T-1990-88
Michel Généreux (Applicant)
v.
General Court Martial and its Members convened
on September 29, 1988 by Lt. Gen. J. A. Fox to sit
on October 18, 1988 at Canadian Forces Base
Valcartier, Courcelette, Quebec, Minister of Na
tional Defence, and Lt. Gen. J. A. Fox
(Respondents)
and
Attorney General of Canada (Mis -en-cause)
INDEXED AS: GÉNÉREUX V. GENERAL COURT MARTIAL
Trial Division, Dubé J.—Québec, December 19,
1988; Ottawa, January 16, 1989.
Constitutional law — Charter of Rights — Criminal process
— Forces member charged with possession of narcotics for
purpose of trafficking — Court martial convened — Prohibi
tion sought on basis Charter, s. I I (d) right to be tried by
independent tribunal infringed — Application of criteria in
Valente — Tribunal independent — Once convening order
issued, tenure of members secure relative to task — As
salaries tied to rates fixed by Treasury Board, and no addi
tional remuneration for sitting on court martial, members
financially secure — Regulations and Orders containing provi
sions enabling court martial to maintain complete institutional
independence in administrative matters.
Constitutional law — Charter of Rights — Equality rights
— Member of armed forces charged with possession of narcot
ics for purpose of trafficking — Court martial convened —
Whether Charter, s. 15 contravened, as civilian charged with
same offence entitled to civil trial — Purpose of s. 15 to ensure
trial before impartial and independent tribunal — Whether
court martial or civil court irrelevant.
Constitutional law — Charter of Rights — Limitation
clause — Whether creation of court martial justified —
Considered for completeness though unnecessary as Charter
not infringed — Sufficiently important objective — Means
reasonable.
Judicial review — Prerogative writs — Prohibition
Armed forces member charged with narcotics offence seeking
prohibition against court martial on ground Charter rights
breached — Application not premature — Although argument
could have been brought before court martial, Court exercising
discretion to hear application on merits.
Armed forces — General Court Martial — Whether
independent and impartial tribunal under Charter ss. 7, 11(d)
No Charter infringement — Also justified under Charter
s. 1.
This was an application for a writ of prohibition against a
General Court Martial in that the equality rights of the appli
cant were infringed since it was not an independent and impar
tial tribunal within Charter section 7 and paragraph 11(d). The
applicant was charged with possession of a narcotic for the
purpose of trafficking. A General Court Martial was convened.
The issues were (1) whether the application was premature,
since the court martial's lack of jurisdiction was not apparent
on the face of the pleadings; (2) whether the court martial was
independent; (3) whether the right to equality was threatened,
in that civilians charged with the same offence would be
entitled to preliminary inquiry, disclosure of evidence, trial by
jury, and appeal of the sentence; and (4) whether creation of
the court martial was justified under Charter, section 1.
Held, the application should be dismissed.
Although the applicant could have challenged the court
martial's constitutionality before the court martial, instead of
bringing this application in the Federal Court, that would not
have dealt with the question more effectively or appropriately.
It may be incongruous to expect an applicant to complain to the
tribunal itself about its independence.
As to the independence of the court martial, it was necessary
to determine whether it could reasonably be perceived as
enjoying (1) security of tenure (2) financial security and (3)
institutional independence, the three objective conditions of
independence set out in Valente v. The Queen et al. The
regulatory provision providing that any court martial can only
be dissolved when it has terminated its proceedings (except in
the event of death or disability of one of its members) was
sufficient guarantee of tenure to comply with the first condition
of Valente. The second condition was met, as salaries of officers
must be in keeping with rates specified by Treasury Board and
there is no additional remuneration for sitting on a court
martial. Finally, institutional independence has been described
as judicial control over matters such as assignment of judges
and sittings. The Queen's Regulations and Orders contain
several provisions enabling a court martial to maintain com
plete institutional independence in administrative matters.
