ARCHIVED - Rules of engagement: The role of the Canadian Army’s top lawyer
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Article / July 10, 2015 / Project number: 15-0103
Ottawa, Ontario — All Canadian Armed Forces (CAF) activities, conducted both domestically and abroad, are regulated by a complex body of law and regulations. As the Deputy Judge Advocate General for Regional Services, Captain(Navy) Geneviève Bernatchez is the Army’s top legal advisor. On behalf of the Judge Advocate General (JAG), Major-General Blaise Cathcart, she oversees the delivery of independent, operationally focused and solution-oriented general legal advice and services across the full spectrum of military law to the leadership of the Department of National Defence (DND) and the CAF.
Consistent with the long-held traditions of British common law and to ensure the transparent accountability of the JAG to the Minister of National Defence, the National Defence Act (NDA) provides for the appointment of the JAG and sets out the duties, powers and functions of the position in Canadian law. In this regard, the JAG is the legal advisor to the Governor General, the Minister of National Defence, DND and the CAF in matters relating to military law. The JAG is also charged explicitly with the superintendence of the administration of the military justice system.
The fact that the JAG is a Governor-in-Council appointment; that the position is provided for in the National Defence Act; and is directly accountable to the Minister of National Defence, ensures that the JAG is independent from the Canadian Armed Forces’ chain of command. The Queen’s Regulations and Orders also specify that the JAG has command over all officers and non-commissioned members posted to the Office of the JAG. This ensures that all legal officers are able to provide the kind of unfettered and candid legal advice that the chain of command and the departmental authorities require,” said Capt(N) Bernatchez.
Her extensive legal knowledge and experience covers all three pillars of military law, which include operational and international law, military justice and administrative law. She leads a dedicated team of 83 Regular and Reserve Force legal officers, 9 senior non-commissioned officers and 30 civilian personnel located in 13 regional and satellite offices in Canada, the United States and Germany. “
We’re a very high-demand resource, but a scarce resource at the same time. We like to think that we punch well above our weight in terms of impact and effect, but my clients should be the judge of that,” said Capt(N) Bernatchez.
A native of Gaspé, Quebec, Capt(N) Bernatchez joined the Office of the JAG in 1997 after 10 years in the Royal Canadian Naval Reserve as a Maritime Surface Officer. A graduate of the Université de Montréal’s faculty of law, Capt(N) Bernatchez returned to school in 2008 to pursue a Masters of International Legal Studies with a specialization in National Security Law at Georgetown University in Washington D.C.
Her 18-year military legal career reflects a variety of appointments and responsibilities, including as the JAG’s Chief of Staff and the Deputy Judge Advocate General for Operational Law. Starting in 2000, Capt(N) Bernatchez was either overseeing or part of a team of senior legal officers advising the DND and CAF during a period of high operational tempo, providing significant legal contributions to Canada’s military missions in Yugoslavia, Afghanistan, Haiti and Libya. She also supported major national events such as the Sommets des Amériques in Québec City, the various G7/G8 Summits held in Canada, the Manitoba floods and the 2010 Olympics and Paralympics Winter Games in Vancouver.
In 2009, Capt(N) Bernatchez’s expertise was called upon when the Tallinn Manual on the International Law Applicable to Cyber Warfare was being developed. Launched in 2013 by Cambridge University Press, the Tallinn Manual was the first published manual on the legal framework supporting cyber armed conflicts. This revolutionary publication was produced by an international group of experts at the invitation of the NATO Cooperative Cyber Defence Centre of Excellence.
My role as a legal officer has been and continues to be the provision of options, or what I call legal Courses of Actions (COAs), for the chain of command and decision-makers to meet their objectives while protecting the institution and the soldiers on the frontline,” she said. “
At the end of the day, I want my clients – and those they lead – to be able to make decisions and take action without having to second-guess or question the legality of those actions.”
One of her most memorable moments was in 1989 when, after about 18 months as a Naval Combat Information Operator, Capt(N) Bernatchez was selected for commission as a Maritime Surface Officer during an important period of Canadian military history when women were being admitted to combat arms.
At the time, ships were not designed or organized to accommodate women so we – being a very small group of women – had to improvise to make it work. It was fascinating and very exciting, but it was also daunting, simply because I didn’t necessarily have anyone to look up to,” said Capt(N) Bernatchez. “
I had to build my own image of a female naval officer, and without any female role models to influence or coach me. But without the support of other coaches and mentors, such as Vice-Admiral (Retired) Jean-Yves Forcier, I would never have had the incredible career I am enjoying today.”
In recent years, Capt(N) Bernatchez says requests for legal services have grown exponentially – a trend that she believes will continue with the advancement of communications technology. “
We live in a very complex world and an increasingly connected world, which means that new legal issues are coming to the forefront of our institution on a daily basis. What we’re also noticing across the board is that the current generation of commanders, including Lieutenant-General Marquis Hainse, Commander of the Canadian Army, have deployed several times with legal officers at their side and are now seeing them as an integral part of their team. General Hainse, a strong supporter of the rule of law, knows the value of legal officers.”
According to LGen Hainse, “
Our legal officers play a vital role in understanding and contextualizing Canadian military and foreign domestic law in the areas where our troops deploy. Their trusted guidance and legal advice help to ensure that all Canadian Army operations are in accordance with the highest standards of military law, both at home and abroad.”
While Capt(N) Bernatchez’s professional responsibilities have increased over the years, so too has her appreciation for family life and giving back to the community through volunteer work. However, what keeps the CA’s top lawyer on her toes professionally is “providing legal top-cover” to decision-makers, commanders and soldiers in order to uphold the integrity and reputation of the entire institution.
I’ve been blessed with the opportunity to serve this country with a higher purpose, rather than be consumed by billable hours and client accounts. What I do goes well beyond the need of one person or one organization,” said Capt(N) Bernatchez. “
We, in the Office of the JAG, support democracy, the rule of law and the belief that Canada can make a difference in world affairs. My service continues to be centred on the confidence that I can help our soldiers do what they do best: Defend freedom and justice.”
This is one in a series of occasional articles on the roles that various special advisors play in supporting Canadian Army leadership.
By Meagan Sylvester, Army Public Affairs
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