R. v. Généreux, [1992] 1 S.C.R. 259 (1992)

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 j...

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