Lieutenant-Commander Éric Léveillé

The Crown appealed decisions staying proceedings against the respondents on the basis that the military justice system violated their section 11(d) Charter rights to an independent and impartial tribunal.

The respondents argued that the Office of the Chief Military Judge's organizational structure and the application of the Code of Service Discipline to military judges created a reasonable apprehension of bias.

The Court Martial Appeal Court allowed the appeals, finding that the organizational structure, including the Canadian Forces Organization Order, did not violate the Charter.

The Court held that military judges remain officers subject to the Code of Service Discipline and that the military justice system respects the core requirements of institutional independence.

The stays were lifted and the trials ordered to proceed.

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.