Wednesday, January 22, 2014

Nexus Redux

Chief Justice Edmond P. Blanchard
There was an important decision on January 21 by the Court Martial Appeal Court of Canada. In a unanimous ruling, the court, per Chief Justice Edmond P. Blanchard, made it clear that there must be a "military nexus" (what U.S. practitioners used to call "service connection") in order for a court-martial to try a civilian-type offense under § 130 of the Code of Service Discipline. The case is Moriarity v. The Queen; Hannah v. The Queen, 2014 CMAC 1. The court acknowledged Solorio v. United States, 483 U.S. 435 (1987) (which abandoned the service-connection requirement of O'Callahan v. Parker, 395 U.S. 258 (1969)), but observed (¶ 64) that "the American jurisprudence in this area is founded on constitutional provisions that are different than our own and where the status of the accused is the key jurisdictional concern -- not the nature of the offence." The decision embraces Lamer, CJC's observation in R. v. Généreux, [1992] 1 S.C.R. 259, that "[t]he purpose of a separate system of military tribunals is to allow the Armed Forces to deal with matters that pertain directly to the discipline, efficiency and morale of the military" (emphasis supplied). Although it puts to rest an important issue, the decision benefits neither of the appellants, as they had not raised the absence of a military nexus for any of the offenses of which they were convicted.

Gabriela Knaul, the UN Special Rapporteur on the Independence of Judges and Lawyers, wrote in 2013:

"98. As a specialized jurisdiction aimed at serving the particular disciplinary needs of the military, the ratione materiae jurisdiction of military tribunals should be limited to criminal offences of a strictly military nature, in other words to offences that by their own nature relate exclusively to legally protected interests of military order, such as desertion, insubordination or abandonment of post or command."

"99. States should not resort to the concept of service-related acts to displace the jurisdiction belonging to the ordinary courts in favour of military tribunals. Ordinary criminal offences committed by military personnel should be tried in ordinary courts, unless regular courts are unable to exercise jurisdiction owing to the particular circumstances in which the crime was committed (i.e. exclusively in cases of crimes committed outside the territory of the State). Such cases should be expressly provided for by the law."

What is the law (and actual practice) in your country?


  1. Solorio was a pragmatic concession caused by the unwieldy O'Callahan service nexus test. American military justice still struggles to adequately defend a system that would split co-conspirators to significantly different tribunals merely because of their respective employers. Even if commanders lose the ability to punish off-post offenses, they should still be able to maintain command and control over their units with the plethora of others powers they possess.

  2. Pursuant to paragr.11(f) of the Canadian Charter of Rights and Freedoms, an accused possesses a constitutional right to a trial by jury where the maximum punishment for the offence is imprisonment for 5 years or a more severe punishment, except in the case of an offence under military law tried before a military tribunal. Over the years the jurisdiction of military tribunals expanded to apply to just about every ordinary criminal law offence committed by a member of the Canadian Forces.
    French emperor Napoleon known for his epic wars believed that a soldier was a French citizen before being a soldier and, therefore if he committed a crime, he ought to be tried by a civilian tribunal whenever possible. French citizens being all equal before the law under the French Constitution, France abolish military tribunals in peace time as of January 2012.
    Canada chose a different avenue when it enacted paragr. 11(f) of the Charter. In effect the choice made deprived members of the Canadian Forces of the constitutional right to a jury trial for serious ordinary criminal law offences. The Moriarity decision of the CMAC is a most welcome step towards ensuring that prosecutions before military tribunals are justified by military needs and objectives. The decision is an important step towards the safeguard of the constitutional right to a trial by jury for members of the Forces.


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