# Supreme Court on constitutionality of NDA 130



## putz (11 Aug 2015)

With the SCC decision looming what are the potential changes that could come out of this?  Both for the MP and JAG branches.


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## McG (12 Aug 2015)

I assume you reference this:  http://www.scc-csc.gc.ca/WebDocuments-DocumentsWeb/35873/FM010_Appellant_Private-Alexandra-Vezina.pdf


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## putz (12 Aug 2015)

Yes


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## McG (12 Aug 2015)

This one is going up with it:  http://www.scc-csc.gc.ca/WebDocuments-DocumentsWeb/35946/FM020_Respondent_Her-Majesty-the-Queen.pdf


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## garb811 (12 Aug 2015)

Short answer?  If the appeal is upheld...  Apparent spike in charges being laid as MP will be able to lay non-NDA charges themselves instead of "recommending" them to Units, where all too often nothing happens.  Less work for Presiding Officers/RMP/Defence Counsel Services/AJAG.  Less demand for CROs as MP will be able to release with conditions themselves for non-NDA offences or remand pers into custody for a show cause downtown.  Even less demand for Detention Rooms and the Digger as those convicted downtown will serve their sentance, if any, in a civilian institution.  Less latitude for Unit Disciplinary Investigations...  

Just a few quick consequences off the top of my head.


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## putz (12 Aug 2015)

garb811 said:
			
		

> Short answer?  If the appeal is upheld...  Apparent spike in charges being laid as MP will be able to lay non-NDA charges themselves instead of "recommending" them to Units, where all too often nothing happens.  Less work for Presiding Officers/RMP/Defence Counsel Services/AJAG.  Less demand for CROs as MP will be able to release with conditions themselves for non-NDA offences or remand pers into custody for a show cause downtown.  Even less demand for Detention Rooms and the Digger as those convicted downtown will serve their sentance, if any, in a civilian institution.  Less latitude for Unit Disciplinary Investigations...
> 
> Just a few quick consequences off the top of my head.



I'm aware of this and I know that myself and a majority of MP are optimistic things will head this way.  I was looking at getting some input from JAG and Snr MP.  Seems to me, from what I've heard, JAG are optimistic that 130 will stand.


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## garb811 (12 Aug 2015)

They need to be, if non-NDA charges can't be laid pursuant to S 130, they are going to see their workload slashed...which is going to raise a whole host of issues, not the least of which being how RMP, Defence Cousel and Military Judges keep "current" when there is already barely enough work for the number of them we have.

I, for one, believe S 130 has been stretched too far for the wrong reasons (just like Commanding Officer's search warrants, which for some reason have made a come back in Canada at the Unit level) so fully expect the appeals are going to be upheld.  I just hope there is a clear line drawn in the sand, unlike the CMAC "military nexus" ruling without defining what that was, which just led the Legal Branch to announce it was business as usual.


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## dapaterson (12 Aug 2015)

Be careful what you ask for; there's something to be said for a broad  "military nexus" that's mostly undefined, as it places fewer limits on you.  "Clear lines inthe sand" can become unworkable restrictions rather quickly.  I think the Court was correct in not imposing a box on the military.


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## FJAG (12 Aug 2015)

There is a lot of benefit in having a charge like s 130 (and for that matter s 132) that incorporates other federal (foreign) legislation principally amongst which is that one does not have to provide for a plethora of relevant offences in the NDA (like murder, manslaughter, assaults, etc) which are already included in other federal legislation. By incorporating existing CCC, FDA, NCA provisions the NDA is always up to date and consistent with civilian criminal legislation and will be interpreted in the same way.

 :cheers:


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## dapaterson (12 Aug 2015)

FJAG said:
			
		

> By incorporating existing CCC, FDA, NCA provisions the NDA is always up to date and consistent with civilian criminal legislation and will be interpreted in the same way.



Except there are significant procedural differences between a military and a non-military trial; in the extreme instance someone with minimal legal training (a CO or delegated officer) may be required to interpret those statutes.  That is a large part of the appeals, as I understand it.


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## FJAG (12 Aug 2015)

dapaterson said:
			
		

> Except there are significant procedural differences between a military and a non-military trial; in the extreme instance someone with minimal legal training (a CO or delegated officer) may be required to interpret those statutes.  That is a large part of the appeals, as I understand it.



The cases under appeal do not reach down to the Summary Trial Process at all. Fundamentally the appellants are arguing that the NDA and military law should relate solely to "disciplinary" issues while "criminal" law should be in the exclusive jurisdiction of civilian prosecutors and courts.

(Just as an aside you can see how different countries do things differently by looking at the US's Uniform Code of Military Justice where, at 10 US Code sections 877 to 934, disciplinary offences (e.g. unlawful enlistment, desertion, contempt to a superior) are side by side with criminal ones (e.g. murder, rape, assault))

https://www.law.cornell.edu/uscode/text/10/subtitle-A/part-II/chapter-47/subchapter-X

Please remember that any charge under s 130 allows the individual to demand trial by court martial. There is no way that a serious offence laid under s 130 will ever be tried summarily because either a) the accused will elect court martial or b) the officer conducting the trial will direct a court martial because his/her powers of punishment are inadequate for a serious offence.

While there are procedural differences (most of which, IMHO, are justified due to the nature of military conditions) the substantive law is identical as military judges apply the law as determined by higher courts being the appeal courts in Canada, all of which (including the Court Martial Appeal Court) are staffed solely by civilian judges.

