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Part 2
The Applicability of the Charter to Military Law

An important Supreme Court of Canada decision dealing with Canada's military law regime was rendered in the 1992 post-Charter case of R. v. Généreux11 ("Généreux"). In this case, the Supreme Court affirmed that the Canadian Charter of Rights and Freedoms12 (the "Charter") permits the existence of a parallel system of justice like that established under the NDA. Moreover, the Court held that this parallel system of justice can extend to certain offences under the criminal law which would normally come under the jurisdiction of the civilian courts.13However, the Supreme Court also indicated that the Charter allows a separate system of military tribunals only in order to allow the Canadian Forces to deal with matters pertaining directly to the discipline, efficiency and morale of the military. Furthermore, the Court made it clear that even though military courts must meet standards of "independence" as demanded by subsection 11(d) of the Charter,14 these standards are flexible. "Independence", the Court ruled, is to be defined by reviewing the context in which the tribunal operates, and not by comparison to the standards of civilian courts of criminal jurisdiction. Therefore, "independence" in the context of military courts need not have the same content as in the case of civilian courts. Lastly, the Court in Généreux affirmed that the trial of an ordinary criminal offence by a separate and distinct system of military courts does not discriminate against military members in violation of Section 15 of the Charter.15 In short, a military member facing a trial by a military court was held not to be "a member of a ‘discrete and insular minority’" so as to bring him or her within the scope of section 15 of the Charter.

In the meantime, prior to the Supreme Court decision in Généreux and following a decision of this Court in Ingebrigtson v. R.16 the Judge Advocate General had effected a number of internal changes to preserve the impartiality of military trial judges.17 A fixed term was provided for military judges who would perform no other duties during this term. Limits were placed on termination of their appointments. They would be assigned to particular cases by the Chief Military Judge. They were physically relocated to a new building separate from the rest of the members of the Office of the Judge Advocate General. Moreover, military trial judges were rendered no longer subject to personnel performance evaluations - accordingly, raises in compensation were not based on such evaluations.18 In addition, a host of regulatory amendments were made to the QR&O's, including Article 409 which provided security of tenure.

In a 1998 decision, prior to the recent amendments to the NDA, this Court in the case of Lauzon v. the Queen19 nevertheless held that these provisions with respect to the methods of appointment of the Chief Military Judge, of reappointment of military judges for a second or subsequent time, of removal of military judges, and the fixing of their salaries did not yet meet standards of independence required under paragraph 11(d) of the Charter. These decisions relied in part on the decision of the Supreme Court of Canada in Re Provincial Judges.20

These issues have in the meantime been addressed in sections 165.21 to 165.27 of the amended NDA and Chapters 101 and 204 of the QR&O's for the purpose of removing military judges from responsibility to the chain of command.

It should also be noted that subsection 11(f) of the Charter provides an explicit exception to the guarantee of trial by jury in the case of a military tribunal.21

The recent amendments have also sought to eliminate any appearance of conflict of interest, and thus the possibility of Charter challenges, in respect of the conduct of both prosecutions and defences by service legal officers. There is now a Director of Military Prosecutions who is appointed by the Minister. It is the Director, not the military chain of command, who will decide whether charges should be preferred and proceed to court martial or should not be laid. The Director is subject to the general supervision of the Judge Advocate General who may issue general instructions or guidelines in respect of prosecutions, or instructions or guidelines in respect of particular prosecutions. These instructions must be in writing and will generally be available to the public.22 Similar arrangements exist for the appointment and functions of a Director of Defence Counsel Services, but the Judge Advocate General cannot issue instructions or guidelines regarding a particular defence.23

11[1992] 1 S.C.R. 259.

12Part 1 of the Constitution Act, 1982, being Schedule B of the Canada Act, 1982 (U.K.), 1982, c.11.

13To the extent that the Charter might have retriggered this discussion after the Supreme Court's 1980 decision in MacKay v. R. [1980] 2 S.C.R. 370, the issue of the legitimacy under the Charter of a separate system of military law was dealt with by the Supreme Court in Généreux.

14Ss.11(d) of the Charter provides that:

Any person charged with an offence has the right to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal.

15S.15 of the Charter provides that:

15.(1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability;

(2) Subsection (1) does not preclude any law, program or activity that has as its object the amelioration of conditions of disadvantaged individuals or groups including those that are disadvantaged because of race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.

16(1990), 5 C.M.A.R. 87.

17A military trial judge is referred to as "judge advocate" at General Court Martials and, as "president" at Standing Court Martials. See article 4.09 of the QR&O's. All these types of courts martial are discussed in more detail in Part 3 of this overview.

18See art.204.22 of the QR&O's which provides a formula for altering the salaries of military trial judges which is not based on personnel performance evaluations.

19CMAC-415, followed in Boivin v. the Queen, CMAC-410, December 9, 1998.

20[1997] 3 S.C.R. 3.

21This Charter provision provides specifically that:

Any person charged with an offence has the right [. . .] except in the case of an offence under military law tried before a military tribunal, to the benefit of trial by jury where the maximum punishment for the offence is imprisonment for five years or a more severe punishment.

22See NDA, sections 165.1-17.

23See NDA, sections 249.18-21.


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