AND BETWEEN: PRIVATE M.B.A. HANNAH APPELLANT (Appellant) and HER MAJESTY THE QUEEN RESPONDENT (Respondent)

COURT FILE NO. 35755 SUPREME COURT OF CANADA (ON APPEAL FROM THE COURT MARTIAL APPEAL COURT OF CANADA) BETWEEN: SECOND LIEUTENANT MORIARITY APPELLANT (Appellant) and HER MAJESTY THE QUEEN RESPONDENT (Respondent) AND BETWEEN: PRIVATE M.B.A. HANNAH APPELLANT (Appellant) and HER MAJESTY THE QUEEN RESPONDENT (Respondent) COURT FILE NO. 35873 SUPREME COURT OF CANADA (ON APPEAL FROM THE COURT MARTIAL APPEAL COURT OF CANADA) BETWEEN: PRIVATE ALEXANDRA VEZINA APPELLANT (Appellant) and HER MAJESTY THE QUEEN RESPONDENT (Respondent) JOINT FACTUM OF THE APPELLANTS SECOND LIEUTENANT MORIARITY PRIVATE M.B.A. HANNAH PRIVATE ALEXANDRA VEZINA (Pursuant to Rule 42 of Rules of the Supreme Court Of Canada)

ii DEFENCE COUNSEL SERVICES 241 Boulevard Cité des Jeunes Block 300, Asticou Centre Gatineau, QC J8Y 6L2 Telephone: (819) 934-3334 Facsimile: (819) 997-6322 Email: mark.letourneau@forces.gc.ca jean-bruno.cloutier@forces.gc.ca delano.fullerton@forces.gc.ca Lieutenant-Commander Mark Letourneau Lieutenant-Colonel Jean-Bruno Cloutier Colonel Delano K. Fullerton Counsel for the Appellants GOWLING LAFLEUR HENDERSON LLP Barristers and Solicitors 160 Elgin Street, Suite 2600 Ottawa, Ontario K1P 1C3 Telephone: (613) 786-0171 Facsimile: (613) 788-3587 Email: jeff.beedell@gowlings.com matthew.estabrooks@gowlings.com Jeffrey W. Beedell Matthew Estabrooks Ottawa Agents for Counsel for the Appellants CANADIAN MILITARY PROSECUTION SERVICE Constitution Building 305 Rideau Street, 9 th Floor Ottawa, ON K1A 0K2 Telephone: (613) 996-5723 Facsimile: (613) 995-1840 Email: Anne.Litowski@forces.gc.ca Steven.Richards@forces.gc.ca Lieutenant-Colonel Steven D. Richards Major M. L. Anne Litowski Counsel for the Respondent

i TABLE OF CONTENTS PART I OVERVIEW AND FACTS... 1 Overview... 1 Facts... 4 PART II QUESTIONS IN ISSUE... 6 PART III ARGUMENT... 6 A An Offence Under S. 130(1)(a) Is Overbroad... 6 (1) Section 130(1)(a) NDA Engages the Appellants' s. 7 Liberty Interests... 7 (2) The Engagement of the Appellants s. 7 Liberty Interests Is Not in accordance with the Principles of Fundamental Justice... 7 (a) The Scope and Effect of s. 130(1)(a)... 8 (b) The Purpose of s. 130(1)(a)... 12 (c) Section 130(1)(a) Is Overbroad... 14 B The Appropriate Remedy Is To Strike Down S. 130(1)(a)... 15 (1) The Military Nexus Remedy Is Inconsistent with the Unique Constitutional Responsibility of the Attorneys General to Supervise the Prosecution of Crimes Committed in Canada... 15 (a) The Constitution confers Prosecutorial Discretion, and its corollary Prosecutorial Independence, on the Attorneys General and No One Else... 16 i. The Attorneys General Alone Hold the Constitutional Mandate to Supervise the Prosecution of Crimes committed in Canada... 16 ii. The Attorneys General are Constitutionally Responsible for the Prosecution of All Criminal Acts committed in Canada... 17 iii. Prosecutorial Discretion of the Attorneys General Is Protected from the Influence of Improper Political and other Vitiating Factors by the Principle of Independence.... 18 (b) The Military Prosecution of Criminal Acts under s. 130(1)(a) Is Not under the Supervision of an Independent Attorney General... 20