The purpose of section 15 of the Charter is to ensure that a
person will be tried before an impartial and independent tri
bunal. Whether it is a civil court or a court martial does not
prevent the applicant from enjoying the equal status mentioned
in section 15. Members of the armed forces are subject to
certain privileges and duties under the National Defence Act,
including being tried by court martial. The National Defence
Act was enacted under the federal government's exclusive
legislative authority over the military, which necessarily
includes authority to provide for the establishment of courts to
enforce such legislation.
The Court not having been persuaded that court martials
infringe the Charter, it was not strictly necessary to have
reference to Charter section 1. For the sake of completeness,
however, the criteria set out in Oakes were applied to the facts
of this case. (1) It was well established by case law that the
court martial system is a sufficiently important objective to
warrant overriding a right; and (2) the means were reasonable.
The latter finding was based on the application of a standard of
proportionality containing three components: (a) the creation of
courts martial is rationally connected to the objective of main
taining discipline, which is essential to preparedness and morale
so that the armed forces could execute its mission; (b) the
means impairs the individual's rights or freedom as little as
possible, in that soldiers are given the same protection, so far as
possible, as they would enjoy in civilian courts; (c) the measure
is justified by the intended purposes-any harmful conse
quences are limited since the applicant enjoys the same protec
tion as he would in the civil courts, and the purpose is of utmost
importance since it is connected with discipline within the
armed forces, which are necessary to keep the peace and ensure
the survival of a democratic society.
STATUTES AND REGULATIONS JUDICIALLY
CONSIDERED
Canadian Bill of Rights, R.S.C. 1970, Appendix Ill, s.
1(b).
Canadian Charter of Rights and Freedoms, being Part I
of the Constitution Act, 1982, Schedule B, Canada Act
/982, 1982, c. 11 (U.K.), ss. 1, 7, 11(d), 15.
Canadian Forces Superannuation Act, R.S.C. 1970, c.
C-9.
Constitution Act, /867, 30 & 31 Vict., c. 3 (U.K.)
[R.S.C. 1970, Appendix II, No. 5] (as am. by Canada
Act 1982, 1982, c. 11 (U.K.), Schedule to the Consti
tution Act, 1982, Item 1), s. 91(7).
National Defence Act, R.S.C. 1970, c. N-4, ss. 35 (as am.
by S.C. 1985, c. 26, Sch. I, s. 12), 120 (as am. by S.C.
1972, c. 13, s. 73; 1985, c. 19, s. 187, item 5), 129 (as
am. by S.C. 1985, c. 26, s. 52), 143, 147 (as am. idem,
s. 59).
CASES JUDICIALLY CONSIDERED
APPLIED:
Valente v. The Queen et al., [1985] 2 S.C.R. 673;
Manitoba (Attorney General) v. Metropolitan Stores
Ltd., [1987] 1 S.C.R. 110; Schick v. The Queen (1987),
30 C.R.R. 79 (C.M.A.C.); The Queen v. Oakes, [1986] 1
S.C.R. 103; Rutherford v. R. (1983), 26 C.R.R. 225
(C.M.A.C.).
CONSIDERED:
MacKay v. The Queen, [1980] 2 S.C.R. 370; Harelkin v.
University of Regina, [1979] 2 S.C.R. 561; Tétreault-
Gadoury v. Canada (Canada Employment and Immigra
tion Commission), [1989] 2 F.C. 245 (C.A.); Mills v.
The Queen, [1986] 1 S.C.R. 863; R. v. Rahey, [1987] 1
S.C.R. 588; R. v. Gamble, [1988] 2 S.C.R. 595; Commit
tee for Justice and Liberty et al. v. National Energy
Board et al., [I978] 1 S.C.R. 369.
COUNSEL:
Jean Asselin and Guy Cournoyer for appli
cant.
No one appearing for respondents.
Jean-Marc Aubry, Q.C. and Richard Mor-
neau for Attorney General.
SOLICITORS:
Goudreau & St-Cyr, Québec, for applicant.
No entry in record for respondents.
Deputy Attorney General of Canada for
mis -en-cause.
