Court Martial Appeal Court

Date: 20230627

Docket: CMAC-632

Citation: 2023 CMAC 8

Heard at Ottawa, Ontario, through written representations filed by the Appellant on May 11, 2023 and by the Respondent on May 25, 2023, with a Notice of Constitutional Question having been filed on June 14, 2023 and following advice from the parties that they consent to having the appeal considered on the basis of written reasons only.

Judgment delivered at Ottawa, Ontario, on June 27, 2023.

Date: 20230627

Docket: CMAC-632

Citation: 2023 CMAC 8

REASONS FOR JUDGMENT

THE COURT

[1] On January 31, 2023 a Military Judge sitting as a Standing Court Martial convicted Cpl. Cookson (the “Appellant”) of one count of conduct to the prejudice of good order and discipline contrary to s. 129 of the National Defence Act R.S.C. 1985, c. N-5 (“NDA”), in that he harassed another member of the Canadian Armed Forces by showing her an image of genitalia. On the same date the Military Judge sentenced the Appellant to the payment of a fine in the amount of $2000.

[2] The Appellant raises one ground of appeal, namely, was the Military Judge independent and impartial? The Appellant asserts he was not. The Appellant served a Notice of Constitutional Question on the Attorney General of Canada and the Attorneys General of each Province and Territory of Canada. That question is whether the status of military judges as officers, is inconsistent with judicial independence and impartiality by virtue of their executive functions.

[3] The present appeal raises the same issue that was raised in R. v. Remington 2023 CMAC 3 [Remington]. For substantially the same reasons set out in Remington, we dismiss the appeal. We remain of the view this Court’s decisions in R. v. Edwards; R. v. Crépeau; R. v. Fontaine; R. v. Iredale 2021 CMAC 2; R. v. Proulx; R. v. Cloutier 2021 CMAC 3; R. v. Christmas 2022 CMAC 1; R. v. Brown 2022 CMAC 2; R. v. Thibault 2022 CMAC 3; and Remington constitute sound jurisprudence and reflect the current state of the law. We would answer the constitutional question in the negative. The fact military judges are also officers in the Canadian Armed Forces does not render them partial and lacking independence.

[4] For the reasons set out above, we are of the view there is no merit to the assertion the Military Judge lacked independence and impartiality. We dismiss the appeal.

“B. Richard Bell”

“J. Edward Scanlan”

“Gladys I. Pardu”

COURT MARTIAL APPEAL COURT OF CANADA

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