Message from the Chair
Message from the Chair
Maj Andrew E. Appolloni
For seven months I have had the privilege of representing the National Military Law Section of the CBA. And, although this is my third year on the NMLS executive, I am continually amazed at the energy and work that so many talented people selflessly put into the Section, despite their own busy work schedules and commitments.
Afghanistan
The legal framework applicable to the transfer of detainees
BGen Ken Watkin, Q.C.
On 28 October 2009, the House of Commons Special Committee on the Canadian Mission in Afghanistan agreed to hold hearings regarding the transfer of Afghan detainees from the Canadian Forces to Afghan authorities.
International Humanitarian Law / Law of Armed Conflict
A reply to "The Battle of the Windmill": A different perspective
By Ian Rennie
It was with great interest that I read Lieutenant Commander Rutkus’ article titled "The Battle of the Windmill: Genesis of unlawful combatant trials in Canada" published in the June 2009 edition of the Sword and Scale.
Military Justice
Military summary trials: A Victorian system of justice
Col (Ret’d) Michel L. Drapeau
While acknowledging the need to preserve a system of justice that encompasses the military’s unique culture, role and need to preserve discipline, the Senate report titled Equal Justice: Reforming Canada's System of Courts Martial rightly concluded that regardless of whether military or civilian, one must enjoy the full spectrum of Canadian values and Charter rights.
Military summary trials: A response
BGen Ken Watkin, Q.C.
Retired colonel Michel Drapeau’s article “Military summary trials: a Victorian system of justice” provides an interesting perspective on our military justice system that requires clarification. My intent is to demonstrate that while we take pride in the deep historical roots of Canada’s justice system, including our military justice system, neither history nor tradition have impeded progress or reform.
Military Administrative Law
What’s wrong with the military grievance system?
Col (Ret’d) Michel W. Drapeau
While the current military grievance system has the outward trappings of a smoothly functioning system with precise jurisdictional responsibilities and prescribed timelines for the submission, investigation and determination of written grievances are in solid print in statutes, the reality is markedly different.
Military grievance: Setting it right if we got it wrong
Col Guy Maillet, Director General Canadian Forces Grievance Authority
There are mistakes in retired colonel Michel Drapeau's article about the military grievance system that the Canadian Forces Grievances Authority would like to take the opportunity to correct.
Jurisdictional issues arising in grievance files reviewed by the Canadian Forces Grievance Board
The Operations Directorate, Canadian Forces Grievance Board
Two key issues sometimes arise in the grievances that are received by the Canadian Forces Grievance Board. These issues are referred to as “preliminary issues” because they must be addressed by the decision making authority to ensure jurisdiction before dealing with the merits of the matter being grieved.
Reader's Comments
EX Maple Shore: An OJT experience
By Lt(N) R. Warman.
On the Job Training can conjure up a lot of possible images. A reservist with the Legal Branch relates his experience.
National Military Law Section
The National Military Section's Executive Committee Members
Call for papers – new essay contest for students
The Law School Essay Contest has been established by the Military Law Section of the Canadian Bar Association to promote and reward interest in military law topics in Canadian law schools.
View full contest details
Final Words
Message from the Editor
Capt Patrick Crocco
This issue has some excellent contributions on several issues relevant to military law. However, we are looking for further contributions on either the subjects raised by the contributions in this issue or other subjects of relevance to military law.
Message from the Chair
Maj Andrew E. Appolloni
Dear Friends,
It is with pleasure and excitement that I write this “Message from the Chair” in this Spring’s edition of Sword & Scale. For seven months I have had the privilege of representing the National Military Law Section of the CBA. And, although this is my third year on the NMLS executive, I am continually amazed at the energy and work that so many talented people selflessly put into the Section, despite their own busy work schedules and commitments, to promote training initiatives and special presentations within their own regions or nationally to ensure NMLS members’ professional development and interests in military law are attained. From the incredible staff at the CBA who has been so helpful to me as well as the Section, to the dedicated members of the Section and the Executive, they are a wonderful group of people. Of course, special thanks must go to Captain Patrick Crocco who has worked so hard to put this latest edition of Sword & Scale together.
I mentioned earlier that I was excited - in part because of the articles that appear in this edition, which I will leave for Patrick to introduce. The other part because of what the future holds for the NMLS. This year’s Ottawa Spring PD Conference on 7 June 2010 will be looking into some of the inter-jurisdictional legal issues and complexities that legal practitioners and security officials encounter when Canada hosts high-profile international events such as the 2010 Winter Olympics and Paralympics as well as the G8 & G20 Summits.
In addition, we are hopeful that the Canadian Forces superintendent of military justice, the Judge Advocate General, will accept our invitation to address our members at the June 7th PD event. At the time of writing this article, we do not have confirmation of his or her attendance, but then again, we also do not yet know who the Government of Canada will appoint as the new JAG. On that note, as many of you may already know, the incumbent JAG, Brigadier- General Kenneth Watkin, QC, announced his retirement for April 2010. He will be taking up a teaching position at the prestigious US Naval War College. Brigadier-General Watkin has served the JAG Branch with distinction and brought considerable academic rigour to military legal topics, particularly in the areas of military justice and military operations law. On behalf of the NMLS, I would like to thank Brigadier-General Watkin for his invaluable contributions to military law and to wish him the best of luck as he embarks on his new legal career – albeit still related to military law - but this time, he will not be wearing a uniform!
