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Charter - s.11(d) 'Independent and Impartial Tribunal'. R. v. Edwards
In R. v. Edwards (SCC, 2024) the Supreme Court of Canada dismissed an appeal arguing that military judges, being officers in the Canadian Armed Forces, violated Charter 11(d) ["to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal"].
Here the court sets out the analytic framework for tribunal independence:[84] To assess the independence of a tribunal, a reviewing court asks “whether the tribunal may be reasonably perceived as independent” (Valente, at p. 689; see also Committee for Justice and Liberty, at p. 394). In Généreux, at p. 286, Lamer C.J. explained that the exercise for evaluating independence and impartiality under s. 11(d) is the same (“[T]he test for this purpose is the same as the test for determining whether a decision-maker is biased. The question is whether an informed and reasonable person would perceive the tribunal as independent.”). There is a strong presumption of judicial impartiality. As this Court has explained, “the presumption of impartiality carries considerable weight, and the law should not carelessly evoke the possibility of bias in a judge” (Wewaykum Indian Band v. Canada, 2003 SCC 45, [2003] 2 S.C.R. 259, at para. 59).
[85] This Court has held that the reasonable and informed person has “knowledge of all the relevant circumstances” and “view[s] the matter realistically and practically” (Miglin v. Miglin, 2003 SCC 24, [2003] 1 S.C.R. 303, at para. 26, cited with approval in Yukon Francophone School Board, Education Area #23 v. Yukon (Attorney General), 2015 SCC 25, [2015] 2 S.C.R. 282, at para. 37; see also Valente, at pp. 684-85). The reasonable and informed person is “apprised of” and “tak[es] into account all relevant circumstances” (Cojocaru v. British Columbia Women’s Hospital and Health Centre, 2013 SCC 30, [2013] 2 S.C.R. 357, at paras. 13, 28 and 36) given that they are “well-informed” (Canada (Minister of Citizenship and Immigration) v. Tobiass, 1997 CanLII 322 (SCC), [1997] 3 S.C.R. 391, at para. 70). As the CMAC observed in Edwards et al., they are alive to the relevant contextual considerations (para. 9). They are “right minded”, they “th[ink] the matter through”, and they “appl[y] themselves to the question and obtai[n] thereon the required information” (Committee for Justice and Liberty, at p. 394). Ultimately, this Court’s jurisprudence “expect[s] a degree of mature judgment on the part of an informed public” (Yukon Francophone School Board, at para. 61).
[86] In Valente, this Court identified three essential conditions or hallmarks of judicial independence: security of tenure, financial security and administrative independence (pp. 694, 704 and 708; see also British Columbia (Attorney General) v. Provincial Court Judges’ Association of British Columbia, 2020 SCC 20, [2020] 2 S.C.R. 506, at para. 31; Conférence des juges de paix magistrats du Québec v. Quebec (Attorney General), 2016 SCC 39, [2016] 2 S.C.R. 116, at para. 33). 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 or other appointing authority in a discretionary or arbitrary manner” (Valente, at p. 698). Financial security requires that “the right to salary and pension should be established by law and not be subject to arbitrary interference by the Executive in a manner that could affect judicial independence”, which was later held to require that judicial remuneration be fixed through a process that includes an independent commission (p. 704; Reference re Remuneration of Judges of the Provincial Court of Prince Edward Island, 1997 CanLII 317 (SCC), [1997] 3 S.C.R. 3 (“Provincial Judges Reference”); Provincial Court Judges’ Association of British Columbia). Administrative independence “may be summed up as judicial control over the administrative decisions that bear directly and immediately on the exercise of the judicial function” (Valente, at p. 712).
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