R v Edwards, 2024 SCC 15 … Meh …

29 April 2024

 

On Friday 26 April 2024 the Supreme Court of Canada (SCC) handed down its judgment in R v Edwards, 2024 SCC 15.  This was a collection of appeals from the Court Martial Appeal Court of Canada (CMAC) focusing on judicial independence in the military justice system.  The lead judgment from the CMAC was R v Edwards, et al., 2021 CMAC 2.

The SCC was presented with an opportunity to answer a question that was not answered in the seminal military justice case of R v Généreux, [1992] 1 SCR 259: should military judges be viewed principally as members of the executive or the judicial branch of government?

Généreux did not answer that question.  The Court in Généreux held that the method of appointing “Judge Advocates” – which would later become “military judges” under Bill C-25 (enacted in 1998, and the principal provisions came into force on 1 September 1999) – did not afford those positions, and thus the courts martial of which they were an integral part, sufficient independence to satisfy the test in Valente v The Queen, [1985] 2 SCR 673.  Consequently, courts martial – conducted under the military justice regime as enacted before Bill C-25 – did not satisfy the requirement for an independent and impartial tribunal under subs 11(d) of the Canadian Charter of Rights and Freedoms (Charter).

Arguably, Edwards still doesn’t answer the question about the true status of military judges.  And, based upon the judgment by Justice Kasirer for the majority, answering that question was not viewed as dispositive.  And that is understandable in light of the focus on Valente.

However, I suggest that examining Canada’s military justice system – and, specifically, the status of our military judges – would have presented a more robust examination of the relevant factors in Valente.  Instead, the majority fell back on the same tired tropes that have dominated military justice before the SCC and the CMAC for the past 30 years, producing yet another milquetoast judgment that failed to consider the military context in a realistic and pragmatic fashion.  It reflects the impact of the subtle lobbying by the Canadian Forces (CF) and the Office of the Judge Advocate General (JAG), over the past two to three decades, in describing an idealized (and, perhaps, not realistic) version of military justice.

In an unsurprising development, a 6:1 majority of the SCC handed down a judgment on Friday concluding that, although military judges remain part of the executive as officers of the CF, that standing – and specifically, the fact that they remain subject to the Code of Service Discipline over which they preside at court martial – does not impair their independence, which is necessary to satisfy the requirement for an independent and impartial tribunal under subs 11(d) of the Charter.

As I have commented previously – I don’t share the confidence that the majority has projected regarding the safeguards of military judicial independence.  I suggest that the majority of the SCC failed to apply the test from Valente with sufficient vigour.

In addition to offering a summary of the judgment, I will delve into some of the comparative aspects of the argument presented by the Appellants, and I will describe why these arguments failed to gain traction with the Court.  I will also offer a suggestion regarding why such comparisons were relevant, if tangentially, to the broader issue of the status of military judges.

 

Background

Before I delve into Friday’s judgment, a brief refresher may be necessary.  After all, the issue of the independence of military judiciary has been building to this judgment for over five years.  And, while the judgment dealt principally with a series of judgments that arose in 2020, its antecedents date even earlier.  And it is this context that, presumably, should have informed the SCC (but clearly did not).

In 2018, the (then) Chief Military Judge, Colonel M. Dutil was charged under the Code of Service Discipline.  This was a significant turn of events in light of the role he played within the military justice system.  Although there are some notable gaps in information relating to this matter, much information was gradually disclosed during process by which the Director of Military Prosecutions (DMP) attempted, and failed, to prosecute the Chief Military Judge.

It appears that a complaint was made to the military police, apparently from the Office of the JAG, regarding the conduct of the Chief Military Judge.  The military police investigated and declined to lay any charges.  Consequently, the Chief of Staff (COS) JAG submitted a complaint to the Chief Justice of the CMAC alleging improper conduct of the Chief Military judge.  The Chief Justice tasked Justice Jocelyne Gagné, a judge of the CMAC (and of the Federal Court), to conduct an initial review to determine whether the matter should be placed before the Military Judges Inquiry Committee (MJIC).  Justice Gagné concluded that such a referral was not warranted.  The Chief Justice therefore declined to refer the matter to the MJIC.

Subsequently, at someone’s prompting, the military police either re-opened the earlier investigation or launched a new investigation.  This led to charges of fraud and military misconduct.  However, at R c Dutil, 2019 CM 3003, following application by the accused, the Deputy Chief Military Judge, Lieutenant-Colonel d’Auteuil, recused himself from presiding over the court martial due to an apparent conflict of interest.  He did not subsequently assign a new military judge to preside, which effectively halted the prosecution.  The reality that he faced was that none of the military judges could be assigned, for a variety of reasons.

