R. v. Moriarity, (2015) 477 N.R. 356 (SCC)

• Judge: McLachlin, C.J.C., Abella, Rothstein, Cromwell, Moldaver, Karakatsanis, Wagner, Gascon and Côté, JJ.
• Court: Supreme Court (Canada)
• Case Date: May 12, 2015
• Jurisdiction: Canada (Federal)
• Citations: (2015), 477 N.R. 356 (SCC);2015 SCC 55

R. v. Moriarity (2015), 477 N.R. 356 (SCC)

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[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [2015] N.R. TBEd. NO.023

Second Lieutenant Moriarity (appellant) v. Her Majesty the Queen (respondent)

Private M.B.A. Hannah (appellant) v. Her Majesty the Queen (respondent)

Private Alexandra Vezina (appellant) v. Her Majesty the Queen (respondent)

Sergeant Damien Arsenault (appellant) v. Her Majesty the Queen (respondent)

(35755; 35873; 35946; 2015 SCC 55; 2015 CSC 55)

Indexed As: R. v. Moriarity

Supreme Court of Canada

McLachlin, C.J.C., Abella, Rothstein, Cromwell, Moldaver, Karakatsanis, Wagner, Gascon and Côté, JJ.

November 19, 2015.

Summary:

The accused were convicted in two Standing Courts Martial of a variety of offences under s. 130(1)(a) of the National Defence Act, which provided for service trials for civil offences. On appeal, the accused asserted that, by incorporating civil offences unrelated to military service in the Code of Service Discipline, s. 130(1)(a) employed unconstitutionally broad means to achieve its purpose of enforcing discipline, efficiency and morale in the military. In particular, the accused asserted that s. 130(1)(a) violated their liberty rights under s. 7 of the Charter and that the effects of the overbreadth violated their rights to a jury trial and the right not to be arbitrarily subjected to trial by a military tribunal. They asked the court to declare s. 130(1)(a) to be unconstitutional and of no force or effect and to dismiss all of the charges against them as their convictions were based on an unconstitutional law.

The Court Martial Appeal Court, in a decision reported at (2014), 455 N.R. 59, dismissed the appeals. A similar appeal with respect to s. 117(f) of the Act, which provided for service trials for "any act of a fraudulent nature", was also dismissed as moot (see (2014), 466 N.R. 2). The accused appealed.

The Supreme Court of Canada dismissed the appeals.

Armed Forces - Topic 8621

Offences - Trials - General - [See third Civil Rights - Topic 3107.2 ].

Civil Rights - Topic 724

Liberty - Charter of Rights and Freedoms - Persons protected - The accused were convicted in Standing Courts Martial of a variety of offences under ss. 117(f) and 130(1)(a) of the National Defence Act, which provided for service trials for civil offences - On appeal, the accused asserted that, by incorporating civil offences unrelated to military service in the Code of Service Discipline (CSD), the provisions restrained their liberty in a manner that was overbroad, resulting in a violation of s. 7 of the Charter - The Supreme Court of Canada agreed that ss. 117(f) and 130(1)(a) engaged the liberty interests of persons who were subject to the CSD - The liberty interest was engaged by the risk of imprisonment - See paragraphs 17 to 19.

Civil Rights - Topic 726

Liberty - Charter of Rights and Freedoms - Denial of liberty - What constitutes - [See third Civil Rights - Topic 3107.2 ].

Civil Rights - Topic 3107.2

Trials - Due process, fundamental justice and fair hearings - General principles and definitions - Overbreadth principle (incl. arbitrariness) - At issue was whether certain provisions of the National Defence Act, which provided for service trials for civil offences, were overbroad, resulting in a violation of s. 7 of the Charter - The Supreme Court of Canada discussed the first step in the overbreadth analysis: identifying and articulating the provisions' legislative purpose - It was critically important to identify the law's purpose and effects because overbreadth was concerned with whether there was a disconnect between the two - The effects depended on the means adopted by the law and were usually easy to identify - The objective might be more difficult to articulate, but that articulation should focus on the law's ends, rather than its means, should be at an appropriate level of generality and should capture the law's main thrust in precise and succinct terms - "[C]ourts should be cautious to articulate the legislative objective in a way that is firmly anchored in the legislative text, considered in its full context, and to avoid statements of purpose that effectively predetermine the outcome of the overbreadth analysis without actually engaging in it." - See paragraphs 24 to 33.

