Supreme Court of Canada asked to rule on independence of military judges

The request filed on behalf of several service members whose criminal cases are on hold represents the latest twist in a landmark legal battle whose genesis dates back to 2018.

The Supreme Court is being asked to determine whether Canada’s military judges are truly independent.

The request filed on behalf of several service members whose criminal cases are on hold represents the latest – and possibly last – twist in a landmark legal battle whose genesis dates back to 2018, when Canada’s chief military judge was himself charged.

While the fraud case against Col. Mario Dutil was eventually dropped last year, it nonetheless set off a series of events that included a standoff between the rest of the military’s judges and then-defence chief Gen. Jonathan Vance.

That included the four military judges ruling in several cases – since put on hold – that they were not independent because Vance had issued an order placing responsibility for their discipline under another senior officer.

While that position was rejected by the Court Martial Appeal Court in June, the military’s top defence lawyer argues in his submission to the Supreme Court asking it to hear the matter that the military appeal court erred on several counts.

Cmdr. Mark Letourneau, the director of defence counsel services, accused the appeal court of having based its decision on a 30-year-old Supreme Court decision that, in his opinion, all but ignored how the system and military have changed over the intervening decades.

He also argued that it ignored the findings of retired Supreme Court justice Morris Fish’s recent review of the military justice system, whose first recommendation was the appointment of civilian judges to oversee courts martial and end concerns about the judiciary’s independence.

Defence Minister Harjit Sajjan’s office has previously said the government has accepted all 107 of Fish’s recommendations “in principle.”