For me the issue is not one of whether the legislature has added criminal offences to the military law, expressly (as per the UCMJ) or by incorporation by reference (as per s 130 of the NDA). The bottom line is whether or not the civilian legislature which drafted the law wanted the military courts to try criminal offences as well as disciplinary ones. Barring any constitutional prohibition on having the military try criminal offences the legislative mode used is irrelevant. IMHO the SCC has on numerous occasions found that the military justice system constitutional. I don't think they're about to change for these cases. (I've been wrong before, though  ;D)

 :cheers:


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## McG (12 Aug 2015)

Regardless of the SCC decision, I suspect this will all be moot if the Victims Rights in the Military Justice System Act makes it back in the next Parlaiment.  The NDA may look more like the UCMJ with significantly fewer charges that can be heard by a presiding officer.

http://news.gc.ca/web/article-en.do?mthd=tp&crtr.page=1&nid=987929


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## McG (12 Aug 2015)

... It is also here: https://army.ca/forums/threads/119666.0


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## putz (13 Aug 2015)

IMO the main reason that NDA 130 should not be used in Canada is, unless your with CFNIS, MP cannot lay the charge.  I have had cases where I recommend NDA 130 and the unit CO has taken it upon themselves to not proceed, without consulting local JAG/AJAG for opinion.  This has happened on more then one occasion and I have heard similar stories across Canada.  Additionally why proceed with NDA 130 when you already have a fully functional Criminal Court system to try a case.  I'm not saying the NDA is broken.  It has it uses, in my mind it is best used to enforce discipline at the unit level (drunkenness, AWOL, Conduct etc).  

I feel NDA 130 has a place.  Deployed CF Operations, domestically Criminal Code.

Side note I find it interesting that MPCC themselves have been advocating for Guardhouse MP to have charge authority.


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## McG (13 Aug 2015)

So, your complaint is not with sect 130.  Your complaint is that you want all MP to have authority to lay charges.


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## putz (13 Aug 2015)

No, only part


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## McG (13 Aug 2015)

I don't think your want to lay charges is relevant to the legitimacy of Sect 130 in Canada.  But, if we are going down that rabbit hole, then I wonder ... if the military justice system cannot be trusted to deal with criminal offenses, then why can the military police be trusted to deal with the same?  Why not civilian courts and civilian police for it all?


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## Lumber (13 Aug 2015)

Can someone tell me what the hell a "military nexus" is?


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## putz (13 Aug 2015)

MCG said:
			
		

> I don't think your want to lay charges is relevant to the legitimacy of Sect 130 in Canada.  But, if we are going down that rabbit hole, then I wonder ... if the military justice system cannot be trusted to deal with criminal offenses, then why can the military police be trusted to deal with the same?  Why not civilian courts and civilian police for it all?



Really?  Your going to turn this into a let the civilian police handle it argument... I'm talking about the judicial side and your going down the policing side.  My "want to lay charges" is not only mine it's  a common thought and obviously thought by more then myself.  

What is the need to have NDA 130 used in Canada? 

- Do CM have the ability to sentence people as they would be sentenced in civilian system? No 

-Is the conviction the same? not really; convicted of NDA 130 pursuant to ..... is not the same.  Last spring I was watching the SCC arguments and the JAG had to admit that in theory a person could be convicted of NDA 130 (as that is what has been broken) and then re-tried and convicted of the actual criminal offence.  Up until a few years ago 130 wasn't even logged onto criminal records in some cases

-Do the victims have the right to a matter before a civilian court via a CM? No


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## McG (13 Aug 2015)

putz said:
			
		

> Really?  Your going to turn this into a let the civilian police handle it argument...


Why not?  We were already going down the path of Commanding Officers cannot be trusted with the discipline of their units, and Sect 130 is the barrier to MPs babysitting the unruly CAF.

You were not complaining about sentences being different different or reflecting on the absence of Victims Rights in the Military Justice System.  You were the one pining (and suggesting the primary argument against 130 would be) for your ability to directly lay a charge.  You were the one who asked "why" when there are "fully functional" civilian systems.  Should you be surprised when the question is extended to the next logical step?  Remember this warning:


			
				dapaterson said:
			
		

> Be careful what you ask for; there's something to be said for a broad  "military nexus" that's mostly undefined, as it places fewer limits on you.  "Clear lines inthe sand" can become unworkable restrictions rather quickly.  I think the Court was correct in not imposing a box on the military.


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## putz (13 Aug 2015)

MCG said:
			
		

> Why not?  We were already going down the path of Commanding Officers cannot be trusted with the discipline of their units, and Sect 130 is the barrier to MPs babysitting the unruly CAF.
> 
> You were not complaining about sentences being different different or reflecting on the absence of Victims Rights in the Military Justice System.  You were the one pining (and suggesting the primary argument against 130 would be) for your ability to directly lay a charge.  You were the one who asked "why" when there are "fully functional" civilian systems.  Should you be surprised when the question is extended to the next logical step?  Remember this warning:



Really we were starting to go down that path.... I don't see it.  I guess I'll just reflect on your past posts and how they relate to your experiences conducting investigations, going to court martial or having matters decided by a CO to not proceed with.  Thank you though for your actual input into this matter as a SME, JAG or MP.


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## FJAG (13 Aug 2015)

Lumber said:
			
		

> Can someone tell me what the hell a "military nexus" is?



In general terms it is a legal principle that determines when the military justice system has the authority to try an individual for an offence that would otherwise be triable by a civilian court. If the offence is "connected to the military service (examples include occurring on foreign service, the victim is a service member, on or in respect to military property and many more) then a military nexus is established and the military has jurisdiction to charge and try the member.

