Not too Broad

In a decision delivered this morning, the Supreme Court of Canada has upheld the constitutionality of subjecting the members of the Canadian armed forces to the military justice system for all almost offences against acts of Parliament. In R. v. Moriarity, 2015 SCC 55, it ruled that the provisions of the National Defence Act pursuant to which such offences could be tried in the military justice system, regardless of whether the accused was in uniform or on military property when they were committed were not inconsistent with s. 7 of the Canadian Charter of Rights and Freedoms due to overbreadth, as the appellants had argued. In a unanimous decision by Justice Cromwell, the Court held that these provisions were rationally connected to their purpose ― once it was properly understood.

The first issue in a challenge based on s. 7 of the Charter is whether one of the “interests” that it protects ― life, liberty, or security of the person ― is “engaged” at all. Justice Cromwell easily concludes that this is the case here, because the provisions at issue are “part of a scheme through which a person … can be deprived of his or her liberty.” The main question is whether the potential deprivation of liberty pursuant to these provisions would be “in accordance with the principles of fundamental justice.”

Only one principle was said to be offended by the provisions at issue ― that according to which laws must not be overbroad. The Supreme Court’s jurisprudence defines overbreadth as a lack of rational connection between a legal rule’s purpose and its effect. As Justice Cromwell explains, the definition of the purpose is crucial to the overbreadth analysis. A legislative purpose defined too generally, at the level of a value, “will provide no meaningful check on the means employed to achieve it, [because] almost any challenged provision will likely be rationally connected to” it [28]. If, however, “the identified purpose is articulated in too specific terms, then the distinction between ends and means may be lost and the statement of purpose will effectively foreclose any separate inquiry into the connection between them,” [28] ensuring that any law will survive an overbreadth challenge. To steer the middle course between these pitfalls, “[t]he statement of purpose should generally be both precise and succinct.” [29]

All parties agreed that the purpose of making members of the Canadian forces subject to a distinct system of military justice “relates to assuring the discipline, efficiency and morale of the armed forces.” [33] However, the appellants argued that Parliament that the military justice system was only meant to prosecute offences directly connected to the armed forces ― and not those committed by the forces’ members in civilian circumstances. The prosecution, for its part, contended that the military justice system had an additional “public function of punishing specific conduct which threatens public order and welfare.” [47]

The Court rejected both these suggestions. The legislation, it said, was quite clear when it sought to exclude offences committed outside the service from its scope ― as it did for the members of the reserves. Other offences falling within the military’s Code of Service Discipline naturally extend to conduct occurring outside the service. In short, “the overall thrust of the scheme [is] to include offences when committed by an individual subject to the [Code] regardless of what other link may or may not exist between the circumstances of the offence and the military.” Meanwhile, the prosecution’s addition of a broader “public order” purpose would result in confusing the purpose and the effect of the provisions at issue, making the inquiry into the existence of a connection between the two meaningless.

Such a connection existed, the Court concluded. In Justice Cromwell’s words,

Criminal or fraudulent conduct, even when committed in circumstances that are not directly related to military duties, may have an impact on the standard of discipline, efficiency and morale. 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 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. [52]

Criminal behaviour by a member of the military, regardless of when and where it occurs, may also erode the trust and the respect others will have towards him or her. As a result, it is at least rational to prosecute offences committed outside the military context through the military justice system.

This seems fair enough, though the Court’s conclusion is asserted more than argued. Admittedly, the bar of rational connection between purpose and effect is a low one. The Court’s decision is narrow. Justice Cromwell flags some issues it does not address (because they were not raised):

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 us. [30]

But there is also, arguably, a broader question to be asked about the extent to which an institution to which a person belongs ought to be able to discipline that person for behaviour occurring outside the institutional context, for the sake of maintaining “morale,” or harmony, or respect, etc. It is a question I raised in one of my very first posts, which dealt with a challenge to a punishment imposed by a university to students for a series of Facebook posts. I wrote then that

I can see why a university might be interested in what is being said in its lecture halls, or online on forums it maintains (in connection with courses for example). It does have an interest in maintaining a welcoming, respectful learning environment … But does this interest give a university the right to police the conduct of its students off-campus or online?

The Alberta Court of Appeal, which had decided that case, Pridgen v. University of Calgary, 2012 ABCA 139, had not addressed that question. Here, the Supreme Court concluded that it was rational for the military ― a very different institution from a university, of course ― to do so. But again, rationality is a low threshold, and there is little in the court’s decision that would help us answer the question on the merits in other settings.

This is not a criticism, of course. The Court decided the question before it, and did not have to do more. Its decision, like the provisions it considered, was no broader than it had to be.

Author: Leonid Sirota

Law nerd. I teach public law at the University of Reading, in the United Kingdom. I studied law at McGill, clerked at the Federal Court of Canada, and did graduate work at the NYU School of Law. I then taught in New Zealand before taking up my current position at Reading.

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