HER MAJESTY THE QUEEN Appellant v. LEADING SEAMAN C.D. EDWARDS, 2021 CMAC 2

Date: 20210611 Dockets: CMAC-606 CMAC-607 CMAC-608 CMAC-609 Citation: 2021 CMAC 2 CORAM: CHIEF JUSTICE BELL RENNIE J.A. PARDU J.A. CMAC-606 BETWEEN: HER MAJESTY THE QUEEN Appellant and LEADING SEAMAN C.D. EDWARDS Respondent CMAC-607 AND BETWEEN: HER MAJESTY THE QUEEN Appellant and CAPTAIN C.M.C. CRÉPEAU Respondent CMAC-608 AND BETWEEN: HER MAJESTY THE QUEEN Appellant and GUNNER K. FONTAINE Respondent CMAC-609 AND BETWEEN: HER MAJESTY THE QUEEN Appellant and CAPTAIN M.J. IREDALE Respondent Heard in person at Ottawa, Ontario and by online videoconference hosted by the Registry, on January 29, 2021.

Judgment delivered at Ottawa, Ontario, on June 11, 2021. REASONS FOR JUDGMENT BY: THE COURT Date: 20210611 Dockets: CMAC-606 CMAC-607 CMAC-608 CMAC-609

Citation: 2021 CMAC 2 CORAM: CHIEF JUSTICE BELL RENNIE J.A. PARDU J.A. CMAC-606 BETWEEN: HER MAJESTY THE QUEEN Appellant and LEADING SEAMAN C.D. EDWARDS Respondent CMAC-607 AND BETWEEN: HER MAJESTY THE QUEEN Appellant and CAPTAIN C.M.C. CRÉPEAU Respondent CMAC-608 AND BETWEEN: HER MAJESTY THE QUEEN Appellant and GUNNER K. FONTAINE Respondent CMAC-609 AND BETWEEN: HER MAJESTY THE QUEEN Appellant and CAPTAIN M.J. IREDALE Respondent REASONS FOR JUDGMENT THE COURT I. Overview [ 1 ] In a series of Court Martial decisions, military judges have held that they lack institutional independence.

As a result, they conclude the right of accused persons appearing before them to a hearing by an independent and impartial tribunal, guaranteed by s. 11(

d) of the Canadian Charter of Rights and Freedoms,

Part I of the Constitution Act, 1982 , being

Schedule B to the Canada Act 1982 (UK), 1982, c. 11 ( Charter ), is violated. [ 2 ] The consistent theme of the trial decisions is that the possibility that a military judge could be prosecuted for an offence under the National Defence Act , R.S.C., 1985, c. N-5 ( NDA ), leaves a military judge vulnerable to coercive or vengeful prosecution by persons disgruntled with their handling of a case. It follows that military judges must be immune from prosecution under military law while they hold office.

While the issue is framed in different manners in several of the matters under appeal, each finds its genesis from the decision of Military Judge Pelletier in Her Majesty the Queen v. Master Corporal K.G. Pett , 2020 CM 4002 [ Pett ]. [ 3 ] In Pett , the accused contended that an order by the Chief of Defence Staff dated October 2, 2019 (the " “impugned order” " ), regarding the designation of a commanding officer for purposes of considering disciplinary matters for military judges was of no force or effect.

Master Corporal Pett contended that the impugned order violated his right to a hearing before an independent and impartial tribunal as guaranteed by

section 11(

d) of the Charter . The impugned order reads, in part, 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 commandingofficer referred to in paragraph (

b) shall be the Vice Chief of the Defence Staff (VCDS)” […] [4] The Crown appeals from stays of proceedings issued in each of the matters before this Court. The ultimate question in these appeals iswhether the role of a military judge "“given the Charter right to a hearing before an independent tribunal”", is incompatible with the roleof an officer within the Canadian Armed Forces.

Put another way, does the application of the Code of Service Discipline to the militaryjudiciary lead "“"[…] "an informed person, viewing the matter realistically and practically—and having thought the matter through"[…]"”" to conclude that there is any apprehension of bias. (Committee for Justice and Liberty v. National Energy Board, (SCC), [1978] 1 S.C.R. 369, 68 D.L.R. (3d) 716 at p. 394 [Committee for Justice and Liberty]). [5] For the reasons that follow, we allow the appeals, vacate the stay orders, dismiss the cross-appeal in Capitaine C.M.C. Crépeau c.

SaMajesté la Reine, 2020 CMAC 607 and direct each of the matters proceed to trial. [6] By way of overview, there are two errors of law in the decisions under appeal. [7] The assertion of the military judges in the decisions under appeal is fundamentally incompatible and inconsistent with the well-established, and recently confirmed precedents of the Supreme Court of Canada. The Supreme Court has recognized the unique and dualrole of the military justice system.

The premise upon which the decisions under appeal is based - that one cannot be both a military judgeand an officer – is simply inconsistent with binding precedent, and if correct, defies the very purpose and rationale of the military justicesystem. See, Her Majesty the Queen v. Généreux, (SCC), [1992] 1 S.C.R. 259, 133 N.R. 241 [Généreux]; R. v.MacKay, (SCC), [1980] 2 S.C.R. 370, [1980] S.C.J. No. 79 [MacKay]; R. v. Cawthorne, 2016 SCC 32, [2016] 1 S.C.R.983 [Cawthorne]; R v. Stillman, 2019 SCC 40, [2019] S.C.J. No 40 [Stillman]; R. v.

Royes, 2016 CMAC 1 [Royes], leave to appealrefused, 37054 (2 September 2016); Beaudry v. R. 2018 CMAC 4 [Beaudry]. [8] Military justice exists for a purpose; namely, to promote the discipline, efficiency, and morale of the Canadian Armed Forces. Thegovernment of Canada requires, and its citizens expect, an operationally ready force for the defence of Canadian interests.

This includesan operationally ready and portable courts martial system, which includes respect for, and compliance with, the Code of ServiceDiscipline, by military judges while they are in office. [9] The second error relates to the application of the test of whether a reasonably informed person, looking at the matter objectively andfully informed, would conclude that the institutional independence of the courts martial is compromised.

The military judges did notconsider the context or purpose of the military justice system, they did not look at the matter "“realistically and practically”" as requiredby the Supreme Court and they failed to take into account the contextual considerations which safeguard the independence andimpartiality of military judges. [10] When the impugned order is situated in its proper, broader context, it is readily apparent that no reasonably informed person wouldconclude there was an apprehension of bias or that the independence of the courts martial was compromised.

In assessing the impugnedorder in isolation, divorced from the legal and conventional guarantors of independence and impartiality, the court martial judges failedto follow the guidance of the Supreme Court of Canada. II. Responses to the Impugned order A. Pett [11] In Pett, the accused was charged with behaving with contempt toward a superior officer and ill-treatment of a subordinate inviolation of sections 85 and 95, respectively, of the NDA. The accused contended that the impugned order violated his

section 11(d)Charter right to appear before an independent and impartial tribunal. After concluding that the NDA contemplates that the Code ofService Discipline applies to military judges, Military Judge Pelletier then turned his mind to the legislative framework designed toensure judicial independence and impartiality. [12] Military Judge Pelletier concluded the impugned order violated the accused’s

section 11(

d) Charter rights and declared it "“to be ofno force or effect as it pertains to paragraphs 1(

b) and 2, applicable to any disciplinary matter involving a military judge”". [13] Military Judge Pelletier considered the following factors which militate in favour of military judges’ independence and impartiality,although he found them insufficient to overcome the constitutional norm:

a) A military judge can only be removed for cause (ss. 165.21 (3) of the NDA) following a recommendation to the Governor inCouncil from the Military Judges Inquiry Committee (MJIC). This, effectively, ensures their security of tenure;

b) A military judge has the same immunity from liability as a judge of a superior court of criminal jurisdiction (s. 165.231 of theNDA);

c) Only the Chief Military Judge can assign duties to a military judge, and, those duties must be compatible with their judicialduties (ss. 165.23 (2) of the NDA);

d) Military judges have a separate pay scheme (s. 165.33 of the NDA and the Queen’s Regulations and Orders for the CanadianForces (QR&

O) Chapter 204) and their compensation, including pay and other benefits are fixed by the Military JudgesCompensation Committee which reports every four (4) years ;

e) Pursuant to

section 165.21(3)-(5) of the NDA, a military judge holds office until he or she is removed for cause, voluntarilyreleased, attains the age of 60 or resigns having given written notice to the Minister.

