In a 6-1 judgment on April 26, 2024, Justice Nicholas Kasirer for the majority dismissed defence appeals on behalf of nine CAF members, charged with various criminal service offences under the Code of Service Discipline, who sought to overturn unanimous Court Martial Appeal Court (CMAC) rulings below, which rejected their s. 11(d) Charter challenges of the National Defence Act’s (NDA) requirement that military judges must be CAF officers: R. v. Edwards, 2024 SCC 15.
The majority agreed with the CMAC’s conclusion that “the military status of these judges would not lead a reasonable and informed person, viewing the matter realistically and practically, to conclude that there is an apprehension of bias or insufficient independence.”
Justice Nicholas Kasirer
He held that as presently configured in the NDA, “Canada’s system of military justice fully ensures judicial independence for military judges in a way that takes account of the military context, and specifically of the legislative policies of maintaining discipline, efficiency and morale in the Armed Forces and public trust in a disciplined military.”
Justice Kasirer said that accused CAF members who appear before military judges “are entitled to the same guarantee of judicial independence and impartiality under s.11(d) as accused persons who appear before civilian criminal courts, but this does not require that the two systems be identical in every respect.”
And, as the Supreme Court recognized in R. v. Généreux, [1992] 1 S.C.R. 259, while the place of military judges in the military hierarchy detracts from their “absolute judicial independence,” the top court also confirmed in that case that s.11(d) “does not require absolute judicial independence or a sort of truly independent military judiciary that could only be assured by civilian judges,” Justice Kasirer remarked. “‘True’ or ‘absolute’ or ‘ideal’ independence is not the constitutional standard endorsed in the jurisprudence of this court.”
The majority declined the respective invitations of the appellants and the intervener BC Civil Liberties Association (BCCLA) to overturn Généreux (which held that the military status of military judges does not violate s.11(d)) in order to bring the military justice system into line with current reality.
“While the court may depart from precedent when a decision’s rationale has been eroded by significant societal or legal change, it has not been shown that the rationale in Généreux has been eroded due to such changes, and therefore there is no compelling reason to abandon settled law,” Justice Kasirer wrote.
He noted that Parliament is free, within constitutional bounds, to enact another system for military justice, including civilianizing military judges, “but that policy choice does not fall to the courts. ... [T]he fact that it appears to be realistic and practical in some other countries is not determinative of whether the current Canadian regime is constitutional under s. 11(d).”
Moreover, replacing Canada’s system of military justice with a model used in other countries, as the appellants proposed, “would require close study to determine the extent to which foreign approaches could serve as a model for Canada. Courts are not equipped to do that work, nor is it their proper constitutional role,” he said observed.
Justice Andromache Karakatsanis
“Many concerns identified in Généreux over 30 years ago have since been addressed,” she observed. “Military judges now benefit from security of tenure, financial security and administrative independence — three hallmarks of judicial independence ... But they also continue to be liable to discipline by the military executive, now for a broader range of misconduct, which includes offences under the Criminal Code,” she remarked. “This discipline can result in penal consequences, including imprisonment, discharge from the military, disqualification as an officer and, ultimately, as a military judge.”
Justice Karakatsanis agreed with the majority that the requirement that military judges presiding over courts martial also have the military status of officers does not necessarily contravene the s.11(d) right of a CAF member. “Properly designed and protected, the executive and judicial roles of military judges can coexist,” she said, while also accepting that under the NDA, military judges can, as officers, be accountable for CSD offences.
“However, the ability of the military executive to impose discipline on military judges would cause a reasonable and informed person facing a court martial to apprehend that the military judge could be unduly influenced by a loyalty to rank and by the position or policies of the military hierarchy, to the detriment of the accused member’s individual rights,” Justice Karakatsanis held. “There are insufficient safeguards in place to alleviate the potential risk of interference by the military chain of command. There is not enough institutional separation — or independence — between the executive and the judicial role.”
