Sergeant A.J.R. Thibault v. His Majesty the King

(Federal) (Criminal) (By Leave)

(Publication ban in case)


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)


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The appellant is a member of the Canadian Armed Forces (“CAF”) who was convicted of sexual assault following a trial presided over by a military judge. The Court Martial Appeal Court of Canada granted a motion to allow him to raise an argument concerning the constitutionality of s. 165.21 of the National Defence Act (“NDA”), the provision that requires military judges to be members of the CAF. On appeal, the appellant raised the issue of whether the military status of the judge who presided over his trial violated s. 11(d) of the Charter. The Court Martial Appeal Court considered the arguments relating to the constitutionality of s. 165.21 of the NDA. For the reasons set out in R. v. Edwards et al., 2021 CMAC 2, and R. v. Proulx and R. v. Cloutier, 2021 CMAC 3, it dismissed that ground of appeal.

This appeal will be heard jointly with the appeals in files 39820, 39822, 40046 and 40065.

Lower Court Rulings

February 18, 2020
Standing Court Martial

201944 (French only)
Applicant convicted of sexual assault
October 12, 2021
Court Martial Appeal Court of Canada

2021 CACM 6 (French only)
Motion for leave to raise issue of constitutionality of s. 165.21 of National Defence Act granted
April 22, 2022
Court Martial Appeal Court of Canada

2022 CMAC 3 / 2022 CACM 3 (French only)
Appeal dismissed