Supreme Court of Canada

SUPREME COURT OF CANADA

Appeals Heard: October 16, 2023 Judgment Rendered: April 26, 2024 Dockets: 39820, 39822, 40046, 40065, 40103

Parties

Between:

Leading Seaman C.D. Edwards, Captain C.M.C. Crépeau, Gunner K.J.J. Fontaine and Captain M.J. Iredale Appellants

v.

His Majesty The King Respondent

‑ and ‑

Sergeant S.R. Proulx and Master Corporal J.R.S. Cloutier Appellants

v.

His Majesty The King Respondent

‑ and ‑

Corporal K.L. Christmas Appellant

v.

His Majesty The King Respondent

‑ and ‑

Lieutenant (Navy) C.A.I. Brown Appellant

v.

His Majesty The King Respondent

‑ and ‑

Sergeant A.J.R. Thibault Appellant

v.

His Majesty The King Respondent

and

Canadian Civil Liberties Association and British Columbia Civil Liberties Association Interveners

Indexed as: R. v. Edwards

2024 SCC 15

File Nos.: 39820, 39822, 40046, 40065, 40103.

2023: October 16; 2024: April 26.

Present: Wagner C.J. and Karakatsanis, Côté, Rowe, Kasirer, Jamal and O'Bonsawin JJ.

Headnote

on appeal from the court martial appeal court of canada

Constitutional law — Charter of Rights — Independent and impartial tribunal — Courts martial — Military judges — Whether military status of military judges violates constitutional guarantee of judicial independence and impartiality to which persons tried before courts martial are entitled — Canadian Charter of Rights and Freedoms, s. 11(d) — National Defence Act, R.S.C. 1985, c. N‑5, ss. 165.21, 165.24(2).

The nine accused are members of the Canadian Armed Forces who were charged with service offences under the Code of Service Discipline ("CSD"), which forms Part III of the National Defence Act ("NDA"), and were brought before courts martial. Under the CSD, members of the Canadian Armed Forces may be charged with service offences, which are serious and encompass offences specific to military personnel and offences under the Criminal Code or other acts of Parliament. Service offences are tried before a court martial, which is a military court that has the same powers, rights, and privileges as a superior court of criminal jurisdiction. Courts martial are presided over by military judges, who are required under s. 165.21 of the NDA to be barristers or advocates of at least 10 years' standing at the bar of a province and to be military officers and to have been so for at least 10 years. Section 165.24(2) of the NDA further provides that the Chief Military Judge must hold a rank of not less than colonel. The NDA provides that military judges can only be removed for cause by the Governor in Council upon recommendation of the Military Judges Inquiry Committee ("MJIC"). As officers, military judges are part of the chain of command, and therefore are also subject to prosecution for service infractions and service offences under the CSD.

The nine accused challenged the statutory requirement that the military judges presiding over their courts martial be officers, alleging that it violates their right to a hearing by an independent and impartial tribunal under s. 11(d) of the Charter. In the courts martial, some of the military judges held that they lacked judicial independence by reason of their dual status of judge and officer, and therefore that the respective accused's s. 11(d) rights were infringed. The Court Martial Appeal Court ("CMAC") held that an informed person, viewing the matter realistically and practically and having thought the matter through, would conclude that military judges meet the minimum constitutional norms of impartiality and independence, and therefore that the accused's s. 11(d) rights were not infringed.

Held (Karakatsanis J. dissenting): The appeals should be dismissed.

Per Wagner C.J. and Côté, Rowe, Kasirer, Jamal and O'Bonsawin JJ.: The status of military judges as officers under the NDA is not incompatible with their judicial functions for the purposes of s. 11(d) of the Charter. Accused members of the Canadian Armed Forces who appear before military judges are entitled to the same guarantee of judicial independence and impartiality under s. 11(d) as accused persons who appear before civilian criminal courts, but this does not require that the two systems be identical in every respect. As presently configured in the NDA, Canada's system of military justice fully ensures judicial independence for military judges in a way that takes account of the military context, and specifically of the legislative policies of maintaining discipline, efficiency and morale in the Armed Forces and public trust in a disciplined military. Accordingly, the requirement that military judges be officers pursuant to ss. 165.21 and 165.24(2) of the NDA does not fall afoul of s. 11(d) of the Charter.

In R. v. Généreux, [1992] 1 S.C.R. 259, the Court held that the military status of military judges does not violate s. 11(d). While the Court may depart from precedent when a decision's rationale has been eroded by significant societal or legal change, it has not been shown that the rationale in Généreux has been eroded due to such changes, and therefore there is no compelling reason to abandon settled law. The Court in Généreux did acknowledge that the place of military judges in the military hierarchy detracts from absolute judicial independence, but it also confirmed that s. 11(d) does not require absolute judicial independence or a sort of truly independent military judiciary that could only be assured by civilian judges. "Absolute" independence is not the constitutional standard endorsed in the Court's jurisprudence.

Généreux establishes that whatever concerns might arise as a result of Parliament's choice to require that military judges be officers, that model is not inherently unconstitutional under s. 11(d). Other models, such as a military judiciary composed of civilian judges, might also be constitutionally compliant, but Généreux does not stand for the proposition that an independent military judiciary requires civilian judges or that only one policy option would be constitutionally compliant. Law reform initiatives in other countries may assist in setting government policy but do not require Parliament to follow suit. Recommendations made in independent reports that were submitted in these cases may be of value as a matter of government policy, but they do not determine what is required by s. 11(d) of the Charter. The suitability of various policy options, within the bounds of the Constitution, is a matter of legislative choice. The Court's proper role is to decide whether ss. 165.21 and 165.24(2) of the NDA are constitutional. What is at issue is not whether the Canadian military justice system could practically function with civilian judges but whether the impugned requirement under the NDA violates the guarantee set by s. 11(d).