I want to drop a quick word on this summer’s 2010 CLC in the Niagara Falls region. Be sure to catch “Securing the Canada/U.S. Border” in which the NMLS has invited three key-note speakers/panelists to discuss their respective areas of responsibility and what is entailed to secure the border between the two sovereign countries: U.S. Colonel John Gereski Jr., is currently the Director of Operations Law for the North American Aerospace Defense Command (NORAD) and the United States Northern Command (NORTHCOM) at Peterson Air Force Base, Colorado; Mr. Jacques Duchesneau, is currently an associate professor at Québec's École Nationale d'Administration Publique. He was the President and Chief Executive Officer of the Canadian Air Transport Security Authority (CATSA) from its inception in 2002, in the aftermath of the events of 9/11, until his retirement in 2008; and Superintendent Warren Coons, who is currently the Director of the Integrated Border Enforcement Team at the RCMP and has been involved, among other things, with Great Lakes’ security.
Finally, I am extremely excited to announce the First Annual Military Law Essay Contest, which was officially launched in Feb 2010. Letters were sent to all the Deans of Canadian Law Schools requesting their assistance to promulgate notice of the essay competition amongst Canadian law students and graduate law students. The contest closes April 15, 2010 and includes prize money of $250 plus a complimentary registration at this year’s Spring PD Conference and publication of the winning essay in an upcoming issue of The Sword & Scale. Special thanks go to John McMunagle who generously offered to kick-start the competition for the first two years by donating $500 towards the prize money. As well, we are extremely fortunate to have the assistance of an august panel of legal academics and experts to judge the essays, including Professor Beth Bilson, QC, former Dean of the College of Law at the University of Saskatchewan and current Editor-in-Chief of the Canadian Bar Review.
I hope you enjoy this edition of our newsletter and I look forward to meeting as many of you as possible at our Ottawa June 7th PD event.
Maj Andrew E. Appolloni.
 TOP
The legal framework applicable to the transfer of detainees
BGen Ken Watkin, Q.C.
On 28 October 2009, the House of Commons Special Committee on the Canadian Mission in Afghanistan agreed to hold hearings regarding the transfer of Afghan detainees from the Canadian Forces to Afghan authorities.
The Judge Advocate General for the Canadian Forces was asked to briefly describe to the committee the legal framework for the transfer of detainees to the Government of Afghanistan. On 4 November 2009, BGen Ken Watkin, Q.C., delivered the following statement before the Committee.
Mr. Chairman, members of the committee, colleagues...
Good afternoon. I would like to thank the members of the committee for inviting me to briefly describe the legal framework for the transfer of detainees to the Government of Afghanistan. I will first briefly describe the role of the Judge Advocate General, the JAG, and I will then discuss the legal framework.
The National Defence Act provides for the appointment of the Judge Advocate General by Governor in Council. I am legal adviser to the Governor General, the Minister of National Defence, the Department of National Defence, and the Canadian Forces, in matters relating to military law.
Military law means all international and domestic law relating to the Canadian Forces, including its governance, administration, and activities. This includes operational law, which is the domestic and international law applicable to all domestic and international Canadian Forces operations.
I also superintend the administration of military justice in the Canadian Forces. As former Chief Justice Lamer recognized in his 2003 report on the military justice system, the JAG has attorney general-like responsibilities. I exercise command over all legal officers working in the office of the Judge Advocate General, including those deployed to Afghanistan to advise commanders regarding Canadian Forces operations.
We are here today to discuss a fundamental question, the law governing the transfer of detainees to the Afghan authorities and concerns about the possibility that some detainees will be transferred to a risk of torture.
In spite of the factual and legal complexity of this issue, there are certain fundamental legal principles that are clearly settled. I am going to review them briefly.
Torture is abhorrent and can never be tolerated. The prohibition against torture is a peremptory and non-derogable norm of international law. The transfer of detainees to a real risk of torture or ill-treatment is contrary to international humanitarian law, also known as the law of war or the law of armed conflict. It is a specialized body of law that governs the conduct of Canada, its officials, and its military forces during the armed conflict in Afghanistan. The policies and procedures put in place by the Canadian Forces in Afghanistan and the legal test that must be satisfied before detainees can be transferred are all meant to ensure compliance with these international legal obligations.
The question of the transfer of detainees was recently addressed by Canadian courts. The case of Amnesty International Canada and the British Columbia Civil Liberties Association v. the Chief of Defence Staff for the Canadian Forces, Minister of National Defence and Attorney General of Canada, which I will refer to as the Amnesty case, dealt with the issue of the extraterritorial application of the Canadian Charter of Rights and Freedoms. Justice Mactavish of the Federal Court held that the charter does not provide rights to non-Canadians detained by the Canadian Forces in Afghanistan. She held that the detainees have the rights conferred upon them by the Afghan constitution, along with those conferred on them by international law and in particular international humanitarian law. The Federal Court of Appeal upheld her judgment on 17 December 2008, and the Supreme Court of Canada denied leave to appeal on 21 May 2009. This is the law of Canada.
In its judgment, the Federal Court reviewed the legal bases for Canada's involvement in Afghanistan. It confirmed that the authority for Canada's presence and the operations of the Canadian Forces in Afghanistan rest upon three interrelated bases in international law: the right to individual and collective self-defence, the authority granted by the resolutions of the United Nations Security Council, and the consent of the Government of Afghanistan.
In UN Security Council Resolution 1386 of 2001, the Security Council authorized the establishment of the International Security Assistance Force, ISAF. In succeeding resolutions, the Security Council has renewed ISAF's mandate to “assist” and “support” the Afghan government in the “maintenance of security” within Afghanistan, and it authorized states participating in ISAF to take “all necessary measures” to fulfill this mandate.
