Prosecutorial independence at issue in Canadian court-martial appeals

An issue of prosecutorial independence has been raised in two cases pending before the Court Martial Appeal Court of Canada, Thibault (CMAC-581) and Gagnon (CMAC-577). The thrust of the argument in each case is that the provisions of the National Defence Act and the Queen's Regulations and Orders for the Canadian Forces that authorize the Minister of National Defence to appeal are invalid under s. 52(1) of the Constitution Act, 1982. In a nutshell, these parties contend that the Minister is not independent, as a prosecutor must be, and as a consequence his notices of appeal in the two cases must be quashed. An unsuspended declaration of invalidity is sought. The core question is stated as follows:

Would a reasonable person who is aware of the relationship that exists between the Executive and the prosecutor conclude that the prosecutor is free from pressure by the Executive?

The motion to quash in Thibault asserts that the Minister lacks the independence that surrounds the Attorney General and the Director of Public Prosecutions.

Questions of prosecutorial independence are rarer, certainly, than questions of judicial independence. In the United States, a question of prosecutorial independence arose several years ago in connection with the military commissions, leading the Chief Prosecutor to quit. The Uniform Code of Military Justice's provision for the Judge Advocates General to certify cases to the U.S. Court of Appeals for the Armed Forces -- a power almost always exercised on behalf of the prosecution -- may raise such a question.