Généreux continues to provide useful guidance as precedent on the following matters: s. 11(d) applies to the military justice system; a parallel system staffed by judges with military status who are sensitive to the needs of military justice does not, in itself, offend s. 11(d); and there may well be different modalities for ensuring that military judges have a degree of independence that meets the constitutional minimum. Adapted to the military context, military justice is different in some respects from civilian criminal justice, but the guarantee of independence is no less Charter‑compliant by reason of this difference.

In Généreux, the Court ultimately concluded that military judges did not enjoy a sufficient degree of independence; however, this was based on provisions of the NDA that have since been amended. Accordingly, a fresh analysis is required. To assess the independence of a tribunal, a reviewing court asks whether the tribunal may be reasonably perceived as independent. As explained in Généreux, the exercise for evaluating independence and impartiality under s. 11(d) is the same: the question is whether a reasonable and informed person would perceive the tribunal as independent and impartial. The reasonable and informed person has knowledge of all the relevant circumstances and views the matter realistically and practically. They are alive to the relevant contextual considerations, they are right minded, they think the matter through, they apply themselves to the question and obtain the required information.

In Valente v. The Queen, [1985] 2 S.C.R. 673, the Court identified three essential conditions of judicial independence: security of tenure, financial security and administrative independence. Security of tenure requires that the judge hold office whether until an age of retirement, for a fixed term, or for a specific adjudicative task so as to secure against interference by the executive. Financial security requires that the right to salary and pension be established by law and that judicial remuneration be fixed through a process that includes an independent commission. Administrative independence means judicial control over the administrative decisions that bear directly on the exercise of the judicial function. Additionally, even if the reasonable and informed person would conclude that a court is independent because the three essential conditions are met, they may still come to the conclusion that the court is not impartial at either the individual or the institutional level. While independent courts benefit from a strong presumption of impartiality that is not easily displaced, if a reasonable and informed person would think it more likely than not that the court would not decide fairly because of individual or institutional concerns, the impartiality of the court may be challenged.

The three essential conditions of judicial independence for military judges are met through the provisions of the NDA. First, regarding security of tenure, the NDA now provides that military judges are appointed by the Governor in Council, and that unless they are removed for cause, they hold office until they are voluntarily released from the military or resign from the position of military judge, or until they reach the age of 60. Military judges can only be removed from office by the Governor in Council, for cause, upon a recommendation of their judicial peers properly convened as the MJIC. While it is true that military judges, as officers, can be convicted of offences under the CSD and sanctioned to sentences including dismissal from the Armed Forces, a reasonable and informed person, looking at matters practically, including a reading of the NDA as a whole, would not view the risk of there being an indirect means of removing military judges to be a realistic possibility. Second, the requirement of financial security is amply met as military judges have their own remuneration scheme and their compensation is fixed through a process that centres on an independent committee. Third, military judges, including the Chief Military Judge, are responsible for the decisions that must be left to judges in order for there to be sufficient administrative independence, such as assigning military judges to preside at courts martial and establishing procedural rules. These matters are insulated from non-judicial interference by the chain of command.

The place of military judges in the executive branch and their exposure to prosecution for CSD offences do not ground a reasonable perception of a lack of impartiality. First, military judges, as members of the executive, are not in an irretrievable conflict of interest with their judicial role such that the constitutional principle of separation of powers is violated. The manner in which their role as judges is circumscribed makes it plain that they do not act as members of the executive when they perform their judicial duties. Only the Chief Military Judge can assign duties to military judges, and these duties must not be incompatible with their judicial duties, which are also assigned by the Chief Military Judge. Military judges have their own, separate grievance procedure and have protections against interference through performance evaluations by the executive. Like other judges, military judges take a solemn oath to act impartially. They are vested with the same powers, rights and privileges as judges of a superior court of criminal jurisdiction and enjoy the same immunity from liability. The reasonable and informed person would expect that military judges will abide by their oath of office and have confidence that, given their legal training and experience, they will set aside improper influences or recuse themselves if they ever feel that they cannot do so.

Second, a reasonable apprehension of bias is not created by the possible liability of military judges to discipline under the CSD. Military judges are not above the law and can be held accountable when they act outside their judicial functions for their conduct as members of the Armed Forces. As officers, military judges are part of the chain of command and must comply with lawful orders issued by superior officers. If they fail to do so, they could be subject to discipline under the CSD. However, there are sufficient protections against a perception taking hold that the status of military judges as officers exposes them to interference by the executive in the exercise of their judicial functions. Before military judges can be prosecuted, the person laying the charge must receive legal advice concerning the appropriate charge, and the Director of Military Prosecutions, who has an obligation to act independently of partisan concerns, must decide to proceed with charges. Moreover, an order from a superior officer that has the purpose of interfering with a military judge's judicial work would be an unlawful order and an abusive or purely retaliatory prosecution would be an unlawful prosecution. Overall, the reasonable and informed person would not be concerned that the independence or impartiality of military judges can be undermined because of their status as officers that makes them subject to the CSD.

The requirements in ss. 165.21 and 165.24(2) of the NDA therefore meet the standards of judicial independence and impartiality under s. 11(d) of the Charter. A reasonable and informed person, looking at the matter realistically and practically and having thought the matter through, would not conclude that the officer status of military judges raises any apprehension of bias or that it amounts to a lack of sufficient independence such that there is a breach of s. 11(d).

Per Karakatsanis J. (dissenting): The appeals should be allowed and the legislative scheme under the NDA should be declared of no force or effect insofar as it subjects military judges to the disciplinary process administered by military authorities. Members of the Canadian Armed Forces charged with offences are not guaranteed a hearing by an impartial and independent tribunal under s. 11(d) of the Charter due to the pressure military judges face as part of the chain of command, particularly, their disciplinary accountability through a regime that can be launched and prosecuted by their hierarchical superiors. The liability of military judges to the executive under the CSD as currently structured undermines their judicial independence. The breach of s. 11(d) cannot be saved by s. 1.

