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POLICY PERSPECTIVE

A joint publication with:

by Afton David and Rory Fowler
November 2024

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Table of Contents

• Introduction
• A New Legal Regime under Bill C-77 which is in direct conflict with judicial independence
• Incremental Approach to Judicial Independence Following Généreux
• A Possible Solution
• End Notes
• About the Authors
• Canadian Global Affairs Institute

Introduction

The question of institutional independence of military judges is not a new issue in Canada; it has been challenged in court several times, even before the adoption of the Canadian Charter of Rights and Freedoms.1 One Supreme Court of Canada decision has tended to dominate this discussion: the 1992 judgment in  R v Généreux (“Généreux”).2 At that time, the judge advocates who presided over courts martial were appointed from a list maintained by the Judge Advocate General (JAG), an officer in the Canadian Forces (CF) and senior-most legal advisor to the Minister, the Canadian Forces and the Department of National Defence on matters of military law.3 The Supreme Court of Canada held that this afforded the executive branch of government too much control over what were then essentially military judges, and therefore impaired the accused’s right to a “public hearing by an independent and impartial tribunal” as afforded under section 11(d) of the Canadian Charter of Rights and Freedoms.4

Unfortunately, Généreux did not determine what could have been vital in shaping Canada’s military justice system for the next few decades: whether the judicial branch in the military justice system is distinct from the executive. Our Westminster Parliamentary democracy perceives a judicial branch separate and distinct from the executive and the legislature, which, for the purposes of this article, means judges must be free from influence from the executive branch in order to provide the rights guaranteed under the Charter. The separation and distinction between the three branches of government is a fundamental constitutional requirement of the rule of law in Canada.5 Had the judges taken a more definitive path in Généreux, Canada’s current body of law on the independence and impartiality of military judges would look very different and could potentially have been settled once and for all decades ago.

However, because this issue was not settled in the early nineties, Canada’s highest court was recently confronted with this issue again in R v Edwards,6 when it heard argument regarding whether the independence of military judges, who preside over courts marital and also serve as officers in the Canadian Forces (CF), is compromised because of their status as officers. A central issue was whether the potential for military judges to be influenced by the executive, through their standing as CF officers, compromises their institutional independence. The Supreme Court heard arguments on 16 October 2023 and handed down its judgment on 26 April 2024. 

Of the seven supreme court justices involved in the judgment, six – the “Majority” – held that, considering safeguards already in place, military judges are sufficiently independent and impartial. Justice Karakatsanis “dissented”, meaning she disagreed with the majority. In her opinion, the legislative provisions which subject military judges to the military disciplinary process administered by military authorities should be of no force or effect, since it would impair the right of an accused to a hearing by an impartial and independent tribunal, guaranteed to all soldiers under section 11(d) of the Charter.

The Edwards decision may lead to future legal challenges and, potentially, legislative review, as the institutional independence of judges, and in particular military judges, is a vital aspect of Canada’s military justice system under the Charter. Judicial independence guarantees the legitimacy of the judicial process and outcomes, and forms part of the foundation for the integrity of the evolution of Canadian military law.

Prior to R v Edwards, the independence of Canada’s military judiciary rose to prominence in 2019, following the failed prosecution of the former Chief Military Judge, Colonel Dutil, before a court martial in 2019 and 2020.7 The Director of Military Prosecutions (DMP) eventually withdrew the charges against the Chief Military Judge on 11 March 2020,8 after DMP was unsuccessful in seeking judicial review of the decision by the Deputy Chief Military Judge declining to assign a military judge to preside over the court martial. That decision arose principally due to conflicts of interest with all military judges who could be assigned to preside over the court martial. Following that failed prosecution, Defence Counsel Services raised repeated applications relying on the fact that, for discipline and grievances, the Chief Military Judge and the other military judges fell under the command of a non-judicial General Officer, the Deputy Vice Chief of the Defence Staff.

