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Military defence Charter thrust parried in Supreme Court ruling

Decision casts wide net for prosecution of Canadian Armed Forces members
By Cristin Schmitz
December 04 2015 issue

Lieutenant Commander Mark Létourneau, left, and Lieutenant Colonel Jean-Bruno Cloutier, seen above in Ottawa, were part of a defence team that launched an unsuccessful Charter appeal before the Supreme Court of Canada regarding the breadth of powers within the military to prosecute Canadian Armed Forces members. [Photo by David Chan for The Lawyers Weekly]

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The Supreme Court has repelled a sweeping Charter attack on the military justice system in a landmark decision that rejects a constitutional challenge for overbreadth.

Justice Thomas Cromwell’s 9-0 judgment Nov. 19 concludes that, pursuant to the National Defence Act, military authorities can opt to prosecute Canadian Armed Forces members under the Code of Service Discipline for nearly all crimes and federal infractions committed within Canada — from sex assault to copyright infringement — even if the misconduct occurs outside the military context.

The effect of the decision in R. v. Moriarty, [2015] SCC 55 is to preserve the military justice system’s parallel jurisdiction over Forces members.

“Bottom line, the Supreme Court of Canada stated that the purpose of the military justice system is to deal with matters that pertain both directly and indirectly to military discipline,” said Lieutenant Commander Mark Létourneau, co-counsel for the four appellant Forces members who were variously convicted by service tribunals below of sex, drug and fraud crimes.

The decision “means that each and every conduct committed by a military person is subject to” the Code of Service Discipline, Létourneau said.

“It really boils down to status: if you’re military, or if you’re subject to the code, that’s it. You’re going to be under the jurisdiction of military courts — no matter how small, or how unrelated, that conduct may be to [Forces] discipline or to the operational efficiency of the military.”

In the wake of Moriarty “it becomes a political decision” whether to maintain the “blank cheque” the National Defence Act gives to military authorities, he suggested.

The top court upheld the constitutionality of s. 130(1)(a) of the National Defence Act, which makes offences under the Criminal Code or any other federal statute, that take place in Canada, subject to prosecution and punishment as military offences, as well as s. 117 (f) of the National Defence Act, which creates a service offence of committing any act of a fraudulent nature. (The only federal crimes not incorporated by reference into the Code of Service Discipline are murder, manslaughter and child abduction offences.)

Had the appellants’ s. 7 Charter challenge succeeded, all criminal charges and other alleged violations of federal statutes by Forces members would have had to be tried by civilian courts. The Forces tribunals’ jurisdiction would have been restricted to military disciplinary offences, such as disobedience of a lawful command, absence without leave, and conduct that prejudices good order and discipline.

The Forces director of military prosecutions, Colonel Bruce MacGregor whose co-counsel was Steven Richards, told The Lawyers Weekly almost half of the cases tried in courts martial are related to Criminal Code and drug offences. He noted that some types of offences might not lead to charges being laid in the civilian context — such as possessing a small amount of marijuana — “but in our context, because of safety concerns, discipline concerns, operational effectiveness, those are cases that, albeit minor in the civilian context, are very important in our context —whether or not it is drugs that are downtown or within the unit lines.”

MacGregor described Justice Cromwell’s decision as a once-in-a-generation military justice landmark — comparable to R. v. Genereux, [1992] 1 S.C.R. 259.

“He made a decision that is very clear, I think, for lawyers and non-lawyers that when you are assessing these sections you have to determine what the objective or purpose of the sections are in the context of the [National Defence Act], and what the effect is, and if there is a rational connection between the purpose and effect, then it’s certainly not overbroad, and…[he] found there was a rational connection.”

MacGregor does not share the defence team’s view that the court applied the overbreadth analysis restrictively. “It’s not restrictive at all,” he said, arguing the court’s approach is consistent with its other case law, such as Canada (A.G) v. Bedford, 2013 SCC 72 and Carter v. Canada (A.G.), 2015 SCC 5.

The Supreme Court rejected the appellants’ key contention that the National Defence Act is unconstitutionally overbroad because the Code of Service Discipline creates service offences that do not pertain “directly” to the National Defence Act purpose of maintaining Forces “discipline, efficiency and morale.” The National Defence Act purpose does not encompass conduct and circumstances committed off duty and outside military precincts, they argued.

“The flaw in this position is that it is based on too narrow an understanding of how the effects of the provisions are connected to that purpose,” Justice Cromwell held.

He said criminal or fraudulent conduct by a Forces member, even when committed off duty, and while not in uniform or on a military base, “may have an impact on the standard of discipline, efficiency and morale.”

 For example, if a military member commits an assault in a purely civil context it “may call into question that individual’s capacity to show discipline in a military environment and to respect military authorities.” Therefore, in finding that the provisions are not overbroad, the judge said the objective of maintaining discipline, efficiency and morale is rationally connected to dealing with crimes committed by military members, even when not occurring in military circumstances.

In Moriarty, the Supreme Court adopted a restrictive approach to the constitutional doctrine of overbreadth, and “annihilated” the military nexus doctrine reinvigorated last year by the Court Martial Appeal Court below, said Lieutenant Colonel Jean-Bruno Cloutier, co-counsel with Létourneau and Colonel Delano Fullerton.
He suggested that given the broad way the court defined the purpose of the provisions, including the concept of military discipline, “it’s almost impossible to have any law that is overbroad in this context.”

The Court Martial Appeal Court upheld the impugned provisions on the basis that, properly interpreted, the National Defence Act requires a “military nexus” which ensures that military courts do not have authority over public offences lacking clear military connection.

That court held the provisions must be read only as broadly as necessary to achieve the National Defence Act purpose of maintaining Forces discipline, efficiency and morale.

However the Supreme Court rejected the military nexus and fully restored the military’s authority to choose to prosecute its members, rather than let the civilian criminal courts deal with them.

In practice, however, most offences committed in Canada by Forces members (there are approximately 85,000 regular and reserve members) are tried by civil courts. This is not expected to change. (As a matter of policy the Forces have left family violence and drinking and driving offences to the civilian courts).

Charter challenges for overbreadth focus on whether there is a disconnect between a law’s purpose and its effects. It is a s. 7 Charter-protected principle of fundamental justice that “a law that goes too far and interferes with the life, liberty or security of the person in a way that has no connection to its objective is fundamentally flawed,” Justice Cromwell explained.

He concluded that neither the challenged provisions of the National Defence Act, nor the overall scheme and thrust of that statute, support the requirement for a “direct link” or “military nexus” between the circumstances of the alleged offence and the discipline, efficiency or morale of the military.

“Had Parliament intended otherwise, it could have provided for a narrower application” of the Code of Service Discipline, Justice Cromwell observed.
“It has done so with respect to officers and non-commissioned members of the reserve force, as they are subject to” the code “only in specific circumstances.”

The appellants sought to strike down the National Defence Act provisions and thereby gain acquittals. The Court Martial Appeal Court upheld their convictions.

They contended the military nexus requirement read in by the Court Martial Appeal Court did not adequately address the constitutional flaws for several reasons, including that military nexus focuses exclusively on the needs of military discipline, while ignoring the overriding public interest, and that it violates a fundamental constitutional principle that civil authorities, i.e. the attorney general, must be supreme over the military when it comes to deciding whether to prosecute via the military or civilian criminal justice systems.

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