justice at the Unit Level” (MJUL), or Administrative Reviews under Defence Administrative Order and Directive (DAOD) 5019-2, or Remedial Measures under DAOD 5019-4, or any other so-called “administrative action” – is statutory decision-making under the National Defence Act (NDA)[1].

And for the purposes of our discussion, when we discuss the Code of Service Discipline, we will focus on the MJUL, and circumstances in which a CF member is charged with a service infraction.  After all, the eventual decision-maker when a CF member is charged with a service offence is a constitutionally independent military judge (and, sometimes, a debatably objective General Court Martial Panel).  And our discussion will also touch upon other exercises of statutory power by CF decision-makers, particularly where they intersect with, or are used as substitutes for, the Code of Service Discipline.

 

Do CF members require legal counsel?

Technically, a CF member does not require legal counsel when faced with myriad statutory decision-making processes under the NDA.  Certainly, the catechism of those who lead the CF and those who provide those leaders with legal advice consistently posits that CF personnel who face decision-making processes under the NDA do not require legal counsel to assist with those process.

That’s what “assisting members” are for.

And, in the increasingly egalitarian CF, personnel need not rely on assisting officers – they can rely on assisting members.  And in drawing this distinction, it is not my intent to denigrate the shift of assistance from the exclusive demesne of officers.  Officers do not have a monopoly on knowledge and advice in these matters and, frankly, a warrant officer with 15 or 20 years of experience in the “administration of the affairs of the CF” may have an advantage in this role over a subaltern with four or five years at a military college followed by a couple of years at an operational unit.  And I have met many non-commissioned members in the reserve force who had civilian jobs that prepared them to assist other CF members.  Some were even lawyers.[2]

 

Assisting Members

When a CF member is charged with a service infraction, the CF member is entitled to the assistance of an assisting member.[3]  When a CF member faces an Administrative Review, the CF member will, presumably, benefit from the assistance of an assisting member.[4]  And even when a CF member faces the possibility of a remedial measure under DAOD 5019-4, the CF member may request assistance from an officer or senior NCM to prepare representations or objections to the remedial measure.[5]

And in an organization like the CF, where forming a union or combine is expressly prohibited by ministerial regulation[6], such assistance is necessary if the policies are going to withstand even the deferential scrutiny of ‘reasonableness review’ were a CF member to challenge a statutory decision through an application for judicial review.  Of course, any such challenge would likely have to exhaust any so-called “adequate alternative remedies”[7], such as the CF’s statutory grievance process – in which a CF member is also permitted to have an assisting member[8].

Therefore, CF statutory decision-makers, policy makers, and legal advisors will be quick to point out that CF personnel are not disadvantaged despite the prohibition against unions or combines.  While CF personnel don’t have union representatives, ‘shop stewards’, or the capacity to conduct collective bargaining, they do benefit from the assistance of assisting members.

Huzzah!

However, there is negligible training for assisting members, and the scope and quality of such training is, if anything, inconsistent and diminishing.  Unless they are lawyers (and there would likely arise potential conflicts of interest in many circumstances if a legal officer were appointed as an ‘assisting member’, and such appointment would likely require the ascent of the JAG or a senior legal officer), they will likely have only rudimentary understanding of the relevant legal principles involved – much like the statutory decision-makers entrusted with providing fair and reasonable decisions.  Then again, the latter benefit from legal advice from the OJAG.

Prior to the bifurcation of the Code of Service Discipline, there were some resources for a CF member (aka: “the accused”) charged with a service offence that would be tried by summary trial.  “The Code of Service Discipline and Me” was a rudimentary guide to the Code of Service Discipline (notwithstanding that it sounded like a next generation, militarized “Dick and Jane” book).  There was also a “Guide for Accused and Assisting Officers”.  These pamphlets provided rudimentary information and reassurances that the Code of Service Discipline was a fair and reasonable statutory mechanism that would be administered fairly and reasonably.

Following the bifurcation of the Code of Service Discipline, these pamphlets do not appear to have been updated.  However, they are still clearly accessible on the National Defence website for “Military law reports and publications”, and there do not appear to be any caveats explaining to anyone that these documents describe a summary justice process that is no longer in effect.

