The Supreme Court agrees to rule on the independence of Canadian military judges




Lee Berthiaume, The Canadian Press



Posted on Thursday, February 2, 2023 at 10:12 PM EST




The Supreme Court has agreed to engage in a landmark legal battle over whether Canada’s military judges, who are responsible for overseeing dozens of courts-martial each year, are truly independent.

The high court announced its decision Thursday following requests from several service members whose criminal cases have been on hold. As is customary, the court did not provide any reason 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 dating back to 2018, when Canada’s chief military judge was indicted for fraud and misconduct.

While the case against Colonel Mario Dutil was eventually dropped in March 2020, it set off a series of events that included a showdown between the rest of the military judges and then-chief of defense Jonathan Vance.

That included the four judges who have ruled in several cases since they were suspended that they were not independent because Vance had issued an order holding another senior officer responsible for their discipline.

That position was rejected by the Court-Martial Court of Appeals in June 2021, but the military’s top defense attorney argued in his submission to the Supreme Court asking it to hear the matter that the military appeals court erred on several charges.

Commander Mark Letourneau, deputy director of defense counsel services, welcomed the Supreme Court’s decision to hear the matter, which involves the cases of nine different members of the Armed Forces accused of a variety of different crimes.

“We look forward to making arguments before the Supreme Court of Canada on the question of whether the military status of our military judges violates our members’ rights to a fair trial before an independent and impartial tribunal,” he said.

Colonel Dylan Kerr, director of military prosecutions, who had been fighting to have the case dismissed, said he remains unchanged in his belief that the Court-Martial Court of Appeal made the right decision nearly two years ago.

“Our position on the arguments remains the same and is well reflected in the CMAC decisions,” Kerr said in an email. “We will now have the 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 really look at the bottom line: Do we need to have military judges in uniform to dispense 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 “civilize” military judges for years. The recommendation was included in a report to Parliament written by retired Supreme Court Justice Morris Fish in 2021.

In his report, following a six-month review ordered by then-Defense 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 Fish’s 107 recommendations “in principle”.

But the call to civilize military judges was not one of 36 he pledged to implement immediately, even though Fish reported that top military commanders supported such a measure.

Retired Lt. Col. Rory Fowler, who also specializes in military cases as a civilian attorney, agreed that it is time for the Supreme Court to consider the question of whether military judges are independent.

Fowler said that’s because the military justice system has undergone significant changes since the issue was last examined during a landmark case in 1992, in which the high court upheld the independence of military judges.

“For 30 years, overall, 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 withdrew when the case against him fell apart.

Vice Chief of the Defense Staff, Lieutenant General. Frances Allen also recently launched a search to replace Judge Advocate General Rear Admiral Geneviève 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 prevent the government from releasing an investigative report into a whistleblower complaint against him.

The military justice system has also faced criticism in recent years for its handling of allegations of sexual misconduct, with Defense Minister Anita Anand ordering the army in November 2021 to begin referring cases to the civilian system.

This report by The Canadian Press was first published on February 2, 2023.

This is a corrected story. An earlier version included an incorrect title for Letourneau. It may also have left the false impression that only the fraud portion of the case against Dutil had been dismissed.


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