f) A military judge cannot be the object of a Relief from Performance of Military Duty (QR&O

article 19.75);

g) Military judges have a separate scheme for grievances (s. 29(2.1) of the NDA); and

h) No personal report, assessment or other document shall be completed for a military judge if such a document can be used inwhole or in part to determine the training, posting or rate of pay of the officer, or whether the officer is qualified to be promoted(QR&O articles 26.10 and 26.12). [14] Later in his reasons Military Judge Pelletier also referred to

section 179 of the NDA which clothes military judges, in part, with the"“[…]powers, rights and privileges […] as are vested in a superior court of criminal jurisdiction […] necessary or proper for the dueexercise of its jurisdiction”". [15] We note here that Military Judge Pelletier did not enumerate the Oath of Office taken by military judges as a factor militating infavour of a finding of independence and impartiality. That oath, found at subsection 165.21(2) of the NDA, reads as follows: Oath" " Serment" "

(2) Every military judge shall,before commencing the duties ofoffice, take the following oath ofoffice: I _________, solemnlyand sincerely promise and swear(or affirm) that I will impartially,honestly and faithfully, and tothe best of my skill andknowledge, execute the powersand trusts reposed in me as amilitary judge. (And in the caseof an oath: So help me God.)" "

(2) Avant d’entrer en fonctions,le juge militaire prête le sermentsuivant : Moi, ____________, jepromets et jure (ou j’affirmesolennellement) que j’exerceraifidèlement, sans partialité et demon mieux les attributions quime sont dévolues en ma qualitéde juge militaire. (Dans le cas duserment, ajouter : Ainsi Dieu mesoit en aide.)" " " " [16] Military Judge Pelletier concluded, importantly, that a military judge cannot be treated as any other officer for purposes of disciplineas this would violate judicial impartiality.

Furthermore, he concluded that the MJIC, established pursuant to sections 165.31-165.32 ofthe NDA ousts the role of the executive (sometimes referred to as the "“chain of command”" in these reasons), with respect to thediscipline of military judges. In this regard, Military Judge Pelletier opined: "“[…] the impugned order, by targeting military judgesspecifically, imposes a system of discipline without due consideration of the system of discipline preferred by the legislator. That, itself,violates judicial impartiality.”" (Pett, at para. 116).

The preferred system to which he refers is the MJIC. [17] Military Judge Pelletier concluded that military judges enjoy an absolute immunity from the application of the Code of ServiceDiscipline while they are judges.

That said, he conceded that former military judges could be charged with offences under the Code ofService Discipline once retired, voluntarily discharged or removed from office following proceedings before the MJIC. [18] Although he concluded the impugned order violated the Charter, Military Judge Pelletier did not grant the second remedy sought byMaster Corporal Pett, that of a stay of proceedings.

In refusing the application for a stay, Military Judge Pelletier concluded thedeclaration of invalidity, when combined with other comments about the limited application of the Code of Service Discipline to militaryjudges, would ensure that "“[…]no reasonable and well-informed observer might form the perception […]”" that the presiding militaryjudge would be independent and impartial. B. R. v. D’Amico [19] Subsequent to Pett, Military Judge Sukstorf considered a similar constitutional argument in R. v. D’Amico, 2020 CM 2002[D’Amico].

She framed the issue as follows: The crux of the issue before the Court is not whether the dual roles of officer and military judge are incompatible becauseboth Parliament, and the Supreme Court of Canada (SCC) in R. v. Généreux, (SCC), [1992] 1 S.C.R. 259,have recognized the role of Military judges as both judges and serving officers.

Rather, the issue before the Court requires itto consider what constitutes a permissible degree of connection between the military chain of command and its judges thatstill ensure that every accused appearing before a court martial does so before an independent and impartial tribunal asguaranteed by

section 11(

d) of the Charter. (D’Amico at para. 7) [20] Importantly, Military Judge Sukstorf, asked, among others, the following question: Did Military Judge Pelletier go too far inconcluding that military judges may not be held accountable under the Code of Service Discipline while they are serving as militaryjudges? [21] Military Judge Sukstorf applied the principle of comity and, in a slightly nuanced decision as it relates to the extraterritorialapplication of the Code of Service Discipline, seemed to agree with Military Judge Pelletier’s "“pragmatic approach”" that would seecivilian courts and the MJIC as the preferred mechanisms to deal with infractions by military judges.

[ 22 ] Subsequent to the decisions in Pett and D’Amico , the Chief of Defence Staff did not amend the impugned order. This led military judges to take a different approach. Some abandoned the restraint shown in Pett and D’Amico with respect to remedy. In addition to declaring the impugned order to be of no force or effect, Military Judges Pelletier and d’Auteuil started to grant stays of proceedings. Those stays have resulted, in part, in the within appeals. C. R. v. Edwards, R. v. Crépeau, R. v. Fontaine, R. v. Iredale [ 23 ] Leading Seaman Edwards was charged with one (1) count of conduct to the prejudice of good order and discipline, contrary to

section 129 of the NDA , for having used cocaine contrary to

article 20.04 of the QR&O s. During a pre-trial motion in the matter of R. v. Edwards , 2020 CM 3006 [ Edwards ], Military Judge d’Auteuil concluded the impugned order violated the accused’s right to be tried by an independent and impartial tribunal as required by

section 11(

d) of the Charter . By way of remedy, he ordered a stay of proceedings pursuant to section 24(1) of the Charter . [ 24 ] Military Judge d’Auteuil held that a reasonable and informed observer would conclude that the impugned order was an attempt to extend the disciplinary regime dealing with service offences to military judges. This despite the provision of the NDA that, according to him, grants that power exclusively to the MJIC. As such, he ordered a stay of proceedings. [ 25 ] On the same day that Military Judge d’Auteuil rendered his decision in Edwards , he also rendered a similar decision in R. v.

Crépeau , 2020 CM 3007 [ Crépeau ] wherein he ordered a stay of proceedings due to the perceived lack of independence of military courts (para. 83). Following this, Military Judge d’Auteuil issued another stay, for the same reasons, in R. v. Fontaine, 2020 CM 3008 [ Fontaine ]. His colleague, Military Judge Pelletier issued a similar stay in R. v. Iredale , 2020 CM 4011 [ Iredale ]. Military Judge Pelletier was of the view that a stay was the only adequate remedy given that the Chief of Defence Staff had not rescinded the impugned order.

We note here that rescission had been called for in Pett at paragraph 146 and D’Amico at paragraph 28. The position of Military Judge Pelletier could be stated no more clearly than as set out in his decision in Iredale , the last in this series of appeals currently before the Court: My position to the effect that a military judge should never be brought before a court martial while in office remains.

I am also still of the view that an officer who has relinquished or been stripped of his judicial office by a decision of the Military Judges Inquiry Committee could be subsequently brought before a court martial without concern for judicial independence and impartiality given that he or she is no longer a judge ( Iredale at para. 37 ). [ 26 ] On August 18, 2020, the Deputy Director of Military Prosecutions filed a notice of appeal in Edwards . This was followed by notices of appeal in Crépeau , Fontaine , and Iredale .

On September 26, 2020, counsel for Captain Crépeau filed a cross appeal contending that the military judge erred in not finding articles 12 , 18 and 60 of the NDA unconstitutional. III. Relevant Issues Raised in the Within Appeals [ 27 ] As at the time Military Judge Pelletier rendered his decision in Iredale , the impugned order had not been rescinded. In Crépeau , the respondent cross-appealed, contending that the whole of sections 12 , 18 and 60 of the NDA are unconstitutional. She contends those sections also violate her right to be tried by an independent and impartial tribunal as required by

section 11(

d) of the Charter . This, because those sections target members of the Canadian Armed Forces, including military judges, who are also officers. [ 28 ] The issues on the within appeals are therefore: a . Whether the impugned order violates

section 11(

d) of the Charter ; b . Whether sections 12, 18, and 60 of the NDA violate

section 11(

d) of the Charter . [ 29 ] The significance of these issues, particularly the first one set out above, is evident in the position advanced by Military Judge Pelletier in Iredale . He states: My reasons in Pett have been complemented since by decisions of my colleagues d’Auteuil and Sukstorf, JJ.M.

