Supreme Court on constitutionality of NDA 130
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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
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Good2Golf said:
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.
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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.
Oldgateboatdriver
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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.
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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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
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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