R v Edwards and Constitutional Review of the Military Justice System

Abstract

In R v Edwards, 2024 SCC 15, the Supreme Court held that the fact that military judges simultaneously serve as military officers within the Canadian Armed Forces does not infringe section 11(d) of the Canadian Charter of Rights and Freedoms. That constitutional provision affirms, inter alia, that persons charged with an offence have the right to a hearing by an “independent and impartial tribunal.” Critics have already dissected the outcome and rationale of the majority opinion in Edwards. I contend that the decision provides an opportunity to think more broadly about how civilian appellate courts ought to approach constitutional challenges to the military justice system. I argue that the Supreme Court must adopt a principled interpretive approach that is rooted in the constitutionally-entrenched concept of civilian legal oversight of the military and that consists of three overarching features: (1) an appreciation of the dialogue on military justice that occurs between civilian appellate courts and other bodies within the state; (2) a balancing between what political scientists term the functional and structural imperatives; and (3) an adjudicatory caution that flows from the need to describe the military justice system realistically rather than idealistically.

Keywords: Military Justice, Canadian constitutional law, Judicial independence, Civil-military relations, Canadian Armed Forces