What we examined (see Focus of the audit)

Canada’s military justice system functions in parallel to the civilian justice system. Like the civilian system, the military justice system must be fair and respect the rule of law.

This audit focused on whether the Canadian Armed Forces administered the military justice system efficiently. In particular, we assessed the effectiveness of the Canadian Armed Forces in processing military justice cases in a timely manner.

Why we did this audit

This audit is important because the purpose of the military justice system is to maintain discipline, efficiency and morale in the Canadian Armed Forces.

What we concluded

Overall, we concluded that the Canadian Armed Forces did not administer the military justice system efficiently. There were delays throughout the various processes for both summary trials and court martial cases. In addition, systemic weaknesses, including the lack of time standards and poor communication, compromised the timely and efficient resolution of military justice cases.

We also concluded that the Office of the Judge Advocate General did not provide effective oversight of the military justice system and did not have the information needed to adequately oversee the military justice system.

What we found about…

Administering military justice

Overall, we found that the Canadian Armed Forces took too long to resolve many of its military justice cases, with significant impacts in some cases. In the 2016–17 fiscal year, a court martial dismissed charges in one case because of delay, and delay was a reason why military prosecutors decided not to proceed to trial in an additional nine cases. In addition, we found that commanding officers did not immediately inform Defence Counsel Services of the accused’s request for defence counsel, and prosecutors did not provide the accused with all relevant information for their defence as soon as was practical.

These findings matter because Canadians expect their armed forces to be disciplined, with unacceptable behaviour investigated and addressed promptly. When there are delays in the military justice process, accused persons and victims remain in a state of uncertainty. Delays in providing accused persons with defence counsel, and information about their case, can breach their constitutional rights. In addition, such delays can erode confidence in the Canadian Armed Forces’ administration of discipline and justice.

• Delays in resolving military justice cases contributed to 10 cases being dismissed or not proceeding to court martial

  Recommendation. The Canadian Armed Forces should review its military justice processes to identify the causes of delays and to implement corrective measures to reduce them.

• There were systemic weaknesses in the military justice process

  Recommendation. The Canadian Armed Forces should define and communicate time standards for every phase of the military justice process, and ensure there is a process for tracking and enforcing them.

  Recommendation. The Canadian Armed Forces should establish formal communication processes to ensure that the Military Police, the Director of Military Prosecutions, the Judge Advocate General’s legal officers, and the military units receive the information that they need to carry out their duties and functions in a timely manner.

  Recommendation. The Canadian Armed Forces should define and communicate expectations for the timely disclosure of all relevant information to members charged with an offence.

  Recommendation. The Judge Advocate General should ensure that its human resource practices support the development of litigation expertise necessary for prosecutors and defence counsel.

Overseeing the administration of the military justice system

Overall, we found that the Office of the Judge Advocate General did not provide effective oversight of the military justice system. The Office did not have the information needed to oversee the military justice system, nor did it develop methods to assess performance. The Office of the Judge Advocate General did not implement actions to address many of the problems identified in past external reviews. We also found that it did not analyze how to improve the administration of military justice and it did not conduct the required regular reviews of the military justice system.

In addition, we found that the Judge Advocate General’s supervision of the Director of Military Prosecutions and the Director of Defence Counsel Services presented a risk to the independence of these two primary positions.

These findings are important because without effective oversight, problems may not be identified and resolved, which can undermine confidence in the military justice system. Without sufficient information and performance measures, the Canadian Armed Forces cannot assess the efficiency or make informed decisions to improve the military justice system. In addition, independence of both prosecution and defence is an important component of the rule of law.

• The Office of the Judge Advocate General did not provide effective oversight of the military justice system

  Recommendation. The Canadian Armed Forces should put in place a case management system that contains the information needed to monitor and manage the progress and completion of military justice cases.

  Recommendation. The Office of the Judge Advocate General and the Canadian Armed Forces should regularly assess the efficiency and effectiveness of the administration of the military justice system and correct any identified weaknesses.

  Recommendation. The Director of Military Prosecutions should ensure that the policies and processes for assigning cases to prosecutors, and for documenting decisions made in military justice cases, are well defined, communicated, and fully implemented by the members of the Canadian Military Prosecution Service.

  Recommendation. The Judge Advocate General should assess whether its practices and processes affect the independence of the Director of Military Prosecutions and the Director of Defence Counsel Services, and whether any adjustments or mitigation measures should be established.

Entity Responses to Recommendations

The entity agrees with our recommendation(s) and has responded (see List of Recommendations).

Related Information

Report of the	Auditor General of Canada
Type of product	Performance audit
Topics	Justice and Law Enforcement National Defence
Entities	National Defence
Completion date	29 March 2018
Tabling date	29 May 2018

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