DMP sought judicial review of the failure to assign a new military judge.  Unsurprisingly, this application failed: Canada (Director of Military Prosecutions) v Canada (Deputy Chief Military Judge), 2020 FC 330.

I have documented this problematic tale:

Le Directeur des Poursuites Militaires c. Le Juge Militaire en Chef Adjoint: DMP’s Forlorn Hope, 11 October 2019

‘Bad Facts’ and Awkward Law: The Director of Military Prosecutions v Deputy Chief Military Judge, et al., 2020 FC 330, 4 March 2020

Director of Military Prosecutions Withdraws Charges Against the Chief Military Judge of the Canadian Forces, 11 March 2020

The Next Chief Military Judge, 9 April 2020

How difficult is it to appoint a Chief Military Judge?, 7 May 2020

 

While this ‘theatre of the absurd’ was culminating, various counsel at Defence Counsel Services began to bring applications before courts martial arguing that military judges lacked sufficient independence as they were subject to the disciplinary control of senior, non-judicial officers.  These applications relied upon recent directives that had been issued regarding the assignment of the role of ‘commanding officer’ for military judges, for the purpose of discipline, to the Deputy Vice Chief of the Defence Staff.  Although these developments arose contemporaneously with the failed prosecution of the CMJ, they were prompted by a separate circumstance – namely, the relatively banal reorganization of the chain of command at National Defence Headquarters.

However, it gave rise to a stand-off between military judges and the executive, in the persons of the CDS and JAG.  I have documented the evolution of those cases as well:

Disciplining Military Judges, 20 February 2020

CDS-Imposed Limitations on Convening Courts Martial, 22 May 2020

R v Bourque, 2020 CM 2008: The Rule of Law Applies to the Chief of the Defence Staff, 21 July 2020

In the Current Dialogue with the Military Judiciary, the CDS isn’t Listening, 18 August 2020

Military Judicial Independence: I have heard of orders, and rumours of orders …, 26 September 2020

Judgments as ‘Remedial Measures’, 2 October 2020

R v MacPherson et. al.: Judicial Independence Redux, 27 October 2020

R v Christmas – Beware the Ghosts of Judgments Past, 13 November 2020

Court Martial Appeal Court of Canada – R v Edwards, et al., 2021 CMAC 2, 14 June 2021

I have a theory …, 18 June 2021

 

The appeal in Edwards was not heard by the SCC until more than two years after the CMAC handed down its judgment.  Almost 3 years passed between the judgment of the CMAC and the judgment of the SCC.  And throughout that period, the position of Chief Military Judge was left vacant.

Moreover, significant changes were introduced in the Code of Service Discipline, including the bifurcation of the military justice system into service infractions tried by summary hearings and service offences tried by courts martial.

All of these developments represent relevant contextual factors in the application of Valente.

 

Summary of the Judgment

Friday’s judgment was not particularly illuminating or innovative.  The Court fell back on the same tropes that have dominated military justice for the past 30 years.  Justice Kasirer revisited key aspects of the judgment in Généreux, including the justification for a separate system of military justice.

Frankly, no one was challenging that justification.  Presumably, the requirement to establish a basis for further analysis prompted the Court to revisit Généreux’s key factors.  And counsel for the Appellants also called upon the court to reconsider Généreux in terms of factors relating to judicial independence.

Despite the length of the judgment, the central issue was relatively narrow: do military judges satisfy the test in Valente regarding their independence.  Specifically, the issue was whether military judges satisfied the third part of the test.  In Valente, the SCC identified three essential conditions or hallmarks of judicial independence: (i) security of tenure; (ii) financial security; and, (iii) administrative (or institutional) independence.

The military justice system examined in Généreux – specifically, the Judge Advocates who fulfilled a role similar (but not identical) to today’s military judges – failed this test.  Judge Advocates were appointed to preside over courts martial by the JAG.  These appointments were made from a list of senior legal officers maintained by the JAG and the appointments were on an ad hoc and individual basis.  Thus, Judge Advocates did not enjoy security of tenure, financial security, or administrative (or institutional) independence to the extent required in Valente.

Bill C-25 markedly improved the independence of “military judges” over their pre-cursors, “Judge Advocates”.  Rather than being appointed by the JAG on an ad hoc basis, they were appointed to a judicial position by the Governor in Council. Their salary remained established in regulation, even as the salaries for other CF personnel were set in statutory instruments (Compensation and Benefits Instructions).  The salary for military judges was established through quadrennial review similar to that of other federally appointed judges.

