Appeals Watch: Judicial Independence and the Military Chain of Command – SCC grants leave in R v Brown.
On February 2, 2023, the Supreme Court of Canada (“SCC”/“Court”) granted leave for an appeal from the Court Martial Appeal Court of Canada (“CMAC”) in the case of R v Brown  CMAC 2. The case concerns a seldom traversed area of appellate jurisprudence at the SCC, touching on the appropriate relationship between the military courts and the executive-empowered Canadian Armed Forces (“CAF”). The following is a summary of the facts, issues, and an analysis of the CMAC’s decision.
Lieutenant Brown faces two charges pursuant to section 130 of the National Defence Act [NDA], for sexual assault and forcible confinement, under section 271 and subsection 279(2) of the Criminal Code. These charges were laid after an investigation of an incident on October 20, 2018, on board one of His Majesty’s Canadian ships in Reykjavik, Iceland.
On November 20, 2020, Lieutenant Brown filed an application seeking a stay of proceeding (“The Application”) concerning the charges laid against him as a remedy for an alleged violation of his right to be tried by an independent and impartial tribunal under s.11(d) of the Canadian Charter of Rights and Freedoms (“Charter”). The application also sought a declaration from the Standing Court Martial of Canada (“CM”) that only Parliament can concoct a regime that can resolve the issues raised in The Application. Specifically, to remedy the alleged lack of judicial independence of all military judges that resulted from an amendment to the Code of Service Discipline (“CSD”) on October 2, 2019 (“The Order”). The Order permits military judges to be charged and dealt with, while sitting on the bench, under the same disciplinary regime applicable to non-judicial military officers.
The issue of judicial independence in military courts after the CSD’s October 2, 2019 amendment has been the subject of multiple decisions by both the CM and CMAC. In R v Pett  CM 4002 [Pett], the CM held that The Order did violate judicial independence. The CM expressed its confidence that the Chief of Defence Staff (“CDS”), who serves as the professional head of the CAF, would give executive effect to the judicial declaration made in Pett. It was not until September 15, 2020, that the CDS issued an order suspending The Order (“Second Order”) pending the final determination of the appeals in cases that arose at the CM between The Order and the Second Order.
In the aftermath of the Second Order, Sukstorf MJ ruled in R v MacPherson  CM 2012 that the Second Order was sufficient to alleviate the concerns of judicial independence raised in Pett after The Order was made. However, D’Auteuil M.J. in R v Christmas  CM 3009 made the opposite ruling, finding the Second Order insufficient and ordering a stay of proceedings. On November 18, 2020, the CDS finally took action, re-promulgating the regulatory order CFOO 3763 without the provision relied upon to pass The Order (paragraph 9). Again, the CM came to differing conclusions about whether this re-promulgation sufficiently alleviated the Court’s anxieties regarding the CDS’ ability to breach the principle of judicial independence by subjecting judges to the regular officer disciplinary process. In R v Cloutier  CM 4013, Pelletier M.J. made clear that the only way in which the issue of judicial independence could be resolved in the aftermath of CFOO 3763 is an acknowledgment by the CDS of the binding nature of the declaration of law made in Pett. Specifically, that military judges cannot be charged and dealt with by members of the Executive under the disciplinary regime applicable to regular military officers.
In light of this twisting and turning path of decisions regarding the concerns raised by The Order, Pelletier M.J. in Brown C.A.I. (Lieutenant Navy)), R v  CM 4003 [Brown CAI] decided to accept a motion to stay the martial proceedings until the Charter challenge had been resolved in appeals.
Issues on Appeal
In appealing the decision to stay the proceedings, the CMAC was faced with issues that were identical to the ones Pelletier M.J. was faced with in his decision at the CM:
First, whether the continuation of martial proceedings involving the Respondent Lieutenant Brown (“Applicant at trial”) breaches his s.11 (d) Charter right to an independent and impartial tribunal.
Second, should the Court answer the first question in the affirmative, what remedy would the Respondent be entitled to?
Chief Justice Bell of the CMAC allowed the appeal, lifted the stay on proceedings, and ordered the trial of the Respondent to proceed, relying on the reasons provided in R v Edwards; R v Crépeau; R v Fontaine; R v Iredale  CMAC 2 [Edwards et al.], and R v Proulx; R v Cloutier  CMAC 3 [Proulx et al.].
In Edwards et al., the Court disagreed with the CM’s finding that a judicial official cannot also be subject to the CSD – an executively authored and administered regulatory regime designed to govern the conduct of military officers. The CMAC provided two arguments in support of this position: [A] it is a constitutional convention at both the Federal and Provincial levels for judges to concurrently perform executive and judicial functions without breaching its institutional independence; [B] on the facts of the case, the CSD statutory regime’s application to military judges meets the test for institutional independence set out in Reference re Remuneration of Judges of the Provincial Court of Prince Edward Island  3 SCC 3 [Reference re Remuneration].