For instance, I very much support the statement in paragraph 54 of Edwards , to the effect that the perception of conflicting roles and status of military judges as both judicial and executive officers can be deconflicted by viewing appointment to the office of military judge by the Governor in Council as the transfer of a military officer from the executive to the judicial branch of government.

That manner of seeing things fits well with the finding in Pett to the effect that a military judge cannot be charged as an officer under the CSD while he is in the office of military judge. (para. 34) […] My position to the effect that a military judge should never be brought before a court martial while in office remains.

I am also still of the view that an officer who has relinquished or been stripped of his judicial office by a decision of the Military Judges Inquiry Committee could be subsequently brought before a court martial without concern for judicial independence and impartiality given that he or she is no longer a judge. Of course, it may be difficult to distinguish between the conduct of the officer and the military judge in the circumstances. However, this issue would be best left for the court to determine in the course of a trial. (para. 37) IV.

Relevant statutes, regulations and policies [ 30 ] The relevant statutory, regulatory and policy provisions, except as set out in the text of these reasons for judgments, are attached as Appendix A.

V. Analysis A. Position of the appellant [31] The appellant contends that military judges are liable to be tried under the Code of Service Discipline. Section 60(2) of the NDAstates that, "“[e]very person subject to the Code of Service Discipline […] at the time of the alleged commission by the person of aservice offence continues to be liable to be charged, dealt with and tried in respect to that offence under the Code of Service Discipline[...]”. " The only limitation found in the NDA is at section 164(1.3), which states that military judges cannot be tried by

summary trial. [32] The appellant argues that it is the stated expectation of Parliament that officers perform judicial duties. She alludes to the manysafeguards built into the system to protect military judges from potential conflicts. These include those listed above in paragraphs 9-11. [33] The appellant contends that the MJIC is not a disciplinary body and that Justice d’Auteuil erred in Edwards in stating that the MJICreplaces the court martial for dealing with service offences.

The appellant contends that the application of the Code of Service Disciplineto military judges is no different than the application of the Criminal Code or other provincial or federal statutes, to a civilian judge. Theperceived violations of

section 11(

d) of the Charter flow from an improper presumption that actors within the military justice system willact improperly, unlawfully or in bad faith. This is contrary to the presumption that statutory actors will act in good faith (Cawthorne) andthat there are safeguards in place to protect against improper action. [34] The appellant says that the impugned order does not place military judges under any new command structure. The impugned ordersimply provides the mechanism necessary for the processing of charges and a fulsome consideration of the public interest. B.

Position of the respondents – Edwards and Iredale [35] The respondents submitted two (2) written memoranda: one for Edwards and Iredale and one for Crépeau and Fontaine. [36] The respondents in Edwards and Iredale contend that the impugned order would lead a reasonable and well-informed person toconclude that the Executive presumes it is clothed with the authority to discipline military judges, qua military judges, and that suchintrusion into judicial independence cannot be tolerated.

Citing Military Judge d’Auteuil in Edwards, the respondents Edwards andIredale contend that once military judges are appointed, they are transferred from the Executive Branch to the judicial branch and wouldonly transfer back to the Executive Branch upon ceasing to enjoy the benefits of their appointment. [37] The respondents further contend that the appellant’s presumption that statutory actors exercise their powers in good faith is not asufficient safeguard for judicial independence. Judicial independence should not rest on the shoulders of good faith actors.

Therespondents cite Military Judge Sukstorf in D’Amico at paragraphs 46-47 where she states: […] it is imperative to demonstrate to all serving CAF members that military judges can and do decide their casesindependently from the prosecution and 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 anyundue influence by the chain of command in any way. [...] [38] The respondents rely upon R. v.

Lippé, (SCC), [1991] 2 S.C.R. 114, 128 N.R. 1 p. 138 [Lippé] where the SupremeCourt of Canada held that the Barreau du Québec could not discipline municipal judges as this would give the perception of a lack ofindependence for municipal courts. They contend that the MJIC is responsible for disciplining military judges. According to therespondents, subjecting military judges to the Code of Service Discipline would subvert the will of Parliament. C.

Position of the respondents - Crépeau and Fontaine [39] Captain Crépeau and Gunner Fontaine, in a separate response, contend that this Court has already considered the principles ofindependence and impartiality in R. v. Lauzon, 1998 CACM 415 and R c. Leblanc, 2011 CACM 2. They say that in both cases, this courtaffirmed the importance of judicial independence and impartiality as essential in order to ensure that both the accused and the publicretain confidence in the military justice system.

According to them, the fundamental issue is one of trial fairness. [40] As to the question of whether military judges should be treated as anyone else subject to the Code of Service Discipline, therespondents Crépeau and Fontaine contend there can be no compromise. Executive involvement in the disciplinary process must never beavailable as a tool to coerce military judges.

Institutional independence and impartiality require that military judges be free of anyexterior pressures, including the potential influence of the chain of command, through application of the Code of Service Discipline. [41] All respondents agree, erroneously, in our view, with the military judges that it is the role of the MJIC to enforce the Code ofService Discipline with respect to military judges. Specifically, the respondents point to the prosecution of Chief Military Judge Dutil asoutlined in (Canada (Canadian Armed Forces, Director of Military Prosecutions) v.

Canada (Office of the Chief Military Judge), 2020FC 330, [2020] F.C.J. No. 299) to support their assertion that the military hierarchy is unwilling to respect the recommendations of theMJIC. Former Chief Military Judge Dutil had been the subject of a complaint before the MJIC. That complaint was eventually dismissedby the MJIC. However, approximately three years after the dismissal of the complaint, new evidence emerged which led the Director ofMilitary Prosecutions to charge Chief Military Judge Dutil with several offences contrary to the Code of Service Discipline, includingfraud-related offences.

There were no allegations of fraud before the MJIC.

D. Military justice overview [ 42 ] Généreux is the seminal case which defined the current parameters of the independence of military judges. The Court in Généreux referred to MacKay , the pre- Charter case concerning the right of an accused to an impartial and independent decision maker. In Généreux , Chief Justice Lamer makes the following observations: The purpose of a separate system of military tribunals is to allow the Armed Forces to deal with matters that pertain directly to the discipline, efficiency and morale of the military.

The safety and well-being of Canadians depend considerably on the willingness and readiness of a force of men and women to defend against threats to the nation's security. To maintain the Armed Forces in a state of readiness, the military must be in a position to enforce internal discipline effectively and efficiently. Breaches of military discipline must be dealt with speedily and, frequently, punished more severely than would be the case if a civilian engaged in such conduct. As a result, the military has its own Code of Service Discipline to allow it to meet its particular disciplinary needs.

In addition, special service tribunals, rather than the ordinary courts, have been given jurisdiction to punish breaches of the Code of Service Discipline. Recourse to the ordinary criminal courts would, as a general rule, be inadequate to serve the particular disciplinary needs of the military. There is thus a need for separate tribunals to enforce special disciplinary standards in the military ( Généreux at para. 60 ). [ 43 ] Justice Lamer’s conclusion finds its roots in the NDA where one of the principles of sentencing codified at

section 203.1 is defined as promoting the " “[...] operational effectiveness of the Canadian Forces by contributing to the maintenance of discipline, efficiency and morale [...]” " . [ 44 ] For obvious reasons, the civilian criminal justice system does not include, as a principle of sentencing, the operational effectiveness of the Canadian Armed Forces. Second, the civilian criminal justice system is rarely called upon to deal with its own employees.

That being said, public servants, including police officers and prosecutors and, yes, even judges, may be the subject of prosecution in the civilian criminal justice system. [ 45 ] Military justice, in whatever form, promotes the discipline, efficiency and morale of the Canadian military for the development of operationally ready and effective forces wherever deployed in the world.

This mission concept and declaration of purpose is unknown to the civilian criminal justice system. [ 46 ] In Cawthorne , the Supreme Court considered a distinct but related argument: that the Minister of National Defence’s authority to appeal a court martial or Court Martial Appeal Court decision violated sections 7 and 11(

d) of the Charter . The Court dismissed the respondents’

section 11(

d) argument ( Cawthorne at para. 32 ). With respect to their

section 7 argument, the respondents had pled that " “the Minister is a member of Cabinet not bound by the conventions of independence that apply to the Attorney General, and that the Minister’s ‘quasi-judicial’ role is incompatible with his control and administration of the Canadian Forces” " ( Cawthorne at para. 31 ). The Court dismissed this argument as well, noting that: The Minister, like the Attorney General or other public officials with a prosecutorial function, is entitled to a strong presumption that he exercises prosecutorial discretion independently of partisan concerns.

