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Truly independent?

The Supreme Court will get to rule on whether requiring military judges to be members of Canadian Armed Forces infringes the Charter.

Soldiers' legs

The Supreme Court of Canada recently agreed to rule on whether military judges are independent. But for some who have served in the military justice system, there is no question: independence is just not possible.

Whether you are a member of the reserves or regular forces, the infantry or a doctor or judge, everyone who wears a uniform and has a military rank is governed by the Code of Service Discipline (CSD), the National Defense Act and the chain of command. 

"It's a no brainer," says retired major Kashmeel D. McKöena, a former military lawyer, now in private practice. 

"For a judge to be appointed to the bench, the chief of defense staff (CDS) must recommend it. That person has to check off the boxes for all the things the CDS wants. It's not some random, blind search for the best jurist. From the start, people who have been put forward for an appointment are beholden to institutional leadership."

Then, they're asked to do work independently of those who put them in their office. In 1985, the Supreme Court set out the pillars of judicial independence: security of tenure, financial security and institutional independence. While that's fine on paper, the reality is every soldier's commanding officer performs their annual performance review, controls their career advancement and future postings, and is responsible for disciplining them. 

McKöena recalls that while working as a lawyer under the military's judge advocate general (JAG), their plans, interests, expectations and notions of discipline were manifested down to the chain of command. He says there were countless times higher-ranking officers tried to influence his legal opinions.

"Whether it's said to you directly, you understand the commander's intent and their expectations. If I chose not to listen to those quiet, subtle hints, I paid dearly in terms of the work that was handed to me in the future," he says.

McKöena says those who defend the status quo don't want to have this conversation. While a general isn't going to come up to a judge and tell them what they want to see happen, that doesn't mean there isn't influence at play. 

"It's not written anywhere, but it's understood. These traditional values permeate through the chain of command, which makes (the status quo) completely absurd. It's not something you can curb."

The case that's headed to the top court is an appeal from several soldiers whose criminal cases are on hold, rooted in a strange turn of events dating back to 2018, when the military's top judge, Colonel Mario Dutil, was charged with fraud. The deputy chief military judge was assigned to the case but recused himself and did not assign another military judge to preside over Dutil's court-martial. Among the issues raised were the judges' camaraderie and being tried by a former subordinate. The Federal Court upheld this, and soon the charges were withdrawn. 

But the ripple effects remain. Michel Drapeau, a retired colonel turned military law professor and practitioner, says the top judge was perceived as being above the law and unable to be held accountable. That prompted Gen. Jonathan Vance, then chief of defense staff, to issue an order in October 2019, giving the deputy vice chief of defence staff responsibility for the discipline of military judges. 

This was not well received by the judges, who saw it as an infringement on their independence and a violation of an accused's right to be tried "by an independent and impartial tribunal" as set out in section 11(d) of the Charter.

As a result, in 2020, they stayed proceedings in four courts-martial (EdwardsCrépeauFontaine and Iredale). Vance's order was suspended in the fall of 2020 to avoid further stays. However, applications for them continued.

The Court Martial Appeal Court rejected the judges' position in a June 2021 decision, prompting the appeal to the Supreme Court. 

In his 2021 review of the National Defence Act, former Supreme Court Justice Morris Fish pointed to this sequence of events while raising concerns about the independence of military justices. While he didn't doubt their actual independence and impartiality, he felt "the appearance of justice is prejudiced by the fact that military judges remain members of the CAF while holding office." He added: "There are major concerns in this regard."

Among them? Many junior non-commissioned members he met during his review felt judges were more lenient when the accused is a higher-ranking officer and reluctant to see them as lacking in credibility. He also noted concerns among members that judges may be tempted to "tow the party line" in sensitive cases.

"The fact that military judges are subject to the CSD puts them in a position of subordination which is inconsistent with the exercise of judicial duties," Fish wrote in his report.

The first of his 107 recommendations was that military judges cease to be members of the Canadian Armed Forces when appointed and sit on the bench as civilians. 

Drapeau, along with retired Justice Gilles Letourneau, formerly of the Federal Court of Appeal and the Court Martial Appeal Court, made the same call in their 2021 book, Military Justice in Action.

Failing that, the pair recommended that a criminal division be created at the Federal Court for military personnel. That would still allow the military to deal with disciplinary issues, while removing all criminal matters from its jurisdiction. Drapeau says Federal Court judges have the required training, experience, skills and independence to preside at courts-martial and already sit on panels of the Court Martial Appeal Court. He notes the trend among Canada's allies is towards transferring judicial competence from military to civilian courts.

As it stands, three of four court-martial judges have declared they lack independence, there is still no chief military judge in the Canadian Forces, and the JAG Rear-Admiral Geneviève Bernatchez is taking the federal government to court to keep an investigative report into her conduct from being published. The highest-ranking military lawyer in the country, she is currently on medical leave and her job has been posted. 

Drapeau says he's never seen anything like it. While he fears the Supreme Court will only focus on the question of judicial independence, he's hoping the justices will look at the current state of affairs, "recognize there's a crisis behind almost every door we open," and seize the opportunity to provide some strong medicine in the absence of parliamentary action.

"(The federal government) has been aware of this issue since 2018. That's a long time in a justice system. Yet, they have resisted from naming a full-time chief military judge, which seems strange," he says. "Maybe they are planning significant reform… but they haven't done it."

While he "loves the military," McKöena says the idea that an institution created more than 100 years ago can't be challenged or forced to evolve is ridiculous. That said, as an institution bound by tradition, "the Canadian Forces are not designed to self-correct."

"What's needed are institutional oversights, like the Supreme Court. They need to grow a pair and say, 'what's going on here?'"

And if not for the sake of justice itself, then for the sake of those in uniform people say they respect. 

"How can we treat them this way," McKöena asks "They defend our right to live in a constitutional democracy, but we're a bit skimpy in applying the same constitutional standards to their needs and their care."