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During the 1998 CBA Canadian Legal Conference in St. John's very informal discussions between military lawyers and Mr. John Hoyles, CBA Executive Director, took place about the possibility of creating a Military Law Section.

Those discussions sowed the seeds of the idea of a Military Law Section.

Subsequently, for the first time ever, thanks in a large part to the Government and Public Sector Lawyers Conference's initiative on reducing fees for Government lawyers, all Regular Force military lawyers from the Office of the Judge Advocate General (JAG) joined the CBA in January 1999.

The reason for joining was multifold. First, by joining the CBA the JAG lawyers viewed their membership as creating an important and new opportunity to develop professionally and interact with not only civilian practitioners of military law, but also with civilian practitioners in general. Many of the JAG lawyers participate in military, non civilian, institutions which are interested in military law, or participate in foreign civilian/military institutions which are concerned with aspects of military law. However, in Canada there does not currently exist a forum where civilian and military persons interested in military law can share, exchange or develop ideas relating to military law. Second, as Federal Government lawyers, many JAG lawyers work outside the jurisdiction of their home Provincial Law Societies. Membership within the CBA provides a vehicle through which the JAG lawyers will be able to make a contribution to the legal profession. Finally, the membership of the JAG lawyers creates an opportunity to develop and sustain an awareness of the little known substantive area of military law.

MISSION STATEMENT

The preliminary mission of the Military Law Section is to create a forum within which civilian and military practitioners, academics and jurists may share, exchange, develop and study issues of military law.

MILITARY LAW: A UNIQUE SUBSTANTIVE BODY OF LAW

The substantive body of law which defines the rights, authority, obligations and duties of the Canadian Forces and Department of National Defence, its members and servants is referred to as Canadian military law.

Military law incorporates a number of distinct military aspects of established substantive bodies of law practiced by civilians such as tort law, intellectual property, employment and human rights law, air law, maritime law, international law, etc. Importantly, the core areas of practice, within military law, concern the Military System of Justice and governing the conduct of military operations, or "Operational Law". These two areas do not exist outside the substantive area of Military Law.

UNIQUE MILITARY ISSUES INVOLVING SUBSTANTIVE BODIES OF LAW PRACTICED GENERALLY

Unique military issues may be found in the following legal disciplines:

Employment and Human Rights Law: the establishment of a "bona fide occupational requirement" within the context of a prima facie case of maintaining policies which discriminate on prohibited grounds given the military occupational requirement that all Canadian Forces members be capable to deploy and use weapons throughout the world, under various geographic conditions in times of peace and war.

Pension and Finance Law: the interplay between release from the Canadian Forces for disciplinary reasons in accordance with the Queens Regulations and Orders made pursuant to the National Defence Act and the quantum of pension awarded under the authority of the Canadian Forces Superannuation Act; the legal procedures required to garnishee the salaries of Canadian Forces members in accordance with the National Defence Act and Queens Regulations and Orders; the pension implications of Canadian Forces members who are injured while on duty outside of Canada in "special duty areas", such as the Federal Republic of Yugoslavia.

Tort Law: the nature and scope of the statutory limitation, as found in the National Defence Act, regarding the commencement of civil action against a Canadian Forces member for acts or omissions performed in the execution of his/her duty.

Maritime Law: the rights of Her Majesty to claim salvage where salvage services are provided by one of Her Majesty's warship, the nature of the exemption from waterway/seaway tolls used by Her Majesty's warships, the authority of members of the Canadian Forces to enforce provisions of the Coastal Fisheries Protection Act and Fisheries Act.

Air and Space Law: (e.g., legalities and implications of enforcing United Nations Security Council Resolutions with air-to-air weapons against unauthorized aircraft in international air space, legalities of requesting overflight and landing rights for Canadian Forces aircraft in foreign jurisdictions).

Intellectual Property and Property Law: legalities relating to the licensing of artificial blood production whose sole intellectual property rights in the world rest with the Canadian Forces/DND, contracting for the ownership/leasing of warships, submarines and aircraft and development with defence industries and foreign national defence organizations.

International Law: participation at the Rome Conference seeking to create the International Criminal Court (ICC); the nature and scope of defence of superior orders under the Rome Statute of ICC July 1998; the Law of Armed Conflict (LOAC).