While these offered a marked improvement to independence, there remained some frailties.  Military judges were initially subject to renewal every 5 years based upon recommendation of the Minister to the Governor in Council.  The policy rationale behind this provision was the expectation that legal officers could, and would, rotate between judicial functions and legal advisory functions.  However, realistically, what Lieutenant-Colonel earning a military judge’s higher salary, benefits, and status, would willingly opt to return to mere advisory duties?

A military judge’s reliance on reappointment on the recommendation of the Minister presented an obvious vulnerability.  What if the military judge in question had ruled on matters of law or mixed law and fact in a manner inconsistent with the expectations of the Minister or the government of the day?

In R v Leblanc, 2011 CMAC 2, the CMAC held that the requirement for renewal of judicial office undermined security of tenure, and therefore independence.  The CMAC declared the offending provisions of no force or effect but suspended the declaration of invalidity for a period of six months, in order to permit Parliament to make the necessary legislative changes.  The Security of Tenure of Military Judges Act, SC 2011, c 22, (Bill C-16) was hastily enacted thereafter.  These amendments ensured that military judges would be appointed until they attained 60 years of age (the maximum retirement age for CF personnel).

[And, in light of the four years that it took the Governor in Counsel to designate a new Chief Military Judge – from a maximum pool of four candidates – it is fortunate that military judges no longer require re-appointment.]

Although Bill C-25 fundamentally changed the Code of Service Discipline, purportedly improving the fairness and reliability of the same by addressing deficiencies that had been identified in judgments like Généreux and governmental studies throughout the 1990s, it failed to address all potential shortcomings in the independence and impartiality of courts martial.  Subsequent tweaking was necessary.

The independence of military judges did not have to be absolute, ideal, or perfect (Edwards, para 69).  Their independence had to be sufficient.  And, in Leblanc, the CMAC held that it was not.

The determinative question before the SCC in Edwards was whether military judges, within the legislative regime currently in place, benefitted from sufficient institutional or administrative independence.

Justice Kasirer (for the majority) summarized the argument of the Appellants, and his analysis thereof, in paras 118 to 148 of his judgment.  He concluded that despite the fact that three of four “… military judges themselves [had] asserted their sense that they lack independence …”, the safeguards in the National Defence Act (NDA) assured a degree of independence that would satisfy the test in Valente.

Justice Kasirer rejected the argument that, as both officers and judges, military judges faced an inherent conflict of interest.  He held that their oath of office would ensure that they could and would reconcile these potentially competing obligations.

He rejected the argument that, as officers subject to the Code of Service Discipline, military judges were vulnerable to improper influence through retaliatory prosecution.  Justice Kasirer reiterated the claim from the Director of Military Prosecutions (DMP), which was seized upon by the CMAC in Edwards, et al, that a military judge is “not above the law”. (para 131).  He asserted that a purely retaliatory prosecution of a military judge would be unlawful (para 132).

The majority distinguished between the possibility of abuse of prosecutorial discretion and whether a provision of the NDA is truly unconstitutional.

During the lifespan of this appeal, significant portions of Bill C-77 were brought into force (although it took three years to do so), including significant changes to summary justice under the Code of Service Discipline.  The amendments that came into force on 20 June 2022 bifurcated the Code of Service Discipline.  Summary trials were eliminated and replaced with summary hearings.  Henceforth, service offences (which include civilian offences under Acts of Parliament, such as the Criminal Code) could only be prosecuted before courts martial. [NDA, s 166]

Service infractions – defined exclusively in regulation – could be tried only before the newly created summary hearings. [NDA, s 162.4]  These hearings, like summary trials, are conducted before senior CF officers, who cannot reasonably be viewed as being independent in the nature defined in Valente.  The burden of proof for such hearings was lowered to the civil ‘balance of probabilities’ [NDA, s 163.1], and there is no right to elect trial before a truly independent court or tribunal.  In other words, there are fewer safeguards for fairness in summary hearings than there were for summary trials.  And this was achieved by purportedly ‘de-criminalizing’ the summary justice process.

Military judges were exempt from being prosecuted before summary trials [NDA, in force prior to 20 June 2022, s 164(1.3), since repealed].  The same is not true of summary hearings.  Military judges can be charged and prosecuted by Officers Conducting Summary Hearings (OCSH).  Evidently, this potential vulnerability was sufficiently worrisome for the executive and senior policy-makers in the CF and Office of the JAG that, in the recently announced Bill C-66, clause 11 proposes the addition of s 162.51 of the NDA, which would remove military judges from the jurisdiction of summary hearings.

