Wednesday, June 15, 2016

R v. Moriarity and its aftershocks on the Canadian military justice system

In a recent decision the Court Martial Appeal Court of Canada [CMAC] in Master Corporal Royes v. Her Majesty the Queen, CMAC 568 held that paragraph 130(1) of the National Defence Act interpreted without a military nexus requirement is indeed constitutional.  At the hearing the Appellant had submitted that, notwithstanding the Supreme Court of Canada’s conclusions in R v. Moriarity, 2015 SCC 55, [2015] 3 S.C.R. 785 on overbreadth, paragraph 130(1)(a) of the NDA does not refer to offences under military law within the meaning of section 11(f) of the Canadian Charter of Rights and Freedoms [the Charter] and therefore violates the right to trial by jury. 

Acknowledging that the Moriarity decision has been inconsistent with past decisions of the CMAC on that issue which had consistently emphasized the need for a military nexus to abide by section 11(f) of the Charter, the CMAC noted that it is now bound by the SCC decision and that it has no choice but to express its disagreement with the Appellant's interpretation. 

For the purpose of added clarity, in its decision, the CMAC also noted that the term “military law” is not defined in the Charter nor in the National Defence Act. However, it added, the term is defined  in the Criminal Code of Canada  which states that : “military law includes all laws, regulations or orders relating to the Canadian Forces.”

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