Will Canada be moving towards a further expansion of the scope of the penal military justice system?

I attended the hearing of the Moriarity case before the Supreme Court of Canada on May 12, 2015. I walked out of the courtroom with serious concerns about the future.

The Canadian penal military justice system has expanded considerably over the years to the point that it can investigate, prosecute and try any federal statutory offence as well as any ordinary criminal law offence, except murder, manslaughter and the abduction of children when these crimes are committed in Canada. Section 130 of the National Defence Act (the Act) makes it a service offence to commit the above offences save for the three exceptions. The last addition to the penal military justice system was in 1998 when, without any discussion at all, the system acquired jurisdiction over sexual crimes reserved up to that point to civilian tribunals. Paragraph 130 (1)a aims at offences committed in Canada while paragraph 130(1)b covers offences perpetrated abroad.

We all know by now how the penal military justice system sadly failed the victims of sexual crimes notwithstanding repeated promises made by the military authorities that they would fix the problem. At the time of writing this comment it still has not been fixed. Indeed the military authorities’ cold reaction to former Supreme Court of Canada Justice Marie Deschamps’ report on sexual assaults in the military does not look too promising in terms of its implementation. They had the report on their desk for more than a month before it was released to the public. The medias now allege that the Chief of the Defense Staff Tom Lawson, before the public release of the report, instructed the team charged with the task of implementing it to ignore some of its principal recommendations.

Essentially the appellant’s position in the Moriarity case was that par. 130(1)a of the Act is overbroad, and therefore unconstitutional, because the jurisdiction of the penal military justice system is not limited to acts or omissions that pertain directly to the discipline, efficiency and morale of the military. The constitutional challenge was brought under s.7 of the Canadian Charter of Rights and Freedoms (Charter) which guarantees the right to liberty and security of the person and the right not to be deprived of it except in accordance with the principles of fundamental justice.

The appellant’s position was an all-or-nothing win. He took the position that the requirement of a military nexus in the form of a “service connected offence” imposed by the Court Martial Appeal Court (CMAC) endangers the Rule of Law and the values that underpin it: certainty, accessibility, intelligibility, clarity and predictability. In so doing he boosted the respondent’s position, Her Majesty The Queen, that the concept of military nexus was unacceptable , unworkable, unpredictable and many other “un”.

The respondent argued that the military nexus requirement had earlier been abolished by the CMAC and should not have been resurrected. In addition, in my respectful view, counsel for the respondent erroneously submitted to the court that the military nexus requirement had been abolished in the United States. What the US Supreme Court did was to replace the “service connected” test by a “status” test, thereby extending the scope of application of the US penal military jurisdiction. Under that new test, one is a soldier 24 hours a day, 365 days a year, whether on duty or not. Thus a soldier on holidays who, on a Sunday, finds himself in the middle of a brawl in a downtown bar, a thousand miles away from his home, still falls under the penal military jurisdiction.

It is fair to say that some judges of the Supreme Court had difficulty understanding how the overbreath doctrine applied in the context raised by the appellant, how it deprived of his liberty an accused charged with a crime and how the deprivation was not in accordance with the principles of fundamental justice.

Counsel for the respondent submitted to the Supreme Court that it does not have to address the issue of the military nexus if the appellant’s challenge under s.7 of the Charter fails. Should that be the case the Supreme Court is left with four options: not rule on the military nexus issue and leave the decision of the CMAC binding on that issue, maintain the requirement of a military nexus in the form of a “service connection test”, expand the actual test to a “status” test as done in the USA or eliminate altogether the need for a military nexus.

If the Supreme Court were to adopt the last option, not only would it be reversing its previous jurisprudence in Mackay v. R., (1980) 2 S.C.R. 370 and  R. v. Généreux, (1992) 1 S.C.R. 259, it would impose no limit on the scope of the penal military jurisdiction. As for an expansion of the Canadian test by adopting the US “status” test, before doing that, the Supreme Court would be well advised to look at the serious and numerous criticisms currently made of the “status” test.