From a practical perspective, the judgment was an ultimatum to the Chief of the Defence Staff (CDS) of the Canadian Forces to rescind an order that military judges have repeatedly determined was inconsistent with the Canadian Charter of Rights and Freedoms (the Charter).
The order in question (which is the most recent version of a similar order that had been issued on previous occasions) purports to establish disciplinary authority of the Deputy Vice Chief of the Defence Staff over military judges posted to the Office of the Chief Military Judge.
In R v Pett, 2020 CM 4002 and R v D'Amico, 2020 CM 2002, military judges Commanders Pelletier and Sukstorf, respectively, held that this order infringed the right of an accused, brought before a court martial, to be tried by an independent and impartial tribunal, as guaranteed by section 11(d) of the Charter. In both of those cases, the presiding military judge held that the order was of no force or effect. As a result of the declarations, both military judges held that the prosecutions could proceed: if the order was of no force or effect, the military tribunal could maintain its independence and impartiality.
Those judgments are now 5 months old. However, as courts martial are statutory courts, and not plenary courts of inherent jurisdiction established under section 96 of the Constitution Act, 1867, the declarations regarding the constitutionality of the order only applied to those specific proceedings. They did not, and could not, constitute a broad declaration under section 52 of the Charter, that would, in effect, quash the order. Thus, the CDS would have to rescind the order.
He did not.
Consequently, defence counsel before courts martial have repeatedly brought Charter applications in light of this continuing unlawful order. In Bourque, Commander Sukstorf expressly called upon the CDS to rescind what has clearly been determined, by more than one military judge, to be an unconstitutional interference by the executive in military judicial independence and impartiality.
Yet the order remains.
While this can be characterized as an ongoing 'dialogue' between the military judiciary and the senior leadership of the CF, it also points to a troubling concern regarding the respect for the rule of law (or lack thereof) exhibited by CF leadership.
A more detailed examination of the implication of this judgment, and the CDS' response, can be found in this blog article.
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