The following is the English version of the
reasons for judgment rendered by
DunE J.: The applicant seeks a writ of prohibi
tion against the General Court Martial and its
members, convened on September 29, 1988 to try
the applicant, on the ground that that Court is not
an independent and impartial tribunal within the
meaning of section 7 and paragraph 11(d) of the
Canadian Charter of Rights and Freedoms [being
Part I of the Constitution Act, 1982, Schedule B,
Canada Act 1982, 1982, c. 11 (U.K.)] and
infringes the equality rights of the applicant as
guaranteed by section 15 of the said Charter.
The facts are not in dispute. The applicant was
charged on September 20, 1988 with three counts
of possession of a narcotic for the purpose of
trafficking, and also desertion. The applicant
appeared on September 23, 1988 before Lt.-Col.
Caron, Royal 22nd Regiment, at Canadian Forces
Base Valcartier. On the same day Brig.-Gen. Addy
of the Base asked Lt.-Gen. Fox, Commander of
the Mobile Command, to convene a court martial,
which the latter did on September 26, 1988. The
convening order mentions the names of the officers
to sit on the Court, a colonel as presiding officer,
four officers as members and two others as
alternates.
At the start of the hearing of this application
counsel for the applicant made it clear that he was
not questioning the impartiality of the members of
the court martial, nor was he asking the Court to
find the enabling Act, the National Defence Act'
("the Act"), to be invalid—it would have been
necessary to proceed by an action to obtain such a
finding—but was asking the Court to issue a writ
prohibiting the court martial from sitting as its
creation infringed the rights of the applicant.
In section 143 et seq. the Act provides that the
Minister and such other authorities as he may
prescribe may convene General or Disciplinary
Courts Martial and appoint officers of the Canadi-
an Armed Forces to them. A General Court Mar-
tial—and this is such a court martial—has juris
diction over military offences and consists of at
least five officers. The president must hold at least
the rank of colonel or a rank at least equal to that
of the accused. Section 147 [as am. by S.C. 1985,
c. 26, s. 59] lists persons who may not sit, includ
ing the officer convening the court martial, wit
nesses, the accused's commanding officer and any
person who participated in an investigation into
the substance of the charge.
1. Whether application premature
The Attorney General of Canada submits that
this application is premature, since the alleged
lack of jurisdiction of the court martial is not
apparent on the face of the pleadings and in view
of the comments of the Supreme Court of Canada
in MacKay v. The Queen' and Valente v. The
Queen et al. 3 He submitted that where it is not
apparent that the court lacks jurisdiction, issuing a
writ of prohibition is a matter of discretion and it
should not be granted unless other available reme
dies have been exhausted. He alleged that the
obligation to exhaust internal proceedings before
applying to an external body is confirmed by the
following observations of Beetz J. in Harelkin v.
University of Regina 4 (at page 593):
' R.S.C. 1970, c. N-4.
2 [1980] 2 S.C.R. 370.
3 [1985] 2 S.C.R. 673.
4 [1979] 2 S.C.R. 56].
The courts should not use their discretion to promote delay
and expenditure unless there is no other way to protect a right.
In other words, in the Attorney General's sub
mission, the applicant should have come before the
court martial and challenged its constitutionality
rather than submitting this application to the Fed
eral Court. In my view, he could have done so. The
leading case on this point is the judgment of the
Federal Court of Appeal in Tétreault-Gadoury v.
Canada (Canada Employment and Immigration
Commission), 5 which held that a tribunal which
has jurisdiction under its enabling Act to rule on a
question of law "does not lose that jurisdiction
because the question of law to be decided involves
considerations which call for applying a provision
of the Charter" [at page 256].
On the other hand, I strongly doubt that this
procedure would have dealt with the question more
effectively or appropriately than the means used
by the applicant. Moreover, MacKay and Harel-
kin cited by the Attorney General antedate the
Charter. I am more inclined, following more
recent decisions, to exercise my discretion and
consider a priori whether a writ of prohibition
should issue before the court martial is held.
