Focus On

Canada's outgoing judge advocate general fires back at critics

Sunday, May 07, 2017 @ 12:13 PM | By Cristin Schmitz

Lexis Advance® Quicklaw®
Canada’s top military lawyer is calling it a career after three eventful decades that saw him advise the chain of command on life and death legal issues raised by ethnic slaughter in Bosnia, drone strikes on ISIL and the possible need to shoot down a suspicious airliner in Canadian air space on 9/11.

Blaise Cathcart

Judge Advocate General Blaise Cathcart

But before retiring in late June, the major-general who oversees Canada’s military justice system is firing back at legal commentators who contend that the Canadian military justice system is both antiquated and unfair to accused and victims. The system has been under sustained Charter attack from defence counsel in recent years, but the Supreme Court has affirmed its constitutionality.

“Our Canadian system of military justice is world class” — staffed by professional military judges, prosecutors and defence counsel, Judge Advocate General (JAG) Blaise Cathcart told The Lawyer’s Daily. “It’s not second-class justice in any way. In many ways I would say it’s certainly the equal — and in some cases objectively better” — than the civilian justice system (for example, accused at courts martial are represented for free by military defence counsel). Cathcart said countries like Australia and New Zealand look to Canada as a leader on military law and justice.

Before Cathcart departs, he said he will deliver to the Defence minister his recommendations for improving the efficiency, effectiveness and legitimacy of Canada’s court martial system, based on the results of a statutorily mandated comprehensive internal legal and policy review by the Office of the JAG that began last summer.

“It’s the legitimacy piece that is sort of my main focus ... because of what I think is a small, but vocal, criticism that ‘We’re not legitimate. We’re second-rate. We’re rinky-dink,’” the JAG said. “It’s false.”

“But I’m hoping that our review will confirm ... [the system’s] legitimacy, and will also be showing that we’re willing to make changes,” he said.

During a wide-ranging exclusive interview May 3 in his office at the Department of National Defence headquarters in Ottawa, Cathcart shared his views on fundamental but contentious policy questions, such as the appropriate purpose and scope for Canada’s military justice system, and whether prosecuting serious crimes, including sexual assaults and offences against children, should mostly be shifted to the civilian courts which some critics argue are better equipped to handle them. The JAG also canvassed the pros and cons of some possible court martial system reforms, such as “civilianizing” prosecutors and defence counsel (they are currently military members), and replacing itinerant courts martial which are convened on an ad hoc basis with a permanent standing military court.

Cathcart vigorously rejects the idea that Canada would benefit by setting up a separate justice system for military members, to a greater or lesser degree divorced from the military and its chain of the command.

“I think there are some critics ... who just fundamentally disagree that you need the military to be involved in maintaining its own justice system,” he observed. “They might acknowledge [the need for] the summary trial system for minor offences — dirty boots [for example]. But they don’t think [for] ordinary criminal offences — the military should have any part of that.

“I fundamentally disagree,” he said. “So far ... the Supreme Court and Parliament disagree because they recognize, like most, that the military is the best-suited organization to maintain its own discipline, with a process that’s not secret. It’s not hidden. It’s not some sort of society that we don’t want to show.”

Cathcart rejects complaints that he is dragging his feet on fully implementing Bill C-15 — four-year-old partially proclaimed legislation that would reform sentencing, limitation periods and other important aspects of the military justice system.

“That’s frankly dumb as dirt because we’re the biggest pushers [of anybody] of Bill C-15 — and therefore the regulations that must flow from it in order to bring certain sections into force and effect,” he said. “If anybody wants it done, it’s me.”

Bill C-15’s amendments to the military justice system are not by themselves complex, but working out their consequential impacts, and creating the requisite policy language for regulatory drafters, “turned out to be more complex than we anticipated,” explained Cathcart.

“I’m told that if things go to plan it should be with the drafters, and they start work at it, at the end of this year. ... And hopefully it will be done in early 2018.”

The JAG said he is also “optimistic” that the Liberal government will introduce its own version of defunct Conservative-era amendments (Bill C-71) that would have enacted a victims’ rights declaration, and enhanced justice for accused by removing the criminal and penal aspects of the summary trial system (which deals with 95 per cent of the cases) and converted it to an administrative hearing process restricted to dealing with minor offences. The summary trial system is heavily criticized for not providing military members the same procedural protections available in the civilian courts to those who are in jeopardy of losing their liberty.

