 My name's Ken Rogers, and this is Think Tech Hawaii. And this is a series called View from the North, or View from Canada, about items of interest to Americans. This episode today is on military law, comparing the US with Canada and other countries. I have two very esteemed guests today. Firstly, I have Rory Fowler. Rory has a unique education. There's very unusual that somebody has two college degrees in law, and particularly from two different countries. Rory has a normal bachelor of law degree from an esteemed Canadian university and a master's degree from the prestigious university college in London, England. He has 28 years of experience in the Canadian military or Canadian forces as they call them up here. He at first was an officer in the infantry, which sounds unusual for a lawyer. But then for most of his career, he was a legal officer in the office of what they call the Judge Advocate General in Canada. Since 2017, he's been in private legal practice with his own firm in Kingston, Ontario. And he's a very frequent and coveted speaker on military law in Canada. My other esteemed guests, since we have a very powerful Canadian, I figured we had to match it with a powerful American. We have Gene Fidel, who is a graduate of Harvard Law School and has taught military justice in three of the top law schools in the United States, Yale, Harvard, and New York University. He's the author of a book called Military Justice, a very short introduction. If you're interested, that's available on Amazon or in your local bookstore. He also was a co-founder and is currently a director of the National Institute of Military Justice. That's a, as Americans call them, an NGO or a nonprofit non-government organization, a very prestigious one. He's also the editor of the blog called Global Military Justice Reform. Now with that introduction, I expect brilliant remarks from the two of you. Since my knowledge of military law is not great, so why don't we start with just what's the basis of military justice system? And why do we have separate law? Why doesn't the rest of the normal law work? What's the whole point of a military justice system? Apprevu, Rory. Thanks, Gene. I was actually going to say after you, but you managed to beat me to the punch. Well, Ken, we can talk about, and Gene and I probably definitely will, talk about the constitutional and legislative basis for military law. But let's talk conceptually, normatively. Why do we have a separate system of military justice? And both the United States and Canada and many of our allied countries, particularly the common law countries, have a separate system of military justice that functions not just during wartime, not just during operations, but even during peacetime and during domestic training. And so conceptually, at least in Canada, and I'm confident in saying that it's pretty much a similar justification in the States. Conceptually, the justification for having a separate system of military justice is that parallels, and often in Canada, incorporates elements of our criminal law is because of the need to maintain the discipline, efficiency, and morale of our armed forces. And that's been tested at various stages in history in Canada before the Supreme Court of Canada, most notably after the introduction in the Charter, there was a 1993 case of the Queen versus Genaro, and much more recently in 2019, the Queen versus Stillman. And in fact, in Stillman, there were multiple members of the Canadian forces who were involved in that appeal. But what the Supreme Court of Canada has upheld is that the maintenance of that discipline, efficiency, and morale of the Canadian forces is not something that is simply enforced during operations or during wartime, that it is something that is manifest and something that needs to be maintained at all times, and therefore having a separate system, albeit one that is essentially consistent with our Charter of Rights and Freedoms, much like our criminal justice system, is justified at law because of the need to maintain an effective fighting force. And I'll turn over to Gene for him to talk about the American experience. Right, well, of course, our experience, our roots are very much the same as the roots of the Canadian system, both systems traced to the Articles of War that were signed by our last King, George III, a couple of years before the Revolution. And indeed, the specter of his late majesty continues to tread the boards, aspects of the system that he presided over continue with us in both systems. And really the history of the last or the period since World War II in both countries has been a period of, on the one hand, dramatic reform, and on the other hand, a retention of some of the central elements of George III's system. I'm not making fun of George III. Actually, I think history is increasingly kind to him. But the facts are the facts, and his government has left us a lasting legacy, a legacy that extends to a continually large part of the world, and I'm thinking of India, Pakistan, South Africa, Nigeria, country after country, in or formally in the Commonwealth of Nations. And it's a tremendous legacy. It's really interesting as kind of the history of ideas and the history of law and legal institutions. But let's get into some of the issues. Well, and I want to make one more point, one more point, and then, Rory, I'd be interested in your reaction to this. In English history, and I've had occasion in connection with a case that I'm currently working on to really drill down into the English history in the 18th century, English military legal history, and it's clear that Parliament was very jealous about guarding the civil liberties of the subject. They kept the military and the military justice system on a very short leash. It's a fascinating tale, and you don't think of the military legal context as a place where you would look for the manifestation of fundamental democratic values, but actually they're there. And for example, Parliament was very hostile in the 18th century to a standing army. And as a result, there was something called