Summary

Keywords

Charter of Rights — Right to be tried by independent and impartial tribunal — Constitutional law — Judicial independence — Courts martial — Armed forces — Military offences — Since R. v. Généreux, [1992] 1 S.C.R. 259, does the military status of military judges still raise a reasonable apprehension of bias? — Since Généreux, has there been significant societal change which dissipates this Court’s concern that the military status of military judges is a matter of practical necessity? — If so, does the military status of military judges, prescribed under the National Defence Act’s legislative scheme, lead an informed person, viewing the matter realistically and practically, to conclude that there is an apprehension of bias contrary to s. 11(d) of the Charter? — If so, is this violation justified under s. 1 of the Charter? — If not, what is the appropriate constitutional remedy under s. 52 of the Constitution Act, 1982? — Canadian Charter of Rights and Freedoms, s. 11(d) — National Defence Act, R.S.C., 1985, c. N-5, s. 165.21(1)

Summary

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(PUBLICATION BAN IN CASE)

The appellants are members of the Canadian Armed Forces who had various charges laid against them. They each filed a preliminary application in the Court Martial seeking a stay of proceedings because of an alleged infringement of their constitutional right to be tried by an independent and impartial tribunal guaranteed by s. 11(d) of the Canadian Charter of Rights and Freedoms. They argued that their right was infringed by an order by the Chief of Defence Staff dated October 2, 2019 regarding the designation of a commanding officer for purposes of considering disciplinary matters for military judges (“impugned order”). Captain Crépeau, in her application, also asked the tribunal to declare ss. 12, 18 and 60 of the National Defence Act to be of no force or effect, alleging that their combined effect was to allow the Chief of Defence Staff to issue an order, like the impugned order, relating directly to discipline for military judges and thus to permit the military hierarchy to exert pressure on a military judge presiding at a court martial. In a series of decisions, military judges concluded that there was an infringement of the accused’s right guaranteed by s. 11(d) of the Charter. In each of the proceedings, they made a similar declaration to the effect that the impugned order was an infringement of the right set out in s. 11(d) of the Charter. They also stayed the proceedings under s. 24(1) of the Charter. The Court Martial Appeal Court of Canada 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. It dismissed Captain Crépeau’s cross-appeal.

This appeal will be heard jointly with the appeals in files 39822, 40046, 40065 and 40103.

Lower Court Rulings