In a series of escalating judgments, military judges eventually held that a reasonable bystander, fully informed of the circumstances and the law, would conclude that military judges do not benefit from sufficient institutional independence.9

On appeal, a unanimous Court Martial Appeal Court of Canada (CMAC) concluded that military judges are sufficiently independent and impartial. To support this decision, they asserted that there is an overlap between the judicial and executive branches within the Westminster system of government, stating military judges may perform functions of the executive in Boards of Inquiry,10 much as civilian judges may serve as commissioners of inquiry under the Inquiries Act.11

However, this rationale puts the cart before the horse. Judges may occasionally be assigned as commissioners of inquiry because of their perceived independence; but this is not a source of their independence. Nor does that make them permanent members of the executive. Military judges, as commissioned officers of the CF, are permanent members of the executive. They are therefore markedly different from civilian judges who, on rare occasions, perform functions for the executive. Civilian judges are also not subject to the same tensions and potential interference as military judges.

In his Report of the Third Independent Review Authority to the Minister of National Defence (“Fish Report”),12 former Supreme Court Justice Morris Fish discussed the issue of independence and impartiality of the military judiciary. He observed that, although military judges hold military rank, there are a number of safeguards in place to protect their independence from the executive. One of these is the fact that military judges “are not subject to personal reports or assessments if such documents are ‘to be used in whole or in part to determine the training, posting or rate of pay of the officer, or whether the officer is qualified to be promoted,’ and their personnel evaluation report files cannot be placed before a promotion board.”13

This issue has been debated at length not only in Canada, but also in the United Kingdom and before the European Court of Human Rights (ECtHR). We would be remiss if we did not mention the 2003 landmark case from the ECtHR, Grieves v the United Kingdom (“Grieves”),14 which was not expressly considered in R v Edwards. In Grieves, the ECtHR considered the same question of independence and impartiality of the U.K. military judiciary at the time. The Applicant appealed a judgment rendered by a Royal Navy Judge Advocate, a position comparable to a Canadian military judge wearing a Royal Canadian Navy uniform and rank of Commander. The Appellant argued that “the structure of his court-martial was such that it violated the independence and impartiality requirements, and consequently the fairness requirement, of [Article 6 § 1 of the European Convention on Human Rights].”15

At the time, the Royal Navy Judge Advocate served as a judge on an ad-hoc basis; the officer would otherwise serve as a naval officer performing regular naval duties. This arrangement was comparable – though not identical – to that which existed in Canada at the time of Généreux.  In contrast, military judges in the U.K. in both the Royal Air Force and Army were civilian judges, working in these positions on a full-time basis. They were subject to the direction of the Judge Advocate General of the U.K., who was also a civilian judge.16

The ECtHR held that “… the lack of a civilian in the pivotal role of Judge Advocate deprives a naval court-martial of one of the most significant guarantees of independence enjoyed by other services' [army and air-force] courts-martial […].”17

Grieves was not mentioned or considered in the Edwards decision. Nor was it mentioned in the Fish Report. It was, however, included in the argument from Defence Counsel Services, counsel for the appellants before the Supreme Court in Edwards.18

In the wake of Grieves, the United Kingdom “civilianized” the military judiciary; in other words, their military judges, or “Judge Advocates”, are civilians, free of rank and free of the U.K.’s military disciplinary regime.19 Although this is an option which Justice Fish recommends in his report (without referring to Grieves), and which seems to have the support of senior ranks of the CF,20 Justice Fish also acknowledged that this recommendation is not necessarily obligatory under Canadian law. In his report, as in prior Independent Reviews of the Code of Service Discipline (CSD), Justice Fish distinguished between policy changes that would be beneficial and those that are obligatory under the supreme law of Canada. We agree with Justice Fish and with the majority in Edwards that the mere fact that military judges hold a rank does not undermine their independence such that it is inconsistent with the minimum threshold for independence and impartiality required by the Canadian Constitution.21 The issue lies elsewhere – specifically, the fact that military judges are subject to a disciplinary regime administered by military authorities, i.e., the executive branch. 

