R. v. MacPherson and Chauhan and J.L., 2020 CM 2012

HEARING BEFORE A MILITARY JUDGE Citation: R. v. MacPherson and Chauhan and J.L. , 2020 CM 2012 Date: 20201014 Docket: 201972 General Court Martial Asticou Courtroom Gatineau, Quebec, Canada Between: Master Warrant Officer J. MacPherson, Applicant - and - Her Majesty the Queen, Respondent Date: 20201014 Docket: 202003 202004 Preliminary Proceedings Asticou Courtroom Gatineau, Quebec, Canada And Between: Warrant Officer S. Chauhan, Private J.L.

Applicants - and - Her Majesty the Queen, Respondent Application heard in Gatineau, Quebec on 7 and 8 October 2020. Decision rendered orally in Gatineau, Quebec on 14 October 2020. Written reasons delivered in Gatineau, Quebec on 23 October 2020. Before: Commander S.M. Sukstorf, M.J. Restriction on publication: Pursuant to

section 179 of the National Defence Act and

section 486.4 of the Criminal Code , the Court directs that any information obtained in relation to these proceedings that could identify anyone described as the complainant, shall not be published in any document or broadcast or transmitted in any way. Restriction on publication: Pursuant to

section 179 of the National Defence Act , and

section 486.4 of the Criminal Code of Canada , the Court further directs that any information that could disclose identity of the person described during these proceedings as the complainant or as the accused Private J.L. shall not be published in any document or broadcast or transmitted in any way. DECISION ON A DEFENCE APPLICATION FOR A STAY OF PROCEEDINGS Introduction [ 1 ] The three applicants before the Court challenge whether a military judge presiding a court martial is an independent and impartial tribunal within paragraph 11 (

d) of the Canadian Charter of Rights and Freedoms , Constitution Act , 1982 . Their challenge is based on two arguments. The first argument alleges a lack of administrative independence asserting that the Office of the Chief Military Judge (OCMJ) to which military judges belong is not sufficiently independent from the executive. The second argument alleges that military judges lack the required institutional independence from the executive in order to protect the accuseds’ rights under paragraph 11(

d) of the Charter . Paragraph 11 (

d) of the Charter reads as follows: 11. Any person charged with an offence has the right . . . (

d) to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal. [ 2 ] This decision is delivered in response to a joint hearing held on 7 and 8 October 2020 for the three applications. Each case has been convened separately and consequently, each accused is represented by different defence counsel and the prosecutor is also different for each accused.

Background [ 3 ] Courts martial are not new to constitutional challenges, having faced challenges to their judicial independence in the past [1] . The most recent challenge to judicial independence arose in the fall of 2019 after defence counsel became aware of a Chief of the Defence Staff (CDS) Order entitled “ Designation of Commanding Officers with respect to Officers and Non-Commissioned Members on the Strength of the Office of the Chief Military Judge Dept ID 3763, dated 2 October 2019” (CDS Order). The CDS Order provided for a commanding officer to exercise powers and jurisdiction over military judges.

The controversial paragraphs of the CDS Order [2] read as follows: “1. I, J. H. Vance, Chief of the Defence Staff, pursuant to subsection 18(1) of the National Defence Act and for the purposes of the definition of “commanding officer” contained in

article 1.02 of the Queen’s Regulations and Orders for the Canadian Forces , hereby: a. revoke the previous designation order of 19 January 2018 with respect to this unit; b. designate the officer who is, from time to time, appointed to the position of Deputy Vice Chief of Defence Staff (DVCDS) and who holds a rank not below Major-General/Rear-Admiral, to exercise the powers and jurisdiction of a commanding officer with respect to any disciplinary matter involving a military judge on the strength of the Office of the Chief Military Judge; . . . 2.

The next superior officer in matters of discipline to whom the DVCDS is responsible, when acting as a commanding officer referred to in paragraph (

b) shall be the Vice Chief of the Defence Staff (VCDS)” [3] [Emphasis added] [ 4 ] Put simply, the CDS Order delegated power to the Deputy Vice Chief of the Defence Staff (DVCDS) to lay charges against a military judge if he or she is alleged to have committed a service offence. The fact that military judges might be subject to the Code of Service Discipline [4] (CSD) in their role as serving officers in the Canadian Armed Forces (CAF) is not in and of itself contentious, given their dual role. In fact, by virtue of their ranks, they are automatically captured in general orders.

However, the CDS Order focussed specifically on military judges as a group. The CDS Order provides a member of the executive with the power and jurisdiction to charge military judges with respect to “any disciplinary matter”.

To put it plainly, this overbreadth is akin to providing local prosecutors in civilian courts with the ability to charge local judges for alleged judicial misconduct that occurs inside the courtroom. [ 5 ] As evidenced by rules applicable to all federally appointed judges published by the Canadian Judicial Council, Ethical Principles for Judges [5] , once appointed, all judges are accountable to judicial discipline committees and liable for their conduct both in and out of the courtroom. Military judges are no different.

The NDA established a Military Judges Inquiry Committee (MJIC) [6] empowered to conduct inquiries with respect to complaints regarding military judges. The amount of power provided to the MJIC is significant and notably broader than that of civilian judicial disciplinary committees [7] . In fact, in substance, the power provided to the MJIC replaces powers that would customarily fall within the responsibility of the chain of command concerning major decisions in a subordinate’s career.

The MJIC itself has the power to decide if a military judge has the capacity or ability to remain in their role, with respect to infirmity, misconduct, performance in the execution of their judicial duties as well as whether they satisfy the physical and medical fitness standards applicable to officers. [ 6 ] In order to fully appreciate the context of the current applications, a

summary of recent courts martial findings on the issue of judicial independence unfolding over the last year alone is particularly instructive. [ 7 ] In late fall of 2019, upon learning of the CDS Order, several accused submitted applications contending that the CDS Order which purported to subject military judges to the disciplinary powers of the DVCDS was a violation of their paragraph 11(

d) Charter rights. In the cases of Pett and D’Amico, [8] both military judges declared the CDS Order to be of no force or effect as it pertained to the above paragraphs. [9] In D’Amico , as the sitting trial judge, I agreed with Pelletier M.J.’s earlier decision in the case of Pett that the CDS Order 2019 was overbroad as it encroached on the jurisdiction of the MJIC: [53] In a nutshell, the provisions identified in CDS Order 2019 pertain only to military judges, specifically providing for the executive to

exercise jurisdiction over them with respect to any disciplinary matter. For whatever reason, the executive took the time to explicitly craft an order for military judges. However, despite focussing on military judges in their unique role, they failed to account for the statutory regime and primacy the NDA assigns to the Military Judges Inquiry Committee .

After considering the SCC position in Lippé , this Court is in substantial agreement with Military Judge Pelletier’s finding that the Military Judges Inquiry Committee must have primacy with respect to any allegation that arises from a military judge’s role or conduct as a military judge. [Emphasis in original] [ 8 ] Recognizing the nature of military culture, as the presiding military judge in D’Amico , I emphasized the importance of judicial independence: [46] It is important to keep in mind that this application is about the rights of the accused and not about military judges or their particular status under the CSD.

However, in light of the fact that an accused person’s defence in law might rely upon assertions that the chain of command may not have acted appropriately or may have otherwise breached the accused’s rights in some capacity, it is imperative to demonstrate to all serving CAF members that military judges can and do decide their cases independently from the prosecution and the chain of command. [47] There are times when military judges must render decisions where they have no choice other than to be critical of the actions or conduct of the chain of command.

An accused person needs to know that the military judge hearing his or her case is truly independent and not under any undue influence by the chain of command in any way.