There is agreement with the majority that the requirement that military judges presiding over courts martial also have the military status of officers does not necessarily contravene the s. 11(d) right of a member of the Armed Forces. Properly designed and protected, the executive and judicial roles of military judges can coexist. There is also acceptance that under the NDA, military judges can, as officers, be accountable for CSD offences. However, the ability of the military executive to impose discipline on military judges would cause a reasonable and informed person facing a court martial to apprehend that the military judge could be unduly influenced by a loyalty to rank and by the position or policies of the military hierarchy, to the detriment of the accused member's individual rights. There are insufficient safeguards in place to alleviate the potential risk of interference by the military chain of command. There is not enough institutional separation — or independence — between the executive and the judicial role.

The separation of powers is fundamentally important in maintaining judicial independence, in particular separation from the executive branch. Judges must be able to render decisions based solely on the requirements of the law and justice according to their own conscience, without outside interference or pressure. Judicial independence and impartiality are distinct concepts but they often overlap. Independence is an underlying condition that contributes to the guarantee of an impartial hearing. The three hallmarks of judicial independence — security of tenure, financial security and administrative independence — do not provide a complete answer to the question of whether judges benefit from sufficient independence. A particular tribunal will still lack institutional independence if there is the appearance that it cannot perform its adjudicative role without interference.

Although judicial discipline and accountability, both important imperatives of broader social policy, can be in tension with judicial independence, civilian judges remain accountable for their conduct through ethical and professional rules of conduct via a judicial oversight committee. This encroachment on their independence is justified by the need to protect the integrity of the administration of justice. However, in matters of discipline, the separation between the judiciary and the other branches of government is necessary to avoid the appearance of any intervention based on public opinion and political expediency. Judicial independence requires that discipline of the judiciary be reserved to an autonomous, apolitical and independent entity.

In the military context, judicial independence is analyzed under these same principles. The standard of independence for military judges is no less than for civilian judges. Military judges, much like civilian judges, are subject to the civilian criminal justice system and are accountable for their misconduct through a judicial oversight committee (the MJIC). However, unlike civilian judges, military judges are also answerable for their conduct to their superiors within the chain of command. By holding a military rank, military judges are subject to service infractions and to the many service offences that can be prosecuted under the CSD for the military objectives of good order and discipline, efficiency and morale. They belong to the same institution responsible for laying charges against them and against the members who appear before them. If convicted of service offences, military judges may face dismissal from the Armed Forces, a criminal record and life‑time imprisonment. Moreover, under the NDA, military judges face military prosecution for offences already covered by the Criminal Code and any other act of Parliament, but the decision to proceed under the military justice system can have a significant impact on their rights. Thus, military judges face a unique disciplinary regime that is launched and prosecuted by the executive, which has no equivalent in the civilian world.

The military context matters in determining whether a reasonable and informed person would be concerned about the pressures military judges face given their disciplinary accountability towards their superiors. Independent reports, which provide material insight on the concerns of a reasonable and informed member of the public, have long insisted that military judges, who currently keep the rank they held before their judicial appointment, should be awarded their own distinct rank, or civilianized. Because of a judge's given rank, it is reasonable that military personnel facing a court martial may fear a judge could prioritize allegiance to rank and to the chain of command over their respective individual rights. The possibility of the executive reviewing the military judge's conduct either by summary hearing or by court martial would be perceived by a reasonable and informed person as insufficient independence between the executive and judicial roles.

Because of this reasonable apprehension that military judges may not be institutionally impartial, any safeguards that may reduce those effects must be considered. Here, the safeguards said to alleviate the risk that military judges would feel pressure to be loyal towards the chain of command are insufficient. First, the requirement in the NDA that military judges must take an oath of office, while an important foundation for an individual judge's independence, does little to guard against an apprehension of institutional bias. Second, military judges do not have sufficient security of tenure simply because they may only ultimately be removed as a military judge for cause through the MJIC. On conviction of a disciplinary offence, the NDA allows for sanctions of demotion or dismissal from the Armed Forces, meaning military judges would lose their status as officers and therefore a key qualification for their tenure. In any event, because military judges remain liable for uniquely military disciplinary charges initiated by their superiors, the rationale that animates the need for security of tenure — securing against interference by the executive — is not safeguarded. Third, the presumption that the Director of Military Prosecutions will carry out its functions independently of partisan concerns cannot be relied upon to safeguard judicial independence. The protection of the rule of law should not depend on a belief that institutions are immune from impropriety and, above all, the DMP does not act independently of the chain of command; rather, the DMP performs its functions under the supervision of the Judge Advocate General, who must be totally loyal and partisan to the interests of the military. A reasonable and informed observer would therefore be concerned about institutional bias because military judges could face discipline from their superiors.

Cases Cited

By Kasirer J.

Applied: R. v. Généreux, [1992] 1 S.C.R. 259; Valente v. The Queen, [1985] 2 S.C.R. 673; Committee for Justice and Liberty v. National Energy Board, [1978] 1 S.C.R. 369;

considered: MacKay v. The Queen, [1980] 2 S.C.R. 370; R. v. Stillman, 2019 SCC 40, [2019] 3 S.C.R. 144; R. v. Pett, 2020 CM 4002; R. v. D'Amico, 2020 CM 2002;

