JAG - legal nonchalance

Michel W. Drapeau

Ottawa. On May 27, 2014 the Chief of the Defence Staff (CDS), General Thomas Lawson, accompanied by  the Judge Advocate General (JAG), Major General Blaise Cathcart, appeared before the parliamentary Standing Committee on National Defence (SCOND) to discuss the disturbing high incidence of sexual assaults. This matter was brought to the fore by the publication in a national magazine of a scathing 17-page special report titled "Our Military's Disgrace" reporting disturbing levels of sexual assaults in the Canadian Armed Forces. 

No apparent problem?

Following the opening comments made by the CDS, the Honorable Jack Harris, who is both acting as Vice-Chair of the SCOND and the Defence Critic of the Loyal Opposition in the House of Commons, asked General Lawson whether he was prepared to admit that there were a problem of sexual assault in the Canadian military, a problem which was reported upon in an exhaustive fashion in 1998 when MacLean’s magazine published a trilogy of articles about rape in the military. Here is an excerpt from that transcript:

•  Mr. Jack Harris: General Baril, at the time, the CDS (1997-2001), admitted that we have a problem. Are you prepared to go that far and suggest that we [still] have a problem? Your explanation seems to be that all the procedures seem to be in place.
•  Gen Thomas Lawson: No, I believe that any organization like ours that requires men and women to work in close quarters, both in offices and out in operations, will always deal with problems of sexual misconduct. I think that there is more to be done in that area. What I would like to say is that since 1998 through to 2014 the characterization of very little being done would be inaccurate.

In a subsequent exchange, Mr. Harris suggested that the military still had a problem.

Three years behind in their disclosure obligations

Later on during the proceedings both the CDS and the JAG were asked to explain why, over the course of the previous three years, the military had failed to file reports annually on the operation of the military justice before the Minister of National Defence, the House of Commons and the Senate of Canada as stipulated by subsection 9.3(2) of the National Defence Act. The transcript reads:

•  Mr. Jack Harris: Does it bother you that we don't have reports for 2012, 2013, 2014, and we're relying on a report that's now three years old?
• Gen Thomas Lawson: I have the judge advocate general with me, who can update you.

• Mr. Jack Harris: General Cathcart, you will note from my questions that I have a concern about reporting. General Lawson seems to indicate that the reports for 2012, 2013, and 2014, have been filed either with him or with the Minister which would mean that the minister hasn't tabled them. Where exactly are those reports at the moment? Will they be tabled in the House as required by the statute?
• MGen Blaise Cathcart: Thank you for that question. I was confused about the question and the response. If you're talking about the Annual Reports that I'm responsible for as Judge Advocate General they are not with the Minister. Those are my reports. They are still being worked on and they're close to completion. I take the full responsibility for not meeting the timeline as set out to do it on an annual basis. I can go into great detail as to reasons why. The short answer is that there were many other equal military justice priorities, not the least of which you're familiar with, Mr. Harris, dealing with legislation such as Bill C-15.  [My underline]

In his response the JAG claims that during a three-year period he was unable to meet a statutory requirement to complete an annual report whose contents are largely loaded with template information because of a hiatus of conflicting priorities, including his work with dealing with legislative changes to the National Defence Act. The irony is that the JAG’s response was addressed to a distinguished parliamentarian who has worked exhaustively on Bill C-15 which modified the Code of Service Discipline as contained in the National Defence Act while carrying out his overall responsibility within his party caucus for criticizing government defence policies and suggesting improvements and presenting alternatives to government’s policy and legislative agenda. More than anyone else, Mr. Harris knows that the business of passing legislation belongs to parliamentarians not members of the armed forces.

Conclusion

It is astonishing or puzzling to hear that the JAG, who oversees the superintendence of the Canadian Military Justice System, and who is also the pyramidal superior to more than 168 military lawyers, to claim that because of his legislative workload he has been delayed three years to meet his statutory reporting obligations to Parliament.  This is particularly disturbing because the military justice system is currently in the news spotlight about its incapacity to deal with increased incidence of sexual misconduct in the Canadian military. 

Civilian control of the military through the medium of elected representatives is one of the cornerstones of a working democracy. To maintain accountability of the military to the “people’’ there is, however, a fundamental and essential requirement for the armed forces to respect the law to its fullest extent.  In our system of government, parliamentary control cannot be effected unless the military meets their post-facto reporting obligations to the fullest extent possible. 

Editor's note: CBC coverage from Nova Scotia appears here.MGen Catchart faces examination by Nova Scotia Barristers' Society