N.S. court martial unconstitutional, lawyers argue

(Published January 13, 2009 in the National Post.)

SYDNEY, N.S. — The defence lawyer for Cpl. Matthew Wilcox says his client cannot receive a fair trial under current Canadian military law because the system for re-appointing military judges violates Wilcox’s constitutional right to be tried before an independent and impartial judiciary.

“The system is under scrutiny. The system is being challenged. The court has to deal with these issues,” Maj. Stephen Turner said during his submissions to military judge, Cmdr. Peter Lamont, in pre-trial arguments Monday.

Wilcox, 23, a reserve soldier from Glace Bay, N.S., is facing charges of manslaughter, criminal negligence causing death and negligent performance of duty in a general court martial after the shooting death of Cpl. Kevin Megeney in Afghanistan in March 2007.

Turner said military judges are appointed to a five-year term, which may be renewed by the executive branch of the federal government, pending a recommendation from a renewal committee. However, he said, while the legislation states a judge’s record of judicial decisions is not to be considered in determining whether to make a recommendation for reappointment, the legislation does not set out the criteria the committee should consider, and does not require the executive to provide reasons for its decision.

Under the current system, Turner said, theoretically, a military judge who is not re-appointed may return to military service, where he could then serve under the command of a senior officer who had appeared before him in court.

Furthermore, Turner said, public confidence in the military justice system would be threatened if there is even the appearance of a possibility that a sitting military judge with intentions of not seeking re-appointment could use his position to further his career after he leaves the bench.

It is the defence position that military judges should serve until the age of retirement, the same as provincial and federal judges in Canada.

In several court martial cases in recent years, chief military judge, Cmdr. Mario Dutil, has ruled the judicial re-appointment process is unconstitutional and declared the legislation to be of no force and effect, Turner said.

However, the judge hearing the Wilcox court marital, Cmdr. Peter Lamont, has upheld the five-year reappointment process in two of his own recent cases.

Turner said it’s unclear what the law is, and to support his point, he tendered as an exhibit the July 2008 Privy Council document re-appointing Lamont to a five-year term as military judge, even though the appointment was made after the Dutil decisions declaring the re-appointment legislation unconstitutional.

Turner said the appropriate result in the Wilcox case is to terminate the court martial proceedings now and recommence them when Parliament has enacted judicial re-appointment laws that are constitutional.

In both 2006 and 2008, there were bills in the House of Commons proposing sweeping changes to the military justice system as recommended by former chief justice of Canada Antonio Lamer in a review he conducted in 2003. The 2006 bill received only first reading and the 2008 bill died on the order paper when Parliament was dissolved in September.

The changes, which included appointing military judges to the age of retirement, were never enacted.

Military prosecutors will respond Tuesday, and the defence is expected to raise a second constitutional challenge Wednesday.

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