R. v. Généreux [1992] 1 S.C.R. 259: Courts martial -- Member of Canadian Armed Forces tried by General Court Martial on narcotics and desertion charges --Independent and impartial tribunal

Present: Lamer C.J. and La Forest, L'Heureux-Dubé, Sopinka, Gonthier, Cory, McLachlin, Stevenson and Iacobucci JJ.

ON APPEAL FROM THE COURT MARTIAL APPEAL COURT OF CANADA

Constitutional law -- Charter of Rights -- Application -- Courts martial -- Member of Canadian Armed Forces tried by General Court Martial on narcotics and desertion charges -- Whether s. 11 of Canadian Charter of Rights and Freedoms applicable to General Court Martial proceedings -- National Defence Act, R.S.C., 1985, c. N-5, ss. 166 to 170.

Constitutional law -- Charter of Rights -- Independent and impartial tribunal -- General Court Martial -- Member of Canadian Armed Forces tried by General Court Martial on narcotics and desertion charges -- Whether structure of General Court Martial infringes s. 11(d) of Canadian Charter of Rights and Freedoms -- If so, whether infringement justifiable under s. 1 of Charter -- National Defence Act, R.S.C., 1985, c. N-5, ss. 166 to 170.

Constitutional law -- Charter of Rights -- Fundamental justice -- Right to be tried by independent and impartial tribunal -- Member of Canadian Armed Forces tried by General Court Martial on narcotics and desertion charges -- Whether General Court Martial an independent and impartial tribunal -- Whether s. 7 of Canadian Charter of Rights and Freedoms offers greater protection than s. 11(d) of Charter -- National Defence Act, R.S.C., 1985, c. N-5, ss. 166 to 170.

Constitutional law -- Charter of Rights -- Equality before the law -- Military personnel -- Member of Canadian Armed Forces charged with narcotics offences and tried before military tribunal under National Defence Act -- Civilian charged with same offences entitled to trial before ordinary criminal court -- Whether trial by military tribunal infringed s. 15 of Canadian Charter of Rights and Freedoms -- National Defence Act, R.S.C., 1985, c. N-5, s. 130.

Constitutional law -- Charter of Rights -- Admissibility of evidence -- Bringing administration of justice into disrepute -- Narcotics found following search of accused's home -- Procedure for obtaining search warrant unacceptable -- Accused's right against unreasonable search infringed -- Whether narcotics evidence should be excluded -- Canadian Charter of Rights and Freedoms, ss. 8, 24(2).
The accused, a corporal with the Canadian Armed Forces, was charged with possession of narcotics for the purpose of trafficking contrary to s. 4 of the Narcotic Control Act and with desertion contrary to s. 88(1) of the National Defence Act. He was tried by a General Court Martial and convicted. His appeal to the Court Martial Appeal Court was dismissed. The main issue raised in this appeal is whether a General Court Martial is an independent and impartial tribunal for the purposes of s. 11(d) of the Canadian Charter of Rights and Freedoms. Both the judge advocate and the majority of the Court Martial Appeal Court found that the General Court Martial met the standard of independence required by s. 11(d) of the Charter.

Held (L'Heureux-Dubé J. dissenting): The appeal should be allowed and a new trial ordered. The structure of the General Court Martial at the time of the accused's trial infringed his right to be tried by an independent and impartial tribunal guaranteed by s. 11(d) of the Charter. The infringement was not justifiable under s. 1 of the Charter.

(1) Application of s. 11 of Charter

An accused who is charged with offences under the Code of Service Discipline and is subject to the jurisdiction of a General Court Martial may invoke the protection of s. 11 of the Charter. Although the Code of Service Discipline is primarily concerned with maintaining discipline and integrity in the Canadian Armed Forces, it also serves a public function by punishing specific conduct which threatens public order and welfare, including any act or omission punishable under the Criminal Code or any other Act of Parliament. In any event, since the accused faced a possible penalty of imprisonment in this case, even if the matter dealt with was not of a public nature, s. 11 would nonetheless apply by virtue of the potential imposition of true penal consequences.

