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Judges - Military. 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 states the nature of the military justice system in Canada:[56] The system of military justice is governed principally by the NDA, the QR & O made under the authority of s. 12 of the NDA, and the Canadian Forces Organization Orders.
[57] In Stillman, Moldaver and Brown JJ. described the legislative history of Canada’s parallel system of military justice and “its evolution over time from a command-centric model of discipline to a full partner in administering justice alongside the civilian justice system” (para. 20). Stillman did not bear on s. 11(d) of the Charter and left open the possibility of challenging the independence and impartiality of military judges (para. 86). But Moldaver and Brown JJ. situated the Charter-era legislative and regulatory reforms, as well as the relevant jurisprudence, in the development of a parallel military justice system that sought generally to provide more independence to actors in that system, including military judges (paras. 42 et seq.). In particular, they considered Généreux which, they wrote, confirms “that the military justice system, like its civilian counterpart, must comply with the Charter, although this does not require that the two systems be identical in every respect” (para. 44).
[58] The term “discipline” as used in the NDA reflects its particular sense in military parlance. Discipline in the military “has a far wider meaning than the simple enforcement of laws” (D. McNairn, “A Military Justice Primer, Part I” (2000), 43 Crim. L.Q. 243, at pp. 249-50). Discipline is the prerogative of military commanders to issue lawful orders that must be obeyed by members that are inferior to them in the chain of command (see Stillman, at para. 38). Discipline in the military sense should thus not be confused with the term as it is used in connection with the regulation of conduct of members of a self-governing body, such as a professional order, where issues going to the independence and impartiality of decision makers may also arise (see, e.g., R. v. Lippé, 1990 CanLII 18 (SCC), [1991] 2 S.C.R. 114, at p. 138, per Lamer C.J.). As noted in the Report of the Special Advisory Group on Military Justice and Military Police Investigation Services (1997), chaired by the Right Honourable Brian Dickson, “[t]he maintenance of effective discipline by the established chain of command continues to be a prime prerequisite for a competent and reliable military organization” (p. i). Notwithstanding the imperatives of military discipline, as former Chief Justice Dickson and his colleagues explained, the supremacy of the rule of law and, notably, the Charter “must be fully respected . . . within the military justice system” (p. ii).
[59] Canada’s separate system of military justice is designed to “foster discipline, efficiency, and morale in the military” (Stillman, at para. 20; see also M. Gibson, “Military justice in operational settings, peacekeeping missions and situations of transitional justice”, in A. Duxbury and M. Groves, eds., Military Justice in the Modern Age (2016), 381, at p. 382). Since amendments brought to the NDA in 2019, this purpose is codified in s. 55 as the guiding principle for the CSD.
[60] Accused members of the Forces may be disciplined in one of two ways. Members accused of service infractions, which are less serious than service offences, appear in summary hearings presided over by a commanding officer or their delegate (NDA, ss. 162.4 and 162.94). The constitutionality of those proceedings is not directly at issue in these appeals. The particular aspect of the CSD that is engaged by the charges brought against the appellants is “service offences”, which are to be heard by a “standing” court martial, presided over by a military judge sitting alone, who will decide on criminal responsibility on a criminal law standard.
[61] Members who are found guilty of service offences may be subject to a range of sanctions ranging in severity from minor punishments to imprisonment for life (NDA, s. 139). The available sentences include dismissal from service with disgrace and dismissal without disgrace (s. 139(1)(c) and (e)).
[62] The NDA also contains provisions that deal specifically with military judges who are, as previously noted, both judges and officers:165.21 (1) The Governor in Council may appoint any officer who is a barrister or advocate of at least 10 years’ standing at the bar of a province and who has been an officer for at least 10 years to be a military judge.
(2) Every military judge shall, before commencing the duties of office, take the following oath of office:
I ............. solemnly and sincerely promise and swear (or affirm) that I will impartially, honestly and faithfully, and to the best of my skill and knowledge, execute the powers and trusts reposed in me as a military judge. (And in the case of an oath: So help me God.)
