Généreux Case

In 1985, in the Valente case, the Supreme Court dealt for the first time with judicial independence. On the second occasion, it was with the MacKay case, which dealt with military justice. In both instances, however, the cases were judged before the adoption of the Canadian Charter of Rights and Freedoms. In the Généreux case (1992), the Supreme Court concluded that a system of military justice could exist parallel to a judicial system that applied to everyone. Parliament could create courts martial. However, in the light of the 3 essential conditions of judicial independence set out in Valente, the court found that military judges did not enjoy security of tenure, that their financial security was not protected, and that their administrative autonomy was not sufficiently protected, leaving them open to discretionary or arbitrary interference. The Court concluded that a General Court Martial was required to be an independent and impartial tribunal for the purposes of section 11(d) of the Charter. The structure of the General Court Martial in this case infringed the accused's right to be tried by an independent and impartial tribunal.

In the aftermath of the Généreux case, Canadian military authorities brought about significant changes in the military justice system. The changes came about following 2 reports made by the late Chief Justice of the Supreme Court, the Right Honourable Brian Dickson, who was commissioned by the Canadian government after his retirement to make recommendations to improve the system of court martials. A new National Defence Act was enacted by Parliament in December 1998; the parallel system of court martials was henceforth substantially modified and other reforms will follow. The Généreux case has been very useful for improving the system of military justice in Canada.