Office of the Legal Advisor to the Department of National Defence and the Canadian Forces
August 2010

7. OBSERVATIONS – INTERFACES WITH THE CLIENT

The DND/CF is satisfied with the legal services provided by the DND/CF LA.

Respondents to the 2008 SPPM Client Feedback Survey who reported using Department of Justice legal services in the 12 months preceding the survey generally rated the delivery of these services as excellent. Individual ratings for responsiveness, usefulness, timeliness, and non-criminal litigation met or surpassed the departmental target. The survey report also identified a best practice that had been implemented by the DND/CF LA: a legal risk awareness program that involves both on-line and classroom components.

A sample of client representatives interviewed by the audit team stated that service from the DND/CF LA has always been efficient, timely, thorough, and professional.

It is the audit team’s opinion that the DND/CF LA’s services to its client department are satisfactory.

Appropriate interfaces exist with the client department, but the relationship between the JAG and the DND/CF LA is a continuing challenge for the DND/CF LA and for some of its clients.

The Senior General Counsel and Legal Advisor of the DND/CF LA is a member of the DND Departmental Executive Committee and the Departmental Management Committee. She also sits on a number of ADM-level committees in the DND. She stated that she has a good relationship with the DND Deputy Minister and with the DND ADMs to whom the DND/CF LA provides services. Interviews with client ADMs corroborated this.

Despite these relationships, the DND/CF LA has limited visibility within the CF. For example, it has no presence on CF bases. There is also an ongoing difference of opinion with the JAG concerning the split of responsibilities between the DND/CF LA and the JAG for providing legal services to the DND/CF. The DND/CF LA receives requests for legal services both directly from clients within DND/CF and from the JAG. According to the LSU, many within the CF, including the JAG, believe the CF should only go to the JAG for legal advice. The JAG, in turn, will involve the DND/CF LA if it thinks it is appropriate. Clients contacted during the course of the audit corroborated this. They noted that the JAG does not engage the DND/CF LA except at its discretion, or the client must determine who best to consult: the DND/CF LA, the JAG, or both. In one case, a civilian reporting to a military officer indicated that he had been instructed to deal only with the JAG and not to consult the DND/CF LA directly.

Because the JAG specializes in military law and military justice, in our view there is a risk that it will not fully appreciate that some files have other legal implications with respect to which the DND/CF LA should be consulted. Furthermore, clients may mistakenly contact the JAG for advice on issues of domestic law when they should consult the DND/CF LA. In both situations, the client is at risk of not receiving adequate and/or timely legal advice.

We were told that when the DND/CF LA is consulted by the JAG, it is often on a last-minute, urgent basis. This creates problems of low morale in the DND/CF LA, as well as challenges in managing operational workload.

The DND/CF LA has made efforts to reach out to its client department and explain its role and potential contribution to the DND/CF. Its legal risk awareness program, for example, has provided training to over 6,000 DND/CF employees since its inception. Despite these efforts, the relationship between the DND/CF LA and the JAG remains strained. In an effort to reduce the strain, senior management in the DND/CF planned an initiative to clarify the respective responsibilities of the two units. A mediator was to be appointed who would identify legal areas concerning which the DND/CF LA must be involved and when the JAG must consult with it. We were told that this initiative has not gone forward. However, interviews with client representatives within the DND/CF revealed that some are concerned by the lack of clearly understood responsibilities between the DND/CF LA and the JAG.

It is our opinion that while appropriate interfaces exist with the client department, the relationship between the JAG and the DND/CF LA is a continuing challenge for the DND/CF LA and for some of its clients. Ongoing efforts will be necessary to resolve this issue.

Recommendation and Management Response

5. It is recommended that the Senior General Counsel and Legal Advisor continue to bring the state of the working relationship between the DND/CF LA and the JAG to the attention of senior officials in the Department of Justice.

Agreed. Senior officials at the Department of Justice and the Department of National Defence and the Canadian Forces are aware of this issue and discussions continue. In the meanwhile legal analysis has been undertaken of the respective statutory roles of JAG and DOJ and comparative analysis is underway of how counterpart organizations function in other partner countries.

In the meantime, also, DND/CF LA seeks to improve relations and communications with JAG lawyers by working collaboratively with JAG officers and DOJ counsel on legal advice, having regular meetings between the JAG and the DND/CF LA, ensuring that DOJ speaks with one voice when advising the DND/CF client, and by sharing training opportunities and participating in joint social activities with JAG.