Sergeant S.R. Proulx, et al. v. His Majesty the King

(Federal) (Criminal) (By Leave)


Canadian charter (Criminal) - Constitutional law, Judicial independence, Armed Forces, Military offences - Charter of Rights — Right to be tried by independent and impartial tribunal — Constitutional law — Judicial independence — Courts martial — Armed forces — Military offences — Since R. v. Généreux, [1992] 1 S.C.R. 259, does the military status of military judges still raise a reasonable apprehension of bias? — Since Généreux, has there been significant societal change which dissipates this Court’s concern that the military status of military judges is a matter of practical necessity? — If so, does the military status of military judges, prescribed under the National Defence Act’s legislative scheme, lead an informed person, viewing the matter realistically and practically, to conclude that there is an apprehension of bias contrary to s. 11(d) of the Charter? — If so, is this violation justified under s. 1 of the Charter? — If not, what is the appropriate constitutional remedy under s. 52 of the Constitution Act, 1982? — Canadian Charter of Rights and Freedoms, s. 11(d) — National Defence Act, R.S.C., 1985, c. N-5, s. 165.21(1)



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The appellants are members of the Canadian Armed Forces who had various charges laid against them. They each filed a preliminary application in the Court Martial seeking a stay of proceedings because of an alleged infringement of their constitutional right to be tried by an independent and impartial tribunal guaranteed by s. 11(d) of the Canadian Charter of Rights and Freedoms. They argued that the possibility of military judges being prosecuted for alleged violations of the Code of Service Discipline was an infringement of this right. They also asked the military judge to declare that ss. 12, 17, 18 and 60 of the National Defence Act were contrary to the constitutional principles of judicial independence and were therefore of no force or effect. In both applications, the military judge rejected the latter argument but found that the accused’s right to be tried by an independent and impartial tribunal set out in s. 11(d) of the Charter had been infringed. In the case of Sergeant Proulx, the military judge agreed that a Canadian Forces Organization Order (“CFOO”) was of no force or effect as regards the disciplinary regime applicable to military judges. As a result of that decision, the Chief of Defence Staff deleted the part of the CFOO that had been declared of no force or effect. Following that amendment to the CFOO, the military judge held in the decision on Master-Corporal Cloutier’s application that the revised version of the CFOO was unconstitutional because it still provided for the prosecution of military judges for alleged violations of the Code of Service Discipline. The Court Martial Appeal Court of Canada allowed the Crown’s appeals, ruling that the Code of Service Discipline appropriately applied to military judges. It dismissed the accused’s cross-appeal.

This appeal will be heard jointly with the appeals in files 39820, 40046, 40065 and 40103.