Court Martial Appeal Court of Canada - R v Edwards, et al., 2021 CMAC 2

On Friday, 11 June 2021, the Court Martial Appeal Court of Canada (CMACC) handed down its judgment in four appeals (and one cross-appeal) concerning the independence of military judges.  The judgment will undoubtedly be determinative of two subsequent appeals on the same issue (R v Proulx, CMAC-612, and R v Cloutier, CMAC-614).

R v Edwards, et al., 2021 CMAC 2

In a unanimous decision, the Court granted the appeals by the Minister of National Defence (represented by the Director of Military Prosecutions) and dismissed the cross-appeal by the accused in R v Crépeau, CMAC-607.

The Court rejected the conclusions by military judges that the Military Judges Inquiry Committee (MJIC) constituted a separate disciplinary system that displaced the Code of Service Discipline.  The Court ultimately held that, in the unique context of the military justice system - a system established to promote the discipline, efficiency, and morale of the armed forces of Canada raised by Her Majesty - a reasonable and "... informed person, viewing the matter realistically and practically—and having thought the matter through could ... reach no other conclusion than [that] military judges meet the minimum constitutional norms of impartiality and independence as required by section 11(d) of the Charter."

Consequently, the CMACC held that military judges are subject to the Code of Service Discipline while they hold office and the impugned order issued by the Chief of the Defence Staff (which placed military judges under the disciplinary authority of senior officers) does not compromise the rights of an accused, tried by court martial, to a trial before an independent and impartial tribunal, under section 11(d) of the Charter.

This judgment is relatively recent.  There is no indication whether any of the accused will seek leave to appeal before the Supreme Court of Canada (SCC).  However, as the judgment is unanimous, if one or more of the accused wished to appeal the CMACC judgment, they would have to seek leave from the SCC.  In these circumstances, there is no automatic right of appeal - although the SCC clearly has the jurisdiction to hear an appeal.

The Court also dismissed, on relatively cursory analysis, the Defence motions to adduce new evidence on appeal, holding that it would have no bearing on the merits of the appeal.

There will undoubtedly be further analysis and commentary regarding this judgment.

The practical consequence of the judgment is that the six prosecutions that were stayed can now proceed (as can other prosecutions that may have been vulnerable to such Charter applications).  We must recall that the stays of prosecution in all six of those courts martial were ordered prior to any trials on the merits of each of those proceedings.

Ultimately, to paraphrase the immortal words of Samuel Clemens: "Rumours of the death of the Code of Service Discipline have been greatly exaggerated."  This judgment has, in effect, reinforced the viability of the military justice system.