Judge Advocate General has gone 3 years without filing reports to Def Minister

[George Wallace]

This doesn't look good, and not a good reflection on our bureaucracy.  Especially disconcerting is that this is the top man in the Military Justice system.




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Maj.-Gen. Blaise Cathcart faces examination in Nova Scotia

By James Cudmore, CBC News Posted: May 30, 2014 5:00 AM ET Last Updated: May 30, 2014 5:00 AM ET

Judge Advocate General has gone 3 years without filing reports to Defence Minister

Maj.-Gen. Blaise Cathcart, the top lawyer and general in charge of Canada's military justice system, is under scrutiny by legal regulators after an apparent failure to comply with the National Defence Act three years running.

And CBC News has learned the other two pillars of military justice — the directors of defence and prosecution — have each also apparently broken military regulation for a similar failure.

Cathcart, the military's judge advocate general, has admitted he failed to provide reports on the administration of military justice, as he is required to do by law.

Not complying with the National Defence Act or military regulations could be violations of the code of service discipline.

Those reports are supposed to be made public by the defence minister tabling them in Parliament, and they're a key access route to information about the military justice system for members of Parliament, Senators and the public.

The reports discuss the status of the military justice system. They describe important cases, priority legal work, trends in law and details of the work and workload of those who work in the JAG system. More crucially, the reports also lay out important statistics about the number and type of charges and the disposition of cases.

But two other senior military lawyers appear to have also not filed their own mandatory reports.

Strict code of conduct

Col. Mario Léveillée, director of military prosecutions, and Col. Del Fullerton, director of defence council services, have each also apparently not filed their own annual reports to Cathcart.

In each case, the last reports published were in 2009-10.

The military on Thursday was unable to say whether reports for the following years had in fact been written, but just not published. If so, it would raise questions about why the judge advocate general hadn't filed his reports when his subordinate commanders had.

All three lawyers could find themselves being held to account by the military justice system they each help administer.

All lawyers, military or otherwise, follow a strict code of professional conduct.

Those codes require lawyers to observe all laws, work diligently and act with integrity and honour. A failure to follow the code of conduct can result in counselling, sanction or disbarment.

Power limited when it comes to public officials

Cathcart is a member of the Nova Scotia Barrister's Society. He has also received the coveted legal designation Queen's Counsel — a title that honours lawyers who demonstrate exemplary service to Canada's legal system.

The executive director of the Nova Scotia Barrister's Society, Darrel Pink, told CBC News that he would examine whether Cathcart is in violation of any of the society's rules.

Pink said he would have to determine whether Cathcart's three-year failure to file his annual reports amounts to a violation of the code of professional conduct. He'll also have to examine whether Cathcart's conduct can be excused, as he is not just a lawyer, but also a public office holder.

"The code of conduct applies to all lawyers regardless of where they practise," Pink said. "But, our jurisdiction is ... circumscribed when the behaviour that is brought into question is as a public official and not as a practising lawyer."

Cathcart holds a public office created by law and is appointed by the minister of national defence.

The Nova Scotia Barrister's Society has specific rules for public office holders that require them to "adhere to standards of conduct as high as those required of a lawyer engaged in the practice of law."

'Priorities' elsewhere

A parliamentary committee quizzed Cathcart on Tuesday about the missing reports.

Cathcart later told reporters he had not failed to live up to his obligations, saying he "wouldn't characterize it that way."

Cathcart said he was not just the superintendent of military justice but also the government's lead adviser on military law matters. All that work, he said, required him to set priorities and consequently the reports were let slip.

"So with the resources and the priorities that I have at my disposal, I made those decisions and I made them knowing full well the gravity of those decisions," he said.

The most recent report on military justice covered the 2010-11 year, but was only tabled in Parliament in March.

A spokeswoman for Defence Minister Rob Nicholson said the minister has now requested the JAG work to get those reports filed "on an expedited basis."

'Part of his obligation'

Ottawa lawyer Paul Champ has worked on human rights cases involving the military. Champ said Cathcart has obligations it appears he hasn't fulfilled.

"He's not simply a public office holder, he's an officer of the court and a lawyer," Champ said.  Filing those annual reports "is part of his obligation.

"The most senior legal official in the military is now flagrantly in breach of the National Defence Act, that’s very troubling.  I'm stunned.”

Champ became well-known in political circles after he represented Amnesty International and the B.C. Civil Liberties Association in a case that featured allegations of the transfer by the military of Afghan detainees to the risk of torture in Afghan prisons.