Summary trial reforms present “win-win scenarios for military justice and public confidence,” said Cathcart. “Critics will be quick to say: ‘Aha JAG, so that means you admit the current system [for summary trials] is unconstitutional!’ No I don’t. I believe it’s constitutionally compliant,” he said. “Then you can say: ‘Is there a way to do it better?’ And it’s the way to do it better that I’m focused on now — that I’m hoping, [I’m] optimistic can get some really good traction with our minister [Harjit Sajjan] and the government.”

Speaking personally, and not for the government, the JAG said there might be some benefit to the court martial system if Canada were to follow Australia’s example by making defence counsel part-time reserve members (rather than full-time military members) with special military law training. A possible advantage might be that criminal lawyers in the civilian system can hone their skills by defending many more cases than are available in the court martial system (there are only about 65 courts martial annually, on average, which are handled by about half a dozen regular force military defence counsel).

“That might be better,” suggested Cathcart. “But to me other aspects of the system should remain military. I think it’s critical to have military judges [and] military prosecution.

“In my view — which again is just my personal view ... it’s not [necessarily] what the minister or government will agree upon — but basically as the system exists today, I think the fundamentals are right. I do think we just need to do some more refining of making sure we’ve got the right skills sets, and the right resources, to make it work.”

Cathcart said the military justice system has not been immune from the effects of R. v. Jordan 2016 SCC 27 — the Charter s. 11(b) speedy trial decision which last year imposed a ceiling of 18 months on resolving charges prosecuted without a preliminary inquiry.

Military prosecutors tried, but failed, to convince military judges that 18 months was too strict a time limit to meet for a comparatively well-resourced justice system whose raison d’etre is supposed to be speedy and fair enforcement of military discipline. At least one case so far (involving charges of drunkenness and aggravated assault) has been stayed for violating the right to trial within a reasonable time.

“Right now, from our analysis of timelines, while they need to be improved, they don’t get us into a scenario where we’ve got wholesale stays, particularly of very serious charges,” said  Cathcart. However he added he hopes to shorten up delays caused by charges remaining within the chain of command longer than necessary before they are passed on to prosecutors. “We are targeting that area, hopefully through some legislative changes, to shorten the timelines there. Optimistically we can look at maybe shortening things up by 100 days, in some cases.”

The JAG said another potential antidote to delay that is under consideration in his office’s comprehensive court martial review is the idea of replacing the present court martial system of ad hoc tribunals with a permanent court. “Would that be more efficient from a time perspective?” he queried.

In his 27 years as a military lawyer (the last seven as the JAG) Cathcart said 9/11 is one of his most vivid memories. “That whole day was just consumed with figuring out what legal options would be available for the government in terms of response,” he recalled. “There was a school of thought that simply said this is just a purely criminal matter, which is to be handled by the U.S. — which is not wrong at law,” observed Cathcart. But “an alternative, or complementary, legal analysis was coming out of the Office of the JAG saying: ‘Well this can be considered an armed attack upon the U.S. and Canada — because there were Canadians who were killed in the two towers. And because of those, under international law, a state can respond as it would if it was a state who committed the attacks with military force — which eventually led to [Canada’s participation in] Operation Enduring Freedom” in Afghanistan.

As the JAG lawyers were considering the legal dimensions of possible strategic responses by the government, they also faced immediate tactical issues. For one, there were reports that a Korean passenger jet headed for Canadian airspace might have been hijacked. “How do you deal with that scenario?” remarked Cathcart. “If you thought it was a continuation of the attacks, the short answer would be ‘yes, you are allowed to [use force] in self-defence.’ If you don’t know [whether it’s been hijacked], these are the tough questions for decision-makers. ... At some point in time, a decision-maker has to make a decision based on the available facts.” (Then-Prime Minister Jean Chretien authorized the plane to be shot down, if necessary, but the 747 diverted from Alaska, which had not been hijacked, followed directions to safely land in Whitehorse.)

Joining the Office of the JAG was among the best decisions of his life, said Cathcart. “I think this has been the most evolutionary and historic time to be a military legal officer.”

Related story: Q&A with Maj.-Gen. Blaise Cathcart