Editor’s Note: This post was written as a preview of an upcoming Supreme Court of Canada decision for the Fantasy Courts website and newsletter.

Hi, here’s what you need to know about the Supreme Court of Canada this week in 6 minutes.

Latest News

  1. 🪖 The SCC will release its judgments in five court martial appeals on Friday, April 26, 2024. At issue is whether military judges lack institutional independence because they themselves could later be prosecuted by persons disgruntled with their handling of a case and whether this infringes s. 11(d) of the Charter, which guarantees a hearing by an independent and impartial tribunal.
  2. 🎲 On April 19, 2024, the SCC released its decision in Société des casinos du Québec inc. v. Association des cadres de la Société des casinos du Québec, 2024 SCC 13. While there were three sets of reasons, all judges agreed the appeal should be allowed. The exclusion of casino managers from the Labour Code is constitutional and does not infringe their s. 2(d) Charter right to freedom of association.
  3. 🔮 73% of players correctly predicted the outcome.

Head over to Fantasy Courts to lock in your predictions for this week’s decision, or read more about the cases below.

Case to Predict: Institutional Independence of Military Judges

Appeal by leave from R. v. Edwards; R. v. Crépeau; R. v. Fontaine; R. v. Iredale, 2021 CMAC 2; R. v. Proulx; R. v. Cloutier, 2021 CMAC 3; R. v. Christmas, 2022 CMAC 1; R. v. Brown, 2022 CMAC 2; R. v. Thibault, 2022 CACM 3

SCC factums (39820, 39822, 40046, 40065, 40103) and webcast

What Happened?

Background: The appellants are members of the Canadian Armed Forces (CAF) who had various charges laid against them. They sought a stay of proceedings in the Court Martial on the basis of their right to be tried by an independent and impartial tribunal guaranteed by s. 11(d) of the Charter. Their concern is that military judges are not truly independent because they: belong to the CAF institution that lays charges against the accused persons; are members of the executive who exercise core judicial functions; and are subject to the pressure of being under the CAF chain of command’s disciplinary authority. Practically, this meant that a military judge could be disciplined by a commanding officer while performing their function as a military judge.

Court Martial: At first instance, military judges concluded that there was an infringement of the accused’s s. 11(d) Charter right. They declared that a Canadian Forces Organization Order, which maintained a legal structure that allowed a military judge to be disciplined by a commanding officer, was of no force or effect as it pertained to any disciplinary matter involving CAF officers holding the office of military judge. They also stayed the proceedings under s. 24(1) of the Charter.

Court Martial Appeal Court: The CMAC allowed the Crown’s appeals, ruling that no informed person would conclude that there was an apprehension of bias or that the independence of courts martial was compromised. The idea that one cannot be both a military judge and an officer is inconsistent with binding SCC precedent and defies the very purpose and rationale of the military justice system.

What Was Argued at the SCC?

Appellants: While the SCC upheld the constitutionality of military status for military judges in R v Généreux, [1992] 1 SCR 259, much has changed since then. The CAF military hierarchy and the Minister of National Defence now confirm that civilianized military judges with a sufficient degree of military experience could effectively preside over our courts martial. We’ve seen this happen in the United Kingdom and New Zealand where civilianized military judges preside over courts martial. In other words, the concerns of the CMAC are unfounded.

Respondent: The SCC has already ruled on this issue and confirmed the constitutionality of a separate system of military justice, designed to meet the unique needs of the CAF in maintaining discipline. Military judges are insulated from the command of the military hierarchy and are not subject to orders from the chain of command. They are only liable to perform their judicial duties and those duties assigned to them by the Chief Military Judge which are not incompatible with their judicial duties. They have security of tenure, security of pay, and sufficient
administrative independence to perform their judicial functions free from interference. The reasonable and informed observer could only conclude that military judges are independent and impartial.

What Else Should You Know Before Making a Prediction?

I’m leaning towards appeal dismissed. At the hearing, Justice Rowe did not seem convinced there was enough to overturn binding precedent. Justices Karakatsanis and Kasiser seemed to have concerns about the military judge system, but their questions were geared towards making sure various potential problems would be properly considered and addressed in the Court’s analysis. I expect any major changes will need to come from Parliament and it would be difficult for the SCC to make patchwork fixes.

Previous Prediction: Freedom of Association for Managers

On April 19, 2024, the SCC released its decision in Société des casinos du Québec inc. v. Association des cadres de la Société des casinos du Québec, 2024 SCC 13.

Held (7:0): Appeal allowed. Section 1(l)(1) of the Labour Code, which excludes managers from its statutory labour relations regime, is constitutional and does not infringe the managers’ guarantee of freedom of association under the Charter.

Key Points:

  • The two‑step framework in Dunmore is the only framework for determining whether legislation or government action infringes s. 2(d) of the Charter. First, it examines whether activities fall within the scope of the freedom of association guarantee, and second, whether the government action interferes with the protected activities in purpose or effect.
  • There is only one threshold for evaluating all s. 2(d) claims: the threshold of substantial interference.
  • The purpose of the legislative exclusion here is not to interfere with managers’ associational rights, but to avoid placing managers in a situation of conflict of interest between their role as employees in collective bargaining and their role as representatives of the employer in their employment responsibilities, and to give employers confidence that managers would represent their interests, while protecting the distinctive common interests of employees.
  • The Association failed to show that the effect of the legislative exclusion is to substantially interfere with its members’ rights to meaningful collective bargaining.

Predictions: 73% of players correctly predicted that the appeal would be allowed.

-Tom Slade

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