ii i. The JAG, the DMP and the Commanding Officer Make Prosecutorial Decisions relative to Criminal Acts... 20 ii The Military Prosecution of Criminal Acts under s. 130(1)(a) Is Not under the Supervision of an Independent Attorney General... 22 (2) The Military Nexus Remedy to s. 130(1)(a) Is Inconsistent with the Rule of Law Principle of Equality before the Law... 24 (a) Equality before the Law Requires a Common Liability to the Civil Court... 24 (b) A Conviction or Acquittal under s. 130(1)(a) Exempts CAF Members from the Criminal Jurisdiction of the Civil Court... 27 (3) As a Result, in Some of its Applications, the Military Nexus Remedy to s. 130(1)(a) Puts the Overriding Public Interest at Risk... 28 C Section 130(1)(a) s Charter Violation Is both Unjustified and Unnecessarily... 31 (1) Civil Courts Already Deal with Criminal Matters committed in Canada that Pertain Directly to Military Discipline... 32 (2) All other service offences, including s. 129, remain at the disposal of military authorities to maintain discipline... 34 (3) The Panoply of Administrative Measures Available to Military Authorities as Employer... 35 PART IV SUBMISSIONS CONCERNING COSTS... 37 PART V ORDER SOUGHT... 37 PART VI LIST OF AUTHORITIES... 39 PART VII STATUTES AND REGULATIONS... 43 National Defence Act, RSC 1985 c N-5... 44

1 PART I OVERVIEW AND FACTS Overview 1. This is an appeal from a decision of the Court Martial Appeal Court (CMAC) that concerns the constitutional validity of s. 130(1)(a) of the National Defence Act. 1 The CMAC found that without a military nexus requirement, s. 130(1)(a) of the NDA is overbroad and contrary to s. 7 of the Charter. 2 The decision in this case has since been applied by the CMAC which found that "section 130 does not comply with principles of fundamental justice because it goes too far by sweeping conduct into its ambit that bears no relation to its objective" 3. 2. The decisive issue on this appeal is whether the military nexus remedy makes s. 130(1)(a) constitutional in all its dimensions. 3. The CMAC erred in relying on military nexus in order to save s. 130(1)(a) of the NDA. In its overbreadth analysis, the CMAC erred in its determination of both the scope and purpose of s. 130(1)(a). 4. At the stage of its analysis examining the scope of s. 130(1)(a) under s. 7 of the Charter, the CMAC considered elements which should have been reserved to the analysis under s. 1. As a result, the CMAC wrongly limited the scope of s. 130(1)(a) by a requirement of military nexus. 5. The CMAC further erred in overstating the purpose of s. 130(1)(a), equating it to the maintenance of military discipline at large. The purpose of s. 130(1)(a) is more specific. It is meant to confer jurisdiction on military tribunals over virtually all acts or omissions committed in Canada punishable under any Act of Parliament that pertain directly to the discipline, efficiency and morale of the military. 6. The military nexus requirement is not a constitutionally valid remedy. It does not make s. 130(1)(a) constitutional in all its dimensions. Its application is inconsistent with 1 2 3 National Defence Act, RSC 1985 c N-5 [NDA]. Canadian Charter of Rights and Freedoms, Part I of the Constitution Act 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11 [Charter]. R v Larouche, 2014 CMAC 6 at para 17 [Larouche].

2 the following two unwritten postulates which form the very foundation of the Constitution of Canada 4 : The Rule of Law which requires that everyone be treated equally before the law and thus prohibits military authorities from exempting Canadian Armed Forces (CAF) members from the criminal jurisdiction of civil courts. 5 Responsibility for the application of the criminal law is vested in the Attorneys General, who independently and objectively supervise the prosecutions of all criminal acts committed in Canada. 7. The military nexus remedy is incapable of preventing the military prosecution of criminal acts being conducted outside the purview and supervision of the Attorneys General. In addition, military nexus does not provide a means to prevent the exemption of CAF members from the criminal jurisdiction of the civil courts which necessarily flows from a conviction or acquittal under s. 130(1)(a). 8. In its conclusion, the CMAC highlighted the shortcomings of the proposed military nexus remedy. The Chief Justice did this in the following words 6 : For the above reasons, I find that paragraph 130(1)(a) is not unconstitutionally overbroad since its scope is limited by a requirement of a military nexus and, as a result, the Appellants s. 7 Charter rights have not been violated. In so concluding, I do not wish to be understood as saying that military prosecutions before service tribunals will necessarily follow in every case the military nexus requirement is satisfied. In certain instances, there may be overriding public interest considerations which either require or justify a prosecution before a civilian tribunal. [Emphasis added] 4 5 6 Reference re Secession of Quebec, [1998] 2 S.C.R. 217 at para 54 citing Reference re Manitoba Language Rights, [1985] 1 S.C.R. 721. Reference as to whether members of the Military or Naval Forces of the United States of America are exempt from Criminal Proceedings in Canadian Criminal Courts, [1943] S.C.R. 483 at 490 [1943 Reference]; Dicey, Introduction to the Study of the Law of Constitution, 10 th ed (New York: St Martin s press, 1967) at 193, 300-302 [Dicey]. R v Moriarity/Hannah, 2014 CMAC 1 at para 111 [Moriarity], Tab 5 in Appellants Record Moriarity/Hannah [ AR Moriarity ].