It must be noted that the applicant is challeng
ing the independence of the court martial and
relying on the provisions of paragraph 11(d) of the
Charter by which any accused has the right to be
tried by an independent and impartial tribunal.
Lamer J. of the Supreme Court of Canada said the
following in Mills v. The Queen 6 about an accused
who complained of the delay in his trial (at page
887):
One can readily understand that it appears incongruous to
tell an accused that he or she must wait until trial to complain
about a delay in coming to trial (s. 11(b)). The incongruity
would be all the more pronounced were the accused to be
directed to the court, whose process was alleged to be biased
under s. 1 1 (d) ... .
The same Judge returned to the point in R. v.
Rahey, 7 again concerning a reasonable time period
(at pages 603-604):
s [ 1989] 2 F.C. 245.
6 [1986] I S.C.R. 863.
7 [1987] 1 S.C.R. 588.
The clearest, though not necessarily the only, instances where
there is a need for the exercise of such jurisdiction are those
where there is as yet no trial court within reach and the
timeliness of the remedy or the need to prevent a continuing
violation of rights is shown, and those where it is the process
below itself which is alleged to be in violation of the Charter's
guarantees.
The two preceding judgments were recently fol
lowed by the Supreme Court of Canada in R. v.
Gamble. Wilson J. said the following regarding
the habeas corpus remedy and the attitude of
respondent (at page 635):
Although the respondent is quite right in pointing out that the
Charter does not create a "parallel system for the administra
tion of Charter rights over and above the machinery already
available for the administration of justice" and that the court's
new responsibilities under s. 24(1) can "be fitted into the
existing scheme of Canadian legal procedure" (Mills, at pp.
971 and 953), he does no credit to that existing system by
attempting to place procedural roadblocks in the way of some
one like the appellant who is seeking to vindicate one of the
citizens' most fundamental rights in the traditional and appro
priate forum.
On the presumption of statutory constitutional
ity and hence the argument that the court mar-
tial's lack of jurisdiction is not apparent, in view of
the existence of the National Defence Act, Beetz J.
of the Supreme Court of Canada said the follow
ing in Manitoba (Attorney General) v. Metropoli
tan Stores Ltd. 9 (at page 122):
... the innovative and evolutive character of the Canadian
Charter of Rights and Freedoms conflicts with the idea that a
legislative provision can be presumed to be consistent with the
Charter.
I therefore feel that I must consider the applica
tion at bar and determine at this stage whether the
court martial infringes the applicant's rights under
sections 7, 11(d) and 15 of the Canadian Charter
of Rights and Freedoms.
2. Independence of court martial
In accordance with the provisions of paragraph
11(d) of the Charter, the applicant is entitled to be
tried by an impartial and independent tribunal. In
Valente, supra, the Supreme Court of Canada
indicated the guidelines to be used in determining
whether a tribunal is independent. To begin with,
Le Dain J. made a distinction between indepen-
" [1988] 2 S.C.R. 595.
9 [1987] 1 S.C.R. 110.
dence and impartiality. He recalled the definition
of reasonable apprehension of bias as stated by de
Grandpré J. in the Supreme Court of Canada
judgment in Committee for Justice and Liberty et
al. v. National Energy Board et al., 10 namely that
"the apprehension of bias must be a reasonable
one, held by reasonable and right minded persons,
applying themselves to the question and obtaining
thereon the required information."
The applicant is not challenging the impartiality
of the court martial here, but its independence. In
Valente the Supreme Court had to determine
whether a judge sitting on the Ontario Provincial
Court was an independent tribunal within the
meaning of paragraph 11(d) of the Charter. The
Court found that a tribunal can be regarded as
independent within the meaning of that paragraph
if it may be reasonably perceived as enjoying three
essential objective conditions or guarantees,
namely security of tenure, financial security and
institutional independence.
(a) Security of tenure
In Valente the Court defined the essence of
security of tenure as follows (at page 698):
The essence of security of tenure for purposes of s. 11 (d) is a
tenure, whether until an age of retirement, for a fixed term or
for a specific adjudicative task, that is secure against interfer
ence by the Executive or other appointing authority in a
discretionary or arbitrary manner.
