Independence of the Canadian military judiciary--a possible solution

Afton David and Global Military Justice Reform co-editor Rory Fowler have written on Independence of the Canadian Military Judiciary: Much to be Desired?, published by the Canadian Global Affairs Institute and Triple Helix. Excerpt (footnotes omitted):

A Possible Solution

There is a simple and elegant solution, which lies within the scope of the Supreme Court of Canada’s review, and which, unfortunately, was not explored adequately in Edwards: If military judges were removed from the jurisdiction of the CSD, they would remain subject to criminal law, just as civilian judges are. They would remain subject to the supervision of the Military Judges Inquiry Committee regarding the competent and ethical performance of their functions as military judges. Their eligibility requirements would remain the same, which is, as at this date, to have at least 10 years’ service in the military as an officer and at least 10 years’ membership of a Bar of a Canadian Province in good standing. And, most importantly, the reasonable bystander, fully informed of the circumstances and the law, would be satisfied that military judges are not vulnerable to undue influence from the executive.

Despite the Edwards decision and the proposed amendments in Bill C-66, we maintain that as long as military judges remain subject to the CSD, we are not convinced a “reasonable person, who was informed of the relevant statutory provisions, their historical background and the traditions surrounding them, after viewing the matter realistically and practically” would conclude military judges are free of influence from the executive.

By removing military judges from jurisdiction of the CSD, such an outcome would finally resolve the issues of independence and impartiality of the military judiciary arising out of Généreux 30 years ago, and would be consistent with its reasoning. The issue, now, is whether this logical evolution will arise from a future binding appellate judgment, or whether it will be a product of reform grounded in policy initiatives. One thing is certain; it would recognize a clear distinction between the judiciary and the executive within the military justice system; it would safeguard judicial independence; and it would ensure that courts martial may proceed unimpaired by these issues. Only time will tell how the legislator responds.