This level of independence requires military judges to avoid relationships with those in the chain of command as a means of promoting impartiality and to ensure that a judge’s judicial independence is not compromised. [48] Recognizing that courts martial and military judges are part of the CAF, in order to protect the rights of an accused person, it is imperative that military judges are placed in the most advantageous position to be impartial and independent. [ 9 ] Although the judges in both the Pett and D’Amico cases exercised significant restraint, they were both unequivocal in denouncing the unacceptable overbreadth of the CDS Order and called upon the executive to correct it and examine the issues further.

The two decisions were in complete agreement on the substantive issue related to infringement arising from the overbreadth of the CDS Order; however, as the presiding military judge in D’Amico , I recognized that in exceptional circumstances, such as offences that occur outside Canada, the application of the CSD may be required to fill a necessary jurisdictional void in criminal law. [10] [ 10 ] However, in July 2020, over six months after the first declaration was made in Pett , the CDS Order still had not been rescinded. Just prior to the start of the court martial in R. v.

Bourque , 2020 CM 2008 [11] , defence counsel raised the same application challenging the independence of the military judiciary. In response to the prosecution’s motion to quash the last-minute application, counsel for Major Bourque argued that he expected that after the court martial decisions in Pett and D’Amico , the CDS order would have been rescinded and that he had just learned of its continued existence. [ 11 ] At the time of the Bourque trial, courts martial operations had just resumed after being temporarily suspended due to the COVID-19 pandemic.

Faced with a busy court calendar, I expressed frustration with the demands being placed on the court martial system from the continued existence of the CDS Order. [37] Allowing this status quo to continue with the continual churn of applications does nothing more than degrade and erode confidence in the entire military justice system. Further, it continues to monopolize significant judicial resources, not to mention the resources of the DMP and Director of Defence Counsel Services (DDCS) thereby impairing the timely administration of military justice.

As the court in Kazman concluded, a trial judge must also consider how the decision in the case before them affects the entire court calendar in other ways. In fact, this Court must weigh not just how the interests of justice lie in this specific case, but it must also assess whether the impact of a slight delay in this case will help or hinder the overall Court calendar. If this issue is resolved at the earliest opportunity, then it is expected that the recurrence of the same litigious issue will end and both the judiciary and counsel can focus on the priority of the cases before them.

There is clearly no utility to permitting the status quo to continue. [ 12 ] Given the absence of evidence that the executive was aware of the rulings in Pett and D’Amico and recognizing that the CDS had been seized with a number of critical operational issues, [12] I adjourned the hearing to permit the matter to be brought to his attention and provide him the opportunity to rescind the impugned CDS Order. [35] As I explained to counsel during the proceedings, there is no evidence before the court to suggest that the CDS or his office have

refused to recognize the courts’ Orders. Further, there is no evidence that they are even aware of the decisions rendered in Pett and D’Amico .

As a result, I feel compelled to extend to the Executive the same accommodation that I am affording to defence counsel in assessing his late submission of notice. [ 13 ] In Bourque , I also reminded counsel of their responsibilities to give effect to the court’s direction: [40] … As officers of the court, and part of both DDCS and DMP who are nestled within the Office of the Judge Advocate General (OJAG), the legal adviser to the Executive, I expect counsel to pass this decision along and seek the appropriate assistance to give effect to this direction. [41] The decisions in Pett and D’Amico have confirmed that the CDS Order as currently written infringes the rights of an accused to be tried by an independent tribunal and it is of no force and effect.

In rendering legal advice to the Executive, I have full confidence that the legal advisers in the OJAG will fulfil their professional responsibility in rendering legal advice consistent with the current law. [ 14 ] Before the court could hear the application in the Bourque case, the accused subsequently agreed to a plea bargain. Given that the paragraph 11(

d) Charter right belongs to the accused and is for his benefit, his application was subsequently abandoned. [ 15 ] Unfortunately, despite the strong pronouncement issued in the Bourque case intended to ensure the executive had been duly informed, there were yet four more decisions delivered on applications on the same indistinguishable issue. One month after the Bourque decision, on 14 August 2020, in the cases of R. v. Edwards , 2020 CM 3006 and R. c. Crépeau , 2020 CM 3007 , d’Auteuil A/C.M.J. issued stays of proceedings. One month after that, two more stays of proceedings were ordered in the case of R. c.

Fontaine , 2020 CM 3008 on 10 September 2020 and, finally, on 11 September 2020 in the case of R. v. Iredale , 2020 CM 4011 [13] . [ 16 ] Military judges are entrusted with important decision-making powers and are accountable to maintain the public’s confidence in the military justice system. All members of the CAF must have confidence appearing before courts martial knowing that their cases will be decided without improper influence. Consequently, military judges have a responsibility to protect their independence and impartiality.

This is not out of self-interest, but it is an obligation owed to all the members of the CAF. The protection of judicial independence extends beyond one particular court martial. It is a public trust. Given the absence of any reaction, military judges hearing the last four cases felt they had no other recourse but to stay the proceedings.

In the most recent case of Iredale , Pelletier M.J. expressed the following: [54] I believe that a military judge making the same declaration about the impugned CDS order as was made months ago in Pett and D’Amico , combined with a restatement of her or his belief in his or her own independence would have little weight, in light of the inaction of military authorities in the eight months since Pett . In military terms it would indeed be similar to a sentry challenging an intruder once to stop, then challenging the intruder again by saying, “Stop or I will say ‘stop’ again”.

Such a repeated declaration would not only be non-credible, it would potentially bring disrepute to the administration of military justice, especially in relation to CAF personnel liable to be tried by court martial under the CSD. [55] I therefore reject the proposition that declarations such as the ones issued in Pett and D’Amico would sufficiently remedy the Charter violation found in this and recent cases. Such a declaration would not constitute an appropriate and just remedy in the circumstances where no action was taken in the intervening eight months.

This finding is not based on a need to send a message or punish military authorities. It recognizes that bringing an accused such as Captain Iredale to this court, whose independence and impartiality has been judicially recognized as lacking in violation of a Charter right without taking the steps required to alleviate this violation, makes a declaratory remedy insufficient in relation to the harm done to the accused in this case.

As found by d’Auteuil M.J. at paragraph 31 of Edwards , the guarantee of judicial independence is for the benefit of the judged, not the judges. [ 17 ] The CDS Order was eventually suspended on 15 September 2020 [14] just prior to the commencement of the 16 September 2020 scheduled hearings into the applications of Master Warrant Officer MacPherson and Private J.L. On 16 September 2020, the Court was provided with a copy of the CDS Suspension Order and defence counsel requested a short adjournment to consider its impact.

After some consideration, defence counsel advised the Court that the applicants intended to revise their application and resubmit it and had agreed with Director of Military Prosecutions (DMP), the respondent, to a postponement of the hearing to permit the filing of new submissions on the matter. The matter was subsequently set down for the 7 and 8 of October 2020. Separately, Warrant Officer Chauhan also submitted the identical application and the Court requested that all three applications be heard together.

Positions of the parties Applicants [ 18 ] The applicants argued that the issue before this Court is different from the issue raised in Pett and D’Amico where the courts focused only on the effect of the CDS Order. The collective arguments of the three accused are summarized as follows: (

a) The OCMJ, to which military judges belong, lacks administrative independence from the CAF. In consideration of this argument, the applicants submitted the following facts: (

i) the OCMJ does not have a financial agreement or Memorandum of Understanding (MOU) with the Minister of National Defence (MND), Minister of Finance or the CDS; (ii) the OCMJ budget is not set out by Parliament in the Appropriation Acts [15] and the OCMJ is therefore completely dependent on the Executive for the receipt of its funding; (iii) as a Level 1(L1) unit, the OCMJ is required to submit a business plan annually to the Chief of Program (CPROG), which is administered by Director Budget (DB), who is a member of the executive and currently holds the rank of Captain(N); (iv) the OCMJ is not a permanent court and established pursuant to Ministerial Organization Order (MOO) [16] 2000007 [17] ; and (

v) the government, represented by the MND and DMP are routine litigants before the courts they are funding. (

b) The OCMJ, the unit to which military judges belong, lacks institutional independence. To support their submissions, the applicants rely upon the following: (

i) The CDS specifically chose to suspend the CDS Order dated 2 October 2019 rather than rescind or revoke it as directed by the military judiciary in order to send a message to the military judiciary. As evidence, they argue that the order was specifically crafted to send the following message: a. the Executive is aware of the military judicial decisions, but advises that they have been appealed.

