35755    Second Lieutenant Moriarity and Private M.B.A. Hannah v. Her Majesty the Queen and 

35873    Private Alexandra Vezina v. Her Majesty the Queen and Sergeant Damien Arsenault v. Her 

35946    Majesty the Queen

Constitutional law — Charter of Rights — Fundamental justice — Overbreadth — Armed forces — Military offences

On appeal from decisions of the Court Martial Appeal Court (2014 CMAC 1, 2014 CMAC 3, 2014 CMAC 8)

The appeals relate to offences committed by members of the armed forces subject to the Code of Service Discipline (“CSD”) set forth under Part III of the National Defence Act (“NDA”). Section 130(1)(a) of the NDA creates a service offence of committing a federal offence punishable under Part VII of the NDA, the Criminal Code or any other Act of Parliament. Section 117(f) of the NDA creates a service offence of committing any act of a fraudulent nature. The four accused were convicted of offences punishable under the Criminal Code and/or the Controlled Drugs and Substances Act which are service offences by virtue of s. 130(1)(a) of the NDA. Section 117(f) is relevant only to the case of A who was found guilty of fraud contrary to ss. 130(1)(a) and 125(a) of the NDA. All the accused except V argued at first instance that s. 130(1)(a) was broader than necessary to achieve its purpose and hence violated s. 7 of the Charter. In each case, the military judge held that this provision was constitutional.

M and H appealed unsuccessfully to the Court Martial Appeal Court (“CMAC”), which held that, properly interpreted as requiring a military nexus, s. 130(1)(a) is not overbroad. V also raised the s. 7 overbreadth argument before the CMAC but the argument was dismissed based on the ruling regarding M and H. On appeal to the CMAC, A also argued that s. 130(1)(a) violates s. 7. In addition, he raised a similar argument with respect to s. 117(f) of the NDA. The CMAC unanimously rejected the s. 7 argument holding that the ruling regarding M and H was binding precedent with respect to s. 130(1)(a) and that the challenge to s. 117(f) was moot.

The four accused appeal to this Court raising the issue of whether ss. 130(1)(a) and 117(f) of the NDAinfringe s. 7 of the Charter because they create service offences that do not directly pertain to military discipline, efficiency and morale, and thus are overbroad.

Held (9:0): The appeals should be dismissed.

Both ss. 130(1)(a) and 117(f) of the NDA engage the liberty interest of individuals subject to the CSD. Therefore, in order for these provisions to comply with s. 7 of the Charter, this deprivation of liberty must be done in accordance with the principles of fundamental justice, namely the principle against overbroad laws.

At the outset of an overbreadth analysis, it is critically important to identify the law’s purpose and effects because overbreadth is concerned with whether there is a disconnect between the two. With respect to both purpose and effects, the focus is on the challenged provision, understood within the context of the legislative scheme of which it forms a part.

The objective of the challenged provision may be more difficult to identify and articulate than its effects. The objective is identified by an analysis of the provision in its full context. In general, the articulation of the objective should focus on the ends of the legislation rather than on its means, be at an appropriate level of generality and capture the main thrust of the law in precise and succinct terms. An unduly broad statement of purpose will almost always lead to a finding that the provision is not overbroad, while an unduly narrow statement of purpose will almost always lead to a finding of overbreadth. Moreover, the overbreadth analysis does not evaluate the appropriateness of the objective. Rather, it assumes a legislative objective that is appropriate and lawful.

Here, 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 is whether there is a rational connection between that purpose and the effects of the challenged provisions.

The challenged provisions make it an offence to engage in conduct prohibited under an underlying federal offence and to engage in fraudulent conduct. Those offences apply regardless of the circumstances of the commission of the offence and their effect is to subject those who have committed these offences to the jurisdiction of service tribunals. It cannot be said that the fact that these offences apply in instances where the only military connection is the status of the accused is not rationally connected to the purpose of the challenged provisions. To conclude otherwise implies too narrow a view of the meaning of “discipline, efficiency and morale” and of how the effects of the provisions are connected to that purpose. The objective of maintaining “discipline, efficiency and morale” is rationally connected to dealing with criminal actions committed by members of the military even when not occurring in military circumstances. The behaviour of members of the military relates to discipline, efficiency and morale even when they are not on duty, in uniform, or on a military base.

It follows that the prosecution under military law of members of the military engaging in the full range of conduct covered by ss. 130(1)(a) and 117(f) is rationally connected to the maintenance of discipline, efficiency and morale regardless of the circumstances of the commission of the offence. The challenged provisions are therefore not overbroad.

The question of the scope of Parliament’s authority to legislate in relation to “Militia, Military and Naval Service, and Defence” under s. 91(7) of the Constitution Act, 1867 and the scope of the exemption of military law from the right to a jury trial guaranteed by s. 11(f) of the Charter are not before the Court in these appeals.

Reasons for judgment by Cromwell J.

Neutral Citation: 2015 SCC 55  Docket Nos. 35755, 35873, 35946