(Canada) The court discussed the human rights compliance of the courts martial system, and whether the trial of a soldier on a criminal charge by a General Court Martial met the requirements of s 11(d) of the Charter. L’Heureux-Dubee J said: ‘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’.
Lamer CJC said: ‘The essential conditions of independence, or basic mechanisms by which independence can be achieved, were discussed by Le Dain J. in Valente. He emphasized that a flexible standard must be applied under s. 11(d). Since s. 11(d) must be applied to a variety of tribunals, it is inappropriate to define strict formal conditions as the constitutional requirement for an independent tribunal. Mechanisms that are suitable and necessary to achieve the independence of the superior courts, for example, may be highly inappropriate in the context of a different tribunal. For this reason, the court chose to define three essential conditions of independence that can be applied flexibly, being capable of attainment by a variety of legislative schemes or formulas . . Similarly, s. 11(d) of the Charter requires that a decision-maker have a basic degree of financial security. The substance of this condition is as follows . . `The essence of such security is that the right to salary and pension should be established by law and not be subject to arbitrary interference by the executive in a manner that could affect judicial independence.’
Within the limits of this requirement, however, the federal and provincial governments must retain the authority to design specific plans of remuneration that are appropriate to different types of tribunals. Consequently, a variety of schemes may equally satisfy the requirement of financial security, provided that the essence of the condition is protected.’
Lamer CJC also said: ‘I emphasize that an individual who wishes to challenge the independence of a tribunal for the purposes of s. 11(d) need not prove an actual lack of independence. Instead, the test for this purpose is the same as the test for determining whether a decision-maker is biased. The question is whether an informed and reasonable person would perceive the tribunal as independent.’
Judges:
L’Heureux-Dubee J, Lamer CJC
Citations:
(1992) 88 DLR (4th) 110
Jurisdiction:
Canada
Commonwealth, Armed Forces
Updated: 25 November 2022; Ref: scu.420998