(3) A military judge holds office during good behaviour and may be removed by the Governor in Council for cause on the recommendation of the Military Judges Inquiry Committee.
(4) A military judge ceases to hold office on being released at his or her request from the Canadian Forces or on attaining the age of 60 years.
(5) A military judge may resign from office by giving notice in writing to the Minister. The resignation takes effect on the day on which the Minister receives the notice or on a later day that may be specified in the notice.
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165.23 (1) Military judges shall preside at courts martial and shall perform other judicial duties under this Act that are required to be performed by military judges.
(2) In addition to their judicial duties, military judges shall perform any other duties that the Chief Military Judge may direct, but those other duties may not be incompatible with their judicial duties.
(3) Military judges may, with the concurrence of the Chief Military Judge, be appointed as a board of inquiry.
165.231 A military judge has the same immunity from liability as a judge of a superior court of criminal jurisdiction.
165.24 (1) The Governor in Council may designate a military judge, other than a reserve force military judge, to be the Chief Military Judge.
(2) The Chief Military Judge holds a rank that is not less than colonel.
165.25 The Chief Military Judge assigns military judges to preside at courts martial and to perform other judicial duties under this Act. [63] The NDA also establishes the MJIC that may be charged with conducting an inquiry and making a recommendation to the Governor in Council as to whether a military judge should be removed from office:165.31 (1) There is established a Military Judges Inquiry Committee to which the Chief Justice of the Court Martial Appeal Court shall appoint three judges of the Court Martial Appeal Court.
(2) The Chief Justice shall appoint one of the judges to act as Chairperson.
(3) The inquiry committee has the same powers, rights and privileges — including the power to punish for contempt — as are vested in a superior court of criminal jurisdiction with respect to
(a) the attendance, swearing and examination of witnesses;
(b) the production and inspection of documents;
(c) the enforcement of its orders; and
(d) all other matters necessary or proper for the due exercise of its jurisdiction.
165.32 (1) The Military Judges Inquiry Committee shall, on receipt of a request in writing made by the Minister, commence an inquiry as to whether a military judge should be removed from office.
(2) The inquiry committee may, on receipt of any complaint or allegation in writing made in respect of a military judge, commence an inquiry as to whether the military judge should be removed from office.
(3) The Chairperson of the inquiry committee may designate a judge appointed to the committee to examine a complaint or allegation referred to in subsection (2) and to recommend whether an inquiry should be commenced.
(4) The military judge in respect of whom an inquiry is held shall be given reasonable notice of the inquiry’s subject matter and of its time and place and shall be given an opportunity, in person or by counsel, to be heard at the inquiry, to cross-examine witnesses and to adduce evidence on his or her own behalf.
(5) The inquiry committee may hold an inquiry either in public or in private unless the Minister, having regard to the interests of the persons participating in the inquiry and the interests of the public, directs that the inquiry be held in public.
(6) The Chairperson of the inquiry committee may engage on a temporary basis the services of counsel to assist the committee and may, subject to any applicable Treasury Board directives, establish the terms and conditions of the counsel’s engagement and fix their remuneration and expenses.
(7) The inquiry committee may recommend to the Governor in Council that the military judge be removed if, in its opinion,
(a) the military judge has become incapacitated or disabled from the due execution of his or her judicial duties by reason of
(i) infirmity,
(ii) having been guilty of misconduct,
(iii) having failed in the due execution of his or her judicial duties, or
(iv) having been placed, by his or her conduct or otherwise, in a position incompatible with the due execution of his or her judicial duties; or
(b) the military judge does not satisfy the physical and medical fitness standards applicable to officers.
(8) The inquiry committee shall provide to the Minister a record of each inquiry and a report of its conclusions. If the inquiry was held in public, the inquiry committee shall make its report available to the public.
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