The Military Justice at the Unit Level (MJUL) Policy, v 2.0, is also available online.  And, this is fortunate, as much of the procedure for summary hearings (which replaced summary trials a little over two years ago) was removed from a predominantly legislated framework and is now directed principally in policy, rather than law.

Many officers will complete the online training to perform their functions and exercise their powers as “officers conducting summary hearings” (OCSH).  Technically, this training would also prepare them to be an assisting member; consequently, an officer is well-advised to complete this training as early in the officer’s career as possible.  And some senior NCM will also complete this online training as part of their professional development, even though an NCM cannot perform the functions, or exercise the powers, of an OCSH.  Certainly, such training would be useful for any NCM fulfilling what are traditionally viewed as ‘key disciplinary roles’ such as a sub-unit sergeant-major or a unit Chief Petty Officer (First Class)/Chief Warrant Officer or Regimental Sergeant Major (RSM).

As an aside, it is unfortunate that this training was reduced to mere online training.  Prior to the bifurcation of the Code of Service Discipline, “Presiding Officer Certification Training” (POCT) consisted of an initial online threshold knowledge test followed by a 2-day training session delivered by legal officers of the OJAG.  This culminated in a (not particularly difficult) test administered by the OJAG.  This rudimentary training provided what I consider to be the bare minimum training for officers who wielded significant punitive authority.  However, even though it could have been more robust, it was markedly superior to the online training that is now provided for OCSH – which is not unlike the former “Presiding Officer Re-certification Training” (PORT), which was administered to those whose POCT qualification had not expired, but who wished to renew it for another four years).[9]

There is also some rudimentary training delivered in the Canadian Armed Forces Junior Officer Development (CAFJOD) programme that is pertinent to the functions of assisting members in various statutory decision-making processes.  However, that training is focused on officers.  Some NCM will complete portions of CAFJOD, particularly if they are contemplating applying for officer training plans or commissioning from the ranks (or for general professional development).  And there is a parallel professional development programme for NCM.  But my principal point here is that there is limited focused training to prepare officers or NCM to perform the role of assisting member in various statutory decision-making processes.  Certainly, it isn’t consistent across the spectrum of potential assisting members.

Generally, then, an assisting member will rely upon his/her/their experience and training (which will not necessarily be focused on relevant legal principles) to assist the CF member who is the subject of a particular statutory decision-making process.  But that training and experience – much like the training and experience of the statutory decision-maker in whose hands a CF member’s fate lies – will vary markedly (and unpredictably).

And, unless the assisting member is a lawyer or has received extensive training in the law, then the assisting member cannot be expected to have much insight into potential legal issues that may arise.  The same can typically be said of the statutory decision-maker.  However, the statutory decision-maker may rely upon advice from the OJAG.

And, finally, a key difference between an assisting member and privately retained legal counsel is that the discussions that a CF member has with the former do not constitute a solicitor-client confidence.

 

Safeguards for Fairness and Reasonableness

Many of the statutory decisions made by select officers (and statutory duties, powers, and functions exercised by those same officers) are not complicated – at least, not on the surface.  The decision-making processes are guided by policies (and in some cases, legislative direction), which set out (sometimes – but not always – in great detail) the process to be followed, and the manner in which decisions should be made.  For example, DAOD that outline the exercise of certain duties, powers, and functions, read like detailed checklists for decision-making.  And we do love our checklists in the CF.

Arguably, one of the reasons for these ‘checklists’ is to ensure that the statutory decision-maker renders a procedurally fair decision.  Legal officers purportedly review, and even help draft, such policies in order to ensure that they reflect the relevant legal principles (which are often principles of public and administrative law).  The rationale presumably is that ‘an ounce of prevention is worth a pound of cure’: if the policies reflect the key relevant legal principles, the decision-makers won’t have to seek legal advice each and every time they make a decision and, if they fail to seek legal advice when it might be prudent to do so, the relevant policy should help prevent most potential errors.

Whether the decision-makers read these policies (and, where relevant, legislative provisions), and the extent to which they understand the nature and scope of the decisions that they make, is another matter entirely – and I have commented on this before.

But let’s make the bold (if sometimes dubious) assumption that the relevant statutory decision-maker has actually read and understood the applicable legislative and policy framework prior to exercising the significant statutory duties, powers, and functions that the decision-maker has, and which will affect the rights, interests, and privileges of the CF member who will be the subject of the exercise of these powers.