The mere fact of the Minister’s membership in Cabinet does not displace that presumption. Indeed, the law presumes that the Attorney General — also a member of Cabinet — can and does set aside partisan duties in exercising prosecutorial responsibilities. There is no compelling reason to treat the Minister differently in this regard ( Cawthorne at para. 32 ). [ 47 ] The Supreme Court’s most recent pronouncements on the Charter -compliance of the military justice system, in Stillman , does not concern the

section 11(

d) right to an independent and impartial tribunal. However, the majority does address a number of important reforms – including the enactment of Bill C-25 in 1998, which included " “a statutory basis for independent military judges, in terms of tenure, remuneration, and removal only through an inquiry committee process " ”, the latter point constituting a reference to the MJIC procedure (Stillman at para. 48 ).

Moldaver and Brown JJ., writing for the majority, quoted the Draft Internal Report – Court Martial Comprehensive Review, of January 17, 2018 ( " “CMCR Interim Report " ”) wherein the authors observed that military justice now benefits from " “established institutions and independence mechanisms within the system that substantially aligned it with Canada’s civilian criminal justice system, while preserving many of the historic aspects of a court martial, such as the involvement of a panel of military members as fact-finders” " ( Stillman at para. 48 ). [ 48 ] Having considered recent Supreme Court of Canada jurisprudence related to independence of the courts martial, we will now briefly set out the structure of the military justice system as a whole.

It operates differently than the civilian criminal justice system. This is both intentional and necessary. [ 49 ] The military justice system is comprised of two (2) tiers:

summary trials and courts martial. The NDA Divisions 5 and 6 provide the legislative authority for each system. The QR&O s outline the procedures for disposing of charges in either tribunal at Volume II – Disciplinary, Chapters 108 and 111. [ 50 ]

Summary trials are the most common form of service tribunal and are used to dispose of minor offences that can be tried at the unit level by members of the chain of command. Presiding Officers, themselves subject to the Code of Service Discipline, serve as judges for these trials. Importantly, these Presiding Officers are neither lawyers nor judges. In a

summary trial, the accused is not entitled to a lawyer, but to an assisting officer who may assist in the preparation of the defence as well as any post trial reviews. [ 51 ] The powers of punishment at the

summary trial level are limited to reflect the relatively minor nature of the offences. A member of the Canadian Armed Forces found guilty of a service offence at

summary trial retains the right to apply for a review of the findings, the punishment or both. A review may be undertaken by a review authority at the member’s request or on the initiative of the review authority himself or herself. The review authority is an officer holding a rank senior to the officer who presided over the

summary trial. The review authority may quash the findings, substitute the findings of guilt or mitigate, commute, or remit any punishment awarded (see, QR&O s

article 108.45). The decision of the review authority is subject to judicial review before the Federal Court.

[ 52 ] The court martial, by contrast, is a formal military court possessed of jurisdiction to try more serious offences. It has the power to impose punishment up to and including, imprisonment for life. In terms of procedures and rules, courts martial are similar to civilian criminal courts and have immunity, rights, powers and privileges of a superior court of criminal justice ( NDA , sections 165.231 and 179 ). [ 53 ] There are two (2) types of courts martial: General Courts Martial and Standing Courts Martial.

A General Courts Martial is composed of a military judge who sits with a panel of five (5) members of the Canadian Armed Forces (CAF), each of whom are subject to the Code of Service Discipline. This panel serves as the trier of fact and makes findings of guilty or not guilty. The military judge instructs the panel in the same manner as a superior court trial judge, in one of the provinces or territories, instructs a jury. The military judge decides legal questions in the course of the trial.

On a finding of guilty, the military judge imposes the sentence. [ 54 ] A Standing Court Martial consists of one judge who sits alone as the trier of fact and law, determines whether the accused is guilty or not guilty and imposes a sentence accordingly. At a court martial trial, the Director of Military Prosecutions has carriage of the prosecution. The accused has the right to counsel provided by the Director of Defence Counsel Services or by civilian counsel. [ 55 ] Pursuant to

section 230 of the NDA , appeals from Courts Martial are to this Court, with a further possibility of appeal, pursuant to section 245(1) of the NDA , to the Supreme Court of Canada. [ 56 ] Courts martial are conducted by military judges who have formal legal training and experience.

Summary trials do not deal with major offences; courts martial do not deal with minor offences. However, between the two (2), there is an array of offences for which the accused may elect to be tried by either court martial or

summary trial. Pursuant to

section 162.1 of the NDA , except in certain circumstances, an accused triable by

summary trial has the right to elect trial by court martial. E. Subject to the constitutional challenge presently before the Court, military judges are liable to be tried by Court Martial for alleged violations of the Code of Service Discipline while they hold office as a military judge. [ 57 ] The Code of Service Discipline is the foundation of the military justice system. It sets out the standard of conduct of all members of the Canadian Armed Forces, including military judges, which is essential to the maintenance of discipline, efficiency and morale.

These characteristics are essential to mission success and the safety and security of military personnel and the civilians they are committed to protect. [ 58 ]

Section 68 of the NDA states that every person alleged to have committed an offence under that Code of Service Discipline may be tried in Canada or outside Canada. This applies to both

summary trials and courts martial. Section 61(1) of the NDA extends the Code of Service Discipline to civilians. This would include members of this Court conducting an appeal in an operational theatre.

This latter possibility is contemplated under section 235(1) of the NDA . [ 59 ] The Code of Service Discipline not only sets out substantive offences, it also sets out processes and procedures related to the prosecution and defence of members of the military; including, the standard of proof beyond a reasonable doubt, verdict options, ranges of punishment, judicial interim release, release by commanders, pleas of autrefois acquit and autrefois convict , appeal mechanisms, and release pending appeal. [ 60 ] A service offence, as defined in the NDA , is " “an offence under the Act, the Criminal Code , or any other Act of Parliament, committed by a person while subject to the Code of Service Discipline” " ( NDA at s.2 ).

Potential infractions of the Code of Service Discipline may be unique to the profession of arms, such as conduct to the prejudice of good order and discipline, disobedience of a lawful command and absence without leave; or they may constitute conduct in contravention of the broader law such as the Criminal Code or any other Act of Parliament. ( NDA , s.130 ). [ 61 ] Section 60(1) of the NDA provides that the Code of Service Discipline applies to, among others, " “officers” " of the regular force and, in carefully enumerated circumstances " “officers” " of the reserve force.

All military judges are officers to whom that

section applies. Section 60(2) reads:

(2) Every person subject to the Code of Service Discipline under subsection (1) at the time of the alleged commission by the person of a service offence continues to be liable to be charged, dealt with and tried in respect of that offence under the Code of Service Discipline notwithstanding that the person may have, since the commission of that offence, ceased to be a person described in subsection (1).

(2) Quiconque était justiciable du code de discipline militaire au moment où il aurait commis une infraction d’ordre militaire peut être accusé, poursuivi et jugé pour cette infraction sous le régime du code de discipline militaire, même s’il a cessé, depuis que l’infraction a été commise, d’appartenir à l’une des catégories énumérées au paragraphe (1) " " [ 62 ] There is good reason for these requirements. A Commander, the Chief Executive in a theatre of operation, is responsible for mission success and the safety of everyone within his or her unit or element.

Adherence to orders that could include standing orders related to responses in the event of an attack, might be the difference between life and death. Anyone to whom the Code of Service Discipline does not apply presents a risk to the mission and the safety of those around him or her. In a theatre of operation, if a commander is unable to compel compliance with the Code of Service Discipline, mission success and lives are at risk.

[63] Unlike other citizens or even any other servants of the Crown, members of the Canadian Armed Forces have a unique and unlimitedduty to serve in the defence of Canada. As such, members of the Canadian Armed Forces, including military judges, are liable to beordered into harm’s way, up to and including actions that could result in injury or death. All officers and non-commissioned members ofthe Regular Force are, at all times, liable to perform any lawful duty (NDA, s. 33). This, in the profession of arms, is consideredunlimited liability. [64] Discipline is essential to the military.

The most powerful weapons at the government’s disposal are entrusted to members of theCanadian Armed Forces. The responsible use of those weapons depends upon maintaining the highest standards of discipline. [65] Having briefly discussed the concepts of unlimited liability and discipline, it is useful to set out some concrete examples of conductexpected of those who serve in the CAF, which conduct is not expected of civilians.