the Mutiny Act that had to be re-enacted by Parliament every single year. So this was a really, really short leash. I think we've gotten away from that, probably because we trust our armed forces now more than they may have done in the 18th century, but it's just telling. And how little we know really about that period, I don't know about Rory's probably up on this. And Ken, I'm sure you're very up on the 18th century as well. Do you remember the 18th century, Ken? Not quite that old. But perhaps to add a question and throw it to Rory is really what is the role of the normal courts vis-à-vis the military justice system? And how independent is the military justice from a normal court? Well, Ken, that's a huge question because of all that's implied. So I'll try and break it down and what I'll talk about, I'll talk about three separate things. And I'll talk about the independence of our military courts. And I think this is really the nub of what Jean and I are gonna talk about this evening. And so I'm gonna leave that to the end, the independence issue. And there's an ironic little twist in that some leading case law in Canada that emerged just as the Charter of Rights and Freedoms was enacted that dealt with the independence of courts generally actually borrowed from a pre-charter case of military law and the independence of courts martial. And we've now come full circle now that the Supreme Court of Canada recently accepted or granted leave for appeal in a series of cases that deals with the independence of military judges. So we've come full circle in the space of about 45 years. But I'm gonna leave the independence for the end because that's probably gonna be our stepping off point for further discussion. The other thing I'm going to talk about is what do we mean by military justice? And there's a narrow definition and a broad definition. And then we can talk about the role of ordinary civil courts in resolving questions of military justice. So in Canada, last year, Bill C77 finally came into force or significant elements of it came into force. Bill C77, which was an act to amend the National Defense Act that introduced the victim's Bill of Rights to the Canadian military justice system was actually enacted in 2019. But significant portions of it only came into force on the 20th of June, 2022. It took three years for the governor and council to enact the regulations that would bring it into force. And one of the things that that did is it introduced an express definition of military justice for the National Defense Act. And military justice essentially is equivalent to the code of service discipline. Now that's the narrow definition. That's the disciplinary regime that governs the Canadian forces. But one could talk about military justice in a much more broad sense because when we look at the maintenance of discipline, efficiency and morale in the Canadian forces, the code of service discipline is but one tool that is used for that. It's a heavy tool. It's a big tool. It's a big hammer that can be used to discipline members of the Canadian forces. But it's not the only one that's used and increasingly I would suggest it's not even the most frequently used. Increasingly over the past seven years, I have seen an increase in the use of what can be characterized as administrative measures. So non-disciplinary measures that are used to maintain the discipline, efficiency and morale of the Canadian forces. And when a member of the armed forces feels aggrieved by any such administrative measures, their first course of action would be to bring a grievance within the statutory process that's set out in the national defense set. But after that, they have recourse to the ordinary civil court, specifically the federal court of Canada. And so the civil court still have a role to play in supervising the executive when they're exercising those administrative decision-making powers. We've also seen where the civil courts continue to have a role to play based upon recent direction, when I say recent, it was about a year and a half ago that the minister of national defense issued to the director of military prosecutions to the Canadian forces, Provo Marshall that allegations of sexual assault and other allegations of criminal misconduct of a sexual nature will be investigated by civil police and will be prosecuted before the civil courts because our civil courts have parallel and concurrent jurisdiction in matters of criminal law. So if a member of the Canadian forces commits an assault, a criminal code assault under section 266, they could potentially be prosecuted at court Marshall but they could also be prosecuted before a civil court either a provincial court or a superior court of justice. So there is concurrent parallel jurisdiction. Now one could argue that the minister of national defense doesn't have the power to issue direction directly to the director of military prosecutions or the Canadian forces of Provo Marshall. In fact, I've overtly said that because she doesn't but the point to take away from that is that the civil courts continue to have jurisdiction and we are seeing some but not all allegations of sexualized criminal misconduct allegedly committed by members of the Canadian forces being prosecuted before civil courts. Some are still being prosecuted before courts Marshall. So now you've got a selective justice system but the civil courts just because we've got a military justice system doesn't mean the civil courts cease to function vis-a-vis members of the armed forces. And that brings us to independence. But before you get to independence, let me, for the benefit of viewers who may not be familiar either because they're not Americans or if they are Americans, they've never thought much about the military justices. Let me just give the counterpoint for the American system. As Rory implied, the military to be an effective fighting force has to be disciplined and the US armed forces are pervasively regulated. This is a pervasively regulated line of work where there are rules and regs covering everything everybody's evaluated