Article 111.08 of the Queen's Regulations and
Orders provides that any court martial can only be
dissolved in the following circumstances:
Unless dissolved under article 112.64 (Death or Disability of
Members or Other Persons), a court martial shall be deemed to
be dissolved when it has terminated its proceedings in accord
ance with (19)(a) or 2I(e)(i) of article 112.05 in respect of all
accused it may try.
The applicant alleged that the officers sitting on
the court martial, unlike judges of the Provincial,
Superior and other Courts, only sit rarely and on a
part-time basis. They have no stability of employ
ment. They are easily replaceable and are in fact
replaced by other officers. They are subject to the
discipline of the military hierarchy. They only sit
when they are convened by their superiors.
10 [1978] 1 S.C.R. 369, at p. 394.
This question of the court martial's indepen
dence has already been dealt with in depth by
Cavanagh J. of the Court Martial Appeal Court of
Canada in Schick v. The Queen." I need only cite
this passage from page 86 C.R.R.:
Here the members of the court martial were appointed
pursuant to the convening order to try this particular case.
Once the order was issued, the tenure of each of the members
became fully secure insofar as the performance of that task was
concerned. Article 112.14 of Queen's Regulations and Orders,
pursuant to s. 163 of the National Defence Act, only provides
for the removal of any one or more of the members or alternate
members of a court martial upon objection for cause by the
accused. There is no mechanism or authority for otherwise
removing a member of the court once he has been appointed.
By art. 11 1.08, the court, once covened, continues to exercise its
function independently of the convening authority, until it has
terminated its proceedings and cannot be dissolved except
pursuant to the provisions of art. 112.64 which only provides
for the court being dissolved upon reduction below the required
number of members by reason of one or more of the members
dying or being unable to act. There is thus full compliance with
the first essential condition of judicial independence mentioned
in the Valente case.
I should add that this judgment rendered on
behalf of the other members of the Court was
signed on May 25, 1987 and refers to the Charter
and to the Valente judgment, supra. The Court
Martial Appeal Court of Canada consists of
judges of the Federal Court and the Superior
Courts of the provinces. I adopt this unanimous
decision in Schick, not only from judicial comity,
but also because it reflects my own conclusions in
the case at bar.
(b) Financial security
On the second criterion, financial security, I
return to the starting-point, namely the definition
given by Le Dain J. in Valente (at page 704):
That means security of salary or other remuneration, and,
where appropriate, security of pension. The essence of such
security is that the right to salary and pension should be
established by law and not be subject to arbitrary interference
by the Executive in a manner that could affect judicial indepen
dence. In the case of pension, the essential distinction is be
t ween a right to a pension and a pension that depends on the
grace or favour of the Executive.
As section 35 [as am. by S.C. 1985, c. 26, Sch.
I, s. 12] of the Act indicates, the pay and allow
ances of officers must be in keeping with the rates
specified by the Treasury Board. The Act and the
11 (1987), 30 C.R.R. 79.
Regulations and Orders do not provide for any
additional pay for an ad hoc assignment such as
sitting on a court martial. Such an assignment is
simply a part of an officer's duties. The same is
true of the entitlement to a pension, which is
covered by the Canadian Forces Superannuation
Act. 12 Like salary, this right is not affected by the
fact that an officer sits on a court martial from
time to time. In Schick, supra, Cavanagh J. said in
this regard (at pages 86-87):
The second essential condition mentioned at p. 216 of the
report is that of financial security for the members of the
tribunal. That is hardly applicable in the case at bar. The
officers named to the court martial continued to draw their
salaries; they were only there to complete their task as members
of the court martial and then would revert to their ordinary
occupation. There is no evidence to suggest that their salaries
would be affected, nor is there any authority pursuant to which
their salaries could legally be affected, as a result of the
exercise of their judicial functions as members of the court
martial.