On this issue, the six-judge Majority of the Supreme Court outlined current safeguards which they assert support the position that military judges enjoy sufficient institutional independence. These safeguards include: the security of tenure of military judges, which “protects them from what might be feared as vulnerabilities in respect of mistreatment by superior officers”; their separate pay scheme “that is not fixed by their superiors but by an independent Military Judges Compensation Committee”; and the regulation requiring legal advice before someone can lay a charge against a military judge.22

The Majority further states that, in light of the regulation requiring legal advice before laying a charge against a military judge, and DMP’s obligation to act independently of partisan concerns, “the law protects military judges from improper prosecution under the CSD”. The Majority asserts that an improper order from a superior officer to a military judge would be an unlawful order and would constitute an “abusive or purely retaliatory prosecution”.23

We agree with the description offered by the Majority; however, we suggest this has not stopped superior officers from making unlawful orders in the past. And if history is any teacher, it has shown us that the existence of a rule does not mean everyone will follow it. Finally, the mere fact that a statutory actor must obtain legal advice before acting does not guarantee that the legal advice will be correct – or even reasonable – or that it won’t be influenced by irrelevant factors.24  Nor is it a certainty that the legal advice will be followed. However, if the legal advice is not followed, it is a near certainly that the contradictory legal advice will not be disclosed.

Indeed, the conclusion, advanced by the Majority, is problematic not only for the reasons set out above, but also because the Supreme Court of Canada has already warned us about the issues surrounding blind confidence in the integrity of statutory actors. The Majority’s reasons ignore a compelling factor raised by Justice Cory in R v Bain,25 in 1992, which was relied upon by a majority of the Supreme Court of Canada in R v Nur in 2015:26

Unfortunately it would seem that whenever the Crown is granted statutory power that can be used abusively then, on occasion, it will indeed be used abusively. The protection of basic rights should not be dependent upon a reliance on the continuous exemplary conduct of the Crown, something that is impossible to monitor or control. Rather the offending statutory provision should be removed.27 [Emphasis added]

We note that this prudent caution was expressly cited by Justice Karakatsanis in her dissent.28

The fact that military judges hold a specific rank is not, in our opinion, the issue. The issue lies in the fact that military judges are subject to an executive-administered disciplinary system which puts their independence at risk, notwithstanding the safeguards in place. And that tangible risk would cause a reasonable person, informed of the relevant facts and law, to doubt their independence. This is echoed in Justice Karakatsanis dissent; a key factor that undermines military judicial independence is the fact military judges are subject to the disciplinary process of the CSD, which is administered by military authorities: “their added liability for military charges under a disciplinary regime that can be launched and prosecuted by the executive runs counter to s. 11(d) of the Charter”.29

Justice Fish also discusses this in his Report, and he comes to a similar conclusion: the fact that military judges are subject to the CSD puts them in a position of “subordination” that is incompatible with judicial duties. This, in Fish’s perspective, “…could lead to concerns that military judges may improperly take into account the disciplinary consequences to which they may be exposed if they adjudicate cases in a certain way.”30

Although the Majority in Edwards concluded that military judges are “properly insulated”31 from the chain of command, the vulnerability arising from the jurisdiction of the CSD is not related solely to the potential to be charged due to their judicial functions or a specific decision. Rather, it is that they are vulnerable to manipulation by the executive through the exercise of the broad discretion by the executive under the CSD.

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A New Legal Regime under Bill C-77 which is in direct conflict with judicial independence

By the time the Supreme Court of Canada heard the appeal and was preparing its judgments in Edwards, the CSD had been further amended in a manner that directly undermined judicial independence.  On 20 June 2022, several provisions under Bill C-7732 came into force, essentially bifurcating the CSD. These amendments introduced “service infractions”, which are distinguishable from “service offences”.  Prior to Bill C-77, the CSD defined only service offences triable by “service tribunals”.  Service offences included offences established under the National Defence Act, and also included offences established under the Criminal Code or any other Act of Parliament. Service offences can be characterized as penal offences analogous to criminal offences (indeed, they include all offences under the Criminal Code). The service tribunals were comprised of either “summary trials”, the more commonly convened tribunal presided over by a “presiding officer” from the accused’s chain of command, or courts martial, presided over by military judges.  Summary trials had no jurisdiction over senior officers at the rank of colonel or above, or over military judges.