The applicants suggest that by only suspending the CDS Order, rather than rescinding or revoking the order, the CDS is communicating that he expects a favourable appeal; b. the suspension order makes it clear it was only ordered to avoid further stays of proceedings by the military judges; c. the reference to the continuing effect of the Canadian Forces Organization Order [18] (CFOO) 3763 [19] is intended to remind military judges that they remain subject to the CSD by virtue of their role as officers; (ii) Through the operation of CFOO 3763 and the fact that military judges are captured in CDS Order dated 14 June 2019 [20] it is clearly the intention of the Executive to subject military judges to the full application of the CSD; [ 19 ] In terms of relief, the applicants seek the following:

(

a) a declaration pursuant to subsection 52(1) of the Constitution Act, 1982 that sections 12 , 17 , 18 and 60 of the National Defence Act ( NDA ) [21] violate the constitutional principles of judicial independence protected by paragraph 11(

d) of the Charter and are thus of no force or effect and to provide the executive six months to correct the breach; (

b) a declaration that MOO 2000007, CFOO 3763, the CDS Order dated 14 June 2019 and the CDS Suspension Order dated 15 September 2020 violate the applicants’ right to be tried by an independent and impartial tribunal protected by paragraph 11(

d) of the Charter ; (

c) an order pursuant to subsection 24(1) of the Charter that the proceedings against the applicants be stayed due to the breach of their right to be tried by an independent and impartial tribunal as guaranteed by paragraph 11(

d) of the Charter ; (

d) a combination of a declaration and a stay of proceedings; (

e) the termination of proceedings that will inform Parliament and the executive of the current problem before the court where in the Court’s reasons may be found recommendations and solutions on how to solve these issues. They suggest it also opens up the possibility for the prosecution to transfer the cases to the civilian criminal justice system permitting the CAF time to adequately address the problems; and (

f) any such other relief as this Honourable Court deems just. Respondents [ 20 ] In response to the three applications, the prosecution argued as follows: (

a) The fact that the CDS Order has been suspended remediates the violation to paragraph 11(

d) of the Charter that was previously identified in the cases of Pett , D’Amico , Crépeau , Fontaine , Edwards and Iredale . He argued that three military judges made specific pronouncements that, absent the CDS Order, there were no apparent concerns with the lack of independence and impartiality of the military judiciary; (

b) In courts martial decisions in Crépeau and Iredale , sections 12, 18, and 60 of the NDA have already been found to comply with paragraph 11(

d) of the Charter . The respondent further submitted that

section 17 of the NDA is also compliant with paragraph 11 (

d) for the same reasons provided. The respondent further submitted that the legislative provisions challenged by the applicant are foundational sections of the NDA that provide general authority in relation to the governance of the CAF and the scope of jurisdiction of the CSD. He argued that they do not specifically target military judges nor do they authorize anyone to take any action that is unlawful. He argued that based on the judicial reasons provided in Crépeau and Iredale , judicial comity should bring this Court to the same conclusion; (

c) The administrative and budgetary framework applicable to the OCMJ meets the requirements of paragraph 11(

d) of the Charter . Under the current structure, the OCMJ enjoys a sufficient degree of administrative independence; and (

d) Finally, he argued that if the Court finds any residual violation of paragraph 11( d ), this Court may cure it by a simple declaration. The respondent further asserts that the remedy sought by the applicant being a stay of proceedings is not warranted. He recommended that pronouncements may be sufficient to engage the executive in making the necessary adjustments. [ 21 ] The facts related to the respective accused are briefly summarized as follows: (

a) On 10 December 2019, two charges were preferred by the Regional Military Prosecutor Central (RMP(C)) against Master

Warrant Officer J. MacPherson for two counts of sexual assault contrary to

section 271 of the Criminal Code for alleged incidents that occurred late summer and fall of 1998 at or near Gagetown, New Brunswick; (

b) On 22 January 2020, two charges were preferred by the RMP(

C) against Warrant Officer Chauhan for one count contrary to

section 271 of the Criminal Code for sexual assault and another count contrary to

section 93 of the NDA for disgraceful conduct regarding alleged incidents that occurred on or about 25 June 2019 at or near Petawawa, Ontario ; and (

c) On 31 January 2020, two charges were preferred by RMP Atlantic against Private J.L. One count related to an allegation contrary to

section 271 of the Criminal Code , for sexual assault and a second count for an allegation contrary to

section 93 of the NDA for disgraceful conduct for alleged incidents that occurred on 9 May 2019 at or near Aldershot, Nova Scotia. Issues [ 22 ] The issues for this Court to decide are narrowed down as follows: (

a) Does the OCMJ, to which military judges belong, lack administrative independence from the CAF infringing an accused’s right to an independent and impartial tribunal under paragraph 11(

d) of the Charter ? (

b) Do military judges, who belong to the OCMJ, a unit of the CAF, lack institutional independence thereby infringing an accused’s right to an independent and impartial tribunal under paragraph 11(

d) of the Charter ? (

c) Do sections 12, 17, 18 and 60 of the NDA violate paragraph 11(

d) of the Charter ? and (

d) If the answer is yes to either (a) (

b) or (c), what is the appropriate remedy? Law on judicial independence [ 23 ] Although the Supreme Court of Canada (SCC) guidance on judicial independence has evolved through the years, and will continue to evolve, in order to understand its applicability to military courts martial, it is imperative to canvas all the relevant SCC decisions on the subject as well as the statutory framework in place within the NDA . [ 24 ] The SCC addressed judicial independence in courts martial as early as 1980 in pre- Charter jurisprudence.

In MacKay , the SCC was similarly asked whether a military tribunal closely associated with the executive met the requirements of judicial independence pursuant to paragraph 2(

f) of the Canadian Bill of Rights , a paragraph corresponding to paragraph 11(

d) of the Charter . [ 25 ] In MacKay , the accused argued he was deprived of a hearing by an independent and impartial tribunal because the president of the standing court martial was a member of the executive, albeit a lawyer and part of the OJAG. Although the SCC case law on paragraph 11(

d) of the Charter has significantly evolved, the SCC comments in MacKay continue to provide essential guidance being relied upon as recently as the SCC decision delivered in 2019 in R. v. Stillman , 2019 SCC 40 . Justice Ritchie writing for the majority in MacKay made some important statements that debunked the assertion that the president at that time was unsuitable to preside over a court martial simply because he was a member of the Armed Forces.

At page 395, he wrote: The complaint in this regard centred on the submission that the appellant was deprived of a hearing by an independent and impartial tribunal because the president of the standing court martial was unsuitable for that task as he was a member of the Armed Forces albeit of the Judge Advocate General’s Branch. It should I think be observed that the Court which tried the appellant was established by the Governor in Council (s. 154(1)) and the

president, who was appointed by the Minister of National Defence, was an officer whose rank indicates that he had had some years of military service and whose position with the branch of the Judge Advocate General bespeaks familiarity with military law.

