For criminal lawyers – both those working in prosecution and those working in defence – summer is the season for professional development. The lawyers of the Office of the Judge Advocate General (JAG) are no exception: this is the time for our prosecutors to meet and exchange ideas with colleagues who share the same interests.

In fact, it is during these training sessions that JAG lawyers are able to see the interest that the military justice system raises among our colleagues working in the civil courts. There are always plenty of questions – before what court do you plead your cases? Where is this court located? What type of offences do you prosecute? Do you follow the same proceedings? Are your judges military members? How many military prosecutors are there? What is your territorial jurisdiction? Who hears your appeals? Do you have prisons? If so, where are they located?

All of these questions illustrate the extent to which the military justice system is a source of curiosity and to which it remains a mystery for “civil” legal officers. The lawyers of the Canadian Forces’ (CF) Office of the JAG work in various sectors that deal with almost every aspect of the law: administrative law, contracts, international law, law of armed conflict, operational law and so on.

Almost half of JAG officers work in Ottawa; the rest are scattered across Canada and abroad. Some counsel commandants directly on military bases or in a theatre of operations. The purpose of this text is to present the realities of being a JAG officer working specifically in the military justice system, whether in prosecution or in defence.

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(available only in French)

Even though the first ombudsman was appointed in 1998, and the Office of the Ombudsman has been fully operational since 1999, there is still a lack of understanding of the role the ombudsman actually plays – and should play – within the DND/CF organization.

In particular, there appears to be a misunderstanding of what the ombudsman’s role should be in receiving and reviewing complaints brought by CF members who do not feel their concerns or grievances were given due consideration by the CF chain of command when the matter was reviewed in the CF Redress of Grievance process.

This article will discuss, in general, the role of an ombudsman and, in particular, the role of the DND/CF Ombudsman, including the ombudsman’s involvement in reviewing matters in which the CF member has received a decision by the final authority in the CF Redress of Grievance process.

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The purpose of this article is to provide the rationale and outline of the minister of national defence-sponsored amendments to the Aeronautics Act, known as Bill C-7, An Act to amend the Aeronautics Act, which is currently before Parliament.

The minister-sponsored portion of C-7, “Military Investigations Involving Civilians,” is Part 2 of the bill. In order to understand the rationale behind Part 2, it is worthwhile to appreciate the relatively recent developments in Canada regarding the investigation of civil aviation occurrences.

In Canada, the Transportation Safety Board (TSB), which is enabled by the Canadian Transportation Accident Investigation and Safety Board Act (CTAISB Act), investigates civil aviation occurrences. The board, through its enabling legislation, replaced the previous investigative body, the Canadian Aviation Safety Board.

An independent body, the board investigates transportation occurrences for the purpose of making findings as to their causes and contributing factors. The board identifies safety deficiencies and makes recommendations in order to eliminate or reduce them. All of its reports and findings are made public.

To underscore the fact that findings are made for the purposes of enhancing safety, the TSB website sets out that:

“In making its findings as to the causes and contributing factors of a transportation occurrence, it is not the function of the Board to assign fault or determine civil or criminal liability. However, the Board does not refrain from fully reporting on the causes and contributing factors merely because fault or liability might be inferred from the Board’s findings. No finding of the Board should be construed as assigning fault or determining civil or criminal liability. Findings of the Board are not binding on the parties to any legal, disciplinary, or other proceedings.”

The CTAISB Act also contains additional provisions to allow its investigations to be conducted in a complete manner for the purposes of enhancing safety, including:

1. making “on-board recordings” (defined as a recording of voice communications originating from or received on or in the flight deck of an aircraft that is made using recording equipment that is intended to not be controlled by the operating personnel on the flight deck) privileged;
2. not allowing communications records obtained under the Act to be used against the persons making the communications, i.e.,: air traffic controllers and flight crew;
3. making statements given to the board privileged;
4. granting the board the power to make regulations protecting the identity of persons who report transportation occurrences; and
5. providing that board investigators are not compellable witnesses, nor is their opinion admissible as evidence in any proceedings.