3 9. With or without military nexus, offences under s. 130(1)(a) catch crimes, such as sexual crimes, that inherently surpass the particular concerns or interests of the CAF. They raise overriding public interest considerations which should be subject in Canada to the oversight of Attorneys General, as is the case in the United Kingdom. 10. Section 130(1)(a), with or without a military nexus, violates s. 7 and is not saved under s. 1 because its purpose is not pressing and substantial. Indeed, it is both unjustified and unnecessary: unjustified as a matter of constitutional principle, and unnecessary as a matter of fact. Civil courts already deal with criminal matters committed in Canada even where they pertain directly to military discipline. And all service offences and regulations remain enforceable by military tribunals without recourse to civil courts. Moreover, comprehensive administrative measures and actions remain available to military authorities. 11. In short, striking down s. 130(1)(a) would protect the public interest, respect the Rule of Law, and in no way imperil the "discipline, efficiency or morale of the military". 7 Moreover, it would be entirely consistent with the modern approach to dealing with crimes committed by military personnel within the geographic confines of the country. 8 The "military nexus" requirement relied on by the CMAC in this case was recently rejected in these terms by the Special Rapporteur to the General Assembly of the United Nations 9 : States should not resort to the concept of service-related acts to displace the jurisdiction belonging to the ordinary courts in favour of military tribunals. Ordinary criminal offences committed by military personnel should be tried in ordinary courts, unless regular courts are unable to exercise jurisdiction owing to the particular circumstances in which the crime was committed (i.e. exclusively in cases of crimes committed outside the territory of the State). Such cases should be expressly provided for by the law. 7 8 9 R v Généreux, [1992] 1 S.C.R. 259 at 293-294 [Généreux]. Gilles Létourneau, Introduction to Military Justice: an Overview of Military Penal Justice System and its Evolution in Canada (Montreal: Wilson Lafleur, 2012) at 13-28 [Létourneau]; Gilles Létourneau, Two fundamental shortcomings of the Canadian military justice system (Paper delivered at the Global Seminar on Military Justice Reform, Yale Law School, 18 Oct 2013) at 7]. Gabriela Knaul, Report of the Special Rapporteur on the independence of judges and lawyers to the General Assembly, 7 August 2013, at para 99 [Special Rapporteur].

4 Facts 12. All appellants pled not guilty at trial. The appellants Vezina and Hannah were convicted of trafficking in narcotics and steroids respectively. As the circumstances of the Appellant Moriarity highlight the issues, his matter will be addressed in further detail. 13. The Appellant Moriarity worked full time for a civilian employer. His military duty was his part-time job. He was on the cadet instructor s list. Except for his summer duty at the Vernon Army Cadet Summer Training Centre, he worked one evening per week as a cadet instructor in Victoria, B.C. 14. Cadets are not CAF members. 10 The complainant cadets were under age civilians. They participated in cadets just as other young Canadians might participate in Boy Scouts or Girl Guides. 15. The Appellant Moriarity was convicted of the following offences under s. 130(1)(a) of the NDA: sexual interference, sexual touching and sexual assault against underage civilians. His charges read as follows: FIRST CHARGE Section 130 N.D.A. AN OFFENCE PUNISHABLE UNDER SECTION 130 OF THE NATIONAL DEFENCE ACT, THAT IS TO SAY, SEXUAL EXPLOITATION, CONTRARY TO SECTION 153 OF THE CRIMINAL CODE Particulars: In that he, during the months of July and August 2010, at Vernon Army Cadet Summer Training Centre, British Columbia, being in a position of trust or authority toward Cadet K.D., a young person did for a sexual purpose, touch directly the body of Cadet K.D. with a part of his body. SECOND CHARGE Section 130 N.D.A. AN OFFENCE PUNISHABLE UNDER SECTION 130 OF THE NATIONAL DEFENCE ACT, THAT IS TO SAY, SEXUAL EXPLOITATION, CONTRARY TO SECTION 153 OF THE CRIMINAL CODE 10 NDA, s. 46(3).