Civil Rights - Topic 3107.2

Trials - Due process, fundamental justice and fair hearings - General principles and definitions - Overbreadth principle (incl. arbitrariness) - The accused were convicted in Standing Courts Martial of a variety of offences under ss. 117(f) and 130(1)(a) of the National Defence Act, which provided for service trials for civil offences - On appeal, the accused asserted that, by incorporating civil offences unrelated to military service in the Code of Service Discipline, the provisions restrained their liberty in a manner that was overbroad, resulting in a violation of s. 7 of the Charter - The Supreme Court of Canada, in dismissing the appeals, stated, "I conclude that Parliament's objective in creating the military justice system was to provide processes that would assure the maintenance of discipline, efficiency and morale of the military. That objective, for the purposes of the overbreadth analysis, should not be understood as being restricted to providing for the prosecution of offences which have a direct link to those values. The challenged provisions are broad laws which have to be understood as furthering the purpose of the system of military justice. Both s. 130(1)(a) and s. 117(f)'s purpose is to maintain discipline, efficiency and morale in the military. The real question, as I see it, is whether there is a rational connection between that purpose and the effects of the challenged provisions." - See paragraphs 34 to 48.

Civil Rights - Topic 3107.2

Trials - Due process, fundamental justice and fair hearings - General principles and definitions - Overbreadth principle (incl. arbitrariness) - The accused were convicted in Standing Courts Martial of a variety of offences under ss. 117(f) and 130(1)(a) of the National Defence Act, which provided for service trials for civil offences - On appeal, the accused asserted that, by incorporating civil offences unrelated to military service in the Code of Service Discipline, the provisions restrained their liberty in a manner that was overbroad, resulting in a violation of s. 7 of the Charter - The Supreme Court of Canada dismissed the appeals - The accused's position was based on an overly narrow understanding of how the provisions' effects were connected to their purpose - The objective of maintaining "discipline, efficiency and morale" in the military was rationally connected to dealing with criminal actions committed by military persons even when those actions did not occur in military circumstances - Criminal or fraudulent conduct, even when committed in circumstances not directly related to military duties, might have an impact on the standard of discipline, efficiency and morale - The accused failed to show that prosecution under military law of military members who had engaged in the conduct covered by ss. 117(f) and 130(1)(a) was not rationally connected to the maintenance of discipline, efficiency and morale in the military - See paragraphs 49 to 56.

Cases Noticed:

R. v. J.S.K.T., (2008), 232 C.C.C.(3d) 498; 2008 CMAC 3 (Can. Ct. Martial App. Ct.), refd to. [para. 8].

R. v. Trépanier - see R. v. J.S.K.T.

R. v. St. Jean, 2000 CanLII 29663 (Ct. Martial App. Ct.), refd to. [para. 8].

Bedford et al. v. Canada (Attorney General), [2013] 3 S.C.R. 1101; 452 N.R. 1; 312 O.A.C. 53; 2013 SCC 72, refd to. [para. 24].

Ward v. Canada (Attorney General) et al., [2002] 1 S.C.R. 569; 283 N.R. 201; 211 Nfld. & P.E.I.R. 125; 633 A.P.R. 125; 2002 SCC 17, refd to. [para. 27].

Carter et al. v. Canada (Attorney General) et al., [2015] 1 S.C.R. 331; 468 N.R. 1; 366 B.C.A.C. 1; 629 W.A.C. 1; 2015 SCC 5, refd to. [para. 28].

R. v. Heywood (R.L.), [1994] 3 S.C.R. 761; 174 N.R. 81; 50 B.C.A.C. 161; 82 W.A.C. 161, refd to. [para. 29].

R. v. Khawaja (M.M.), [2012] 3 S.C.R. 555; 437 N.R. 42; 301 O.A.C. 200; 2012 SCC 69, refd to. [para. 29].

R. v. Garofoli et al., [1990] 2 S.C.R. 1421; 116 N.R. 241; 43 O.A.C. 1, refd to. [para. 31].

R. v. Généreux, [1992] 1 S.C.R. 259; 133 N.R. 241, refd to. [para. 41].

R. v. Ionson (1987), 4 C.M.A.R. 433 (Ct. Martial App. Ct.), affd. [1989] 2 S.C.R. 1073; 120 N.R. 81, refd to. [para. 55].

R. v. MacEachern (1985), 63 N.R. 59; 4 C.M.A.R. 447 (Ct. Martial App. Ct.), refd to. [para. 55].

Schachter v. Canada et al., [1992] 2 S.C.R. 679; 139 N.R. 1, refd to. [para. 58].

Statutes Noticed:

National Defence Act, R.S.C. 1985, c. N-5, sect. 117(f) [para. 9]; sect. 130(1)(a) [para. 6].

Counsel:

Mark Létourneau, Jean-Bruno Cloutier and Delano K. Fullerton, for the appellants;

Steven D. Richards and Bruce W. MacGregor, for the respondent.

Solicitors of Record:

Defence Counsel Services, Gatineau, Quebec, for the appellants;

Director of Military Prosecutions, Ottawa, Ontario, for the respondent.

These appeals were heard on May 12, 2015, by McLachlin, C.J.C., Abella, Rothstein, Cromwell, Moldaver, Karakatsanis, Wagner, Gascon and Côté, JJ., of the Supreme Court of Canada. On November 19, 2015, Cromwell, J., delivered the following judgment for the court in both official languages.