While s. 14(3) of the CTAISB Act provides the board with exclusive jurisdiction over the investigation of transportation occurrences for the purpose of making findings as to the causes and contributing factors, there is an exception to the jurisdiction: the Department of National Defence.

In fact, the director of flight safety, part of the Air Force Organizational Structure, has a long history of performing flight safety investigations in the case of occurrences involving military aircraft.

In addition to the exception to jurisdiction as mentioned above, s. 18(1) of the CTAISB Act defines “military conveyance,” and s. 18(2) sets out that “the board shall not investigate a transportation occurrence that involves a military conveyance….” (while “military conveyance” includes modes of transport in addition to aircraft, Bill C-7 is confined to aircraft).

While there is provision for the board to investigate transportation occurrences that involve a military conveyance and a non-military conveyance, the Act is clear that the board has no jurisdiction over occurrences that involve strictly military conveyances.

Over time, it became apparent that s. 18(2) of the CTAISB Act operated as a disconnect. While board investigators have a number of statutory powers to assist them in conducting their investigations, no such powers were granted to director of flight safety investigators, notwithstanding that they had an absolute jurisdiction over the investigation of pure military conveyance occurrences.

While this may not have presented a problem in the days when all Canadian Forces aircraft were Crown-owned and -operated, the air force has increasingly made use of aircraft that have a civilian aspect, while still operating within the definition of a “military conveyance” (s. 18(1) of the CTAISB Act defines “military conveyance” as “an aircraft…. that is operated by or on behalf of the Department of National Defence, the Canadian Forces or a visiting force”).

Two examples of this trend include:

1. Canadian Forces flight training operations at Southport, Man., where a civilian contractor provides aircraft and civilian instructors for the training of Forces pilots. The aircraft, while civilian-owned, are painted in Forces livery; and
2. civilian contractors flying civilian-owned ex-military aircraft on training missions for Forces units.

This gives rise to the possibility of a scenario in which the director of flight safety has the sole jurisdiction to investigate a matter, but not the necessary investigative powers.

The CTAISB Act provides TSB investigators with extensive statutory powers. These powers, found at s. 19, include:

1. powers of search and seizure over anything relevant to the conduct of an investigation;
2. the power to seize an item and test it to destruction;
3. the power to prohibit or limit access to an area to preserve or protect anything involved in a transportation occurrence;
4. the power to compel a statement;
5. the power to copy documents;
6. the power to require a person to submit to a medical exam;
7. the power to require a physician to provide information concerning a patient; and
8. the power to cause the performance of an autopsy.

Section 35(1) of the CTAISB Act provides related offence provisions.

Part 2 of Bill C-7 is designed to remedy the current gap between the investigative jurisdiction of the director of flight safety and the investigative powers with regard to civilians currently available.

The bill accomplishes this by creating a defence-minister-designated Airworthiness Investigative Authority (AIA), and making it responsible for investigating “military-civilian” occurrences, with the same mandate as the board under the CTAISB Act. Section 3(b) of the Aeronautics Act makes the defence minister equivalent to the transport minister for the purposes of the Act for any matter relating to defence.

A military-civilian occurrence is defined as:

1.             any accident or incident involving
   
1. an aircraft operated by or on behalf of the Department of National Defence, the Canadian Forces or a visiting force, or an installation operated by or on behalf of any of the above that is designed or used to manufacture an aircraft or other aeronautical product, or that is being used for the operation or maintenance of an aircraft or other aeronautical product, and
2. a civilian; or
   
2. any situation or condition that the Airworthiness Investigative Authority has reasonable grounds to believe could, if left unattended, induce an accident or incident described in paragraph (a).

