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.
It is difficult to take Ms Lake's article particularly seriously when she starts with a quote from a former legal officer that is fundamentally incorrect:
ReplyDelete"For a judge to be appointed to the bench, the chief of defense staff (CDS) must recommend it. That person has to check off the boxes for all the things the CDS wants. It's not some random, blind search for the best jurist. From the start, people who have been put forward for an appointment are beholden to institutional leadership."
The CDS does not recommend persons for military judicial positions. Applicants apply to the same office as any other federally appointed judge - c/o the Executive Director, Judicial Appointments at the Office of the Commissioner for Federal Judicial Affairs Canada. Candidates are reviewed by a Judicial Advisory Committee, who conduct their functions in accordance with published guidelines. Then, the one difference compared to other federally appointed judges (who are selected by the Minister of Justice), the Minister of National Defence nominates persons to be appointed by the Governor in Council.
This is not the first problematic article that I have seen authored by Ms Lake, which incorporated incorrect information that would have been easily verifiable.