## Facts

- Michel Généreux, a corporal in the Canadian Armed Forces, was charged with narcotics possession for the purpose of trafficking and with desertion.
- He was tried and convicted by a General Court Martial convened under the National Defence Act.
- The Court Martial Appeal Court affirmed the convictions.
- On further appeal, Généreux challenged the court martial’s constitutional validity, arguing it was not an independent and impartial tribunal because of the military chain of command’s control over appointments, tenure, pay, and administration.
- He also challenged the legality of a search of his home and sought exclusion of narcotics evidence.

## Issues

1. Whether Canadian Charter of Rights and Freedoms s. 11 applies to General Court Martial proceedings.
2. Whether the General Court Martial’s structure violated the right to be tried by an independent and impartial tribunal under Charter s. 11(d), and whether Charter s. 7 provided any broader protection.
3. Whether trying service members in a separate military tribunal for offences also prosecuted in civilian courts violated Charter s. 15 equality protections.
4. Whether the search violated Charter s. 8 and, if so, whether the evidence should be excluded under Charter s. 24(2).

## Decision

- The Supreme Court of Canada allowed the appeal in part and ordered a new trial.
- Charter s. 11 applied because the court martial determined guilt and imposed penal consequences.
- The General Court Martial, as structured at the time, was not an independent and impartial tribunal under Charter s. 11(d).
- The s. 11(d) breach was not justified under Charter s. 1.
- The existence of a separate military justice system was not, by itself, discriminatory under Charter s. 15.
- The warrant process was constitutionally deficient and breached Charter s. 8, though the dispositive remedy flowed primarily from the s. 11(d) defect.

## Legal Principles

- Courts martial that adjudicate criminal liability must comply with Charter s. 11(d)’s requirement of an independent and impartial tribunal.
- Judicial independence is assessed using three minimum conditions: security of tenure, financial security, and institutional independence in matters of administration that bear directly on adjudication.
- Independence is measured by whether a reasonable and informed observer would conclude, in context, that the tribunal is independent.
- Where Charter s. 11 applies, s. 7 generally should not be used to seek broader protection for the same subject matter addressed by s. 11(d).
- Military discipline and efficiency can be pressing objectives, but they do not justify institutional arrangements that fall below the constitutional minimum for independence.
- A parallel military justice system is constitutionally permissible, but it must meet constitutional standards, including independence.

## Conclusion

The Court held that Charter fair-trial guarantees apply to courts martial and that the General Court Martial’s dependence on the military hierarchy for tenure, pay, and administration violated s. 11(d), requiring a new trial despite acceptance in principle of a separate military justice system.


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