The latest challenge stems from an order from chief of the defence staff Gen. Jonathan Vance last year that placed responsibility for disciplining Canada’s military judges with another senior officer he appointed.
Since August, three of the current contingent of four judges have ordered four courts martial to be stayed after determining that Vance’s order infringes upon their own independence, which in turn undermined the accused service member’s right to a fair trial.
One of those cases involves Capt. Mark Iredale, who is facing three counts of sexual assault. Two others involve service members charged with drug offences. The fourth relates to allegations of insubordination by a junior officer.
Vance subsequently suspended his order to prevent more cases from being affected but he has indicated that will apply only until the military’s appeals court weighs in on its constitutionality.
Defence officials are not saying why Vance issued the October 2019 order in the first place.
“As cases are proceeding through the judicial system (being appealed), it would be inappropriate to comment further on the October 2019 CDS Order,” Defence Department spokeswoman Jessica Lamirande said in an email.
But the timing coincided with the unprecedented court martial of Canada’s top military judge, who at that time was Mario Dutil, a colonel. That case fell apart in March due to questions over whether Dutil could receive a fair trial in the military system.
Dutil’s deputy, Lt.-Col. Louis-Vincent d’Auteuil, presided over the court martial at first, but eventually recused himself. He refused to name another military judge to replace him, saying two of them had conflicts of interest and the third wasn’t bilingual enough.
Military prosecutors, who had insisted on keeping the case within the military justice system rather than the civilian system, arguing it was the most appropriate venue, eventually decided to withdraw the charges. Dutil retired as chief military judge nine days later.
Retired colonel Michel Drapeau, who is now a lawyer specializing in military cases, says this latest dispute over Canada’s military justice system underscores what he believes is a desperate need for Parliament to intervene and launch an overhaul.
Drapeau has long argued that military judges are not impartial because they are, first and foremost, members of the Canadian Armed Forces. He says Vance’s order simply confirmed that fact in a way that could not be ignored.
“Up until then, they probably looked at themselves as being independent,” Drapeau said of the military judges.
“They convinced themselves they were. But now it became loud and clear. ? They’re full-scale members of the military.”
While he supports the need for courts martial to hold military members to account, Drapeau has been pushing for years for Canada to follow allies such as Britain in making judges truly independent of the military.
His ideas range from using civilian judges or former military lawyers to preside over courts martial to making a military division within the Federal Court.
However, he says whatever steps are taken will need the involvement of the government and Parliament, which have tended to leave all issues involving discipline within the Armed Forces to the military.
“The parliamentarians, it’s up to them,” Drapeau said. “They need to take this in hand, and they haven’t.”
The constitutionality of the Canadian Armed Forces’ system for disciplining service members has been challenged before.
The Supreme Court weighed in last year, ruling that those accused of serious crimes do not have the constitutional right to a jury trial.
That represented a victory for the courts martial system, but the challenge still causes problems for the military justice system.
At least seven criminal cases were dropped before the ruling, while prosecutors and military police opted to reduce charges in several others as they awaited the Supreme Court’s decision. More than half of the cases involved sexual assault allegations.
Earlier, the federal auditor general blasted the military in May 2018 for inefficiencies within the system, which had resulted in several serious cases being abandoned in recent years.
Among the problems: lengthy investigations; delays in deciding whether to lay charges; overly long periods of time setting up courts martial; and even issues with regards to letting accused service personnel access defence lawyers.
An internal review of the system by the judge advocate general’s office in July 2017 found a lack of confidence in it among senior leaders, who felt it was broken.
A copy of the report was leaked to CTV in January 2018 after the office judge advocate general, which oversees the military justice system, denied its existence.