Saturday, December 13, 2014

Leave granted in Arsénault case

The Supreme Court of Canada
On December 11, 2014, the Supreme Court of Canada granted leave to appeal the decision of the Court Martial Appeal Court of Canada in Arsénault v. H.M. The Queen, 2014 CMAC 8 (Cournoyer, J.). The CMAC opinion recites in pertinent part:
II. First ground of appeal: The constitutionality of paragraph 130(1)(a) and section 117f of the NDA [National Defence Act]
[11] In R. v. Moriarity/Hannah and R. v. Larouche, this Court held that section 130(1) of the NDA violates section 7 and section 11f of the Charter because it is overbroad.
[12] However, it is possible and constitutionally appropriate to adopt a reading down ("reading down") of this article to restrict its scope and to include for this purpose by broad interpretation ("reading in") the criterion of the connection with military service made by McIntyre J. in his concurring opinion in MacKay v. The Queen.
[13] An offense under section 130 of the Act may be tried under the Code of Service Discipline when it is so connected to the military, by its nature or the circumstances surrounding its commission, it is likely to affect the overall level of discipline and effectiveness of the Canadian Forces. Such an offense under military justice under section 11f of the Charter and the jurisdiction of the Canadian military courts because it directly affects the discipline, efficiency and morale of the troops.
[14] At the appeal hearing, the appellant agreed that this criterion is satisfied in the circumstances of this case. Further analysis is therefore unnecessary in this regard. This ground of appeal must be dismissed. [Rough Google translation; footnotes omitted.]
Lexology provides the following summary:
35946  Arsénault v. The Queen  (Charter – Military offences – Whether offence under s. 130(1)(a) of National Defence Act, R.S.C. 1985, c N-5 (“NDA”), is overbroad, contrary to s. 7 of Charter)
On appeal from the judgment of the Court Martial Appeal Court of Canada pronounced June 13, 2013.  Several charges were laid against the applicant, including one count under s. 130 of the NDA of committing fraud contrary to s. 380(1) of the Criminal Code, two counts under s. 117(f) of the NDA of committing acts of a fraudulent nature not particularly specified in ss. 73 to 128 of the NDA, and one count under s. 125(a) of the NDA of wilfully making a false statement in a document he had signed that was required for official purposes.  The charges related to a total of $30,725 he had been paid in separation expenses after being transferred from the base at Valcartier to the one at Gagetown, and to a total of $3,469 he had been paid as a post living differential.  He was, in particular, alleged to have made a number of false monthly statements regarding his marital status, and to the effect that he had dependants. The Standing Court Martial dismissed the Applicant’s motion for declaration that ss. 130(1)(a) and 117(f) of the National Defence Act were unconstitutional. The Court Martial Appeal Court dismissed the appeal.
In granting leave, the Supreme Court also directed:
The appeal is to be heard with the appeals Second Lieutenant Moriarity v. Her Majesty the Queen – and between – Private M.B.A. Hannah v. Her Majesty the Queen (35755) and Private Alexandra Vézina v. Her Majesty the Queen (35873).
Global Military Justice Reform hopes to attend the hearing. 

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