Members of the military are not permitted to takepart in political activities, though they can vote, attend political meetings and run for minor political office (B-GG-005-027/AF-011Military Justice at the

Summary Trial Level – V2.2 1/11 at 1-7). "“Universality of service”" found in the Defence Administrative Ordersand Directives, 5023-0 at sections 2.3 and 2.4 requires that every serving member meet basic physical fitness standards and limits amember’s equality rights available through anti-discrimination legislation. [66] All serving members are expected to be able to conduct general defence and security duties as well as the specific duties of theirtrade, profession or calling within the CAF. These requirements apply to all, including officers who are also military judges. F.

Is the role of a military judge incompatible with his or her role as an officer? [67] Subsection 165.21(1) of the NDA states that, "“The Governor in Council may appoint any officer who is a barrister or advocate of atleast 10 years’ standing at the bar of a province and who has been an officer for at least 10 years to be a military judge.”" Therequirement for a prospective military judge to have been a member of the bar for 10 years is the norm across jurisdictions in Canada forfederally appointed judges.

With this comes the expected breadth of legal experience and knowledge necessary to render credible judicialservice. The requirement that a prospective military judge must also have been a commissioned officer for a period of at least 10 years, isunique to the military justice system.

It speaks to the expectation of experience in the military, knowledge of the role of officers and acommitment to the military ethos. [68] There is a common thread throughout the decisions of the military judges in the cases under appeal, that one cannot be a militaryofficer and part of the executive and still perform the role of a judge. According to them, having executive responsibilities is inconsistentwith the judicial role. To put it another way, one is "“transferred”" from the executive branch to the judicial branch upon appointment asa judge (supra, para. 25).

With respect, such an approach does not reflect the reality of our Westminster system of government. [69] Sitting civilian judges are often asked to chair or participate in commissions of inquiry at both the federal and provincial levels.Make no mistake, those commissions and inquiries are executive branch functions, conducted at the behest of the executive branch (seeDixon v. Canada (Commission of Inquiry into the Deployment of Canadian Forces in Somalia – Létourneau Commission), (FCA), [1997] 3 F.C. 169, [1997] F.C.J No. 985 at para. 13); Canada (Attorney General) v.

Canada (Commission of Inquiry on theBlood System in Canada – Krever Commission), (SCC), [1997] S.C. J. No. 83, [1997] 3 S.C.R. 440).

Recent examplesof past and current inquiries are: the Long-Term Care COVID-19 Commission where the Chairperson held a judicial position until hisretirement in November 2020 ; The Commission of Inquiry Into the Actions of Canadian Officials in Relation to Maher Arar and theWalkerton Inquiry, both chaired by an Associate Chief Justice of Ontario; the Desmond Fatality Inquiry , chaired by a Judge of theProvincial Court of Nova Scotia; and the Commission of Inquiry into Money Laundering in British Columbia chaired by a BritishColumbia Supreme Court Judge. [70] Similarly, several Federal Court judges sit on boards and tribunals.

For example, a Federal Court judge chairs the Copyright Boardof Canada and a Federal Court judge is Chairperson of the Canadian Competition Tribunal. We would add that s. 77.013(2) of theSpecial Import Measures Act, R.S.C., 1985, c. S-15 provides that sitting judges of superior courts are eligible to sit on binational panelssuch as that contemplated by paragraphs 1 to 4 of Annex 10-B.1 of the Canada United States Mexico Accord.

Also, s. 20.7(1) of thePublic Servants Disclosure Protection Act, S.C. 2005, c. 46 provides that all members of the tribunal must be judges of the Federal Courtor a superior court of a province. As stated, such panels and commissions of inquiry constitute part of the executive branch ofgovernment. People serve in both judicial and executive functions at the same time. All of the Canadian Judicial Council’s work ondiscipline constitutes executive rather than judicial functions. (see Girouard v.

Canada (Attorney General), 2018 FC 865, [2018] F.C.J.No 904, aff’d by 2019 FCA 148) [71] We hasten to add that the executive branch appoints judges and sometimes elevates them to Courts of Appeal and the SupremeCourt of Canada. One might view such appointments as "“promotions”".

Should those who seek such office declare the whole systembereft of independence and impartiality because of the Executive’s role in accepting or rejecting their application for such a position? [72] Finally, we note the current Chief Justice of Canada, is, as at the time of writing, the Administrator of the Government of Canada,until the next governor general is installed. He is the official representative of the Queen of Canada. In that capacity, his office is part ofevery information and indictment filed in criminal court.

Would a reasonable person, being aware of all of the facts, including theprotections afforded to the Chief Justice of Canada regarding salary and tenure, consider him incapable of sitting and deciding casesinvolving the government of Canada, given his dual roles of Chief Justice and Administrator? We think not. [73] To conclude, these examples demonstrate that, on occasion, members of the judicial branch perform executive functions withoutcompromising institutional independence or giving rise to a concern about impartiality. Is it ideal? Perhaps not.

Is it part of theconventions that comprise our system of governance? Yes. The reason why this is acceptable and does not contravene either s. 11(

d) orthe test for bias is because, when these functions are situated in their broader statutory context, the constitutional requirements thatguarantee independence and impartiality are present. We will discuss those later in these reasons. [74] The Supreme Court of Canada in Reference re Remuneration of Judges of the Provincial Court of Prince Edward Island, (SCC), [1997] 3 S.C.R. 3, [1997] S.C.J. No. 75 and Committee for Justice and Liberty instructs us that the assessment of

institutional independence and impartiality is both objective and contextual. This requires a consideration of the role and functions beingperformed by the courts martial, the principles which underlie the military justice system and other factors that bear on the institutionalindependence of the courts martial and the impartiality of its judges.

Those factors include, but are not limited to, the oath of office,statutory protections on the tenure of judges, their remuneration, the conventions governing the exercise of prosecutorial discretion andthe extent to which our Westminster model of constitutional democracy permits members of the judicial branch to perform executivefunctions. [75] Institutional independence of the judiciary cannot be absolute. In R. v. Lippé, (SCC), [1991] 2 S.C.R. 114, at p. 142,Lamer C.J. stated that "“the Constitution does not always guarantee the ‘ideal’.

Perhaps the ideal system would be to have a panel ofthree (3) or five (5) judges hearing every case; that may be the ideal, but it certainly cannot be said to be constitutionally guaranteed.”" InMacKeigan v.

Hickman, (SCC), [1989] 2 S.C.R. 796 [MacKeigan], McLachlin J. (as she then was) observed that acomplete separation of the judiciary from other branches of government is not practicable: It is impossible to conceive of a judiciary devoid of any relationship to the legislative and executive branches of government.Statutes govern the appointment and retirement 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 CourtAct, R.S.C. 1970, c.

S-19, stipulate on such matters as the number of judges required for a quorum. It is inevitable andnecessary that relations of this sort exist between the judicial and legislative branches of government. (MacKeigan at 827) G. The role of the Military Judges Inquiry Committee [76] The respondents contend there exist several solutions to the ills they have identified. First, military judges are liable to be prosecutedbefore the civilian courts for civilian offences committed by them while in office. This, according to them, is one means of maintainingrespect for the system.

Second, military judges may be charged under the Code of Service Discipline once they are no longer in theposition of military judge; namely, after their removal from office, voluntary release or retirement. The third option, according to allmilitary judges who addressed the topic, is the MJIC. We refer to observations by Military Judge Pelletier in Pett at para. 131 andIredale at para. 33; Military Judge Sukstorf in D’Amico at paras. 59, 68 and 70; and Military Judge D’Auteuil in Edwards at para. 46. [77] The genesis and role of the MJIC is as follows.

