Saturday, May 27, 2017

Robust debate in Ottawa

The Lawyer's Daily, a Canadian legal paper, has this account of divergent views as between the Military Law Section of the Canadian Bar Association and the Office of the Judge Advocate General at a well-attended military law conference in Ottawa. The CBA's comments to the JAG's Court Martial Comprehensive Review Team urged that more attention be focused on summary trials, rather than courts-martial, since summary trials account for the lion's share of military justice cases.

Friday, May 26, 2017

CBA awakens to need for civil society and parliamentary involvement in military justice reform

Pursuant to his statutory authority for the superintendence of the administration of the military justice system under section 9.2 of the National Defence Act, on July 20, 2016 the Office of the Judge Advocate General commissioned a Court Martial Comprehensive Review of the Court Martial System [CMCRT]. The Terms of Reference for this review state that “the purpose of this comprehensive review is to conduct a legal and policy analysis of all aspects of the CAF’s court martial system and, where appropriate, to develop and analyze options to enhance the effectiveness, efficiency, and legitimacy of that system.”

The CMCRT, headed by Colonel Robin Holman, must assess the current court martial system’s effectiveness, efficiency and legitimacy to determine whether changes are required or advisable to promote greater systemic effectiveness, efficiency or legitimacy. An online public consultation took place from October 11 to November 7, 2016. The CMCRT team travelled extensively to foreign lands to examine their military justice structure and practices and to consult with governments, academic, and legal communities.

The final report to be submitted by the CMCRT is to be treated as a document that is subject to solicitor-client privilege.

CBA ISSUES CRITICAL REPORT REJECTING RAISON D'ETRE OF CMCRT

On March 31, 2017 the Military Law Section of the Canadian Bar Association [CBA] issued a most critical review of the very existence of the CMCRT and its modus operandi. which is reproduced below. By bringing a fresh, independent and credible perspective to this public debate, the CBA has raised a number of disapproving remarks concerning the validity, utility and dependability of this JAG-initiated review in the pursuit of an improved, modernized military justice system.                                       

Court Martial Review


Submission of the Military Law Section of the Canadian Bar Association

March 2017

I. INTRODUCTION


      The Judge Advocate General (JAG) has directed the Deputy Judge Advocate General for Military Justice (DJAG MJ) to conduct a comprehensive review of the Canadian Armed Forces (CAF) court martial system. The purpose of this comprehensive review, found in its May 2016 Terms of Reference (ToR), is “to conduct a legal and policy analysis of all aspects of the CAF’s court martial system and, where appropriate, to develop and analyze options to enhance the effectiveness, efficiency, and legitimacy of that system.” The Court Martial Comprehensive Review Team (CMCRT) is then to “assess whether changes to any features of this system are required or advisable in order to promote greater systemic effectiveness, efficiency, or legitimacy.” The comprehensive review was to commence no later than July 15, 2016, and the CMCRT must present its final report to the JAG no later than July 15, 2017.

The Canadian Bar Association is a national association of over 36,000 lawyers, law students, notaries and academics, and our mandate includes seeking improvements in the law and the administration of justice. The CBA’s Military Law Section (CBA Section), consisting of lawyers from across the country who specialize in military law, appreciates the opportunity to contribute its views to the comprehensive review.

II. SCOPE OF THE REVIEW


Although the CBA Section believes that this review pursues a legitimate goal, we see its scope as too limited. Ideally, we recommend an open and comprehensive Parliamentary review of the military justice system, with ample opportunity for public input and scrutiny, whose report is made easily accessible and publicly available.

In the context of the current review, the court martial system represents only a portion of Canadian military justice as one of two forms of service tribunals under the National Defence Act1 (NDA). The other is the summary trial process, where about 95% of disciplinary cases are handled. However, the two processes are so interconnected that changes in one will almost invariably have an impact on the other. For that reason, we believe that any review conducted as though the two systems operate in silos risks missing the target.

