Ottawa, ON (unceded territory of the Algonquin/Omàmìwininìwag) – The BC Civil Liberties Association (BCCLA) is disappointed in today’s Supreme Court of Canada’s (SCC) decision in R v Edwards et al, which held that trials by military judges within the Canadian Armed Forces do not violate the s. 11(d) right to be presumed innocent until proven guilty in a fair trial by an independent and impartial tribunal. The majority found that “absolute” independence is not required and the current regime where military judges are also subject to the military chain of command is constitutionally compliant with the conditions of judicial independence.
The BCCLA intervened to argue that the section 11(d) Charter right must be interpreted as it was intended: to equally apply to trials within the Canadian Armed Forces. The BCCLA argued that 1992 decision of R v Généreux, which used s. 11(f) of the Charter to limit the s. 11(d) right, should no longer be followed, as it does not reflect the accepted methods of Charter interpretation endorsed by the SCC in numerous subsequent decisions. The BCCLA welcomes Justice Karakatsanis’ dissent which holds that there is insufficient institutional separation in the existing scheme between the executive and judicial role of military judges.
Public confidence in the military justice system has been shaken in recent years with public question of the integrity and accountability of Canada’s military justice system, including charges against high-ranking military judges. Some military judges had refused to rule on their individual cases given they found themselves lacking impartiality or independence. Canada is behind compared to other jurisdictions which have adopted civilian judges, including the United Kingdom and New Zealand.
“All Canadians, including those in the military, deserve the right to a fair trial before an impartial and independent decision maker. This essential Charter right ensures that there is justice and accountability for not only those accused of offences, but victims, everyone in their communities, and the greater society. We are very disappointed to see that the Court majority has not appreciated how the military court regime is not equally independent as that in civilian society. This perpetuates a concerning gap in state accountability.”
Ga Grant, BCCLA Litigation Staff Counsel
The BCCLA is represented by Greg Allen, David McEwan, and Chloe Trudel at Allen/McMillan.
