R. v. Généreux

R. v. Généreux
Collection
Supreme Court Judgments
Date
1992-02-13
Report
[1992] 1 SCR 259
Case number
22103
Judges
Lamer, Antonio; La Forest, Gérard V.; L'Heureux-Dubé, Claire; Sopinka, John; Gonthier, Charles Doherty; Cory, Peter deCarteret; McLachlin, Beverley; Stevenson, William; Iacobucci, Frank
On appeal from
Canada
Subjects
Constitutional law
Notes
SCC Case Information: 22103
Decision Content
R. v. Généreux, [1992] 1 S.C.R. 259
Michel Généreux Appellant
v.
Her Majesty The Queen Respondent
Indexed as: R. v. Généreux
File No.: 22103.
1991: June 5; 1992: February 13.
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.
Cases Cited
By Lamer C.J.
Applied: R. v. Wigglesworth, [1987] 2 S.C.R. 541; Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143; considered: Valente v. The Queen, [1985] 2 S.C.R. 673; MacKay v. The Queen, [1980] 2 S.C.R. 370; Beauregard v. Canada, [1986] 2 S.C.R. 56; MacKeigan v. Hickman, [1989] 2 S.C.R. 796; IWA v. Consolidated‑Bathurst Packaging Ltd., [1990] 1 S.C.R. 282; referred to: Schick v. The Queen (1987), 4 C.M.A.R. 540; Hunter v. Southam Inc., [1984] 2 S.C.R. 145; R. v. Collins, [1987] 1 S.C.R. 265; R. v. Strachan, [1988] 2 S.C.R. 980; R. v. Turpin, [1989] 1 S.C.R. 1296; R. v. Lippé, [1991] 2 S.C.R. 114; MacKay v. Rippon, [1978] 1 F.C. 233; Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486; R. v. Oakes, [1986] 1 S.C.R. 103; R. v. Ingebrigtson (1990), 61 C.C.C. (3d) 541.
By Stevenson J.
Considered: Valente v. The Queen, [1985] 2 S.C.R. 673; MacKay v. The Queen, [1980] 2 S.C.R. 370; Beauregard v. Canada, [1986] 2 S.C.R. 56.
By L'Heureux‑Dubé J. (dissenting)
Valente v. The Queen, [1985] 2 S.C.R. 673; MacKay v. The Queen, [1980] 2 S.C.R. 370; Beauregard v. Canada, [1986] 2 S.C.R. 56; MacKeigan v. Hickman, [1989] 2 S.C.R. 796; Schick v. The Queen (1987), 4 C.M.A.R. 540; R. v. Lippé, [1991] 2 S.C.R. 114; Reference re Public Service Employee Relations Act (Alta.), [1987] 1 S.C.R. 313; Edmonton Journal v. Alberta (Attorney General), [1989] 2 S.C.R. 1326; R. v. Wholesale Travel Group Inc., [1991] 3 S.C.R. 154; R. v. Seaboyer, [1991] 2 S.C.R. 577; R. v. Keegstra, [1990] 3 S.C.R. 697; Committee for the Commonwealth of Canada v. Canada, [1991] 1 S.C.R. 139; Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486; Kindler v. Canada (Minister of Justice), [1991] 2 S.C.R. 779.
Statutes and Regulations Cited
Canadian Charter of Rights and Freedoms, ss. 1 , 7 , 8 , 11 (d), (f), 15 , 24(1) , (2) .
Canadian Forces Administrative Orders, 4‑1.
Constitution Act, 1867, s. 91(7) .
Narcotic Control Act, R.S.C., 1985, c. N‑1, s. 4.
National Defence Act, R.S.C., 1985, c. N‑5, ss. 9 , 28 [rep. & sub. c. 31 (1st Supp.), s. 60 (Sch. I, s. 12)], 35 [idem (Sch. I, s. 16)], 66 [rep. & sub. c. 31 (1st Supp.), s. 45 ], 71 [idem, s. 46 ], 88(1), 90(1), 130(1), 151 [rep. & sub. c. 31 (1st Supp.), s. 47 ], 163(2) [am. c. 31 (1st Supp.), s. 60 (Sch. I, s. 49)], 165, 166, 167, 168, 169, 170 [am. c. 31 (1st Supp.), s. 54 ], 187, 188, 192, 230.
Queen's Regulations and Orders for the Canadian Forces (1968 Revision), arts. 4.09 [en. O.C., P.C. 1990‑2782], 26.10 [en. idem], 26.11 [idem], 108.30, 109.1, 110.06, 111.05, 111.06 (Note B), 111.18, 111.21 (Note A), 111.22 [rep. & sub. O.C., P.C. 1990‑2782], 111.23, 112.05(4a), 112.06, 112.15, 112.16, 112.54, 112.64(2).
