Tops of the Year

The Situation in Canada No. 9

​2021 was a tumultuous year for Canadian military justice.  It was not unique in that regard; 2020 was similarly turbulent, and we can safely anticipate that 2022 will continue this trend.
 
The calendar year was dominated by news media reports of allegations of sexual misconduct against various General Officers and Flag Officers (GOFO), including the former Chief of the Defence Staff (CDS), General Jonathan Vance, and his successor, Admiral Art McDonald.
 
Some of the allegations did not actually describe ‘sexual misconduct’, or even criminal or disciplinary misconduct.  Nevertheless, there was a tendency by news media to group largely disparate allegations together based upon the rank of the subject of the allegations.  Consequently, concerns about sexual misconduct dominated the narrative of military justice in Canada.
 
However, the obsession with ‘scandals’ involving GOFO should not distract from the variety of other developments involving military justice in Canada in 2021, including:

• Appeals to the Court Martial Appeal Court of Canada (CMAC) relating to the independence of military judges;
• An appeal to the CMAC (and forthcoming appeal before the Supreme Court of Canada) regarding the extra-territorial application of the Canadian Charter of Rights and Freedoms (Charter);
• The Third Independent Review of the National Defence Act (NDA) by former Supreme Court of Canada Justice Morris Fish;
• Yet another ‘Independent External Comprehensive Review of the Department of National Defence and the Canadian Forces’, this time by Louise Arbour, a former Supreme Court of Canada Justice and United Nations Commissioner on Human Rights, focusing not only on sexual misconduct, but also harassment and other harmful behaviours;
• The appointment of a new Minister of National Defence, Anita Anand, and her subsequent announcement to refer the investigation and prosecution of ‘sexual misconduct’ (meaning: criminal offences of a sexual nature) to civil authorities and courts;
• Increasing use of administrative processes and measures as substitutes (in some cases, improper substitutes) for the Code of Service Discipline (read: Canada’s version of the Uniform Code of Military Justice).  These administrative processes can, and often do, lead to compulsory release from the Canadian Forces (read: the Canadian equivalent to ‘involuntary separation’ processes in the United States); and,
• The Canadian Forces’ policy relating to vaccine-hesitancy and refusal of COVID-19 vaccination by CF personnel.

​Over the course of 2021, the Canadian Forces has faced challenges similar to those faced by the armed forces of the United States, and other allies in NATO and the ‘5 Eyes’ community.  The obvious comparator concerns sexual misconduct and gender equity.  However, comparison and examination should not stop there.  Equally, decision-makers and stakeholders in the evolution and reform of military justice should endeavour to avoid capture from a single issue.  While ‘sexual misconduct’ is a relevant and pressing concern, it is not the sole issue that the armed forces of democratic nations face.

The President of the United States recently signed into law the National Defense Authorization Act (FY22 NDAA), which introduces reforms to military justice in the United States.  Interestingly, some of these reforms reflect changes that were introduced to Canadian military justice in 1998 under Bill C-25.  Over the course of the subsequent two decades, further reforms (albeit, of a limited and piece-meal nature) have been introduced, and several analyses have been conducted (not all of which have been entirely consistent). But comparative examination of developments in other Anglo Common Law jurisdictions will likely be of some assistance as the United States embarks upon its own reforms.

Rory Fowler

A longer retrospective is @ Canadian Military Justice – 2021 Retrospective.