regularly. It's an upper route system basically. And as a result, it's a system that has a complex web of sanctions, only some of which are what we classically think of as military justice, namely courts Marshall. But that's like, I think we just had the anniversary of the sinking of the Titanic, didn't we? That's just the tip of the iceberg, forgive the expression. Because what has happened, and I think Rory suggested this, what has happened is there's less and less reliance on the classical court Marshall that we all know from the K mutiny and all of that stuff, but a few good men and more and more reliance on other kinds of sanctions, whether it's summary trials as they're known in Canada or non-judicial punishment and as they're known in the United States. And interestingly, the current numbers, even though the United States has an enormous military legal establishment, hundreds and hundreds and hundreds of lawyers, we had something like, I think, 12 or 1300 general and special courts Marshall last year as opposed to something like 95,000 non-judicial punishments for various kinds of relatively minor offenses. So you have that set of sanctions and then you have a million other kinds of sanctions. If you act up, we're going to throw you out. If you act up, we're going to demote you. If you act up, we're not going to send you to medical school. If you act up, we're not going to let you fly the airplane and so on and so forth. Now on the question of the interaction can between the military legal structure and the civilian courts, just a word on that very briefly. In both countries, some military cases, and here I'm thinking of the criminal cases, the courts Marshall, are eligible to be taken to the Supreme Court of the country. And occasionally, as Rory mentioned, occasionally the Supreme Court of Canada and less occasionally the Supreme Court of the United States do find themselves dealing with questions of military law. Although they tend not to get into sort of technical arcane questions of military law. They tend to take the cases that have some generic constitutional or charter issues. The other thing is in some circumstances, a person can contest a court Marshall collaterally. And by that, I mean, if you're in confinement and the military has confinement facilities, prisons, the writ of habeas corpus is available, at least in the United States. Rory can correct me if I'm wrong, but I imagine it's at least in theory possible in Canada. So you could have a military case wind up as a habeas corpus. It's just the way a state or provincial prisoner might wind up challenging a criminal conviction in the civilian courts. Let me stop there, because I know Rory's dying appropriately to talk about judicial independence, which is one of the major issues both systems are facing. So judicial independence is something that is tested frequently. And what I'm going to suggest is we can look even beyond the United States and Canada. It is something that has been recently tested in the United Kingdom. It is something that has been recently tested in Australia. It is something that has been tested recently in Canada and is about to be tested again before the Supreme Court of Canada with the appeal of the Queen and Edwards and others. And it's a matter that's been tested in the United States. What is interesting. The King and Edwards. True, it was the Queen and Edwards when it was tried at Court Marshall and before the Court Marshall Appeal Court. It is now the King and Edwards, although- All right, I'll be quiet. I'll be quiet now. The style is still yet to be determined because there's actually four separate streams of cases that have been collapsed together. And in fact, when they granted leave, there was just a big long list of cases that received a leave to appeal. It made it look like the Supreme Court of Canada had granted leave to a half a dozen cases and it was all the same thing. They're all gonna be grouped together. But Jean is right. Now it's the King and Edwards and others. The challenge that we have from a comparative perspective is that each country has dealt with these matters in slightly different ways and has slightly different laws, constitutional laws dealing with them, even though we all come from a common antecedent. And as Jean has mentioned, all of these nations, notwithstanding American exceptionalism, all of these countries, Australia, Canada, the United Kingdom, United States and New Zealand all have common law backgrounds. We all have manifested our armed forces in relatively similar fashion and we all have relatively similar military justice systems. There have been discrete differences. And I mentioned these countries because we're one to compare us to the continental systems, like in Germany, like in France. You would see market differences. And so really, and this is a very rough approximation, but generally speaking, the common law countries, so the Kenzakis countries to include the United States, so those five common law countries who often work cooperatively, all still have very robust military justice systems that function in parallel to the ordinary civil courts and often overlap. And where there is a broad application of military justice, even in peacetime, this can be contrasted. And again, it's a very rough approximation to the continental systems which increasingly apply their military law only during times of war or only during operations and do not generally apply it domestically and during peacetime. Now that's an extremely broad generalization, but France is a good example. France does not apply their disciplinary system within the borders of France during peacetime. They use their ordinary civil courts for that, whereas in Canada, we still apply courts-martial across the board, as in the United States, as in Australia. And what we've seen in these common law countries is slightly different evolution of the independence of their judiciary. And I'm gonna be daring, I'm gonna leave out New Zealand for the time being, but I'm going to suggest that there is a spectrum of independence with respect to the