IV. Constitutionality of section 165.21 of the NDA
[43] The appellant claims that the decisions of this Court in R. v. Edwards; R. v. Crépeau; R. v. Fontaine; R. v. Iredale, 2021 CMAC 2 and R. v. Proulx; R. v. Cloutier, 2021 CMAC 3 are not determinative of this ground of appeal. The appellant states that at page 288 of R. v. Généreux, [1992] 1 S.C.R. 259, 1992 CarswellNat 668, [Antonio] Lamer C.J. found that a system in which the judges must be members of the Canadian Armed Forces is intrinsically inconsistent with paragraph 11(d) of the Charter. However, at page 295, Lamer C.J. stated that “[t]his, in itself, is not sufficient to constitute a violation of s. 11(d) of the Charter”.
[44] I also note that since Généreux, Parliament has amended the NDA several times to strengthen the independence of military judges. Bill C-25, An Act to amend the National Defence Act and to make consequential amendments to other Acts, 1st Session, 36th Parliament, 1998 (assented to December 10, 1998) provided a statutory basis “for independent military judges, in terms of tenure, remuneration, and removal only through an inquiry committee process” (Draft Internal Report – Court Martial Comprehensive Review, January 17, 2018 (online), at p. 38). Subsequently, Bill C-16, An Act to amend the National Defence Act (military judges), 1st Session, 41st Parliament, 2011 (assented to November 29 2011) and Bill C-15, An Act to amend the National Defence Act and to make consequential amendments to other Acts, 1st Session, 41st Parliament, 2013 (assented to June 19 2013), further amended the appointment process, tenure of office, remuneration, and conditions of employment for military judges so as to ensure the independence of the judiciary.
[45] For the reasons set out in Edwards et al., supra; Proulx and Cloutier, supra; and, more recently, in R. v. Christmas, 2022 CMAC 1, and R. v. Brown, 2022 CMAC 2, I dismiss this ground of appeal.
[46] It may be that civilian judges are fit to be judges in the military justice system at the first instance level, but this decision is one for Parliament, not the judiciary, to make.
Will this case go to the Supreme Court of Canada? Will Parliament change the NDA? Should it? Note that the UK military justice system currently uses civilian trial and appellate judges, while the US system uses only military officers to preside at trial and almost invariably at the first level of appeal.
In a 2021 book titled “Canada’s Military Justice System is in a Meltdown: Will Government Act? co-authored by Colonel-Maître Michel Drapeau and the Honorable (retired Justice) Gilles Létourneau (link:https://www.mdlo.ca/_files/ugd/782d8b_c8011c1c79a54e7caa241b30fa4eaaab.pdf) we recommended as follows:
ReplyDeleteJudges should not hold military rank and should not be subject to the orders and directives of the military’s chain of command. This could be done by amending the National Defence Act such that, upon appointment, military judges would retire their rank and assume the role of ‘Judge’ distancing themselves from both the military chain of command and the Code of Service Discipline. They would remain subject to the existing Military Judges Inquiry Committee appointed by the Chief Justice of the CMAC.
Also, there is no need for a parallel system of military justice in Canada since the available civilian judiciary could aptly subsume the very small number of courts martial currently taking place in Canada. This is the approach taken by many of our European allies.
Courts martial jurisdiction could be assumed by a military division added to the Federal Court of Canada. Merging the Office of the Chief Military Judge (total of 21 personnel) with the Federal Court of Canada and creating a ‘military division’ therein would address this issue. Besides realizing substantial personnel and operations financial savings by having, for example, a single registry as well as technical, financial and clerical support staff, a military division at the Federal Court would give access to a pool of qualified Federal