5 Particulars: In that, he between 18 and 26 March 2011, at Vernon Army Cadet Summer Training Centre, British Columbia, being in a position of trust or authority toward Cadet K.D., a young person, did for a sexual purpose, touch directly the body of Cadet K.D. with a part of his body. FOURTH CHARGE Section 130 N.D.A. FIFTH CHARGE Section 130 N.D.A. AN OFFENCE PUNISHABLE UNDER SECTION 130 OF THE NATIONAL DEFENCE ACT, THAT IS TO SAY, SEXUAL ASSAULT, CONTRARY TO SECTION 271 OF THE CRIMINAL CODE Particulars: In that he, between January and July, 2011, at Ashton Armory, Victoria, British Columbia, did commit a sexual assault on Cadet R.D. AN OFFENCE PUNISHABLE UNDER SECTION 130 OF THE NATIONAL DEFENCE ACT, THAT IS TO SAY, INVITATION TO SEXUAL TOUCHING, CONTRARY TO SECTION 152 OF THE CRIMINAL CODE Particulars: In that he, between January and July, 2011, at Ashton Armoury, Victoria, British Columbia, did for a sexual purpose invite Cadet R.D., a person under the age of sixteen years, to touch him directly with a part of his body. 16. The military tribunal convicted the appellant Moriarity of these sexual offences under s. 130(1)(a). As a result, he was exempted from the ordinary processes of the law 11. In this case, the ordinary processes of the law would have provided for prosecution under the supervision of an Attorney General before a civil court empowered to: order a pre-sentence report; 12 issue a prohibition order under s. 161 of the Criminal Code; 13 11 12 13 Martin L. Friedland, Double Jeopardy, (Clarendon Press Oxford, 1969) at 343 citing the Mutiny Act 1689, s 6 [Friedland Double Jeopardy]. Excerpts of Court Martial Trial Transcript (Captain D.J. Moriarity), p 216, l 31-38, Tab 11 in AR Moriarity. Excerpts of Court Martial Trial Transcript (Captain D.J. Moriarity), p. 243, l 15-20 and p. 270, l 10-20, Tab 12 in AR Moriarity.

6 refer the accused to the British Columbia Forensic Psychiatric Commission Sexual Offender Program 14 ; and Issue a probation order. 17. Section 130(1)(a) has allowed military authorities to exempt this Appellant, and all others prosecuted under its terms, from the criminal jurisdiction of the civil courts. PART II QUESTIONS IN ISSUE 18. The constitutional questions stated by the Chief Justice of this Court are: a. Does para. 130(1)(a) of the National Defence Act, R.S.C. 1985, c. N-5, violate s. 7 of the Canadian Charter of Rights and Freedoms? b. If so, is the infringement a reasonable limit prescribed by law as can be demonstrably justified in a free and democratic society under section 1 of the Canadian Charter of Rights and Freedoms? If the second question is answered negatively, the Court would be required to determine the appropriate remedy under s. 52 of the Constitution Act, 1982. PART III ARGUMENT A AN OFFENCE UNDER S. 130(1)(A) IS OVERBROAD 19. The Appellants submit that the offence under s. 130(1)(a) of the NDA violates s. 7 of the Charter by depriving them of their liberty in a manner that is not in accordance with the principles of fundamental justice: (1) the Appellants liberty interests under s. 7 are engaged; and, (2) the limitation of their liberty interests is not in accordance with the principle of fundamental justice that laws must not be overbroad. 14 Excerpts of Court Martial Trial Transcript (Captain D.J. Moriarity), p.503, Exhibit 18 in Court Martial Trial of Captain D.J. Moriarity, at para 2, Tab 12 in A.R. Moriarity.

