Military justice is in the spotlight again with the Supreme Court of Canada’s judgment in R v Edwards [2024] SCC 15, where the majority upheld the constitutionality of Canada’s military justice system. It represents the latest in a long line of decisions that have considered the validity of the application of military justice according to both constitutional imperatives (e.g. the separation of powers in the Australian Constitution) and the right to a fair trial in the European, Inter-American and African human rights instruments.

While military justice systems have been subject to criticism on several fronts, the issue in Edwards was the status of Canadian military judges as both judges and military officers. The appellants argued that this dual status violated s 11(d) of the Canadian Charter of Rights and Freedoms, which requires ‘a fair and public hearing by an independent and impartial tribunal’ in criminal proceedings. While s 11(f) provides for an exception from jury trial in the case of military tribunals, there is no exception to s 11(d).

The appellants in Edwards had been charged with serious violations of the Code of Service Discipline, including disobeying a lawful command, trafficking and possession of illegal drugs, and sexual assault. Their cases were heard before courts martial, with appeals to the Court Martial Appeal Court of Canada. Fundamentally, the appellants objected to military judges on the basis that, as officers, they are subject to both the chain of command and to military discipline. It was argued that these factors meant that military judges were exposed ‘to real and perceived pressure in the exercise of their judicial duties’ [51]. The Crown countered by highlighting a range of safeguards, including ‘security of tenure, financial security and administrative independence’ for military judges, pursuant to the National Defence Act [52].

The Court held that, given these safeguards, the appellants failed to show that ‘a reasonable and informed person’ would be concerned that the independence or impartiality of military judges was undermined [148]. The appellants’ argument that the 1992 Supreme Court ruling in R v Généreux, which had also upheld the role of military judges, was no longer good law was rejected. Neither the experience of countries where civilian judges are the norm, nor the recommendation in the Fish Report that Canadian military judges should be ‘civilianized’, were found to be persuasive.

Karakatsanis J, in dissent, focussed on the ‘constitutional imperative’ of judicial independence – an imperative that ‘cannot be sacrificed’ for military objectives [154]. While she accepted the possibility of dual status if ‘properly designed and protected’ [161], her concern lay with the fact that military judges not only faced the possibility of civilian prosecution and review through the judicial conduct committee (as with other judges), but also military discipline via the chain of command [184]. In her view, this undermined security of tenure and consequently fell afoul of the requirement that the judiciary be free from potential interference by the executive [200-202].

Separate military justice systems with jurisdiction over a range of offences committed at home and abroad have been justified for several reasons: to maintain the ‘discipline, efficiency and morale of the military’, to enable portability when a military is deployed abroad, and to ensure service personnel are tried by those who understand military service. Balancing these requirements with the increasing push to civilianise military law is not always easy. Edwards upheld the place of military judges on the basis that their status as officers in a system with several safeguards in place to ensure their independence and impartiality, was not incompatible with their judicial function.

Experts convened by the United Nations and the Commonwealth Secretariat have drafted military justice principles designed to marry similar safeguards with the requirements of military life. While civilian judges are not prescribed, various other conditions, including freedom from command interference, point increasingly to civilians being an essential aspect of military justice hearings. Given such principles, it is unlikely that Edwards will be the last word in Canada or elsewhere on the compatibility of military justice with a State’s constitution or human rights law.