judiciary. And at the most independent end of the spectrum, I would suggest this is the United Kingdom because of recent reforms where they have made all of their military judges, civilians who serve under their judge advocate general who is actually a judge, he's the head of their judiciary. He's distinct from the judge advocate general in the United States and in Canada who's the head of the legal services for the armed forces or for a particular service. But the UK judge advocate general is the head of their military judiciary. And their judiciary are all civilians. I would then suggest that the next in line for independence would probably be Canada, closely followed by Australia. And at the, not at the other end of the spectrum, but perhaps the least independent judiciary are the American military judges. In large part because a big distinguishing feature between American military judges and Canadian military judges, they're serving officers. Our military judges are former legal officers. American military judges are legal officers who are now serving as military judges. The difference is once our legal officers are appointed as military judges, they stay military judges until they hit compulsory retirement age or choose to retire. American military judges are like what our military judges were conceptualized back in 1998 with Bill C-25. Because when we introduced Bill C-25, the anticipated role would be, military judges would be appointed for a five-year term and they could be renewed or they could return to being legal officers. Now, why anyone would return to being a legal officer when a military judge gets paid about $80,000 a year more and has a broad amount of independence and status. I'm not sure why anyone would conceptualize that somebody might return to being a legal officer. No, by the way, just to add a footnote. Note that a judge who has a relatively short term of office five years is relatively short for a judge. And as eligible for reappointment, is a judge who is likely to be looking over her shoulder? Oh, not just likely to be, very likely to be looking over his or her shoulder. I mean, that was the main point. So the independence of the military judges was challenged before the court martial appeal court of Canada in 2011 in a case called the Queen in Leblanc. Because it was still a queen then, Jean, in the Queen in Leblanc. And the court ruled that no, the five-year appointment process doesn't carry with it. The security of tenure that is required for independence. We have to remember across common law jurisdictions and even in mixed jurisdictions, the three requirements of independence of judges is security of tenure, security of remuneration and institutional independence. And without those three things, you can still be independent. And as I've often opined, independence is not a binary state, right? Independence is a sliding scale. And one of the most independent actors within any government setup will be judges because of those three criteria. The institutional independence, the security of tenure and the security of remuneration. You can still have people operating with a degree of independence. For example, the director of military prosecutions has a degree of independence. Does he have security of tenure to an extent because he's appointed to a four-year term, can be renewed, can only be removed from office through a mechanism under the National Defense Act. Does he have security of remuneration? Not really, he's paid the same thing as any other colonel or any other legal officer colonel. Does he have institutional independence? Again, a degree of institutional independence, but not much. And so our judges come reasonably close to being as independent as a civilian judge, certainly more so than they did in 2010. But there's still some underlying concerns because they are still subject as officers of the Canadian forces. They are subject to the Code of Service Discipline. We ran into a circumstance like that when the director of military prosecutions attempted and failed to prosecute the chief military judge. And there was a bit of a hue and cry over that. I would suggest, and here's the thing, I would suggest that as of the 20th of June, 2022, our military judges are less independent than they were before that date. And the reason for that is, under the old system that we used to have, Jean mentioned we have summary trials. We no longer have summary trials in Canada. We have summary hearings that are much more similar to the non-judicial punishment of the United States. Whereas in our summary trial system, you could elect trial by court martial for many of the offenses. Now they are completely separate processes. Summary hearings deal with service infractions. Courts martial deal with offenses. If you're charged with a service infraction, there is no election for court martial. Under the old system, our military judges were exempt from summary trials. They could not be tried by summary trial. They are not exempt from service infractions. So now we have a situation where not only could they be charged and tried under the code of service discipline when other select officers cannot. But conceptually, a military judge could be charged with a service infraction and tried by a superior commander like the deputy vice chief of defense staff. And among the penalties that are available to the deputy vice chief of defense staff, if he or she were to try a military judge would be things like a deprivation of pay which everyone else would call a fine but for some reason we can't call it a fine. But it would also include minor punishments which can include confinement to barracks. So you could conceivably have a military judge tried by a lay person and sentenced to confinement to barracks for up to two weeks, which is not unlike house arrest which is a deprivation of liberty. And I'm really waiting to see how director of military prosecutions will explain that that doesn't undermine the independence of a military judge and doesn't infringe section seven of the charter which guarantees all Canadians to be free