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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 long-running saga whose genesis dates back to 2018, when Canada’s chief military judge was charged with fraud and misconduct.
While the 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 on several counts.
Cmdr. Mark Letourneau, the assistant director of defence counsel services, welcomed the Supreme Court’s decision to hear the issue, which involves the cases of nine different Armed Forces members charged with a variety of 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 remains unchanged in his belief that the Court Martial Appeal Court made the right decision nearly 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 feel the military justice system is in a state of complete disarray.
“The Supreme Court needs to sit down and look at these issues and to really look fundamentally: 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 six-month review ordered by then-defence 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.”
But the call to civilianize military judges was not one of the 36 that it committed to implementing immediately, despite Fish having reported that senior military commanders were supportive of such a move.
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 landmark case in 1992, in which the top court upheld the independence of military judges.
“For 30 years, in general, we have not had a case that directly and comprehensively examined the independence of military judges, and there have been significant changes to the Code of Service Disciplines,” Fowler said.
The Supreme Court’s decision to hear the case also comes after nearly three years without a chief military judge. Dutil quietly retired when the case against him fell apart.
Vice-chief of the defence staff Lt.-Gen. Frances Allen also recently launched a search to replace Judge Advocate General Rear-Admiral Genevieve Bernatchez, who has been on extended sick leave for at least the past year.
The National Post reported last week that Bernatchez is fighting in Federal Court to stop the government from publishing an investigation report about a whistleblower complaint against her.
The military justice system has also faced criticism in recent years over its handling of allegations of sexual misconduct, with Defence Minister Anita Anand directing the military in November 2021 to start referring cases to the civilian system.
This report by The Canadian Press was first published Feb. 2, 2023.
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