Military Judges Who Are Military Officers and Impose Sanctions on Military Members Are Found to Be Independent Adjudicators: A Summary of R v Edwards

by Victoria Wright, J.D. Candidate 2025

Staff Writer, Seven/Fifty

April 17, 2025

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Image of the Canadian military Hamilton LAV (Light Armoured Vehicle) III Monument in Ontario.

Canadian courts play a crucial role in constitutional law – interpreting the legitimacy and validity of statutes enacted by the federal Parliament or provincial legislatures. To put it simply, in constitutional litigation, courts are tasked with an overarching question: is the law constitutional or not? Courts are not tasked with assessing whether the statute is the most effective method or whether there are better alternatives, but rather, must focus on whether the existing statute before the court meets the requirements and standards prescribed by the Constitution.[1]

For the public at large, this can be a difficult concept to grapple with as the judiciary, especially the Supreme Court of Canada, is viewed as a powerful entity that can effect significant social and political change. I have often heard my friends and family ask, “If there is a better solution, why wouldn’t the Court impose it?” or “Why would the Court find this law to be constitutional if it is not an effective law?”

To the Supreme Court of Canada, the answer is simple – policy choices do not fall on the courts.[2] In Canada, there is a longstanding, unwritten constitutional principle that the judiciary is a non-partisan entity separate from the political (executive and legislative) branches of government. This principle is referred to as the “separation of powers.” Additionally, the Canadian constitutional principle of parliamentary sovereignty allows legislatures, including Parliament, to make and repeal laws within the confines of the Constitution. In other words, so long as a law is constitutional, the principle of parliamentary sovereignty allows Parliament to make political choices in lawmaking which are generally not subject to judicial review. Though the executive, legislative, and judicial branches interact and cannot be viewed as entirely “watertight” compartments, the need for the judiciary to abstain from political commentary and decision-making is well-established in Canadian law.

In R v Edwards, the Supreme Court reminded Canadians of these important distinctions and reiterated that evidence of different or better models for a law do not necessarily negate the constitutionality of an existing law.

BACKGROUND

Part III of the National Defence Act[3] (“NDA”) includes a Code of Service Discipline (“CSD”) for members of the Canadian Armed Forces.[4] The most serious infringements of the CSD are referred to as service offences, which involve both offences specific to military personnel and offences under the Criminal Code.[5] Individuals who are accused of service offences are tried before a court martial.[6] These are military courts with “the same powers, rights, and privileges as a superior court of criminal jurisdiction,” such as the Court of King’s Bench in Alberta.[7] As outlined in section 165.21 of the NDA, all court martial judges (also referred to as “military judges”) must be both a lawyer and a military officer for at least ten years prior to being appointed.[8]

ISSUES

After Mr. Edwards and eight other members of the Canadian Armed Forces were charged with different service offences, they challenged the constitutionality of the NDA – arguing that the requirement for court martial judges to be members of the military is contrary to the need for independence and impartiality of an arbitrator in a judicial proceeding.[9] Thus, the Supreme Court was tasked with determining whether the requirement for military judges to have military status offends individuals’ right to a fair trial as guaranteed by section 11(d) of the Canadian Charter of Rights and Freedoms (“Charter”).[10]

MAJORITY DECISION

Though the military and civilian justice systems are separate and distinct, the Supreme Court confirmed that both systems must comply with all sections of the Charter – including section 11(d).[11] Section 11(d) of the Charter protects the right of persons charged with an offence “to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal.”[12] However, even though Charter compliance is compulsory, there is no requirement that the military and civilian justice systems “be identical in every respect.”[13] Allowing military courts to have distinct procedures, guidelines, and sanctions is crucial to fostering discipline and efficiency in the military (which is the purpose of having a separate military justice system in Canada).[14]

Though the appellants argued that the requirement for military judges to be military officers was unconstitutional as the tribunal is not independent, Justice Kasirer, writing for the majority of the Supreme Court, found that military judges’ status as officers does not violate section 11(d) of the Charter.[15]

To begin their analysis, the majority reviewed the proper interpretation of the leading case regarding the judicial independence of the military courts – R v Généreux.[16] The appellants asserted that Généreux supports the argument that “military judges who are a part of the chain of command cannot be truly independent” and that there is a “necessary association between the military hierarchy and military tribunals.”[17] To support this position, the appellants argued that a system whereby civilian judges adjudicate military matters (rather than military officers) – as is done in the United Kingdom and Australia – is an example of true or absolute independence.[18] The majority rejected this interpretation.