(2) Section 11(d)

Per Lamer C.J. and Sopinka, Gonthier, Cory and Iacobucci JJ.: A parallel system of military tribunals, staffed by members of the military who are aware of and sensitive to military concerns, is not, by its very nature, inconsistent with s. 11(d). The existence of such a system, for the purpose of enforcing discipline in the military, is deeply entrenched in our history and is supported by compelling principles. The accused's right to be tried by an independent and impartial tribunal must thus be interpreted in this context and in the context of s. 11(f) of the Charter, which contemplates the existence of a system of military tribunals with jurisdiction over cases governed by military law. In view of s. 11(f), the content of the constitutional guarantee of an independent and impartial tribunal may well be different in the military context than it would be in the context of a regular criminal trial. An individual who challenges the independence of a tribunal under s. 11(d) need not prove an actual lack of independence. The question is whether a reasonable person, familiar with the constitution and structure of the General Court Martial, would perceive that tribunal as independent. The independence of a tribunal is to be determined on the basis of the objective status of that tribunal. This objective status is revealed by an examination of the legislative provisions governing the tribunal's constitution and proceedings, irrespective of the actual good faith of the adjudicator.

The structure and constitution of the General Court Martial, as it existed at the time of the accused's trial, did not comply with the requirements of s. 11(d) of the Charter. The essential conditions of judicial independence described in Valente were not met. First, the judge advocate at the General Court Martial did not enjoy sufficient security of tenure. The National Defence Act and regulations fail to protect a judge advocate against the discretionary or arbitrary interference of the executive. The Judge Advocate General, who had the legal authority to appoint a judge advocate at a General Court Martial, is not independent of but is rather a part of the executive. The Judge Advocate General serves as the agent of the executive in supervising prosecutions. Furthermore, under the regulations in force at the time of the trial, the judge advocate was appointed solely on a case by case basis. As a result, there was no objective guarantee that his career as military judge would not be affected by decisions tending to favour an accused rather than the prosecution. A reasonable person might well have entertained an apprehension that the person chosen as judge advocate had been selected because he had satisfied the interests of the executive, or at least not seriously disappointed executive expectations, in previous proceedings. Although a General Court Martial is convened on an ad hoc basis, it is not a "specific adjudicative task". The General Court Martial is a recurring affair. Military judges who act periodically as judge advocates must therefore have a tenure that is beyond the interference of the executive for a fixed period of time. Security of tenure during the period of a specific General Court Martial is not adequate protection for the purposes of s. 11(d). It would not be reasonable, however, in this context, to require a system in which military judges are appointed until the age of retirement. The requirements of s. 11(d) are sensitive to the context in which an adjudicative task is performed. The Charter does not require uniform institutional standards for all tribunals subject to s. 11(d).

Second, the judge advocate and members of the General Court Martial did not enjoy sufficient financial security. A military legal officer's salary is determined in part according to a performance evaluation. There were no formal prohibitions at the time against evaluating an officer on the basis of his performance at a General Court Martial. The executive thus had the ability to interfere with the salaries and promotional opportunities of officers serving as judge advocates and members at a court martial. Although the practice of the executive may very well have been to respect the independence of the participants at the court martial in this respect, this was not sufficient to correct the weaknesses in the tribunal's status. A reasonable person would perceive that financial security was not present in this case.

Third, certain characteristics of the General Court Martial system were likely to cast doubt on the institutional independence of the tribunal in the mind of a reasonable and informed person. While the idea of a separate system of military tribunals obviously requires substantial relations between the military hierarchy and the military judicial system, the principle of institutional independence requires that the General Court Martial be free from external interference with respect to matters that relate directly to the tribunal's judicial function. An examination of the legislation governing the General Court Martial reveals that military officers, who are responsible to their superiors in the Department of Defence, are intimately involved in the proceedings of the tribunal. In particular, it is unacceptable that the authority that convenes the court martial, i.e. the executive, which is responsible for appointing the prosecutor, should also have the authority to appoint members of the court martial, who serve as the triers of fact. The appointment of the judge advocate by the Judge Advocate General also undermines the institutional independence of the General Court Martial. The close ties between the Judge Advocate General, who is appointed by the Governor in Council, and the executive, are obvious. To comply with s. 11(d) of the Charter, the appointment of a military judge to sit as judge advocate at a particular General Court Martial should be in the hands of an independent and impartial judicial officer.