An officer such as this whose occupation is closely associated with the administration of the law under the National Defence Act and whose career in the army must have made him familiar with what service life entails would, with all respect to those who hold a different view, appear to me to be a more suitable candidate for president of a court martial than a barrister or a judge who has spent his working life in the practice of non-military law. [ 26 ] Further, at pages 399-400, Ritchie J. referred to the judgment delivered by Cattanach J. [22] where he emphasizes the history and importance of having a separate military justice system.

It serves as an important reminder that due to the role and function of an armed force, a code of service discipline is critical: Military law and its administration in armed forces has subsisted since time immemorial and it has subsisted in Canada since the first Canadian military force was organized one year after Confederation. However it is a fundamental constitutional principle that a soldier does not, by virtue of joining the armed forces and the consequent military character he assumes, escape the jurisdiction of the civil courts of this country.

Accordingly the ordinary law that applies to all citizens also applies to members of the armed forces but by joining the armed forces those members subject themselves to additional legal liabilities, disabilities and rights, that is to say to Canadian military law. Without a code of service discipline the armed forces could not discharge the function for which they were created. The same learned judge later made the following comment: Many offences which are punishable under civil law take on a much more serious connotation as a service offence and as such warrant more severe punishment.

Examples of such are manifold such as theft from a comrade. In the service that is more reprehensible since it detracts from the essential esprit de corps, mutual respect and trust in comrades and the exigencies of the barrack room life style. Again for a citizen to strike another a blow is assault punishable as such but for a soldier to strike a superior officer is much more serious detracting from discipline and in some circumstances may amount to mutiny. The converse, that is for an officer to strike a soldier is also a serious service offence.

In civilian life it is the right of the citizen to refuse to work but for a soldier to do so is mutiny, a most serious offence, in some instances punishable by death.

Similarly a citizen may leave his employment at any time and the only liability he may incur is for breach of contract but for a soldier to do so is the serious offence of absence without leave and if he does not intend to return the offence is desertion. [ 27 ] In assessing the context of military tribunals and the role of military officers as judges, the comments of McIntyre J. at pages 403-404, in concurring reasons in MacKay remain relevant today.

He recognized the particular need for special knowledge and experience in the role as a judge and rejected arguments that military judges cannot also be serving officers. From the earliest times, officers of the armed forces in this and, I suggest, all civilized countries have had this judicial function. It arose from practical necessity and, in my view, must continue for the same reason. It is said that by the nature of his close association with the military community and his identification with the military society, the officer is unsuited to exercise this judicial office.

It would be impossible to deny that an officer is to some extent the representative of the class in the military hierarchy from which he comes; he would be less than human if he were not. But the same argument, with equal fairness, can be raised against those who are appointed to judicial office in the civilian society. We are all products of our separate backgrounds and we must all in the exercise of the judicial office ensure that no injustice results from that fact.

I am unable to say that service officers, trained in the ways of service life and concerned to maintain the required standards of efficiency and discipline—which includes the welfare of their men—are less able to adjust their attitudes to meet the duty of impartiality required of them in this task than are others.

Furthermore, the problems and the needs of the armed services, being in many respects special to the military, may well from time to time require the special knowledge possessed by officers of experience who, in this respect, may be better suited for the exercise of judicial duty in military courts than their civilian counterparts. It has been recognized that wide powers of discipline may be safely accorded in professional associations to senior members of such professions. The controlling bodies of most professions such as those of law, medicine, accountancy, engineering, among others, are given this power.

I am unable to say that the close identification of such disciplinary bodies with the profession concerned, taken with the seniority enjoyed by such officers within their professional group, has ever been recognized as a disqualifying factor on grounds of bias or otherwise. Rather it seems that the need for special knowledge and experience in professional matters has been recognized as a reason for the creation of disciplinary tribunals within the separate professions.

It must also be remembered that while this appeal concerned only the armed services serving in Canada, the position of forces serving abroad not being in issue, it must be recognized that in service abroad the officers must assume the judicial role by reason of the absence of any civil legal processes. The character of the officer for independence and impartiality will surely not vary because he is serving overseas. The practical necessities of the service require the performance of this function by officers of the service and I find

no offence to the Canadian Bill of Rights in this respect. I would add that there now exists a Court Martial Appeal Court, a professionalCourt of Appeal with a general appellate jurisdiction over the courts martial. This is, in my view, a significant safeguard and its creationis a realistic and practical step toward the provision of that protection which is required in the circumstances. [Emphasis added] [28] In MacKay, the court rejected the argument that the court martial format that existed in 1980 deprived a service member of hisright to a fair hearing by an independent and impartial tribunal as set out in paragraph 2(

f) of the Canadian Bill of Rights. However, sincethe inception of the Charter, the SCC has amplified its guidance and insight into the guarantees of independence sufficient for judges toqualify as independent tribunals pursuant to paragraph 11(

d) of the Charter, transforming the applicable test for judicial independencefrom a subjective to an objective one. [29] In its first post-Charter stance on the issue, in the case of Valente[23] the court significantly amplified its earlier guidance.Although Valente does not relate to military justice, it is the seminal case. Writing for a unanimous SCC, Le Dain J. defined the contentof the right of paragraph 11(

d) of the Charter by drawing a firm line distinguishing between the concepts of independence andimpartiality.

Justice Le Dain explained that “[i]mpartiality refers to a state of mind or attitude of the tribunal in relation to the issues andthe parties in a particular case.”[24] Whereas, he described independence, as a reference to the “status or relationship to others--particularly to the executive branch of government--that rests on objective conditions or guarantees”.[25] [30] In Valente, Le Dain J. confirmed three “essential conditions” “at the heart” of protecting judicial independence.[26] They aresecurity of tenure, financial security and the institutional independence of judicial tribunals regarding matters directly affectingadjudication.

The pivotal guidance is summarized as follows: (

a) Security of tenure. This requires judicial appointments to be “secure against interference by the Executive or other appointingauthority in a discretionary or arbitrary manner.”[27] In order for such security to be achieved, judges may be “removable only forcause” as recommended by an independent review process which affords judges a fair hearing[28]. Further, Le Dain J. specifically foundthat statutory guarantees of security of tenure pass the “reasonable person test” and although constitutional guarantees were desirablethey were not essential;[29] (

b) Financial security. This requires that the right to a salary and, where appropriate, to a pension, must be established bylaw.[30] Further, the use of power by purse strings such as the pay of a judge or budget who decide against government areunacceptable; and (

c) Institutional independence. With respect to matters directly affecting adjudication, Le Dain J. stated only a narrow array ofadministrative functions could be captured by this: “assignment of judges, sittings of the court, and court lists – as well as the relatedmatters of allocation of court rooms and direction of the administrative staff engaged in carrying out these functions.”[31] [31] In

summary, the three essential conditions must be analysed by applying a “reasonable person” test. Security of tenure requireslegislated safeguards; financial security may be fulfilled less formally provided that the right to salary is clearly established in law andthere is no threat that salaries can be manipulated based upon the nature of the judicial decisions rendered. Finally, institutionalindependence extends only to administrative matters necessary in adjudication.

In the applications before the Court, aside with aperiphery argument that affects security of tenure, the arguments are primarily based on the third element under institutionalindependence which they argued from both an administrative and institutional level. [32] Less than a year after Valente, the SCC rendered its decision in The Queen v. Beauregard, (SCC), [1986] 2S.C.R. 56 where it fine-tuned its earlier direction.

In short, Dickson C.J. focussed on the purpose of judicial independence recognizingthat for the purpose to be fulfilled, the judiciary must be “completely separate in authority and function from all other participants in thejustice system.”[32] [Emphasis in original.] [33] A few years after Beauregard, in its decision in MacKeigan v. Hickman, (SCC), [1989] 2 S.C.R. 796, the SCCclarified that it was unrealistic to demand the complete separation of the judiciary from other branches of government and McLachlin J.wrote at page 827: It is important to note that what is proposed in Beauregard v.