There is a general article on the topic (heavy with legal jargon and not the final word on the topic) that explain things in more detail.

http://www.law.yale.edu/The_Status_of_the_Military_Nexus_Doctrine_in_Canada.pdf

 :cheers:


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## FJAG (13 Aug 2015)

MCG said:
			
		

> Regardless of the SCC decision, I suspect this will all be moot if the Victims Rights in the Military Justice System Act makes it back in the next Parlaiment.  The NDA may look more like the UCMJ with significantly fewer charges that can be heard by a presiding officer.
> 
> http://news.gc.ca/web/article-en.do?mthd=tp&crtr.page=1&nid=987929



The Act was presented as Bill C-71 and can be found here:

http://www.parl.gc.ca/HousePublications/Publication.aspx?Language=E&Mode=1&DocId=8047662&File=36#4

While I agree that most of the provisions are necessary (and long overdue) in order to bring the CM system more in line with civilian courts, I think this beast has to be an example of some of the worst legislative drafting I have ever seen. It's almost on a par with the Income Tax Act; and you can't get much worse than that.

As for the proposed changes for Summary Trials, it appears to me that the elements within DND and DOJ that wanted to limit the powers of punishment of commanding officers to none penal sanctions are finally having their way. I've personally always felt that a commanding officer who is expected to lead men into the hazards of combat should be trusted with imposing detention for up to 30 days in appropriate circumstances. In my view this change is another example of the risk adverse members of DND (under the regime of the previous CDS) having their way.  op:

 :cheers:


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## McG (13 Aug 2015)

putz said:
			
		

> Thank you though for your actual input into this matter as a SME, JAG or MP.


Do I sense sarcasm?  If it helps I have training and (more importantly) much experience with unit discipline and military justice including at the CM level.  

If the SCC throws out Sect 130, I do not know that MPs will suddenly be authorized to lay CCC charges that they are not currently authorized to lay.  I do know that we will loose the legal mechanism to deal with serious offenses on international operations.

But there is not the only value to dealing with things inside the service.  Quite often (if not always), a criminal offense is also a problem for discipline.  Some CCC offenses can become treated more lightly on the civilian side than we need them to be treated internally.  Consider minor drug offenses, which civilian prosecutors may be disinterested to investing the effort.  I have seen that nexus a number of times with guys spending time in Edmonton when the civilian system might have given a fine ... It is a nexus where military discipline demands more than the civilian world.

Sometimes the nexus shows itself in the form of alternative charges.  So, a quarreling charge may be laid in the alternative to a Sect 130 assault charge.  If the SCC throws out Sect 130 and the individual is found not guilty of assault at civilian trial, we could not then charge him under the NDA to address the disciplinary element as that would be double jeapardy.  (And since we are using anecdotes, I have seen investigations bungled such that the Sect 130 charge could not be proven but the alternate NDA charge did stick)

I also know that we can (maybe not always but often) resolve the process faster than the civilian system.  If the SCC throws out sect 130, then all our cases get thrown into the already backed-up queue in civilian courts.  And while the individuals wait to resolve their criminal case, they remain undeployable and sometimes unemployable.  it is far better for the institution to get that decision quicker, get the punishment started sooner (if guilty), and get the person back to full employment (or punted out) sooner.

So, if there are problems with Sect 130, we would be better to have the Legislaters fix it and not the judges toss it out.


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## garb811 (13 Aug 2015)

MCG said:
			
		

> ...
> If the SCC throws out Sect 130, I do not know that MPs will suddenly be authorized to lay CCC charges that they are not currently authorized to lay...



 :facepalm:

Because, as Peace Officers, we already have the authority to lay all Criminal Code charges, along with a host of other charges related to other Statutes and Regulations.  The sole reason we "can't" lay charges downtown against persons subject to the CSD is because we currently have a directive stating that with a few exceptions, ALL offences committed by persons subject to the CSD WILL be referred to the Military Justice System.


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## Tibbson (13 Aug 2015)

FJAG said:
			
		

> There is a lot of benefit in having a charge like s 130 (and for that matter s 132) that incorporates other federal (foreign) legislation principally amongst which is that one does not have to provide for a plethora of relevant offences in the NDA (like murder, manslaughter, assaults, etc) which are already included in other federal legislation. By incorporating existing CCC, FDA, NCA provisions the NDA is always up to date and consistent with civilian criminal legislation and will be interpreted in the same way.
> 
> :cheers:



I agree with you 100% in that Sec 130 is needed, especially for those offences that take place outside of Criminal Code jurisdiction such as on Deployed Ops.  I even understand the jurisdictional issues and, on DND property, the primacy of the DNA but I've always voiced the opinion that it was over used domestically.  

If soldier A commits a sexual assault on soldier B and it occurred on base or during the course of a field ex then I have no problem with Sec 130, pursuant to the relevant Criminal Code section since it will go to CM and both parties are subject to the NDA.  I've always had a big issue with a case where soldier A commits a sexual assault on citizen B, on base, and the MPs (both patrol and CFNIS) are required to consider an NDA charge unless the RMP/JAG agrees to waive it to downtown.  I've personally been the investigator on a case where I chose to charge under the Criminal Code without giving consideration to an NDA charge and the RMP actually reached out to the Crown and asserted prosecutorial jurisdiction on the matter because it involved a service member and happened on base even though the victim was civilian.  My personal feeling is if there is a civilian interest (victim) in the case, and it occurs within Criminal Code jurisdiction, then it should be proceeded with via civilian courts.  If it happens outside of Criminal Code jurisdiction (deployed ops, foreign posting, exchange posting...) then I maintain NDA Section 130 should be still available for use otherwise CF members could not be held accountable for crimes other than those few listed in the NDA.