The Government of Afghanistan's consent to the Canadian Forces' presence and operations in Afghanistan is made explicit by its participation in the Afghanistan Compact of 2006, its support and acceptance of the Security Council resolutions authorizing ISAF and, more particularly, in the technical arrangements made between Canada and Afghanistan on 18 December 2005. The technical arrangements assert that,
the overall purpose of the Canadian assistance to the Government of Afghanistan includes the operational objectives of assisting the Government of Afghanistan in providing security and stability in the country.
They affirm the understanding of the Government of Afghanistan that Canadian personnel may take such measures as considered necessary, including the use of deadly force and the detention of persons, to accomplish their operational objectives. The technical arrangements expressly state that,
[d]etainees would be afforded the same treatment as prisoners of war. Detainees would be transferred to Afghan authorities in a manner consistent with international law and subject to negotiated assurances regarding their treatment and transfer.
The reference to detainees being afforded the same treatment as prisoners of war does not mean they have the status of prisoners of war. Rather, it demonstrates that we are extending well-established and comprehensive international law protection for such detainees.
The UN Security Council resolutions, the Afghanistan Compact, and the technical arrangements all reaffirm the international community and Canada's respect for and commitment to Afghan sovereignty and independence. They reflect the common understanding that it is the Government of Afghanistan that bears responsibility for providing Afghans with security, the rule of law, and the protection of their human rights and fundamental freedoms. The role of the international community, including Canada, is to assist and support the Government of Afghanistan in fulfilling those responsibilities.
The operations and activities of the Canadian Forces in Afghanistan take place in the context of an armed conflict involving the Government of Afghanistan; ISAF; and the Operation Enduring Freedom, OEF, coalition against elements of the Taliban, Al-Qaeda, and other organized armed groups. The characterization of the armed conflict is the subject of considerable international debate. However, for the purposes of the litigation in the Amnesty case, the Government of Canada accepted the applicants' characterization of the conflict as a non-international armed conflict.
More specifically, the Court found that Canada is not an occupying power in Afghanistan. The Canadian Forces do not exercise effective control of Afghan territory. The Government of Afghanistan, not the Government of Canada, exercises state powers. With one exception, the Government of Afghanistan has not consented to the application of Canadian law or the exercise of Canadian jurisdiction in Afghanistan. The exception involves offences committed by "Canadian personnel."
The court found that under the technical arrangements the detention of persons adverse in interest or providing support in respect of acts harmful to the Canadian Forces and coalition forces, and the transfer to Afghan custody of such persons, is to be carried out in accordance with international law. Prior to transfer, detainees are held in a temporary Canadian facility on a multinational base. The decision to transfer such persons rests with the Canadian commander of Joint Task Force Afghanistan and is made on a case-by-case basis.
The court noted that the governments of Canada and Afghanistan have set out their shared understanding of their international legal obligations in a series of documents relating to the transfer of detainees. On December 18, 2005, the Afghan Minister of Defence and the Chief of the Defence Staff for the Canadian Forces signed an arrangement that establishes procedures for the transfer of a detainee from the custody of the Canadian Forces to a detention facility operated by Afghan authorities.
The arrangement reflects Canada's commitment to work with the Afghan government to ensure the humane treatment of detainees, while recognizing that Afghanistan has the primary responsibility to maintain and safeguard detainees in their custody. Among other things, this arrangement provides that the International Committee of the Red Cross, the ICRC, has the right to visit detainees at any time while the detainees are being held in either Canadian or Afghan custody.
In February 2007, the Canadian Forces signed an exchange of letters with the Afghan Independent Human Rights Commission, AIHRC, to emphasize the role of the AIHRC in monitoring detainees. These letters further provide that the AIHRC is to provide immediate notice to the Canadian Forces should it become aware of the mistreatment of a detainee who has been transferred from Canadian custody.
On May 3, 2007, Canada and Afghanistan concluded a second arrangement governing the transfer of detainees held by the Canadian Forces. This arrangement supplements the first detainee arrangement, which continues to remain in effect. The second arrangement requires that detainees transferred by the Canadian Forces be held in a limited number of detention facilities to assist in keeping track of the individual detainees.
It further provides that members of the AIHRC, the ICRC, and Canadian government personnel all have access to persons transferred from Canadian to Afghan custody.
It also requires that approval be given by Canadian officials before any detainee who had previously been transferred from Canadian to Afghan custody is transferred on to a third country.
Finally, the second detainee arrangement provides that any allegation of abuse or mistreatment of detainees held in Afghan custody is to be investigated by the Government of Afghanistan, and that individuals responsible for mistreating prisoners are to be prosecuted in accordance with Afghan law and internationally applicable legal standards.
Of particular concern in the Amnesty case was the suggestion that detainees transferred by the Canadian Forces to Afghan authorities might be subject to torture by the Afghan authorities. There is a common aspect to all definitions of torture under international law. The definition provided in article 1 of the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, the CAT, to which Canada is a state party, is the intentional infliction, by act or omission, of severe pain or suffering, whether physical or mental, in order to obtain information or a confession, or to punish, intimidate, or coerce the victim or a third person, or for any reason based on discrimination of any kind. This is also the essence of the offence of torture provided for in section 269.1 of the Criminal Code.
Both conventional and customary international humanitarian law prohibit torture under all circumstances. It is accepted that the meaning of torture under IHL is essentially the same as the meaning of torture under the convention against torture.
In addition to torture, other forms of ill-treatment, such as cruel treatment and outrages upon human dignity, are also prohibited under IHL. The Canadian Forces have been and remain alert to this issue.
The transfer of detainees is a state responsibility and a whole-of-government issue. On the ground in Afghanistan, in addition to the Canadian Forces, DFAIT, CSC, and the RCMP all play a role in detainee-related matters. The Office of the JAG has operated as part of a broader Government of Canada legal team, including the Department of Justice, PCO, and DFAIT.
