The Crown appealed four court martial stay orders entered after military judges held that the possibility of prosecuting military judges under the Code of Service Discipline undermined the accuseds' right to an independent and impartial tribunal under s. 11(d) of the Charter.
The Court Martial Appeal Court held that the decisions below were inconsistent with binding Supreme Court of Canada authority recognizing the dual military and judicial role within the military justice system.
Applying the contextual reasonable-apprehension-of-bias analysis, the court found that military judges remain subject to the National Defence Act and that the impugned order did not compromise institutional independence.
The cross-appeal challenging ss. 12, 18 and 60 of the National Defence Act was dismissed, and motions to admit fresh evidence concerning the appellate court's own independence were also dismissed.
