CANADA’S MILITARY CLAIMED A REPORT DIDN’T EXIST, BUT IT DID.
Endorsed by Judge Advocate General’s office
Despite being warned what they were doing was potentially illegal and punishable by imprisonment, top military officers failed to disclose important documents under the Access to Information law, the National Post can reveal.
The military officials claimed that an internal report highlighting problems with the court martial system didn’t exist — even though there were electronic and paper copies of the draft document.
However, other officers were so worried about the ethical and legal issues that they alerted the highest level — with the office of Canada’s top soldier, Chief of the Defence Staff Gen. Jon Vance, being warned that such a response was “potentially unlawful.”
Details about the 2017 incident have emerged just a month after an Ottawa court heard about alleged attempts by military officers to hide records needed by Vice Admiral Mark Norman to defend himself against a count of breach of trust. The two incidents are separate but some military sources warn they show a pattern of failure to adhere to the access law.
The 2017 incident involves responses sent by the Office of the JAG (Judge Advocate General) to the Directorate of Access to Information, according to an Aug. 28, 2017, Canadian Forces briefing note.
Judge Advocate General Commodore Geneviève Bernatchez, who oversees the military justice system and is the top legal adviser to the Canadian Forces, endorsed a recommendation by one of her staff to tell Department of National Defence’s access to information officials that the documents didn’t exist, according to the briefing document for Vance’s office. The JAG organization sent a “nil” response following two requests for a draft report of the court martial system review.
However, two officers on Bernatchez’s staff prepared a briefing for Vance because they felt that military regulations required them to alert the senior leadership about potential wrongdoing.
Vance’s office was told that the response “that the requested records do not exist is potentially unlawful in that it seeks to deny a right of access to a record.
“The records that were requested clearly exist, and have existed since at least 21 July 2017.”
The briefing warned that it was an indictable offence under the Access to Information law to conceal a record with “intent to deny a right of access.”
“This offence is punishable by up to two years imprisonment,” Vance’s office was told.
At least three officers in Bernatchez’s organization raised ethical or legal concerns about the decision to withhold the requested records but were ignored, according to the document.
The military’s National Investigation Service examined the concerns but determined that there was insufficient evidence to “support that an offence had occurred,” the DND noted in a statement to Postmedia Wednesday.
The decision to claim “the ‘nil reply’ was due to a misapplication of the Access to Information Act and was not due to malicious intent,” the DND stated.
Information Commissioner Caroline Maynard, who worked as the legal counsel at the Judge Advocate General’s Office from 2001 to 2006, investigated the incident and noted in a Dec. 12, 2018, letter to the DND that the department’s claim that no records existed because the document was a draft report “is not an appropriate reply” under the law.
Her investigation found the records did exist and she flagged what her office considered “a lack of oversight” on the part of the DND.
Bernatchez’s office also sought advice from a legal adviser who pointed out that such draft documents were not exempt from being released under the access law.
Despite the various warnings and advice, as well as the issue being flagged for Vance, the JAG’S office told the DND access branch that no records existed.
This is the second recent allegation that the Canadian Forces have been involved in attempts to prevent the disclosure of records under the Access law.