R V EDWARDS AND INDEPENDENCE OF CANADIAN MILITARY JUDICIARY

A JUDGMENT THAT LEAVES US WANTING MORE

Abstract

On 16 October 2023, the Supreme Court of Canada (SCC) heard argument regarding whether the independence of military judges, who also serve as officers in the Canadian Forces (CF), is compromised because of their status as officers. The SCC handed down its judgment on 26 April 2024. The central issue in R v Edwards was whether the potential for military judges to be influenced by the executive, through their standing as CF officers, compromises their institutional independence. This influence could arise from deficient separation of powers between the executive and judiciary or from the fact that military judges are subject to the Code of Service Discipline4, which is administered by the executive, namely, the CF “chain of command.”

A 6:1 majority of the SCC held that the safeguards under the National Defence Act, including amplification under the Queen’s Regulations and Orders for the Canadian Forces—QR&O, were sufficient to meet the requirements of an independent and impartial tribunal under section 11(d) of the Canadian Charter of Rights and Freedoms.

For the reasons set out below, we offer a different perspective: As long as military judges are subject to the Code of Service Discipline, they remain subordinate to the executive in a manner which is inconsistent with the Charter. We also discuss a number of external factors affecting the independence and impartiality of Canadian military judges which do not seem to have been considered, or were not considered adequately, by the SCC in Edwards.