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## putz (14 Aug 2015)

Schindler's Lift said:
			
		

> I agree with you 100% in that Sec 130 is needed, especially for those offences that take place outside of Criminal Code jurisdiction such as on Deployed Ops.  I even understand the jurisdictional issues and, on DND property, the primacy of the DNA but I've always voiced the opinion that it was over used domestically.
> 
> If soldier A commits a sexual assault on soldier B and it occurred on base or during the course of a field ex then I have no problem with Sec 130, pursuant to the relevant Criminal Code section since it will go to CM and both parties are subject to the NDA.  I've always had a big issue with a case where soldier A commits a sexual assault on citizen B, on base, and the MPs (both patrol and CFNIS) are required to consider an NDA charge unless the RMP/JAG agrees to waive it to downtown.  I've personally been the investigator on a case where I chose to charge under the Criminal Code without giving consideration to an NDA charge and the RMP actually reached out to the Crown and asserted prosecutorial jurisdiction on the matter because it involved a service member and happened on base even though the victim was civilian.  My personal feeling is if there is a civilian interest (victim) in the case, and it occurs within Criminal Code jurisdiction, then it should be proceeded with via civilian courts.  If it happens outside of Criminal Code jurisdiction (deployed ops, foreign posting, exchange posting...) then I maintain NDA Section 130 should be still available for use otherwise CF members could not be held accountable for crimes other than those few listed in the NDA.



More eloquently put then I did and along what I was thinking (but adding in the ability to charge as well).  

MCG yes sarcasm but I understand know the point you are putting forward and more so your perspective on things  
It`s been my experince the CM process is not faster and, in a number of cases, slower then the civilian justice system in prosecuting offences.  The only time I have seen the system move fast is on summary offences, which I mentioned before, I believe should be maintained. Additionally recent trends over the past few years seem to be reprimands or suspended custodial sentences.

Recently (last week) there were two summary trials, for the discipline issues, of individuals that were aquitted in civilian courts. Both were convicted at the summary level.  This is exactly what you were referancing would be double jeapordy.

Some provinces have pre-charge (by crown) screening for all police services before laying charges, others we lay the charge directly.  But in all provinces, as Garb811 mentioned, we are able to go through the civilian courts.


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## FJAG (14 Aug 2015)

Schindler's Lift said:
			
		

> . . .   My personal feeling is if there is a civilian interest (victim) in the case, and it occurs within Criminal Code jurisdiction, then it should be proceeded with via civilian courts.  . . .



Fair enough. Unfortunately situations aren't always a clear cut black and white but a hodge podge of shades of gray.

While I was serving, the way we approached military/civilian jurisdictional issues changed over time and I'm quite sure they've continued to change since I retired so that I can no longer speak knowledgeably on the subject. Back in 1996 the CMAC case of R v Reddick governed and basically said military nexus was a distraction to the question of jurisdiction and not required. The more recent CMAC decision of R v Moriarity (one of the cases before the SCC) found that military nexus was a requirement for a s 130 charge and therefore the section was not unconstitutionally overbroad.

See Moriarity here: http://decisions.cmac-cacm.ca/cmac-cacm/cmac-cacm/en/item/66417/index.do?r=AAAAAQAHcmVkZGljawE The whole case is worth reading but the guts of the nexus issue starts at para 48.

Moriarity was a CIC member (a near civvy if ever there was one but nevertheless subject to the CSD as a member of the reserve force) and the assaulted cadet clearly was a civilian. The offences took place on DND facilities. In my view, notwithstanding that a cadet is in fact a civilian, this was an appropriate case for the finding of a military nexus.

I think there will always be a need for both the investigators and prosecutors to use common sense in analysing whether the case should stay within the military or go downtown. Generally, notwithstanding the shifting sands of the law, they do a pretty fine job.

 :cheers:


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## Good2Golf (14 Aug 2015)

FJAG said:
			
		

> ...For me the issue is not one of whether the legislature has added criminal offences to the military law, expressly (as per the UCMJ) or by incorporation by reference (as per s 130 of the NDA). The bottom line is whether or not the civilian legislature which drafted the law wanted the military courts to try criminal offences as well as disciplinary ones. Barring any constitutional prohibition on having the military try criminal offences the legislative mode used is irrelevant...



FJAG, that was what I thought the principle issue was here, the determination of the (constitutional) validity of the "military nexus."  I was thinking that the issue of "military nexus", or as noted in several examples upthread, what we might also consider in a "mixed" situation to be a "civilian nexus" (the idea that a civilian was involved, even if on DND property) is, as far as 130(1)(a) [specifically the domestic situation] goes, determining whether the "militaryishness" or whatever nexus we're considering (domestically) is "military enough" to warrent prosecuction militarily.  I see that 'gray' (or grey  ) you note, to be the determiniation of "is the nexus military enough to override civilian facotrs of the nexus?" 

I don't know enough about the lineMP vice CFNIS laying 130/CCC charges issue, but in my experiences that involved consideration of 130/CCC 'eligible' (for lack of a better term that I can't think of for the moment), my discussion with my DJA always considered consultation with CFNIS and it was always my expectation that if charges had been laid, that it would have been CFNIS to do so.  Can someone help me better understand a case where in the interests of pursuing military justice, a field MP be the most appropriate PO to lay CCC (if allowed by policy) and/or s.130 charges, vice CFNIS?

Danke

G2G


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## JesseWZ (14 Aug 2015)

Good2Golf said:
			
		

> Can someone help me better understand a case where in the interests of pursuing military justice, a field MP be the most appropriate PO to lay CCC (if allowed by policy) and/or s.130 charges, vice CFNIS?



