Constitutional challenge to judicial independence (Canada)

Because they are still Canadian Forces officers, military judges are subject to the Code of Service Discipline. Being on such an ‘ejection seat’, they cannot be considered an ‘independent and impartial tribunal’.

This is, in essence, what counsel for the defence argued last Monday before the court martial according to this article. Capt Crépeau is charged with disobedience of a lawful command, conduct to the prejudice of good order and discipline and behaving with contempt toward a superior officer. During a NATO exercise in Norway in 2018, Capt Crépeau, who was a second lieutenant at the time, allegedly wore captain’s rank, which purportedly confused her immediate supervisor, a lieutenant. It is also alleged that she refused to remove the rank insignia when ordered to do so.

Defence counsel argues that military judges are exposed to interference by the military chain-of-command, who can charge them with a service offence. Defence counsel argued that this leads to a process that is not sufficiently independent to protect security of tenure, according to defence counsel. In doing so, he relies upon the recent case of Colonel Mario Dutil, the former Chief Military Judge, as a “concrete example” to illustrate his point.

This argument is not entirely novel. It was also raised in R v D’Amico, 2020 CM 2002 and R v Pett, 2020 CM 4002 with different results. However, in D’Amico and Pett, defence counsel focused on a recent order by the Chief of the Defence Staff, which placed military judges under the disciplinary authority of the Deputy Vice Chief of the Defence Staff. The legislation that places military judges under the authority of the Code of Service Discipline was not directly challenged, as no Notice of Constitutional Question was filed in either case. In the present case, Defence Counsel expressly gave notice that the statutory basis of this jurisdiction was being challenged.