Case information

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)<br><br>

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The appellant is a member of the Canadian Armed Forces (“CAF”) who had a charge laid against her. She filed an application in the Court Martial seeking a stay of proceedings because of an alleged infringement of her constitutional right to be tried by an independent and impartial tribunal guaranteed by s. 11(d) of the Canadian Charter of Rights and Freedoms. She argued that her right was infringed by the Chief of the Defence Staff (“CDS”) maintaining, through orders, a legal structure providing a commanding officer to officers holding the office of military judge, who remained subordinated to the authority of a commanding officer for being disciplined while performing their function as a military judge. A military judge concluded that there was an infringement of the accused’s right guaranteed by s. 11(d) of the Charter. He declared that a Canadian Forces Organization Order was of no force or effect as it pertained to any disciplinary matter involving CAF officers holding the office of military judge. He also stayed the proceedings under s. 24(1) of the Charter. The Court Martial Appeal Court of Canada allowed the Crown’s appeal, for substantially the same reasons it set out in R. v. Edwards et al., 2021 CMAC 2, and R. v. Proulx and R. v. Cloutier, 2021 CMAC 3.

This appeal will be heard jointly with the appeals in files 39820, 39822, 40065 and 40103.