Since the subject provisions from Bill C-77 came into effect, service offences are triable only by courts martial. They are subject to similar procedural safeguards and requirements as a prosecution before a civil court of criminal jurisdiction. Summary trials are no longer a form of military tribunal (indeed, the term “military tribunal” was removed from the definitions under section 2 of the National Defence Act).  Service infractions, created under Bill C-77, but defined in regulations33, are non-criminal disciplinary infractions, tried exclusively by “summary hearings” on a balance of probabilities, with no right to elect trial by court martial.  This new form of summary justice under the CSD is referred to as the “Military Justice at the Unit Level”34 or “MJUL”, and functionally replaces the previous “summary trials”.

Now, any member of the CF, including military judges, may be tried for a service infraction by summary hearing. Service infractions include a broad range of alleged misconduct including: improper use, destruction, possession of property; improper access, possession, use, or communication of information obtained in the performance of their duties; failure to disclose conflicts of interest; fails to maintain personal equipment or assigned quarters in accordance with Canadian Forces requirements.35 Perhaps the most controversial service infraction is “… otherwise behaves in a manner that adversely affects the discipline, efficiency or morale of the Canadian Forces.”,36 which is quite broad and could capture any number of actions undertaken by, for example, a military judge.

While this may be viewed as a “great equalizer”, demonstrating that no one is above the law, it also means that military judges, who preside over courts martial and who must therefore be sufficiently independent and impartial to provide decisions free of apprehension of reprisal or undue influence, can now be charged and punished by their non-judicial chain of command, which includes senior officers who are representatives of the executive branch. These same representatives of the executive have a direct interest in the decisions made by military judges at courts martial and could even find themselves appearing before the same. 

This was, and remains, an issue that was not adequately addressed in the Edwards decision. And, although Bill C-77 was enacted prior to the Fish Report, the bifurcation of the CSD came into force over a year after Justice Fish completed his review. 

The fact that military judges can be tried under the MJUL is currently the subject of a proposed legislative amendment included in Bill C-66, An Act to amend the National Defence Act and other Acts.37 In fact, only one amendment proposed in Bill C-66 affects the independence and impartiality of military judges: clause 11 of Bill C-66 would create a provision which exempts military judges from the jurisdiction of service infractions.38 If passed, this should solve this specific issue. However, at the time that R v Edwards was heard, and the subsequent judgment was handed down, and at the time of writing of this article, the contents of that proposed legislation was and is not law. As of the date of publication of this commentary, Bill C-66 has only completed the second reading before the House of Commons, in what is generally considered an uncertain future for the current legislative sitting. In circumstances in which an election could be called at any moment, it is unclear whether Bill C-66 will make it to the end of the legislative process, or if it will die on the table, thereby continuing to leave this massive gap in independence of the military judiciary.  Bill C-66 includes a number of other amendments which are purportedly intended to improve the independence of select actors in the military justice system including the military police and DMP. The extent to which the independence of those actors is insufficient is debatable, and, unlike the independence of military judges, has not previously been the subject of sustained appellate review.

Bill C-66 is not presently law, and its legislative future is uncertain at best.  Even if Bill C-66 does manage to make it through the legislative process before an election is called, in light of the three years that passed to bring Bill C-77 into force, it might be presumptuous to assume that the contents of Bill C-66 will become law in the near future. And in their judgment in Edwards, the majority of the Supreme Court of Canada did not give enough consideration to this vulnerability to the independence of military judges, even though counsel for the Appellants had expressly included that specific factor in their argument.39

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Incremental Approach to Judicial Independence Following Généreux

Amendments to the CSD typically arise because the legislator is influenced by binding appellate judgments. Judgments that rendered legislation of no force or effect, such as Généreux, R v Trépanier40 and R v Leblanc,41  have prompted legislative changes to the CSD after appellate courts rejected arguments advanced by the executive. Généreux triggered many of the significant reforms to the CSD in Bill C-25,42 including measures intended to create more robust safeguards for the independence of courts martial. 

