R. v. Edwards, et. al.

The appeal to the Supreme Court of Canada originates from Court Martial Appeal Court (CMAC). Prior to the appeal being filed, multiple decisions came out by military judges which held that there is a lack of institutional independence because of their risk of prosecution under the military’s code of Service Discipline. It leaves military judges at risk of being influenced by a senior member of the Canadian Armed Forces. The separate roles is a fundamental postulate of the rule of law. Therefore, judicial independence must not only exist in fact, but it must also be seen to exist to a reasonable person.

The appellants are members of the Canadian Armed forces who had various charges laid against them. The appeals focus on whether the role and status of military judges as military officers in the chain of command compromises their institutional independence, denying the appellants their right to a hearing under s.11 (d) of the Charter.

The question in issue before the Supreme Court of Canada are the following:

1)    Since Genereux, do military judges deciding cases still raise a reasonable apprehension of bias?

2)    Has there been significant societal change which dissipates this court’s concern that a trial before a military judge is a matter of practical necessity?

3)    If so, does the military status of 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?

4)    If so is this violation saved under s 1 of the Charter?

5)    If not, what is the appropriate constitutional remedy under s 52 of the Constitution Act, 1982?