The legal test that must be met before a detainee can be transferred by the Canadian Forces to Afghan authorities, and this was confirmed by the Federal Court of Canada and the Federal Court of Appeal in the Amnesty case, is clear: the commander of Joint Task Force Afghanistan must be satisfied that there are no substantial grounds for believing that there exists a real risk that a detainee would be in danger of being subjected to torture or other forms of mistreatment at the hands of Afghan authorities. In applying this test, the commander considers information from a variety of sources, including DFAIT and other government departments. For example, in November 2007, transfers were suspended as a result of a credible allegation of ill treatment that arose during a monitoring visit by a DFAIT official. Transfers resumed in February 2008.
It bears repeating that Canada has not operated alone in its engagement in Afghanistan. We are there as part of a UN-sanctioned, NATO-led team of 42 states in the International Security Assistance Force, ISAF, and we also operate closely with the United States armed forces as part of Operation Enduring Freedom, OEF. Like Canada, other ISAF partners transfer detainees to the Government of Afghanistan.
To summarize, Mr. Chair, it must be noted, as Justice Mactavish said in the Amnesty case, and as affirmed by the Federal Court of Appeal, that there is no "legal no-man's land" concerning the transfer of detainees to the Government of Afghanistan. International humanitarian law applies. Canada has "applied" the words of that code by making arrangements and establishing procedures to guarantee that detainees transferred by the Canadian Forces are protected.
While this concludes my remarks on the legal framework applicable to the transfer of detainees, I would highlight for the committee that much of my work is covered by solicitor-client privilege. As the Supreme Court of Canada has noted:
Solicitor-client privilege is fundamental to the proper functioning of our legal system.
Solicitor-client privilege must be as close to absolute as possible to ensure public confidence and retain relevance.
I would therefore ask for the committee's understanding with respect to this issue.
Finally, it is clear that contemporary armed conflict, and in particular the complex security situation in Afghanistan, presents both operational and legal challenges. However, I want to emphasize that both I and the courageous men and women who serve under my command are committed to ensuring the Canadian Forces are able to meet our international legal obligations. I know that our fellow members of the Canadian Forces have demonstrated tremendous professionalism in their handling and treatment of detainees. Respect for the rule of law is an essential aspect of Canadian Forces operations. Fostering respect for the rule of law is a key reason why we are in Afghanistan.
A reply to "The Battle of the Windmill": A different perspective
Ian Rennie
It was with great interest that I read Lieutenant Commander Rutkus’ article entitled "The Battle of the Windmill: Genesis of unlawful combatant trials in Canada" published in the June 2009 edition of the Sword and Scale.
Read the full article 
TOP
Military summary trials: A Victorian system of justice
Col (Ret’d) Michel W. Drapeau
While acknowledging the need to preserve a system of justice that encompasses the military’s unique culture, role and need to preserve discipline, the Senate report titled Equal Justice: Reforming Canada's System of Courts Martial rightly concluded that regardless of whether military or civilian, one must enjoy the full spectrum of Canadian values and Charter rights. Although the report, released in May 2009, was focused on reforms of the court martial system, it recognized the need to examine the summary trial system. A wise thing, since this accounted for 96% of the trials that took place in fiscal year 2007-2008; 2,035 summary trials versus 78 courts martial.
CSD in a nutshell
With a few notable exceptions, the military justice system has complete jurisdiction over persons who commit breaches while subject to the disciplinary jurisdiction of the Canadian Forces. Offences under the Code of Service Discipline (CSD) include infractions that relate uniquely to military service such as misconduct in the presence of the enemy, disobedience, desertion, and conduct to the prejudice of the good order and discipline (which is a grab-all). However, the CSD also incorporates offences against the Criminal Code and all other federal acts having penal dispositions.
Punishments powers
The range of sanctions for service offences is rather rough and gruff. In descending order of severity, it includes the following: imprisonment; dismissal; detention; reduction in rank; forfeiture of seniority; reprimands; fines; and, minor punishments. However, contrary to the Criminal Code, it does not include such things as conditional discharges, probation, restitution, or conditional sentences of imprisonment.
Service tribunals: 2007-2008
They are two types of service tribunals: courts martial and summary trials. Courts martial are in principle are convened for the most serious offences. They provide the accused with the same range of constitutional and legal protections available in a civilian court.
|
|
Court Martial
|
Summary Trials
|
|
|
Number
|
Percentage of personnel serving in those ranks
|
|
Privates/Corporals
|
48
|
1,768
|
5.0%
|
|
Sergeants/Warrant Officers
|
14
|
75
|
0.4%
|
|
Officers
|
16
|
192
|
0.1%
|
|
TOTAL
|
78
|
2,035
|
|
|
Guilty Verdicts
|
61%
|
92%
|
|
A summary trial is meant to try cases where CF members are charged with less serious offences and where, it is believed, that both the summary trial and the consequential punishments must follow quickly upon the offence to deter and to punish as well as to rehabilitate those who do so.
Summary trials
We can trace the origins of the summary trial, at least in the Army, to the 1880’s Cardwell and Childer reforms in the United Kingdom. In 1868, a royal commission on the constitution and practice of courts martial first recommended that COs be allowed to impose fines for drunkenness. In the 1880s, the CO’s powers to deal summarily with a number of other common military offences were increased, with the result that summary trials permitted them to administer swift and exemplary justice without depriving them of scarce resources or encouraging unruly soldiers to commit offences in the hope that their arrest and detention for trial would provide them with an escape route from the front line. This led to a series of new punishments.