Authors Cited
Fay, James B. "Canadian Military Criminal Law: An Examination Of Military Justice" (1975), 23 Chitty's L.J. 120, 228.
Heard, Andrew D. "Military Law and the Charter of Rights " (1988), 11 Dalhousie L.J. 514.
APPEAL from a judgment of the Court Martial Appeal Court of Canada (1990), 5 C.M.A.R. 38, 114 N.R. 321, 75 D.L.R. (4th) 207, 4 C.R.R. (2d) 307, 60 C.C.C. (3d) 536, dismissing the accused's appeal from his conviction on charges of possession of narcotics for the purpose of trafficking and of absence without leave. Appeal allowed and new trial ordered, L'Heureux‑Dubé J. dissenting.
Guy Cournoyer, Jean Asselin and Sylvie Roussel, for the appellant.
Jean‑Marc Aubry, Q.C., Richard Morneau, Bernard Laprade, Lt. Col. K. S. Carter and Maj. M. H. Coulombe, for the respondent.
//Lamer C.J.//
The judgment of Lamer C.J. and Sopinka, Gonthier, Cory and Iacobucci was delivered by
Lamer C.J. -- This appeal involves a constitutional challenge, under ss. 7 , 11 (d) and 15 of the Canadian Charter of Rights and Freedoms , to the proceedings of a General Court Martial convened under the National Defence Act, R.S.C., 1985, c. N-5 . The principal question raised in this case is whether a General Court Martial is an independent and impartial tribunal for the purposes of s. 11 (d) of the Charter .
The Facts
On September 20, 1988, the appellant, a corporal with the Canadian Armed Forces and stationed at the military base at Valcartier, Quebec, was charged with a breach of the military's Code of Service Discipline. Specifically, the appellant was charged with three counts of possession of narcotics for the purpose of trafficking contrary to s. 4 of the Narcotic Control Act, R.S.C., 1985, c. N-1, and punishable under former s. 120(1) (now s. 130(1)) of the National Defence Act . He was also charged with one count of desertion contrary to former s. 78(1) (now s. 88(1) ) of the National Defence Act . The indictment was authorized by the appellant's commanding officer, Lieutenant-Colonel J. H. P. M. Caron.
The following circumstances gave rise to the charges against the appellant. On September 15, 1986, police officers searched the appellant's residence and found 110 grams of hashish, 5 grams of cocaine and 113 grams of phencyclidine. The search was conducted pursuant to a search warrant. The appellant's residence was located outside the Valcartier military base.
The search warrant had been obtained by one Officer Denis Ross of the Royal Canadian Mounted Police. Officer Ross sought the warrant on September 11, 1986, on the basis that he had reasonable and probable grounds to believe that a narcotic would be found in the residence of the appellant. Officer Ross testified at trial that, to obtain the search warrant, he followed the practice that was normally followed by the police at the time. He consulted an attorney in the Crown's office and informed him of the grounds upon which he believed the search warrant should be issued. The attorney agreed, in this case, that the grounds were sufficient to support the issuance of a warrant. The attorney then wrote certain information on a piece of paper that was given to his secretary. The secretary typed the contents of this information on the form used to request a search warrant. Officer Ross took the form to the office of a justice of the peace. The justice of the peace, as was the usual practice, confirmed that Officer Ross had consulted the Crown attorney and then had Officer Ross swear out the information. The sworn information mentioned only the following grounds in support of the warrant: [translation] "Information from a trustworthy person following investigation".
On October 8, 1986, following the search and the discovery of the narcotics in his residence, the appellant unlawfully left the military base. This departure appears to have been the basis for the charge of desertion.
On August 31, 1988, prior to the laying of the charges, military police arrested the appellant and took him to the military prison at the Valcartier base. Immediately after charges were laid, on September 21, 1988, the appellant made a motion for a writ of habeas corpus before the Superior Court of Quebec. This motion was dismissed.
The appellant subsequently appeared before his commanding officer, Lieutenant-Colonel Caron. On the same day, September 23, 1988, Lieutenant-Colonel Caron recommended to the Brigadier-General of the Valcartier military base, P.-J. Addy, that the appellant be tried by a court martial. Brigadier-General Addy then asked Lieutenant-General Fox, the commanding officer of the Mobile Command at St. Hubert, to convene a court martial to hear the charges against the appellant. Lieutenant-General Fox ordered that a General Court Martial be convened on October 18, 1988. The members of the General Court Martial were specified in the convening order. The judge advocate of the court martial, Lieutenant-Colonel B. Champagne, was appointed at a later date by the Judge Advocate General, Brigadier-General R.L. Martin.