Following Généreux, retired Chief Justice Lamer was tasked to conduct an enquiryto provide recommendations on amendments to the NDA that would create a more independent and impartial court martial system. As aresult, the legislator amended the NDA to include, at

section 165.31, the establishment of the MJIC. A military judge may only beremoved from office following compliance with

section 165.32(7) which provides as follows: Recommendation to theGovernor in Council" " Recommandation augouverneur en conseil" "

(7) The inquiry committee mayrecommend to the Governor inCouncil that the military judgebe removed if, in its opinion:" "

(7) Le comité peut recommanderau gouverneur en conseil derévoquer le juge militaire s’il estd’avis que celui-ci, selon le cas:" " (

a) the military judge hasbecome incapacitated or disabledfrom the due execution of his orher judicial duties by reason of" "

a) est inapte à remplir sesfonctions judiciaires pour l’un oul’autre des motifs suivants :" " (

i) infirmity," " (

i) infirmité," " (ii) having been guilty ofmisconduct," " (ii) manquement à l’honneur et àla dignité," " (iii) having failed in the dueexecution of his or her judicialduties, or" " (iii) manquement aux devoirs dela charge de juge militaire," " (iv) having been placed, by his orher conduct or otherwise, in aposition incompatible with thedue execution of his or herjudicial duties; or" " (iv) situation d’incompatibilité,qu’elle soit imputable au jugemilitaire ou à toute autre cause;"" (

b) the military judge does notsatisfy the physical and medicalfitness standards applicable toofficers.

b) ne possède pas les aptitudesphysiques et l’état de santéexigés des officiers." " Report "Rapport "

(8) The inquiry committee shall provide to the Minister a record of each inquiry and a report of its conclusions. If the inquiry was held in public, the inquiry committee shall make its report available to the public.

(8) Le comité transmet le rapport de ses conclusions et le dossier de l’enquête au ministre et, si l’enquête a été tenue en public, rend le rapport accessible au public. " " [ 78 ] Paragraph 7(a)(ii) is illuminating. One cannot be found guilty unless one has been judged; one cannot be judged without having been tried; one cannot be tried without having been accused. We are of the view a plain reading and contextual

interpretation of that provision contemplates a conviction under the Code of Service Discipline, the Criminal Code or some other statute. (Sullivan, Ruth. Statutory

Interpretation , 3rd ed. Toronto: Irwin Law, 2016 at pp 7-8). [ 79 ] Paragraph 7(

b) speaks to the possibility that a military judge could be removed for having failed to meet the physical fitness standards of officers. As stated above ( supra at para. 62) universality of service is an expectation of all serving members. This speaks to Parliament’s intention that military judges are to be held to the same standards, physical or otherwise, as their fellow soldiers. [ 80 ] The MJIC established under the NDA plays a role similar to that of an Inquiry Committee established through the Canadian Judicial Council.

The most recent pronouncement of the function of the Canadian Judicial Council Inquiry Committee can be found in Girouard v. Canada (Attorney General), 2019 FC 1282 , [2019] F.C.J. No. 1154 [ Girouard ]. Justice Rouleau explains the responsibilities and limits of the committee as follows: The Council and the courts have dealt with the Council's function on many occasions. It has been established that the Council is not a forum before which two opponents appear for a final verdict on the penalties to be imposed on a judge.

Two previous inquiry committees have had the following to say in this regard: [An inquiry committee] does not adjudicate disputes between parties and does not render legally enforceable decisions; its purpose is to conduct an inquiry and report to the Council. The Inquiry Committee has no power to impose penalties of any kind. It cannot establish civil liability or criminal guilt on the part of the judge. The same goes for the Council after receiving the Committee's report.

Thus, whatever the outcome of the process, it is certain that it does not expose the judge who is the subject of the inquiry to penalties of a criminal nature ( Girouard at para. 59 ). [ 81 ] The Inquiry Committee does not deliver final judgment. The Inquiry Committee does not impose any penalties. The Inquiry Committee does not make a finding of civil or criminal liability. The Inquiry Committee provides a recommendation to the Minister. [ 82 ] Girouard , by extrapolation, provides a clear understanding of the purpose and limits of the MJIC.

Like an Inquiry Committee established by the Canadian Judicial Council, the MJIC does not impose any penalties, does not establish civil liability nor does it make findings of criminal guilt or innocence. Importantly from a potential respondent’s perspective, there is no requirement of proof beyond a reasonable doubt and the rules of evidence, if any, are relaxed. [ 83 ] In our view, there are several fundamental errors in the analysis undertaken by the military judges in the cases under appeal.

First, Military Judge Sukstorf is incorrect when she asserts in paragraph 68 of D’Amico that the role of the MJIC vis-à-vis military judges is the same as the role of the courts martial. As noted above, the MJIC decides nothing. It makes recommendations. The MJIC makes its recommendations based upon a preponderance of evidence that falls far short of proof beyond a reasonable doubt.

The MJIC has no power to impose any discipline or make a recommendation regarding discipline, short of recommending removal. [ 84 ] Second, Military Justice Sukstorf is incorrect when she asserts in paragraph 70 of D’Amico that the same allegations considered and dealt with by the MJIC in the case of Chief Military Judge Dutil, became the subject of a court martial. There is no evidence the allegations before the MJIC in Dutil were the same as those for which he was prosecuted.

In fact, based upon a reading of the decision in Dutil , it is evident that the Canadian Forces National Investigative Service (CFNIS), some three (3) years after the MJIC dealt with the matter, had different information, including new allegations of fraud that were not before the MJIC. H. Quasi-judicial manner of exercising prosecutorial discretion [ 85 ] We now turn to the potential prosecution of military judges, which, quite frankly, we equate to the prosecution of a judge of one of Her Majesty’s civilian courts.

This is an element of the context which frames part of the test an informed observer would take into account in considering whether the impartiality or independence of a court is compromised. [ 86 ] No rule of law protects sitting judges from prosecution during their appointment as a judge. Nor should there be. Judges may be the subject of a search warrant obtained by members of the executive branch. They may be arrested by members of police forces who appear before them on a regular basis.

They may have their actions reviewed by a prosecutor clothed with the constitutional mandate to assess the prospect of conviction and consider the public interest in deciding whether to prosecute. Judges may, by necessity, be tried by one of their own. These are all features and hallmarks of living in a democratic society where the rule of law prevails. No one is above the law, not civilian judges, not military judges. [ 87 ] In our view, that is precisely how our society should operate.

We consider this principle so fundamental that it would be an embarrassment to attempt to use a provision of the Charter , the Bill of Rights, the Magna Carta or some other constitutional principle or legislative enactment to justify the position. To be required to do so would fundamentally weaken the indisputable concept that no one in our democracy is above the law. There is no reason to maintain that a military judge who, for example, drives while impaired or commits an assault should be immune from prosecution in the military justice system. The fact that judges are subject to criminal, civil and

disciplinary constraints does not lead a reasonably informed person, looking at the matter objectively, to conclude that a judge wouldviolate his or her oath, and fail to be impartial. [88] The respondents attempt to justify their position that military judges must be immune from prosecution under the Code of ServiceDiscipline because of the risk of bad faith on the part of prosecutors and commanders. They rely upon Her Majesty the Queen. v. Nur,2015 SCC 15, [2015] 1 S.C.R. 773 [Nur] for the proposition that prosecutorial discretion cannot save an unconstitutional law. However,Nur is distinguishable.

In Nur, the prosecution attempted to save a provision which purported to impose a minimum sentence by relyingupon prosecutorial discretion to proceed with a

summary offence rather than the indictable offence. There the Crown argued that thewise and prudent exercise of prosecutorial discretion would attenuate the effects of mandatory minimum sentences imposingdisproportionate sentences. The Supreme Court held that one cannot rely upon prosecutorial discretion to save an otherwiseunconstitutional law. [89] The present appeals are different.

The respondents rely on the thesis that the possibility a disgruntled prosecutor could bring chargesagainst a military judge, to coerce him or her, or exact retribution for unwelcome decisions, undermines the institutional independence ofa military judge. [90] It is appropriate in considering the context of the potential prosecution of military judges, to be cognizant of, and expect behaviourconsistent with, the constitutional norm that prosecutors and commanders will exercise prosecutorial discretion in a quasi-judicialmanner and independent of partisan concerns.

The Supreme Court addressed this issue, albeit in a different context, in Cawthorne: […] The Minister, like the Attorney General or other public officials with a prosecutorial function, is entitled to a strongpresumption that he exercises prosecutorial discretion independently of partisan concerns. The mere fact of the Minister’smembership in Cabinet does not displace that presumption. Indeed, the law presumes that the Attorney General — also amember of Cabinet — can and does set aside partisan duties in exercising prosecutorial responsibilities.