7 (1) Section 130(1)(a) NDA Engages the Appellants' s. 7 Liberty Interests 20. The Appellants are charged with service offences under s. 130(1)(a). Section 130(1)(a) engages their liberty interests because they have been subject to the threat of, or in the case of the appellants Moriarity and Vezina the fact of, imprisonment. 15 Section 130(2) prescribes the sentence for a conviction in respect of an offence under s. 130(1)(a). In the case of the appellant Moriarity, the minimum punishment for the first, second and fifth charge is imprisonment for a term of 45 days. 16 The maximum punishment for all charges is imprisonment for a term of 10 years. 17 A conviction under s. 130(1)(a) leads to a criminal record 18 and may lead to a DNA order 19 and an order to comply with the Sex Offender Information Registry Act. 20 Section 7 is engaged. (2) The Engagement of the Appellants s. 7 Liberty Interests Is Not in accordance with the Principles of Fundamental Justice 21. Section 130(1)(a) of the NDA is contrary to the principle of fundamental justice that laws must not be broader than necessary to accomplish their purpose. 21 Every law that engages liberty, including military law, is subject to this principle. In R v Généreux 22, this Court warned that the jurisdiction of a system of military courts is constitutionally limited to its purpose: 15 16 17 18 19 20 21 22 Moriarity, supra at note 6 at paras 19, 20, Tab 5 of AR Moriarity. (An offence under s. 130(1)(a) creates a new prohibition and provides its own penalties). See also Canada (Attorney General) v PHS Community Services Society, [2011] 3 S.C.R. 134 at para 90. Prior to legislative amendments of 2012, s. 130(2)(a)(i) of the NDA, referring to ss. 152(a) and 153(1.1) of the Criminal Code provided for a minimum punishment of imprisonment of 45 days. NB: Service offences are not offences punishable on summary conviction: R v Trépanier [2008] CMAC 3 at para 35 [Trépanier]; R v Page (1996), 5 CMAR 383 at paras 10-11. As such, all hybrid offences under s. 130, regardless of the circumstances of their commission, are subject to the higher minimum punishment reserved for indictable offences. Relative to the first, second and fifth charges see s. 130(2)(a)(i) of the NDA referring to ss. 152(a) and 153(1.1) of the Criminal Code. Relative to the fourth charge see s. 130(2)(b) of the NDA referring to s. 271(a) of the Criminal Code. Criminal Records Act, RSC (1985), c C-47, s. 4. NDA, s. 196.14. NDA, s. 227.01. Canada (Attorney General) v Bedford, [2013] 3 S.C.R.. 1101; R v Heywood [1994] 3 S.C.R. 761 at 792-793 [Heywood]; R v Khawaja 2012 SCC 69 at paras 35, 37 [Khawaja]; R v Demers, [2004] SCC 46, at para 37 [Demers] Généreux, supra note 7.

8 Nonetheless, I believe that it is useful to consider the extent to which, and the reasons why, the Charter permits a parallel system of justice, such as that found under the National Defence Act, to exist alongside the ordinary criminal courts. Indeed, the reasons for the existence of such a parallel system of courts provides guides as to the system's proper limits. 23 [Emphasis added] 22. The Appellants will follow this Court s analysis to determine the overbreadth of s. 130(1)(a). The Appellants will: (a) Examine the scope and effect of s.130(1)(a); (b) Determine the purpose of s.130(1)(a); and (c) Ask whether the scope and effect of s. 130(1)(a) catches conduct that bears no relation to its purpose. 24 (a) The Scope and Effect of s. 130(1)(a) 23. The scope and effect of s. 130(1)(a) is to confer jurisdiction on military tribunals, for an unlimited period of time, 25 over virtually all acts or omissions committed in Canada punishable under federal law. This includes the Criminal Code. Section 130(1)(a) does this by creating a sweeping service offence. It reads as follows: Offences Punishable by Ordinary Law Service trial of civil offences 130. (1) An act or omission Infractions de droit commun Procès militaire pour infractions civiles 130. (1) Constitue une infraction à la présente section tout acte ou omission : (a) that takes place in Canada and is punishable under Part VII, the Criminal Code or any other Act of Parliament, or (b) that takes place outside Canada and would, if it had taken place in Canada, be punishable under Part VII, the Criminal Code or any other Act of Parliament, a) survenu au Canada et punissable sous le régime de la partie VII de la présente loi, du Code criminel ou de toute autre loi fédérale; b) survenu à l étranger mais qui serait punissable, au Canada, sous le régime de la partie VII de la présente loi, du Code criminel ou de toute autre loi fédérale. 23 24 25 Ibid at 289. Bedford, supra note 21 at paras 112, 117, 119. NDA, s. 69.

