Thursday, November 19, 2015

SCC decides Moriarity and companion cases

Today's unanimous decision of the Supreme Court of Canada in R. v. Moriarity 2015 SCC 55 can be found here. Bottom line: the appeals are dismissed.
"[T]he appellants have failed to show that the prosecution under military law of members of the military engaging in the full range of conduct covered by ss. 130(1)(a) and 117(f) is not rationally connected to the maintenance of discipline, efficiency and morale regardless of the circumstances of the commission of the offence. The challenged provisions are therefore not overbroad."
Blogger David Dias has this comment on Legal Feeds. Excerpt:
Military personnel are subject to court martial for all federal offences, even when those offences have nothing to do with the accused’s military service.

That’s the ruling from the Supreme Court of Canada today. The court issued four related decisions dealing with the constitutionality of the National Defence Act, which mandates court martial for all federal offences.

In the decision, indexed under R. v. Moriarty, military officers convicted of various offences — such as fraud and drug trafficking — argued before the Court Martial Appeal Court that their Charter rights were being violated by “overbroad” provisions that denied them a jury trial for non-military offences. 
That argument was shot down decisively today. In a decision written by Justice Thomas Cromwell on behalf of a unanimous court, the SCC upheld the CMAC’s finding that NDA provisions mandating court martial are indeed constitutional in that they serve the purpose of maintaining discipline, efficiency and morale in the military service. 
“The objective of maintaining ‘discipline, efficiency and morale’ is rationally connected to dealing with criminal actions committed by members of the military even when not occurring in military circumstances,” the decision states. “The behaviour of members of the military relates to discipline, efficiency and morale even when they are not on duty, in uniform, or on a military base.” 
The decision, moreover, strikes down the doctrine of “military nexus,” which requires a connection, albeit a loose one, between the nature of the offence and the accused’s military service. Rather, the SCC finds that simply being a member of the military establishes the requisite connection.


  1. In short, Supreme Court validates the exercise of military jurisdiction over ordinary criminal law offences. For the Court, Cromwell J. writes that it is not illogical to think that any offence committed by a service member - irrespective of the context - will have an impact on the maintenance of discipline, efficiency, and morale of the troops (see paragraphs 51-53).

    However this leaves open and well alive the issue of disparity of treatment between civilian and military justice systems.

  2. Remember, too, that it remains open to Parliament to revisit the question of military jurisdiction over ordinary criminal law offenses. Simply because an arrangement is constitutional does not mean it is wise or good policy. That is for Parliament to determine.

    1. I agree fully. The National Defence Act in general and section 130 are now to be considered as 'constitutional'. The Supreme Court of Canada (SCC) has spoken. Fine. It is not up to the SCC to modernize the act to ensure that CF members are not deprived of several of their constitutional rights (such as a right to a jury trial) which is now the case. This means that the legislator has no other choice but to step in and enact such changes. Otherwise, this would mean that CF members will be condemned to have a second class status with regards to some of their rights.


Comments are subject to moderation and must be submitted under your real name. Anonymous comments will not be posted (even though the form seems to permit them).