Supreme Court Decides Military Judges Are Independent from Chain of Command
The Supreme Court of Canada has ruled that the constitutional right of judicial independence is not compromised for soldiers appearing in front of military judges.
Nine members of the Canadian Armed Forces had raised concerns, arguing that military judges, who are also military officers within the chain of command, may have divided loyalties.
Although some military judges acknowledged their lack of judicial independence and susceptibility to pressure from higher ranks in these cases, the military’s appeals court disagreed. They stated that the system is impartial and independent enough to ensure fair trials. This view was upheld by the Supreme Court in a 6-1 ruling on April 26, which dismissed the appeals brought by Forces members.
Canada’s military justice system operates separately from civilian courts, but courts martial can prosecute soldiers for violations of both military and criminal law.
Justice Nicholas Kasirer, writing for the majority of the Supreme Court, noted existing legal protections around how military judges are compensated, assigned cases, and disciplined, which are shielded from interference by the chain of command.
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For instance, only the federal cabinet has the authority to remove military judges, and this can only be done following a recommendation from a panel of appeal judges.
The ruling states, “The safeguards of the independence and impartiality of military judges are sufficient.” It also emphasizes that Canada’s military justice system ensures judicial independence in a manner that aligns with the military’s disciplinary, efficiency, and morale maintenance policies, as well as the public’s trust in a disciplined military.
However, Justice Andromache Karakatsanis, the sole dissenter, argued that judicial independence is undermined by the possibility of military judges being prosecuted by their superiors, highlighting the lack of institutional separation.
The Supreme Court’s decision could reopen cases that were stalled by military judges before proceeding to trial.