A) Constitutional Convention
The CMAC’s first argument relies on the strength of the numerous examples it provided to illustrate that judges can, and frequently do, simultaneously perform judicial and executive functions without a breach of the fundamental constitutional principle of judicial independence. Chief Justice Bell explains that “sitting civilian judges are often asked to chair or participate in commissions of inquiry at both the federal and provincial levels” (para 69). These positions, the CMAC holds, feature executive branch functions. The CMAC then turned toward its second argument, relying on the test for institutional independence set out by the SCC.
B) Meeting the Test for Institutional Independence
In Reference re Remuneration, the SCC held that the assessment for whether a court and its judges possess institutional independence and impartiality is done on a mixed objective-subjective standard. In R. v Lippé  2 SCR 114 the SCC built on this holding, adding that institutional independence of the judiciary cannot be absolute, and this should be considered when assessing its institutional independence. The CMAC, working off the foundation established by the SCC, provided three principal factors to consider when assessing institutional independence. This includes [i] the role and functions being performed by the court-martial, [ii] the principles which underlie the military justice system, and [iii] any other factors which bear on the institutional independence and impartiality of the judges on military courts (para 74).
i) Role and Functions of Military Judges
In the first branch of the framework, the CMAC draws a parallel between the judiciary in the civilian courts and the judiciary in the military courts, finding them both subject to the fundamental constitutional principle of the rule of law. In both instances, the judiciary is subordinate to the Constitution. In practice, this means — for example — that the military judiciary can be, where appropriate, subject to search warrants issued by the executive branch, arrested by members of a Provincial or Federal police force, and have their actions reviewed by a prosecutor provided with a constitutional mandate to assess the prospect of conviction and consider the interests of the public.
ii) Principles Underlying the Military Judges
In the second branch of the framework, the CMAC assesses the disciplinary regime for military judges, as it exists, to gauge whether Parliament intended the CSD to fit neatly into the greater mosaic of rules and regulations that were in place before CFO 3763. The CMAC concludes that the regime, as a matter of principle, treats military judges as equivalent to military officers insofar as it relates to the application of disciplinary measures.
The CMAC found that the Military Judges Inquiry Committee (“MJIC”), established under s.165.31 of the NDA, contemplates conviction under the CSD. The CMAC rely specifically on s.165.31 (7)(b) of the NDA, which requires military judges to meet the same physical fitness standards as all other military officers, evincing Parliament’s intention to hold military judges to the same standards – physical or otherwise – as all other officers. The CMAC also referred to the limited powers of the MJIC, as delineated in Girouard v Canada (Attorney General),  FC 1282, which includes inter alia an inability to assign civil or criminal liability to military judges, as further evidence that the CSD is the proper regime under which military judges would be subject to disciplinary measures of a civil or criminal nature.
iii) Any Other Factors
In the final branch of the framework, the CMAC outlined several additional factors which act as a bulwark against executive or legislative encroachment on judicial independence. These secondary factors include the oath of office, statutory protections on the tenure of judges and their remuneration, the conventions governing the exercise of prosecutorial discretion, and the extent to which the Westminster model of constitutional democracy permits members of the judicial branch to perform executive functions.
Relying on both arguments, the CMAC concluded that CFO 3763 did not breach s. 11(d) of the Charter, and thus did not need to dispose of the second issue on appeal.
This case features quite a few moving pieces, including a voluminous trial record that ebbed and flowed based on a variety of cases at the CM that were heard while the CDS and military courts were in a dialogue regarding the constitutional propriety of The Order. Leaving behind these more technical procedural issues, at its core, the case concerns whether military judges, by being treated as military officers, lose the institutional independence and impartiality they are Charter bound to retain when hearing cases. The CMAC’s decision was the correct one for two main reasons.
First, the CMAC laid out a comprehensive set of existing institutional mechanisms under the ambit of the military justice system to assuage many of the “edge-case” concerns flagged under The Application. This included the potential for prosecutorial abuse, intervention into court martial proceedings by higher links on the chain of command, or Parliamentary influence on the disposition of cases.
Second, and more importantly, the CMAC draws multiple parallels between the military and civilian courts to illustrate that the judiciary is not hermetically sealed off from the legislative and executive branches. Providing a rich corpus of examples and principles of law established by the SCC regarding the proper relationship between the courts, Parliament, and Prime Minister, the CMAC made clear that the judiciary is in constant dialogue with other branches of government in executing its functions. This dialogue is done by design and is unavoidable given Canada’s constitutional architecture, including, but not limited to, constitutional norms governing prosecutorial conduct, powers afforded to the Executive to hold judges legally accountable, and Parliament’s power to pass statutory laws that govern judicial appointments, compensation, qualifications, training, and discipline.
Relying on both these arguments in conjunction, the CMAC makes a strong legal and policy-based case for why judges, military or otherwise, are not insulated from interfacing with the legislative and executive branches and, therefore, bringing them under the CSD is in full harmony with the broader constitutional infrastructure in place. The SCC, in acknowledging CMAC’s unique position in the Canadian justice system and the panel’s better grasp of the minutiae of the military’s command structure and judicial norms, will likely rule in agreement with the CMAC, while taking the opportunity to provide greater clarity and definition to these seldom canvassed principles.