Trépanier forced the executive to place amendments to the NDA before Parliament in order to permit the accused to elect the type of court martial that would preside over a prosecution. Prior to the judgment in Trépanier and the subsequent (and hasty) enactment of Bill C-60,43 where there was a choice between trial by General or Disciplinary Court Martial (i.e., trial before a military judge and a jury-like Panel) or a Standing Court Martial (i.e., trial before a military judge alone), DMP exercised this discretion. This was the inverse of what was (and is) permitted in the civil criminal justice system, in which the accused was permitted to elect whether trial would be between a judge sitting alone or a judge and jury (where such discretion was permitted).44

The appellate judgment in Leblanc pushed the executive to seek further amendment of the NDA to ameliorate the security of tenure of military judges,45 thereby taking another step towards improving independence and impartiality of the military judiciary.

It seems clear that public pressure – as opposed to binding appellate judgments – is the driving force behind Bill C-66’s transfer of certain sexual offences from the military justice system to the civilian system. This is certainly how Bill C-66 is being characterized in news media and government communications. One of the amendments proposed in the Bill is the removal of military judges from the jurisdiction of the MJUL. In our opinion, this is not a product of public pressure. It has not been the subject of much discussion in public, if at all. We suggest that the executive has sought to include this amendment because it recognizes a vital and undeniable fact: placing military judges under the thumb of the executive through the exercise of jurisdiction under the MJUL undermines their independence to the point where it contravenes s. 11(b) of the Charter. This important factor was not adequately considered in Edwards.

And that is but one specific example of why we believe the jurisdiction of the CSD, generally, is inconsistent with a sufficiently independent and impartial military judiciary.

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A Possible Solution

There is a simple and elegant solution, which lies within the scope of the Supreme Court of Canada’s review, and which, unfortunately, was not explored adequately in Edwards: If military judges were removed from the jurisdiction of the CSD, they would remain subject to criminal law, just as civilian judges are. They would remain subject to the supervision of the Military Judges Inquiry Committee regarding the competent and ethical performance of their functions as military judges. Their eligibility requirements would remain the same, which is, as at this date, to have at least 10 years’ service in the military as an officer and at least 10 years’ membership of a Bar of a Canadian Province in good standing.46 And, most importantly, the reasonable bystander, fully informed of the circumstances and the law, would be satisfied that military judges are not vulnerable to undue influence from the executive.

Despite the Edwards decision and the proposed amendments in Bill C-66, we maintain that as long as military judges remain subject to the CSD, we are not convinced a “reasonable person, who was informed of the relevant statutory provisions, their historical background and the traditions surrounding them, after viewing the matter realistically and practically”47 would conclude military judges are free of influence from the executive.

By removing military judges from jurisdiction of the CSD, such an outcome would finally resolve the issues of independence and impartiality of the military judiciary arising out of Généreux 30 years ago, and would be consistent with its reasoning. The issue, now, is whether this logical evolution will arise from a future binding appellate judgment, or whether it will be a product of reform grounded in policy initiatives. One thing is certain; it would recognize a clear distinction between the judiciary and the executive within the military justice system; it would safeguard judicial independence; and it would ensure that courts martial may proceed unimpaired by these issues. Only time will tell how the legislator responds.

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End Notes

1 Canadian Charter of Rights and Freedoms, s 7, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11, at s. 11: https://laws-lois.justice.gc.ca/eng/const/page-12.html. [Charter].

