Canadian CMAC to address constitutional issue

In its Oct. 30, 2014 decision in Royes v. The Queen, 2014 CMAC 10, the Court Martial Appeal Court of Canada carved out an issue relating to the constitutionality of para. 130(1)(a) of the National Defence Act. The court decided other issues in the case, but on the constitutional question Trudel, J. wrote:

d.      Fourth, the appellant submits that paragraph 130(1)(a) of the NDA is unconstitutional. He argues that our Court’s recent decision in Moriarity v. Canada, 2014 CMAC 1, 455 N.R. 59, leave to appeal to S.C.C. granted, 35755 (July 24, 2014), which limited the scope of the provision to offences with a military nexus, was incorrect and should be overruled.

[3] At the hearing of this appeal, our Court was informed that the appellant had not served a Notice of Constitutional Question pursuant to rule 11.1 of the Court Martial Appeal Court Rules, S.O.R./86-959 (the Rules). As this is a condition precedent to our Court’s jurisdiction over the constitutional matter and in view of the importance of the question to the appellant who has been sentenced to 36 months of imprisonment, the appeal was adjourned on this issue to January 23, 2015 to allow the appellant to comply with the Rules.

So stay tuned: there will be a further CMAC ruling. The court might await the Supreme Court's decision in Moriarity, but given the timing of the two cases (Moriarity will not even be argued until May), could get its oar in before the SCC acts.