(Ottawa) The constitutional guarantee of judicial independence and impartiality is not compromised for military personnel who appear before military judges, the Supreme Court of Canada has ruled.
Nine members of the Canadian Armed Forces had appealed in different cases, arguing that military judges could have a “divided loyalty” between their status as judges and their status as officers, within a chain of command.
Some of the military judges involved in these cases had also recognized that they lacked judicial independence, because they could be vulnerable to pressure from superior officers.
But the Court Martial Appeal Court of Canada did not share this point of view: it considered that the system was sufficiently impartial and independent to allow soldiers to benefit from fair and equitable trials.
The Supreme Court confirmed this opinion on Friday, in a six-to-one ruling, and rejected the appeals of the nine soldiers.
This decision could also unblock cases that military judges had suspended before even going to trial.
Canada’s military justice system operates separately from civilian courts, although courts martial can try members of the Armed Forces for violations of military and criminal law.
“Sufficient guarantees”
Writing for the Supreme Court majority, Justice Nicholas Kasirer cited existing legal protections regarding how military judges are paid, assigned to a case or punished for wrongdoing. “These matters are immune from non-judicial interference by the chain of command,” Judge Kasirer wrote.
For example, it is the federal cabinet that has the exclusive power to dismiss military judges – and only after recommendation of the Military Judges Inquiry Committee.
“The guarantees of independence and impartiality of military judges are sufficient,” we read in the Supreme Court ruling.
“The Canadian military justice system fully guarantees the judicial independence of military judges in a manner that takes into account the military context, and more particularly the legislative policies aimed at maintaining discipline, efficiency and morale within the Armed Forces as well as public confidence in a disciplined military. »
Judge Andromache Karakatsanis, the lone dissenting voice, argued that judicial independence was effectively compromised by the fact that military judges can still be sued by their superiors.
“There is not sufficient institutional separation – or independence – between the role of the executive branch and that of the judicial branch,” writes Judge Karakatsanis. Indicted members of the Canadian Armed Forces are not guaranteed a trial before an independent and impartial tribunal […] given the pressures placed on military judges as a link in the chain of command. »