from deprivation of life, liberty or security of the person except in accordance with principles of fundamental justice. Rory, let me take a second and just recount the history that we've gone through. It's a somewhat different history. Traditionally, and this, in George III's time there were no military judges. Military judges are a relatively recent innovation but when they were first created and let's say that was 1968 in the United States we had something sort of like a judge before then starting in around 1920 but when they were first created in 1968 they were at will judges. They had no term of office, whatever they could be fired tomorrow or transferred to Guam, no offense to Guamanians but transferred someplace unattractive, let's say. Then there was a good deal of litigation I was involved in some of that challenging the lack of any term of office at all. I mean, if you really want to get down to the heart of the matter, it's the term of office the pay is secondary and the institutional independence that's nice but a term of office is the heart of the judicial independence in my judgment. There was litigation that it was a deprivation of due process of law under the Fifth Amendment to the US Constitution to be tried in a criminal case which could impose a death penalty or life in prison by a judge who had no protection at all and the Supreme Court of the United States said no problem, you don't worry about that because in 1787 when our Constitution developed at the convention in Philadelphia there were no military judges, so what's the problem? Anyway, eventually the US Army decided maybe there's something to this and they passed a regulation giving judges a term of office that it had all kinds of outs if it was the convenience of the service that we needed you doing something else to be the assistant Coca-Cola machine officer, that was okay but it was a mere regulation and worse yet not all the services went along with that that was only the Army then the Coast Guard went along that's a tiny little service and the Navy Marine Corps and Air Force refused to go along and that lasted for several years and then finally, finally, finally Congress said wait a minute, we're going to impose a requirement then they directed the president to issue a regulation in what we call the manual for courts martial that would create a term of office so what's the term of office? Three years and I'm here to tell you three years is too short to give meaningful independence to a judge and worse yet, it's renewable so you really have a problem I'll just give you my personal take on this I've come to conclude that the norm ought to be the period of the term of office that's provided to relatively low level federal judges in the United States what we call magistrate judges and by statute Congress has long given those judges an eight year term of office which strikes me as reasonable and the kind of thing that would cause the office to be pretty independent which is all you can ask I mean you could even put aside independence I would suggest three years is too short a term to even learn how to do your job effectively Oh, that's true Yeah Forget independence and if we're looking at postings, I'll take Guam just so you know Jean, I'll take Guam if that's up in the offerings but I mean that's part of the challenge You're going to get a lot of hate mail for this by the way Especially since this is being broadcast in Hawaii I know The when we're talking about judges and one of the challenges we've got and I see and I wrote about this so Jean and I both contributed to a book called Marching to Justice which was edited by a couple of colleagues of ours an American colleague Frank Rosenblatt and now Deep Singh an Indian colleague of ours it's a wonderful book that covers justice systems from around the world and both Jean and I contributed and the contribution that I made talked a little bit about how in Canada we've never really struggled adequately forget I answered the question we've never really struggled until now because I anticipate the Supreme Court of Canada will struggle with this in the King and Edwards but we've never really struggled with what exactly are military judges and it's a question that has been answered in the United States and it has been answered in Australia in relatively similar fashion frankly in both of those countries and the reason I mentioned these three countries is we have a lot in common constitutionally all three countries are federal regimes with both national and sub national governments we have a constitution that divides the powers between the national and sub national level the difference actually between the three countries Canada in that regard is the outlier because in the United States residual powers rest with the states in Australia residual powers rest with the states in Canada residual powers do not rest with the provinces they rest with the federal government our criminal law in Canada is enforced it's prosecuted provincially but it's enacted federally whereas in Australia in the United States criminal law or penal law is enacted in the States so there are distinctions in the United States and Australia their apex courts have very clearly ruled that courts marshal in the military judges presiding over them are not what I would characterize as ordinary courts or ordinary judges they are not part of the judicial branch of government so in the United States they are very clearly and Jean can correct me if I'm wrong I'm not an American constitutional scholar even though proximity has forced me to learn a little bit about the American constitution you're playing one on TV I am right now so the courts marshal in military judges are what can be characterized as article one judges they are not article three judges which is the separate judiciary in the same vein in Australia military judges are not what they call chapter three judges they are not part of the judicial branch that question has been answered relatively definitively in Australia and the United States it has not been answered in Canada it hasn't even