2 R v Généreux, 1992 1 SCR 259 [Généreux]: https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/836/index.do.

3 National Defence Act, RSC 1985, c N-4 [NDA], s 9.1: https://laws-lois.justice.gc.ca/PDF/N-5.pdf.

4 Canadian Charter of Rights and Freedoms, s 7, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11, at s. 11: https://laws-lois.justice.gc.ca/eng/const/page-12.html. [Charter].

5 Wells v Newfoundland, [1999] 3 SCR 199, para 52; see also: Operation Dismantle Inc. v The Queen, [1985] 1 SCR 441, 491; Fraser v Public Service Staff Relations Board, [1985] 2 SCR 455, 469.

6 R v Edwards, 2024 SCC 15 [Edwards]: https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/20408/index.do.

7 R c Dutil, 2019 CM 3003; Canada (Director of Military Prosecutions) v Canada (Office of the Chief Military Judge), 2020 FC 330.  Colonel Dutil had been charged with fraud (a Criminal Code offence), making a false statement in a document used for official purposes (NDA, n 3, s 125), committing an act of a fraudulent nature (NDA, n 3, para 117(f)), and conduct to the prejudice of good order and discipline (NDA, n 3, s 129).

8 https://www.canada.ca/en/department-national-defence/news/2020/03/director-of-military-prosecutions-withdraws-all-charges-against-chief-military-judge.html.

9 For a useful summary, see: Rory Fowler, “Judgments as ‘Remedial Measures’” (2 October 2020) online: Law Office of Rory G Fowler/Blog <https://roryfowlerlaw.com/judgments-as-remedial-measures-what-we-can-learn-from-recent-developments/>.

10 A military judge may be appointed by the Minister of National Defence or the Chief of the Defence Staff as a Board of Inquiry.  It requires the concurrence of the Chief Military Judge: Queen’s Regulations and Orders for the Canadian Forces, art 21.081 < https://www.canada.ca/en/department-national-defence/corporate/policies-standards/queens-regulations-orders/vol-1-administration/ch-21-summary-investigations-boards-inquiry.html#cha-021-081 >.  Since the enactment of Bill C-25 in 1998, no military judge has ever been appointed as a Board of Inquiry.

11 R v Edwards, 2021 CMAC 2, at para 69.

12 Report of the Third Independent Review Authority to the Minister of National Defence, Pursuant to subsection 273.601(1) of the National Defence Act, RSC 1985, c N-5, by The Honourable Morris J. Fish, C.C., Q.C., (Ottawa: Minister of National Defence, 2021). Available at: https://military-justice.ca/wp-content/uploads/2021/06/Third-Independent-Report-Fish.pdf [Fish Report].

13 “In accordance with section 165.25 of the NDA, the CMJ holds a rank that is not less than colonel. This rule does not apply to the other military judges. The four military judges currently appointed hold the rank of lieutenant-colonel or its naval equivalent of commander. Pursuant to sections 26.10 and 26.12 of the QR&O, military judges are not subject to personal reports or assessments if such documents are “to be used in whole or in part to determine the training, posting or rate of pay of the officer, or whether the officer is qualified to be promoted,” and their personnel evaluation report files cannot be placed before a promotion board.” Fish Report, ibid, page 13, footnote 47.

14 No. 57067/00, [2003] ECHR 1 [Grieves].

15 Ibid, at para 3. Also see Convention for the Protection of Human Rights and Fundamental Freedoms, 4 November 1950, 213 UNTS 221 at 223, Eur TS 5, at  Article 6, which covers the right to a fair trial: https://www.echr.coe.int/documents/d/echr/convention_ENG. This is akin to the Canadian Charter of Rights and Freedoms, supra note 4, at s. 11: https://laws-lois.justice.gc.ca/eng/const/page-12.html.

16 “[Th]e Judge Advocate in a naval court martial is a serving naval officer who, when not sitting in a court-martial, carries out regular naval duties. In contrast, the Judge Advocate in the air force is a civilian working full-time on the staff of the Judge Advocate General, himself a civilian.” Grieves, supra note 13, para 82.