The processes set out in legislation and policy have sufficient safeguards to ensure that the decision will be fair and reasonable, right?

Right?

After all, there are consequences if a statutory decision-maker makes an unfair or unreasonable decision, right?

Right?

If you are detecting a degree of skepticism on my part, you would be correct.  You wouldn’t win any prizes, however; this isn’t the first time that I have expressed such skepticism.  I have commented previously that there will often be consequences if a CF member does something wrong – or is alleged to have done something wrong – particularly if national news media report on a matter.  However, I have yet to see any consequences arising for a statutory decision-maker who makes an unreasonable, unfair, or unjustified statutory decision that is subsequently quashed on review.  I guess those kinds of decisions do not adversely affect the morale, discipline, or efficiency of the CF.

But wait! – you may exclaim – before you head off on one of your trademark rants, Fowler, don’t forget that there are other safeguards in place!

For example, when a CF member is charged with a service infraction, before the charge is laid, the charge layer must seek legal advice.  And before the summary hearing is conducted, the OCSH is obliged to seek and receive legal advice.

Sometimes.

But note how that requirement has changed with the bifurcation of the Code of Service Discipline.  When service offences could be tried by summary trial, the determinative factors regarding whether a charge layer[10], or a presiding officer[11], was required to seek legal advice before proceeding related to the rank of the accused and the seriousness of the alleged offence.  Where the accused held the rank of sergeant or higher, legal advice had to be sought.  When the offence charged would necessarily lead to court martial, or at least to an election for court martial, legal advice had to be sought.

Moreover, even when legal advice was not mandatory, it was strongly recommended that the charge layer and presiding officer seek, respectively, pre-charge, and pre-trial legal advice.

But, in all circumstances, the focus of the factors related to the accused.

Now, in relation to service infractions, pre-charge legal advice is mandatory only where “… the charge concerns a person against whom … a service infraction is alleged to have been committed or who is alleged to have suffered physical or emotional harm, property damage or economic loss as a result of the alleged commission of the … infraction …”.[12]

Similarly, pre-trial legal advice must be sought “… from the unit legal officer if the charge concerns a person against whom a service infraction is alleged to have been committed or who is alleged to have suffered physical or emotional harm, property damage or economic loss as a result of the alleged commission of the infraction.”[13]  In other words, the focus now is on the ‘victim’ of a service infraction, rather than the accused.

In light of the fact that the bifurcation of the Code of Service Discipline arose contemporaneous with the implementation of the so-called ‘Victims’ Bill of Rights’ into the Code of Service Discipline, this is understandable.  However, it also signals that the focus has shifted away from safeguarding the rights of the person who is the subject of significant coercive statutory powers.

Thus, any assertion by the leadership of the CF, the JAG, or even the Department of Justice, that the requirement to seek legal advice in this process is a significant factor that will safeguard fairness and reasonableness in the process should be taken with a grain of salt.  And the more that they insist that this is a safeguard of any substance, the more I am inclined to increase my sodium intake.  The trigger for such advice focuses on the alleged victim, not the accused.  Consequently, it would be difficult – if not disingenuous – to suggest that the purpose of that legal advice is to ensure fairness for the accused.

Moreover, the mere fact that a charge-layer or OCSH seeks legal advice from the OJAG (whether voluntarily or mandatorily) is not a guarantee of fairness and reasonableness.  After all, that legal advice is a solicitor-client confidence.  It is not disclosed to anyone (other than the charge layer or OCSH), and certainly isn’t disclosed to the accused or any reviewing court.

And, as we learned in the judicial review of Noonan v Canada (Attorney General), 2023 FC 618, legal advice from the OJAG is not a guarantee of reasonableness or fairness.  In the two Code of Service Discipline matters that gave rise to that judgment, both of the presiding officers improperly, unreasonably, and unlawfully withheld the right of the accused (both of whom had been charged under s 129 of the NDA) to elect trial by court martial.  Subsequently, both of the review authorities insisted – again, improperly, unreasonably, and unlawfully – that the presiding officers were reasonable and acted within their authority to withhold the accused’s statutory right to elect trial by court martial.