9 is an offence under this Division and every person convicted thereof is liable to suffer punishment as provided in subsection (2). (2) Subject to subsection (3), where a service tribunal convicts a person under subsection (1), the service tribunal shall, (a) if the conviction was in respect of an offence (i) committed in Canada under Part VII, the Criminal Code or any other Act of Parliament and for which a minimum punishment is prescribed, or (ii) committed outside Canada under section 235 of the Criminal Code, impose a punishment in accordance with the enactment prescribing the minimum punishment for the offence; or (b) in any other case, (i) impose the punishment prescribed for the offence by Part VII, the Criminal Code or that other Act, or (ii) impose dismissal with disgrace from Her Majesty s service or less punishment. (3) All provisions of the Code of Service Discipline in respect of a punishment of imprisonment for life, for two years or more or for less than two years, and a fine, apply in respect of punishments imposed under paragraph (2)(a) or subparagraph (2)(b)(i). (4) Nothing in this section is in derogation of the authority conferred by other sections of the Code of Service Discipline to charge, deal with and try a person alleged to have committed any offence set out in sections 73 to 129 and to impose the punishment for that offence described in the section prescribing that offence. Quiconque en est déclaré coupable encourt la peine prévue au paragraphe (2). (2) Sous réserve du paragraphe (3), la peine infligée à quiconque est déclaré coupable aux termes du paragraphe (1) est : a) la peine minimale prescrite par la disposition législative correspondante, dans le cas d une infraction : (i) commise au Canada en violation de la partie VII de la présente loi, du Code criminel ou de toute autre loi fédérale et pour laquelle une peine minimale est prescrite, (ii) commise à l étranger et prévue à l article 235 du Code criminel; b) dans tout autre cas : (i) soit la peine prévue pour l infraction par la partie VII de la présente loi, le Code criminel ou toute autre loi pertinente, (ii) soit, comme peine maximale, la destitution ignominieuse du service de Sa Majesté. (3) Toutes les dispositions du code de discipline militaire visant l emprisonnement à perpétuité, l emprisonnement de deux ans ou plus, l emprisonnement de moins de deux ans et l amende s appliquent à l égard des peines infligées aux termes de l alinéa (2)a) ou du sous-alinéa (2)b)(i). (4) Le présent article n a pas pour effet de porter atteinte aux pouvoirs conférés par d autres articles du code de discipline militaire en matière de poursuite et de jugement des infractions prévues aux articles 73 à 129.

10 R.S., 1985, c. N-5, s. 130; 1998, c. 35, ss. 33, 92. L.R. (1985), ch. N-5, art. 130; 1998, ch. 35, art. 33 et 92. 24. The only acts excluded from the all-embracing reach 26 of s. 130(1)(a) are: murder, manslaughter and child abduction when committed in Canada. 27 25. The scope of s. 130(1)(a) has been consistently interpreted by the CMAC to include virtually every act or omission punishable under any Act of Parliament irrespective of its nature and the circumstances of its commission. In R. v. Trépanier, the CMAC emphasized this point in the following terms: Yet, irrespective of its nature and the circumstances of its commission, section 130 of the NDA transforms into a military offence triable by military tribunals every violation of the Criminal Code of Canada, except the offences of murder and manslaughter when committed in Canada and those found in section 280 to 283 of the Criminal Code relating to the abduction of children: see section 70 of the NDA. 28 [Emphasis added] 26. In R. v. St-Jean, the CMAC specifically recognized that the scope of s. 130(1)(a) of the NDA is not limited to matters that pertain directly to military discipline: The fact that these offences are made part of the Code of Service Discipline by section 130 of the Act and that the offender is a member of the military does not necessarily mean that these offences pose a challenge to "military discipline. 29 [Emphasis added] 27. In this appeal, the CMAC erred in concluding that the scope of paragraph 130(1)(a) is necessarily circumscribed by the existence of a military nexus. 30 The CMAC committed two errors of law in the process of arriving at this conclusion. 28. First, the CMAC overruled the consistent jurisprudence defining the scope of s. 130(1)(a). Subsequently, in Larouche, the CMAC necessarily, although not explicitly, overruled the present decision under appeal on this point in finding that s. 130(1)(a) was 26 27 28 29 30 R v MacKay, [1980] 2 S.C.R. 370 at para 77 [MacKay]. NDA, s. 70. Trépanier, supra note 16 at para 27. See also R v Leblanc [2011] CMAC 2 at para 35. R v St-Jean [2000] 45 WCB (2d) 383 at para 38. [St-Jean]. See also R v Ellis [2010] CMAC 3 at paras 20-21. Moriarity, supra note 6 at para 66, Tab 5 of AR Moriarity.

