The special character of military duties and service conditions may justify some restrictions on the enjoyment of certain civil rights and fundamental freedoms which would not be acceptable for civilians. However, barring a sound justification, members of the armed forces, like all any other members of our society, should have these rights and freedoms respected and protected. This includes the right of everyone, including service members, to a fair trial by an independent and impartial tribunal established by law and notably separate, both in reality and appearance, from the military chain of command.While some progress has been made on this front as a result of several compelling judicial decisions, some changes are still needed to achieve the full independence of military judges.
Military judges are appointed by the Governor-in-Council (G-I-C). They are normally drawn from officers (Regular or Reserve) already serving in the CF Legal Branch. Military judges adjudicate at courts martial and other military proceedings such as judicial review of persons held in pre-trial custody. Military judges are only removable by the G-I-C upon the recommendation of an independent Inquiry Committee.
The Chief Military Judge (CMJ) holds the rank of Colonel; the other military judges hold the rank of lieutenant-colonel. The fact that these military judges wear a military rank does nothing to promote their independence, at least in terms of appearance of justice to either the accused or a layperson observing the court proceedings. From times immemorial, the use of formalized military ranks is a system of hierarchical relationships in and within the armed forces by virtue of which a person exercises their command authority. It begs the question: Does a military judge need to have a military rank in the first place?
The absence of military rank would eliminate the present dichotomy in having the Chief Military Judge much junior in rank to the head of the CF Legal Branch, the Judge Advocate General, and all general and flag officers which includes the Chief of the Defence Staff, the Vice Chief of the Defence Staff as well as the Commanders of commands who are all subject to the Code of Service Discipline and, in the final analysis, are all subject to the Chief Military Judge’s judicial authority. In the case of the military judges who hold the rank of lieutenant-colonel they are over-ranked by an even greater number of senior officers within the military hierarchy.
The time has come identify military judge by their title of “Judge” which is quite sufficient as an indicator of their role, function, authority and, above all, independence from the military chain of command. This would considerably enhance the perception of their full independence from the chain of command.