Supreme Court to rule on independence of military judges
OTTAWA — The Supreme Court has agreed to wade into a landmark legal battle over whether Canada’s military judges, who are responsible for overseeing dozens of courts martial every year, are truly independent.
The top court announced its decision on Thursday following requests from several service members whose criminal cases have been on hold. As is customary, the court did not provide any reasons or explanation for its decision to hear the matter.
The decision had been eagerly anticipated and represents the penultimate twist in a longrunning saga whose genesis dates back to 2018, when Canada’s chief military judge was charged with fraud and misconduct.
While the fraud case against Col. Mario Dutil was eventually dropped in March 2020, it nonetheless set off a series of events that included a standoff between the rest of the military’s judges and then-defence chief Jonathan Vance.
That included the four judges ruling in several cases — since put on hold — that they were not independent because Vance had issued an order placing responsibility for their discipline under another senior officer.
That position was rejected by the Court Martial Appeal Court in June 2021, but the military’s top defence lawyer argued in his submission to the Supreme Court asking it to hear the matter that the military appeal court erred.
Cmdr. Mark Letourneau, the director of defence counsel services, welcomed the Supreme Court’s decision to hear the issue, which involves the cases of nine Armed Forces members charged with different offences.
“We look forward to presenting arguments to the Supreme Court of Canada on the question of whether the military status of our military judges violates the rights of our members to a fair trial before an independent and impartial tribunal,” he said.
Col. Dylan Kerr, the director of military prosecutions, who had been fighting to have the case thrown out, said he believes the Court Martial Appeal Court made the right decision two years ago.
“Our position on the arguments remains the same and is well reflected in the decisions at the CMAC,” Kerr said in an email. “We will now have an opportunity to make those submissions to the SCC for a final disposition on the matter.”
The Supreme Court’s decision to hear the case is significant given its potential effect on the 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 look at these issues: Do we need to have military judges that wear the uniform in order to provide justice?” said retired colonel Michel Drapeau. “I personally don’t think so.”
Drapeau, who is now a civilian lawyer specializing in military cases, noted that the government has faced calls to “civilianize” military judges for years. The recommendation was included in a report to Parliament written by retired Supreme Court judge Morris Fish in 2021.
In his report, following a sixmonth review ordered by thendefence minister Harjit Sajjan, Fish said the appointment of civilian judges would remove any perception of a lack of independence without any real impact on military justice.
Sajjan’s office said the government had accepted all 107 of Fish’s recommendations “in principle.”
Retired lieutenant-colonel Rory Fowler, who also specializes in military cases as a civilian lawyer, agreed that it is time for the Supreme Court to consider the question of whether military judges are independent.
Fowler said that is because the military justice system has undergone significant changes since the last time the question was examined during a case in 1992, in which the top court upheld the independence of military judges.