On October 12, 1988, the appellant applied to the Federal Court Trial Division for a writ of prohibition to prevent the General Court Martial from proceeding to hear the charges against him. The appellant sought this remedy on two principal grounds. First, the appellant claimed that the General Court Martial was not an independent and impartial tribunal for the purposes of ss. 7 and 11 (d) of the Charter . Secondly, the appellant claimed that allowing the General Court Martial to consider the charges under the Narcotic Control Act would violate his equality rights guaranteed by s. 15 of the Charter . The president of the General Court Martial adjourned the proceedings until the Federal Court rendered its decision on this application. The application was dismissed by Dubé J. on January 16, 1989, [1989] 2 F.C. 685. The appellant initiated an appeal of Dubé J.'s judgment to the Federal Court of Appeal. A notice of appeal was filed with the Federal Court registry, Lieutenant-General Fox ordered the General Court Martial to continue its proceeding on March 14, 1989. An application by the appellant to stay proceedings until resolution of the appeal was dismissed by the Federal Court.
A further application by the appellant to the Federal Court Trial Division, under ss. 18 and 50 of the Federal Court Act, R.S.C., 1985, c. F-7 , to suspend proceedings before the General Court Martial was dismissed by Denault J. on May 8, 1989, [1989] 3 F.C. 352. On May 11, 1989, the Federal Court of Appeal scheduled the appellant's appeal from Dubé J.'s judgment to be heard on June 20, 1989.
The appellant's trial before the General Court Martial was held from May 23 to 27, 1989, at the Valcartier base. On the first day of the trial, the appellant requested that the proceedings be adjourned until the Federal Court of Appeal dealt with his appeal from Dubé J.'s decision. This request was denied. The appellant was subsequently found guilty on one count of simple possession and on two counts of possession for the purpose of trafficking. He was acquitted of the charge of desertion but was found guilty, under s. 90(1) of the National Defence Act , of being absent without leave. The appellant was given a dishonourable discharge from the Forces and was sentenced to fifteen months' imprisonment. The appellant subsequently waived his appeal to the Federal Court of Appeal from Dubé J.'s judgment.
The appellant appealed as of right, under s. 230 of the National Defence Act , to the Court Martial Appeal Court in respect of the legality of the General Court Martial's findings and the legality of the sentence. This appeal was dismissed (per Pratte and Barbeau JJ., Décary J. dissenting) on September 12, 1990: (1990), 5 C.M.A.R. 38, 114 N.R. 321, 75 D.L.R. (4th) 207, 4 C.R.R. (2d) 307, 60 C.C.C. (3d) 536.
The appellant was granted leave to appeal the decision of the Court Martial Appeal Court to this Court on February 7, 1991, [1991] 1 S.C.R. ix.
Judgments Below
General Court Martial (Judgment of the Judge Advocate)
Before the General Court Martial, the appellant requested an order under s. 24(1) of the Charter prohibiting the tribunal from hearing the charges against him. This motion was based on two grounds: first, that the General Court Martial was not an independent and impartial tribunal for the purposes of s. 11 (d) of the Charter ; and, secondly, that the appellant's equality rights guaranteed by s. 15 of the Charter would be violated if the tribunal proceeded to hear the charges under the Narcotic Control Act since a civilian, charged with the same offences, would be tried by the ordinary criminal courts. The judge advocate accepted, referring to R. v. Wigglesworth, [1987] 2 S.C.R. 541, that the Charter applied to the proceedings of the court martial. He dismissed, however, the argument that the General Court Martial did not meet the standards of independence and impartiality required by s. 11 (d). He emphasized from the outset that the appellant was challenging the institutional independence of the General Court Martial and not the impartiality of the specific court martial that was assembled to hear the charges against him. He then applied the conditions of independence described by Le Dain J. in Valente v. The Queen, [1985] 2 S.C.R. 673. Relying substantially on the judgment of the Court Martial Appeal Court in Schick v. The Queen (1987), 4 C.M.A.R. 540, he held that the General Court Martial did not infringe s. 11 (d) because the judge advocate and the members of the tribunal had sufficient security of tenure and financial security. Once the membership was constituted, it could only be interfered with upon objection for cause or because of a member's death or inability to act. In addition, the members were paid as officers of the Canadian Forces irrespective of their court martial duties; their pay was established by regulation and could not be affected by the executive. The judge advocate did not believe that the condition of institutional independence was applicable to the court martial since its members were only appointed for a specific case.