A more thorough review of the Canadian military justice system and how it provides “processes that would assure the maintenance of discipline, efficiency and morale of the military” is an important and worthwhile endeavour that should, at a minimum, encompass both forms of service tribunals. The overwhelming majority of charges laid under the NDA are decided at summary trials presided over by Commanding Officers, Superior Commanders or Delegated Officers, and those trials should be included in this review.

Bill C-71, introduced in the House of Commons about two years ago, proposed substantial reforms to Canadian military justice. It included drastic modifications to the summary trial system, and adapted the Canadian Victims Bill of Rights (CVBR) to the Canadian military justice system. Bill C-71 died on the order paper with the 2015 federal election. No other iteration of Bill C-71 has since been introduced, and we suggest it would be appropriate to also include the main elements of that Bill in the scope of the current review.

A review of the military justice system, not just of the court martial system, ought also to address issues raised by numerous commentators, such as the jurisdiction of summary trial presiding officers and the training of assisting officers. A truly comprehensive review should involve the participation of interested Canadians, academics, practitioners and service personnel. A comparative review of foreign jurisdictions would also enhance this research.

While we appreciate that the JAG is statutorily mandated with “the superintendence of the administration of military justice in the Canadian Forces” and must “conduct, or cause to be conducted, regular reviews of the administration of military justice”, Parliament must decide what military justice system is best for Canada. A review of the administration of military justice by the JAG might well lead to proposed fundamental modifications to the Code of Service Discipline. For these reasons, we suggest that a thorough review be conducted in public by a Parliamentary body, with sufficient time for thoughtful and objective analysis. In particular, this would ensure better and more transparent consideration of how any reforms would be implemented.

III. PUBLIC CONSULTATION


The CMCR ToR stipulates that the Canadian public must be given a reasonable opportunity to provide written input on the subjects described in the ToR and that the public consultation phase was to be completed no later than December 15, 2016. The CMCRT was also authorized “to conduct further consultation with any member of the Canadian public who has a demonstrable expertise in a subject that is relevant to the comprehensive review, at the sole discretion of the DG CMCRT.” The ToR allowed for a possible consultation phase of five months, from July 15 to December 15, 2016.

The actual public consultation phase was open from October 11, 2016 to November 7, 2016, just 28 calendar days. If the goal is to encourage as much public engagement and feedback as possible, that period was too short for meaningful participation. In general, we believe there has been inadequate public consultation on the topics at issue, and this should be remedied.

The JAG website also contains a Discussion Board enabling the public to post comments. It now reports that the “CMCRT received a total of 33 submissions from 32 individuals, and one submission from an institutional stakeholder (the Federal Ombudsman for Victims of Crime)”.

Among the individual public comments on the Discussion Board is a lengthy comment, strongly supportive of the current military justice system. The commentator refers to his extensive experience in the military, and gives his name – the same name as a Colonel presently occupying the role of Director of Military Prosecutions, who forms part of the JAG command team (see the JAG website). If this is more than a simple coincidence, and the comment is actually from the Director of Military Prosecutions, we question why it would be included on the public Discussion Board. A legitimate public consultation process must be transparent and reflect the feedback received from the public during the review process. There is no problem if individuals with specific roles or expertise in the military justice system or other organizations are also heard, but we suggest simply that those roles and expertise should be made explicit. This practice was followed for input received from the Federal Ombudsman for Victims of Crime, noted above, posted with the public comments.

IV. STRENGTHENING MILITARY JUSTICE IN THE DEFENCE OF CANADA ACT


In 2013, the Strengthening Military Justice in the Defence of Canada Act5 (previously Bill C-15) amended the NDA in significant ways. However, most of the Bill has not yet come into force, specifically intermittent sentences (s. 24), summary trials (ss. 35 and 36), Division 7.1 sentencing, which includes new provisions on victim impact statements and absolute discharges (s. 62), and criminal records (s. 75).

