The BCCLA has intervened in R v Edwards et al. to ensure that members of the Canadian military are not denied their section 11(d) Charter rights 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 military court run by a Canadian Forces officer is sufficiently independent to satisfy section 11(d) of the Charter.
The BCCLA submits that a 1992 Supreme Court of Canada decision, R v Généreux, which made an exception to the 11(d) right for military courts, should no longer be followed. 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 also looked to section 11(f), which provides an exception to the right of Canadians to a jury trial in military prosecutions. Because this showed the drafters of the Charter were aware of the existence of Canada’s military justice system in section 11(f), the court excluded it from the 11(d) right as well.
The BCCLA argues that section 11(d) must be interpreted purposively and as it is written to align with the accepted methods of Charter interpretation endorsed by the Supreme Court of Canada in numerous decisions since Généreux. Practicality concerns should not override the right to a fair and impartial court and must instead be considered under the s. 1 justification stage of the Charter. 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.
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 These charges were subsequently withdrawn by the Director of Military Prosecutions in 2020.