(c) Institutional independence
I turn now to the third criterion, that of institu
tional independence. Once again reference must be
made to Valente, where Le Dain J. clarified his
position on this criterion (at page 709):
Judicial control over the matters referred to by Howland
C.J.O.—assignment of judges, sittings of the court and court
lists—as well as the related matters of allocation of court rooms
and direction of the administrative staff engaged in carrying
out these functions, has generally been considered the essential
or minimum requirement for institutional or "collective" in
dependence. See Lederman, "The Independence of the Judici
ary" in The Canadian Judiciary (1976, ed. A. M. Linden), pp.
9-10; Deschênes, Masters in their own house, pp. 81 and 124.
I have already explained that a court martial
consists of between five and nine officers presided
over by an officer holding the rank of colonel, or
higher as the case may be. Additionally, the Act
provides for the appointment of a judge advocate
to rule on points of law or mixed points of law and
fact. All members of the court martial and the
judge advocate must take the oath, swearing to
administer justice in accordance with law, without
bias or favour.
12 R.S.C. 1970, c. C-9.
Subsection 112.54(1) of the Regulations and
Orders provides that the president of a court mar
tial shall: (a) ensure that the trial is conducted in
an orderly fashion and in a manner befitting a
court of justice; (b) be responsible for the proper
performance of the duties of the court during the
trial; and (c) if there is no judge advocate, be
responsible for the compilation and completion of
the minutes of the proceedings of the court and the
custody of exhibits.
The Court Martial Appeal Court of Canada
held in Schick that this criterion applied especially
to the position of provincial judge in Valente.
Members of the court martial are appointed only
for one case and subsequently return to their mili
tary duties.
Additionally, chapter 112 of the Regulations
and Orders contains several provisions enabling a
court martial, once created, to maintain complete
institutional independence in administrative mat
ters directly affecting it. Further, order 111-1 of
the Canadian Forces Administrative Orders also
contains directions of an administrative nature
regarding courts martial.
3. Whether right to equality threatened
The second aspect of the application is a claim
that the court martial cannot try the applicant on
charges of possession of narcotics for purposes of
trafficking under the jurisdiction conferred by sec
tion 120 [as am. by S.C. 1972, c. 13, s. 73; 1985, c.
19, s. 187, item 5] of the National Defence Act,
because that jurisdiction infringes the applicant's
equality rights as guaranteed by section 15 of the
Canadian Charter of Rights and Freedoms. Sub
section 15(1) of the Charter reads as follows:
15. (1) Every individual is equal before and under the law
and has the right to the equal protection and equal benefit of
the law without discrimination and, in particular, without
discrimination based on race, national or ethnic origin, colour,
religion, sex, age or mental or physical disability.
In this connection the applicant maintained that
these provisions of the Charter give him an oppor
tunity and a right to be tried by an ordinary court
of law for offences falling under the ordinary law.
Since this offence is not a military one, the appli
cant argued that like all other non-military
Canadians he is entitled to a preliminary inquiry,
disclosure of evidence, trial by jury, appeal of the
sentence—in short, a civil trial.
In my opinion, the essential purpose of section
15 of the Charter is to ensure that a person will be
tried before an impartial and independent tribunal.
The fact that this tribunal is a civil court or a
court martial in no way prevents the applicant
from enjoying the equal status mentioned in sec
tion 15. Members of the armed forces are subject
to the National Defence Act, and that Act contains
certain privileges and certain duties, including that
of being tried by a court martial. In MacKay,
supra, Ritchie J., speaking for a majority of the
Supreme Court of Canada, said the following in
respect of a similar argument based on paragraph
1(b) of the Canadian Bill of Rights [R.S.C. 1970,
Appendix III] (at pages 390-391):
The main contention of the appellant for reliance on s. 1 (b)
was, as I understood it, directed to a submission that the
provisions of the National Defence Act deprived the appellant
of his right to equality before the law which is guaranteed by
that section in that he is exposed to trial in a different court
(i.e. a court martial) from other citizens. In considering this
and the other submissions made by the appellant, I think it
should first be observed that the National Defence Act, pursu
ant to which the charges were laid in this case, is legislation
enacted in fulfilment of the legislative obligation assigned to
Parliament by s. 91(7) of the British North America Act which
provides that:
... the exclusive Legislative Authority of the Parliament of
Canada extends to ...