Canada is not the absolute separation of the judiciary, in the sense of totalabsence of relations from the other branches of government, but separation of its authority and function. It is impossible to conceive of a

judiciary devoid of any relationship to the legislative and executive branches of government. Statutes govern the appointment andretirement of judges; laws dictate the terms upon which they sit and are remunerated. Parliament retains the power to impeach federally-appointed judges for cause, and enactments such as the Supreme Court Act, R.S.C. 1970, c. S-19, stipulate on such matters as the numberof judges required for a quorum. It is inevitable and necessary that relations of this sort exist between the judicial and legislativebranches of government.

The critical requirement for the maintenance of judicial independence is that the relations between the judiciaryand other branches of government not impinge on the essential "authority and function", to borrow Dickson C.J.'s term, of the court.What is required, as I read Beauregard v. Canada, is avoidance of incidents and relationships which could affect the independence of thejudiciary in relation to the two critical judicial functions -- judicial impartiality in adjudication and the judiciary's role as arbiter andprotector of the Constitution. [Emphasis in original] [34] In

summary, although by necessity there must be some institutional relations between the military judges and the chain ofcommand, such relations must not interfere with the military judge’s liberty to adjudicate the matters before him or her. [35] A few years later, in the case of R. v. Lippé, (SCC), [1991] 2 S.C.R. 114, the SCC also recognized that thecomplete separation envisioned in Beauregard was not always possible. It concluded that while a system which allows for part-timejudges is not the ideal system, paragraph 11(

d) of the Charter does not guarantee the "ideal" in judicial independence. [36] A year later, in R. v. Généreux, (SCC), [1992] 1 S.C.R. 259, the SCC had the occasion to examine judicialindependence in courts martial. Not only did the SCC accept the dual role of military judges as officers of the CAF, it recognized thatsome degree of connectivity between the chain of command and the decision-makers was impossible to avoid. More simply, itconfirmed the fact that military judges who are also serving officers in the CAF is not sufficient by itself to constitute a violation ofparagraph 11(

d) of the Charter. The headnote to Généreux, summarizing part of the position of the majority, per Lamer C.J. andSopinka, Gonthier, Cory and Iacobucci JJ, is informative: A parallel system of military tribunals, staffed by members of the military who are aware of and sensitive to military concerns, is not, byits very nature, inconsistent with s. 11(d).The existence of such a system, for the purpose of enforcing discipline in the military, is deeplyentrenched in our history and is supported by compelling principles. The accused's right to be tried by an independent and impartialtribunal must thus be interpreted in this context and in the context of s.11(

f) of the Charter, which contemplates the existence of a systemof military tribunals with jurisdiction over cases governed by military law. In view of s. 11(d), the content of the constitutional guaranteeof an independent and impartial tribunal may well be different in the military context than it would be in the context of a regular criminaltrial. An individual who challenges the independence of a tribunal under s. 11(

d) need not prove an actual lack of independence. Thequestion is whether a reasonable person, familiar with the constitution and structure of the General Court Martial, would perceive thattribunal as independent. The independence of a tribunal is to be determined on the basis of the objective status of that tribunal.

Thisobjective status is revealed by an examination of the legislative provisions governing the tribunal's constitution and proceedings,irrespective of the actual good faith of the adjudicator. [37] In Généreux, Lamer C.J. leveraged the conclusion reached by James Fay to explain why a complete severance of the military andits judges was not preferred and in fact suggested that the benefit afforded would be offset by greater disadvantages. In this regard, I agree with the conclusion reached by James B. Fay in

Part IV of his considered study of Canadian military law("Canadian Military Criminal Law: An Examination of Military Justice" (1975), 23 Chitty's L.J. 228, at p. 248): . . .If this connection were to be severed, (and true independence could only be achieved by such severance), the advantage ofindependence of the judge that might thereby be achieved would be more than offset by the disadvantage of the eventual loss by thejudge of the military knowledge and experience which today helps him to meet his responsibilities effectively. Neither the Forces northe accused would benefit from such a separation. In my view, any

interpretation of s. 11(

d) must take place in the context of other Charter provisions. In this connection, I regard it asrelevant that s. 11(

f) of the Charter points to a different content to certain legal rights in different institutional settings. [38] However, the SCC in Généreux also cautioned that although flexibility was important in applying the conditions to the uniqueneeds of a tribunal such as the court martial, the essence of the conditions themselves needed to be respected in order to ensure thenecessary judicial independence:

A tribunal will not satisfy the requirements of s. 11(

d) of the Charter if it fails to respect these essential conditions of judicial independence. Although the conditions are susceptible to flexible application in order to suit the needs of different tribunals, the essence of each condition must be protected in every case. Reasonable person test [ 39 ] In order to challenge the independence of a tribunal for the purpose of paragraph 11( d ), the applicants need not prove an actual lack of independence or impartiality.

The question to be answered is whether an informed and reasonable person would perceive the court martial as independent. [ 40 ] The informed and reasonable person test has been phrased in a number of different ways, but it is clearly an objective test. In Lippé , the SCC concluded that the test for both "independence" and "impartiality" is that of an informed person viewing the matter realistically and practically, and having thought the matter through.

In Valente (No. 2) , [33] the CJ Howland of the Ontario Court of Appeal described the test a little more practically where the reasonable person is one who is informed of the relevant statutory provisions, their historical background, and the traditions surrounding them, and after viewing the matter realistically and practically. Analysis [ 41 ] The applicants argued that the crux of the challenge before the Court is centred on the tension flowing from the dual role held by military judges who are also serving officers. However, the

summary of the above case law [34] suggests that the dual roles are not incompatible by themselves to compromise an accused’s paragraph 11(

d) Charter rights. Hence, the fundamental issue this Court must assess is whether the current structure provides a permissible degree of connection between the military chain of command and its judges that still ensures that an accused appearing before a court martial does so before an independent and impartial tribunal. Administrative independence First question: Does the OCMJ, to which military judges belong, lack administrative independence from the CAF infringing an accused’s right to an independent and impartial tribunal under paragraph 11(

d) of the Charter ? [ 42 ] As discussed earlier, the majority of the applicants’ argument rests on administrative and institutional independence which falls under the third element set out in Valente . Under the third element, the SCC identified those aspects of administrative independence necessary to maintain a constitutionally-sound separation between the judiciary and the executive to include the following: (

a) the assignment of judges to hear particular cases; (

b) the scheduling of court sittings; (

c) the control of court lists for cases to be heard; (

d) the allocation of courtrooms; and (

e) the direction of registry and court staff in carrying out these functions. [ 43 ] The applicants’ arguments challenging the administrative independence of the military judiciary were primarily financial and predicated somewhat on the fact that the administrative structure of the OCMJ did not resemble that of civilian courts. The applicants

also relied upon the fact that the OCMJ budgetary process lacked similar formal agreements on budget that some civilian courts had.

They argued that since the OCMJ budget was not set out by Parliament in the Appropriations Acts , and given that the OCMJ was dependent on discretionary funding administered by the Director Budget (DB) and CPROG, it made the OCMJ administratively dependent. [ 44 ] The applicants’ arguments alleging the lack of administrative independence based on the financial arguments and budget were supported by little more than assertion and were founded on a belief that other courts have greater control over their operational budgets.

When challenged on this by the Court, they were unable to provide any direct evidence of other courts with greater or unlimited financial resources for their own operations nor the legal requirement for it.

