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Military - Charter. 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 summarizes it's reasoning that Charter 11(d) is not violated by this system: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 CanLII 217 (SCC), [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 CanLII 117 (SCC), [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 CanLII 25 (SCC), [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, 1976 CanLII 2 (SCC), [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). ...
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VII. Conclusion
[149] In light of my conclusion that military judges’ status as officers under the NDA is not incompatible with their judicial functions for the purposes of s. 11(d) of the Charter, I would reject the appellants’ invitation to declare ss. 165.21 and 165.24(2) of the NDA of no force or effect pursuant to s. 52 of the Constitution Act, 1982. Accordingly, I would dismiss all the appeals. The court articulates it's reasoning at paras 64-148.
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