She noted that military judges, much like civilian judges, are subject to the civilian criminal justice system and are accountable for their misconduct through a judicial oversight committee composed of judges; but unlike civilian judges, they are also answerable for their conduct to their superiors within the chain of command. “By holding a military rank, military judges are subject to service infractions and to the many service offences that can be prosecuted under the Code of Service Discipline for the military objectives of good order and discipline, efficiency and morale. They belong to the same institution responsible for laying charges against them and against the members who appear before them. If convicted of service offences, military judges may face dismissal from the Armed Forces, a criminal record and lifetime imprisonment. Moreover, under the NDA, military judges face military prosecution for offences already covered by the Criminal Code and any other act of Parliament, but the decision to proceed under the military justice system can have a significant impact on their rights. Thus, military judges face a unique disciplinary regime that is launched and prosecuted by the executive, which has no equivalent in the civilian world.”
Justice Karakatsanis said that because of a judge’s given rank, “it is reasonable that military personnel facing a court martial may fear a judge could prioritize allegiance to rank and to the chain of command over their respective individual rights. The possibility of the executive reviewing the military judge’s conduct either by summary hearing or by court martial would be perceived by a reasonable and informed person as insufficient independence between the executive and judicial roles. Because of this reasonable apprehension that military judges may not be institutionally impartial, any safeguards that may reduce those effects must be considered.” Yet, “the safeguards said to alleviate the risk that military judges would feel pressure to be loyal towards the chain of command are insufficient,” she concluded.
“First, the requirement in the NDA that military judges must take an oath of office, while an important foundation for an individual judge’s independence, does little to guard against an apprehension of institutional bias,” she reasoned. “Second, military judges do not have sufficient security of tenure simply because they may only ultimately be removed as a military judge for cause through the Military Judges Inquiry Committee”
She noted that on conviction for a disciplinary offence, the NDA allows for sanctions of demotion or dismissal from the Armed Forces, “meaning military judges would lose their status as officers and therefore a key qualification for their tenure. In any event, because military judges remain liable for uniquely military disciplinary charges initiated by their superiors, the rationale that animates the need for security of tenure — securing against interference by the executive — is not safeguarded.”
Third, reasoned Justice Karakatsanis, “the presumption that the Director of Military Prosecutions will carry out its functions independently of partisan concerns cannot be relied upon to safeguard judicial independence. The protection of the rule of law should not depend on a belief that institutions are immune from impropriety and, above all, the Director of Military Prosecutions does not act independently of the chain of command; rather, the Director of Military Prosecutions performs its functions under the supervision of the Judge Advocate General, who must be totally loyal and partisan to the interests of the military.”
“A reasonable and informed observer would therefore be concerned about institutional bias because military judges could face discipline from their superiors,” Justice Karakatsanis said.
Canadian Armed Forces Lieutenant-Colonel Karl Lacharité (right) and Colonel Dylan Kerr (left)
Lacharité said the decision “recognizes that Canada’s military justice system, as a full partner in administering justice alongside the civilian justice system, shares and upholds the same fundamental principle that is judicial independence as well as that there is no constitutional requirement that the two systems be identical in every respect. Further, it acknowledges that the current scheme under the NDA fully ensures judicial independence for military judges in a way that takes account of the military context and the purpose of the military justice system, that is maintaining discipline, efficiency and morale in the Forces.”
He said the ruling also underscores “that while there is an expectation that military judges have a dual role as judges and officers, they are first and foremost judges.”
Moreover, he said the court has confirmed that military judicial independence is fundamental to constitutional compliance and the maintenance of public confidence and that the liability of military judges under the Code of Service Discipline does not, in and of itself, lead to a loss of judicial independence or to any reasonable apprehension that military judges lack independence.
