Hearing tomorrow for 3 military cases in the Supreme Court of Canada

Supreme Court of Canada

On May 12, 2015, the Supreme Court of Canada will hear argument in three important military justice cases: Moriarity, Vezina and Arsenault. If any Global Military Justice Reform readers are able to attend, perhaps they could post comments. The Registrar's case summaries appear below.

Second Lieutenant Moriarity, et al. v. Her Majesty the Queen, et al.
Canadian Charter of Rights and Freedoms - Whether s. 130(1)(a) of the National Defence Act violates s. 7 and s. 11(f) of the Charter - Whether the military nexus doctrine applies to s. 130(1)(a) of the National Defence Act - Whether s. 130(1)(a) of the National Defence Act is constitutional.

The applicant Moriarity was a Cadet Instructor Cadre officer. While in a position of trust and authority with respect to cadets he interacted with, he engaged in inappropriate sexual relationships with two cadets. He was charged with four Criminal Code offences: two offences relating to sexual exploitation contrary to s. 153, one offence for sexual assault contrary to s. 271 and one offence for invitation to sexual touching contrary to s. 152.

The applicant Hannah was a member of the Canadian Forces and a student at the Canadian Forces Base Gagetown. He purchased and delivered a controlled substance to another engineering candidate and the drugs were found in that student’s quarters on the base. He was charged with trafficking of a substance included in Schedule IV contrary to s. 5(1) of the Controlled Drugs and Substances Act and unlawful selling of a substance containing a drug included in Schedule F contrary to the Food and Drug Regulations and Food and Drugs Act.

The applicants confessed and made admissions but challenged the constitutionality of s. 130(1)(a) of the National Defence Act. Their constitutional challenges and their appeals from conviction were dismissed.

Private Alexandra Vezina v. Her Majesty the Queen
Canadian Charter of Rights and Freedoms - Whether s. 130(1)(a) of the National Defence Act violates s. 7 and s. 11(f) of the Charter - Whether the military nexus doctrine applies to s. 130(1)(a) of the National Defence Act - Whether s. 130(1)(a) of the National Defence Act is constitutional.

The appellant was found guilty of four counts of trafficking contrary to s. 5(1) of the Controlled Drugs and Substances Act. After the finding of guilt, defence counsel brought an application for a stay of the proceedings on the basis that his client was entrapped into committing the offences by the military police. This was dismissed. She appealed to the Court Martial Appeal Court, raising an issue of the constitutionality of the s. 130(1)(a) of the National Defence Act. Her appeal was dismissed. She brought an application for leave to appeal from the judgment of the Court Martial Appeal Court on all issued, but it was granted only as to the issue related to s. 130(1) of the National Defence Act.

Sergeant Damien Arsenault v. Her Majesty the Queen
Canadian Charter of Rights and Freedoms - Military offences - Whether ss. 117(f) and 130(1)(a) of National Defence Act, R.S.C. 1985, c. N-5 (“NDA”), contrary to s. 7 of Canadian Charter of Rights and Freedoms.

Several charges were laid against the appellant, 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 $30,725 he had been paid in separation expenses after being transferred from the base at Valcartier to the one at Gagetown, and to $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 appellant is challenging the constitutionality of ss. 117(f) and 130(1)(a) of the NDA on the ground that they are overbroad and therefore contrary to s. 7 of the Canadian Charter of Rights and Freedoms.