And that proposed amendment is not insignificant.  If we can learn anything from matters such as Leblanc and the Security of Tenure of Military Judges Act (as well as the earlier case of R v Trépanier, 2008 CMAC 3 and the consequent hasty enactment of Bill C-60), the executive will generally only change legislation if it feels compelled to do so by appellate judgment, risk of adverse appellate judgment, or the fickle mood of the electorate.  Much of Bill C-66 is driven by the fickle mood of the electorate; however, I contend that clause 11 was included because the executive believed that the jurisdiction of summary hearings over military judges undermined their independence.  And, frankly, that is a reasonable, if not compelling, conclusion to draw.

Nevertheless, the majority of the SCC was evidently unswayed by the potential abuses that could arise under the new “Military Justice at the Unit Level” (MJUL), holding:

[147]     Service infractions were reconfigured by the 2019 amendments to remove their criminal nature. Service infractions are “not . . . offence[s]” under the NDA (s. 162.5; QR & O, art. 120.01). Importantly, they are not criminal or quasi-criminal in nature and are not prosecuted, as would a service offence, before a court martial pursuant to the usual rules and standards of criminal law. While there are sanctions in the case of violation, these are not “true penal consequences” as spoken to in Wigglesworth and Généreux. Summary hearings are designed to ensure discipline, in the military sense, on more minor matters in order to foster morale and efficiency. Military judges are subject to this discipline and where it does not interfere with the exercise of their judicial duties, it is an ordinary feature of military life that would not attract the concern of a reasonable and informed person. Moreover, any arbitrary use of summary hearings against a military judge would plainly be unlawful, a matter that a reasonable and informed person would understand. In sum, I disagree with the appellants’ characterization that service infractions allow officers to “punish military judges” in a manner that, on a reasonable standard, might be perceived to interfere with judicial independence (A.F., at paras. 50 and 99).

 

Frankly, that’s not particularly reassuring.  Note the phrasing “… where it does not interfere with the exercise of their judicial duties …”.  But that’s the point, isn’t it?  The laying of charges relating to alleged service infractions can, and likely would, interfere with their judicial duties.

While such prosecutions are not criminal in nature, that’s not the issue under Valente.  The issue is whether that frailty undermines the confidence that we can have in the independence of military judiciary.  While arbitrary use of summary hearings would be unlawful, only a naif would believe that arbitrariness does not seep into the military justice system, including at the ‘summary level’.  The judicial review in Noonan v Canada, 2023 FC 618 demonstrates that it has and does.  Such abuses are only addressed when the accused has the wherewithal and tenacity to challenge such arbitrariness.

Arguably, a military judge would have the wherewithal – and, importantly, the financial means – to challenge such abuses.  However, the damage would already be done at that point.  The military judge would be obliged to recuse him- or herself until the matter was resolved, much like the former Chief Military Judge, Colonel M. Dutil, was obliged to do when he was charged with service offences, notwithstanding that the prosecution was eventually terminated, and the DMP opted (unsurprisingly) not to try his luck in the civilian criminal justice system.

 

The Dissent

Justice Karakatsanis was the sole dissent.  She held that the existing safeguards were insufficient to ensure judicial independence.  And while I do not share her concerns regarding the impact of the JAG’s (and DMP’s) purported partisanship (para 207), I do share many of her concerns.

The oath of office by a military judge does nothing to safeguard institutional independence (para 196).

While the supervision by the MJIC is relevant to the removal of a military judge from his or her judicial position (paras 199 to 202), and is analogous to a similar process for civilian judges, it is entirely distinct from the Code of Service Discipline.  And military judges remain vulnerable to ‘de facto’ removal from judicial duties – if temporarily – if they were ever charged with a service infraction (or service offence).  Were a military judge to continue to perform judicial functions when faced with a charge (or subsequent statutory review) of a service infraction, a challenge to that military judge’s capacity to preside at court martial would be a certainty.

And the presumption of prosecutorial independence and the proper exercise of prosecutorial discretion is relatively cold comfort (paras 203 to 207).  In particular, I find little reassurance in majority’s willingness to discount the prudence conveyed in R v Nur, 2015 SCC 15, regarding over-reliance on the presumption that prosecutorial discretion will be employed properly: “… one cannot be certain that the discretion will always be exercised in a way that would avoid an unconstitutional result. Nor can the constitutionality of a statutory provision rest on an expectation that the Crown will act properly …” (para 95).

Chief Justice McLachlin cited and built upon the earlier concern expressed by Justice Cory in R v Bain, [1992] 1 SCR 91, 103-4:

Unfortunately it would seem that whenever the Crown is granted statutory power that can be used abusively then, on occasion, it will indeed be used abusively. The protection of basic rights should not be dependent upon a reliance on the continuous exemplary conduct of the Crown, something that is impossible to monitor or control. Rather the offending statutory provision should be removed.