Parliament passed this legislation almost four years ago. Resources are now being dedicated for the current review that includes several areas (punishments, sentencing, special needs of victims) also covered in that legislation.


The CBA Section suggests the reasons for this delay and overlap should be explained to the public. The JAG should disclose reasons for the delay in implementation of the legislation, and any plans for coming into force of these important provisions of the Act.

V. FINAL REPORT


The CMCR ToR specify that “[t]o the greatest extent possible, the final report of the CMCRT shall be unclassified, and shall not require any protected designation. However, the report shall be marked and treated as a document that is subject to solicitor-client privilege.” (emphasis added) An open and transparent review process would assist in ensuring public support and demonstrating respect for the rule of law, the disciplinary needs of the Canadian Forces and the individual rights of Canadians subject to the Code of Service Discipline. 


      Exceptions can occur when necessary for legitimate public policy reasons, but justice is generally expected to be conducted in public in Canada. While the CBA is a staunch defender of solicitor-client privilege, it seems odd that the JAG would request public participation and input to a review that will ultimately produce a report not publicly available. The ToR do not specifically state what actions will result from the final report.

In our view, the ensuing report on military justice should be available to the public. We expect that the Minister of National Defence, the CAF and the Canadian public would have less confidence in our military justice system if the study and its final report are kept from the very public asked to participate in the review process.

VI. CONCLUSION


The CBA Section supports the JAG in his statutory duties. We also believe that fundamental questions underpinning discussions of military discipline and military justice must be debated in an open and public forum. A joint Parliamentary committee would possess the necessary resources and competence to review these issues fully and share any findings with the Canadian public. The goal should ultimately be legislation that ensures Canada’s military justice system both supports the discipline, efficiency and morale needs of the military and ensures that justice is done in the defence of Canada.

Memorial Day, Monday, May 29, 2017

Ball's Bluff National Cemetery, Leesburg, Virginia

Meanwhile in Peshawar

While attention has focused on the International Court of Justice case concerning Indian national Kulbhushan Jadhav, there is other litigation in the Pakistani courts over the military courts. A new case has been filed in Peshawar High Court with respect to the conviction and death sentence of a former Pakistani Taliban spokesman. As reported here:
Muslim Khan’s counsel, Advocate Tariq Asad, put forward different objections to the trial of Khan under the Army Act. 
He said that Khan was taken into custody by security forces in Sept 2009 after which nothing was known about him until his family came to know about his conviction through newspapers in Dec 2016. 
The counsel said that the family had not been provided record of the trial proceedings and it was not known under what charges Khan had been sentenced to death. 
“They submitted an application to the military court of appeal seeking details of the trial proceedings, but no reply was given to them,” argued Asad. 
He said that Khan was not provided a counsel of his own choice and was denied a fair trial which was his fundamental right under article 10-A of the Constitution. 
The counsel said that the convict had remained in custody of security forces for seven years and it was not known under what conditions he had been kept. 
“Apparently the proceedings of the military court were one-sided,” he alleged.

Changes of command

On Wednesday morning, there was a double-header at the U.S. Court of Appeals for the Armed Forces. First, long-time Clerk of Court William A. ("Bill") DeCicco retired (and was succeeded by Joseph R. Perlak). Then there was a gavel-passing ceremony marking the transition from retiring Chief Judge Charles E. ("Chip") Erdmann to incoming Chief Judge Scott W. Stucky. Three former Chief Judges* -- Walter T. Cox III, Susan J. Crawford and Andrew S. Effron -- and former Clerk of the Supreme Court of the United States Major General William K. Suter were among the guests who filled the courtroom.

Congratulations to all concerned -- including family. On to the next chapter. For those who are retiring that means golf and Montana, respectively; for those who are staying on it means another batch of cases. Chacun à son goût.

* Editor's query: what is the collective term for a group of chief judges? "A gavel of chiefs"? "A case of chiefs"?