After evaluating the positions of the applicants against the law, the court found no evidence to support a viable argument particularly given the SCC position that the administration of budgets falls outside the scope of the essential element of administrative independence: It is clear from Valente that while it may be desirable for the judiciary to have control over the various aspects of financial administration, such as “budgetary preparation and presentation and allocation of expenditure” (pp 709-710), these matters do not fall within the scope of administrative independence, because they do not bear directly and immediately on the exercise of the judicial function. [35] [ 45 ] Secondly, the applicants’ arguments alleging a lack of administrative independence relied upon two MOO.

The first one is dated 27 September 1997 signed by Arthur Eggleton, then MND which authorized the organization of the Office of the Chief Military Trial Judge, embodying it as a unit in the regular force. The second MOO 2000007 was issued on 7 February 2000 revoking the MOO dated 27 September 1997 and replacing it with an almost identical Order, changing nothing other than clarifying that the CMJ, as the commanding officer of the OCMJ shall not exercise powers with respect to any disciplinary matter.

The applicants argue that the revocation of the MOO demonstrates that the MOO establishing the OCMJ as a unit can be amended, changed or revoked at the sole discretion of the executive branch. They argued that the MND has the discretion to disband the OCMJ at any given time, as was done when the MND disbanded the Canadian Airborne Regiment. They argued that if the MND was to do this, it would directly impede military judges in fulfilling their judicial functions.

They further argued that the OCMJ is not a body created by legislation and lacks the legislative protection afforded to other courts such as the Court Martial Appeal Court (CMAC). [ 46 ] Counsel for the applicants referred to recommendations made under two different independent reviews conducted under

section 273.601 of the NDA . They referred to former Chief Justice Lamer’s of the SCC landmark report of 2003 [36] which constituted the first independent review of the NDA provisions and operation of Bill C-25 as well as the specific recommendations made in the 2011 review conducted by the Honourable Patrick J. LeSage, former C.J. of Ontario [37] . In short, the recommendations made by former C.J. Lamer upon which the applicants rely were the establishment of a permanent military court of record. After having received no update on the status of the former C.J.

Lamer’s recommendation to establish a permanent military court of record, former C.J. of Ontario LeSage took the position that, in the meantime, interim measures should be implemented to enhance the capacity of military judges to function as a permanent institution. As an example, he recommended that judges be granted legislative authority to convene a court martial immediately after a charge is preferred so the judiciary can judicially manage the case.

At paragraphs 54 and 55 of Pett , Pelletier M.J. provides an outline of the recommendations that appear to have gone unanswered and are applicable to the cases at bar: [54] Former Chief Justice Lamer also recommended in his report that the NDA be amended to establish a permanent military court of record to deal most efficiently with difficulties faced by military judges as they try to contort the system of ad hoc courts martial into an independent judicial institution.

Recommending that a working group be established to identify the most effective framework for its creation, he went on to recommend interim measures to be implemented before the permanent military court could be set up. Some of these interim measures have been put in place, notably by the quick passing of Bill C-60 in June 2008, in response to the CMAC decision in R. v. Trépanier, which had brought the court martial system to a halt until Parliament intervened. [55] The second mandated review of the military justice system was completed in 2011 by the Honourable Patrick J. LeSage, former Chief Justice of Ontario.

Despite being closely supported by members of the Office of the JAG throughout his work, Justice LeSage stated that he was not given access to any work product related to the establishment of a permanent military court, which he supported. Consequently, as former Chief Justice Lamer had done before, he took position for interim measures to enhance the capacity of military judges to function as a permanent institution.

For instance, he recommended that military judges be granted authority in legislation to convene a court martial immediately after a charge is preferred so they can deal with the case using trial management powers, thereby avoiding delay. Justice LeSage also expressed his concerns with the optics of an independent judiciary within a military structure and recommended that there be one distinct rank of "military judge" for all military judges, including the Chief Military Judge.

That way, it would be made clear to observers that although the chain of command is important in a military structure, it cannot govern the job performed by military judges, even from within the military judiciary. The foresight of the LeSage recommendations is obvious when one considers subsequent developments. [Endnotes omitted]

[ 47 ] Based on the above arguments, the applicants argued that a reasonable, well-informed person would perceive that military judges are too administratively dependent on the executive for the provision of resources necessary to exercise their judicial functions. [ 48 ] Firstly, it is important to highlight that a MOO does not displace the authority set out in the legislative provisions of the NDA which enshrines the responsibilities and protections that military judges hold in their adjudicative function.

Secondly, the applicants did not provide any evidence to support exactly how a revocation of the OCMJ would directly compromise the adjudicative functions of military judges other than to contend that since the court reporters were service members they could be reassigned at the will of the executive and, consequently, there would be no court reporters available to support courts martial. However, given the legislative and regulatory primacy of the provisions within the NDA and the Queen’s Regulations and Orders for the Canadian Forces (QR&

O) which underpin the court martial system and the role and responsibilities of military judges, as well as the Court Martial Administrator, absent any specific evidence to the contrary, the court is entitled to rely upon the presumption that the MND will exercise his duties consistent with the expressed legislative intent of Parliament and as enacted in the NDA . The recommendations made by former C.J. Lamer of the SCC and former C.J.

Lesage of Ontario, are important; however, their failure to be implemented to date are not in and of themselves sufficient to suggest that the necessary administrative independence is lacking. [ 49 ] In short, the onus was on the applicants to present evidence to overcome the presumption that the military judiciary does not have control over the administrative functions identified in Valente . Hence, a reasonable, well-informed person having looked at the NDA and its subordinate regulations would perceive that military judges enjoy administrative independence.

The Court, therefore, must answer the first question in the negative. Institutional Independence Second question: Do military judges, who belong to the OCMJ, a unit of the CAF, lack institutional independence thereby infringing an accused’s right to an independent and impartial tribunal under paragraph 11(

d) of the Charter ? Effect of the 15 September 2020 order on judicial independence [ 50 ] The applicants submitted that there is a visible trend of disrespect towards the military judiciary from the executive which is culminated in the CDS Suspension Order issued on 15 September 2020. They argued that military judges called upon the executive to either rescind or revoke the CDS Order; however, the CDS specifically chose to suspend it pending the outcome of an appeal to the CMAC.

The applicants argued that the Suspension Order exhibits resistance to the earlier rulings and refusal to accept the resolution proposed within the respective judicial decisions. [ 51 ] They further argued that this situation is compounded by the fact that the position of CMJ has been effectively left vacant for eight months since the former CMJ retired and no efforts have been made to fill it. There was some suggestion that given the decisions rendered, the executive may have purposefully held back the appointment because they do not approve of the decisions being rendered.

Alternatively, there was also suggestion that there could be a perception that if sitting military judges wanted to be selected as the next CMJ, they could be perceived by the reasonable observer to be prone to render a decision to please the executive. [ 52 ] They argued that the wording chosen within the Suspension Order reveals that it was issued for the sole purpose of stopping military judges from entering stays of proceedings.

The applicants submitted that the wording in the Suspension Order was deliberately drafted with language to intimidate the judiciary and elevates what was believed to be an oversight in the drafting of the impugned CDS Order to something more sinister. To support their position, they suggested the specific reference to the continued existence of CFOO 3763 reiterates the executive’s intent and to send a message to remind military judges that they are subject to discipline by the chain of command.

When counsel on both sides were pressed on the legal status of the impugned CDS Order, it was clear that it is of no force or effect. [ 53 ] Given the emotive nature of this subject seemingly targeted at the military judiciary, I conducted my analysis without questioning the motives put forward by the applicants. The Court simply accepted as a fact that the impugned CDS Order is no longer in force and then proceeded to an examination of the legislative provisions governing the tribunal's constitution and proceedings. In doing so, the Court benefited from the analysis in the Pett and D’Amico decisions.

