R v Moriarity: Reconfirming the Jurisdiction of Court Martial in Canada

In R v Moriarity, 2015 SCC 55 [Moriarity], the Supreme Court of Canada (“SCC”) looked at whether certain provisions of the National Defence Act, RSC 1985, c N-5 [NDA] are overbroad and contrary to section 7 of the Canadian Charter of Rights and Freedoms [Charter]. The practical consequences of the case have to do with the ability of military courts to adjudicate offences committed by members of the military under civilian circumstances. In a thirty-five page decision, Justice Cromwell quickly dismissed the Charter arguments of the appellants, effectively affirming the jurisdiction of military courts.

Facts

The focus of the appeals in Moriarity is sections 130(1)(a) and 117(f) of the NDA. Section 130(1)(a) makes offences punishable under Part VII of the NDA and The Criminal Code, RSC 1984, c C-46, offences that may be prosecuted within the military justice system. Section 117(f) creates a service offence for committing any act of a fraudulent nature. The effect of the sections is to extend the jurisdiction of military tribunals in relation to all underlying federal offences (Moriarity, para 8).

The minutia of the cases of the four accused bringing the appeal are not very important.  All four were convicted for offences punishable under the Criminal Code and the Controlled Drugs and Substances Act, SC 1996, c 19 as stipulated by section 103(1)(a) of the NDA before military tribunals. They all argued that their section 7 Charter rights were violated. In all cases the military judge held that section 103 was constitutional (Moriarity, para 11). Two of the appellants appealed to the Court Martial Appeal Court (“CMAC”), which found that section 130(1)(a) was being limited by a “military nexus” requirement. This requirement was included to ensure that military courts do not have authority over public offences lacking clear military connection (Moriarity, para 12), thus tying the provision to military-related circumstances.

Analysis

Before the SCC, the appellants’ Charter challenge was based on their contention that both sections 130(1)(a) and 117(f) restrain liberty in a manner that is overbroad and violates section 7 of the Charter (Moriarity, para 16). Justice Cromwell found that there was no dispute that both sections in contention engaged liberty in that they create offences punishable by imprisonment. In order for these provisions to comply with section 7 of the Charter, the deprivation of liberty must be done in accordance with the principles of fundamental justice.

The appellants argued that the purpose of both sections 130(1)(a) and 117(f) must be understood as being limited to offences that pertain directly to the discipline, efficiency, and morale of the military (para 21). As such, the appellants argued that some of the effects of the provisions are not rationally connected to the purpose of the provisions in cases where there may not be a direct link between the circumstances of the offence and military discipline, efficiency, and morale (para 21). At issue were not the underlying offences, but the distinction between offences committed in military circumstances and those committed in civil circumstances.

From the outset, Justice Cromwell made it clear that the scope of Parliament’s authority to legislate in relation to “Militia, Military and Naval Service, and Defence” under section 91(7) of the Constitution Act, 1867 and the scope of the exemption of military law from the right to jury trial was not in question (para 30). As such, the appropriate nature of the objective of the law and the provisions was not in question. The overbreadth analysis was used to distinguish between the objective of the law and the effects resulting from the means by which the law seeks to achieve the objective (para 24).

In the absence of a statement of purpose in the NDA, Justice Cromwell concluded that the purpose of the military justice system is aimed at assuring the discipline, efficiency, and morale of the armed forces (para 33). CMAC had considered the challenged sections in light of the objective of Parliament in permitting the prosecution of offences within the military justice system only where there is a “military nexus” between the circumstances of the alleged offence and the discipline, efficiency, and morale of the military (para 35). The SCC found this definition too narrow. It pointed out that an intent to limit the application of these provisions to situations in which there is a direct link between circumstances and the military cannot be supported by a plain reading of the specified provisions or any other provisions of the NDA (para 36).

The Court also dismissed the interpretation of an often quoted statement by Chief Justice Lamer, as he then was, in R v Généreux, [1992] 1 SCR 259 [Généreux]. In Généreux, Lamer CJ stated that “the purpose of a separate system of military tribunals is to allow the Armed Forces to deal with matters that pertain directly to the discipline, efficiency and morale of the military” (page 293). However, Justice Cromwell found that the use by Lamer of the words “pertain directly” should not be understood as limiting the scope of the purpose to offences occurring in military circumstances (Moriarity, para 43). Second, the statement points to a broader interpretation when read alongside another statement in the same case. Chief Justice Lamer had also stated that:

Although the Code of Service and Discipline is primarily concerned with maintaining discipline and integrity in the Canadian Armed Forces, it does not serve merely to regulate conduct that undermines such discipline and integrity. The Code serves a public function as well by punishing specific conduct which threatens public order and welfare (Généreux, page 281).

Having concluded that Parliament’s objective in creating the military justice system was to provide processes that would ensure the discipline, efficiency, and morale of the military, the SCC also concluded that the objective should not be understood as being restricted to providing for the prosecution of offences that have a direct link to those values (Moriarity, para 46). It then turned its enquiry to the rational connection between the purpose of the challenged provisions and their effects.

The Court asked whether the law is inherently bad because there is no connection, in whole or in part, between its effect and its purpose (para 49). It found that the underlying offences apply regardless of the circumstances of the commission of the offence (para 49). According to Justice Cromwell, criminal or fraudulent conduct, even when committed in circumstances that are not directly related to military duties, may have an impact on the standard of discipline, efficiency, and morale (para 52). He found that the behaviour of members of the military is at least rationally connected to maintaining the discipline, efficiency, and morale of the armed forces even when its members are not on duty (para 54). And with that, the appeal was dismissed and sections 130(1)(a) and 117(f) were not found to be overbroad.

Military Courts Outside of Canada

The argument that section 130(1)(a) of the NDA violates section 7 of the Charter was decisively shot down by Justice Cromwell speaking on behalf of a unanimous court. The doctrine of a “military nexus” requiring a connection between the nature of offences and accused persons in military service was also struck down. It is interesting to note that countries like the Netherlands, Germany, Austria, Belgium, and France have removed criminal offences from the jurisdiction of military courts. However,  a discussion of this issue is not currently of much interest in Canada, nor does it look likely to be so in the immediate future.