Military Justice and Judicial Independence at the Supreme Court of Canada
[Editorial Note: This blog is co-authored with my colleague Afton David. Afton is in-house counsel with a Defence industry company and joined me as co-author of the chapter entitled “A Fork in the Road and the Path Not Taken”, in the military anthology: Franklin Rosenblatt and Navdeep Singh, eds, March to Justice, Global Military Law Landmarks (Noida, India: BluOne India, Thomson Press (India) Ltd., 2021). Our chapter focused on R v Généreux,  1 SCR 259, in which we examined the nature of judicial independence in Canadian military law. Afton and I also plan on publishing a paper examining the issue of judicial independence in military justice, the issue that will be examined by the Supreme Court of Canada on Monday, 16 October 2023, in the hearing of the appeals in Edwards, et. al. v R]
Judicial independence in the military justice system is not a novel issue in Canada; over thirty years ago, the Supreme Court of Canada (SCC) examined this very issue in R v Généreux,  1 SCR 259. At that time, judges who presided over courts martial (and who were referred to as “Judge Advocates”) were appointed from a list maintained by the Judge Advocate General (JAG), an officer in the Canadian Forces (CF) and senior-most legal advisor to the Minister, the CF, and the Department of National Defence on matters of military law. The SCC held that this afforded the executive branch of government too much control over military judges, and, therefore, impaired the accused’s right to a “public hearing by an independent and impartial tribunal” under section 11(d) of the Canadian Charter of Rights and Freedoms (Charter).
An issue that was not resolved in Généreux was whether the judicial branch in the military justice system is distinct from the executive. In our Westminster Parliamentary democracy, the judicial branch is perceived as being separate and distinct from the executive and the legislature. This distinction is a fundamental requirement of the rule of law in Canada.
On October 16th, the SCC will once again examine whether the independence of military judges, who also serve as officers in the Canadian Forces (CF), is compromised because of their status as officers. One of the central issues in Leading Seaman Edwards, et. al. v R is whether the potential for military judges to be influenced by the executive, through their standing as CF officers, compromises their institutional independence.
This issue rose to prominence following the failed prosecution of the former Chief Military Judge, Colonel Dutil, in 2019 and 2020. Following that prosecution, Defence Counsel Services raised repeated applications relying on the fact that, for disciplinary and grievance-related purposes, the Chief Military Judge and the other military judges fall under the command of a General Officer, the Deputy Vice Chief of the Defence Staff.
In a series of escalating judgments, military judges eventually held that a reasonable bystander, fully informed of the circumstances and the law, and viewing the matter realistically and practically, would conclude that military judges do not benefit from sufficient institutional independence.
[And, as an aside, following Colonel Dutil’s retirement in March 2020, the Governor in Council has failed to designate a new Chief Military Judge. For the past 3 1/2 years, the head of the military judiciary has been the Acting Chief Military Judge. During this period of time, no other court in Canada has had an Acting Chief Justice or Chief Judge for more than three months. A reasonable bystander, fully informed of the circumstances and the law, and viewing the matter realistically and practically, would likely start to wonder if the executive was expressly choosing not to designate a new Chief Military Judge – which would include a promotion to the rank of Colonel/Captain (Navy) and an increase in salary – as punishment for military judges who gradually held that their independence was being undermined by the executive.]
On appeal, in R v Edwards, et al, 2021 CMAC 2, a unanimous Court Martial Appeal Court of Canada (CMAC) concluded that there is an overlap between the judicial and executive branches within the Westminster system of government. In support of this conclusion, they asserted that military judges may perform functions of the executive in Boards of Inquiry, much as civilian judges may serve as commissioners of inquiry under the Inquiries Act.
However, this rationale puts the cart before the horse; Judges may occasionally be assigned as commissioners of inquiry because of their perceived independence – but this is not a source of their independence. Nor does that make them permanent members of the executive. Military judges, as commissioned officers of the CF, are permanent members of the executive. They are therefore markedly different from civilian judges occasionally performing functions for the executive. Civilian judges are also not subject to the same tensions and potential interference as military judges.