11 overbroad. 31 In doing so, Larouche realigned the CMAC with its consistent previous jurisprudence respecting the scope of s. 130(1)(a). 29. Second, during its s. 7 analysis, at paragraph 44, the CMAC erred in considering elements of the analysis under s. 1 to justify the unconstitutionality of s. 130(1)(a). 32 The CMAC overstated the objective of s. 130(1)(a), equating it to the maintenance of military discipline at large in order to justify the law on the basis of enforcement practicality, a consideration reserved for analysis under s. 1. 30. The CMAC did so without evidence. The government called no social science nor expert evidence, or indeed, any evidence to justify the overbreadth of s. 130(1)(a) in terms of the enforcement practicality of the law. The CMAC concluded that without s. 130(1)(a), the practical enforcement of military discipline would be impossible. 33 As a result, the CMAC read down s. 130(1)(a) with a military nexus requirement. 34 31. By concluding that the overbreadth of s. 130(1)(a) was justified by a military nexus requirement, the CMAC in fact required the accused to establish the efficacy of the law versus its deleterious consequences on members of society as a whole. This imposed the government s s. 1 burden on the accused under s. 7. Yet, enforcement practicality of an overbroad law can only be justified under s. 1 of the Charter. The Appellants were never in a position to answer the CMAC s unsubstantiated conclusions on the enforcement practicality of s. 130(1)(a). The Appellants have outlined some relevant considerations under Section C below. 32. The scope and effect of s. 130(1)(a) of the NDA is to confer jurisdiction on military tribunals over virtually all acts or omissions committed in Canada punishable under federal law, including the Criminal Code. 31 32 33 34 Larouche, supra note 3 at para 17. Bedford, supra note 21 at paras 113, 124-129. Moriarity, supra note 6 at para 44, Tab 5 of AR Moriarity. Ibid at para 45.

12 (b) The Purpose of s. 130(1)(a) 33. The purpose of the offence under s. 130(1)(a) is to confer jurisdiction on military tribunals to deal with virtually all acts or omissions committed in Canada, punishable under any Act of Parliament, that pertain directly to the discipline, efficiency and morale of the military. While the CMAC identified that the purpose of s. 130(1)(a) must fall within the broader purpose of the Code of Service Discipline, the CMAC erred in failing to identify the specific purpose of s. 130(1)(a). 35 This has compromised the analysis and led the CMAC to an erroneous conclusion. 34. The purpose of the Code of Service Discipline is to confer jurisdiction on military tribunals over all service offences that pertain directly to military discipline, including the offence under s. 130(1)(a). In Généreux, this Court declared that the purpose of the Code of Service Discipline is to allow the Armed Forces to deal with matters that pertain directly to military discipline. 36 [Emphasis added] It is to confer jurisdiction on the military to deal with disciplinary offenses. This purpose is consistent with the original purpose of the Code of Service Discipline as enunciated by the Minister of National Defence when the NDA was enacted. 37 35. The purpose of s. 130(1)(a) is narrower than the purpose of the Code of Service Discipline. 38 The purpose of the offence under s. 130(1)(a) is to confer jurisdiction on military tribunals over virtually all acts or omissions committed in Canada punishable under any Act of Parliament that pertains directly to the discipline, efficiency and morale of the military. 36. The purpose of s. 130(1)(a) is not, as argued in the CMAC by the Respondent, to confer jurisdiction on military tribunals over acts that do not pertain directly to military 35 36 37 38 Moriarity, supra note 6 at para 100, Tab 5 of AR Moriarity. Généreux, supra note 7 at 293-294. Accord Grant v Gould (1792) 126 E.R. 434. Exhibit VD1-4 in Court Martial Trial of Captain D.J. Moriarity [House of Commons Special Committee on Bill No. 133, An Act respecting National Defence, Minutes of Proceedings and Evidence No. 1, (23 May, 1950) at 11,12 (Hon. Brooke Claxton)], Tab 14 of AR Moriarity. See also Exhibit VD1-3 in Court Martial Trial of Captain D.J. Moriarity [House of Commons Debates, 21st Parl, 2nd Sess, Vol. IV (7 June, 1950) at 3320 (Hon Brooke Claxton)], Tab 5 of AR Moriarity. Moriarity, supra note 6 at para 100.

