Tuesday, October 27, 2020

R v MacPherson et al. - military judicial independence in Canada redux

On Friday, 23 October 2020, military judge Commander S. Sukstorf handed down her written reasons for judgment in R v MacPherson and Chauhan and J.L., 2020 CM 2012.

This is the most recent judgment in what has now been an 8-month examination of military judicial independence under the Code of Service Discipline for the Canadian Forces.

Global Military Justice Reform contributor Rory Fowler offers some observations here

The judgment in MacPherson et al. will not be the last word on the matter.  At present, the court martial judgments in R v Edwards, 2020 CM 3006, R c Crépeau, 2020 CM 3007, R c Fontaine, 2020 CM 3008, and R v Iredale, 2020 CM 4011, have been appealed by Director of Military Prosecutions (DMP), on behalf of the Minister of National Defence, and the appeal for R c Crépeau is also the subject of a cross-appeal.  By order of the Chief Justice of the Court Martial Appeal Court of Canada (CMAC), dated 19 October 2020, these appeals will be heard together before a bilingual judicial panel.

It is entirely possible, if not likely, that MacPherson et al. will be added to that docket.  Those appeals likely will not be heard before January 2021.

Contrary to prior dire predictions that the court martial process would grind to a halt in the wake of EdwardsCrépeau, Fontaine, and Iredale, the judgment in MacPherson et. al., in the wake of the decision by Chief of the Defence Staff (CDS) on 15 September 2020 to suspend his impugned Designation Order of 2 October 2019, has set the stage for courts-martial to proceed, at least in the near future.

What the CMAC will make of the issues being raised in the appeals is an entirely different matter. 

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