When the Code of Service Discipline was amended in June 2022 as a result of Bill C-77, An Act to amend the National Defence Act and to make related and consequential amendments to other Acts, a further factor undermining the independence of the military judiciary arose in the form of “service infractions”, which are distinguishable from “service offences”. Service infractions are non-criminal disciplinary infractions, triable only by “summary hearings” on a balance of probabilities, with no right to elect trial by court martial.
Prior to Bill C-77, the Code of Service Discipline defined only service offences triable by military tribunals. These military tribunals were comprised of either “summary trials”, presided over by a “presiding officer” from the accused’s chain of command, or courts martial, presided over by military judges. Summary trials had no jurisdiction over senior officers at the rank of colonel or above, or over military judges.
Now, however, any member of the CF, including military judges, may be tried for a service infraction by summary hearing. And, while this may be viewed as a “great equalizer”, demonstrating that no one is above the law, it also means that military judges who preside over courts martial, and who must therefore be sufficiently independent and impartial to provide decisions free of apprehension of reprisal or undue influence, can now be charged and punished by their chain of command – specifically, their disciplinary chain of command, representing the executive branch. These same representatives of the executive have a direct interest in the decisions made by military judges at court martial and could even find themselves appearing before the same.
I have previously raised concerns regarding the potential for miscarriages of justice and abuses in relation to the new “Military justice at the Unit Level” (MJUL) introduced by Bill C-77:
A few comments on Bill C-77 …, 28 May 2019
Representatives of the Office of the JAG repeatedly suggest that the regime for service infractions is akin to professional regulation. That claim is debatable, in light of the markedly more intrusive nature of the service infraction regime, compared to typical professional regulation. The Law Society of Ontario, for example, cannot confine a lawyer to their barracks.
A reasonable bystander, fully informed of the circumstances and the law, may well conclude that this leaves military judges, who are responsible for presiding over courts martial, vulnerable to manipulation by the executive. This goes against a fundamental facet of judicial independence in Canada. One could argue that they are now more vulnerable to such manipulation than they were before the new MJUL came into force on 20 June 2022.
One of the principal arguments raised by the Director of Military Prosecutions (DMP) before the CMAC in the cases leading to the present appeal in Leading Seaman Edwards et al was that civilian judges are subject to criminal law, consequently, military judges should be subject to the Code of Service Discipline. The merit of that argument is diminished when one realizes that it fails to consider key distinctions between the two processes. It is impractical, if not impossible, for certain key figures, including DMP and the JAG, to be prosecuted before a court martial. The failed prosecution of Colonel Dutil demonstrated the difficulty in prosecuting a military judge at court martial. And military judges remain subject to the concurrent jurisdiction of civil courts of criminal jurisdiction. The necessity of prosecuting military judges before courts martial is dubious.
Military judges are vulnerable to manipulation by the executive. What, then, would be a reasonable solution?
In the Third Independent Review of the National Defence Act, former SCC Justice Morris Fish recommended that military judges be “civilianized”. Although this would ‘answer the mail’; we suggest that one need not go that far to ensure the independence of military judges. The source of vulnerability regarding the institutional independence of military judges is the jurisdiction of the Code of Service Discipline by virtue of section 60 of the National Defence Act and the lack of any procedural or substantive safeguards to prevent the Executive from hampering the independence of the military judiciary. In order to assure the judicial independence of military judges, the SCC need only declare section 60 of the NDA of no force or effect for military judges until adequate safeguards are put in place within the relevant legislation.
Military judges would remain subject to the concurrent jurisdiction of civil courts of criminal jurisdiction, just as civilian judges are. They would remain subject to the supervision of the Military Judges inquiry Committee regarding their conduct and functions as military judges. And, most importantly, the reasonable bystander, fully informed of the circumstances and the law, and viewing the matter realistically and practically, would be satisfied that military judges are not vulnerable to undue influence from the executive.
Such an outcome would clarify issues arising 30 years ago in Généreux and would be consistent with its reasoning. It would recognize a clear distinction between the judiciary and the executive within the military justice system; it would safeguard judicial independence; and it would ensure that courts martial may proceed unimpaired by these issues.