In normal times, a review of the military justice system would be an obscure exercise, something of interest only to a select constituency.
These are not normal times. The mandated review by former supreme court justice Morris Fish may be one of the most highly anticipated events on the federal political calendar this spring.
That review — ordered by the Trudeau government before the current crisis over sexual misconduct in the ranks descended on the chain of command — is being released to the House of Commons this morning.
Requested by the Liberal government last fall, Fish’s review was drafted against the backdrop of an extraordinary meltdown in confidence in the chain of command related to sexual misconduct.
“The thing exploded before [Fish’s] eyes … and he doesn’t have to look at things in the abstract,” said military law expert and retired colonel Michel Drapeau, one of the more prominent critics of Canada’s military justice system.
Fish’s independent assessment — the third such formal review of the system over the past two decades — was given a mandate to examine military police, arrests, the court martial system, punishment, the Code of Service Discipline and how the system handles minor service offences.
Fish was asked specifically to look at summary trials by commanding officers — a practice that is set to be replaced by summary hearings.
Fish’s report is also expected to tackle the military grievance system, which has been a source of constant irritation for those in uniform.
‘Is the system working?’
Drapeau said the former high court justice has some fundamental questions to ask himself about the military justice system — and his findings might not be encouraging.
“Is the system in place working? Is it in fact able to face a crisis? And his answer will be, of course, it cannot,” said Drapeau, who added that, given the recent controversy over the military’s handling of misconduct cases, there are higher expectations attached to this review than to previous ones.
Since early February, sexual misconduct allegations have sidelined — or ended — the careers of several key military leaders.
Allegations of inappropriate behaviour were levelled against the country’s former top commander, retired general Jonathan Vance, two weeks after his retirement last winter. Weeks later, his successor, Admiral Art McDonald voluntarily stepped aside after it was revealed he was under military police investigation over an allegation of sexual misconduct.
The military’s former head of personnel, Vice-Admiral Haydn Edmundson, was permanently replaced recently and is facing investigation after a three decade-old allegation of sexual assault was levelled against him.
Public faith in the military justice system has been undermined by a series of sordid accusations — including claims that senior military leaders turned a blind eye to misconduct, or tried to hide or downplay it. There have also been questions about the independence of military judges.
Survivors of sexual assault in the military and system critics such as Drapeau are hoping for bold proposals from Fish — perhaps even a recommendation to take the investigation and prosecution of sexual assault cases away from the military justice system entirely.
The Liberal government already has committed to some form of independent agency for reporting and handling sexual misconduct cases; it’s not clear what form that might take.
Some critics want to see the government go even further by stripping commanding officers of much of their authority to deal with serious offences, vesting it instead in some sort of outside inspector general position.
U.S. lawmakers recently proposed a similar system, under which the authority of commanding officers would be curtailed and the prosecution of more offences put directly in the hands of U.S. military lawyers.