Review of NDA provisions and common law

[ 54 ] Since the SCC decided the case of Généreux , the NDA has been substantially revised to enhance judicial independence of military judges. Some of the worthy milestones were laid out by Pelletier M.J. in the Pett decision: [52] An important landmark on the road to judicial impartiality came in 1997 with the release of the First and Second Dickson reports as well as the Somalia Inquiry Report. These reports addressed the fundamental importance of independence of the military judiciary.

Many of the recommendations found in these reports were implemented in Bill C-25 and consequential QR&O amendments, together representing the significant military justice reform of 1997-1999. Yet, these important developments were not sufficient to alleviate concerns regarding institutional impartiality. [53] Indeed, the 1997-1999 reforms were independently reviewed by former Chief Justice Lamer in his landmark report of 2003 constituting the first independent review of the provisions and operation of Bill C-25.

The Lamer Report remarked that despite significant improvements, the measures put into place to ensure the independence of the military judiciary remain inadequate. A recommendation was made to confer security of tenure to military judges until retirement. That recommendation had not been implemented by the time the issue was addressed by the CMAC in R. v. Leblanc , which found the five-year terms in force at the time to be unconstitutional, giving Parliament six months to establish an adequate scheme.

Legislation to accomplish this security of tenure requirement came into force a few days before the deadline. [Footnotes omitted] [ 55 ] Similarly, in the case of D’Amico , I highlighted comparators from the protections in the NDA for military judges with those set out for civilian judges in the Judges Act [38] . [15] Many of the improvements to judicial independence are captured within the NDA from the point of appointment to retirement.

The NDA prescribes subtle differences between the appointments of military judges in comparison with those of their civilian counterparts. [16] For example, like their civilian counterparts, military judges are appointed based upon merit by the Governor in Council and are required to have at least ten years of standing at the bar of a province prior to their appointments, however, military judges are also required to have a minimum of 10 years’ experience serving as a military officer, a requirement that sets them apart from their civilian peers ( NDA , subsection 165.21(1) ).

Military judges have security of tenure until retirement, but the NDA establishes that retirement be at 60 years of age, while it is from 70 to 75 years for their civilian counterparts (see, for example,

section 8 of the Judges Act ). [17] Similarly, while it is the Canadian Judicial Council that holds jurisdiction to recommend the removal of a civilian judge (see sections 63 to 66 of the Judges Act ), it is the Military Judges Inquiry Committee, composed of justices of the Court Martial Appeal Court (CMAC) who fulfil this same function for military judges (see NDA

section 165.31 ). [ 56 ] Pursuant to subsection 165.21 (2) of the NDA , prior to commencing their roles, military judges take the following oath of office: I . . . solemnly and sincerely promise and swear (or affirm) that I will impartially, honestly and faithfully, and to the best of my skill and knowledge, execute the powers and trusts reposed in me as a military judge. ( And in the case of an oath: So help me God.) [Emphasis mine] [ 57 ] The language in the required oath for military judges is consistent with the approach taken for other federally appointed judges.

Importantly, both the Judges Act and the NDA enforce the principle that once appointed as a judge, the judicial role has primacy. To solidify this, the Judges Act generally prohibits extrajudicial activities unless expressly authorized by the relevant federal or provincial legislation. [39] Extra-judicial Employment Judicial duties exclusively 55 No judge shall, either directly or indirectly, for himself or herself or others, engage in any occupation or business other than his or

her judicial duties, but every judge shall devote himself or herself exclusively to those judicial duties. [ 58 ] By comparison, subsection 165.23 (1) of the NDA states that military judges shall preside at courts martial and shall perform other judicial duties under this Act that are required to be performed by military judges . Further, subsection 165.23(2) of the NDA stipulates that in addition to their judicial duties, military judges shall perform any other duties that the Chief Military Judge may direct, but those other duties may not be incompatible with their judicial duties . [Emphasis added] [ 59 ] In short, as with their civilian judicial counterparts, once appointed,

section 165.23 of the NDA requires the primary role of a military judge to be the performance of judicial functions. They are tasked with interpreting and applying the law to ultimately decide on the cases they hear.

Although the NDA provides some leeway for taskings by the CMJ, any other function that military judges may be asked to perform are subordinated to core judicial functions and the NDA prohibits them from engaging in duties incompatible with judicial duties. [ 60 ] A military judge also has the same immunity from liability as a judge of a superior court of criminal jurisdiction. [40] Immunity is crucial if military judges are to fulfil their sworn duty to assess the evidence and apply the law.

Without this protection, military judges might be prevented from freely expressing themselves in their reasons as to whether they believe a witness is telling the truth. However, the impugned CDS Order as drafted directly implied that military judges were not immune under the CSD in relation to what they say and do in the performance of judicial duties. [41] [ 61 ] Consequently, it is absolutely imperative that any

interpretation of the NDA be consistent with the legislative provisions set out within the NDA itself, but most importantly, it must comply with the Charter . If the CDS Order had been allowed to stand, the impugned CDS Order not only directly violated

section 165.231 of the NDA denying military judges the necessary immunity required in the performance of their judicial duties, but it also violates an accused’s Charter right to be tried by an independent and impartial tribunal. It is worthy to note that without the existence of the CDS Order and pursuant to legal principles and

interpretations developed by military judges, the provisions of the NDA would then operate according to the Charter and the common law. [ 62 ] In addition to the above critical provisions in the NDA , the Court would be remiss not to highlight that there are additional provisions that further strengthen the independence of the military judiciary: (

a) military judges have a separate pay scheme [42] ; (

b) a military judge can only be released voluntarily [43] ; (

c) a military judge cannot be the object of a Relief from Performance of Military Duty [44] ; (

d) military judges have a separate scheme for grievances [45] ; and (

e) no personal report, assessment or other documents shall be completed for a military judge if such a document can be used in whole or in part to determine the training, posting or rate of pay of the officer, or whether the officer is qualified to be promoted [46] . [ 63 ] Recognizing that the NDA does not identify the priority that should be afforded between the MJIC and the CSD, in Pett , Pelletier M.J. conducted a very comprehensive analysis in recommending a solution to correct the identified impasse: [145] The declaration of invalidity, combined with the findings included in this decision as it pertains to the limited application of the Code of Service Discipline in its current configuration to military judges, ensures that no reasonable and well-informed observer might form the perception that this presiding military judge and this Standing Court Martial is anything less than an independent and impartial tribunal. [146] This conclusion on the way a reasonable and informed person would view the matter is made with the understanding that military

authorities and their legal advisors conduct their affairs with the utmost respect for the rule of law, hence the authority of the courts. Courts have no means to enforce their decisions. The rule of law rests on the acceptance by the executive of judicial decisions and their application, even if or when it does not suit them.

Recognizing the right of appeal which could be exercised, it is expected that military authorities will give effect to judicial decisions pertaining to the application of the Code of Service Discipline. [ 64 ] Nonetheless, in the Pett decision, notwithstanding the fact that the CDS Order dated 14 June 2019 was before him as evidence, Pelletier M.J. concluded that, absent the overbroad CDS Order dated 2 October 2019, there were no other impediments to judicial independence: [103] I conclude, in relation to this third question, that the NDA and its regulations provide for a number of safeguards sufficient to ensure that the system would not give rise to a reasonable apprehension of bias in the mind of a reasonable, well-informed person.

These safeguards include the limitation on the imposition of duties to military judges and, most importantly, the evaluation of fitness and conduct of military judges by a committee of judicial peers.

Keeping in mind the benefits of the administration of military justice by officials who are also officers, these safeguards ensure that courts martial presided by military judges, are as free as possible from the interference of the military hierarchy. [104] This conclusion entails that from a legislative and regulatory perspective, the structure applicable to the discipline of military judges meets the requirement of judicial impartiality, as long as the significant safeguard provided by the Military Judges Inquiry Committee is allowed to operate efficiently.