Champ said there are generally too few mechanisms for the public to have oversight of the operations of the military. He said it's imperative the military fulfil the few transparency obligations it has — especially those mandated by law.

Champ wondered why neither Defence Minister Rob Nicholson nor Peter MacKay before him demanded Cathcart file those reports on time. Both men are lawyers and would have understood the law.

Only insight into courts

"If the minister sees that the superintendent of military justice is not respecting the law, then I guess the minister feels it's not so important either," Champ said.

The soldier-turned-lawyer Michel Drapeau has been aware of the missing reports for some time.

He's a co-author of one of the definitive texts on military law. Drapeau said he's been waiting for those reports in order to include recent military justice statistics in an updated version of his book.

"It's incredible," Drapeau said. "I don't have access to the stats and we have no idea whether it's good or bad or whatever. These reports are the only way we know what is going on inside military courts."

The question of how charges would arise against the three officials is problematic. For instance, who would decide on charges against the director of military prosecutions? After all, it is his job to decide whether charges go ahead.

"The only thing they can do ethically is resign," Drapeau said.

More on LINK

 

[Journeyman]

"The only thing they can do ethically is resign," Drapeau said.

  :rofl:

.....or they can just keep their snouts in the trough.  Any folks betting on the way this plays out?

 

[vonGarvin]

Any folks betting on the way this plays out?

Nope!  ;D

 

[PuckChaser]

Sure earned that promotion to MGen?  ;D

 

[Halifax Tar]

I wonder what would happen if I as a lowly PO2 Sup Tech just stopped doing part of my job... 

Armyvern...

 

[The Bread Guy]

Even better:

I wonder what would happen if I as a lowly PO2 Sup Tech just stopped doing part of my job required by law... 

 

[Loachman]

If one cannot respect the law that governs one, how can one sit in judgement of others?

 

[Tibbson]

On the other hand, I have to give him some credit.  He sat there in front of everyone and owned up to the issue stating he was not just the superintendent of military justice but also the government's lead adviser on military law matters. All that work, he said, required him to set priorities and consequently the reports were let slip.  "So with the resources and the priorities that I have at my disposal, I made those decisions and I made them knowing full well the gravity of those decisions".

Some will no doubt see that as an excuse however I view it as a statement by an officer who felt he had competing priorities and he made a choice what to do and what to let slide.  Doesn't sound like the weaselly kind of statement I would have expected but the statement of someone who had a decision to make and who made it fully aware of what he was doing.  Was he wrong?  Not for me to say but I really don't see what a difference the reports would have made.  Then again, politicians will no doubt use it as a way out as they get questioned but that is what they do best, deflect and blame.

On a related note, MGen Cathcart is a member of the Nova Scotia Bar Association and they have announced today they will be investigating whether of not the MGen violated any law society rules.  A well known Halifax laywer, Derrell Pink, is the head of the Bar Assn and if anyone knows Mr Pink they know he loves every opportunity he gets to take on the Military.

Of course, Mr Drapeau has known about the missing reports for some time now (althpugh he didnt "break the story" for some reason) because he claims he needed the reports to finish his next book.  I'm sure he is expecting this to improve sales now.

 

[Journeyman]

All that work, he said, required him to set priorities and consequently the reports were let slip.

.....for three years, and counting....  He must be exhausted.  :

.... I really don't see what a difference the reports would have made.

Every time you hear the expression "government transparency," this is what they're talking about;  whether you understand or value the reports is irrelevant.

 

[FJAG]

Okay. Time to throw a few facts into the mix.

First of all has anyone ever read these reports? Notwithstanding that they are statutorily mandated (and yes I do know what that means and what should happen) very few people look at these things. They mostly get a superficial review to see if there is anything exciting in them (which there never is) and then get shelved.

Again if you read these things you will see that about 80% of them is boilerplate stuff that one can mostly cut and paste from the previous years review. The remaining 20% is justice system statistics. These are very manpower intensive in collecting. The court martial ones aren't too difficult but the summary trial ones are very hard to get from the units notwithstanding that there is a mandate that they send them to their AJAGs in a timely manner.

When I worked in Ottawa from 2006 to 2009 on the JAG's Comprehensive Information Management System one of my mandates was to produce a system that automated the gathering of mil justice statistics. Unfortunately by the time that I left the project due to CRA, the system was not completed and in fact the contract for the key component that would allow gathering statistics (the case management system) fell through (after two years in the tendering system) and it didn't look like the contract could be revived within the projects lifetime. My successor was left in the unfortunate situation of having to see what (if anything) could be done to create a case management system out of the toolsets which we had obtained for both the Records and Knowledge Management Systems.

