In a democracy, it is vitally important that judicial systems as a whole be impartial and independent of all external pressures so that those who appear before them and the wider public can have confidence that their cases will be decided fairly and in accordance with the law.
When carrying out their judicial function each one of these actors in the justice system, be they judges or prosecutors and defence lawyers must be free of any external influence, direct or indirect.. In the case of the military justice system, such influence could arise from pressure, by the executive (i.e. Cabinet ministers) or the military chain of command
There is also another fundamental truth learnt from history that underpins a fair and just military justice system. That is prosecutorial independence. The decision to prosecute someone must ultimately be one taken by a prosecutor acting independently from the chain of command and /or from political influence.
In an article published on January 18, 2016 by Hill Times, titled “Parliamentary control of Armed Forces: a matter of national urgency and public Interest”, retired justice Gilles Létourneau and Professor Michel Drapeau posit that in Canada the Director of Military Prosecutions (DMP) lacks such independence. The article notes that the Judge Advocate General (JAG) who reports directly to the Minister of National Defence actually supervises the DPM. Additionally, lawyers working in the DPM are an integral part of the JAG’s chain of command; their selection for service within the DMP as well as their subsequent postings and assignments, appointments and promotions are all determined by the JAG chain of command to which they are totally subservient and obedient.
The authors submit that the time has come for Parliament to review, if not restrict, the extraordinary reserved authority, powers, control and influence of the JAG over the superintendence of the military justice system. Needed military law reforms cannot, they write, realistically come from within the Defence establishment. This onerous task and responsibility, are that of the legislator who should advance strong and pressing legislative corrective medicine in order to modernize and democratize the Canadian military justice system.