Thursday, February 9, 2023

Supreme Court of Canada to review the independence of military judiciary

On 2 February 2023, the Supreme Court of Canada (SCC) handed down its decision on five Applications for Leave to Appeal judgments of the Court Martial Appeal Court of Canada (CMAC) relating to the independence of military judges.

The lead case was Leading Seaman Edwards, Captain Crépeau, Gunner Fontaine and Captain Iredale v R (Supreme Court of Canada Docket 39820); however, five separate Applications for Leave were brought on behalf of a total of nine members of the Canadian Forces (CF).

The lead judgment from the CMAC was 
R v Edwards; R v Crépeau; R v Fontaine; R v Iredale, 2021 CMAC 2.

This is an important appear.  The SCC has examined facets of the Canadian military justice system in the past decade, including:
  • R v Moriarity, 2015 SCC 55 - Whether the absence of a so-called 'military nexus' (or 'military connection') test contravened section 7 of the Canadian Charter of Rights and Freedoms (Charter);;
  • R v Cawthorne, 2016 SCC 32 - Whether the discretion of the Minister of National Defence - who is not a prosecutor or a public law officer (even if the current Minister is a licenses lawyer) - to seek appeal 'as of right' contravenes sections 7 and 11(d) of the Charter; and
  • R v Stillman, 2019 SCC 40 - Whether the absence of a 'jury' at court martial contravenes section 11(f) of the Charter, where a CF member is prosecuted for a Criminal Code offence under the Code of Service Discipline.
However, none of these matters dealt with the independence of military judges, a matter last examined by the SCC over 30 years ago in R v Généreux, [1992] 1 SCR 259, which pre-dated the significant reforms to the Code of Service Discipline, introduced by Bill C-25 in 1998 (most of the legislative reforms came into force 1 September 1999).

Similarly, some further legislative reforms arose in the wake of CMAC judgments in R v Trépanier, 2008 CMAC 3 (regarding the right of an accused - or lack thereof - to elect the type of court martial) and R v Leblanc, 2011 CMAC 2 (regarding the independence of military judges, who, at the time, were subject to reappointment every 5 years, at the Minister's discretion). 

The judgment in Trépanier was notable in that the CMAC denied the request by the Director of Military Prosecutions (DMP) to suspend the execution of the judgment and declaration of invalidity.  This precipitated a panicked response from the executive and Parliament to amend the National Defence Act, through Bill C-60, to permit an accused the right to elect the type of court martial.  Additionally, Bill C-60 eliminated Disciplinary Courts Martial and Special General Courts Martial.  The jurisdiction of Special General Courts Martial - which tried persons other than officers and non-commissioned member (i.e., civilians and other non-CF personnel who, under exceptional circumstances, would fall under the Code of Service Discipline). 

In Leblanc, the CMAC gave the Crown a six-month grace period to amend the Act, which resulted in Bill C-15, the so-called Strengthening Military Justice in the Defence of Canada Act, SC 2103, c 24.

Although judicial independence was reviewed in Leblanc, the appeals for which the SCC recently granted leave will mark the first time in three decades that Canada's apex court will examine the independence of military judges.

And they might not like what they see ... 

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