Law Times

Law Times • sepTember 22, 2014 Page 7 www.lawtimesnews.com COMMENT SCC case significant for military prosecution services By JOshua JuNeau aNd CassaNdra LéTOurNeau-duyNsTee For Law Times n granting leave to revisit the jurisdiction of the courts martial in Moriarity v. The Queen in July, the Supreme Court of Canada will soon be pronouncing on the most significant case in mili- tary justice in more than 20 years. In January, the Court Martial Appeal Court deci- sion in Moriarity reinstated the nexus requirement for the prosecution of military crimes. This means that in order for the courts martial to have jurisdic- tion to hear an offence, there must be a demonstrated military connection to it. With the case now heading to the top court, Moriarity will have major implica- tions for military justice. The Supreme Court outlined the rationale for requiring there to be a military nexus in 1980 in MacKay v. The Queen. In this judgment, Justice William McIntyre wrote: "It must not however be forgotten that, since the principle of equality before the law is to be maintained, departures [from the ordinary law] should be countenanced only where necessary for the attainment of desirable social ob- jectives, and then only to the extent necessary in the circumstances to make possible the attainment of such objectives." Interestingly, then-chief justice Bora Laskin took the opposite position. In his dissenting judgment, he held that "the provisions of the National Defence Act [should be] inoperative in so far as they provide for the trial of offences against the ordinary law by ser- vice tribunals." Laskin held the belief that civilian courts should try all ordinary Criminal Code offences that, by defi- nition, should not qualify as service offences. Inter- estingly, this is the system adopted in France where, in peacetime, the military has no jurisdiction to try criminal offences. In R. v. Généreux in 1992, the Supreme Court of Canada considered whether a court martial is an in- dependent and impartial tribunal for the purposes of s. 11 (d) of the Charter of Rights and Freedoms. Chief justice Antonio Lamer, writing for a majority, concluded that military tribunals are not only con- stitutional but are a requirement because military life is unique and military offences are best judged through a military lens. Specifically, Lamer affirmed the military nexus requirement by stating that mili- tary tribunals retain jurisdiction over all matters that "pertain directly to the discipline, efficiency and mo- rale of the military." Despite the clear and reasoned judgment rendered in MacKay, the prerequisite for a military nexus sub- sequently became muddled. In the 1990s, the Court Martial Appeal Court in R. v. Reddick referred to the nexus doctrine as "dis- tracting" and concluded: "If the National Defence Act by its terms clearly confers jurisdiction, as it does in the present case, then the only basis for attacking the jurisdiction of the court martial is to demon- strate that such law cannot constitutionally be ap- plied to this particular accused or offence." From Reddick, courts interpreted the nexus test as no longer being a precondition to determining juris- diction, and the decision itself identified no limita- tions. The Reddick decision created an incompatibility with Généreux: How can a nexus be essential (as out- lined in Généreux) but then not be a requirement for jurisdictional consideration (per Reddick)? The Reddick decision has been understood as lim- iting the nexus doctrine and deferring to the word- ing of the National Defence Act. Under s. 2 of the act, criminal offences are incorporated as service mat- ters. Section 130 of the act then details the jurisdic- tion of service trials, or courts martial, to include all service and ordinary law offences. Therefore, the literal interpretation taken by the court in Reddick had the practical effect of removing the need for the prosecution to discharge the burden of showing a military nexus. Due to the weight given to Reddick, until very recently the Court Martial Appeal Court has been reluctant to strictly apply the nexus doctrine despite the fact the Supreme Court of Canada gave reasons to do so in MacKay and other subsequent judgments and arguably made it a purposive requirement in Gé- néreux. In Moriarity, the Court Martial Appeal Court clarified Reddick and officially readopted the nexus doctrine. Remarkably, the decision in Moriarity established that the statements made in Reddick were obiter and specific to the case. It is unfortunate that it took the court almost 20 years to make this clarification. Furthermore, the court reaffirmed Généreux by confirming the National Defence Act's broad man- date as its purpose is to ensure the "discipline, effi- ciency and morale" of the military. According to the court, this broad mandate "does not lend itself to precise codification." The court then goes on to rein- state the nexus doctrine: "It would be difficult if not impossible to anticipate which offence . . . [would] af- fect military discipline, efficiency and morale. That would depend on the circumstances of each case and those circumstances would require the existence of a clear military connection or nexus." The limitations on the military nexus, therefore, involve a case-by-case determination. The Moriarity decision has resurrected the nexus doctrine. If defence counsel challenge jurisdiction, the military prosecution now bears the burden to outline how the offence relates to the "the discipline, efficiency and morale of the military." If