CMACC and judicial independence

Another issue has been added to the already-long list roiling Canadian military justice. This time it concerns the independence of the Court Martial Appeal Court of Canada. This report by Lee Berthiaume of The Canadian Press provides details. Excerpt:

The question of whether military judges are independent was subsequently sent to the Court Martial Appeal Court, where three civilian judges including Chief Justice Richard Bell heard arguments from both sides in the winter and was set to make a ruling.

But now lawyers for the accused in seven affected cases want permission to submit new evidence and argue Bell is not sufficiently independent. That evidence includes Bell’s own statements to a judicial commission this month about his lack of independence.

Bell specifically flagged the fact that all justices on the military Appeal Court are required to be sitting judges in other courts at the same time. In his case, Bell is a sitting Federal Court judge in New Brunswick.

“Membership as a judge or even chief justice of the CMACC is dependent upon membership as a judge of another source court,” reads a submission prepared for the commission on Bell’s behalf in March and referenced by defence lawyers in the seven cases.

“This potentially exposes the chief justice of the CMACC to the directives of other chief justices, thereby compromising his or her capacity to effectively carry out the independent functions of the CMACC.”

The defence lawyers also included in their submissions several statements by fellow Court Martial Appeal Court judge Edward Scanlan, who appeared alongside Bell before the judicial commission on May 11, questioning the independence of the chief justice.

Those include an email from a Federal Court administrator to Bell, which Scanlan read aloud, suggesting the administrator’s control over Bell’s schedule affected his ability to work on military appeals.

Scanlan described the situation as “the chief justice of a national court sitting and hearing cases where he is being told by a trial court how much time he is going to get because they fill the rest of his time up.”

“That is a direct, frontal attack by a source court. It has allocated to itself the exclusive authority to decide how much time CMACC justice has to do his work. It’s a frontal attack on his judicial independence and on the judicial independence of the court.”

The article does not make clear what the "judicial commission" referred to is or whether the pertinent materials are available to the public. CMACC's "cases under reserve" webpage indicates that the government has until tomorrow in which to respond to May 18, 2021 motions concerning fresh evidence in several cases, and these are presumably the cases referred to above. Readers who can shed light on the procedural setting are invited to do so.