CFNIS have a specific mandate for their caseload. It typically involves sexual offenses, major crimes (fraud over $15000, etc) and a host of other "serious" or significant offenses. A guardhouse MP would lay criminal charges in files where the participation of CFNIS would not be necessary. This includes driving while impaired, minor, or semi-serious domestic assaults (both of which we must pursue criminally not via the NDA) and other minor charges. It also would include arresting or laying a charge on a civilian for theft (DND employees, contractors) where the value of the item does not exceed a certain threshold. Guardhouse MPs undertake criminal investigation all the time which would include either laying of charges (in consultation with the Crown - Criminally) or the recommendation to lay charges (in consultation with the JAG - militarily.). I hope that made things clearer and less murky...


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## Good2Golf (14 Aug 2015)

JesseWZ said:
			
		

> CFNIS have a specific mandate for their caseload. It typically involves sexual offenses, major crimes (fraud over $15000, etc) and a host of other "serious" or significant offenses. A guardhouse MP would lay criminal charges in files where the participation of CFNIS would not be necessary. This includes driving while impaired, minor, or semi-serious domestic assaults (both of which we must pursue criminally not via the NDA) and other minor charges. It also would include arresting or laying a charge on a civilian for theft (DND employees, contractors) where the value of the item does not exceed a certain threshold. Guardhouse MPs undertake criminal investigation all the time which would include either laying of charges (in consultation with the Crown - Criminally) or the recommendation to lay charges (in consultation with the JAG - militarily.). I hope that made things clearer and less murky...



Thanks Jesse, it does.   :nod:  

So it is a standing CPM/JAG agreement/policy then, where the "tear-line" amongst CCC-based charges has been determined/stated?  Separate from the SCC take on 130, is that "tear-line" a point of discussion between JAG and CPM?

Cheers
G2G


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## FJAG (14 Aug 2015)

Good2Golf said:
			
		

> Thanks Jesse, it does.   :nod:
> 
> So it is a standing CPM/JAG agreement/policy then, where the "tear-line" amongst CCC-based charges has been determined/stated?  Separate from the SCC take on 130, is that "tear-line" a point of discussion between JAG and CPM?
> 
> ...



Oh God. This is going to be a long one. JesseWZ gave you a good answer to the excellent questions you have been asking but the comment about a CPM/JAG "tear line" takes it away from the way the system works.

For starters, the CF Provost Marshall and the Director of Military Prosecutions (DMP vice JAG) are two very distinct independent organizations.

CFPM controls all MPs and CFNIS and sets its procedures and policies. The actual "tear line" vis a vis charge investigation and charge laying comes from the QR&Os and CPM policies. 

QR&O 107.02 gives charge laying authority under the CSD (including s 130 charges) to COs, individuals authorized by the CO to lay charges and to CFNIS (not to all MPs, just CFNIS). Remember that the formation of the CFNIS and its power to lay charges is a recent phenomenon which came directly out of the 1997 Dickson Report on the reform of the military justice system. Prior to this only a CO or his delegate were authorized to lay a charge.

The CFPM "tear line" as to the investigation jurisdiction vis a vis MPs and CFNIS comes from various post-Dickson changes to the NDA and the policies set by CFPM under the new independence and powers given to him by those legislated changes. A good discussion on those policies is set out at version 2.2 of the Military Justice at the Summary Trial Level Study guide where Chapter 6 gives a very good treatise on the military police investigations. Note especially Annex A which is CFPM's policy and the cardinal MP/CFNIS "tear line".

[urlhttp://www.forces.gc.ca/en/about-reports-pubs-military-law-summary-trial-level/annex-c-mil-police-investigation-policy.page][/url]

So in summary the MP/CFNIS investigation "tear line" come from the CFPM policy and the charge laying power "tear line" comes from QR&O 107.02.

For interest sake I include as well the two key DMP policies. The first deals specifically with the relationship between DMP and the CFNIS:

http://www.forces.gc.ca/en/about-policies-standards-legal/national-investigation-service-relationship.page

The second one deals with pre-charge screening. Prior to a charge being laid the person laying the charge must seek legal advice. Under the policy, CFNIS must deal with DMP. COs and delegates deal with their assigned JAG legal advisors but if it is determined the charge automatically leads to a court martial then the review must be passed to a DMP prosecutor.

http://www.forces.gc.ca/en/about-policies-standards-legal/pre-charge-screening.page

Let me be clear, the term "JAG" should not be used as a generic term in respect of charging issues once you deal with military justice. Low level summary trial matters are within the jurisdiction of unit legal advisers (DJAs, AJAGs, DAJAGs etc regular or reserve who work for the Deputy Judge Advocate General-Regional Services). Higher end court martial level matters are within the jurisdiction of prosecutors (Regional Military Prosecutors [RMPs] spread across Canada or ones located within the head office in Ottawa [e.g.DMP2-2] who work for DMP). These are very distinct organizations with DMP having independent statutory authority.

JesseWZ. You leave me a bit confused when you indicate "A guardhouse MP would lay criminal charges in files where the participation of CFNIS would not be necessary".

To the best of my knowledge MPs do not have the power to lay a CSD charge but only to investigate and make a report to the appropriate unit which then lays the charge. I expect there may be cases of Regimental Police who have been authorized by a CO to lay charges against personnel within his unit but in general, base MPs do not charge-they investigate and report. 

I presume you are talking about the CCC section 2(g)(ii) peace officer provisions with respect to the limited powers assigned under QR&O 22.011 regarding non-CSD matters. Is that correct or has something changed since I retired that I do not know about?

