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Off-duty officers punishable under court martial: SCC

|Written By David Dias

Military personnel are subject to court martial for all federal offences, even when those offences have nothing to do with the accused’s military service.

Criminal defence lawyer Ian Kasper says the SCC decision is really about whether military personnel are still subject to military law even when they’re off duty.
That’s the ruling from the Supreme Court of Canada today. The court issued four related decisions dealing with the constitutionality of the National Defence Act, which mandates court martial for all federal offences.

In the decision, indexed under R. v. Moriarty, military officers convicted of various offences — such as fraud and drug trafficking — argued before the Court Martial Appeal Court that their Charter rights were being violated by “overbroad” provisions that denied them a jury trial for non-military offences.

That argument was shot down decisively today. In a decision written by Justice Thomas Cromwell on behalf of a unanimous court, the SCC upheld the CMAC’s finding that NDA provisions mandating court martial are indeed constitutional in that they serve the purpose of maintaining discipline, efficiency and morale in the military service.

“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 decision states. “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.”

The decision, moreover, strikes down the doctrine of “military nexus,” which requires a connection, albeit a loose one, between the nature of the offence and the accused’s military service. Rather, the SCC finds that simply being a member of the military establishes the requisite connection.

Ian Kasper, a criminal defence lawyer in Toronto and an executive member of the Canadian Bar Association’s military law section, says the decision is really about whether military personnel are still subject to military law even when they’re off duty.

“What happens if someone is off duty and they go get in a bar fight off the base?” says Kasper. “How is that really connected to the military at all?”

“What the Supreme Court is saying is, if you’re in the military and these rules apply to you and you’re going out and breaking laws, then obviously that’s going to have an effect on morale and discipline in the unit . . . and that’s going to have an impact on the military itself.”

There could be an even greater effect on “efficiency,” Kasper points out, given the extent to which military operations would be hampered by having soldiers caught in the slow-moving gears of the civilian justice system. “If you’ve been arrested by a civilian police force, you’re not going to be able to report for duty. If you’re held for bail or held in custody, that affects the ability of the military to perform its task. . . . So the rational connection is pretty easy to see.”

What Kasper finds most interesting about the decision is how it treats the reserve forces, who are only punishable under court martial when on duty. So, while regular armed forces personnel can be thought of as always punishable under court martial, and civilians never, reserve forces move in and out of the jurisdiction.

“I think it’s interesting that the Supreme Court specifically mentioned that the reserve force is different,” says Kasper, who wonders aloud whether that differentiation could be applied elsewhere. “Should the reserve force be treated differently in sentencing, for example, or other areas of the military system as well?”

  • Major (retd)

    Tim. Dunne
    Canadian military jurisdiction is a very interpretive concept. Reg force members are accountable for any infraction of Canadaain law regardless of the nature of the act. However, if a member is permanently injured while off-duty, DND claims that it has no fiduciary responsibility for the individual following release. This is a very one-sided and unethical perspective.

    The justifying mantra for the military justice institution is its presumed requirement for discipline, efficiency and morale. In my 37 years in the CAF, I have had the honour of serving with so many honest, honourable and ethical personnel, I question the need for a justice system as a bulwark against poor discipline. Such attributes come from training, ethos and affiliation.

    The comment that military justice is necessary for morale is a self-evident oxymoron. NDA s 129 in itself is a condemnation of the system that will prosecute for any infraction from grand larceny to sloppy handwriting.
  • Circumstances

    Danger Dan
    So what if for example, a reservist is charged for drug trafficking while not on duty, and then goes onto DND property while on bail? Would that be grounds to be succeptible to NDA?
  • Dnd

    Ken K
    Only, if I remember correctly, that member is on active duty and commits a crime.nwhen a reservist is not under contract, ie. Not heing paid bybthe crown, they are considered civilian. Civilians committing crimes on DND property are go through the civilian justice system.
  • Mr.

    Doug Zwicker
    If this is the case why did the Military back away from Russ Williams when he committed the crimes he did? What is this a case of we don't want to embarrass the military because we let a psychopathic killer become a Colonel? Talk about double standards. He should have done two years in DB before he even started any incarceration in any Pen. That would have been a fitting end to his career.
  • No Jurisdiction to prosecute murder

    B Mac
    Section 70 of the National Defence Act states: 70. A service tribunal shall not try any person charged with any of the following offences committed in Canada:

    (a) murder;
  • DND

    Ken K
    The military turned thevRuss Williams case to civilian court because the powers of punishment, even at a court Marshal are not severe enough for this type of case and we dont have facilities capable for this type of offender. Our military is not large enough to house multiple types of prisoners, and NDA was ratified, its powers of punishment max out at two years less a day. Everything larger is done at a civilian facility. Hope thiscanswers your question
  • Mr

    Mike Calnan
    I believe it is important to note that this ruling applies to all ranks of the CAF, not just officers. Perhaps you mixed up military and police terminology?
  • DND

    Ken K
    I applaud this decision. As a regular force member, we all know that we always fall under the NDA, because we are always considered on duty 24/7 365 days a year. Something this lawyer doesn't seem to understand. I can be recalled from any type of leave at any time because I am always being paid by the crown. This is not the same for reserves, who when not being paid by the crown are outside the scope of the NDA. But, when serving a class B or C contract, they are. To anybody serving in the reg force, this ruling should not be upsetting or even surprising.




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