Supreme Court rules military judges sufficiently independent from chain of command

OTTAWA — The constitutional right of judicial independence is not compromised for soldiers appearing in front of military judges, the Supreme Court of Canada has ruled.

Nine members of the Canadian Armed Forces had appealed different cases, arguing that military judges may have divided loyalties because they are also military officers who are part of a chain of command.

Some of the military judges in those cases agreed that they lack judicial independence, because they could be vulnerable to pressure from higher ranks.

But the military’s appeals court disagreed, saying the system is sufficiently impartial and independent to allow for fair trials. The Supreme Court upheld that view in a 6-1 ruling Friday that dismissed the appeals brought by Forces members.

Canada’s military justice system operates separately from civilian courts, though courts martial allow for prosecution of soldiers for violations of both military and criminal law.

Writing for a majority of the Supreme Court, Justice Nicholas Kasirer cited existing protections in law around how military judges are compensated, assigned cases or punished for wrongdoing, saying these are “insulated from non-judicial interference by the chain of command.”

For example, the federal cabinet has the sole power to dismiss military judges, and only after a recommendation from a panel of appeal judges.

“The safeguards of the independence and impartiality of military judges are sufficient,” reads the ruling.

“Canada’s system of military justice fully ensures judicial independence for military judges in a way that takes account of the military context, and specifically of the legislative policies of maintaining discipline, efficiency and morale in the Armed Forces and public trust in a disciplined military.”

The sole dissenting voice, Justice Andromache Karakatsanis, argued judicial independence is undermined by the fact military judges can still be prosecuted by their superiors.

“There is not enough institutional separation — or independence — between the executive and the judicial role,” she wrote.

The court’s decision could unfreeze cases that military judges had stayed before they could proceed to a trial.

This report by The Canadian Press was first published April 26, 2024.

Dylan Robertson, The Canadian Press