7. Militia, Military and Naval Service, and Defence.
This authority must, in my opinion, include the authority to
enact legislation for regulation and control of the behaviour and
discipline of members of the services and this in turn includes
the making of provision for the establishment of courts to
enforce such legislation.
This is obviously legislation enacted for the purpose of
achieving a valid federal objective and it deals with a particular
class of individuals who are members of the services.
Though this judgment was rendered before the
Charter came into effect, Le Dain J. referred to it
in Valente and he did not say that the advent of
the Charter had changed the position.
4. Whether creation of the court martial justified
Having said this, and as the applicant has not
persuaded me that the purpose or consequences of
the existence of a court martial infringes the
Charter, it is not strictly necessary for me to refer
to section 1 of the Charter in order to show that
the applicant's rights may be subjected to such
reasonable limits prescribed by law as can be
demonstrably justified in a free and democratic
society. However, in the event that I am wrong
and in any case to make this judgment more
complete, I will try to apply the criteria of analysis
set out by Dickson C.J. in the well-known case of
The Queen v. Oakes" to determine whether the
establishment of a court martial is justified.
In that case the Court held that, to determine
whether a limitation is reasonable and can be
demonstrably justified in a free and democratic
society, two central criteria must be applied. First,
the objective must be sufficiently important to
warrant overriding a right, and second, the means
must be reasonable and demonstrably justified.
(a) Whether objective sufficiently important
It must be noted at the outset that subsection
91(7) of the Constitution Act, 1867 [30 & 31
Vict., c. 3 (U.K.) [R.S.C. 1970, Appendix II, No.
5] (as am. by Canada Act 1982, 1982, c. 11
(U.K.), Schedule to the Constitution Act, 1982,
Item 1)] gives the federal Parliament the power to
create a court of law dealing with "Militia, Mili
tary and Naval Service, and Defence." It will
suffice to cite this passage from MacKay, supra
(at page 390):
This authority must, in my opinion, include the authority to
enact legislation for regulation and control of the behaviour and
discipline of members of the services and this in turn includes
the making of provision for the establishment of courts to
enforce such legislation.
On the need to impose discipline and establish
courts martial in the armed forces, it is worth
reproducing certain relevant and eloquent passages
13 [1986] 1 S.C.R. 103.
from the majority judgments in MacKay—first, a
passage from Ritchie J. (at page 398):
The necessity of recognizing that a separate code of law
administered within the services is an essential ingredient of
service life has been appreciated since the earliest days, and in
my view the administration of the National Defence Act must
be considered in light of the history and development of that
code.
Somewhat further on McIntyre J., writing for
Dickson J. [as he then was], also said this (at page
402):
Since very early times it has been recognized in England and
in Western European countries which have passed their legal
traditions and principles to North America that the special
situation created by the presence in society of an armed mili
tary force, taken with the special need for the maintenance of
efficiency and discipline in that force, has made it necessary to
develop a separate body of law which has become known as
military law. The development of this body of law included,
sometimes in varying degree but always clearly recognized, a
judicial role for the officers of the military force concerned.
Finally, he added at pages 404-405:
The practical necessities of the service require the performance
of this function by officers of the service and I find no offence
to the Canadian Bill of Rights in this respect. I would add that
there now exists a Court Martial Appeal Court, a professional
Court of Appeal with a general appellate jurisdiction over the
courts martial. This is, in my view, a significant safeguard and
its creation is a realistic and practical step toward the provision
of that protection which is required in the circumstances.