The authority may designate investigators. Both the authority and designated investigators have the same powers. In fact, the investigative scheme, as set out in Part 2, parallels that of the CTAISB Act. This approach ensures that the authority will have the same ability to conduct flight safety investigations as its TSB counterpart. It is also consistent with the approach taken by the director of flight safety since the advent of the TSB in 1989 – to conduct flight safety investigations in a manner consistent with the TSB. One example of this approach is the practice of making director of flight safety investigations public on their completion.

In conclusion, the passing of Bill C-7 will provide the director of flight safety with the ability to conduct flight safety investigations into military-civilian occurrences on the same footing as the Transportation Safety Board civil counterpart. This development will improve flight safety within the Forces and aviation in general, thanks to the sharing of information gleaned from flight safety investigations.

On June 27, 2007, the Office of the Assistant Judge Advocate General (Prairie Region), headquartered at the Air Division, hosted the Manitoba Bar Association’s Public Sector Lawyers Forum meeting.

Pictured in front of the Battle of Britain Tapestry are Adrienne Edmunds, Mary Ann Thompson, Glenn Jones, Marlo Jurkowski, Darrin Davis, LCdr Michele Geiger-Wolf, Julie Frederickson, and Maj Renee Wickler

As well as being a chance to meet with other lawyers advising in the public sphere, attendees also had the opportunity to become familiar with 1 Canadian Air Division/Canadian Norad Region Headquarters and to learn about the region’s vital role in maintaining Canadian, North American, and international security.

As part of this learning experience, attendees had the rare honour of touring the Air Operations Centre (AOC), the “war room” which oversees all air component military operations. The AOC was the site of the Air Force’s response on 9-11, and continues to be the command-and-control centre for the monitoring and defence of Canadian airspace. There was also a guided tour of the Air Command Museum’s artifacts and informative displays relating to Air Force service, including an exhibit on Flight Officer Andrew Mynarski, a Canadian Lancaster gunner who was posthumously awarded the Victoria Cross for bravery in the Second World War.

The meeting focused on the election of officers and a roundtable exchange discussing the effects of the mandatory Continuing Legal Education proposal in the public sector, with concerns identified unique to the practice of public sector lawyers – for example, the difficulties inherent when counsel are employed in jurisdictions other than their place of call. As well, those present took part in an exchange on the ethical dilemmas arising when the interests of a particular department are at variance with the public interest.

Overall the event was a great learning opportunity for all involved.

This article originally appeared in the February 2008 issue of Digest, the CBA Public Sector Lawyers newsletter.

The National Military Law Section will be holding its Annual General Meeting in Ottawa on May 30, 2008. All members are encouraged to attend!

Details:

Annual General Meeting
Friday, May 30, 2008
9 a.m.– 4:00 p.m. (Breakfast served at 8:30 a.m.)
Delta Ottawa, 361 Queen Street

Draft Agenda:

1. Welcome and introductions
2. Chair’s review of year’s activities
3. Upcoming projects and initiatives
4. Post review of Presentation with Chief Justice
5. Elections
6. Canadian Legal Conference in Quebec City
7. Other business

Please confirm your attendance to Candice Seguin at the CBA national office by May 15.

The National Military Law Section is seeking nominations for a Secretary and five Executive Members for the term Sept. 1, 2008 to Aug. 31, 2009.

For further details, see the Section website.

The Public Sector Lawyers' Forum is seeking nominations for the John Tait Award of Excellence, which is presented annually to honour, recognize and celebrate accomplishments of public sector lawyers in Canada.

I encourage you to submit nominations prior to the May 2 deadline.

For further information

A look at upcoming events of interest to Section members, including the Section Executive meeting, programming at the 2008 Canadian Legal Conference and Expo, and an address by Chief Justice Beverley McLachlin.

Section Executive Meeting (open to members)
Friday, May 9
9 a.m.-4 p.m.
Delta Hotel, Ottawa

Address from Supreme Court Chief Justice Beverley McLachlin
Topic: The role of the Canadian Forces in promoting the rule of law on the world stage.
Wednesday, April 30
11:30 a.m.-12:30 p.m.
Royal Canadian Air Force Officers’ Mess
Further details will be available on the Section’s website.