Right to an independent and impartial tribunal
Few outside, or even inside, the military have any idea that a conviction by a summary trial results in a criminal record. Few would also know of the very high conviction rate at a summary trial; 92%. Yet, most Canadians expect that a soldier charged with an offence would have his Charter right to a "fair and public hearing by an independent and impartial tribunal" respected. However, a review of the characteristics of a summary trial raises a serious doubt about such an expectation.
- A summary trial is typically presided over by one of the powerful paterfamilias in the military society: the Commanding Officer (CO). Given that the communal life inside a military unit is intense, hierarchical, claustrophobic, and minutely regulated, the CO knows, or is expected to know, everyone under his command. When a CF member accused of an offence is brought before him with witnesses in tow, the CO would most likely know him and the witnesses, all of whom likely being his subordinates. Moreover, through regular internal reporting of incidents, the CO is also likely to be well abreast of the circumstances surrounding the alleged offence(s) and, this even before the trial. In civil court, the judge is independent and unaffiliated with the accused, dealing with strangers and hence relying on counsel and witnesses to present evidence.
- A summary trial commences when the accused is marched in under escort by a Sergeant Major who bellows a succession of orders. The accused comes to a halt within a couple of feet of the CO’s desk. He remains standing throughout the trial.
- The accused has no right to counsel. Instead, the CO normally appoints an Assisting Officer, one of his juniors, to assist the accused to mount a defence. The Assisting Officer has no duty of confidentiality toward the accused. There is also no client-solicitor privilege at play.
- The CO and the Assisting Officer have no legal training. They received instead some procedural training provided by the Judge Advocate General.
- The CO ensures the attendance of witnesses including witnesses for the defence. Witnesses are limited to only those witnesses who can be procured without legal process (subpoena or summons).
- The CO is not governed by any rules of evidence. Hearsay and opinion evidence are accepted. There is no ability for the accused to make Charter arguments that might result in a stay of proceedings or dismissal of the case against him.
- The level of disclosure provided to the accused for the purposes of a summary trial is less complete than the level of disclosure provided for the purposes of a court martial.
- There are no transcripts of summary trials. Only the sentence and the punishments are recorded on a summary sheet.
- There is no appeal of the verdict or the sentence imposed by the CO which could deprive a CF member of his liberty. The UK and Australia recently recognized this deficiency by giving soldiers convicted at a summary trial an unfettered right of a hearing before an appeal tribunal made up of three lay jurists where they may be represented by a lawyer.
- Verdicts and sentences imposed at summary trials may be reviewed, however, by a non-judicial military authority empowered to intervened in this criminal procedure. This procedure is foreign to any member of the civilian bench and bar.
Conclusion
Although I accept that maintenance of discipline is fundamental to the success and overall functioning of the armed forces, in the grander scheme of things, that is in a democracy, so is the respect for an individual’s legal rights. Yet, at present, summary trials are conducted as if the law and lawyers were irrelevant and in a manner that seems to go against basic Canadian legal principles available to civilians. What solely is relevant is the CO’s responsibility for discipline and order in his command.
While some of the punishments imposed by summary trials can be regarded as trivial, others have the potential to seriously affect the lives, reputations, and careers (both military and civilian) of military personnel. However, even if trivial, the determination of these criminal charges should be made through a fair hearing by an independent and impartial tribunal, which is far from being the case. I can only conclude that the summary trial is perhaps, at best, an anachronism presenting an absence of structural independence and impartiality. There is an urgent need to review this.
Military summary trials: A response
BGen Ken Watkin, Q.C.
Retired colonel Michel Drapeau’s article “Military summary trials: a Victorian system of justice” provides an interesting perspective on our military justice system that requires clarification. My intent is to demonstrate that while we take pride in the deep historical roots of Canada’s justice system, including our military justice system, neither history nor tradition have impeded progress or reform.
As Mr. Drapeau identified, summary proceedings were introduced in the 1879 reform of the United Kingdom Army disciplinary system. Recent reforms, starting with two sets of amendments in 1982 and 1986, resulted from the adoption of the Canadian Charter of Rights and Freedoms. Since 1986 the military justice system has been scrutinized by courts, inquiries, academics, Parliamentary committees and the Canadian Forces. In 1992 the Supreme Court of Canada in Genereux v. The Queen found “Recourse to the ordinary criminal courts would, as a general rule, be inadequate to serve the particular disciplinary needs of the military. There is thus a need for separate tribunals to enforce special disciplinary standards in the military.”
In 1993 an internal Summary Trial Working Group recommended changes to ensure that the system was Charter compliant. Three years later the Special Advisory Group on Military Justice and Military Police Investigation Services, chaired by the late chief justice Brian Dickson, addressed a number of the concerns now raised by Mr. Drapeau. They examined the issue of the constitutionality of the summary trial system and stated that “the chain of command should be able to proceed confidently and fairly with imposing discipline at summary trials.” With respect to the impartiality of presiding officers they concluded that “we believe the chain of command must remain directly involved in the conduct of summary trials. We are also convinced that this can be justified under the Charter, notwithstanding that commanding and delegated officers are neither independent nor impartial in the legal sense….”
The recommendations of the Summary Trial Working Group, the Special Advisory Group and the Somalia Commission of Inquiry Report, culminated in the passage of Bill C-25 in 1998, enacting substantial changes to the military justice system.