17 Ibid, para 89.

18 Appellant’s Factum, Leading Seaman Edwards, et al v The King, Supreme Court of Canada File Nos. 40103 40065 40046 39822 39820, paras 99 to 101.

19 Part III of the National Defence Act, supra, n 3 [CSD].

20 Fish Report, supra note 12, paras 75 &76.

21 “In my respectful view, the requirement that military judges be officers pursuant to ss. 165.21 and 165.24(2) of the NDA does not fall afoul of s. 11(d).”; Edwards, n 6, para 15.

22 Edwards, n 6, para 12.

23 Ibid.

24 Noonan v Canada (Attorney General), 2023 FC 618.

25 R v Bain, [1992] 1 SCR 91.

26 R v Nur, 2015 SCC 15.

27 R v Bain, n 25, 103-4; R v Nur, ibid, para 95 (our emphasis).

28 R v Edwards, n 6, para 205.

29 Ibid, para 154.

30 Fish Report, n 12, para 58.

31 Edwards, n 6, para 11.

32 An Act to amend the National Defence Act and to make related and consequential amendments to other Acts, SC 2019, c 15. https://laws-lois.justice.gc.ca/eng/annualstatutes/2019_15/FullText.html.

33 NDA, n 3, s 2; Queen’s Regulations and Orders for the Canadian Forces [QR&O], Chapter 120.

34 Military Justice at the Unit Level Policy 2.0, vol. 2.0 (Ottawa: DND, 2024) https://www.canada.ca/en/department-national-defence/services/benefits-military/legal-services/military-justice-unit-level.html.

35 Other service infractions include: misconduct relating to drugs and alcohol; improper handling of weapons, explosive substances or ammunition; behaves in a manner that could reasonably undermine the authority of a superior officer; fails or while on duty is unfit to effectively perform their duties or carry out responsibilities; in relation to military service, furnishes false or misleading information or engages in deceitful conduct; without reasonable excuse, fails to attend or is tardy to their place of duty; dresses in a manner or adopts an appearance or demeanour that is inconsistent with Canadian Forces requirements. QR&O Chapter 120, available at: QR&O: Volume II - Division 3 - Service Infractions and Summary Hearings - Chapter 120 Service Infractions - Canada.ca.

36 Ibid, at 120.03(i).

37 Bill C-66, An Act to amend the National Defence Act and other Acts, 1^st Sess, 44^th Parl, 2024 [Bill C-66]. Bill C-66 is likely best-known for the legislative intent of removing the prosecution and investigation of offences described as “sexual offences” from the jurisdiction of the military justice system and placing such investigations and prosecutions within the purview of the civilian criminal justice system (with some exceptions, including where allegations arise outside Canada). The proposed legislation also includes multiple caveats, some of which appear to be highly discretionary, which would permit military police to involve themselves in such investigations, even where they arise in Canada.

38 Bill C-66, n 37, clause 11, adding NDA s 162.51.

39 Appellant’s Factum, n 18, paras 99 to 101.

40 R v Trépanier, 2008 CMAC 3. [Trépanier]

41 R v Leblanc, 2011 CMAC 2. [Leblanc]

42 Bill C-25, An Act to Amend the National Defence Act, SC 1998, c 35.

43 Bill C-60, An Act to amend the National Defence Act (court martial) and to make a consequential amendment to another Act, SC 2008, c 29: https://laws-lois.justice.gc.ca/PDF/2008_29.pdf.   Bill C-60 also eliminated Disciplinary Courts Martial and Special General Courts Martial as types of court martial.

