CDS-imposed limitations on convening courts-martial

The COVID-19 pandemic has been forcing many institutions, public and private, to revisit how they function.  Courts are no exception, and across Canada, courts, and the Chief Justices and senior judges who manage them, have had to struggle with ensuring that the courts continue to serve the needs of, and deliver justice to, the Canadian people.

Courts martial and the military judges who preside at them are in a similar circumstance.  Putting aside the fact that, two months after the retirement of the Chief Military Judge of the Canadian Forces, we are still waiting for the Governor in Council to appoint a new Chief Military Judge, restrictions arising from precautions relating to COVID-19 are presenting a particular challenge to courts martial. 

Specifically, convening courts martial is not solely dependent upon the same considerations with which civilian Chief Justices (and Regional Administrative Judges) must contend; when issuing guidance for court martial processes, the Acting Chief Military Judge is at the mercy of direction issued by the Chief of the Defence Staff (CDS).  Thus, the manner in which the military judiciary fulfills its roles and obligations is subject to direction by a member of the executive who may have priorities that are distinct from ensuring that the rule of law is respected.  This brings into question whether the military judiciary is truly independent.

Some practitioners and scholars who concern themselves with military justice in Canada may have been of the view that the independence of the military judiciary is a settled matter.  However, recent judgments at court martial, and a recently filed Notice of Constitutional Question regarding judicial independence, combined with some tangible impacts of COVID-19 on the Code of Service Discipline, might suggest otherwise.

Global Military Justice Reform contributor Rory Fowler poses some of these questions, and some relevant factors, in a recent blog article, here.