been asked they've danced around it so in general they danced around that question in Stillman they danced around that question and I would suggest that in Edwards which will be heard sometime in the next 12 to 18 months whether it's heard by seven judges eight judges or nine judges is yet to be determined but in Edwards the court is going to be forced to address whether or not military judges actually belong to the judicial branch or are part of the executive and that makes all the difference in the world I want to ask you a question sure I want to shift the focus here for a minute to Parliament and we'll get to Congress as well but what's the deal in you know everybody complains about their legislature that's you know in every in every democratic country that's the thing about having a democracy you get to complain about you get to complain and nobody shoots you right right right and nobody arrests you so what's the role of Parliament how does Parliament view its role with respect to the administration of military justice and I have a specific question in mind does Parliament ever try to influence the administration administration of justice in specific military cases so I'll break that down into two questions because you've actually asked me two questions so what's the role of Parliament and what's the role that Parliament sees for itself and I would suggest those are two markedly different questions it wasn't a trick question but you give me a trick answer but that's Gene probably because you don't know the obstinance of our Prime Minister well I won't get into the politics of it but what I will say is this in any Westminster styled Parliamentary democracy which excludes you splitters in the United States right you decided you didn't want a king that's too bad you don't get one so in in in Westminster styled Parliamentary democracies Parliament is supreme which a lot of people don't understand because they think well we've got the Charter of Rights and Freedoms we've got the Constitution but at the end of the day there is an amending formula the Constitution can be changed it would be changed by Parliament Parliament is supreme it is Parliament that legislates it is the executive branch that governs that administers and unlike in the United States and unlike in republics our executive is drawn from Parliament in part so our executive is His Majesty the King in concert with His Majesty's privy councillors the cabinet the executive the governor and council and that's where you get governor and council from it's the sovereign in council with His Majesty's privy councillors so Parliament being supreme holds the executive accountable conceptually in theory in a Westminster styled Parliamentary democracy Parliament decides whether or not the government carries on because the government must command the confidence of Parliament now if you're elected with a majority government odds are you're going to command the confidence of Parliament in fact even if you're elected to a minority government and one of the opposition parties doesn't have much of a spine you're probably going to command the confidence of the House and granted I am getting a little bit political there but that distinguishes us from the United States because of the the clear separation between the executive and the legislature there are a number of other distinctions but that's a huge distinction because at the end of the day the command of the armed forces of Canada by virtue of our Constitution the Constitution Act 1867 section 15 vests command of the armed forces of Canada in the sovereign so it's the crown that exercises not really the crown uh not really the governor and council but the crown itself has vested command in the armed forces now that's generally exercised by the minister of national defense because under the national defense act by virtue of section four the minister has direction and authority over all aspects of national defense and again by virtue of our Constitution Act 1867 section 91 sub seven grants Parliament the authority to legislate for the militia the military and naval forces and for defense right and so our constitutional construct vests the authority of command in the sovereign but the legislative authority within Parliament and then Parliament has legislated to grant the minister of national defense the authority to govern the Canadian forces let me let me give you let me give you a a for instance okay that's very much on my mind and I think Americans tomorrow morning they're going to pick up the paper or go online and they're going to read about this we it's not a military justice matter but it is a matter uh that has to do with the role of Congress uh as everybody knows uh former president Trump is uh facing criminal proceedings particularly in Manhattan New York County New York and the district attorney there Alvin Bragg uh has been subjected to pressure by Republicans in the House of Representatives uh suggesting that he shouldn't be investigating or seeking an indictment from a grand jury in New York uh of former president Trump is that is anything like that conceivable in Canada not really in that regard because the big concern there and there were other concerns raised about Trump when he was present you know because he's the commander-in-chief right and there were things that were being done by him and certainly General Milley was placed in a couple of awkward positions uh that that he eventually dealt with relatively well quite frankly um but our commander-in-chief is not the prime minister and our commander-in-chief as I say is technically the sovereign or in Canada's case the representative of the sovereign the governor general so command of our armed forces is vested not in the head of our government uh the prime minister it's vested in the head of state the sovereign or the sovereign's representative the governor general and that's one of the things that draws a distinction because our head of state performs a largely ceremonial function whereas in the United States you have MPs or members of the the Senate of Canada uh