Like Thanos, review and reform of the independence of Canadian military judges is inevitable

I read with relish the recent contribution of my fellow Canadian, Michel Drapeau, regarding what we might characterize as the 'Dutil Affair'.

First, it is refreshing to see a post in French.  It conveys the truly international nature of this Blog.  It also reflects the language of the judicial processes used (both at court martial and before the Federal Court of Canada) for what can be termed the 'Dutil Affair'.  The fact that it is not in the language typically used for this Blog (English) is easily remedied for non-French speakers using electronic translation features.

The Dutil Affair presents an opportunity to learn several lessons - some of which I have commented on myself here and here - and I anticipate there will be much more scrutiny of these lessons in the coming months.  My fellow Canadian has offered some food for thought regarding potential reform.

That said, my perspective differs to an extent.  My colleague suggests: 

"The Chief Military Judge has legal authority over all military personnel working in the military justice system; this includes the military police, the director of military prosecutions, the director of defense counsel services, the other four military judges, and court martial administrative staff."  

This is my translation, and translation can always be a tricky thing when attempting to discern meaning.  However, while I agree that the Chief Military Judge (CMJ) has authority over the Office of the Chief Military Judge, and any court martial over which he presides, I would not suggest that this gives him far-reaching authority over all persons involved in the 'military justice' system in the performance of their duties.  It is unclear what my colleague means by 'legal authority'.  There is a distinction between 'command and control' and juridical jurisdiction.  The CMJ does not direct Military Police in the conduct of investigations.  He does not instruct CF leadership on their disciplinary options.  Military Judges will rule on questions of law brought before them (just as any civilian judge might) and through their judgments may influence how those statutory actors and decision-makers perform their functions in the future.  But this is no different from the role of civilian judges.

That said, the questions posed by my colleague merit answers, and few of those have been forthcoming over the past months.  Colonel Dutil's standing was certainly adversely affected and it is not unreasonable to suggest that harm was done to the reputation of military justice in Canada.  I have suggested previously that it should have been obvious to DMP that any trial of the CMJ should have proceeded before a civilian court of competent jurisdiction.  That was a viable option for the Canadian Military Prosecution Service, and it does not appear that much serious consideration was given to this option.

My colleague is right that military judges are outranked by all general officers.  However, I do not agree that this makes them subordinate to those officers in terms of performance of their duties.  There is a distinction between being 'subordinate in rank' and being subject to direction based upon that rank.  Indeed, some of the positions that my colleague named in his post - like the Judge Advocate General and CF Provost Marshal - enjoy degrees of independence, established under the National Defence Act (NDA) in the performance of their duties and functions.  Military Judges also enjoy independence established both under the NDA and under Constitutional principles enshrined in the Canadian Charter of Rights and Freedoms.  The prevailing question presently, is whether those safeguards are sufficient.

Rank and command are distinct concepts.  Rank does not equate to command.  Among the list of general officers cited by my colleague is the Chaplain General.  However, by virtue of QR&O art 3.31, no Chaplain, including the Chaplain General, may exercise command.  

When I was a legal officer, I was typically outranked by the senior decision-makers I advised.  But, my posting to the Office of the JAG, by virtue of QR&O art  4.081, provided me with a degree of institutional independence.  The senior leaders I advised could not direct when I gave my legal advice, how I gave my legal advice, to whom I gave my legal advice, and, perhaps most importantly, the content of my legal advice.  That said, the 'independence' of a legal advisor differs from that of a military judge.  As I have often stated: whenever someone speaks of 'independence', the two questions that need to be asked are: From whom? And, to what extent?

However, this point of disagreement aside, the independence of the military judiciary remains an issue, and I anticipate that the forthcoming judgment from the Deputy Chief Military Judge (DCMJ) in the court martial of R v Crépeau (which was also conducted in French) will be illuminating.  The accused brought a Notice of Constitutional Question regarding the independence and impartiality of the military judiciary.  This application included examination of the independence of the military bench in the wake of the Dutil Affair and the order by the Chief of the Defence Staff (CDS) placing the military judiciary under the disciplinary authority of the Deputy Vice Chief of the Defence Staff.   It is likely that the CDS' refusal to revoke that order following the judgment of military Judge Commander S. Sukstorf in R v Bourque, 2020 CM 2008, will feature in the judgment in R v Crépeau.  Indeed, I anticipate that the DCMJ, LCol d'Auteuil, will make very pointed reference to the continued existence of that order.  I doubt very much that the CDS and DMP will be entirely content with the judgment in R v Crépeau.

The suggestion that military judges should not be given military rank is not new.  It was suggested by Justice Patrick LeSage in the 'Second Independent Review of Military Justice'.  The recommendation was to replace their rank with the title 'Military Judge'.  Indeed, that nomenclature appears to have been adopted by the military judges themselves, if informally.

Merging the Office of the Chief Military Judge with the Federal Court (or part thereof) could be one option.  However, I suspect it would be an unnecessarily complex option.  It would require amendment of both the NDA and the Federal Courts Act.  And the Chief Military Judge would actually likely lose some authority (as a 'small fish in a bigger pond').  Moreover, those courts perform markedly different functions.  Although some Federal Court judges have some familiarity with military law, they rarely, if ever, deal with Code of Service Discipline issues, save if they happen to be appointed to the Court Martial Appeal Court (CMAC).  Where the Canadian Forces are concerned, the Federal Court focuses principally on issues of administrative law on judicial review.  Federal Court judges do not deal with criminal law (to which the Code of Service Discipline is analogous).  It would not be unreasonable to suggest that Federal Court judges typically have limited experience with criminal law.  Prior to appointment to the bench, most of these judges worked in areas of administrative law, typically as advisors to, or advocates before, federal commissions, boards, and tribunals.  I suggest that this is one of the reasons why, in the past several years, the Governor in Council started to appoint increasing numbers of judges from provincial appellate courts and Superior Courts of Justice to the CMAC - to ensure that judges of that court had robust experience with criminal law.

All of that said, the Dutil Affair highlighted the need for reform to ensure that Canadian military judges enjoy true independence in the performance of their duties and functions.  Whatever the forthcoming judgment in R v Crépeau states, we can anticipate that it will be appealed, and we will eventually have a judgment from the CMAC - and potentially even the Supreme Court of Canada - regarding necessary reform of Canada's military justice system to ensure judicial independence.