Legislative drafting: with the coming into force of SC Chapter 35 1998 the National Defence Act has undergone the most significant revision in 50 years. Consequently, there are a number of issues relating to the legal implications of some of the more significant amendments including the requirement for the National Defence Act to be reviewed every five years.

THE CORE OF MILITARY LAW: MILITARY JUSTICE AND OPERATIONAL LAW

The two central pillars of military law concern the military system of justice and operational law.

Unlike the above noted substantive, areas of law which are parallel to civilian areas but practiced in a military context, the areas of military justice and operational law are not practiced within a civilian context but rather concern legal issues of purely military activities and practiced exclusively within the substantive body of military law.

MILITARY JUSTICE

Within the National Defence Act, the Code of Service Discipline creates a number of federal military offences, defines the jurisdiction (persons, geography, time) of who may be charged with committing those offenses and establishes the procedures within which the accused will be tried.

As noted, the system of military justice is situated solely within the substantive area of military law. In discussing the need for a military system of justice that is internal to the Canadian Forces and not integrated within the civilian criminal justice system Chief Justice Lamer of the Supreme Court of Canada explained in R v. Généreux in 1992:

"The purpose of a separate system of military tribunals is to allow the Armed Forces to deal with matters that pertain directly to the discipline, efficiency and morale of the military. The safety and well being of Canadians depend considerably on the willingness and readiness of a force of men and women to defend against threats to the nation's security. To maintain the Armed Forces in a state of readiness, the military must be in a position to enforce internal discipline effectively and efficiently. Breaches of military discipline must be dealt with speedily and, frequently, punished more severely than would be the case if a civilian engaged in such conduct. As a result, the military has its own Code of Service Discipline to allow it to meet its particular disciplinary needs. In addition, special service tribunals, rather than the ordinary courts, have been given jurisdiction to punish breaches of the Code of Service Discipline. Recourse to the ordinary criminal courts would, as a general rule, be ina dequate 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 accordance with the National Defence Act, the JAG is entrusted with the superintendence of the administration of military justice, particularly with the general supervision of the Director of Military Prosecutions and the Director of Defence Counsel Services. The JAG is responsible to the Minister of National Defence in the performance of the JAGs duties and functions.

Existing within the system of military justice is a body of law based on statute and court decisions which defines the substantive offenses under the Code of Service Discipline, Courts Martial composition and procedure and the Military Rules of Evidence.

Some of the legal areas of interest for Canadian military law include issues relating to:

• the impact of recent amendments to the National Defence Act on Courts Martial and Summary Trial Procedure, the Convening of Courts Martials, sentencing, the laying of charges and Prosecutorial discretion.
• the independence of military trial judges.
• the legal bases to prosecute former members of the Canadian Forces for alleged offenses committed while serving in the Canadian Forces.
• the constitutional bases which allows a presiding officer (who is neither a judge nor lawyer) at Summary Trial to impose a sentence of detention.

OPERATIONAL LAW

Operational law is that body of law dealing with planning and executing the deployment of the Canadian Forces in both domestic and international military operations. Although it incorporates relevant aspects of traditional legal disciplines such as international law, criminal law, tort/negligence law, administrative law, contract law and so on, it often transcends these disciplines because of the unique nature of military operations. The function of operational law is to enable the military legal advisor to provide immediate, accurate and relevant legal advice to military commanders, thereby, contributing to the overall success of the military mission.

Both domestic and international military deployments present a multitude of legal issues relating to the nature and scope of CF involvement in the particular operation. The two most frequent, important and challenging legal issues in any operation are:

• Determination of the legal basis which authorizes the CF to be involved in an operation; and
• What level of force is authorized to permit the CF to achieve its mission. The focus of this issue is controlling the CF's use of force through Rules of Engagement.

These issues often require detailed understanding of domestic legislative instruments, primarily federal acts, Orders-in-Council and inter-departmental Memoranda of Understanding. They also require detailed knowledge of customary and codified international law, primarily the Laws of Armed Conflict (Hague Rules, Geneva Conventions and Additional Protocols) and the Charter of the United Nations