In 2003 another Supreme Court chief justice, Antonio Lamer, conducted an independent review of the military justice system. He recommended relatively minor but important changes to the summary trial system and noted that “I am pleased to report that as a result of the changes made by Bill C-25, Canada has developed a very sound and fair military justice framework in which Canadians can have trust and confidence.” Many of the Lamer recommendations have been implemented by regulation and those requiring legislative reform were introduced in Parliament on two occasions. In both cases, Parliamentary sessions ended prior to the bill receiving royal assent. Most recently, the Senate Standing Committee on Legal and Constitutional Affairs issued a report on the courts martial system containing two recommendations impacting the summary trial system. The government accepted those recommendations.
The summary trial system has evolved with the times. One must be careful to not fall into the trap of looking at the summary trial system, a crucial means for maintaining discipline, uniquely through the lens of a civilian court model. Recourse to such formal courts does not meet the needs of a disciplined armed force. Summary trials were born of necessity in the 19th century to meet evolving disciplinary needs. They remain crucial to the maintenance of a disciplined armed force in the 21st century, both at home and abroad.
The summary trial system must reflect the unique needs of the military for discipline, efficiency and portability. While addressing these needs, the military justice system will continue to evolve to reflect the norms and values of Canadian society and the rule of law.
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What’s wrong with the military grievance system?
Col (Ret’d) Michel W. Drapeau
While the current military grievance system has the outward trappings of a smoothly functioning system with precise jurisdictional responsibilities and prescribed timelines for the submission, investigation and determination of written grievances are in solid print in statutes, the reality is markedly different.
The British Mutiny Act of 1689 formalized the disciplining of a standing army and initiated modern anglo-American military law. Plain reading of the act makes it clear that a good soldier must accept the constraint of military discipline, be deferential to the hierarchy of ranks and be respectful of orders, directives, instructions, customs, and traditions.
His personal well-being and safety must be subordinated to the judgment of superiors who may order a soldier into harm’s way in the performance of a military duty. However, such as is life in the military, on occasions, a soldier may become disillusioned, disappointed, frustrated or aggrieved by decisions or omissions of his superiors. Then what?
In 1949, the Royal Canadian Navy’s inability to recognize and promptly deal with growing frustrations boiled over when during a fuelling stop in Mexico, 90 members of HMCS Arthabaskan locked themselves in their mess decks, refusing to come out until the captain heard their grievances. Two weeks later, 83 junior ratings in HMCS Crescent, staged a similar protest while alongside in Nanjing, China. Then, 32 aircraft handlers aboard the carrier HMCS Magnificent in the Caribbean, refused to turn to morning cleaning stations as ordered. While collectively of great concern to the senior naval leadership, these sailors never became mutinous principally because the ships’ officers, from the captain on down, recognized the validity of the complaints and took immediate action to address their grievances. A subsequent Commission of Inquiry, headed by Rear Admiral Rollo Mainguy, investigated the matter and his quintessential report became, one hopes, the blueprint for the modern Canadian Forces especially in terms of leadership and superior-subordinate relationships within the CF hierarchical system—at least for awhile.
Grievances in the military, whether dealing with mistreatment, intimidation, faulty weapons or equipment, promotions, poor clothing, bad rations and medical care are as old as recorded military history. The modern-day National Defence Act which came of age in 950 and remains to this day the governing statute of the Canadian military already provided for redress of grievances: “. . .an officer or a man who considers that he has suffered any personal oppression, injustice, ill-treatment or that he has any other cause of grievance, may as a matter of right, seek redress from such superior authorities in such a manner and under such conditions as shall be prescribed in regulations.” On the other hand, the Queen’s regulations and orders, provides crystal clear directions as to who should consider a grievance. The QR&Os requires the commanding officer or some other initial authority to determine the grievance and advise the grievor of his decision within 60 days. This is the law, sir.
While the current military grievance system has the outward trappings of a smoothly functioning system with precise jurisdictional responsibilities and prescribed timelines for the submission, investigation and determination of written grievances are in solid print in statutes, the reality is markedly different. Let me explain. First, the command elements of the Forces are for all intents and purposes, all but absent from the process which has been heavily bureaucratized. Second, the Chief of the Defence Staff (CDS) who is the supreme authority, has delegated all of his powers to one of his juniors to settle any of the grievances that are not referred to the grievance board.
Third, the independent civilian organization known as the grievance board is now run by retired military officers. In any event, the grievance board only handles a very small fraction of the grievances. It possesses no corrective powers. Fourth, many grievances take as much as 36 months to be responded to, some longer. This is a matter of concern particularly when we take into account that this method of complaint is alone recognized in statute and, a soldier is forbidden to use any other method for obtaining redress for a grievance, real or supposed. The CF grievance system begins to falter with the selection of the Initial authority. The Initial Authority can be anyone from the commanding officer or a director general at National Defence Headquarters. Not explicitly stated, but of paramount importance, is the fact that the Initial Authority should not be in a conflict of interest.
It goes without saying that an officer relieved from duty by his commanding officer should not have his grievance addressed by the same commanding officer. But, incredibly as it seems, it happens. A soldier grieving about deficient CF medical care will have his grievance examined at the first level by the Director General Health Care.
The regulation states that the Initial Authority has 60 days in which to make a determination. One would expect that the 60 days period would only be exhausted in the most difficult cases. Yet, in 2008 only 14 per cent of all the grievances were responded to within 60 days. The average time taken to adjudicate a grievance at the first level is 18 months. One could only imagine what would happen if the grievance were to deal with some urgent operational matter faced by a soldier deployed on a tour of duty in Afghanistan. It gets worse. There is evidence that in many cases, the Initial Authority, upon receipt of a grievance, automatically generates a request for a one year extension without even looking into the matter. Attached to the extension requests is the information that if consent is not provided, the grievance would be immediately elevated to the final level for adjudication where there is no statutory time limit and where the average wait is expressed in years. This laissez-faire treatment of the legitimate grievances of soldiers stands in stark contrast with the unlimited commitment and service demanded of them by their leaders.