referred to: R. v. Lippé, [1991] 2 S.C.R. 114; R. v. Kirkpatrick, 2022 SCC 33; R. v. Chouhan, 2021 SCC 26, [2021] 2 S.C.R. 136; Reference re Public Service Employee Relations Act (Alta.), [1987] 1 S.C.R. 313; Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486; Wewaykum Indian Band v. Canada, 2003 SCC 45, [2003] 2 S.C.R. 259; Miglin v. Miglin, 2003 SCC 24, [2003] 1 S.C.R. 303; Yukon Francophone School Board, Education Area #23 v. Yukon (Attorney General), 2015 SCC 25, [2015] 2 S.C.R. 282; Cojocaru v. British Columbia Women's Hospital and Health Centre, 2013 SCC 30, [2013] 2 S.C.R. 357; Canada (Minister of Citizenship and Immigration) v. Tobiass, [1997] 3 S.C.R. 391; British Columbia (Attorney General) v. Provincial Court Judges' Association of British Columbia, 2020 SCC 20, [2020] 2 S.C.R. 506; Conférence des juges de paix magistrats du Québec v. Quebec (Attorney General), 2016 SCC 39, [2016] 2 S.C.R. 116; Reference re Remuneration of Judges of the Provincial Court of Prince Edward Island, [1997] 3 S.C.R. 3; R. v. Wigglesworth, [1987] 2 S.C.R. 541; 2747‑3174 Québec Inc. v. Quebec (Régie des permis d'alcool), [1996] 3 S.C.R. 919; Ell v. Alberta, 2003 SCC 35, [2003] 1 S.C.R. 857; Application under s. 83.28 of the Criminal Code (Re), 2004 SCC 42, [2004] 2 S.C.R. 248; R. v. Leblanc, 2011 CMAC 2, 7 C.M.A.R. 559; Moreau‑Bérubé v. New Brunswick (Judicial Council), 2002 SCC 11, [2002] 1 S.C.R. 249; Therrien (Re), 2001 SCC 35, [2001] 2 S.C.R. 3; Canada (Director of Military Prosecutions) v. Canada (Office of the Chief Military Judge), 2020 FC 330, [2020] 3 F.C.R. 411; Nova Scotia (Attorney General) v. Judges of the Provincial Court and Family Court of Nova Scotia, 2020 SCC 21, [2020] 2 S.C.R. 556; R. v. Kokopenace, 2015 SCC 28, [2015] 2 S.C.R. 398; R. v. Teskey, 2007 SCC 25, [2007] 2 S.C.R. 267; President of the Republic of South Africa v. South African Rugby Football Union, [1999] ZACC 9, 1999 (7) B.C.L.R. 725; R. v. Moriarity, 2015 SCC 55, [2015] 3 S.C.R. 485; R. v. Billard, 2008 CMAC 4, 7 C.M.A.R. 238; R. v. Finta, [1994] 1 S.C.R. 701; R. v. Lalande, 2011 CM 2005; R. v. Liwyj, 2010 CMAC 6, 7 C.M.A.R. 481; R. v. Edmunds, 2018 CMAC 2, 8 C.M.A.R. 260; R. v. Cawthorne, 2016 SCC 32, [2016] 1 S.C.R. 983; Boucher v. The Queen, [1955] S.C.R. 16; R. v. Nur, 2015 SCC 15, [2015] 1 S.C.R. 773.

By Karakatsanis J. (dissenting)

R. v. Généreux, [1992] 1 S.C.R. 259; Valente v. The Queen, [1985] 2 S.C.R. 673; R. v. Pett, 2020 CM 4002; R. v. D'Amico, 2020 CM 2002; R. v. Bourque, 2020 CM 2008; R. v. MacPherson and Chauhan and J.L., 2020 CM 2012; R. v. Cogswell, 2020 CM 2014; R. v. Jacques, 2020 CM 3010; R. v. Pépin, 2021 CM 3005; Ocean Port Hotel Ltd. v. British Columbia (General Manager, Liquor Control and Licensing Branch), 2001 SCC 52, [2001] 2 S.C.R. 781; Beauregard v. Canada, [1986] 2 S.C.R. 56; 2747‑3174 Québec Inc. v. Quebec (Régie des permis d'alcool), [1996] 3 S.C.R. 919; IWA v. Consolidated-Bathurst Packaging Ltd., [1990] 1 S.C.R. 282; Reference re Remuneration of Judges of the Provincial Court of Prince Edward Island, [1997] 3 S.C.R. 3; References re Greenhouse Gas Pollution Pricing Act, 2021 SCC 11, [2021] 1 S.C.R. 175; Mackin v. New Brunswick (Minister of Finance), 2002 SCC 13, [2002] 1 S.C.R. 405; MacKeigan v. Hickman, [1989] 2 S.C.R. 796; R. v. Lippé, [1991] 2 S.C.R. 114; British Columbia v. Imperial Tobacco Canada Ltd., 2005 SCC 49, [2005] 2 S.C.R. 473; Application under s. 83.28 of the Criminal Code (Re), 2004 SCC 42, [2004] 2 S.C.R. 248; Moreau-Bérubé v. New Brunswick (Judicial Council), 2002 SCC 11, [2002] 1 S.C.R. 249; Therrien (Re), 2001 SCC 35, [2001] 2 S.C.R. 3; R. v. Golzari, 2017 CMAC 3, 8 C.M.A.R. 106; MacKay v. The Queen, [1980] 2 S.C.R. 370; R. v. Stillman, 2019 SCC 40, [2019] 3 S.C.R. 144; Canada (Director of Military Prosecutions) v. Canada (Office of the Chief Military Judge), 2020 FC 330, [2020] 3 F.C.R. 411; R. v. Cawthorne, 2016 SCC 32, [2016] 1 S.C.R. 983; R. v. Nur, 2015 SCC 15, [2015] 1 S.C.R. 773; R. v. Anderson, 2014 SCC 41, [2014] 2 S.C.R. 167; R. v. Appulonappa, 2015 SCC 59, [2015] 3 S.C.R. 754; R. v. Bain, [1992] 1 S.C.R. 91; R. v. Oakes, [1986] 1 S.C.R. 103.

