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Q&A with Maj.-Gen. Blaise Cathcart

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

Canada’s outgoing Judge Advocate General (JAG) Blaise Cathcart said he is “a bit surprised and disappointed” by some recent criticisms from the Canadian Bar Association (CBA) directed at his office’s ongoing internal review of the court martial system.

Blaise Cathcart

Judge Advocate General Blaise Cathcart

In response to the JAG’s call last year for public input into a statutorily mandated review that will culminate soon in Maj.-Gen. Cathcart’s recommendations to Defence Minister Harjit Sajjan, the CBA sent submissions complaining that the JAG’s four-week timeline for public consultation was too tight to be meaningful, and that the scope of the review was too narrow because it  focuses on the five per cent of military discipline cases handled by courts martial, to the exclusion of the military’s summary trial system which handles 95 per cent of the cases.

Last March, the CBA called for a comprehensive parliamentary review of the whole military justice system — dealing with both forms of service tribunals as well as fundamental policy questions — to be conducted with wide input from Canadians, academics, practitioners and service members.

“First of all, I would welcome parliamentary committee review,” Cathcart told The Lawyer’s Daily in an exclusive interview May 3. “I’m not the decision-maker in this thing. There’s a bit of a myth that’s out there on this issue [that] the JAG is a puppet master and he’s controlling everything. Well, I’m not. I’m simply doing a professional job to put together for the minister ultimately recommendations where I think some changes can occur. He can accept them. He can reject them. He can take them, and if they require legislative change, it goes to Parliament. They get their chance. None of this is done just by the JAG.”

But Cathcart, who retires next month after seven years as the JAG, added: “I got to say I was a bit surprised, and disappointed, frankly, at [the CBA’s] report. We asked them to have input and all they basically came back with was a criticism that it shouldn’t be me doing it — it should be Parliament. Well, number one I don’t make that call. I’m not only statutorily obligated to do reviews, but I personally am passionate about the judge advocate general being a proactive engaged player in the military justice system, which includes [JAG office] reviews.”

He noted many members of the Commons Defence Committee are very interested in military justice. “It’s just that there’s not a lot of expertise out there for them to draw upon, and they tend to focus on what I consider the rather thin, simplistic criticisms [from a few critics]. ‘You’re unfair because you don’t do this. ...’ Well, let’s have that discussion,” he suggested. “Let’s have it with the experts who know the system ... Bring them all in because I think we have absolutely full confidence ... [MPs] will be pleasantly surprised and proud of the military justice system because they’ll see how professionally run it is, and how well it connects to why you have it.

Cathcart said the four-week time period the CBA objected to was applicable to posting comments on the JAG’s online discussion board. “The consultations are still open” in the current analysis stage of the review, he said.

He expressed puzzlement about the CBA’s concern that the director of military prosecutions posted a lengthy comment supportive of the current military justice system, but gave only his name and rank, without identifying himself as a member of the JAG’s command team. It's “another head scratcher to me, because had they asked us, or him, they would have gotten the very clear answer that the Chief of the Defence Staff had directed that if any of the Canadian Forces members want to participate in the public discussion, they were free to do so, but they couldn’t do it with the appearance that they’re speaking on behalf of the military,” said Cathcart. “That was easily explained and they didn’t approach us to ask us about that. They decided to say, ‘oh well this looks rather suspicious.’ ”

As to the CBA’s concern that the eventual report and recommendations should be made public, and not withheld on the basis that they are solicitor-client privileged advice from the JAG to the government, “where there is no legal advice, both myself and the minister have said publicly we intend to make all of that as much public as we possibly can,” said Cathcart. “If it can all be made public, it will be made public, and if it’s not we’ll explain why,” he said, pointing out that it is the minister’s prerogative to waive solicitor-client privilege.

Here are some edited and condensed excerpts from TLD’s wide-ranging interview with the JAG:

TLD: What is the main message you want to get across about military justice?

JAG: Our Canadian system of military justice is world class. It’s equal in terms of constitutional footing with the civilian justice system in Canada. We face exactly the same challenges in terms of the issues out there of the day: victims’ rights, changing legislation — whether it’s legalizing marijuana, assisted suicide, mandatory sentencing. Everything that the civilians deal with we equally have to deal with, but we have to deal with it in the uniqueness of the military context. And so that's really the issue. 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] when you look at, for example, resources. If you’re an accused in a court martial you’ll have many more resources available to you than a [civilian], unless you’re paying for it on your own, but someone comparably in a legal aid scenario. So in no way shape or form would it be any kind of second-class justice. We have the same setup. We do have unique aspects of it for a reason and those reasons have been clearly confirmed by the Supreme Court of Canada on several occasions. 