44 Criminal Code, RSC 1985, c C-46, ss 536, 536.1, 561, or 561.1.

45 Bill C-16, Security of Tenure of Military Judges Act, SC 2011, c 22: https://laws-lois.justice.gc.ca/PDF/2011_22.pdf.

46 NDA, n 3, s 165.21(1) for regular force (full-time) military judges, and s 165.22(1) for reserve force (part-time) military judges. On this, Bill C-66 is proposing to widen the talent pool by removing the requirement for candidates to have been officers. We agree with this proposed amendment, and we would suggest it go further and not necessarily require candidates to be currently serving. In other words, as long as the candidate has 10 years of service, past or present, and at least 10 years’ membership to a Provincial Bar in good standing, we suggest they have all the necessary “ingredients” to be considered for a military judgeship. 

47 Valente v The Queen, [1985] 2 SCR 673, at para 13.

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About the Authors

Afton David is currently Senior Legal Advisor at Davie, as well as a reservist in the infantry with the Cameron Highlanders of Ottawa. Previously, she works as legal counsel of Thales Defence & Security. She is a retired Rugby player (uOttawa Gee-Gees, Ottawa Irish Rugby Club, Québec provincial team), and a graduate of the University of Ottawa’s National Program, with a degree in Civil Law (LL.L) and Common Law (J.D). She also has a bachelor’s degree in International Development and Globalization from the University of Ottawa. She was called to the Ontario Bar in 2018. She is currently taking a Master’s in Public Administration from the Royal Military College, with a keen focus on expanding her knowledge on the strategy surrounding Canada’s defence procurement system. Her main areas of interest are constitutional law, commercial law, and military justice.

Lieutenant-Colonel (retired) Rory Fowler retired from the Canadian Forces after having served for nearly 28 years, first as an infantry officer with the Princess Patricia’s Canadian Light Infantry, and subsequently as a Legal Officer with the Office of the Judge Advocate General. In the latter role, Rory served as a deployed legal advisor, educator, and worked extensively in the area of public and administrative law. He helped lead the development of the current curriculum used to train new legal officers and served as a mentor to many in the field of administrative law. Among his various positions, Rory served as the Deputy Judge Advocate for Canadian Forces Base Kingston, Director of Law – Compensation, Benefits, Pensions and Estates and Director of Law – Administrative Law.

Upon retirement, Rory worked with the Kingston-based firm of Cunningham, Swan, Carty, Little & Bonham LLP, offering his services to members of the Canadian military community across the country and overseas. In January 2019, Rory set up his own practice in order to continue to offer flexible legal representation to his clients.

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Canadian Global Affairs Institute

The Canadian Global Affairs Institute focuses on the entire range of Canada’s international relations in all its forms including trade investment and international capacity building. Successor to the Canadian Defence and Foreign Affairs Institute (CDFAI, which was established in 2001), the Institute works to inform Canadians about the importance of having a respected and influential voice in those parts of the globe where Canada has significant interests due to trade and investment, origins of Canada’s population, geographic security (and especially security of North America in conjunction with the United States), social development, or the peace and freedom of allied nations. The Institute aims to demonstrate to Canadians the importance of comprehensive foreign, defence and trade policies which both express our values and represent our interests.

The Institute was created to bridge the gap between what Canadians need to know about Canadian international activities and what they do know. Historically Canadians have tended to look abroad out of a search for markets because Canada depends heavily on foreign trade. In the modern post-Cold War world, however, global security and stability have become the bedrocks of global commerce and the free movement of people, goods and ideas across international boundaries. Canada has striven to open the world since the 1930s and was a driving factor behind the adoption of the main structures which underpin globalization such as the International Monetary Fund, the World Bank, the World Trade Organization and emerging free trade networks connecting dozens of international economies. The Canadian Global Affairs Institute recognizes Canada’s contribution to a globalized world and aims to inform Canadians about Canada’s role in that process and the connection between globalization and security.

In all its activities the Institute is a charitable, non-partisan, non-advocacy organization that provides a platform for a variety of viewpoints. It is supported financially by the contributions of individuals, foundations, and corporations. Conclusions or opinions expressed in Institute publications and programs are those of the author(s) and do not necessarily reflect the views of Institute staff, fellows, directors, advisors or any individuals or organizations that provide financial support to, or collaborate with, the Institute.

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