Statutes and Regulations Cited

Act to amend the National Defence Act and to make related and consequential amendments to other Acts, S.C. 2019, c. 15, s. 25.

Canadian Charter of Rights and Freedoms, ss. 1, 7, 11(d), 24(1).

Controlled Drugs and Substances Act, S.C. 1996, c. 19, s. 5(1), (2).

Constitution Act, 1982, s. 52.

Criminal Code, R.S.C. 1985, c. C‑46, ss. 271, 279(2).

Judges Act, R.S.C. 1985, c. J‑1, ss. 98(1), 102, 117(1).

National Defence Act, R.S.C. 1985, c. N‑5, ss. 2 "service offence", 9.2, 9.3(3), 12, 17, 18, 19, 29(2.1), 49, Part III, "Code of Service Discipline", 55, 60, 83, 85, 90, 92, 93, 97, 129, 130, 139, 140.1, 140.2, 141(1.1), 161.1(1), 162.4, 162.5, 162.7, 162.94, 163, 163.6 to 163.91, 164(1.1) [rep. 2019, c. 15, s. 25], (1.3) [idem], Div. 6, 165, 165.11, 165.15, 165.17, 165.21, 165.23, 165.231, 165.24, 165.25, 165.3, 165.31, 165.32, 165.33 to 165.37, 179, 203.1(2)(b), 249.27, 273.601, Sch.

Queen's Regulations and Orders for the Canadian Forces (last modifications on June 20, 2022), arts. 1.13, 3.20, 4.081(1), ch. 15, arts. 19.75(1), 20.04, 26.10, 26.12, 102.02, 102.04, 102.07(2)(b), ch. 120, 204.

Treaties and Other International Instruments

United Nations. Economic and Social Council. Bangalore Principles of Judicial Conduct, U.N. Doc. E/RES/2006/23, July 27, 2006, preamble.

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Appeal History

APPEAL from a judgment of the Court Martial Appeal Court of Canada (Bell C.J. and Rennie and Pardu JJ.A.), 2021 CMAC 2, [2021] C.M.A.J. No. 2 (Lexis), 2021 CarswellNat 2036 (WL), setting aside decisions of d'Auteuil D.C.M.J., 2020 CM 3006, 2020 CarswellNat 3203 (WL); 2020 CM 3007, 2020 CarswellNat 3502 (WL); and 2020 CM 3008, 2020 CarswellNat 3831 (WL), and a decision of Pelletier M.J., 2020 CM 4011, 2020 CarswellNat 4042 (WL). Appeal dismissed, Karakatsanis J. dissenting.

APPEAL from a judgment of the Court Martial Appeal Court of Canada (Bell C.J. and Rennie and Pardu JJ.A.), 2021 CMAC 3, [2021] C.M.A.J. No. 3 (Lexis), 2021 CarswellNat 2096 (WL), setting aside decisions of Pelletier M.J., 2020 CM 4012, 2020 CarswellNat 5129 (WL); and 2020 CM 4013, 2020 CarswellNat 6959 (WL). Appeal dismissed, Karakatsanis J. dissenting.

APPEAL from a judgment of the Court Martial Appeal Court of Canada (Bell C.J. and Phelan and Green JJ.A.), 2022 CMAC 1, [2022] C.M.A.J. No. 1 (Lexis), 2021 CarswellNat 6625 (WL), setting aside a decision of d'Auteuil D.C.M.J., 2020 CM 3009, 2020 CarswellNat 5069 (WL). Appeal dismissed, Karakatsanis J. dissenting.

APPEAL from a judgment of the Court Martial Appeal Court of Canada (Bell C.J. and Heneghan and Scanlan JJ.A.), 2022 CMAC 2, [2022] C.M.A.J. No. 2 (Lexis), 2022 CarswellNat 773 (WL), setting aside a decision of Pelletier M.J., 2021 CM 4003, 2021 CarswellNat 1303 (WL). Appeal dismissed, Karakatsanis J. dissenting.

APPEAL from a judgment of the Court Martial Appeal Court of Canada (Bell C.J. and Rennie and Pardu JJ.A.), 2022 CMAC 3, [2022] C.M.A.J. No. 3 (Lexis), 2022 CarswellNat 1088 (WL), affirming a decision of Deschênes M.J., 2020 CM 5005, 2020 CarswellNat 5068 (WL). Appeal dismissed, Karakatsanis J. dissenting.

Counsel

Mark Létourneau, Patrice Desbiens and Francesca Ferguson, for the appellants.

Dylan Kerr and Karl Lacharité, for the respondent.

Zain Naqi and David Ionis, for the intervener the Canadian Civil Liberties Association.

David McEwan, Greg Allen and Chloe Trudel, for the intervener the British Columbia Civil Liberties Association.

Reasons for Judgment

The judgment of Wagner C.J. and Côté, Rowe, Kasirer, Jamal and O'Bonsawin JJ. was delivered by

Kasirer J. —

I. Overview

[1] People from all walks of life who face criminal prosecution under Canadian law can draw comfort from the fact that they have a constitutional right to a fair and public hearing by an independent and impartial tribunal. The jurisprudence of this Court has been unwavering in recognizing that the guarantee of judicial independence provided by s. 11(d) of the Canadian Charter of Rights and Freedoms applies to persons in the Canadian Armed Forces who are tried before military courts martial. Adapted to the military context, the guarantee applies with the same vigour before a court martial as it does before a civilian court of criminal jurisdiction.

[2] One longstanding source of disquiet, however, — disquiet alluded to by the Court prior to the advent of the Charter in MacKay v. The Queen, [1980] 2 S.C.R. 370 — has been the military status of military judges and their place, as officers, within the Canadian Forces' chain of command.

