Memo to Parliament

There is a lot packed into the recent decision of the Court Martial Appeal Court of Canada in R v. Déry. One point that leaps out is that the three-member panel was bound by the year-old Royes decision by another three-member panel of the same court. See ¶¶ 87-97 (majority opinion). Despite the fact that scores of federal and provincial judges are currently designated to sit on CMAC, there is no provision for an expanded bench that could revisit issues decided by a panel (or reconcile panel decisions that may be in tension with one another). The result is that a single panel, possibly voting 2-1 (even though that happened not to be the case with the 2016 precedent at issue in Déry), can bind successor 3-judge panels for decades, meaning that the only way out is for the Supreme Court of Canada to grant leave to appeal even if the later case did not otherwise warrant review. This imposes an unnecessary burden on the Supreme Court and is unfair to litigants -- most likely defendants, since a government application for leave is presumably more likely to be granted than a private litigant's application, if comparative grant rates at all resemble those seen in certiorari practice before the Supreme Court of the United States.

In U.S. practice, a decision by a panel of a federal court of appeals binds other panels and can be overruled only by the full court sitting en banc (or of course by the Supreme Court). All of these courts have more than three judges. The U.S. Court of Appeals for the Armed Forces (our CMAC) has five judges and sits en banc at all times.

One wonders whether Parliament might be well advised to permit CMAC to sit in expanded panels, or en banc, with power to overturn its own precedents. It also could be argued that the 67-person CMAC roster is so unwieldy that few judges will gain actual experience with this area of law and the court itself may suffer a lack of institutional and doctrinal cohesion. Should the roster be drastically cut back? There are reasons to maintain a broad roster, to be sure (fresh thinking, geographical balance and reduced travel costs), but Canada could have its cake and eat it simply by allowing CMAC to convene in expanded benches when an earlier precedent is plausibly drawn in question.

Here is an excerpt from s. 234 of the National Defence Act:

• (2) The judges of the Court Martial Appeal Court are
  (a) not fewer than four judges of the Federal Court of Appeal or the Federal Court to be designated by the Governor in Council; and
  (b) any additional judges of a superior court of criminal jurisdiction who are appointed by the Governor in Council.

  (2.1) Subject to subsection (2.2), any former judge of the Court Martial Appeal Court may, at the request of the Chief Justice of that Court made with the approval of the Governor in Council, act as a judge of the Court and while so acting has all the powers of a judge of the Court and shall be referred to as a deputy judge of the Court.

  Thus, even under current law, CMAC could consist of as few as four judges.
  
  Canadian military justice mavens are invited to comment. (Real names only, please.)