Supreme Court of Canada Seeks Rule on Independence of Military Judges – National



The Supreme Court should decide whether Canada’s military judges are truly independent.

The motion, filed on behalf of several military personnel whose criminal proceedings are on hold, marks the latest – and possibly final – twist in a landmark legal battle that dates back to 2018, when Canada’s chief military judge himself was indicted.

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While the fraud case against Col. Mario Dutil finally closed last year, it sparked a series of events that included a stalemate between the remaining judges in the military and then-chief of defense, General Jonathan Vance.

These included the four military judges ruling – since suspension – that they were not independent because Vance issued an order that placed responsibility for their discipline on another senior officer.

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While that position was dismissed by the Military Court of Appeals in June, the military’s chief defense attorney argued in his appeal to the Supreme Court to hear the matter that the military’s court of appeals erred on several counts.

Cmdr. Mark Letourneau, director of defense services, accused the appeals court of basing its decision on a 30-year-old Supreme Court decision which he believed to have all but ignored the changes in the system and the military over the decades.

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He also argued that the results of the recent review of the military justice system by retired Supreme Court Justice Morris Fish, whose first recommendation was to appoint civilian judges to oversee the courts-martial and address concerns about the independence of the judiciary, were being ignored.

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

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But the call to civilize military judges is not one of the 36 it has pledged to implement immediately, though Fish has reported that senior military commanders supported such a move.

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The Office of the Director of the Military Prosecutor is due to file a response to Letourneau’s request with the Supreme Court.

The Supreme Court does not have to deal with the matter and can simply dismiss the appeal for no reason.

But when Letourneau calls on them to hear the case, Letourneau argues that the legitimacy of the entire system is facing a “crisis,” as evidenced by sexual misconduct allegations against several senior officers, the current situation having the confidence of Canadian troops and the public undermines.

“Today more than ever, military judges seem at the mercy of the disciplinary powers of the chain of command, while the officers at the top seem to be exempt,” says Letourneau in his submission, which was written in French.

“On the one hand, the Chief Military Judge has been the subject of discontinued military prosecution, while top CAF officials have been the subject of allegations of serious sexual misconduct, which were publicly detailed by the complainants without initiating a military sentence.”

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Letourneau’s admission to appeal to the Supreme Court is the latest test of Canada’s military justice system, which has faced several largely unsuccessful challenges for its constitutionality.

Dutil’s case was also viewed as a major test before it broke up in March 2020 after his deputy, Lt.-Col. Louis-Vincent d’Auteuil withdrew and refused to appoint another military judge to take over as two of them had conflicts of interest and the third was not bilingual enough.

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The chief military judge tacitly retired nine days later, and the Liberal government has not yet nominated a replacement.

Retired Supreme Court Justice Louise Arbor is conducting her own review on how to stop sexual misconduct in the military, which will include a review of the court martial system.

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After Global News reported allegations of inappropriate behavior by Vance on February 2, the Military Police opened an investigation. On July 15, the military police charged him with obstruction of justice being handled by civilian authorities. This case was postponed until next month.

– With files from Global News

© 2021 The Canadian Press


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