What’s more, all four of those decision-makers relied upon legal advice from the OJAG in making those improper, unreasonable, and unlawful decisions.  More to the point, all four of those decision-makers made those improper, unreasonable, and unlawful decisions based upon the legal advice that they received.  And we know this to be the case because all four of those decision-makers insisted that they had legal advice – from the OJAG – that supported their improper, unreasonable, and unlawful decisions.

Thus, while the legal advice was not disclosed – nor must it be disclosed, since it constitutes a solicitor-client confidence between the JAG (as statutory legal advisor) and the CF, institutionally, as the recipient of the legal advice – we know from statements by the relevant decision-makers that their improper, unreasonable, and unlawful decisions were supported by the legal advice that they received from the OJAG.

And we also must remember that the standard of review in Noonan was the deferential standard of “reasonableness”, and not the more searching scrutiny of “correctness” review.  Thus, the legal advice upon which those decision-makers acted was not just incorrect at law; it wasn’t even reasonable.

Consequently, I contend that the mere fact that decision-makers might be obliged to seek legal advice (and, frankly, they are not always obliged to seek legal advice) is not much of a safeguard for reasonableness and fairness in statutory decision-making.  Such an obligation does not ensure that the legal advice will be correct (or even reasonable).  It is not a guarantee that the relevant legal advisor will be inclined to provide unpopular, yet correct and reasonable, legal advice.  It is not a guarantee that the institutional legal advisor will speak truth to power, regardless of how unwelcome that truth may be.  It is not a guarantee that the advice will be the advice that the decision-maker needs to hear, rather than advice that the decision-maker wishes to hear.

And, frankly, even if the legal advice is reasonable – or correct – that is not a guarantee that the decision-maker will actually follow the advice.  After all, as some decision-makers have invariably stated in the past: “That’s just your advice … I am the decision-maker”, (or words to that effect).  And, as I was once reliably informed by a senior legal officer from the OJAG: legal officers are not the CF’s compliance officers.  Of course, that response gives rise to the consequent question: If not the OJAG, then who?

But the mere fact that a CF statutory decision maker must – or, as it more frequently the case, may – seek legal advice from the OJAG is not a guarantee of fair and reasonable decision-making.  It is not a guarantee that decisions will be transparent and intelligible or that they will sufficiently justify the outcome of the decision.  It is not a guarantee that the decision-makers will follow the necessary steps to satisfy procedural fairness.  It is not a guarantee that, even if those steps are followed, they amount to anything more than a rote application of a checklist, absent an open-minded application of relevant (and proven) facts to a particular legislative or policy regime.  It is not a guarantee of good judgement on the part of statutory decision-makers.

Instead, statutory decisions must stand, or fall, on their own merits.  And, let’s face it, those statutory decisions – whether we’re talking about summary hearings, the adjudication of grievances, or any other statutory decisions under the NDA – will benefit from deference from the Federal Court such that any CF member challenging the decision will have to demonstrate that the decision fell outside a range of reasonable outcomes or that there was a failure of fairness that jeopardized the content of fairness in the decision.

And that is not easily done.

And, forgive my cynicism, but senior CF statutory decision-makers, their legal advisors, and Department of Justice litigators are well aware of the nature of this deference, and its implication any time a CF member seeks review of an adverse statutory decision.

 

Conclusion

The question posed at the outset of the present discussion was whether a CF member required the assistance of legal counsel when faced with the prospect of a statutory decision under the NDA.  And such a circumstance can arise when the CF, institutionally (i.e., the “chain of command”), initiates the process – such as a disciplinary investigation, a summary hearing, an Administrative Review under DAOD 5019-2, a Remedial Measure under DAOD 5019-4, or any of a number of coercive processes under the NDA – or if the CF member initiates the process – such as a grievance or another complaint mechanisms.

The somewhat glib answer that I provided was: “It depends.”

But, upon what does this decision depend?

Certainly, the more complex the matter, the more likely a CF member would be aided by the advice and assistance of counsel.  If there are apparent issues that require the interpretation and application of law – particularly human rights legislation or the Canadian Charter of Rights and Freedoms (Charter) – there is an elevated likelihood that the advice and assistance of counsel would be beneficial.  And the more significant the impact of the matter on the CF member, the greater the likelihood that the CF member should seek the advice and assistance of counsel.