Lacharité said there are a few similar cases in the system that were awaiting the outcome of Edwards. However, the spate of constitutional challenges to the military justice system in recent years appears to be over, at least for now, except for a separate challenge on a different discrete issue pending before the CMAC, he said. There is “nothing that attacks the system as a whole,” he confirmed. “I think one thing you can draw [from Edwards is] that the series of cases and rulings from the Supreme Court in systemic cases demonstrate that the system has been able to evolve in a principled manner over the years, clearly, and it demonstrates that it is a strong and vigorous system that we have in place that really enables the CAF to maintain discipline, efficiency and morale and a system for which the public should have full confidence and trust.”
Every single Charter attack that went to the Supreme Court, and which touched on the system’s structure, “was dismissed by the Supreme Court,” he added. “I think Canadians should take great pride in the system that they have, and that’s what the Supreme Court is communicating in a certain manner, I think.”
CAF Cmdr. Mark Letourneau, who with Lt.-Cmdr. Patrice Desbiens and Maj. Francesca Ferguson represented the appellants, told Law360 Canada, “We are disappointed with the results.”
However, Letourneau said he appreciates that the majority judgment by Justice Kasirer “responds to pretty much all the [defence] arguments, ... actually goes through all of our arguments, basically, and provides their view on them. We don’t agree with them, but at least there’s [a response] and it’s very respectful.”
Read together with Justice Karakatsanis’s in-depth dissent, which agreed in many ways with the appellants’ submissions, Canadians and the military community will get both perspectives on the very important issues raised in the cases, he noted. “In terms of just understanding the issues, you’ll understand the issues much better because of her dissent.”
Zain Naqi, Lax O'Sullivan Lisus Gottlieb LLP
Addressing the result of the appeal, he said, “the majority found that existing safeguards in the NDA are sufficient to protect the independence of military judges and that, while other approaches — such as ‘civilianizing’ the military, as has been done in the U.K. and New Zealand — might well be workable, and even perhaps make for a ‘better’ system, that’s a policy choice best left to Parliament and not a constitutional requirement.”
He noted the “strong dissent from Justice Karakatsanis that leans heavily into concerns expressed in numerous reports issued by former judges about our military justice system. So, I don’t think this decision, by any means, ends the debate on military justice in Canada.”
Naqi also said there is “plenty that is positive and encouraging in the Supreme Court’s decision in Edwards. We have seen a lot of criticism recently around attempts to politicize judicial decision-making and to chip away at the independence of our courts. This decision affirms well-established authority on the strong constitutional guarantee of judicial independence under the Charter, and it continues the trend in the jurisprudence of resisting executive interference in core judicial functions.”
Ga Grant
However, she added that the BCCLA “welcomes Justice Karakatsanis’s dissent, which holds that there is insufficient institutional separation in the existing scheme between the executive and judicial role of military judges.”
“Public confidence in the military justice system has been shaken in recent years with public question[ing] of the integrity and accountability of Canada’s military justice system, including charges against high-ranking military judges,” the BCCLA noted. “Some military judges had refused to rule on their individual cases given they found themselves lacking impartiality or independence. Canada is behind compared to other jurisdictions which have adopted civilian judges, including the United Kingdom and New Zealand.”
Major Nathan James, a CAF senior public affairs officer, confirmed that Bill C-66, a Liberal government bill on military justice introduced last month, would, if passed, explicitly exclude military judges from being subjected to the summary hearing administrative process — a non-penal, non-criminal process to deal with minor breaches of discipline. However, service offences, which include Criminal Code offences and are dealt with by courts martial, will still apply to military judges.
Clarification: Lt.-Col. Karl Lacharité, the CAF’s deputy director of military prosecutions-appeals, was co-counsel on the appeal with Col. Dylan Kerr; Col. Kerr made the oral argument at the Supreme Court of Canada.
Photo of Justice Andromache Karakatsanis: Jessica Deeks Photography, SCC Collection
Photo of Justice Nicholas Kasirer: SCC Collection
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