Since its inception, the Canadian Forces Grievance Board has done magnificent work by providing an independent, impartial and fair review of the very few grievances it is allowed to review each year. That independence and impartiality has now been severely compromised, however, by militarizing every one of the leadership positions on the grievance board. Also, contrary to popular belief, the grievance board plays a very minor and diminishing role in the handling grievances because its jurisdiction is limited to an infinitesimal small segment of the grievances. Neutered by the legislation, the CF Grievance Board is deprived of any real power to order a remedy. It only provides findings and recommendations. With one exception, the power to order a remedy is vested and remains in the hands of the Chief of the Defence Staff. However, the CDS cannot award pecuniary compensation to an injured party. Somewhat surprisingly, that authority is given to Justice Canada lawyers who, in most cases, have been parsimonious with claims for compensation. Strangely, the military authorities seem to have been very accepting of this sorry state of affairs.
Lastly, in 2003, the military created a ubiquitous and potent CF Grievance Authority with a staff as large as that of the CF Grievance Board charged with the responsibility for monitoring all of the grievances and staffing grievances submitted to the Grievance Board. More exceptionally, the Grievance Authority can also settle any grievance at the CDS level that is not subject to a mandatory referral to the Grievance Board. What this all means is that for the first time ever, the CDS and senior generals have divested to a Colonel one of the most important tools of generalship to be immediately, directly and personally involved in addressing or redressing instances of abuses and/or other systemic deficiencies brought to their attention by soldiers aggrieved by the actions or omissions of junior commanders. They have also empowered a CF bureaucracy to get between the grievance board and the CDS in adjudicating grievances.
The CF must recruit and retain sufficient, capable and motivated people—our sons and daughters. It is an organization where commanders lead by example, where the environment is free from harassment, intimidation, coercion of any sort, and where soldiers know that they are truly valued as individuals and that their rights, including the right to grieve, are scrupulously respected and enforced. This must be done transparently so as to sustain their trust and confidence and to demonstrate to those of us who observe from the outside that the Canadian values of fairness, impartiality, independence and justice are upheld by the military.
Although no armed forces want to foster a grievance culture, everyone needs to have the confidence that soldiers may, as required on some rare occasions, submit a grievance to someone in authority if they feel that they have been unfairly treated. Soldiers will also have the trust that they will be listened to and that, acting on the expert independent advice of a civilian body such as the grievance board, their grievances will be dealt with properly and promptly by someone in command. At present this is lacking. For the sake of our soldiers, sailors and air persons, who are now serving the nation in many places around the world under exacting and sometimes perilous conditions, the National Defence Act must be urgently amended to ensure that their ‘right to grieve’ is not an empty gesture.
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Military grievance: Setting it right if we got it wrong
Col Guy Maillet, Director General Canadian Forces Grievance Authority
There are mistakes in retired colonel Michel Drapeau's article about the military grievance system that the Canadian Forces Grievances Authority would like to take the opportunity to correct.
A fair, equitable, comprehensive, timely, and effective complaint system is the goal of the military and civilian staff of the Canadian Forces Grievance Authority. The Canadian Forces grievance system is the product of statute and regulations in the form of the National Defence Act and the Queen’s regulations and orders. The Grievance Authority understands the important contribution to good morale by resolving complaints as early and informally as circumstances permit, and by providing support to members during the process. Ensuring that members receive help in filing grievances is specifically addressed in the Queen’s regulations and orders, which require that where a member “requests assistance in the preparation of a grievance, the commanding officer shall detail an officer or non-commissioned member to assist in its preparation.”
To avoid the perception of conflict of interest and to uphold legal fairness, the regulations specifically state that, in cases involving a commanding officer and subordinate, the commanding officer must refer the grievance to the next superior officer who can deal with the subject matter and render a decision. As with the civilian grievance processes, the Grievance Authority reviews each matter based on submissions from the griever and other relevant parties. However, each matter may ultimately be subject to judicial oversight from the Federal Court.
In his article on the military grievance system, Mr. Drapeau makes allegations of bias against the Grievance Authority. The Grievance Board is an independent body with the responsibility of reviewing files dealing with designated issues and providing findings and recommendations to the chief of the defence staff. Contrary to Mr. Drapeau’s claim that the Grievance Board reviews “but a minuscule number of grievances,” the board reviews 40 per cent of all grievance files submitted. In addition, as required by regulation, final decisions on files where the Grievance Board provided findings and recommendations can be rendered only by the chief of the defence staff—not by the Canadian Forces Grievance Authority as indicated in Mr. Drapeau’s article.
The Grievance Authority has also taken important strides in being more timely and responsive, including the elimination of a backlog of grievances. In fact, thanks to streamlining the way files are handled, the Grievance Authority is on target to process 300 grievances this year—a 40 per cent increase over last year. This is being done without sacrificing full and fair consideration of what are very important matters to members of the Canadian Forces. Of note, over the past three years, final decisions on grievances have resulted in some form of positive outcome for the griever in more than 40 per cent of cases. The Crown (and the Canadian Forces) can do wrong, and the grievance system is there to help set it right if that happens. aking authority to ensure jurisdiction before dealing with the merits of the matter being grieved.
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Jurisdictional issues arising in grievance files reviewed by the Canadian Forces Grievance Board
The Operations Directorate
Canadian Forces Grievance Board
These issues are referred to as “preliminary issues” because they must be addressed by the decision making authority to ensure jurisdiction before dealing with the merits of the matter being grieved.