[3] Much like for other federally appointed judges, only barristers or advocates of at least 10 years' standing at the bar of a province are eligible for appointment as military judges. But an additional qualification is required for appointment as a military judge who can preside over a court martial. Section 165.21 of the National Defence Act, R.S.C. 1985, c. N‑5 ("NDA"), directs that the Governor in Council may only appoint appropriately qualified jurists who are also military officers and who have been so for at least 10 years. Section 165.24(2) further provides that the Chief Military Judge, designated by the Governor in Council, must hold a rank of not less than colonel.

[4] Charged with service offences under military law, the appellants allege that the statutory requirement that the judges presiding over their courts martial be officers violates s. 11(d). Their divided loyalties as judge and officer are said to deflect military judges from a proper exercise of their judicial duties and leaves them vulnerable to pressure from the chain of command. The appellants say that there is no practical rationale for the requirement that military judges be officers. They argue that the law as it stands is unconstitutional in that it deprives the accused of their right to a trial before a truly independent and impartial judge. Insofar as ss. 165.21 and 165.24(2) of the NDA require military judges to be military officers, the appellants call on the Court to declare those provisions of no force or effect under s. 52 the Constitution Act, 1982.

[5] In R. v. Généreux, [1992] 1 S.C.R. 259, Lamer C.J. saw plainly that the association between the military hierarchy and military judges could detract from the "absolute independence and impartiality of such tribunals" (p. 294). At the same time, he understood that the military training and rank of military judges as officers were a means of ensuring that military judges are "sensitive to the need for discipline, obedience and duty" and to military "efficiency" (p. 295). In the end, the Court decided that the military status of military judges was not, in itself, sufficient to give rise to a violation of s. 11(d) of the Charter.

[6] The appellants now challenge that conclusion, arguing that Généreux should not be followed to the letter because of social changes affecting military justice that have come to light since that judgment was rendered in 1992. While they accept that a parallel system of military justice is constitutionally sound, the appellants say that requiring judges to be officers is not compatible with judicial independence. In their view, there are "no legislative safeguards [that] prevent the chain of command from exerting disciplinary pressure on military judges" (A.F., at para. 97). The appellants add that their constitutional challenge is part of a "public confidence crisis" in military justice, characterized by an "insular military culture" that is exacerbated by the statutory requirement that judges be officers (paras. 13, 22-25 and 129). The appellants say that, on a proper constitutional standard, truly independent military judges should be civilians, a model for military justice that has proved workable in the United Kingdom and New Zealand.

[7] In first instance, some of the military judges held that s. 11(d) was infringed as they lacked judicial independence by reason of their dual status of judge and officer. Stays of proceedings were entered for some of the appellants charged with service offences under the Code of Service Discipline ("CSD"), in Part III of the NDA, as a remedy for this Charter breach. On appeal, the Court Martial Appeal Court set aside the relevant stays. Citing MacKay and Généreux, the CMAC decided that the safeguards in the NDA adequately protect judicial independence and impartiality in light of the purposes of military justice in Canada.

[8] It is true, as the appellants say, that military justice has changed from the command‑centric model that was still partially in place at the time of Généreux. I am nevertheless of the view that this Court's endorsement of the constitutionality of a parallel military system of justice, staffed by military judges chosen from the ranks of officers, continues to rest on a proper constitutional footing. Despite changes spoken to by the appellants, the dual status of military judges does not offend s. 11(d).

[9] As this Court observed in R. v. Stillman, 2019 SCC 40, [2019] 3 S.C.R. 144, "shortcomings" in judicial independence and impartiality in the applicable legislative schemes have meant, at different times in the history of Canadian military justice, that this constitutional imperative has not always been met (para. 45). The appellants have seized on this uneven history to argue that the current safeguards fail to ensure "truly independent" military judges who are free from actual or reasonably apprehended bias. They say the military status of military judges means that they are unable to meet the minimum standards for independence and impartiality guaranteed by the Charter. Military judges belong to the same Canadian Armed Forces institution that lays charges against the accused who appear before them. The appellants argue that military judges cannot, as members of the executive, exercise core judicial functions independently. They are subject to disciplinary pressures from their superior officers in the chain of command which could reasonably be perceived to weaken their ability to render justice impartially. In sum, the appellants say that accused persons tried before courts martial are deprived of their constitutional right to be tried by an independent and impartial judge for which there is no rationale, military or otherwise. A reasonable and informed person, viewing the matter realistically and practically, would inevitably conclude that the legislative requirement that military judges be military officers as a condition of appointment raises a reasonable apprehension of bias.

[10] I disagree. To be plain, the appellants are most certainly right to say that as a matter of constitutional law, accused members of the Canadian Armed Forces who appear before military judges are entitled to the same guarantee of judicial independence and impartiality under s. 11(d) as accused persons who appear before civilian criminal courts. But as Moldaver and Brown JJ. wrote in Stillman, "this does not require that the two systems be identical in every respect" (para. 44, citing Généreux). As presently configured in the NDA, Canada's system of military justice fully ensures judicial independence for military judges in a way that takes account of the military context, and specifically of the legislative policies of maintaining "discipline, efficiency and morale" in the Forces and "public trust in . . . a disciplined armed force" (ss. 55 and 203.1(2)(b)). Properly understood, the military context does not diminish judicial independence.

[11] In order to protect the constitutional imperative of judicial independence, military judges are not ordinary military officers. They are properly insulated, by law, from the chain of command in their work as judges so that the persons who come before them charged with service offences benefit from constitutionally guaranteed judicial independence. It is true that, like all judges in Canada, military judges are subject to the criminal law and, as military officers, they are subject to military law. Military judges, as officers, are members of the executive and themselves subject to the CSD. But the law protects them from interference from their superiors in the chain of command in their judicial work. While they continue to hold rank and remain part of the military hierarchy, "they are first and foremost judges" (outline of argument in respondent's condensed book, tab 1).