2008 Canadian Legal Conference and Expo
Aug. 17-19, 2008
Quebec City
Register now!

During 2008, Quebec City is pulling out all the stops to celebrate its 400th anniversary, and the 2008 CBA Canadian Legal Conference takes place in the heart of the festivities.

One of the great voices of contemporary literature and a remarkable Renaissance woman, Dr. Maya Angelou, will deliver the keynote address at the Opening Plenary.

Former prime minister Jean Chrétien and National Chief Phil Fontaine will offer up thought-provoking discussion as breakfast speakers before each of the morning sessions, while writer-columnist Chantal Hébert will share her influential and compelling voice on major national issues at the Closing Lunch.

French-Canadian artist Gregory Charles, a talented pianist, singer, actor and performer, will entertain with an exclusive live show.

When the day’s work is done, there’s still lots of time to visit some of Quebec City’s 400th anniversary activities, including visits to exhibitions, a variety of shows, and parades highlighting the city, its historic locations and the St. Lawrence River.

Section meeting (open to members)
Tuesday, Aug. 19
10:45 p.m.-12:15 p.m.
Quebec City Convention Centre

400 Years of the Military in Quebec and Canada (1608 – 2008)
Continuing Legal Education program
Tuesday, Aug. 19
2:30 p.m.-4 p.m.
Quebec City Convention Centre
Keynote speaker: J.L. (Jack) Granatstein

A number of you had indicated that you would prefer a return to a paper-based version of Sword and Scale. Due to National Sections Council policy, this is no longer possible, as all of the CBA’s newsletters are now published and distributed electronically. You will notice that a 'Printer Friendly' option button has been added so that you can print your own paper version.

During my three years as Editor, the greatest challenge was to get Sword and Scale back on a regular schedule. I would like to thank all the contributors for their efforts in meeting that challenge, since the sharing of knowledge is what this publication is all about.

It is now time for me to pass on the torch and, with my impending departure from Ottawa, this will be the last edition of Sword and Scale with me as editor. I encourage those of you who have an interest in the job to contact myself or Bruce MacGregor, the Section Chair. I will remain available to assist the new Editor in getting settled into the job, so you can still send your article submissions to me in the interim.

Rule of law is a term used in many contexts today. Some use it as a shield to protect the rights of individuals, while others use the phrase as a sword to pierce the liberties and safety of vulnerable persons or groups. It is a term found in the Charter of Rights and Freedoms and various statutes and regulations, yet its range or limits are not completely understood.

Within the Canadian Forces context, much of the raison d'etre of military operations is to enforce the rule of law abroad. Not to exert pressure on foreign nations to follow the laws of Canada, but to ensure that the domestic laws of the state are consistent with international law and human rights. In fact, the Office of the Judge Advocate General has a number of legal officers deployed in Afghanistan and the Congo to assist and mentor Afghan and Congolese authorities in establishing protocols and procedures which ensure that the rule of law is followed in military and civilian matters.

In keeping with these activities, the National Military Law Section is proud to announce that Chief Justice McLachlin will be addressing Section members on April 30 in Ottawa to discuss the important topic of the protection or enforcement of the rule of law internationally. Such presentation illustrates the importance and breadth of military law, which is often wrongly considered to be confined to only matters involving operational law issues such as rules of engagement and targeting. In fact, military law is quite varied, and it is practiced by uniformed legal officers and civilians. Examples of this are regularly offered at our annual Continuing Legal Education conferences in October and our professional development sessions.

As Chair of the Section, I want to stress the fact that military law is not practiced exclusively by military lawyers. I also want to encourage our civilian membership to spread this message in addition to actively participating in the leadership of the Section in the future. Our Section is one of the fastest-growing Sections within the CBA, and with this increased momentum I foresee military legal issues more at the cutting-edge of enforcing the rule of law and protecting the rights of individuals all over the world. I encourage your involvement and active participation in this evolution.