Such issues have the potential to cause a grievance to be rejected, either at the Initial Authority level or at the Final Authority level or both. For this reason, it is important that grievors understand how to address these matters.
Read the full article
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EX Maple Shore: an OJT experience
Lt(N) R. Warman
Deputy Judge Advocate,Central Region
On the Job Training (OJT) can conjure up a lot of possible images. As a reservist with the Office of the Judge Advocate General (JAG), when I learned that I’d be doing my "provide operational legal advice" on EX Maple Shore at Fort Frontenac in Kingston in November, my mind wandered back to friends and time well wasted during my undergrad at Queen’s. Walking along the downtown waterfront, White Mountain Ice Cream, Cards Bakery, and the famous Frank’s fish and chips where Frank the proprietor could simultaneously haul your fish out of boiling oil with his bare fingers and still manage not to spill any of the ash from the omnipresent cigarette in his mouth.
Back to the point, however, this performance check is meant to demonstrate that JAG officers can i) inform a Commanding Officer of the role and status of a legal officer; ii) provide advice on Rules of Engagement (ROE), use of force, or other operational law topic; and, iii) provide a briefing on these or other legal matters.
EX Maple Shore starting on Remembrance Day meant traveling to Kingston in uniform after attending a morning ceremony. This meant I got to experience first-hand the "public transit uniform effect," something I will admit to having been doubtful about when it was previously described to me by a Chief Warrant Officer friend. Sure enough, passengers on the train tried to give a wide berth to the guy in the uniform.
As I had been eager to push my training forwards, I had short notice of going on EX Maple Shore and this meant cramming my refresher studies on the law of armed conflict, operational law, and EX-specific readings into a hectic day and a half from what ideally would have been a longer prep period. En route to Kingston, I felt reassured for the captains on the course, the Canadian Forces (CF) generally, and the good people of West Isle that EX Maple Shore was intended to help that my stint as Legal Advisor would be guided by the steady hand of DJA Kingston’s Major Weaver.
After lay-of-the-land discussions with Maj Weaver the night of my arrival, I was immersed head-first the next morning into the give’r world of CF operational planning and everything that entails. What were the goals and permitted actions under this UN Chapter 7 mandate? Where and how did we fit in with our coalition partners? Which territory would be recommended upstairs for the next move to help consolidate the CF’s ongoing efforts in West Isle (why does nobody apparently ever pick Artibonite - they actually asked for us there...)? Much of this early discussion among the syndicates I was assigned to involved largely tactical and operational questions, so I was there largely as a resource until they had more fully developed plans.
Later on, Maj Weaver and I offered helpful suggestions such as: “If you want to conduct operations on West Isle proper, but your ROE only permit you to operate in their water and airspace, you may want to ask for an amendment to that.” Or, how to go about obtaining further amendments to permit Electronic Counter Measures/e-warfare in a more robust manner for targeting and counter-Improvised Explosive Device activities. The adage that ‘your friendly JAG offers good advice, not always good news’ came into play, however, when we had to tactfully suggest that drug runners rumoured to be funding the insurgent attacks were likely to need a law enforcement instead of a military response.
Overall, the experience taught me a number of things, from a basic understanding of the interaction between JAG and other CF members, from remembering to say "I don’t know but I’ll try to find that out for you," to realizing just how much work goes into operational planning. It was a busy, deep-end learning experience so I’m glad that Maj Weaver was there with the water wings when it looked like I might be going under. (I knew I could work a Navy reference into my Army-EX account somehow.)
During the hour or so I had before running off to catch my train home, I managed to confirm that White Mountain Ice Cream is not open 24/7 in November, that some pale pretender to their ice-cream throne has opened up near them, and sadly, that Cards Bakery does still sell out of their cinnamon buns if you don’t get there early enough.
Lt(N) Richard Warman’s next OJT mission is to catch a lift with Harm out to CFB Esquimalt to participate in a court martial
National Military Law Section
National Military Law Section
Chair
Andrew E. Appolloni
Office of the Judge Advocate General |
Vice-Chair
Gilles LeVasseur
Office of the Judge Advocate General
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Treasurer
Eric Weaver
Office of the Judge Advocate General
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Secretary
Lucie Levesque
Canadian Forces Grievance
Board
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Past Chair
Martin Pelletier
Office of the Judge Advocate General
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Staff Liaison
Rachelle Watson
Canadian Bar Association
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Military Law Section Branch Chairs
Nova Scotia
Heather Burchill
Merrick Jamieson Sterns Washington & Mahody |
National Military Law Section Executive Members
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Executive Member
Randall W. Callan
Office of the Judge Advocate General
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Executive Member
Sara L. Collins
Office of the Judge Advocate General
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Executive Member
Patrick T. Crocco
Office of the Judge Advocate General
Department of Justice Canada
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Executive Member
Zorica Guzina
Michel Drapeau Law Office
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Call for papers – new essay contest for students
The Law School Essay Contest has been established by the Military Law Section of the Canadian Bar Association to promote and reward interest in military law topics in Canadian law schools.
View full contest details
Message from the Editor
Capt Patrick Crocco
Deputy Judge Advocate, Central Region
This issue has some excellent contributions on several issues relevant to military law. However, we are looking for further contributions on either the subjects raised by the contributions in this issue or other subjects of relevance to military law. Aspiring and established writers alike can take advantage of the opportunity to see one’s name in print and to reach those members of the CBA with an interest in the activities of the Military Law Section by providing an article on a topic related to military law. The subject matter can be discussed in advance if required. Readers of this issue will note both the variety of topics covered by contributors and the varying length of published articles.
Do send me a note if you wish at: patrickcrocco@hotmail.com.
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