R. v. Edwards, 2024 SCC 15 (39820)(39822)(40046)(40065)(40103)

“The nine accused are members of the Canadian Armed Forces who were charged with service offences under the Code of Service Discipline (“CSD”), which forms Part III of the National Defence Act (“NDA”), and were brought before courts martial. Under the CSD, members of the Canadian Armed Forces may be charged with service offences, which are serious and encompass offences specific to military personnel and offences under the Criminal Code or other acts of Parliament. Service offences are tried before a court martial, which is a military court that has the same powers, rights, and privileges as a superior court of criminal jurisdiction. Courts martial are presided over by military judges, who are required under s. 165.21 of the NDA to be barristers or advocates of at least 10 years’ standing at the bar of a province and to be military officers and to have been so for at least 10 years. Section 165.24(2) of the NDA further provides that the Chief Military Judge must hold a rank of not less than colonel. The NDA provides that military judges can only be removed for cause by the Governor in Council upon recommendation of the Military Judges Inquiry Committee (“MJIC”). As officers, military judges are part of the chain of command, and therefore are also subject to prosecution for service infractions and service offences under the CSD.

The nine accused challenged the statutory requirement that the military judges presiding over their courts martial be officers, alleging that it violates their right to a hearing by an independent and impartial tribunal under s. 11(d) of the Charter. In the courts martial, some of the military judges held that they lacked judicial independence by reason of their dual status of judge and officer, and therefore that the respective accused’s s. 11(d) rights were infringed. The Court Martial Appeal Court (“CMAC”) held that an informed person, viewing the matter realistically and practically and having thought the matter through, would conclude that military judges meet the minimum constitutional norms of impartiality and independence, and therefore that the accused’s s. 11(d) rights were not infringed.”

The SCC (6:1) dismissed the appeals.

Justice Kasirer wrote as follows (at paras. 4, 6, 10-15):

“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.

…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.

…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.

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).

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.

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] 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, [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).

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. 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). I propose that the appeals be dismissed.”