Per La Forest, McLachlin and Stevenson JJ.: Section 11(d) of the Charter imports a flexible standard which must take into account the nature of the tribunal under consideration. The difficulty in applying the concepts in Valente to assess military tribunals is largely attributable to the difficulty in defining the concept of the "executive" from which there must be independence. If the executive is defined to include the entire hierarchy, military tribunals will always be subject to executive influence.
A General Court Martial is convened for a single adjudicative task and, given the requirement of flexibility, a tenure for that "specific adjudicative task" could be a sufficient guarantee of security of tenure. A tenure beyond executive interference for a judge advocate could only be achieved by tenured appointments roughly equivalent to those given to the professional judiciary. This aspect of a military judgeship should not, however, be so institutionalized.

To meet the requirement of "institutional independence" under s. 11(d), an ad hoc military tribunal, composed of military personnel, operating within a military hierarchy, must be free to make its decisions on the merits. No one who has an interest in seeing that the prosecution succeeds or fails should be in a position of influence. The accused, the "complainants", the prosecutor and the military personnel engaged in the investigation of, or in formulating or approving the charges clearly have such an interest. There must be found some point within the military hierarchy where an officer or official has no real or apparent concern about the outcome of a case. There is, at that point, sufficient independence in the setting of military tribunals.

While the convening authority is sufficiently far removed from the investigative and complaint stages to convene the court martial and appoint its members, it also appoints, with the concurrence of the Judge Advocate General, the prosecutor. The convergence of responsibilities in appointing the prosecutor and judge advocate is objectionable as it fails to meet the requirement that those appointing the tribunal have no apparent concern in the outcome. Further, under the scheme in force when these proceedings took place, there was nothing to prevent those who made decisions in relation to salaries and promotions from taking into consideration the outcome of a court martial. This could well include persons with an interest in that outcome and thus be perceived as an apparent infringement of the "financial security" requirement under s. 11(d).

L'Heureux-Dubé J. (dissenting): This case arises in the context of a military tribunal and, in interpreting s. 11(d) of the Charter, sufficient weight must be given to that context. The contextual approach is a tenet of constitutional interpretation which is of paramount importance. While the virtues of this approach have been discussed principally with respect to s. 1 of the Charter, context is also important at the initial stage of deciding whether or not a breach of a given right or freedom has occurred. A right or freedom may have different meanings in different circumstances. Where military tribunals are at issue, the contextual approach is not merely advantageous but clearly required. The wording of s. 11(f) illustrates that the Charter contemplates a separate system of military justice. So, when measuring the General Court Martial against the requirements of the Charter, certain considerations must be kept in mind. Among those considerations are that the Armed Forces depend upon the strictest discipline in order to function effectively and that alleged instances of non-adherence to rules of the military need to be tried within the chain of command.

The three criteria of judicial independence described in Valente were not meant to apply to each and every form of tribunal. Valente exhibits a concern for flexibility and a recognition that differences in tribunals form an acceptable and even desirable part of the Canadian legal landscape. It would thus be an error to adopt a uniform formula for all the tribunals subject to s. 11(d). In this case, given the transitory nature of a General Court Martial and peculiar circumstances surrounding the financial remuneration (or lack thereof) of its members, the criteria of security of tenure and financial security are especially ill-suited to the task of assessing the constitutionality of that tribunal. Nonetheless, even if these criteria are accurate indicia of its constitutionality, they were amply satisfied by the structure of the General Court Martial as it existed at the time of the accused's trial.