Once again, it is true that MacKay was ren
dered before the advent of the Charter. However,
the Supreme Court had to decide whether the
existence of the court martial was invalid under
the Canadian Bill of Rights, and a majority
answered that it was not. Further, all the foregoing
statements were incorporated by Le Dain J. in the
Valente decision, a judgment rendered after the
advent of the Charter. In MacKay, Ritchie and
McIntyre JJ. emphasized the very old tradition of
a separate system of military justice administered
by courts martial. Both also pointed out that the
status of the Court Martial Appeal Court and its
independence from the armed forces added addi
tional safeguards for the accused, who remains
innocent until proven guilty.
Fortified by these eminent authorities, I have no
doubt that the court martial system is a sufficient-
ly important objective within the meaning of the
first criterion stated in Oakes.
(b) Whether means reasonable
The second criterion, namely whether the means
are reasonable, requires the application of a stand
ard of proportionality containing three separate
components. The first is that the means, here the
creation of a court martial, must be rationally
connected to the objective, namely the good con
duct and discipline of members of the armed
forces.
It seems clear in accordance with the foregoing
citations that the creation of courts martial is
connected in a profoundly rational way with the
ultimate objective of maintaining discipline among
the members of the armed forces. I find it difficult
to see how it can be argued that the court martial
system is an arbitrary, unfair or irrational meas
ure. In this regard, counsel for the applicant sug
gested that Federal Court judges sit on the court
martial, thus constituting as it were a martial
chamber of the Federal Court. In his submission,
such a solution would not infringe the applicant's
rights. I could not refrain from pointing out to him
that it would not be very practical to parachute
judges behind the battle lines in wartime so as to
try soldiers and impose discipline. This is essential
ly what Mahoney J. was saying when he sat on the
Court Martial Appeal Court in Rutherford v. R."
(at page 261):
In summary then, the Canadian Armed Forces have the
mission to defend Canada at home and abroad and to aid the
civil authority in stipulated circumstances. They must be ready
to execute their mission immediately they are called upon.
Preparedness and morale depend on discipline. Military law
comprises the rules of that discipline. Its application is
demonstrably justified in a free and democratic society if the
morale and readiness of the armed forces require it and not
otherwise.
I turn now to the second component of propor
tionality, that the means should impair the
individual's rights or freedom as little as possible.
As we have already seen, the Regulations and
Orders cited above give soldiers the same protec
tion, so far as possible, as they would enjoy in
14 (1983), 26 C.R.R. 255.
civilian courts. Section 129 [as am. by S.C. 1985,
c. 26, s. 52] of the Act provides a reassuring
clarification in this respect:
129. All rules and principles from time to time followed in
the civil courts that would render any circumstance a justifica
tion or excuse for any act or omission or a defence to any
charge are applicable in any proceedings under the Code of
Service Discipline.
Once again, soldiers may appeal from a decision
of a court martial to the Court Martial Appeal
Court of Canada, whose independent status has
never been questioned. It must always be borne in
mind that courts martial may be called upon to
render justice not only in Canada but to Canadian
soldiers throughout the world, whether on a peace
mission or in a theatre of war.
Finally, the third component of proportionality:
the measure impugned must be justified by the
purposes it is intended to serve. This component is
explained by Dickson C.J. in Oakes as follows (at
page 140):
The more severe the deleterious effects of a measure, the more
important the objective must be if the measure is to be reason
able and demonstrably justified in a free and democratic
society.
The applicant did not establish that he has
suffered or may suffer harmful consequences, but
even if that were the case, those consequences can
only be very limited in the circumstances, since for
all practical purposes, he enjoys the same protec
tion as he would in the civil courts. Additionally,
as I mentioned earlier, the purpose is of capital
importance since it is connected with discipline
within the armed forces and, in the imperfect
world in which we live, those forces are essential in
keeping the peace and ensuring the survival of a
democratic society such as ours.
I therefore consider that the court martial is an
independent and impartial tribunal within the
meaning of section 7 and paragraph 11(d) of the
Charter and that it can try the applicant on the
foregoing charges, as it does not infringe the appli
cant's equality rights as guaranteed by section 15
of the Charter. This application will therefore be
dismissed with costs.
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