This last factor can represent an elusive criterion.  For example, no one would likely dispute that a Notice of Intent (NoI) to recommend release, which will typically trigger an Administrative Review by Director Military Careers Administration (DMCA), represents the initial step in a process that can potentially have a significant impact on a CF member.  After all, it could lead to a premature termination of that CF member’s career.

But what about the processes that would logically precede this significant action?  After all, someone who faces a NoI to recommend release may well have been the subject of prior administrative and/or disciplinary action.  Don’t get me wrong – I have also encountered circumstances in which a CF member’s “chain of command” has initiated a NoI to recommend release even where there have not been sufficient progressive and graduated indicators of unacceptable performance and/or conduct.  In some cases, CF members are ambushed by allegations that the chain of command has collected, but failed to act upon, until a time when it suits the chain of command to act.

But, in circumstances that reflect the progressive, graduated, reasonable, and fair application of corrective measures, a CF member may be subject to a variety of decision-making processes prior to receiving a NoI to recommend release.  And, while the NoI to recommend release (and eventual Administrative Review) may prompt the CF member to seek the advice and assistance of privately retained counsel, doing so at that time may be too late to be of material assistance.

For example, what if the CF member disputes the merit or accuracy of past allegations that were addressed under the Code of Service Discipline or, as is much more common (even where an investigation is initiated as a disciplinary investigation), remedial measures or similar ‘non-disciplinary’ regimes?  Disputing those decisions and measures in the course of an Administrative Review conducted months – or even years – after they were first made or imposed is unlikely to influence DMCA.  DMCA will accept the past ‘adjudication’ of those matters as proof that the alleged misconduct or poor performance had arisen.  DMCA will inevitably assert that, if the CF member intended to dispute the merit or accuracy of what was recorded, the CF member should have sought review, brought a grievance, or otherwise relied upon whatever remedial mechanism existed to challenge the past decision.  (In doing so, DMCA tends to be dismissive of any suggestion that the CF member may have experienced a ‘chilling effect’ from the chain of command that discouraged the use of complaint mechanisms.)

Disciplinary action, remedial measures, and other mechanisms designed to address a CF member’s performance- and conduct-related shortcomings will, almost invariably, give rise to a ‘paper trail’ (unless the relevant supervisors fail to perform their functions and duties properly).  However, just as legitimate, reasonable, and fair adjudication of such matters will give rise to a ‘paper trial’, disingenuous supervisors who take unfair, unreasonable, and unjustified action against a subordinate will also generate a ‘paper trail’.  And they do so in order to justify increasingly significant adverse action in the future.  I have mentioned this before: it is often referred to as “papering the file”.

It can be difficult to differentiate between the legitimate use of statutory and policy mechanisms to correct a subordinate’s shortcomings, and the disingenuous use of the same mechanisms in order to “paper the file” against a subordinate.  There can be some tell-tale signs, one of which is the over-emphasis of negative reporting on a subordinate compared to the near exclusion of any positive reporting.  Such tactics can often be found, hand-in-hand, with a sudden, meticulous and voluminous reporting of incidents where, in the past, the same or similar supervisors typically offered meagre feedback on all subordinates.

And, as difficult as it is to differentiate between legitimate and disingenuous reporting on a subordinate, it is even more difficult to demonstrate this distinction to an independent adjudicator, such as a Federal Court judge.  This is particularly true where a CF member must first exhaust all ‘adequate alternative remedies” under the NDA – particularly where those “adequate alternative remedies” are adjudicated by the CF member’s chain of command.

Thus, CF members need to be alive to the reality that their rights, interests, and privileges are engaged in every statutory decision-making process under the NDA.  Some decisions may be beneficial.  Some may be innocuous.  Some may be adverse to their interests.  However, the more obvious processes that can lead to imminent compulsory and premature release, or reduction in rank, or derivation of liberty, are not the only processes for which a CF member might turn to legal counsel for advice and assistance.

Sometimes it is prudent to seek the assistance of counsel when a CF member first comes into conflict with their chain of command.