 

Perhaps my greatest reservation arises from the failure of the majority to heed the principle from a unanimous SCC in the Provincial Court Judges’ Assn. of New Brunswick case[1]: “… Judicial independence has been called ‘the lifeblood of constitutionalism in democratic societies’ … and has been said to exist ‘for the benefit of the judged, not the judges’ .,.” (para 4).  See also: The Queen v Beauregard, [1986] 2 SCR 56, 70; Ell v Alberta, 2003 SCC 35, paras 18-23, 29.

Ultimately, our concern is whether, as expressed in Valente, and reinforced in R v Lippé, [1991] 2 SCR 114, “… a reasonable person, who was informed of the relevant statutory provisions, their historical background and the traditions surrounding them, after viewing the matter realistically and practically would conclude that a [military judge] could make an independent and impartial adjudication.”

That context includes the circumstances presented in these appeals, which included a problematic prosecution of a Chief Military Judge, in which an initial military police investigation led to no charges.  Charges were only laid after the Chief Justice of the CMAC declined to place allegations before the MJIC.

That context would include circumstances in which ordinary members of the CF were routinely, and improperly, deprived of an election for court martial when charged under s 129 of the NDA.

That context included circumstances in which military judges were, and are, vulnerable to prosecution under the new MJUL, even though they were previously exempt from prosecution before summary trials.

And that context included a four-year period in which the Governor in Council failed (or refused) to designate a new Chief Military Judge after Colonel Dutil – the subject of the problematic and failed prosecution by DMP – retired.  I note, too, that the newly designated Chief Military Judge, Captain (N) Deschênes was the one military judge who did not issue a judgment that questioned the independence of military judges.  And this observation should, in no way, be construed as a criticism of Captain (N) Deschênes.  Rather, it is an observation regarding how the executive branch has comported itself over the course of the past 5 years.

And, while the “reasonable person” is not limited to an accused brought before a court martial, the role of the “reasonable person” is to consider whether the accused can have confidence in the independence of military judges.  And, in light of the potential for chicanery permitted in the Code of Service Discipline – and actual examples of chicanery – the confidence conveyed by the majority of the SCC is difficult to reconcile with what we have observed over the past 5 years.

 

An Additional Relevant Factor

One factor that was not explored by either the majority or the dissent was the impact of the bifurcation of the Code of Service Discipline.

The Code of Service Discipline examined in Généreux, Moriarity, Cawthorne, and Stillman was a Code that blended what could be characterized as ‘disciplinary’ offences with truly criminal or penal offences.  That is manifestly not the Code of Service Discipline we have today, or the Code of Service Discipline examined by the SCC in Edwards.

Courts martial now preside solely over offences of a penal nature.  Well … technically, they always did.  But low-level discipline is now handled in a completely separate process.  We will no longer see circumstances in which CF members are charged with low-level misconduct and elect trial by court martial.  And the absence of such elections will not be because the chain of command, relying on questionable legal advice from the Office of the JAG, improperly and unlawfully refuses to permit such an election.  It will be because there are no elections to be offered.

It is a near certainty that charges regarding drunkenness, unauthorized absences, negligent discharges of weapons (absent express harm or injury), and “… conduct prejudicial to good order and discipline …” will disappear from courts martial.  Instead, such charges will be laid by way of infractions prosecuted at summary hearings.

Courts marital will now focus solely on those charges for which the chain of command wishes to seek truly penal consequences.  Consequently, there is a compelling argument that courts martial, as they are now conceived, must even more closely resemble civil courts.  Courts martial no longer bear the role of maintaining discipline, efficiency, and morale.  That role is borne by the chain of command using summary hearings.  Courts martial are now focused on punishing criminal misconduct.

 

Policy Arguments & Comparative Examples

Counsel for Defence Counsel Services, who represented the Appellants, leaned heavily into policy-based arguments.  Not surprisingly, these failed to gain traction with the court.  As Justice Kasirer observed, repeatedly, it does not fall to the courts to make these policy choices.  It falls to the courts to determine whether legislative provisions comply with the supreme law of the land.  The fact that select countries have chosen to ‘civilianize’ their military judiciary or to limit the scope of their military justice systems is not determinative, or even indicative, of the issues before the Court.

Counsel for the Appellants repeatedly invited the Court to reconsider Généreux.  Not surprisingly, the majority rejected this invitation.  Even Justice Karakatsanis, in dissent, did not venture to do so.  What was frustrating for me, as an observer, was that not only was this course of action unlikely to gain traction, but it was also unnecessary.  The Court did not need to reconsider or reject Généreux.  Arguably, what it needed to do was reconcile that which the Court expressly did not do in Généreux: formulate a clear definition for military judges.

