Francesca Donna Ferguson

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.

The Crown appealed an acquittal of sexual assault entered by a military judge, arguing that the military judge failed to consider all of the evidence cumulatively and assessed the evidence on the wrong legal principles.

The Court Martial Appeal Court majority dismissed the Crown's appeal and upheld the acquittal.

The Supreme Court of Canada, by majority, dismissed the appeal substantially for the reasons of the Court Martial Appeal Court majority, finding that the military judge's assessment of the evidence was thorough and cumulative, and that no wrong legal principles were applied.

Although some improper speculation was noted, it did not undermine the military judge's fundamental findings.

O'Bonsawin J. dissented and would have allowed the appeal.

The Court dismissed the appeal and affirmed the order for a new trial in a sexual assault prosecution.

It held there was no evidentiary basis to find that the accused took reasonable steps to ascertain consent under s. 273.2(b) of the Criminal Code, so the defence of honest but mistaken belief in consent should not have been left with the panel.