the prosecution cannot establish such a connec- tion to the satisfaction of a judge, a military tribunal cannot claim jurisdiction. The Moriarity case now before the Supreme Court will hopefully clarify how the courts martial should decide such challenges. For example, should prose- cution counsel have to tiresomely establish a military nexus at the beginning of each court martial? It will be interesting to see how the court resolves this issue and the reasons behind its decision. Beyond the court proceedings, legislative change is necessary to address the issue. In 1998, Parliament altered s. 70 of the National Defence Act to permit trials of sexual assault and aggravated sexual assault offences by service tribunals. If the Supreme Court upholds Moriarity, the government may need to re- visit, and perhaps even reverse, that issue. Can the law ever consider an aggravated sexual assault to have a military nexus? LT uJoshua Juneau and Cassandra Létourneau-Duyn- stee are lawyers practising in Ottawa and Montreal respectively. u SPEAKER'S CORNER Crime debates languish as opposition leery of soft-on-crime label rime Minister Stephen Harper jumped the gun last week and launched his election campaign before a packed, cheering audi- ence of supporters in downtown Ottawa. Harper bounced around the stage without a handheld microphone, shout- ing out his lines like a Hollywood celeb- rity while the audience went wild. The launch was unofficial because Harper has until next fall to make an of- ficial announcement. But that didn't stop him from deliver- ing a rough outline of some of the election promises he intends to make, including legislation on justice issues. He mentioned four ongoing or up- coming issues: 1. A major prostitution bill spelling out what prostitutes can and can't do to avoid criminal sanction. 2. Making parole for certain serious crimes more difficult to obtain. 3. Making it easier for the federal gov- ernment to expel convicted criminals from Canada. 4. Making a life sentence really mean a sentence for the rest of a prisoner's life. Right now, a life sentence means pris- oners can apply for parole after 15 or 25 years. Judges who want prisoners to have a chance at parole after 15 or 25 years will have to say so in their sentenc- ing decisions. The opposition parties didn't offer any immediate criticisms of Harper's prom- ises without knowing the de- tails of the legislation. Harper has tripped them up plenty of times before as they shot their mouths off only to find out later in the details that the law was a lot different from what they thought it would be. The prostitution legislation will be the most difficult of all. Parts of it would make illegal some types of advertising by prosti- tutes, especially when youngsters can see or read it. The government is looking to pass the bill this fall. The legislation could end up a mess of contradictions and land the issue at the Supreme Court of Canada once again. It will supposedly protect children from seeing prostitutes at work, but what about kids who live with their mothers? Does a prostitute have to hire a babysitter to take care of her kids while she's working in the bedroom with her client? Compared to the prostitution legisla- tion, the other three issues dealing with courtroom sentencing and related mat- ters should be a piece of cake. Details of criminal justice legislation are one thing, but the real differences between Harper and the opposition parties go much further and into the very nature of crime and how society can prevent it. Last week, Harper repeated what he thinks about terror- ism offences. There's no need, he said, to go looking for the root causes of terror- ism. All he wants to do is catch terrorists and punish them for "vile" and "evil" crimes. Presumably, Harper thinks mere judi- cial punishment will scare off others from copying their examples. That would mean there's no need to try to figure out why so many young people from Calgary and other successful Cana- dian cities have been leaving to join ter- rorists in the Middle East. For Harper, there are no root causes of terrorism; there are simply "vile" and "evil" crimes society must punish. The opposition parties believe there are root causes of crimes and suggest finding them is usually not so easy. The root causes can be anything: they include things like greed, hatred or anger as well as the old nature-versus-nurture argu- ments that often come up in court during sentencing. Society can't simply punish away crime. Jailing one crook at a time elimi- nates recidivism for the time being but doesn't necessarily accomplish much else. So until we do politics in a different way, we'll go on waiting for Harper to show his hand while the opposition keeps silent. The MPs in the opposition parties know all of these things but they're also aware that if they even suggest the govern- ment pay a little more attention to the root causes, the Harper government will be all over them for being soft on crime. So rather than lose votes and possibly blow the next federal election, the oppo- sition parties will keep their mouths shut and wait until they see the details of the Conservative crime bills. They'll then pick away at those bills rather than try to engage in a more positive, broader de- bate on the philosophy behind what leads criminals to behave the way they do. LT uRichard Cleroux is a freelance repor- ter and columnist on Parliament Hill. His e-mail address is richardcleroux@rogers. com. I The Hill Richard Cleroux P

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