 :cheers:


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## JesseWZ (14 Aug 2015)

Sorry, I should have been more specific. A guardhouse MP could lay a criminal charge for matters not pursuant to the NDA


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## FJAG (14 Aug 2015)

Good2Golf said:
			
		

> FJAG, that was what I thought the principle issue was here, the determination of the (constitutional) validity of the "military nexus."  I was thinking that the issue of "military nexus", or as noted in several examples upthread, what we might also consider in a "mixed" situation to be a "civilian nexus" (the idea that a civilian was involved, even if on DND property) is, as far as 130(1)(a) [specifically the domestic situation] goes, determining whether the "militaryishness" or whatever nexus we're considering (domestically) is "military enough" to warrent prosecuction militarily.  I see that 'gray' (or grey  ) you note, to be the determiniation of "is the nexus military enough to override civilian facotrs of the nexus?"



Let me be cynical for a moment, Good2Golf. I think what the principle issue is in this case is that the convicted individuals do not have to pay any legal fees and are represented by lawyers who have a sufficiently low enough case load that allows them the time to take esoteric case law forward. Generally your average working Joe can't afford such a case; only the very rich or those on a system of legal aid can. My real question is why did the SCC decide to accept these cases.

I don't think that the case addresses the issue of the constitutionality of "military nexus" per se. "military nexus" was simply used by the CMAC to explain why s 130 was not unconstitutionally overbroad (and in retrospect may have been a poor choice of words)

The heart of the appellants' case, once you strip away all the verbiage, is that the military should not have the power to try criminal offences that are the general law of the land and not discipline specific; criminal cases should be the jurisdiction of civilian prosecutors and the civilian courts.

Fundamentally for me the constitutionality of the military justice system is found in s 11(f) of the Charter of Rights and Freedoms that states:  11. Any person charged with an offence has the right ... (f) except in the case of an offence under military law tried before a military tribunal , to the benefit of trial by jury where the maximum punishment for the offence is imprisonment for five years or a more severe punishment;(my emphasis)

The need for a separate and equal military justice system was stated by the SCC, pre-charter, in R v Mackay and again validated, post-charter, in respect of s 11(f) at R v Genereux. The relevant discussion is in the Moriarity prosecution's factum referred to above. Genereux was particularly significant in that a part of that case was an attack on s 130 in that the appellant alleged that he had lost s 15 equality rights that all other citizens enjoy by being tried for a Federal Drug Act offence by a military court instead of a civilian one. 

Generoux ultimately turned on s 11(d) and the right to an independent and impartial tribunal. The court found the then existing CM system inadequate and as a result very major changes have taken place in how we now form and run a CM.

The section 130 argument was that s 130 breached the s 15 Charter guarantee to "equality before the law" protection. In short the court said he was not discriminated against and s 130 was good to go.

The case here, Moriarity et al, deals with s 130 being overbroad and in contravention of s 7. (right to life liberty and security and not to be deprived thereof except in accordance with the principles of fundamental justice).

Genereux also looked at s 7 briefly and said the more specific challenge was under 11(d) and that the s 7 challenge wasn't any stronger than that. In effect there was never a s 7 challenge in Genereux as to s 130 being overbroad.

Arguments that specific laws are overbroad or arbitrary or disproportionate under s 7 are the new darlings of the legal set (and I think the major reason that Harper is po'd at the SCC. They keep striking down laws, or parts of laws, on this one or the other of these bases which laws he considers perfectly valid.) At their best these concepts are the first line of defence against a government that is too extreme but at their worst they are an unreasonable interference in the legitimate legislative functioning of the government. 

My personal belief is that s 130 is part of a legitimate element of the government's legislative function to define the extent and boundaries of military law. 

Others may differ; in my mind those are individuals with a vested interest such as defence lawyers, left leaning law professors, people who don't trust the military (or just its officers, take your pick), and or people who do not understand the true nature of the military and just write it off as a uniformed civil service. 

Various nations have different ways of dealing with their military law and mostly that is based on their own experiences (periods as colonial subjects, periods of military dictatorships and their excesses). There is no one right answer although some are clearly wrong by our own moral standards.

I'll be very interested in seeing how this SCC will deal with what in my mind is already a fairly well settled issue. Maybe Bev wants to take another poke at Steve's nose?  ;D

 :cheers:


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## Good2Golf (14 Aug 2015)

Thanks very much, FJAG, that is very helpful.  :nod:

So I shouldn't feel as bad as a I did for wondering to myself if Moriarty et al were perhaps "loophole hunting" given that DCS was free to them and compared to your average defence lawyer perhaps were able to allocate a notable amount of support to the applicants?  :-\ 

Perhaps I misread the case, but it seemed like they were saying (no matter how directly/indirectly many of us think the charge(s) may have been relevant to military[-like] conduct) if the civy courts wont themselves pursue the cases, then the military certainly shouldn't because of X (CCRF s.7, notwithstanding, as you point out CCRF s11.f provide for the military exception).

Regards
G2G


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## FJAG (14 Aug 2015)

Good2Golf said:
			
		

> Thanks very much, FJAG, that is very helpful.  :nod:
> 
> So I shouldn't feel as bad as a I did for wondering to myself if Moriarty et al were perhaps "loophole hunting" given that DCS was free to them and compared to your average defence lawyer perhaps were able to allocate a notable amount of support to the applicants?  :-\
> 
> ...



"Loophole hunting" is a long standing and effective defence counsel process. 

Any criminal case depends on the facts and the law. Usually, with a good police investigation, the facts are a slam dunk which basically means that defence counsel has to argue that the facts don't meet the essential elements of the offence or that the law that creates the offence or that the trial process was in some way defective. 

Moriarity's argument is not that "if the civy courts wont themselves pursue the cases, then the military certainly shouldn't because of X". The reality is that civvy courts (and prosecutors) won't pursue the military related case because it is never brought to them in the first place. Our military justice system works entirely internally unless, in very rare circumstances, the civy police/crown decide they want to become involved or, in slightly less rare circumstances, our police or prosecutors refer it to the civvies.

