It took more than 19 years of costly litigation to achieve an incomplete independence of military judges: see Leblanc v. R., 2011 CMAC 2, R. v. Lauzon (1998), 6 C.M.A.C. 19 and R. v. Généreux (1992) 1 S.C.R. 259. They still hold a rank inferior to over 100 officers who fall under their penal and disciplinary jurisdiction. As their judicial independence grew, military judges have become more assertive. Improved fairness and justice are already visible on this front.
The same cannot be said, however, of both the existing Prosecutorial and Defence Services which fall under the general supervision of the Judge Advocate General (JAG). The potential for unwarranted command influence is great on both Services, either in the form of active or refraining influence on the lawyers who operate in these Services. Their pay increase is linked to their performance assessed by their superior, i.e., the JAG. It is also the case for their promotion or task assignment within the Canadian Forces as a whole.
Additional evidence of the lack of independence of the Prosecutorial Services is found at the appellate level in s. 230.1 and s. 245(2) of the National Defence Act (ACT) which give to the Minister of National Defence (Minister) the right to appeal against acquittals and other decisions of the courts martial and the CMAC. The Minister does not enjoy the independence that the Attorney General has. In the course of his or her administration of justice, the Attorney General is by constitutional conventions not bound by Cabinet decisions. This constitutional protection does not apply to the Minister. He is bound by Cabinet decisions and permeable to Cabinet influence and wishes.
Justice must not only be done, but must also be seen to be done. The same goes for prosecutorial and defence independence: such independence must not only exist, but must be seen to exist. It is only at that price that fairness and public confidence in the administration of penal military justice will exist and flourish.
There is no looming evidence of a reform of the Act which would grant these two Services their independence from the chain of command in the prosecution and defence of ordinary criminal law offenses to the benefit of both the accused and the public. Yet such guarantees of independence exist in the civilian justice system: the Director of Public Prosecutions (DPP) and the Legal Aid Services perform their respective functions with independence, free from any improper influence.
For example the DPP at the Federal level fulfills the responsibilities of the Attorney General of Canada by prosecuting criminal offenses under federal jurisdiction. He or she reports to Parliament through the Attorney General of Canada: see the Director of Public Prosecutions Act, S.C. 2006, c.9, s.121. In Ontario legal aid services are provided by a Corporation which, pursuant to s. 3(4) of the Ontario Legal Aid Services Act, 1998, S.O., c.26 "shall be independent from, but accountable to, the Government of Ontario as set out in this Act". S.72 requires the Corporation to submit an annual report to the Attorney General of Ontario who "shall submit the report to the Lieutenant Governor in Council and shall table the report before the Assembly".
Ordinary criminal law offenses as a general rule should be prosecuted before civilian tribunals where the accused will have the same benefits as those conferred upon Canadian citizens. As long as the military justice system will be prosecuting ordinary criminal law offenses and depriving accused of their constitutional right to a trial by jury, the lack of independence of the Prosecutorial and Defence Services will be detrimental to the accused and bring a visible stamp of unfairness on the system.
At least, should not the Prosecutorial and Defence Services be under the supervision of the Attorney General rather than the JAG?
Should not the right of appeal be conferred upon the Attorney General rather than the minister of National Defence?
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