And if comparison with other nations has any value or merit in this examination, it is to assist with such defining steps.

From time to time, commentary regarding military justice in Canada has turned to comparison with examples from other countries – both countries with Civil (or Continental) legal systems like France or Germany, and Anglo Common Law jurisdictions like the United Kingdom, Australia, or the United States.

Arguments have been advanced that in some jurisdictions – predominantly Civil or Continental systems – legislatures have sharply curtailed the jurisdiction or application of military justice systems during peacetime or in domestic (i.e., within the borders of the relevant nation-state) circumstances.  France is one such example.

Proponents who advocate for significant curtailing of the scope of Canada’s military justice system will often present such examples to suggest that the number of countries that limit the operation of military justice in this regard demonstrates that such a policy approach should be adopted by Canada.  Over the past 20 years, such arguments have generally failed to drive policy reform and have certainly failed to find much, if any, traction before our apex court (and with good reason, demonstrated in Edwards).

Indeed, an article by a colleague of mine, Mike Madden, on the limits of such comparisons was cited in Friday’s judgment: Mike Madden, “Keeping up with the Common Law O’Sullivans? The Limits of Comparative Law in the Context of Military Justice Law Reforms” (2013), 51 Alta. L. Rev. 125.  Although it is over a decade old, it is worth the read (as is an earlier article by Mike in a similar vein: Mike Madden, “Comparing Appels and Oranges: Evaluating the Link between Appeal Processes and Judiciary Structures in Canada and France”, (2011) 122 J App Pr & Pro 167.)

In R v Stillman, 2019 SCC 40, the SCC upheld a broad application of a military justice system in Canada, holding that it did not contravene the Charter.  The judgment in Stillman hammered the final nails in the coffin of the so-called ‘military nexus test’ whereby a criminal offence, prosecuted under the Code of Service Discipline by virtue of s 130 of the National Defence Act (NDA), had to be sufficiently connected to military service in order for the military justice system to have jurisdiction.  Although the ‘military nexus test’ had earlier been rejected, repeatedly, by the CMAC, the certainly of its demise was reinforced in Stillman.

All that was (and is) necessary to establish the jurisdiction of the military justice system was to satisfy the relevant requirements under s 60 of the NDA.  Even if an alleged criminal offence had nothing to do with the accused’s military service, the accused could still be prosecuted under the Code of Service Discipline for the alleged misconduct, if the accused was subject to the code of service discipline at the material time.  In a refrain that would return in Edwards, the majority held that, while there may be different policy options available to Parliament regarding the breadth and application of a military justice system, it falls to Parliament to exercise those decisions.  The Court may only intervene if the policy decisions, manifested through legislation, contravene the Charter as part of Canada’s supreme law.

Even from a conceptual perspective, comparison between Canada’s military justice system and various Civil or Continental military justice systems will have limited merit.  There are marked distinctions that can be drawn between our Common Law processes and Continental processes.  Better comparators are comparable Anglo Common Law regimes.

When the United Kingdom ‘civilianized’ the judges who preside over their courts martial, some advocates for reform of Canada’s military justice system then changed tack to focus on the changes in the United Kingdom. After all, Canada’s system of laws, and its system of military justice, borrowed heavily from our British antecedents.

However, this comparison breaks down when one considers Common Law jurisdictions more broadly.  In particular, the approach in Australia and the United States differs markedly from that of the United Kingdom.  A fundamental difference is that both the United States and Australia view their courts martial as falling outside the judicial branch as defined within their respective constitutional regimes.  Meanwhile, the United Kingdom has opted to place military judges squarely within the Judicial branch.  There is a lack of commonality across the principal Anglo Common Law democracies.

And the circumstances in Canada were, and remain, ambiguous.  Our military judges continue to have one foot squarely within the executive while purportedly enjoying the independence required of the judiciary.

In the United States, courts martial are referred to as ‘Article I tribunals’, distinct from ‘Article III courts’ [See: Weiss v. United States, 510 U.S. 163 (1994)]. In the United States, Article III courts are roughly analogous to Canada’s Superior Courts of Justice established under s 96 of the Constitution Act, 1867 (what we often refer to as “Section 96 courts”).  And I recognize that this is a rough analogy.  ‘Article I tribunals’ in the United States are ‘legislative courts’, meaning that they are creatures of legislation much more akin to our administrative tribunals, which are consistently held to represent an extension of the executive, not the judiciary.  Of all ‘Article I tribunals’ in the United States, courts martial arguably receive the greatest deference from ‘Article III courts’.

