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.
