Dylan Kerr

Nine members of the Canadian Armed Forces charged with service offences under the Code of Service Discipline challenged the constitutional validity of the statutory requirement that military judges presiding over courts martial must hold officer rank, alleging a breach of the right to an independent and impartial tribunal under s. 11(d) of the Charter.

The majority held that the military status of military judges, as presently configured under the National Defence Act, meets the three essential conditions of judicial independence — security of tenure, financial security, and administrative independence — and that a reasonable and informed person would not apprehend bias or insufficient independence.

The Court declined to depart from its earlier ruling in R. v. Généreux and upheld the constitutionality of ss. 165.21 and 165.24(2) of the NDA.

Karakatsanis J. dissented, concluding that the disciplinary accountability of military judges to the executive chain of command undermines judicial independence in a manner that cannot be saved under s. 1.

Military accused persons charged with serious civil offences under s. 130(1)(a) of the National Defence Act argued that the military justice system's denial of a jury trial violated s. 11(f) of the Charter.

The majority held that s. 130(1)(a) falls within the military exception in s. 11(f) because it was validly enacted under Parliament's power over militia and defence under s. 91(7) of the Constitution Act, 1867, and is not overbroad under s. 7.

The majority rejected any heightened 'military nexus' requirement beyond the accused's military status.

In dissent, Karakatsanis and Rowe JJ. would have read a military connection requirement into s. 130(1)(a), limiting military court jurisdiction to offences directly connected to military circumstances.

Military accused persons charged with serious civil offences under s. 130(1)(a) of the National Defence Act argued that the military justice system's denial of a jury trial violated s. 11(f) of the Charter.

The majority held that s. 130(1)(a) falls within the military exception in s. 11(f) because it was validly enacted under Parliament's power over militia and defence under s. 91(7) of the Constitution Act, 1867, and is not overbroad under s. 7.

The majority rejected any heightened 'military nexus' requirement beyond the accused's military status.

In dissent, Karakatsanis and Rowe JJ. would have read a military connection requirement into s. 130(1)(a), limiting military court jurisdiction to offences directly connected to military circumstances.

The appeals addressed whether provisions of the National Defence Act permitting the Minister of National Defence to initiate appeals in military justice matters violate ss. 7 or 11(d) of the Charter.

The Court held that prosecutorial independence is a principle of fundamental justice, but that the Minister benefits from the same strong presumption of independent prosecutorial discretion as other public officials exercising prosecutorial functions.

The challenged provisions were found constitutional, and no statutory framework or evidentiary record established improper partisan motive.

On the mistrial issue, the Court held the military judge committed no reviewable error in refusing a mistrial after issuing strong curative instructions.

The motion to quash was dismissed and the Minister’s appeals were allowed.