This safeguard ensures that military judges are immune from any disciplinary or administrative measures initiated by the executive and prevents any reasonable apprehension of bias from forming in the mind of a reasonable, well-informed person looking at the structure governing the military judiciary and the courts martial system. [ 65 ] Further, although the Pett decision was necessarily lengthy and fulsome given the task it faced, in D’Amico , I succinctly summarized the ratio decidendi of Pett into a few short bullet points specifically to facilitate the executive in resolving the violation [47] : (

a) Any CDS order (issued by the Executive) that is focused solely on military judges in their function or role as military judges must be found of no force and effect; (

b) Any CDS order that applies to all military members and officers, but in its operation, happens to capture military judges in their role as officers in the CAF, does not present the same risk and systemic concern undermining the independence of military judges; (

c) The CDS Order 2019 conflicts with and undermines the statutory intention set out by parliament in the NDA that military judges are to be judged by their judicial peers with respect to their judicial conduct; and (

d) The CDS Order 2019 is declared to be of no force and effect. [ 66 ] However, silence on the part of the executive reigned; there was no reaction to the pronouncement of the judicial principles in Pett , nor was there any reaction to the six follow-up decisions of D’Amico , Bourque , Crépeau , Edwards , Fontaine and Iredale until news of the stays of proceedings propagated and became known to the general public. [ 67 ] Counsel for the applicants argued that the current turmoil in the military justice system was caused by the pursuit of the charges against the former CMJ, Colonel Mario Dutil.

They argued that alone illustrated the power and intent of the executive to discipline military judges. In fact, the executive relied upon an earlier version of the impugned CDS Order to facilitate the laying of charges against the CMJ at the time. The applicants argued, “What was a sleepy backwater of the theoretical is now a reality in full public view.

We cannot now unring the bell.” [ 68 ] During submissions, the Court made it clear that the Dutil case is more properly the subject of a separate study; however, counsel for the applicants were insistent upon its evidentiary value to demonstrate the realistic peril and the vulnerability to which the military judiciary is exposed that a reasonable person cannot ignore. [ 69 ] Simply put, the failed attempt by the executive to pursue charges against the former CMJ did not have the benefit of recent courts

martial jurisprudence. The Canadian system of government has three branches: the legislative; the executive; and the judicial. In its simplest form, in the military context, the legislative branch of Parliament enacted the NDA ; the chain of command (executive) administers and enforces it, and the military judges are responsible for interpreting and applying the law set out within it.

In interpreting and applying legislation, absent applicable legislative guidance, like their civilian counterparts, military judges are routinely forced to craft their own workable common law principles to fill legislative gaps. [ 70 ] Consequently, with respect to deconflicting and prioritizing the competing disciplinary regimes between the MJIC and the CSD in the NDA , given the absence of specific legislative direction, military judges were left with no choice but to survey the law and apply the appropriate legal principles to interpret and craft a decision. The

interpretations and workable principle(

s) developed primarily in Pett and then confirmed with slight variation in D’Amico now contribute meaningfully to the common law of judicial independence until they are displaced either on appeal or by legislation. At paragraph 47 of Iredale , Pelletier M.J. writes: I believe a reasonable observer would consider that a statement of law by courts martial on a matter bearing directly on the Charter rights of an accused before them, necessary for the continued exercise of their jurisdiction over that accused, constitutes authoritative law. It is so regardless of the exercise of a right to appeal, as recognized at paragraph 56 of Fontaine . [ 71 ] As the exhaustive

summary of the case law presented earlier in this decision suggests, it is unacceptable for any external entity to be in a position to interfere in matters that are directly and immediately relevant to the adjudicative function. Hence, while military judges are still serving as judges, the first stop regarding any discipline matter must be the MJIC. To prioritize otherwise is inconsistent with the substantial paragraph 11(

d) Charter jurisprudence as well as the NDA provisions that, notwithstanding the fact they are military officers, prioritizes the role and responsibilities of military judges directly in the legislation. In short, the primary authority for exercising disciplinary authority against military judges must lie first with the MJIC. To place any disciplinary authority ahead of the MJIC calls judicial independence into question and infringes the right of an accused under paragraph 11(

d) of the Charter . [ 72 ] If the CAF and the government were not content with the common law principles decided in Pett , they should have done something. Unfortunately, they chose to do nothing and it was that choice that led directly to the four subsequent stays of proceedings. They could have commenced action to override the principles enacted by introducing legislation or even proposing a new regulation under the QR&O that provided direction in compliance with paragraph 11(

d) of the Charter . This Court has received no evidence of any action taken other than the 15 September 2020 Suspension Order. [ 73 ] Counsel for the applicants have strongly advocated that legislation is needed to clarify the competing tension between the two disciplinary regimes, being the CSD and the MJIC. Although that is the ideal, until that is done, as long as the more recent judicial pronouncements remain valid, they themselves provide appropriate direction in resolving the tension. Recognizing that there is no express provision in the NDA and its supporting regulations to describe the priority of the two disciplinary systems, Pelletier M.J. provided the following

interpretation in Pett : [112] The following legal considerations militate for the application of the Military Judges Inquiry Committee scheme in priority over the military disciplinary system applicable to all officers: (

a) First, the express mention in the NDA of an exceptional treatment for military judges in subsection 164(1.3) to the effect that a superior commander may not try a military judge by

summary trial. That points to the legislator’s intention that military judges are not to be treated as any other officer under the Code of Service Discipline but as members of the judiciary. (

b) Second, the provisions in the NDA to the effect that the Code of Service Discipline does not affect the jurisdiction of any civil court to try a person for any offence. As evidenced by the safeguards discussed above and the similar duties of military judges in relation to civilian judges, one can deduce that military judges should be treated the same as any other judicial officials when suspected of having committed and [sic] offence: civilian courts’ jurisdiction should first be considered when the alleged misconduct constitutes an offence triable by that court. (

c) Third, the operation of the Military Judges Inquiry Committee in relation to issues of medical fitness and retirement age reveal that the Committee’s process must take priority over any process engaged by the executive. [113] These legal considerations are enhanced by practical considerations supporting the conclusion that the Military Judges Inquiry Committee process should be allowed to come to its proper conclusion before the military justice system process applicable to all

officers is applied. It is only when the military judge is removed following a process governed by his peers that he or she should be treated as an officer and as required be charged and dealt with under the Code of Service Discipline. This sequence in proceedings is the only one which allows both the judges and officers respective disciplinary processes to run their course fully to their logical conclusion. [Endnotes omitted] [ 74 ] In

summary, after identifying a number of sentencing hurdles that a court martial would be confronted with in trying a sitting military judge [48] , Pelletier M.J. concluded that the more respectful approach adherent to legislative intent is to let the MJIC disciplinary process unfold first and should the military judge be removed from the appointment as a military judge, if warranted, the executive may proceed with charges under the CSD. [49] [ 75 ] Judicial independence demands that when the judicial conduct of a particular military judge is questioned, the alleged misconduct should be reviewed by the MJIC first and foremost. In fact, Division 6 under

Part III of the NDA which sets out the CSD also sets out the specific role and powers for the MJIC. This is likely not by accident. Security of tenure [ 76 ] In their written and oral submissions, the applicants submitted that if the MJIC was not prioritized over the application of the CSD with respect to a sitting judge, it has the potential to undermine the element of security of tenure necessary to ensure the judicial independence of military judges. As I stated in D’Amico , the NDA must be interpreted in a way that it does not frustrate the paragraph 11(

d) Charter rights of the accused as well as the i

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