Friday, January 9, 2015

Two observations in relation to the Moriarity and Larouche cases

The Supreme Court of Canada
S. 130(a) of the National Defence Act (NDA) imports into the Canadian military Code of Service Discipline ordinary criminal offences found in the Criminal Code of Canada as well as those contained in Federal statutes. They become "service offences".

In Moriarity v. Canada 2014 CMAC 1, the Court Martial Appeal Court of Canada (CMAC) found that s. 130(a) was not constitutionally over broad because its scope of application is limited by the requirement of a military nexus: see para. 111. However no such requirement of a military nexus is to be found in the legislative provision. The requirement is a jurisprudential creation of the Supreme Court of Canada in  MacKay v. The Queen (1960) 2 S.C.R. 370, reiterated by Chief Justice Lamer this time in the context of the constitutional validity of a separate system of military justice: see Généreux v. The Queen (1992) 1 S.C.R. 259.

In the subsequent case of Larouche v. Canada 2014 CMAC 8, a different panel of the CMAC came to a different conclusion. At para. 15 of the decision it found that s. 130(a) was overbroad because it violates ss. 7 and 11(f) of the Canadian Charter of Rights and Freedoms. While s. 7 guarantees the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice, s. 11(f) confers the right to a trial by a jury except where the trial takes place before a military trial.

The Court in Larouche read in s. 130(a) the requirement of a military nexus and came with the following redraft of the provision:
       [134]       Paragraph 130(1)(a) of the NDA must now be read as follows:
130. (1) An act or an omission which is so connected with the service in its nature, and in the circumstances of its commission, that it would tend to affect the general standard of discipline and efficiency of the service of the Canadian Forces
130. (1) Constitue une infraction à la présente section tout acte ou omission, qui est à ce point relié à la vie militaire, par sa nature et par les circonstances de sa perpétration, qu’il est susceptible d’influer sur le niveau général de discipline et d’efficacité des Forces canadiennes:
(a) that takes place in Canada and is punishable under Part VII, the Criminal Code or any other Act of Parliament, or
a) survenu au Canada et punissable sous le régime de la partie VII de la présente loi, du Code criminel ou de toute autre loi fédérale;
is an offence under this Division and every person convicted thereof is liable to suffer punishment as provided in subsection (2).
This redrafting has the result of making the  military nexus requirement an essential element of the offence while it has always been considered a condition precedent to the military court's acquisition and exercise of its jurisdiction: see MacKay, supra; R. v. Nystrom 2005 CMAC 7; R. v. Trépanier 2008 CMAC 3at paras. 25 and 6.

It does not make sense to see the military nexus requirement as an essential element of an offence charged which already contains in its definition all the essential elements necessary for a proper and valid conviction either by a civilian tribunal or a military tribunal having jurisdiction to try it.

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