I don't want to be seen as making excuses here but over the last two decades the demand for legal services from the field (which includes JAG's clients in Ottawa) has expanded tremendously and while the legal branch had grown, demand for services outstrips the resources available. There is, IMHO, a significant shortfall in support staff, within the office of the JAG (Civilian lawyers generally work on a one lawyer to one support staff ratio while within JAG the ratio is frequently 5 or 6 legal officers per support staff) The result is that legal officers spend valuable hours doing necessary clerical which takes away from their providing legal advice. When a General or the Minister calls a legal officer he wants a legal opinion RFN, not some time down the road. As a result the entire office works on priorities which often requires that tasks of a lesser priority get set aside.

Please remember that the CoC understands this, has been told about the delays and accepts the situation. This news article didn't arise because the Minister or the CDS said "Hey where's our report?". This article comes as a result of the usual gang of critics who make it their mission in life to make a fuss over things which (again notwithstanding their statutory necessity) have really very little importance in the real world.

One further comment; the Office of the JAG does not sit in judgement of others - that's the role of the Office of the Chief Military Judge who does not belong to JAG, DMP or DDCS.

One last comment; I know Blaise Cathcart personally. He's earned his promotion.

:cheers:

 

[armyvern]

I wonder what would happen if I as a lowly PO2 Sup Tech just stopped doing part of my job... 

Armyvern...

I would cause your ass to be charged.  Drafting up the RDP now ...  >

 

[George Wallace]

I think FJAG has brushed upon the important issues here.  The JAG wouldn't personally write those reports; he would sign off on them.  From what FJAG has said, the support staff is sadly lacking and unable to effectively compile those reports.  The large number of civilian lawyers, some of whom may only be working on short term contracts, would only add to the problems of compiling such reports.  Common problem with our 'Bureaucracy', not just in the CAF, but in the Public Civil Service as well, where we often find 'one person doing the work of ten' and 'contractors popping in and out, leaving little or nor records of what they have done'. 

Here we see a problem identified, and like problems identified in other areas, we are not likely to see a remedy anytime soon.  The Government will play on the general public's opinion that the bureaucracy is too large and cumbersome and will cut rather than increase staffs.  :

 

[Old Sweat]

Apologies for the slight sidetrack. The old Part XI of the NDA, Aid of the Civil Power Regulations, required the CDS to submit a written report to the Secretary of State within 30 days of having received a requisition for assistance. The wording and practice were well out of date, but during the Oka mission that did not stop I don't know how many numpties from writing General de Chastelain to remind him that he was required to do exactly that and they were prepared to see him face justice if he failed to comply with the NDA in that regard.

 

[Journeyman]

......80% of them is boilerplate stuff that one can mostly cut and paste from the previous years review. The remaining 20% is justice system statistics.

So these reports only require 20% of the effort of actually drafting a complete report, yet he still couldn't be bothered.....year after year.

I guess we have to hope for the NS Bar Association to address this, since the uniformed legal mindset is obviously that just saying "fuck it" is an acceptable option.  And in any other classification, administrative and/or disciplinary action would be taken, but in this case not only was he really, really busy, but 'I know him and he's a cool dude, so it's OK.'  :not-again:

I don't want to be seen as making excuses here [fail] but over the last two decades the demand for legal services from the field (which includes JAG's clients in Ottawa) has expanded tremendously.......

And lawyers aren't remotely responsible for that......  : 

Forgive my absence of sympathy for the onerous workload the ambulance-chasers brought onto themselves.

 

[Tibbson]

FJAG brings up some excellent points.  People assume one can snap their fingers and generate the reports and stats but its not that simple.  I remember when I joimed the MP Branch there was talk of some mystical reporting system that "someone" was working on buti t was still another 15 years befor SAMPIS was purchased and put into place allowing centralized reporting and record keeping across the Branch.  I know what it cost us and the resources it takes to maintai  and use so its no wonder the JAG Branch doesn't have the same type of system.

I'm sure there is no need to remind anyone here that we just came off a long period of deployed ops and I saw first hand how labour intensive that was on the legal branch.  Civil suits, legal liaison, detainee issues and inquiries, ROEs, international agreements, local and ops related contracts for services, damages and local restitution...all were very labour intensive legally.  Add to that any and all types of legal issues back here in Canada too numerous to mention and its no wonder a report that nobody reads (fully agreeing with FJAG) gets shoved to the back burner especially when one stops to consider the stats are available via CCJS if anyone had a need for them.