Courts Martial in the United States are presided over by uniformed military judges, much like in Canada.  However, American military judges do not enjoy the same independence and security of tenure as their Canadian counterparts.  American military judges are appointed for fixed terms, much as was initially envisioned under Bill C-25 in Canada.

Similar to the United States, the High Court of Australia (HCA) held that Australian Military Courts are not Chapter III courts, as defined under the Constitution of Australia (Commonwealth Constitution): Re Tracey; Ex parte Ryan (1989) 166 CLR 518.  Under the Australian Constitution, Chapter III defines the judicature – the judicial branch.  As in the United States, Australian Military Courts are considered to be creatures of statute and an extension of the executive.  The jurisdiction of non-Chapter III Australian Military Courts was (relatively recently) challenged successfully: Lane v Morrison [2009] HCA 29. In particular, the Chief Justice of the HCA was joined by Justice Gummow in stating that “… the only judicial power which the Constitution recognises is that exercised by the branch of government identified in [Chapter] III …”. Hayne, Heydon, Crennan, Kiefel and Bell JJ observed that the decisions of courts martial, which were traditionally subject to review and took effect only upon confirmation within the chain of command, lacked the final authority that usually characterizes the exercise of judicial power and observed that describing the function of such tribunals as the exercise of a form of judicial power “… may go no further than asserting that courts-martial act judicially.”

the jurisdiction of Australian Military Courts, as non-Chapter III courts, over what are essentially criminal acts was upheld in Private R v Cowen [2020] HCA 31. And the HCA relied on Stillman from the SCC to jettison the ‘service connection test’ (the Australian term for Canada’s ‘military nexus test’).  Note, however, that these arguments turned on what may be characterized as ‘division of powers’ as opposed to review of such functions under a constitutionally entrenched human rights code or charter.

As in the United States and Canada, Australian military judges are uniformed officers.

In contrast, in the UK, military judges are civilian judges who are clearly vested in the judicial branch of government.  They fall under the administration of the Judge Advocate General of the United Kingdom, who is a civilian judge, not a legal advisor.

 

Concluding Comments

In Canada, we distinguish between administrative tribunals and statutory courts.  Neither constitute “Section 96 Courts” with inherent jurisdiction.  However, the judges of our statutory courts (such as provincial courts of justice or the Federal Court) must still meet the independence requirements set out in Valente.  In comparison, administrative tribunals do not have the same requirements.

In Généreux, the SCC did not define whether military judges should be viewed as an extension of the judiciary or the executive.  “Judge Advocates” were clearly drawn from the executive and the Court certainly concluded that the ad hoc manner of appointment did not satisfy the factors in Valente for an independent and impartial tribunal.  As Justice Kasirer held in Edwards, the issue is whether the factors in Valente are satisfied in the present regime.

And more recent SCC judgments on military justice, including R v Moriarity, 2015 SCC 55, R v Cawthorne, 2016 SCC 32, and R v Stillman, 2019 SCC 40 did not address this issue.

Some may argue that it is not necessary to evaluate whether military judges in Canada are properly placed within the judicial or the executive branch.  Certainly, that issue did not seem to be dispositive to Justice Kasirer.  The central issue is whether military judges satisfy the factors described in Valente.

However, I suggest that, conceptually, an adequate understanding of the position of military judges is necessary to have sufficient appreciation of the factors in Valente.

Justice Kasirer devoted considerable space in his judgment for describing the merits of a “separate system of military justice”.  In so doing, he revisited the Court’s comfort-zone established by Chief Justice Lamer in Généreux, and repeated in Moriarity, Cawthorne, and Stillman.  This repetition becomes increasingly trite.

It is understandable that Justice Kasirer felt obliged to revisit this well-trod path.  During the hearing of the appeal in Edwards, counsel for Defense Counsel Services leaned heavily into the policy argument that, since a comparator country such as the United Kingdom civilianized its military judiciary, the continued use of uniformed military judges in Canada was ‘bad policy’.

But that argument – like most bald policy arguments brought before the SCC – was never going to gain traction.  The issue was whether the appellants could identify a breach of the principles established in Valente.

However, to answer that question, we must examine what it means for military judges in Canada to occupy the position of commissioned officers in the CF.  We must examine the implications that arise from them being members of the CF – particularly the fact that they are subject to the very Code of Service Discipline over which they preside as judges.

As members of the CF, they can be charged and tried by courts martial.  Well, they can potentially be tried by courts martial.  As the debacle of the attempted prosecution of the former Chief Military Judge, Colonel Dutil, demonstrated: there are potentially practical barriers to such prosecution.

