Supreme Court reaffirms independence of military judges, dismisses challenges

The Supreme Court has ruled that military judges, who preside over dozens of courts martial every year, can serve as officers and their status does not violate the constitutional right to a fair trial.

It is an important decision with profound implications on the military justice system, which is separate and distinct from civilian courts.

The country's highest court chose to become involved following requests from more than half a dozen members of the Armed Forces whose criminal cases have been on hold.

At issue has been the question of the independence of military judges, who also serve as officers and are subject to the chain of command, including discipline by superior officers.

Each of the nine defendants, who had been charged with various service-related offences, argued the divided loyalties of the military judges violate their constitutional right to an impartial trial.

But in a 6-1 decision ruling on Friday, the high court said that Canada's system of military justice as configured under the National Defence Act, "fully ensures judicial independence for military judges in a way that takes account of military context."

The legal debate stretches back to 2018, when the now-former chief military judge was charged with fraud and misconduct. The case against Col. Mario Dutil was eventually dropped two years later, but it prompted a standoff between military judges and former chief of the defence staff general Jonathan Vance.

Four military judges put several cases before them at the time on hold, ruling that they were not independent because Vance had issued an order that placed the chief military judge and all other military judges under the command of the deputy vice chief of the defence staff.

That position was rejected by the Court Martial Appeal Court in June 2021, which opened the door for the supreme court to weigh in.