Lieutenant (Navy) C.A.I. Brown 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,  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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(PUBLICATION BAN IN CASE)
The appellant is a member of the Canadian Armed Forces (“CAF”) who had charges laid against him. He filed an application in the Court Martial seeking a stay of proceedings because of an alleged infringement of his constitutional right to be tried by an independent and impartial tribunal guaranteed by s. 11(d) of the Canadian Charter of Rights and Freedoms. He argued that despite the Chief of the Defence Staff having re-promulgated a Canadian Forces Organization Order without a reference to disciplinary matters involving officers holding the office of military judge, the situation nonetheless could not satisfy a reasonable observer that military judges had obtained the required guarantees of judicial impartiality which would allow them to be perceived as independent and impartial. A military judge agreed, concluding that there was an infringement of the accused’s right guaranteed by s. 11(d) of the Charter. He stayed the proceedings under s. 24(1) of the Charter. The Court Martial Appeal Court of Canada allowed the Crown’s appeal, for substantially the same reasons it set out in R. v. Edwards et al., 2021 CMAC 2, and R. v. Proulx and R. v. Cloutier, 2021 CMAC 3.
This appeal will be heard jointly with the appeals in files 39820, 39822, 40046 and 40103.
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