[12] Military judges cannot be subject to discipline for their work as judges. The NDA provides for a myriad of safeguards that protect military judges, notwithstanding their military status, as independent judges. By way of example, only the Chief Military Judge can assign duties to them, and these duties must not be incompatible with their judicial duties (ss. 165.23(2) and 165.25). Like other judges, military judges take a solemn oath to act impartially. They are vested with the same powers, rights and privileges as judges of a superior court of criminal jurisdiction and enjoy the same immunity from liability (ss. 165.231 and 179). Military judges enjoy meaningful security of tenure as judges that protects them from what might be feared as vulnerabilities in respect of mistreatment by superior officers. They have a separate regime for grievances (s. 29(2.1)) and they have protection against relief from performance of military duty (Queen's Regulations and Orders for the Canadian Forces ("QR & O"), art. 19.75(1)). Military judges have a separate pay scheme from that of other officers that is not fixed by their superiors but by an independent Military Judges Compensation Committee (NDA, s. 165.33). They can only be removed for cause by the Governor in Council upon recommendation of the Military Judges Inquiry Committee ("MJIC"), consisting of three judges of the CMAC appointed by the Chief Justice of that court (ss. 165.21(3) and 165.31). Importantly, the law protects military judges from improper prosecution under the CSD. Before a military judge can be prosecuted, the person laying the charge must receive legal advice concerning the appropriate charge (QR & O, art. 102.07(2)(b)) and the Director of Military Prosecutions, who has an obligation to act independently of partisan concerns, must decide to proceed with charges (NDA, ss. 161.1(1) and 165). Moreover, an order from a superior officer that had the purpose of interfering with their judicial work would be an unlawful order and an abusive or purely retaliatory prosecution would be an unlawful prosecution.

[13] The hallmarks of military judges' independence are plainly present notwithstanding their status as officers: the military justice system guarantees their security of tenure, financial security and administrative independence (see Valente v. The Queen, [1985] 2 S.C.R. 673). The military status of these judges would not lead a reasonable and informed person, viewing the matter realistically and practically, to conclude that there is an apprehension of bias or insufficient independence (see Committee for Justice and Liberty v. National Energy Board, [1978] 1 S.C.R. 369, at p. 394). Canada's system of military justice ensures its purpose of maintaining discipline, efficiency and morale in the Canadian Armed Forces while respecting the guarantee of judicial independence. The safeguards for judicial independence in the NDA help to sustain public trust in military justice as a statutory regime that, in the words of one scholar, is not a mere [translation] "instrument of discipline" but a "tool of justice" (J.-B. Cloutier, "L'utilisation de l'article 129 de la Loi sur la défense nationale dans le système de justice militaire canadien" (2004), 35 R.D.U.S. 1, at p. 97).

[14] Within the bounds of the Constitution, Parliament is of course free to enact another system for military justice, but that policy choice does not fall to the courts. There may indeed be different or even better models for judging offences in the military than what is currently set forth in the NDA that also rest on a proper disciplinary rationale and also meet the strictures of s. 11(d). That is not the question before us and, it is fair to say, is not a question that this Court is institutionally designed to answer. Replacing Canada's system of military justice with a model used in other countries as the appellants propose would require close study to determine the extent to which foreign approaches could serve as a model for Canada. Courts are not equipped to do that work, nor is it their proper constitutional role. Instead, this Court is called upon to decide whether the regime that existed at the relevant times is constitutionally compliant. I conclude that it is.

[15] In sum, s. 11(d) of the Charter does not dictate a particular model of military justice nor does it require that only civilian judges preside over trials for service offences such as the offences relevant to these appeals. The Constitution allows Parliament a measure of choice in the design of justice before courts martial and does not require that military justice be exactly identical to its civilian counterpart. In my respectful view, the requirement that military judges be officers pursuant to ss. 165.21 and 165.24(2) of the NDA does not fall afoul of s. 11(d). I propose that the appeals be dismissed.

II. Background

[16] The nine appellants are members of the Canadian Armed Forces charged with service offences who were brought before courts martial for trial. Military personnel and certain other persons are subject to the CSD, which forms Part III of the NDA.

[17] Service offences are the most serious infringements of the CSD, encompassing offences specific to military personnel — such as disobeying the lawful commands of a superior officer — and offences under the Criminal Code, R.S.C. 1985, c. C-46 ("Cr. C."), or any other act of Parliament that are "committed by a person while subject to the Code of Service Discipline" (NDA, s. 2 "service offence"). They are tried before a court martial, which is a military court that has the same powers, rights, and privileges as a superior court of criminal jurisdiction (NDA, s. 179). Courts martial are presided over by military judges who are officers.

[18] Leading Seaman C.D. Edwards was charged with conduct to the prejudice of good order and discipline under s. 129 of the NDA for using cocaine, contrary to art. 20.04 of the QR & O.

[19] Captain C.M.C. Crépeau was charged with disobeying lawful commands of a superior officer under s. 83 of the NDA, behaving with contempt towards a superior officer under s. 85, and conduct to the prejudice of good order and discipline under s. 129.

[20] Gunner K.J.J. Fontaine was charged with offences punishable under s. 130 of the NDA, including trafficking of cocaine and possession of cocaine and methamphetamine with the intention of trafficking, contrary to s. 5(1) and (2) of the Controlled Drugs and Substances Act, S.C. 1996, c. 19.

[21] Captain M.J. Iredale was charged with three counts of sexual assault contrary to s. 271 of the Cr. C., punishable under s. 130 of the NDA, and three counts of conduct to the prejudice of good order and discipline under s. 129.

[22] Corporal K.L. Christmas was charged with sexual assault contrary to s. 271 of the Cr. C., punishable under s. 130 of the NDA, with disgraceful conduct for touching another person's genitals without consent under s. 93, and for drunkenness under s. 97.

