The Supreme Court of Canada has agreed to rule on the actual independence of military judges, who are responsible for presiding over dozens of courts martial each year.
The nation’s highest court announced its decision Thursday morning in response to an appeal from several service members whose criminal cases are pending. As usual, the court provided no reason or explanation for its decision to hear the case.
The ruling was eagerly awaited and represents the penultimate twist in a long saga that dates back to 2018, when Canada’s chief military judge was charged with fraud and misconduct.
Although the case against Colonel Mario Dutil was ultimately dropped in March 2020, this case nonetheless triggered a series of events, including a confrontation between the other military judges and the Chief of Staff at the time, the General Jonathan Vance.
Four military judges had thus ruled in several cases — since put on hold — that they could not be considered independent because General Vance had assigned the responsibility of “judging the military judges” to another senior officer, whom he himself named.
However, according to the judges already in place, this order violated their own independence and thus compromised the right of the accused soldiers to a fair and equitable trial.
General Vance’s decision had been overturned by the Court Martial Appeals Court in June 2021, but the Army’s lead defense attorney argued in his submission to the Supreme Court that the Military Court of Appeals made several mistakes.
Lieutenant Commander Mark Letourneau, deputy director of defense counsel services, on Thursday welcomed the Supreme Court’s decision to hear the case, which involves the cases of nine service members charged with a variety of offences.
“We look forward to making submissions to the Supreme Court of Canada on whether the military status of our military judges violates the rights of our members to a fair trial by an independent and impartial tribunal,” he said. declared.
Colonel Dylan Kerr, Director of Military Prosecutions, who argued against the Supreme Court referral, maintains the Court Martial Appeals Court made the right decision nearly two years ago. “We will now have the opportunity to present these submissions to the Supreme Court for a final decision on the matter,” he wrote in an email Thursday.
Entrust to the civil
The Supreme Court’s decision to hear the case is significant given its potential effect on the entire court martial system, experts say. It also comes at a time when many observers believe the military justice system is in a state of complete disarray.
“The Supreme Court needs to sit down and consider these issues and determine, basically, if we really need to have military judges who wear uniforms to dispense justice,” said retired Colonel Michel Drapeau. Personally, I do not think so. »
Mr. Drapeau, who is now a civilian lawyer specializing in military cases, points out that the government has struggled for years with entrusting criminal cases in the army to non-military courts. This recommendation was made in a report to Parliament written by retired Supreme Court Justice Morris Fish in 2021.
Following a six-month review ordered by then Defense Minister Harjit Sajjan, Judge Fish concluded that the appointment of civilian judges would eliminate any perception of a lack of independence, without creating real impact on military justice.
Mr Sajjan’s office said at the time that the government accepted “in principle” Justice Fish’s 107 recommendations.
But that recommendation was not one of 36 that the minister had pledged to implement immediately, although Justice Fish reported that the general staff was supportive.
The Supreme Court’s decision to hear the case also comes after there has been no chief military judge for nearly three years. Mr. Dutil quietly retired when the case against him was dropped.
The number two on the defense staff, Lt. Gen. Frances Allen, is currently trying to replace Judge Advocate General Genevieve Bernatchez, who has been on extended sick leave for at least a year.
The National Post reported last week that Vice-Admiral Bernatchez is trying to block the government in federal court from releasing an investigative report into a whistleblower that targets her personally.
The military justice system has also come under fire in recent years for its handling of allegations of sexual misconduct. Current Defense Minister Anita Anand ordered the military in November 2021 to begin referring such cases to the civilian justice system.