Some statutory decision-makers are reasonable, open-minded, and conscientious leaders.  They are the sort of decision-makers who instinctively apply the ‘Golden Rule’ even if they may not do so consciously.  And I have met many such leaders in the CF.  But not all CF statutory decision-makers fit that mould.  And, unfortunately, as I have witnessed over the past several years, there tends to be an indirect relationship between the degree of open-minded fairness arising in a matter, and the degree to which the subject matter is a ‘hot button issue’ for the CF.  The lure of “appearing to be decisive” can be a cancer to reasonable and fair decision-making under the NDA.

While the complexity, nature, and seriousness of a matter or process can be indicative of the extent to which a CF member ought to seek the assistance of counsel, perhaps the most important question CF members can ask themselves when considering consulting privately retained counsel is this: How much do I trust the relevant statutory decision-maker to be fair, reasonable, and honourable in this process?

And once a CF member decides to seek out, and rely upon, privately retained legal counsel, other barriers can arise.  And it is to those issues that we will next turn our attention.

 

[1] National Defence Act, RSC 1985, c N-5 [NDA].

[2] And I will leave it to the reader to contemplate what may have arisen under previous iterations of the Code of Service Discipline, which expressly identified assisting officers, when an NCM requested the assistance of a reserve force NCM whose civilian vocation was that of a lawyer.  What do you imagine was the reaction of the chain of command and the OJAG to such a circumstance?  Would it be conceivable that the legal advisors in the OJAG would stress that the assistance must be provided by an officer, save when no officers were available, in order to encourage the chain of command to prevent an NCM with significant knowledge of the law from aiding an accused?

[3] Queen’s Regulations and Orders for the Canadian Forces [QR&O], art 121.02; Military Justice at the Unit Level Policy 2.0 [MJUL Policy], Part 2.2.

[4] DAOD 5019-2, Part 7, para 7.1, Responsibility Table, responsibilities of CO.  Note that there is very little direction, or even mention, of assistance to a CF member for Administrative Review.  Much of the direction appears to be driven by unwritten ‘local’ or unit practice.

[5] DAOD 5019-4, paras 6.4 and 6.5.  The checklist for the administration of Initial Counselling (IC) and Recorded Warning (RW) and the Checklist for the administration of Counselling and Probation (C&P) both indicate (in a slightly different manner) that “… The CAF member must be informed that assistance may be requested from an officer or senior non-commissioned member and that additional time to make representations may be requested. The [initiating authority] may grant such a request if appropriate in the circumstances.”

[6] QR&O, n 3, art 19.10.  Interestingly, this provision is found under the Chapter of Volume I (Administration) entitled “Conduct and Discipline” as opposed to Chapter 2, entitled “Government and Organization”.  That sends a fairly clear message how the Minister, and the leadership of the CF, view the issue of combines or collective negotiation for CF personnel.

[7] Anderson v Canada (Armed Forces), [1997] 1 FC 273, 141 DLR (4th) 54 (CA); Moodie v Canada (National Defence), 2010 FCA 6.  However, see also: Thomas v Canada (Attorney General), 2024 FC 655.

[8] DAOD 2017-1, Section 7.

[9] QR&O, n 3, art 101.07 states: “A superior commander, commanding officer or delegated officer must hold a valid certification from the Judge Advocate General attesting that the officer is qualified to perform duties in the administration of the Code of Service Discipline at the time the officer performs any function under the Code.”   Prior to the coming into force of several provisions 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, on 20 June 2022, art 101.07 stated:

101.07 – TRAINING AND CERTIFICATION OF SUPERIOR COMMANDERS AND COMMANDING OFFICERS

(1) Before superior commanders and commanding officers assume their duties, they shall be:

(a) trained in the administration of the Code of Service Discipline in accordance with a curriculum established by the Judge Advocate General; and

(b) certified by the Judge Advocate General as qualified to perform their duties in the administration of the Code of Service Discipline.

(2) The Chief of the Defence Staff may delay the training required under subparagraph (1)(a) to the extent necessary to meet urgent operational requirements.

The CDS note – “The purpose of this article is to ensure that superior commanders and commanding officers are knowledgeable concerning the administration of the Code of Service Discipline.” – was also repealed.

[10] QR&O, as at 19 June 2022, art 107.03.

[11] QR&O, as at 19 June 2022, art 107.11.

[12] QR&O, n 3, art 102.07.

[13] QR&O, n 3, art 121.07.