CMAC Rules Military Judges Are Not Independent or Impartial: R v Christmas
On February 2, 2023, the Supreme Court of Canada (“SCC”) granted leave to appeal from the Court Martial Appeal Court of Canada (“CMAC”) in the case of R v Christmas, 2020 CM 3009 [Christmas]. In this case, the CMAC considers whether a military officer’s s. 11(d) Charter right “to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal” was infringed in the context of court martial disciplinary hearings. This post outlines the relevant facts of the case, the issue, and CMAC’s analysis for their disposition.
Facts of the Case
In 2019, Corporal Christmas was charged with the following offences (Christmas, para 1): (i) offence punishable under section 130 of the National Defence Act, RSC 1985, c N-5 (“NDA”) for sexual assault contrary to s.271 of the Criminal Code, RSC 1985, c C-46 (“CC”); (ii) one offence punishable under s.93 of the NDA for having behaved in a disgraceful manner for having touched the genitals of a person without his consent; and (iii) one offence punishable under s.9 of the NDA for drunkenness.
Corporal Christmas’ court martial disciplinary hearing was scheduled on November 16, 2020. Before her hearing, she submitted an application claiming that the presiding judge in the disciplinary hearing will be acting in a dual capacity both as a military officer and military judge. This is because military judges are required to maintain the high officer ranking. Corporal Christmas argued this dual capacity hindered the judge’s ability to remain independent and impartial in their judiciary role because there was some degree of influence from their executive branch role in the Canadian Armed Forces (“CAF”). Thus, she claimed this infringed on her right under s. 11(d) of the Charter and she sought for a stay of proceedings order against the disciplinary hearing pursuant to s. 24(1) of the Charter.
The issue before the CMAC, and soon before the SCC, was whether a judge in a court martial disciplinary hearing is independent and impartial for the purpose of s. 11(d) of the Charter.
Though the SCC has not provided guidance on the exact issue in this case, the CMAC has rendered decisions on numerous cases discussing this exact issue or a variation of this issue over the years.
The SCC in R v Genereux  1 SCR 259 confirms that since the Charter allows a separate system of military law and military tribunals to exist, this distinct system must also comply with s. 11(d) of the Charter (Christmas, para 48). In other words, if a military officer breached the Code of Service Discipline, they still have the right to be tried in a military tribunal that is independent and impartial (Christmas, para 48). The Code of Service Discipline is similar to a code of conduct for military personnel, and may include committing an offence under the CC or NDA.
R v MacPherson and Chauhan and J.L., 2020 CM 2012 (“MacPherson”) is analogous to Christmas because one of the issues in the former case is similar to the latter. In MacPherson, Military Judge Sukstorf heard three issues related to the right of an accused to a hearing by an independent and impartial tribunal per s.11(d) of the Charter (Christmas, para 29). Military Judge Sukstorf had the following two findings: (i) the Office of the Chief Military Judge (to which military judges belong) does not lack administrative independence from the CAF, and (ii) military judges who belong to the Office of Chief Military Judge have institutional independence (Christmas, para 29). Hence, Military Judge Sukstork found there was no infringement of the accused’s right to an independent and impartial tribunal under s.11(d) of the Charter.
Though in Christmas, Military Judge Auteuil recognizes MacPherson is similar to the case before him, he arrives at a different conclusion on the application before him.
First, Military Judge Auteuil argues that the principle of judicial comity should be applied between military judges presiding in court martial hearings (Christmas, para 78). This means that the military judges recognize and enforce each other’s legal decisions as a matter of courtesy, or based on the need for reciprocity, but not necessarily as a matter of law. While this notion is desirable to promote certainty and consistency in the law, it is not applied in the absolute. Hence, Military Judge Auteuil is not necessarily bound by Military Judge Sukstorf’s decision in MacPherson, given he can have another legal basis for his judgment.
Second, the factual basis of Christmas is also similar to six previous cases decided by other military judges. In those cases, it was noted that in dealing with a service offence, the Code of Service Discipline regime continued to capture military judges in their role as officers, no matter how it was achieved by the executive (Christmas, para 82). Hence, Military Judge Auteuil concludes his judgment in the same manner as those previous cases. He notes that a reasonable person, fully informed of all the circumstances, would consider that military judges do not enjoy the necessary guarantees of judicial impartiality (Christmas, para 82). Hence, the right of Corporal Christmas under s.11(b) of the Charter was breached.
Under the s.1 Charter analysis, Military Judge Auteuil notes that an infringement to s.11(d) can only be justified in dire and exceptional financial circumstances. Since the prosecution did not bring evidence under this portion of the test, this violation is also not justified under s.1 of the Charter.
Further, Military Judge Auteuil writes,
Judicial independence is a matter of trust…it serves important societal goals such as the maintenance of public confidence in the impartiality of the judiciary and the rule of law (para 89).
In determining the appropriate remedy, he noted a stay of proceedings would only be warranted in the clearest of cases. In this case, Military Judge Auteuil found the infringement of Corporal Christmas’ s.11(d) Charter right will continue to be aggravated, manifested, and perpetuated even if the matter is reconvened because the dual capacity of military judges remains intact (Christmas, para 92). Hence, there is no appropriate alternative to redress this matter for Corporal Christmas.
Though there is significant public interest in having Corporal Christmas (a CAF member) be tried for the sexual assault charge against her and providing the complainant with a forum to have their grievances heard, there is also severity of the interference with judicial independence. In other words, the interest of Corporal Christmas to be heard by an independent and impartial tribunal outweighs the society’s interest in proceeding with the case on its merits (Christmas, para 94). Thus, an order for stay of proceedings is justified in this case.
This is not an easy case to read and understand for the layperson. The substantial usage of legal jargon and acronyms in this decision can make one lose sight of the bigger picture. Judicial independence and impartiality is a core and protected aspect of the judiciary. I believe the protection of this value should be represented in military courts as well.
In my opinion, this case will turn on what the SCC perceives the structure of military courts is and the role of military judges that serve within them. Regardless of the SCC’s disposition, I believe this case will shed light and provide guidance on a contentious issue for the military courts and CMAC.