The current DMP, Colonel Dylan Kerr, has argued that no one, not even military judges, are above the law.  And, while that certainly resonates in a populist manner, let’s look a bit closer at that statement.

Even if military judges were not subject to the Code of Service Discipline, they would not be ‘above the law’.  Criminal law would still apply to them, and civil courts of criminal jurisdiction would have jurisdiction over them.  The MJIC would continue to have jurisdiction over the professional conduct of military judges.  And we must remember that a principal catalyst for the applications that eventually led to the appeals in Edwards, was the decision to investigate – or, more accurately, re-investigate – the (then) Chief Military Judge after the Chief Justice of the CMAC declined to convene the MJIC in relation to a complaint brought by senior personnel in the Office of the JAG.  Even though the military police initially declined to lay any charges, after the complaint in the MJIC process failed, someone convinced the military police to re-attack.

That prosecution failed, publicly, due to the infeasibility of proceeding by court martial.  However, unlike so many allegations of sexual misconduct that were re-directed to civil courts, charges against the (then) Chief Military Judge were not redirected to a civil court of criminal jurisdiction.

And there is a degree of irony that, although military judges could potentially be tried by court martial, the DMP, who asserted that “… no one is above the law …”, cannot possibly be prosecuted at court martial.  And I am not referring to an impracticality or a potential barrier arising from the feasibility of such a prosecution.  I am referring to an absolute barrier.

All prosecutions at court martial are brought by DMP: “A person may be tried by court martial only if a charge against the person is preferred by the Director of Military Prosecutions.” [NDA, subs 165(1)]  While barristers and advocates may assist DMP in this endeavour [NDA, subs 165(2), s 165.15], the NDA clearly vests all prosecutions in DMP.  So long as an officer occupies the position of DMP, he cannot be prosecuted under the Code of Service Discipline.  And the JAG, as the superintendent of military justice, cannot be prosecuted at court martial.  And, as we discussed four years ago, the Chief of the Defence Staff cannot be prosecuted at court martial where there is a right to elect, or an obligation to proceed by General Court Martial.

But there’s evidently no problem prosecuting military judges by court martial, and, for the majority of the SCC, that does not raise any issues of improper influence that would cause the reasonable person to question their independence or impartiality.

Nor was the majority of the Court concerned about the potential for chicanery arising from the jurisdiction of the MJUL over military judges.  Such concerns were pushed aside despite recent, object examples of chicanery in the summary justice system.

Nor did Justice Fish’s findings in the Third Independent Review of the NDA persuade the majority that those who are most frequently brought before courts martial lack confidence in the impartiality of military judges.  It would appear that, as with past reviews of the Code of Service Discipline, concerns regarding efficacy, reliability, and confidence represent a buffet from which we may select, according to our preference, which factors are persuasive.

Like Justice Karakatsanis, I am concerned that the vulnerabilities of military judges – which exceed those of their civilian counterparts – undermine their independence as defined in Valente.  The military judges themselves appear to hold this view, as do many of the CF members who are subject to the Code of Service Discipline.  I am concerned that the majority of the SCC gave short shrift to these vulnerabilities in a judgment that appeared to gloss over – and even idealized – the context in which these factors arise.  I am concerned that they did so in order to avoid the discomfort of sending matters back to trial (or, more accurately, sending more matters back to trial, since there are at least four matters that will now proceed to trial).

There are tangible factors that would lead a reasonable person to conclude that military judges are unreasonably vulnerable to influence by the executive.  The test in Valente did not require the Appellants to demonstrate actual manipulation by the executive.  The issue is whether a reasonable person would conclude that the safeguards in place will sufficiently insulate military judges from improper influence.  And, objectively, the last five years have demonstrated that they do not.

An elegant solution would have been to declare that section 60 of the NDA does not apply to military judges – in effect, to remove the jurisdiction of the Code of Service Discipline.  The executive has already acknowledged the need to remove the jurisdiction of the MJUL by presenting Clause 11 of Bill C-66 to Parliament.  Removal of the jurisdiction of the Code of Service Discipline would not place military judges beyond the law.  It would place them in similar, though not identical, circumstances as their civilian counterparts.

And most importantly, it would restore the confidence that CF personnel – and military judges themselves – must necessarily have in their independence.

 

 

[1] Provincial Court Judges’ Assn. of New Brunswick v New Brunswick (Minister of Justice); Ontario Judges’ Assn. v Ontario (Management Board); Bodner v. Alberta; Conférence des juges du Québec v Quebec (Attorney General); Minc v Quebec (Attorney General), 2005 SCC 44.