There is nocompelling reason to treat the Minister differently in this regard. (Cawthorne at para. 32). [91] The Supreme Court of Canada has recently reiterated this principle in Ontario (Attorney General) v. Clark, 2021 SCC 18, [2021]S.C.J. No 18 at paras. 32-33, [32] This means that the responsibility of the Crown includes the obligation to act objectively, independently and fairlytoward the accused. These imperatives are “not confined to the courtroom and attac[h] to the Crown Attorney in all dealingsin relation to an accused” more generally (Regan, at paras. 155-56, per Binnie J., dissenting). In R. v.

Cawthorne, 2016 SCC32 , [2016] 1 S.C.R. 983, this Court recognized that an accused person has a constitutional right, as a principle offundamental justice under s. 7 of the Charter , to be tried by a prosecutor who acts independently of improper purposes(paras. 23-26, per McLachlin C.J.). [33] The Attorney General and its agents are also required to act as protectors of the public interest in the discharge of theirprosecutorial functions (Cawthorne, at para. 27). They act in “the interest of the community to see that justice is properlydone” (R. v.

Power, (SCC), [1994] 1 S.C.R. 601, at p. 616, per L’Heureux-Dubé J.). Their ultimate task “isto see that the public interest is served, in so far as it can be, through the use, or non-use, of the criminal courts” (Regan, atpara. 159, per Binnie J., dissenting in the result, quoting Report of the Attorney General’s Advisory Committee on ChargeScreening, Disclosure, and Resolution Discussions (1993) (“Martin Report”), at p. 117 (emphasis deleted). [92] There is no evidence that any military judge has ever been prosecuted for improper purposes.

Nor is there any evidence that themanner in which judicial proceedings have been conducted has ever led to charges under the Code of Service Discipline. In any event,the remedies for malicious prosecution and abuse of process are sufficient to deal with that unlikely prospect. The commanding officerwould no doubt stop frivolous accusations from other sources. We readily acknowledge these prosecutorial norms serve to protect theinterests of the military judge, and are not directly relevant to the issue raised in this appeal; namely, the s. 11(

d) rights of an accused.However, the existence of these tools, including their lawful, quasi-constitutional and practical constraints on the exercise ofprosecutorial discretion, must form part of the contextual matrix within which the current analysis is undertaken. VI. Do sections 12, 18, and 60 of the NDA compromise therespondents’

section 11(

d) Charter rights? [93] Captain Crépeau, by way of cross-appeal, challenges the constitutionality of sections 12, 18 and 60 of the NDA. She contends thoseprovisions constitute an infringement of an accused’s Charter rights in that they provide the military hierarchy with the tools to exertundue pressure on military judges. [94] The Supreme Court of Canada has affirmed repeatedly the constitutionality of military members being tried by military officers (seeGénéreux at 336 and Stillman at para. 70). There is no merit to the cross-appeal.

We would dismiss it for the reasons already offered.Military judges are officers within the CAF and subject to the Code of Service Discipline. VII.

Application to admit fresh evidence [95] Just as this court was about to release its reasons on these appeals, the respondents filed a notice of motion seeking to introduce freshevidence which they submit suggests that this court is not "“constitutionally independent and as such, may not be in a position to renderjudgment in the present appeals.”" [96] The fresh evidence consists of presentations made on May 10 and 11, 2021 before the Judicial Compensation and BenefitsCommission Hearings by Chief Justice Bell of the Court Martial Appeal Court of Canada (CMACC) and Justice Scanlan, a member of

the same court. The evidence generally was about challenges to the CMACC work of the Chief Justice caused by his position as a judgeof the Federal Court, and the competing demands for judicial resources by both courts. The evidence related mostly to difficulties theChief Justice had in carrying out the administrative duties demanded by the CMACC when, at the same time, the Federal Court was alsodemanding his time and resources. The evidence did not relate to adjudication of cases before the CMACC.

There is no suggestion thatthe needs of both courts for judicial resources had any effect on any matter before the CMACC. [97] The respondents say they now have a reasonable apprehension that this court lacks the independence it requires under theConstitution and ask this court to admit the fresh evidence and allow the issue of this Court’s independence to be raised. [98] The criteria for the admission of fresh evidence are well known and set out in Palmer v. The Queen, (SCC), [1980] 1S.C.R. 759: 1.

The evidence should generally not be admitted if, by due diligence, it could have been adduced at trial provided that this generalprinciple will not be applied as strictly in a criminal case as in civil cases; 2. The evidence must be relevant in the sense that it bears upon a decisive or potentially decisive issue in the trial; 3. The evidence must be credible in the sense that it is reasonably capable of belief; and, 4. It must be such that if believed it could reasonably, when taken with the other evidence adduced at trial, be expected to haveaffected the result. [99] We would not admit the evidence.

The dual role of the Chief Justice of the CMACC is established by statute. [100]

Section 234 of the NDA mandates: (2) the judges of the CourtMartial Appeal Court are" " "

(2) La Cour d’appel de la courmartiale est composée de lafaçon suivante : " (

a) not fewer than four judges ofthe Federal court of appeal or theFederal Court to be designated bythe Governor in Council; and "

a) au moins quatre juges de laCour fédérale ou de la Courd’appel fédérale désignés par legouverneur en conseil; " (

b) any additional judges of asuperior court of criminaljurisdiction who are appointedby the Governor in Council. "

b) tout autre juge d’une coursupérieure de juridictioncriminelle nommé par legouverneur en conseil. " […] […]" "

(3) The Governor in council shalldesignate one of the judges of theCourt Martial Appeal; Court tobe the Chief Justice thereof, whoshall preside, when present, atany sittings of the Court andshall, subject to subsection (4),appoint another judge to presideat any sittings of the Court atwhich the Chief Justice is notpresent. "

(3) Le gouverneur en conseildésigne le juge en chef. Celui-cipréside les séances de la Courd’appel de la cour martiale etnomme, sous réserve duparagraphe (4), un autre jugepour assumer la présidence enson absence. " [101] All of the members of the CMACC are also members of other courts. That there could be competing demands on their time isreadily apparent from the statutory arrangement. [102] This evidence would have been available with reasonable diligence in advance of the hearing of this appeal. These appeals wereheard on January 29, 2021. This motion was not served until May 18, 2021.

The particular form of the ongoing differences, relating toadministrative matters, as revealed in the testimony before the Quadrennial Commission is not significant. The possibility of competingdemands on judges’ time has always been present. [103] This evidence has no bearing on the merits of the appeals now before this court. [104] This would be a sufficient basis to dismiss the motion to admit fresh evidence. [105] We would go further and observe that the proposed evidence is not capable of raising any question as to the institutionalindependence of the CMACC.

One would expect a chief justice of any court to seek resources for his or her court. Where this is doneappropriately and in a proper setting this is for the benefit of the litigants who appear in that court and in the public interest. [106] The constitutional guarantee of judicial independence "“is not for the benefit of the judiciary, but for the public”": Conférence des

juges de paix magistrats du Québec v. Quebec (Attorney General), 2016 SCC 39, [2016] 2 S.C.R. 116, at para. 89. [107] The CMACC judges’ home courts – the independence of which is rightly unchallenged – have no conceivable interest in thematters before this court. Moreover, to the extent these courts may place competing demands on CMACC judges’ time, there is nosuggestion in the proposed fresh evidence that this results in pressures that “bear directly and immediately on the exercise of the judicialfunction”: Valente v.

The Queen, (SCC), [1985] 2 S.C.R. 673, at para. 52. [108] An informed person, viewing the matter realistically and practically would not conclude that there was any risk that adjudicativefairness would be compromised by the differences revealed before the Quadrennial Commission.

The proposed fresh evidence is notcapable of raising a doubt as to this court’s institutional independence. [109] Lastly, the interests in finality militate against accepting fresh evidence after this matter has been fully argued on the merits.Proceedings in the trial court are at a standstill and many cases have been delayed to await the outcome of this appeal. The publicinterest weighs heavily against any further delay in this matter.

We are not satisfied that any miscarriage of justice would result from arefusal to admit the fresh evidence, particularly where the argument now proposed could have been advanced at the hearing before thiscourt. [110] The respondents filed a further motion on June 4, 2021 asking this Court to admit, by way of fresh evidence, the HonourableMorris J. Fish, Report of the Third Independent Review Authority to the Minister of National Defence: Pursuant to subsection273.601(1) of the National Defence Act, RSC 1985, c N-5 of June 1, 2021.