The judge advocate also held that the court martial proceedings did not violate the appellant's equality rights under s. 15 of the Charter . He admitted that there were differences between the procedures contemplated by the Criminal Code and the procedures contemplated by the National Defence Act and regulations enacted thereunder. The appellant failed, however, to establish that the different treatment under the National Defence Act and regulations was discriminatory, that is, disadvantageous to his interests. The judge advocate emphasized that the appellant's rights were fully protected under the Charter , that the court martial had a duty to render justice impartially and that s. 129 (now s. 151 ) of the National Defence Act guaranteed to the appellant all defences available in the regular criminal courts. The judge advocate concluded that even if s. 15 of the Charter was infringed in this case, such discriminatory treatment was justified under s. 1 .
The appellant also claimed that certain evidence had been improperly admitted. He submitted that the search of his residence infringed his rights under s. 8 of the Charter because of the manner in which the search warrant was obtained. The judge advocate rejected this submission. He reviewed the information and testimony carefully and concluded that Officer Ross had reasonable and probable grounds to believe that an offence had been committed and that evidence would be found in the appellant's residence. He also concluded that the issuance of the warrant conformed to the principles enunciated in Hunter v. Southam Inc., [1984] 2 S.C.R. 145, and that the search was reasonably executed. Even if there had been a violation of s. 8 , however, the judge advocate would not have excluded the evidence under s. 24(2) of the Charter . He referred, in this regard, to R. v. Collins, [1987] 1 S.C.R. 265, and R. v. Strachan, [1988] 2 S.C.R. 980. Lastly, the judge advocate held that he had no authority to exclude the evidence since the motion for exclusion had been made at the end of the trial, after the evidence had already been admitted.
Court Martial Appeal Court (Pratte, Barbeau and Décary JJ.) (1990), 114 N.R. 321
The appellant raised six principal matters before the Court Martial Appeal Court, including his right to be tried by an independent and impartial tribunal, his right to equality before the law and the legality of the search made at his residence. The court, as Décary J. explained in his dissenting reasons, dismissed the latter two grounds from the bench. With respect to the legality of the search and the admissibility of the evidence obtained, the court concluded that there had indeed been an infringement of s. 8 but that the admission of the evidence, in light of R. v. Collins, supra, would not bring the administration of justice into disrepute. The court did not deal with s. 15 of the Charter since it did not conclude that the provision could be of assistance, in addition to s. 11 (d), to the appellant in this case. If the General Court Martial was found not to be independent for the purposes of s. 11 (d), the appellant could gain no further advantage by invoking s. 15 . If the General Court Martial were found to be independent, however, the appellant's argument with respect to s. 15 would undoubtedly fail since he could hardly claim to be a member of a "discrete and insular minority" as described by this Court in Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143, and R. v. Turpin, [1989] 1 S.C.R. 1296. In addition, the court did not wish to deal with s. 15 of the Charter in the absence of evidence, which was not before the court in this case, concerning relevant social, political and legal circumstances.
In its written reasons, therefore, the court dealt only with the appellant's submission that the General Court Martial did not meet the standards of independence and impartiality required by s. 11 (d) of the Charter .
Barbeau J.
Barbeau J. dismissed the appellant's claim that the General Court Martial was not an independent tribunal within the meaning of s. 11 (d) of the Charter . He noted that this Court had decided, in MacKay v. The Queen, [1980] 2 S.C.R. 370, that the service tribunals established and governed by the National Defence Act did not infringe an individual's rights, under ss. 1(b) and 2(f) of the Canadian Bill of Rights, R.S.C. 1970, App. III, to equality before the law and to be tried by an independent and impartial tribunal. After citing extensive passages from MacKay, Barbeau J. stated that he was satisfied that the General Court Martial had, in this case, acted in an independent and impartial manner (at pp. 326-27):
I would add to these observations of the Supreme Court that in the case at bar there is no evidence on which this court can arrive at the conclusion that the members of the General Court Martial at issue acted in any way other than an independent tribunal would have done, or that any of its members was unfitted or incompetent to perform the duties of the position held by him on that court as a consequence of being a member of the Armed Forces. It is not the function of this court to dispose of such a question solely on the basis of legislation and Regulations which have been duly adopted and the implementation of which, in the absence of any evidence to the contrary, discloses no deficiencies in this regard.
Barbeau J. thus declined to examine the independence of the General Court Martial in the abstract, on the basis of the legislation and regulations, and instead considered its actual independence in the specific circumstances of the case at bar.
Barbeau J. then discussed the judgments of this Court in Valente, supra, Beauregard v. Canada, [1986] 2 S.C.R. 56, MacKeigan v. Hickman, [1989] 2 S.C.R. 796, and I.W.A. v. Consolidated-Bathurst Packaging Ltd., [1990] 1 S.C.R. 282. He did not believe that these judgments qualified the clear holding of this Court in MacKay. Most importantly, he was of the opinion that the essential conditi