The independence of the military judiciary is an historically contentious topic in Canada; it has been challenged in court several times, dating even before the adoption of the Canadian Charter of Rights and Freedoms. In 1992, Canada’s court of last resort examined this issue in R v Généreux (‘Généreux’). At the time, given the method of appointment of ‘judge advocates’ (military judges) by the ‘Judge Advocate General’, an officer of the Canadian Forces, the Supreme Court held that this afforded the executive branch of government too much control over military judges, and therefore impaired the accused’s right to a ‘public hearing by an independent and impartial tribunal’ as afforded under section 11(d) of the Canadian Charter of Rights and Freedoms. Since Généreux, several elements surrounding military disciplinary law - which are directly relevant to the independence of the military judiciary - remain unresolved. Arguably, these issues stem from the Généreux decision handed down over 30 years ago.

On 16 October 2024, the Supreme Court of Canada heard argument in R v Edwards. At issue was the potential for military judges to be influenced by the executive through their standing as officers in the Canadian Forces, and whether this compromises their institutional independence. In the judgment handed down 26 April 2024, a 6:1 majority of the Supreme Court held that, considering the safeguards already in place, military judges are sufficiently independent and impartial. We contend the SCC did not adequately resolve the issue of independence of the military judiciary as there remain important factors which were not adequately addressed in the decision. First, and as outlined by the dissent in Edwards, the fact that military judges are subject to military disciplinary regime administered by military officers (i.e. the executive), makes them vulnerable to manipulation by the executive. Second, military judges are subject to the summary justice regime called the ‘Military Justice at the Unit Level.’ Consequently, a military judge could be subject to a ‘summary hearing’ conducted by an officer and member of the executive. This would surely lead a reasonable person, informed of the relevant statutory framework and its historical background, to conclude that military judges are not sufficiently free of interference from the executive. On the latter issue, Parliament seems to acknowledge this shortcoming; it has included statutory amendments to remedy that mischief in Bill C-66. Bill C-66 has only reached the second reading in the Canadian house of commons as at the time of writing, in an uncertain political climate whereby an election will be called at any time – meaning this issue will likely remain intact for the foreseeable future.

This paper will examine the contextual background leading to the appeal in Edwards, including the evolution of the role of the military judiciary since the landmark judgment in Généreux to the third independent review of the National Defence Act by former Supreme Court Justice Fish and the failed prosecution of the former Chief Military Judge. This will provide the relevant context for a review of the Court Martial Appeal Court of Canada judgment that preceded the SCC decision in Edwards. This paper will also offer proposed remedies to address the gaps left by Edwards. These options fall outside the status quo and provide clarity regarding the status of military judges, an issue that has not been answered adequately in the 30 years since the SCC’s judgment in Généreux.