All this issue has done is chum the water for the same school of sharks (reporters, lawyers, special interest groups) who are always circling looking for a reason to strike.  Sure, because of them we need to be extra vigilant but if resources were taken for the reports then something else would have been a lower priority and they would feed on that instead.  We are done with deployed ops, the parades are done and the medals awarded...time to put the target back on all things DND.

 

[FJAG]

The JAG wouldn't personally write those reports; he would sign off on them.  From what FJAG has said, the support staff is sadly lacking and unable to effectively compile those reports.

Absolutely correct.

Each of DMP and DDCS is responsible for their own report.

For the overarching JAG report in my day the Director Law/Military justice, Policy and Research was responsible for the data work and much of the rest of the report. I note that since I have left DLaw/MJP&R has been broken into two offices DLaw/MJ-Strategic and DLaw/MJ-Operations. The former deals with the development of the overarching mil justice vision for the office while the later deals with day-to-day MJ matters - you should note that DLaw/MJ-Ops has specific responsibility for developing the annual report to the minister.

For Journeyman - you misread my comment. About 80% of the material "by volume" is easy to write boilerplate; about 20% of the material is statistical data that requires gathering, fact checking, collation, interpretation and presentation in a meaningful way. That 20% by volume is 95% of the work.

If you wish to understand priorities then consider the fact that one of the more important projects for the Mil Jus directorate is a way to come to grips with what has become a major systemic delay in bringing courts martial to trial. When I left I believe the average case took some 270 days from when the referral was received by DMP until the CM was completed (police investigation time and in-unit staffing would be on top of that time). Fixing this issue is not a simple matter as it includes stakeholders from the police, the prosecution, the defence and the judges all of whom have their own agendas and who need to protect the often opposing interests of the system and the accused. IMHO that is an output well worth spending time on.

But then again I wouldn't want to stand in the way of your moral outrage.

Just one further comment. I sat on the Manitoba Law Societies Complaints Investigation Committee for six years and have a pretty good idea how the NS Barristers' Society should handle this. (as an aside the NS Bar Association has nothing to do with this - its the Barristers' Society that handles complaints from the public - their complaints procedures are set out in their web site). In short I would be hard pressed to find that there was a breach of the Professional Code of Conduct here. Please look carefully at s. 9.3 of the NDA which merely requires that the JAG report annually to the Minister. The manner of the report is not specified.

The JAG speaks with the Minister very frequently and I would expect he has reported and been given waivers to delay the submission of the written reports by the previous Minister but now that it's an issue before a parliamentary committee I can see why the new Minister has asked for their production. I also expect that the JAG has told the Minister what other projects will now have to be put on hold until these reports get done.

I would expect that the Law Society of NS would consider this a matter as between the Minister and the JAG and outside their scope of enforcement and as already being dealt with by the parties - mediation of a resolution is always a priority for a law society and here it seems the matter is resolving itself. There is no need for NSBS intervention or action.

What I really wonder about is who is the member of the public or the NS legal profession who is registering the complaint with the NSBS or is Darrel doing this on his own motion and for what purpose?

Anyway, as I said before, I don't wish to stand in the way of anyone's moral outrage.

:cheers:

 

[Tibbson]

What I really wonder about is who is the member of the public or the NS legal profession who is registering the complaint with the NSBS or is Darrel doing this on his own motion and for what purpose?

Anyone out in Halifax who wants to take action against the military or who wants to hire their own lawyer for a CM knows to go for either of the Pink brothers so it does not shock me at all that Darrell has already spoken out.

 

[dapaterson]

Frankly, I don't care what you think is worthwhile.  I care that, per the NDA, an officer of the court, appointed to the position of Judge Advocate General, is required by law to submit an annual report:

Annual report

(2) The Judge Advocate General shall report annually to the Minister on the administration of military justice in the Canadian Forces.
Marginal note:Tabling in Parliament

(3) The Minister shall have a copy of the report laid before each House of Parliament on any of the first fifteen days on which that House is sitting after the Minister receives it.

That the JAG said, essentially, "I ignore the law in setting my priorities." does not fill me with reassurance.

(Then again, I already doubted his judgement.  No barrister who works for the federal government should accept being named QC by any province - it creates a potential conflict of interest)

 

[Journeyman]

Frankly, I don't care what you think is worthwhile.

Shhhh.....you'll just get blithely dismissed as well.  Calling them on thinking themselves 'above the law' is mere moral outrage.

 

[dapaterson]

I think this sums it up - taken from the bar exams.

https://www.youtube.com/watch?v=wvJiYrRcfQo