The judge advocate at the General Court Martial enjoyed sufficient security of tenure. The performance of a judge advocate can pass constitutional muster even though he is appointed by the executive. The framers of the Charter could not have intended s. 11(d) to prevent the executive from appointing members of the judiciary when other sections of the Constitution explicitly give the executive authority to do so. A General Court Martial is a "specific adjudicative task" as contemplated in Valente and is not part of a "recurring affair". The National Defence Act and its regulations contemplate each court as an entirely distinct entity. Further, while the General Court Martial is taking place, there are sufficient guarantees of the tenure of the persons involved from the executive. Under the regulations, only if the judge advocate is, for some reason, unable to attend the General Court Martial, may the convening authority appoint a replacement judge advocate. Otherwise, once appointed, the judge advocate is at complete liberty to proceed with the undertaking with which he has been entrusted. This provides sufficient insulation to the judge advocate to perform his duty.
The judge advocate and the members of the General Court Martial also enjoyed sufficient financial security. While it may be desirable that certain discretionary benefits or advantages should not be under the control of the executive, such potential discretion is not sufficient to constitute arbitrary interference by the executive in a manner that could affect judicial independence and hence to give rise to a reasonable apprehension that the essential condition of financial security was not met. As stated in Valente, executive control over certain discretionary benefits or advantages does not go to the heart of s. 11(d).

The criterion of institutional independence was satisfied. Section 11(d) of the Charter permits a sufficient degree of connection between the executive and the participants in a General Court Martial. It is unrealistic under s. 11(d) to demand the absolute separation of the judiciary from the other branches of government. While s. 11(d) might not condone a civilian system of justice where the same body which appointed the prosecutor also appoints the triers of fact, or where the executive and the presiding judge maintain close ties, in the context of the Armed Forces these characteristics may well be a necessary part of the chain of command which, when followed link by link, ultimately leads to the same destination no matter where one begins. The constitutional standard applicable in the civilian system of justice is wholly inapplicable to measuring a trial by General Court Martial.

(3) Section 1

Per Lamer C.J. and La Forest, Sopinka, Gonthier, Cory, McLachlin, Stevenson and Iacobucci JJ.: The infringement of s. 11(d) cannot be justified under s. 1 of the Charter. While the goal of maintaining order and discipline within the Armed Forces is of sufficient importance to warrant overriding a constitutional right, the scheme of the General Court Martial, as it existed at the time of the accused's trial, failed to meet the proportionality test. There may well exist a rational connection between the challenged structure of the General Court Martial and the goal of the maintenance of military discipline, but this structure did not impair the accused's s. 11(d) rights "as little as possible". The structure incorporated features which were not necessary to attain either military discipline or military justice. Under normal circumstances, it is not necessary to try alleged military offenders before a tribunal in which the judge, the prosecutor, and the triers of fact are all chosen by the executive. As well, it is not necessary that promotional opportunities, and hence the financial prospects within the military establishment, for officers serving on such tribunals should be capable of being affected by senior officers' assessments of their performance in the course of the trial.

(4) Section 7

The accused's challenge to the independence of the General Court Martial falls squarely within s. 11(d). The accused's argument is thus not strengthened by pleading the more open language of s. 7 of the Charter. Section 7 does not, in this case, provide a more comprehensive protection than s. 11(d).

(5) Section 15

The General Court Martial proceedings did not violate the accused's equality rights under s. 15 of the Charter. In the context of this appeal, the accused cannot claim to be a member of a "discrete and insular minority" so as to bring himself within the meaning of s. 15(1) of the Charter.

(6) Section 24(2)

The evidence of the illegal drugs discovered in the accused's home was obtained in breach of his right under s. 8 of the Charter. The alleged "reasonable and probable grounds" for the issuance of the search warrant were revealed by the police officer only to the Crown Attorney and not to the justice of the peace. The procedure followed by the police was unacceptable and constituted an infringement of the accused's right against unreasonable search and seizure. The evidence of the illegal drugs, however, should not be excluded under s. 24(2) of the Charter. The evidence is real evidence, which pre-existed the violation of s. 8. The evidence was essential to substantiate a very serious criminal charge. Moreover, while the procedure followed by the police was unacceptable, there was a good faith attempt to comply with a procedure which was evidently believed to be correct. The exclusion, rather than the admission, of the evidence would have brought the administration of justice into disrepute.

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