TLD: What is the purpose of the military justice system in your view?

JAG: The purpose, which coincidentally the Supreme Court reaffirmed not long ago, was to assist the Canadian Forces and the chain of command in the maintenance of discipline, efficiency and morale of the troops. Particularly the discipline piece is really what ultimately separates the military as a culture and community from the civilian culture. Without that habit of obedience where a soldier says ‘Yes I’ve got my orders I’m going to get on with it,’ you don’t have a military. You just have a band of brigands and so that’s the key focus. The military justice system is not the sole tool. There are many tools the chain of command can use to maintain discipline but it’s one that is necessary and obvious. If you need a system to deal with infractions and offences you want to do it in a context where all, including the public but the soldiers [too], feel confident that the people who are sitting in judgment of them understand the uniqueness of their profession.

TLD: Why should crimes like sexual assault and offences against children be dealt with the military justice system? Are you properly equipped for that?

JAG: Absolutely. When we took on the jurisdiction to do sex assaults in Canada [in 1998] it wasn’t a great sea change in terms of the individuals who dealt with charges because it was just another charge to deal with. Where we had to improve, and we’re still improving, is the professionalization of a lot of the support services around those things, particularly for victims. It continues to be worked on. It wasn’t a unilateral decision by the military, or by the judge advocate general, or even a minister, it was Parliament who said: ‘You need to have jurisdiction over these offences’ because in their opinion ... basically there is nothing more insidious to the maintenance of discipline than when troops commit these types of offences against each other in order to maintain that discipline. Because while somebody could have been sent to a downtown [civilian] court and dealt with appropriately and found guilty, for example, all of that takes place outside the context of the military. Whereas now we have the capability to have the whole process — investigation leading to a charge, leading to a court martial, if the person is found guilty, a sentencing — all in the context of the military. And the military can see it so there is a much more direct connection between the offence, [a crime] that’s not just a criminal offence but it’s an affront to the maintenance of discipline and is seen to be dealt with fairly and transparently by the military. Again the trials are open to the public.

TLD: Given the report by former Supreme Court Justice Marie Deschamps that senior personnel were ignoring and condoning sexual misconduct in the military, do you think the military justice system is credible to prosecute sexual assault offences?

JAG: No question I think the system is credible.

TLD: Could the military justice system not be seen as protecting its own?

JAG: No. Absolutely not. It’s quite the opposite. We’re ensuring that military members and victims are properly dealt with through the exact same processes and principles that a civilian justice system goes through and we’re open and transparent — subject to the sensitivities of victims and things like publication bans or testifying behind screens. Otherwise the courtroom is open and any member of the public can come and watch the situation. And that’s why we have all those key players, police officers, prosecutors, defending counsel, judges they’re all independent of the chain of the command in their functions.  

TLD: Accused in courts martial are tried by a military judge presiding over a panel of military members. Critics argue there should be a right to a jury.

JAG: That to me is a head scratcher. That’s been done by the Parliament of Canada under the Charter s. 11(f) which creates the exception [to trial by jury] so I find it hard, particularly as a legal professional, to follow the argument that it’s somehow unconstitutional that there is a constitutional exception to that. Parliament decided when they created the Charter that military members will be exempt to the right to jury because the maintenance of discipline didn’t require it. So I don’t know what they expect either the JAG or the military to do about it. I’m open to that debate, but not just a simplistic criticism that ‘Oh it’s unfair because they don’t have a right to a jury trial.’ Well that was done for a very specific reason in the Charter of Rights and Freedoms itself.  

TLD: Would there be any upside to having the defence role at courts martial discharged by civilians rather than lawyers who are members of the military?

JAG: There’s none that immediately [strike me as] an overwhelming advantage. I think where it comes into it is the debate of potential skill level. On average, there are 65 courts martial a year. And roughly a third of those never actually make it to a full-blown court trial because the charge is withdrawn, or there’s preliminary motions made to dismiss it, stays so there’s not a lot [of cases]. Any provincial court you do 65 trials in a month, so from a maintenance of skills set perspective, if you were to civilianize it and either the Crown continues to pay for it, or people are plugged into the same [civilian] legal aid system, you might get a lawyer who does defence work every day of his or her life and therefore arguably has more knowledge and skills sets versus our four guys who divide up the 65 trials a year. But we already have a bit of that option because the director of defence counsel services has the option to hire civilian counsel. The counter to it is the civilian counsel are not likely, even over protracted periods of time, really to have the knowledge of the military context. For ordinary criminal offences, yes, because that’s what they do anyway. But [not for] some of the unique military offences. And we’ve heard this more often frankly from some of the accuseds feeling not too comfortable with outside counsel.

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