Instead, the majority held that the potential that “a reasonable and informed person might well consider that the military status of a military judge would affect the judge’s approach” does not automatically amount to a section 11(d) violation.[19] This is because “ideal” or “absolute” judicial independence is not the required constitutional standard.[20] Instead, the test that should be considered is “whether a reasonable person, familiar with the [C]onstitution and structure of the General Court Martial, would perceive that tribunal as independent.”[21] Three factors outlined in Valente v The Queen – security of tenure, financial security, and administrative independence – are all evidence of the independence of a tribunal.[22] Though the structure of the 1988 court martial considered by the Supreme Court in Généreux did not comply with section 11(d) of the Charter, the Supreme Court found that a “parallel system of military tribunals, staffed by members of the military who are aware of and sensitive to military concerns, is not by its very nature, inconsistent with [section] 11(d).”[23] Rather, as noted by the majority, “Généreux confirms that military judges enjoy sufficient independence” when the three Valente factors are satisfied, and there is no pressing policy reason to abandon this settled law.[24]

Because the NDA has been amended numerous times since Généreux, the Supreme Court recognized the need for a new assessment of the constitutionality and compliance of the NDA with section 11(d) of the Charter.[25] Ultimately, the majority found that there is no reasonable apprehension of bias regarding the tribunal’s independence as the NDA prescribes several safeguards of security of tenure, financial security, and administrative independence. [26] 

Security of tenure was evident as “military judges cannot be subject to discipline for their work as judges” and could only be removed for cause by the Governor in Council.[27] The appellants did not dispute financial security; however, the majority nevertheless found that this factor was present, as military judges had a fixed system of financial compensation. Lastly, military judges were found to have administrative independence as they are required, like all judges, to swear an oath of office which involves a solemn promise to “impartially, honestly and faithfully, and to the best of [their] skill and knowledge, execute the powers and trusts reposed in [them] as a military judge.”[28] Though the majority was cognizant that an oath of office “is not a guarantee of actual impartiality, nor is it a fail-proof protection against perceived bias,” taking oaths is “a serious matter” and the reasonable and informed person would expect military judges to comply with their oath of office.[29]

The majority was clear that even though military judges do have a “dual allegiance,” the safeguards prescribed by the NDA separate the judicial and non-judicial duties, such that “military judges can lay aside their duties and allegiances as officers when they exercise their judicial duties.”[30] Therefore, the appeal was dismissed as the military judges were found to be independent and not to infringe the appellants’ section 11(d) rights.[31]

DISSENT

Justice Karakatsanis in her dissent held that the appeal should be allowed and the legislative scheme under the NDA should be of no force or effect as there are “insufficient safeguards in place to alleviate the potential risk of interference by the military chain of command,” particularly due to the hierarchical nature of the military and risks of discipline from superiors that military judges face.[32] According to Justice Karakatsanis, military judges could not be deemed independent under the Charter as “a reasonable and informed person facing a court martial would apprehend that the military judge could be unduly influenced by a loyalty to rank and by the position or policies of the military hierarchy, to the detriment of their individual rights.”[33]

CONCLUSION

All judges, regardless of whether they are involved in the military or civil justice systems, face differing societal pressures and have biases – conscious or unconscious. However, as stated by the majority of the Supreme Court in the Edwards decision, the constitutional standard of judicial independence under section 11(d) of the Charter is not perfection and does not require “absolute” independence.[34] Instead, courts must look at the statutory safeguards which limit and prevent pressures or biases from impacting judicial decisions. As previously mentioned, the fulfillment of requirements for security of tenure, financial security, and administrative independence provides strong evidence of judicial independence such that a reasonable and informed person would not have a reasonable apprehension of bias regarding military judges’ independence. I am of the opinion that this standard is rational and that the majority appropriately applied the Généreux-Valente test in Edwards. Though evidence that other systems (like those in Australia or the United Kingdom) might be more effective or practical, I strongly agree with the majority’s assertion that “the suitability of various policy options, within the bounds of the Constitution, is a matter of legislative choice.”[35] 

[1] R v Edwards, 2024 SCC 15 at para 14 [Edwards].

[2] Ibid.

[3] RSC 1985, c N-5.

[4] Edwards, supra note 1 at para 16.

[5] Ibid at para 17.

[6] Ibid.

[7] Ibid.

[8] Ibid at para 62.

[9] Ibid at paras 16, 47.

[10] Ibid at paras 47-53.

[11] Ibid at paras 57-58 (citing other cases).

[12] Canadian Charter of Rights and Freedoms, s 11(d), Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11 [Charter].

[13] Edwards, supra note 1 at paras 57-58. 

[14] Ibid at para 59.

[15] Ibid at para 53.

[16] R v Généreux, [1992] 1 SCR 259, 88 DLR (4th) [Généreux].

[17] Edwards, supra note 1 at para 64.

[18] Ibid at para 6.

[19] Ibid at para 68 [emphasis added].

[20] Ibid.

[21] Généreux, supra note 16 at 261.

[22] Généreux, supra note 16, citing Valente v The Queen, [1985] 2 SCR 673, 1985 CanLII 25 (SCC).

[23] Généreux, supra note 16 at 261.

[24] Edwards, supra note 1 at paras 66, 81.

[25] Ibid at para 83.

[26] Ibid at para 86.

[27] Ibid at paras 12, 101.

[28] Ibid at para 62.

[29] Ibid at para 129.

[30] Ibid at para 128.

[31] Ibid at para 149.

[32] Ibid at para 153.

[33] Ibid.

[34] Ibid at para 68.

[35] Ibid at para 75.