WHAT: BCCLA at the Supreme Court of Canada to intervene in R. v. Edwards et al. to argue for the right to an independent and impartial tribunal in the military

WHEN: October 16, 2023, at 9:30 am EST / 6:30 am PST

WHERE: Supreme Court of Canada (available to watch live via webcast)

Ottawa, ON (unceded territory of the Algonquin/Omàmìwininìwag) – The BC Civil Liberties Association (BCCLA) will make oral arguments at the Supreme Court of Canada (SCC) in R. v. Edwards et al. to argue for a purposive interpretation of the section 11(d) Charter right to an independent and impartial tribunal within the context of Canada’s separate military justice system. To that end, the BCCLA will submit that a 1992 decision, R v. Généreux, should no longer be followed, as it does not reflect the accepted methods of Charter interpretation endorsed by the SCC in numerous decisions post-Généreux.

This case comes at an important moment for the integrity and accountability of Canada and its military justice system, which has recently been subject to scandal and scrutiny, following Canada’s Chief Military Judge, Colonel Mario Dutil, being charged with fraud and misconduct in 2018. These charges were subsequently withdrawn by the Director of Military Prosecutions in 2020. 

Section 11(d) of the Charter guarantees the right to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal. This appeal examines whether a court-martial run by a Canadian Forces officer is sufficiently independent to satisfy section 11(d) of the Charter.

In Généreux, the Court acknowledged that military judges presiding over matters under military law raised a reasonable apprehension of bias and that only civilian judges could be truly impartial. However, the Court essentially found that concerns for operational requirements overrode concerns about biased decision-making. In interpreting section 11(d), the Court looked to section 11(f), which provides an exception to the right of Canadians to a jury trial in prosecutions under military law tried before a military tribunal. The Court held that the exception to the section 11(f) right in the case of military tribunals demonstrated that the drafters of the Charter were well aware of the existence of Canada’s separate military justice system, and the section 11(d) right should be interpreted in that context.

In the BCCLA’s view, there is nothing in the text of section 11(d) to suggest that it was meant to be limited by the operation of section 11(f). To construe section 11(f) as a limit on section 11(d) undermines the longstanding, fundamental right to a fair trial, which includes the right to an independent and impartial tribunal.

The BCCLA is represented by Greg Allen, David McEwan, and Chloe Trudel at Allen/McMillan.

The BCCLA’s factum is available here.

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