These judicial decisions were brought upon by a recent Order issued by the Chief of the Defence Staff (CDS), General Jonathan Vance, to the effect that the Deputy to the Vice Chief of the Defence Staff (VCDS) -- a Regular Forces officer in the rank of Major-General -- has now been given the powers of a Commanding Officer with respect to any disciplinary matter involving any member of the military judiciary.
Court martial is neither an independent or impartial tribunal
According to two separate defence counsel in two recent courts martial, the CDS order flies in the face of the requirement for an independent and impartial tribunal as laid out in section 11(d) of the Canadian Charter of Rights and Freedoms.
In two separate trials, defence counsel argued that the accused would not be tried before an independent and impartial tribunal. This led the presiding judge in each of these trials, Lieutenant-Colonel Louis-Vincent d'Auteuil, to a stay of proceedings; one in R v. Edwards 2020 CM 3006 and another in R v. Crépeau 2020 CM 3007. The Director of Military Prosecutions (DMP) caused the filing of a separate notice of appeal to the Court Martial Appeal Court in each instance in the result that for the foreseeable future the Canadian court martial system is in a standstill
This outcome is hardly surprising. Judges presiding over courts martial in Canada hold a military rank and as such, they are subject to the Code of Military Discipline, the Code of Values and Ethics and a host of regulations, orders and directives published by the chain of command and the Department of Defence. Therefore as commissioned officers, military judges also have multiple obligations and duties as set out in the Queen’s Regulations and Orders. Consequently, Canadian military judges are not independent since they are not immune to disciplinary constraints and are subject to a wide variety of military obligations and regulations. Contrast this with the UK, Australia and New Zealand, where court martial judges are civil magistrates.
The current situation which contrasts with other Canadian courts is stark, and problematic. Uniformed personnel are entitled to and deserve a modern, equitable system of justice that Canadians would be proud of. However, this is presently not the case. Much much-needed modernization and enhanced fairness of the military justice system is required and there is an urgency to get this done before paralysis sets in any further.
2018 AG Report: impetus to bring about systemic changes to the Court Martial System
While this matter is being reviewed by an appellate court, the Canadian military in general and the Office of the Judge Advocate in particularly should seriously consider the results of the Spring 2018 Report on the Administration of Justice in the Canadian Armed Forces tabled in Parliament by the Auditor General. The AG report concluded as follows:
3.87 We concluded that the Canadian Armed Forces did not administer the military justice system efficiently. There were delays throughout the various processes for both summary trials and court martial cases. In addition, systemic weaknesses, including the lack of time standards and poor communication, compromised the timely and efficient resolution of military justice cases.
3.88 We also concluded that the Office of the Judge Advocate General did not provide effective oversight of the military justice system and did not have the information needed to adequately oversee the military justice system.
In my opinion, this situation is unlikely to change until the CDS rescinds his order and the matter is eventually decided upon by the Supreme Court of Canada. In the interim, the Canadian military courts are inoperative.