Moriarity's argument instead is a direct attack on the military justice system and states that only the provincial attorneys general (and their courts and prosecutors) have the right to try criminal code offences and that all that the military ought by law to have jurisdiction over is the "disciplinary" offences that remain in the NDA once s 130 is struck down. The view of defence counsel is that once s 130 is struck down all "criminal" matters committed by a member will then automatically be handled by the civilian authorities (presumably the police for investigation and the prosecutors and courts for trial). I think this is a simplistic view although supported by some academics and also the way it works in some countries. 

I've never served with either DMP or DDCS. When I was a younger DJA and DAJAG, our responsibilities included prosecuting CM cases from units within our geographic region and defending individuals from units outside the region. As a result I have both prosecuted and defended under the older regimes but have no vested interest one way or the other and respect members of both sides. I do, however, find myself in strong disagreement with those (both defence counsel and academics) who argue, directly or indirectly, for a weaker military justice system.

 :cheers:


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## Tibbson (14 Aug 2015)

FJAG said:
			
		

> JesseWZ. You leave me a bit confused when you indicate "A guardhouse MP would lay criminal charges in files where the participation of CFNIS would not be necessary".
> 
> To the best of my knowledge MPs do not have the power to lay a CSD charge but only to investigate and make a report to the appropriate unit which then lays the charge. I expect there may be cases of Regimental Police who have been authorized by a CO to lay charges against personnel within his unit but in general, base MPs do not charge-they investigate and report.
> 
> ...



Actually, since CFNIS members ARE MPs... than MPs can lay CSD charges (as I'm sure you know but perhaps misspoke or I misread).  I did it for years when I was with the CFNIS.  The difference is that guardhouse MPs (there are no "Regimental Police" or "Sheriffs" any more) handle the matters they handle at their level and, where warranted, they lay CC charges or draft the report for the CoC to lay the CSD charge.  The assumption that base MPs investigate and report but don't charge is something that I've never seen in my over 30 years as an MP.  Even at a guardhouse level I've charged plenty of times under the Criminal Code whether its impaired charges, assaults, sex assaults (before the CFNIS stood up) or other offences.


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## Tibbson (14 Aug 2015)

FJAG said:
			
		

> Moriarity's argument instead is a direct attack on the military justice system and states that only the provincial attorneys general (and their courts and prosecutors) have the right to try criminal code offences and that all that the military ought by law to have jurisdiction over is the "disciplinary" offences that remain in the NDA once s 130 is struck down. The view of defence counsel is that once s 130 is struck down all "criminal" matters committed by a member will then automatically be handled by the civilian authorities (presumably the police for investigation and the prosecutors and courts for trial). I think this is a simplistic view although supported by some academics and also the way it works in some countries.



Sadly if it is struck down then it will effectively mean a service member can serious crimes while overseas and outside of criminal code jurisdiction and not be prosecuted since there are no suitable charges under the CSD for such offences without 130.  I'd have much less issue if they would limit 130 to deployed ops outside CC's reach.  (While they are at it they can but similar limits on the use of "CO's search warrants" too so they can't be used (misused) in Canada either.  But that's a whole other thread)


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## FJAG (14 Aug 2015)

Schindler's Lift said:
			
		

> Actually, since CFNIS members ARE MPs... than MPs can lay CSD charges (as I'm sure you know but perhaps misspoke or I misread).  I did it for years when I was with the CFNIS.  The difference is that guardhouse MPs (there are no "Regimental Police" or "Sheriffs" any more) handle the matters they handle at their level and, where warranted, they lay CC charges or draft the report for the CoC to lay the CSD charge.  The assumption that base MPs investigate and report but don't charge is something that I've never seen in my over 30 years as an MP.  Even at a guardhouse level I've charged plenty of times under the Criminal Code whether its impaired charges, assaults, sex assaults (before the CFNIS stood up) or other offences.



Sorry I think you misunderstand what I've said. What I basically said is that:

CFNIS are MPs but not all MPs are CFNIS. 

The power to lay a charge under the CSD is given only to CFNIS MPs by virtue of QR&O 107.02. Non-CFNIS MPs have no authority to lay a charge under the CSD.

All MPs, including CFNIS, are "peace officers" pursuant to s 2(g)(ii) of the CCC and therefore can lay charges under the CCC within the limitations set out by QR&) 22.011.

I think we're in agreement on the concept if not the language we're using.

 :cheers:


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## FJAG (14 Aug 2015)

Schindler's Lift said:
			
		

> Sadly if it is struck down then it will effectively mean a service member can serious crimes while overseas and outside of criminal code jurisdiction and not be prosecuted since there are no suitable charges under the CSD for such offences without 130.  I'd have much less issue if they would limit 130 to deployed ops outside CC's reach.  (While they are at it they can but similar limits on the use of "CO's search warrants" too so they can't be used (misused) in Canada either.  But that's a whole other thread)



That's one of many concerns that I have. Here's an old historical example. During the Vietnam War's My Lai massacre, numerous draftees committed war crimes. Unfortunately due to cover ups and mismanagement by the chain of command the situation did not become widely known until after most of them had been discharged from the army. Under the then-existing UCMJ, the military could no longer try them because they were no longer in the army but were civilians. Similarly the state governments that they now lived in had no jurisdiction (or desire) to try them for a crime committed in Vietnam. The end result is that most of the active murderers went free. (Calley's another issue entirely but ff topic

There are now several laws which allow governments to try an individual found within their territorial jurisdiction for war crimes committed in foreign countries but these laws fall far short of the ability that we have now under s 130.

