Breaking the Deadlock: Independence of the Military Judiciary and the Court Martial Appeal Court of Canada

Abstract

On 29 January 2021, the Court Martial Appeal Court of Canada will hear a series of joined appeals concerning the independence of the military judiciary in the Canadian Forces. This issue dominated the landscape of the Code of Service Discipline over the courts of 2020. It has led to stays of prosecution in several courts martial and threatens the confidence that members of the Canadian Forces and the Canadian public might have in the Code of Service Discipline. It has open a rift between the military judiciary and the senior leadership of the Canadian Forces. Arguably, the dialogue between the judiciary and the executive has broken down. This paper anticipates the manner in which the Court Martial Appeal Court of Canada will review the judgments at court martial that have led to these appeals and how the Court may examine the central issue of judicial independence within the context that has arisen over the past several months. The anticipated remedy is that the Court Martial Appeal Court will declare that section 60 of the National Defence Act, which establishes the jurisdiction of the Code of Service Discipline, will have no force or effect as it pertains to military judges, until and unless the executive or Parliament create or enact sufficient safeguards for the independence of the military judiciary. This remedy will correct problematic conclusions of several judgments at court martial. It will recognize the central problem while permitting courts martial to continue. This will help restore confidence in the Code of Service Discipline, while offering an opportunity for the executive and legislature to improve the framework that could protect judicial independence. It will support renewed dialogue between the judiciary and the executive. It will break the deadlock.