In 2020, military judges were forced to direct a stay of proceedings of four courts martial (Edwards, Crépeau [in French], Fontaine [in French], and Iredale) after determining that an order issued by the then-Chief of the Defence Staff directly infringed their judicial independence, thereby violating the right of accused persons to be tried “by an independent and impartial tribunal” as guaranteed by section 11(d) of the Charter.
The order in question delegated to the Deputy Vice Chief of Defence Staff the authority to lay disciplinary charges against military judges, thereby directly threatening their judicial independence. The order in question was subsequently suspended by the chain of command in order to avoid further stays of court martial proceedings.
Despite the suspension of the order, a joint hearing of three accused members of the Canadian Armed Forces (CAF) has since argued that, in the current military context, military judges do not appear to have sufficient judicial independence within the meaning of section 11(d) of the Charter (MacPherson, para. 18).
While the court martial eventually rejected this argument after a full analysis of the judicial independence of military judges, it did recognize the importance of striving for public confidence in order to support judicial independence (MacPherson, para. 104). In an effort to clarify the degree of judicial independence of military judges, this HillNote provides an overview of the essential conditions established by the Supreme Court of Canada for the guarantee of judicial independence and their application to the military justice system.
What is Judicial Independence?
Judicial independence is a fundamental principle of the Canadian justice system. In particular, not only does it enable judges to make decisions free from outside influence or interference, but it also allows litigants to have confidence in the administration of justice.
The concept of judicial independence is intended to guarantee the perception of individual as well as institutional impartiality. For this reason, it is not enough that the judiciary and the institution be perceived as independent in reality (actual impartiality); they must also appear to be independent in the eyes of the public (perceived impartiality).
The Supreme Court of Canada, in Valente, set out the three essential conditions of judicial independence in paragraphs 27, 40 and 47:
i. Security of tenure – this means that a decision-maker who is actually and perceived to be independent can only be removed from office for cause, thus avoiding arbitrariness.
ii. Financial security – this means that a decision-maker is truly independent only if their salary or other remuneration is provided for by law, so as to be protected from arbitrary interference by the executive.
iii. Institutional independence of the tribunal – this refers to the independence of the tribunal with respect to matters of administration bearing directly on the exercise of its judicial function.
The Supreme Court subsequently specified that these three essential conditions require an objective analysis taking into account the “reasonable person” test – that is, a reasonable person who is well informed of the relevant statutory provisions and context and who is in a position to consider that judicial independence is not impaired in the circumstances (Lippé).
Thus, these three essential conditions are applied with varying emphasis depending on the nature, role and level of authority of each tribunal. The Supreme Court also adapted this question to the military context, namely whether a reasonable person, familiar with the constitution and structure of the General Court Martial, would perceive that tribunal as independent (Généreux).
Evolution of the Principle of Judicial Independence in Case Law and the Military Context
In 2019, the military justice system was recognized by the Supreme Court as “a full partner in administering justice alongside the civilian justice system” (Stillman, para. 20). This is consistent with the Supreme Court’s earliest analysis of judicial independence in the military context in 1980 (MacKay). One thing the Supreme Court recognized was the need to provide the CAF with expert decision-makers who are informed of the unique circumstances of the military context.
Originally, the Supreme Court required that the courts, as a judicial branch, be “completely separate” from the executive and legislative branches (Beauregard). This conclusion was subsequently tempered by Lippé, which clarified that section 11(d) of the Charter is not intended to guarantee an “ideal” judicial independence, but rather one that is apparent to a reasonable person well-informed of the circumstances.
This distinction accepts the inevitable dual role of military judges, both as officers of the armed forces in the chain of command and as judicial decision-makers (MacKay and Généreux).
Given the dual status of military judges as judges and officers, it is reasonably foreseeable, and even desirable for the proper functioning of the CAF, that the degree of judicial independence not be “ideal” independence, but rather in line with the three essential conditions in Valente (MacPherson).
Components of Judicial Independence as Applied to the Military Context
Section 165.21 of the National Defence Act (NDA) sets out the terms for the appointment, removal and tenure of military judges. This section grants the Governor in Council the power to “appoint any officer who is a barrister or advocate of at least 10 years’ standing at the bar of a province and who has been an officer for at least 10 years to be a military judge.”
Security of Tenure
The NDA provides in section 165.21 that a military judge “holds office during good behaviour and may be removed by the Governor in Council for cause on the recommendation of the Military Judges Inquiry Committee” (MJIC).
The MJIC, composed of three civilian judges of the Federal Court, is the only body with the power to inquire, upon written request by the Prime Minister, into any matter relating to the removal of a military judge from court martial.
Accordingly, unless an application for removal is made by the MJIC, a military judge holds office until age 60, the mandatory retirement age from the CAF, or until the military judge applies for release from the CAF (section 165.21, NDA).
The issue of financial security is addressed in section 165.33 of the NDA. This section provides for the establishment of the Military Judges Compensation Committee (the “committee”) to inquire into the remuneration of military judges every four years.
The committee consists of three members appointed by the Governor in Council on the basis of nominations by the military judges and by the Minister of National Defence. In conducting its quadrennial inquiry, the committee is required to consider certain factors predetermined by the NDA, such as the prevailing economic conditions in Canada and the cost of living, and the need to attract outstanding candidates. At the conclusion of the inquiry, the committee submits a report to the Minister of National Defence, within a time frame established by the Minister, containing its recommendations.
Institutional and Administrative Independence
The final condition is that of institutional independence requiring that the court martial be free from outside interference in the administrative and judicial functions of the court. This principle is supported by the creation of the Office of the Chief Military Judge (OCMJ).
Although funded by the National Defence budget, the OCMJ is an independent federal agency specifically dedicated to the administration of courts martial. Its organizational structure includes:
- a Chief Military Judge (CMJ) responsible for ensuring judicial independence, as well as a Deputy Chief Military Judge who performs the same duties in the absence or incapacity of the CMJ;
- military judges (currently three); and
- a Court Martial Administrator responsible for convening courts martial on the basis of charges laid by the Director of Military Prosecutions, and for matters relating to the administration of the OCMJ and the supervision of its staff, with the exception of military judges.
Military judges perform any duties that the CMJ may direct, as long as those duties are not incompatible with their judicial duties (s. 165.23(2), NDA).
In sum, the role of Canada’s courts as resolver of disputes, interpreter of the law and defender of the Constitution requires that they be completely separate from the executive and legislative branches. However, the Supreme Court concluded that the military context requires a particular approach that allows for some interference by the chain of command in the administration of military justice.
As well, the Supreme Court believes that “[j]ust as the civilian criminal justice system grows and evolves in response to developments in law and society, so too does the military justice system” (Stillman, para. 53). That is why the third independent review of the military justice system, conducted under the authority of the Honourable Morris J. Fish, may bring new considerations to the guarantee of judicial independence. The deadline for tabling this report in Parliament is June 2021.
Author: Sabrina Charland, Library of Parliament
Categories: Law, justice and rights