In his 2021 review of the National Defence Act, former Supreme Court Justice Morris Fish pointed to this sequence of events while raising concerns about the independence of military justices. While he didn't doubt their actual independence and impartiality, he felt "the appearance of justice is prejudiced by the fact that military judges remain members of the CAF while holding office." He added: "There are major concerns in this regard."
Among them? Many junior non-commissioned members he met during his review felt judges were more lenient when the accused is a higher-ranking officer and reluctant to see them as lacking in credibility. He also noted concerns among members that judges may be tempted to "tow the party line" in sensitive cases.
"The fact that military judges are subject to the CSD puts them in a position of subordination which is inconsistent with the exercise of judicial duties," Fish wrote in his report.
The first of his 107 recommendations was that military judges cease to be members of the Canadian Armed Forces when appointed and sit on the bench as civilians.
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As it stands, three of four court-martial judges have declared they lack independence, there is still no chief military judge in the Canadian Forces, and the JAG Rear-Admiral Geneviève Bernatchez is taking the federal government to court to keep an investigative report into her conduct from being published. The highest-ranking military lawyer in the country, she is currently on medical leave and her job has been posted.