Canada: Election for court martial -- the process may now be moot, but underlying issues remain pertinent

On 27 April 2023, Justice Zinn of the Federal Court of Canada handed down his judgment in Noonan v Canada (Attorney General), 2023 FC 618.  This judgment related to two separate applications for judicial review that were heard jointly, as they involved the same central issue: prior to the significant alteration of the Code of Service Discipline, when elements of Bill C-77 came into force on 20 June 2022, when was a member of the Canadian Forces (CF) entitled to elect trial by court martial when charged with one or more offences under s 129 of the National Defence Act - conduct, acts, or neglect to the prejudice of good order and discipline?

The Office of the Judge Advocate General (OJAG) appeared to rely upon a problematic, overly-broad, interpretation of art 108.17 of the Queen's Regulations and Orders for the Canadian Forces (QR&O), which was in force until 20 June 2022.  This problematic interpretation -- which was clearly inconsistent with the modern principle of statutory construction in Canada -- led to successful applications for judicial review, and the quashing of convictions against two CF members.

The specific right to elect trial by court martial when charged under the Code of Service Discipline has been rendered moot by the implementation of 'service infractions' and 'summary hearings' under Bill C-77, the provisions for which came into force on 20 June 2022.  Now, 'service offences' can only be tried by court martial.  The less serious 'service infractions' can only be tried before summary hearings.

However, while the interpretation and application of (the now defunct) art 108.17 of the QR&O may be moot, the underlying issue of fairness of the Code of Service Discipline, and the confidence that members of the CF, and the public at large, can have in the administration of justice within the CF, remains open to debate.

Global Military Justice Reform contributor, Rory Fowler, expands upon that issue here: 

Noonan v AGC, 2023 FC 618 – An unsurprising result and its second-order implications