who pick up the phone or send letters to the minister saying you got a kill list case uh there have been I will suggest to you that there have been members of parliament and there have been senators who have attempted to influence what I'll say more broadly speaking is statutory decision making which includes code of service discipline but not just statutory decision making in the administration of the affairs of the Canadian forces it doesn't go very far and it doesn't go very far because at the end of the day the the um chief of the defense staff by virtue of section 18 of the National Defense Act has control and administration of the Canadian forces the chief of defense staff isn't going to worry about what an MP says the chief of the defense staff is going to worry about what the minister says because the chief of the defense staff is accountable to the minister the minister is thereby accountable to parliament that's how parliament holds um decision makers accountable is they hold the minister accountable in parliament right in committee uh and so if an MP writes a letter trying to influence a case it's just not going to go anywhere it's not all that controversial in Canada because if the director of military prosecution gets a letter from member of parliament for kicking horse pass uh the director of military prosecutions is just going to ignore it because there's nothing that can be done well I think Ken we've probably identified a few things that we'll have to put on the table for a further discussion because yeah as you can see Rory and I'll keep going here until we uh you know uh until nightfall well I I was interested in trying to steer you into some uh parent issues you know in in Canada you've got sexual misconduct same here and and key people you know key generals being kicked out of their job because of allegations of sexual conduct you know nothing proven you know in fact we've got a general and Rory correct me if I'm wrong but a general making a lawsuit against the federal government for abusing him without due process yeah I'm not going to comment too much and that's that's Major General Danny Fortain I'm not going to comment too much on his lawsuit there's a lot that could be said I won't venture too much into that what I will say is he's brought an action for damages that is broadly within the context of public law decision making that is not an easy thing to do and and I'll leave it there because I know the lawyers who are representing him they're very capable lawyers um and and you had mentioned that some general officers have have been removed from their jobs because of mere allegations without prosecution I mean that cuts pretty close to home since one of them was a client of mine and and that's not you know a secret or anything but there have been a series of decisions made where individuals have suffered some fairly significant repercussions where there has not been any determination by anything remotely looking like a court and in fact Danny Fortain is relatively unique among the general officers who stood accused because he actually had his day in court and and that case what I don't think I overstepped the balance by saying that case imploded um there were some significant defects in the evidence that was presented by um by the the complainant uh and indeed it appears that the the version that the complainant testified to in court was markedly different than what she told the military police uh which is why that case imploded I'll just ask for one comment uh the the problem the the situation of senior officers flag and general officers is really uh there's an irony to it because on the one hand if you ask the people in the barracks or in the pipe racks on the ships uh they'll tell you that there are different spanks for different ranks and the generals and admirals get away with murder and uh whereas enlisted personnel or junior officers get hammered on the other hand it's a practical matter if you're an admiral or a general in my opinion and speaking really about the situation in the united states where we have a lot of admirals and generals uh these are effectively effectively political appointments and if the management decides that they have lost trust and confidence in you you're toast you will simply be asked to retire and there is a cudgel that the management has which is they can do what's called a grade determination and instead of retiring as a lieutenant general you'll retire as a major general or less all right well that gives each of you a chance to say the last few words how about rory uh do you shoot first since it's you're from the superior country well what i'll say is what i'll say is this can uh much as churchill proclaimed uh that the united kingdom in the united states um were two countries divided by a common language uh one could say the same about the united states and canada as two countries divided by relatively common military justice systems um there is much more that is similar about our our countries uh and our military justice systems and i would suggest in large part because of similar cultures uh similar antecedents for our legislative regimes and for our military traditions um and the devil is in the details those nuanced distinctions that can help us learn about our own system by examining how those distinctions function in a parallel country uh and and that for me as a comparative analyst and as a comparative scholar is is where the gold mine is that's where that's where we can we can really examine um how our own systems uh can evolve for the better is is in examining those nuanced differences i can't improve on that no i can't improve on that rory's hit the nail on the thumb all right well thank you very much and uh the show uh think that can think tech hawaii it can be um seen on a variety of platforms and uh i've enjoyed very much having two esteemed scholars uh to discuss the subject that i knew very little about but uh uh certainly the two of you have done a masterful job thank you so much for watching think 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