He was asked to study the structure and operation of themilitary justice system and he has made recommendations to the Minister of Defence for improvement of that system. [111] We would not admit that evidence. It is irrelevant to this Court’s task of determining whether the challenges made in these appealsestablish that the trial courts lack institutional independence and are hence constitutionally infirm. [112] Further delay in issuing a decision in this case would cause intolerable delay.

For the reasons expressed earlier, concerns aboutfinality outweigh the limited value that admission of the report would have for determination of the issues now before this court. [113] The motion to adduce fresh evidence is dismissed. VII. Conclusion [114] An informed person, viewing the matter realistically and practically—and having thought the matter through could, in ourrespectful view, reach no other conclusion than military judges meet the minimum constitutional norms of impartiality and independenceas required by

section 11(

d) of the Charter. Military judges are subject to the Code of Service Discipline while they hold office. Theimpugned order does not a compromise the respondents’

section 11(

d) Charter rights. There is no merit to the cross appeal. [115] For these reasons, we allow the appeals and dismiss the cross-appeal of Captain Crépeau. “B. Richard Bell” Chief Justice “Donald J. Rennie” J.A. “Gladys I. Pardu” J.A. ANNEX Canadian Charter of Rightsand Freedoms,

Part I of theConstitution Act, 1982, beingSchedule B to the Canada Act1982 (UK), 1982, c 11 Loi constitutionnelle de 1982,constituant l’annexe B de laLoi de 1982 sur le Canada (R-U), 1982, c 11 11 Any person charged with anoffence has the right 11 Tout inculpé a le droit : (

d) to be presumed innocent untilproven guilty according to law ina fair and public hearing by anindependent and impartialtribunal

d) d’être présumé innocent tantqu’il n’est pas déclaré coupable,conformément à la loi, par untribunal indépendant et impartialà l’issue d’un procès public etéquitable

National Defence Act , R.S.C., 1985, c. N-5

Loi sur la défense nationale , L.R.C. (1985), ch. N-5 2. service offence means an offence under this Act, the Criminal Code or any other Act of Parliament, committed by a person while subject to the Code of Service Discipline; 2 . infraction d’ordre militaire Infraction — à la présente loi, au Code criminel ou à une autre loi fédérale — passible de la discipline militaire En blanc En blanc 12

(1) The Governor in Council may make regulations for the organization, training, discipline, efficiency, administration and good government of the Canadian Forces and generally for carrying the purposes and provisions of this Act into effect. 12

(1) Le gouverneur en conseil peut prendre des règlements concernant l’organisation, l’instruction, la discipline, l’efficacité et la bonne administration des Forces canadiennes et, d’une façon générale, en vue de l’application de la présente loi.

(2) Subject to

section 13 and any regulations made by the Governor in Council, the Minister may make regulations for the organization, training, discipline, efficiency, administration and good government of the Canadian Forces and generally for carrying the purposes and provisions of this Act into effect.

(2) Sous réserve de l’article 13 et des règlements du gouverneur en conseil, le ministre peut prendre des règlements concernant l’organisation, l’instruction, la discipline, l’efficacité et la bonne administration des Forces canadiennes et, d’une façon générale, en vue de l’application de la présente loi.

(3) The Treasury Board may make regulations

(3) Le Conseil du Trésor peut, par règlement : (

a) prescribing the rates and conditions of issue of pay of military judges, the Director of Military Prosecutions and the Director of Defence Counsel Services;

a) fixer les taux et conditions de versement de la solde des juges militaires, du directeur des poursuites militaires et du directeur du service d’avocats de la défense; (

b) prescribing the forfeitures and deductions to which the pay and allowances of officers and non-commissioned members are subject; and

b) fixer, en ce qui concerne la solde et les indemnités des officiers et militaires du rang, les suppressions et retenues; (

c) providing for any matter concerning the pay, allowances and reimbursement of expenses of officers and non- commissioned members for which the Treasury Board considers regulations are necessary or desirable to carry out the purposes or provisions of this Act.

c) prendre toute mesure concernant la rémunération ou l’indemnisation des officiers et militaires du rang qu’il juge nécessaire ou souhaitable de prendre par règlement pour l’application de la présente loi.

(4) Regulations made under paragraph (3)(

a) may, if they so provide, have retroactive effect. However, regulations that prescribe the rates and conditions of issue of pay of military judges may not have effect

(4) Tout règlement pris en vertu de l’alinéa

(3) a) peut avoir un effet rétroactif s’il comporte une disposition en ce sens; il ne peut toutefois, dans le cas des juges militaires, avoir d’effet :

(

a) in the case of an inquiry under

section 165.34, before the day referred to in subsection 165.34(3) on which the inquiry that leads to the making of the regulations is to commence; or

a) dans le cas de l’examen prévu à l’article 165.34, avant la date prévue au paragraphe 165.34(3) pour le commencement des travaux qui donnent lieu à la prise du règlement; (

b) in the case of an inquiry under

section 165.35, before the day on which the inquiry that leads to the making of the regulations commences.

b) dans le cas de l’examen prévu à l’article 165.35, avant la date du début de l’examen qui donne lieu à la prise du règlement. En blanc En blanc 18

(1) The Governor in Council may appoint an officer to be the Chief of the Defence Staff, who shall hold such rank as the Governor in Council may prescribe and who shall, subject to the regulations and under the direction of the Minister, be charged with the control and administration of the Canadian Forces. 18

(1) Le gouverneur en conseil peut élever au poste de chef d’état-major de la défense un officier dont il fixe le grade. Sous l’autorité du ministre et sous réserve des règlements, cet officier assure la direction et la gestion des Forces canadiennes.

(2) Unless the Governor in Council otherwise directs, all orders and instructions to the Canadian Forces that are required to give effect to the decisions and to carry out the directions of the Government of Canada or the Minister shall be issued by or through the Chief of the Defence Staff.

(2) Sauf ordre contraire du gouverneur en conseil, tous les ordres et directives adressés aux Forces canadiennes pour donner effet aux décisions et instructions du gouvernement fédéral ou du ministre émanent, directement ou indirectement, du chef d’état-major de la défense. En blanc En blanc 29.101 Despite subsection 29.1(1), a grievance submitted by a military judge shall be considered and determined by the Chief of the Defence Staff. 29.101

Malgré le paragraphe 29.1(1), le grief déposé par le juge militaire est étudié et réglé par le chef d’état-major de la défense. En blanc En blanc 33

(1) The regular force, all units and other elements thereof and all officers and non- commissioned members thereof are at all times liable to perform any lawful duty. 33

(1) La force régulière, ses unités et autres éléments, ainsi que tous ses officiers et militaires du rang, sont en permanence soumis à l’obligation de service légitime.

(2) The reserve force, all units and other elements thereof and all officers and non- commissioned members thereof

(2) La force de réserve, ses unités et autres éléments, ainsi que tous ses officiers et militaires du rang, peuvent être : (

a) may be ordered to train for such periods as are prescribed in regulations made by the Governor in Council; and

a) astreints à l’instruction pour les périodes fixées par règlement du gouverneur en conseil; (

b) may be called out on service to perform any lawful duty other than training at such times and in such manner as by regulations or otherwise are prescribed by the Governor in Council.

b) soumis à l’obligation de service légitime autre que l’instruction, aux époques et selon les modalités fixées par le gouverneur en conseil par règlement ou toute autre voie.

(3) Nothing in subsection (2) shall be deemed to impose liability to serve as prescribed therein, without his consent, on an officer or non-commissioned member of the reserve force who is, by virtue of the terms of his enrolment, liable to perform duty on active service only.

(3) Le paragraphe (2) n’a pas pour effet d’imposer, sans son consentement, les obligations qui y sont décrites à un officier ou militaire du rang de la force de réserve qui, aux termes de son enrôlement, n’est astreint qu’au service actif.

(4) In this section, duty means any duty that is military in nature and includes any duty involving public service authorized under

section 273.6.

(4) Pour l’application du présent article, service s’entend, outre des tâches de nature militaire, de toute tâche de service public autorisée sous le régime de l’article 273.6. En blanc En blanc 60

(1) The following persons are subject to the Code of Service Discipline: 60

(1) Sont seuls justiciables du code de discipline militaire : (

a) an officer or non- commissioned member of the regular force;

a) les officiers ou militaires du rang de la force régulière; (

b) an officer or non- commissioned member of the special force;

b) les officiers ou militaires du rang de la force spéciale; (

c) an officer or non- commissioned member of the reserve force when the officer or non-commissioned member is

c) les officiers ou

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