Top 5 Tips on How To Navigate the Military Law Maze For Canadian Forces Members

Much of the law in Canada hasn’t changed significantly in decades or even centuries. Wills and estates law, property law, contract law all find their roots in the common law of centuries past of England, with only minor court inspired evolution, and very little legislation by politicians modifying the well accepted principles.

This is all the exact opposite of Canadian military law, where virtually the entire body of law was created politically by Parliament from the ground up as found in the National Defence Act, the King’s/Queen’s Regulations and Orders as interpreted by evolving decisions of the Federal Courts, and the public international law of war. Since most Canadian lawyers don’t even have a clue about how military law operates, how is a non-legally trained CF Member supposed to navigate the military law maze to be able to exercise all rights given to Members under military law?

As a CF veteran and private lawyer practicing military law throughout Canada, here are my top ten tips for all CF Members on how to navigate that military law maze.

Tip #1: Get Free Legal Advice Within the CF Whenever Possible

The CF employs about 200 JAG branch lawyers internally. Some are assigned to help CF Members with summary legal advice on military law, or to defend them before courts martial.

There are limits to what JAGs are tasked to assist individual members with, such that you’ll usually be assigned a non-legally trained “assisting officer” when facing administrative action internally, but that assisting officer won’t be a lawyer. But I still urge you reach out to your local in-house CF lawyer to get whatever advice you can for free. Because free is free, and I’ve never found anything to be fundamentally wrong with the advice you might receive, the problem is that JAG lawyers are very limited in the ways they can directly assist CF members.

Tip #2: Make Full Use of Your Assisting Officer

While assisting officers aren’t legally trained, they can provide substantial help in legal matters. As they are commissioned officers, they’ll mostly have a university degree even if that degree isn’t in law, so they may at least have decent research and writing skills. Put them to work helping you. While they deserve your respect, they are there to help you, so give them something to do, and brainstorm with them ways to tackle your legal situation.

Tip #3: Do Your Own Research

Pulling jurisprudence precedents no longer requires days lost in a law library like it did when I started law school. Take advantage of the golden age of free full text legal research that we now live in.

Find helpful cases at www.canlii.org; currently it has 3,297,060 full text boolean searchable cases. I guarantee you at least one will be helpful to you. The trick is finding it, and knowing it’s the “one” once you’ve found it.

Find helpful legislation at https://laws-lois.justice.gc.ca. While CanLII also has lots of legislation, and has a better search engine than the Department of Justice legislation website, the Justice website may be more up to date or better present its statutes and regulations.

For the King’s/Queen’s Regulations and Orders see https://www.canada.ca/en/department-national-defence/corporate/policies-standards/queens-regulations-orders.html

Tip #4: Consult Private Counsel

Many military law matters won’t cost a fortune in legal fees to retain private counsel for. It’s true that if you’re thinking of attempting to take the rejection of a more minor grievance up on judicial review to the Federal Court, the costs of private counsel may be disproportionate to the significance of the issue in dispute. But if you’re facing administrative dismissal from the CF or other very significant consequences to your career, private counsel could be worth it. Just closely question anyone you’re considering hiring on whether they actually know anything about the military and military law, because I can’t name even one law school in Canada which offers a course on military law, so it really is something that needs to be learned by doing.

Tip #5: The Federal Court is Always Your Court of Law Resort

One would hope that the CF grievance system would be robust enough to address legitimate breaches of policy or rights, but unfortunately that’s often not the case. For federal law administrative matters, like almost everything in the CF that doesn’t involve a court martial, if you’ve exhausted all your internal remedies, including sometimes getting a final recommendation from the External Grievance Review Committee and decision by the Chief of Defence Staff, what’s known as a Judicial Review to the Federal Court may be your only recourse left.

While judicial reviews technically aren’t “appeals,” you can still think of them in that way. However they’re called JRs because they exist when there is no appeal route possible.

There are CF members who represent themselves successfully in the Federal Court, but it’s very difficult to do as compared to representing yourself on a grievance. The rules of court of very technically, and you’ll be facing a Department of Justice lawyer on the other side defending the government’s position against you. Thus I always recommend you use a lawyer, even if you’ve represented yourself at earlier stages of proceedings.

The Federal Court has a history of intervening to stop CF members being treated unfairly by the chain of command, even where the CDS below has refused to intervene, claiming that no unfairness occurred. See for example one of my cases Jaffray v. Canada (Attorney General), 2021 FC 532 which referenced the companion decision of Denneboom v. Canada (Attorney General), 2021 FC 531 at para. 40: “Some of [the Final Authority’s] findings are not supported by the evidence and, most importantly, it does not provide an adequate explanation for its rejection of the Committee’s recommendations”; the challenged decision was returned to the initial authority for redetermination, which resulted in all Members receiving the promotions and backpay they had been unfairly denied.

Gordon S. Campbell practices military law in French and English throughout Canada. Learn more at www.acmlawfirm.ca.