 :cheers:


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## Tibbson (15 Aug 2015)

I guess, if the SCC does something too drastic with Sec 130 the govt could always amend the CC in much the same way they did to allow it to apply to Canadian astronauts on the International Space Station.


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## Good2Golf (15 Aug 2015)

Did I miss something in the appellants' case in R v Moriarty?  I thought it was clear they were referring to §130(1)(*a*) - IN Canada, not 130(1)(b) - outside of Canada.  Thus, I thought their case was to strike 130(1)(a) leaving a new 130(1) (no a or b) that covered only the outside-Canada situation?

G2G


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## FJAG (15 Aug 2015)

Good2Golf said:
			
		

> Did I miss something in the appellants' case in R v Moriarty?  I thought it was clear they were referring to §130(1)(*a*) - IN Canada, not 130(1)(b) - outside of Canada.  Thus, I thought their case was to strike 130(1)(a) leaving a new 130(1) (no a or b) that covered only the outside-Canada situation?
> 
> G2G



Nope you didn't miss anything. The application is to strike s130(1)(a) (the in -Canada provision). However it would not leave a new s130 but simply leave the exiting 130(1)(b) unaffected.

Note that since the convictions came under s130(1)(a) that's all that the current appellants could attack in their appeal. That said, while 130(1)(b) would remain in effect it would certainly be vulnerable to a similar overbreadth argument in any case brought under it in the future. I think that's what Schindler's Lift may have been alluding to.

 :cheers:


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## Good2Golf (16 Aug 2015)

Ack, thanks FJAG!

Cheers
G2G


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## Hound Dog (16 Nov 2015)

For all those following this case, decision will be released on Thursday, Nov 19 at 0945 EST.

http://scc-csc.lexum.com/scc-csc/news/en/item/5090/index.do


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## putz (19 Nov 2015)

Thanks!


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## Lumber (19 Nov 2015)

http://scc-csc.lexum.com/scc-csc/scc-csc/en/item/15628/index.do

All appeals dismissed.

No getting off the hook for these savoury fellows.


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## dapaterson (19 Nov 2015)

I am not a lawyer, but, that said, this ruling seems to have some internal inconsistency.  In para 40, the conceopt of "military nexus" seems to be dismissed out of hand, only to reappear in para 55 with seeming endorsement.


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## Oldgateboatdriver (19 Nov 2015)

No real inconsistency there, Dataperson.

The court is merely using a past case, which was decided on the basis of military nexus to illustrate its point that the interest of the government in subjecting the members of the CAF to section 130 has a rational connection to the needs of discipline, efficiency and morale. 

They probably did this because that case in particular had been cited by one of the parties to the appeal and pleaded at length. The logical conclusion from that paragraph [55] is that in that case decided on the basis of "military nexus", the court actual conclusions (the military may have a more pressing need to have its personnel drug free) are consistent with the analysis on the basis of rational connection that makes the section (130 NDA)  not over broad.


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## catalyst (19 Nov 2015)

Lumber said:
			
		

> http://scc-csc.lexum.com/scc-csc/scc-csc/en/item/15628/index.do
> 
> All appeals dismissed.
> 
> No getting off the hook for these savoury fellows.



Finally, glad to see justice has prevailed in R. V. Moriarity.


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## Tibbson (19 Nov 2015)

dapaterson said:
			
		

> I am not a lawyer, but, that said, this ruling seems to have some internal inconsistency.  In para 40, the conceopt of "military nexus" seems to be dismissed out of hand, only to reappear in para 55 with seeming endorsement.



I thought that at first as well but once I reread it a couple of times I saw the context and the arguments being made and referred to.


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## McG (20 Nov 2015)

Lumber said:
			
		

> http://scc-csc.lexum.com/scc-csc/scc-csc/en/item/15628/index.do
> 
> All appeals dismissed.
> 
> No getting off the hook for these savoury fellows.


This is good news.


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## charlesm (20 Nov 2015)

With copyright legal notices

http://www.theglobeandmail.com/news/national/supreme-court-upholds-constitutionality-of-military-justice-system/article27358762/

The Supreme Court of Canada has upheld the constitutionality of the military justice system.

The court on Thursday dismissed four appeals which argued sections of the National Defence Act were broader than necessary and therefore violated the Charter of Rights and Freedoms.

The appeals related to offences committed by members of the Forces who were subject to the Code of Service Discipline under the defence act.

The four members, accused of offences punishable under the Criminal Code and the Controlled Drugs and Substances Act, raised the issue of whether the provisions infringed on Section 7 of the charter because they create offences not directly related to military discipline.

The section stipulates that everyone “has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.”

The court said Parliament’s objective in establishing the military justice system was to provide processes that assure the maintenance of discipline, efficiency and morale in the military.

“The appellants’ contention fails because these provisions are not overbroad,” the court found. “A law is overbroad when there is no rational connection between the purpose of the law and some of its effects.”

In the ruling, the justices said criminal or fraudulent conduct — even when committed in circumstances that are not directly related to military duties —may have an impact on the standards.


“For instance, the fact that a member of the military has committed an assault in a civil context ... may call into question that individual’s capacity to show discipline in a military environment and to respect military authorities,” the court said.

“The fact that the offence has occurred outside a military context does not make it irrational to conclude that the prosecution of the offence is related to the discipline, efficiency and morale of the military.”


See the Legal decision here.

http://scc-csc.lexum.com/scc-csc/scc-csc/en/item/15628/index.do


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## JesseWZ (20 Nov 2015)

MCG said:
			
		

> This is good news.



Yes it is.


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