Decision recognizes military system can administer justice alongside civilian system: lawyer
The dual role of military judges as both adjudicators and officers subject to military discipline, hierarchy, and the chain of command does not violate an accused’s right under the Charter to a “fair and public hearing by an independent and impartial tribunal,” the Supreme Court of Canada has found.
The court released the ruling in R. v. Edwards, 2024 SCC 15 this morning. The case dealt with nine Armed Forces members charged with offences under the National Defence Act’s Code of Service Discipline. Offences of this nature are tried before a court martial in a military court. Military judges are part of the chain of command and can only be removed for cause by the Governor in Council on recommendation from the Military Judges Inquiry Committee.
The accused argued that the statutory requirement that military judges be officers violates their s. 11(d) Charter right to a hearing by an independent and impartial tribunal. They were partially successful at their court martial, but the Court Martial Appeal Court ruled that their rights were not infringed, so they appealed to the SCC.
In a six-to-one decision, the SCC dismissed the appeal, finding the status of military judges as officers does not compromise their judicial function for the purposes of S. 11(d).
“This decision recognizes that Canada’s military justice system, as a full partner in administering justice alongside the civilian justice system, shares and upholds the same fundamental principle that is judicial independence, as well as, that there is no constitutional requirement that the two systems be identical in every respect,” says Lieutenant-Colonel Karl Lacharité, counsel for the Crown and a lawyer with the Canadian Military Prosecution Service. “It acknowledges that the current scheme under the National Defence Act fully ensures judicial independence for military judges in a way that takes account of the military context and the purpose of the military justice system, that is maintaining discipline, efficiency and moral in the Forces.”
Lacharité adds that the decision highlights that military judges have a dual role as judges and officers, but they are primarily judges. It also confirms, he says, that military judicial independence is essential to constitutional compliance and preserving public confidence, and military judges’ liability under the Code of Service Discipline does not inherently diminish independence or lead to a reasonable apprehension that they lack independence.
“We're disappointed in the outcome, but grateful that the Supreme Court allowed us to raise this important issue,” says Mark Letourneau, counsel for the appellant Armed Forces members.
Justice Nicholas Kasirer wrote the reasons for the majority. He said that the military justice system can ensure judicial independence without exactly resembling the civilian criminal courts.
Judicial independence has three essential conditions, according to Valente v. The Queen, [1985] 2 S.C.R. 673. These are security of tenure, financial security, and administrative independence. Kasirer said the three conditions of the military justice system are established through the National Defence Act.
Courts reviewing the independence of a tribunal, he said, ask whether a reasonable person would view it as independent, and that includes whether the tribunal lacks impartiality “either at the individual or institutional” level, even if Valente’s three conditions are met.
The presence of military judges in the executive branch and their liability to prosecution for Code of Service Discipline offences could not create a reasonable perception of impartiality, said Kasirer. While military judges must comply with the lawful orders of superior officers, he said, there are “sufficient protections” guarding against the perception that they are susceptible to interference from the executive when performing their judicial duties. For instance, an order from a superior officer intended to interfere in a military judge’s judicial work would be an unlawful order, and an abusive or retaliatory prosecution would be an unlawful prosecution.
“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),” said Kasirer.
The BC Civil Liberties Association (BCCLA) expressed its disappointment with the SCC’s ruling. The BCCLA intervened in the case and argued that s. 11(d) should equally apply to trials within the Canadian Armed Forces and said that the 1992 decision in R v Généreux has used s. 11(f) to limit s. 11(d) rights and should no longer be followed because it does not reflect “the accepted methods of Charter interpretation endorsed by the SCC in numerous subsequent decisions.”
Zain Naqi and Jonathan Lisus of Lax O'Sullivan Lisus Gottlieb LLP acted for the Canadian Civil Liberties Association (CCLA), which intervened in the case. The perspective from which the CCLA approached the case was “the desire to maintain a very robust conception of judicial independence, and in particular, the separation of powers between the executive branch of government and the judicial branch,” says Naqi.
He says the decisions from the Court Martial and the Court of Appeal included language on the overlap between the executive and judicial branches that indicated a “looser approach” to protecting judicial independence from potential executive interference.
While the court upheld the existing military justice regime, says Naqi, the majority made many statements supportive of the CCLA’s position.
“Nothing in the court’s decision should ultimately be read to say that there is not this clear demarcation between executive and judicial branches.”
There have been several public incidents lately that call into question the independence of the courts, he says, and the decision affirms the constitutional guarantee of judicial independence and continues the jurisprudential trend of resisting executive interference over core judicial functions.
“I don't think that this decision actually ends the debate on the issue of military justice in Canada and how best to do it,” says Naqi. “I think the court was simply saying, ‘It's not for us to decide what the best approach is. All that we can do is make a call on whether the current approach meets basic constitutional standards.’”
Justice Andromache Karakatsanis would have allowed the appeals and declared the legislative scheme under the National Defence Act, whereby military judges are subject to disciplinary processes administered by military authorities, of no force or effect.
For Karakatsanis, the “pressure military judges face as part of the chain of command” means that Armed Forces members are not guaranteed a hearing by an impartial and independent tribunal. It is not that military judges’ executive and judicial roles cannot coexist, she said, but that the ability of the military executive to discipline a military judge would give a reasonable and informed person facing a court martial the perception that the judge could be “unduly influenced by a loyalty to rank and by the position or policies of the military hierarchy.”