[23] Sergeant S.R. Proulx was charged with disobeying lawful commands of a superior officer, behaving with contempt towards a superior officer, and conduct to the prejudice of good order and discipline, under ss. 83, 85 and 129 of the NDA, respectively.

[24] Master Corporal J.R.S. Cloutier was charged with disgraceful conduct under s. 93 of the NDA, drunkenness under s. 97, and conduct to the prejudice of good order and discipline under s. 129.

[25] Lieutenant (Navy) C.A.I. Brown was charged with sexual assault (Cr. C., s. 271) and forcible confinement (Cr. C., s. 279(2)), punishable under s. 130 of the NDA.

[26] Sergeant A.J.R. Thibault was charged with sexual assault contrary to s. 271 of the Cr. C., punishable under s. 130 of the NDA.

[27] With the exception of Sgt. Thibault, each of the accused challenged the independence and impartiality of the military judges before whom they were brought to trial. Sgt. Thibault raised the same question on appeal of his conviction.

[28] Key to understanding the constitutional challenges raised in these appeals are the cases of R. v. Pett, 2020 CM 4002, and R. v. D'Amico, 2020 CM 2002, judgments that themselves are not before this Court.

[29] In Pett, the court martial held that an Order from the Chief of the Defence Staff, dated October 2, 2019, violated Master Corporal Pett's right under s. 11(d) to a trial before an independent and impartial tribunal. That Order designated a single officer "to exercise the powers and jurisdiction of a commanding officer with respect to any disciplinary matter involving a military judge on the strength of the Office of the Chief Military Judge" (para. 9; R.R., tab 1). The court martial in Pett held that military judges are immune from the disciplinary process applicable to officers while they hold judicial office because discipline for military judges falls exclusively to the MJIC. The Order was thus unlawful in that it purported to grant authority to a commanding officer to charge a military judge, as an officer, with an offence. By undermining this essential protection of military judges' independence under the NDA, the Order violated s. 11(d). The court martial declared the impugned part of the Order to be of no force and effect. Another court martial reached the same conclusion in D'Amico.

[30] With the exception of Sgt. Thibault, all of the appellants alleged in their court martial proceedings that, as in Pett and D'Amico, the fact that their trials were presided over by a military judge who was also an officer violated their right to be tried by an independent and impartial tribunal under s. 11(d) of the Charter.

III. Judicial History

A. Courts Martial

(1) *R. v. Edwards*, 2020 CM 3006; *R. v. Crépeau*, 2020 CM 3007; *R. v. Fontaine*, 2020 CM 3008; and *R. v. Iredale*, 2020 CM 4011

[31] In Edwards, the court martial agreed with Pett and D'Amico that the NDA protects military judges' independence by insulating them from liability for service offences under the CSD. Instead, military judges were answerable for disciplinary matters through the MJIC. The court martial held that the impugned Order dated October 2, 2019 violated this statutory safeguard by wrongly designating a commanding officer for the purposes of applying the CSD regime, including service offences, to military judges. The Order therefore infringed the right of L.S. Edwards to a hearing by an independent and impartial tribunal pursuant to s. 11(d) of the Charter and the infringement was not justified by s. 1. The court entered a stay of proceedings for L.S. Edwards as a remedy under s. 24(1) of the Charter.

[32] In Crépeau, the military judge followed the reasoning in Edwards. The judge rejected a direct constitutional challenge to specific sections of the NDA but entered a stay because the impugned Order violated s. 11(d) by undermining judicial independence. In Fontaine and Iredale, stays were entered for the accused based on comparable reasoning. Referring to his conclusions in Pett, the presiding military judge wrote in Iredale, "[m]y position to the effect that a military judge should never be brought before a court martial while in office remains" (para. 37).

(2) *R. v. Christmas*, 2020 CM 3009; and *R. v. Proulx*, 2020 CM 4012

[33] After the Chief of the Defence Staff suspended the October 2, 2019 Order, Canadian Forces Organization Order 3763, which includes a section pertaining to the disciplinary regime for military judges, remained in effect. The presiding military judges in Christmas and Proulx concluded that the deficiencies still resulted in a breach of s. 11(d), and thus entered stays of proceedings.

(3) *R. v. Cloutier*, 2020 CM 4013; and *R. v. Brown*, 2021 CM 4003

[34] In Cloutier and Brown, military judges held that despite changes to orders bearing on discipline of military judges, the requirements of s. 11(d) were still not met. While concluding that the s. 11(d) right of Master Corporal Cloutier was violated, the military judge directed that, as a remedy, the proceedings be terminated without adjudication pursuant to s. 24(1). In Lieut. Brown's case, the military judge followed the reasoning in Cloutier, and entered a stay of proceedings.

(4) *R. v. Thibault*, 2020 CM 5005

[35] Sgt. Thibault did not initially allege a violation of his right to be tried by an independent and impartial tribunal. He was found guilty of sexual assault.

B. Court Martial Appeal Court of Canada

(1) *R. v. Edwards; R. v. Crépeau; R. v. Fontaine; R. v. Iredale*, 2021 CMAC 2 ("*Edwards et al.*")

Result

Appeals dismissed, Karakatsanis J. dissenting.

Solicitors

Solicitor for the appellants: Defence Counsel Services, Gatineau.

Solicitor for the respondent: Canadian Military Prosecution Service, Ottawa.

Solicitors for the intervener the Canadian Civil Liberties Association: Lax O'Sullivan Lisus Gottlieb, Toronto.

Solicitors for the intervener the British Columbia Civil Liberties Association: Allen/McMillan Litigation Counsel, Vancouver.

[^1]: On March 21, 2024, the Minister of National Defence introduced Bill C-66, An Act to amend the National Defence Act and other Acts, 1st Sess., 44th Parl., in the House of Commons, which proposes to amend certain provisions in the NDA that are discussed in these appeals. This case deals with the legislation that is currently in force.