13 discipline. Paragraph 31 of Généreux 39 does not support the Respondent s position. At this stage of the analysis Chief Justice Lamer was talking about the scope of the Code of Service Discipline. He indicated that s. 11(d) of the Charter was applicable to proceedings of a General Court Martial because, relying on the two criteria set out in Wigglesworth, the Code of Service Discipline not only imposed true penal consequences but also had the scope and effect of serving a public function. 37. It is not open to the Respondent to invent new objectives for s. 130(1)(a) according to its perceived current utility. 40 Inventing a new stand-alone public order objective, unrelated to military discipline, would violate the principle against shifting purpose. The purpose of s. 130(1)(a) has never shifted: it was, and still is, to confer jurisdiction on military tribunals over virtually all acts or omissions which have been committed in Canada and which are punishable under any Act of Parliament and which pertain directly to the discipline, efficiency and morale of the military. 38. Legislative amendments to the Code of Service Discipline have not changed the purpose of s. 130(1)(a). While Parliament has adopted many legislative changes, Parliament has never debated or changed the purpose of s. 130(1)(a). 41 These subsequent amendments, which may or may not be consistent with the purpose of s. 130(1)(a) have no bearing on, and have not changed, its purpose. 39. Amendments such as the Statute Law (Canadian Charter of Rights and Freedoms) Amendment Act 42 which introduced, in 1985, such concepts as the autrefois convict autrefois acquit defence into military law, were specifically intended to ensure that federal statutes which are obviously in conflict with the Charter will be amended so that the conflict will no longer exist. 43 Subsequent legislative activity, such as Bill C-15, 39 40 41 42 43 Généreux, supra note 7 at para 31. R v Zundel, [1992] 2 S.C.R. 731, at 760-761. Independent reviews of the Code of Service Discipline mandated by the NDA have not discussed the constitutionality of s. 130(1)(a) under s. 7 of the Charter. SC 1985, c 26, s 56. Exhibit VD 1-5 in Court Martial Trial of Captain D.J. Moriarity, [House of Commons Debates, 33rd Parl, 1st Sess, Vol. III (27 March, 1985) at 3419 (Hon John C Crosbie)], Tab 15 of AR Moriarity. For a brief history of military justice see Martin L. Friedland, Controlling Misconduct in the Military: a Study Prepared for the Commission of Inquiry into the Deployment of Canadian Forces to Somalia (Ottawa: Queen's Printer, 1997) at 76-82 [Friedland, Somalia].

14 can cast no light on the intention of the enacting Parliament. 44 changed the purpose of s. 130(1)(a). No amendments have 40. The purpose of the offence under s. 130(1)(a) of the NDA is to confer jurisdiction on military tribunals over virtually all acts or omissions committed in Canada, punishable under any Act of Parliament, that pertain directly to the discipline, efficiency and morale of the military. (c) Section 130(1)(a) Is Overbroad 41. Section 130(1)(a) is inherently bad. 45 Section 130(1)(a) does not comply with principles of fundamental justice because it goes too far by sweeping conduct into its ambit that bears no relation to its objective. 46 An offence under s. 130(1)(a) is therefore overbroad. 42. The use of reasonable hypothetical fact scenarios, applied by this Court in overbreadth analysis, yields a panoply of examples where s. 130(1)(a) captures conduct having nothing to do with the service offence s objective. 47 This demonstrates the manifest overbreadth of s. 130(1)(a). 43. Prosecutorial discretion cannot save overbroad laws. Section 130(1)(a) cannot be salvaged by relying on the discretion of the military prosecutorial authorities not to apply the law in those cases where, in their opinion, its application would be a violation of the Charter. To do so would be to disregard s. 52 of the Constitution Act, 1982 which provides that any law which is inconsistent with the Constitution is of no force or effect to the extent of the inconsistency and the courts are duty bound to make that pronouncement and not to delegate the avoidance of a violation to the prosecution. 48 44 45 46 47 48 United States of America v Dynar, [1997] 2 S.C.R. 462, at paras. 45-46. See also Bank of Montreal v Marcotte, 2014 SCC 55 a para 78. Bedford, supra note 21 at para 119. Ibid at para 117; Larouche, supra note 3 at para 17. Bedford, supra note 21 at para 142; Heywood, supra note 21 at 799; Ontario v Canadian Pacific Ltd, [1995] 2 S.C.R. 1031 at paras 80-81. R v Smith, [1987] 1 S.C.R. 1045 at para 69; Demers, supra note 21 at para 54; R v Nikal, [1996] 1 S.C.R. 1013 at para 108; R v Cuerrier, [1998] 2 S.C.R. 371 at para 53.

15 B THE APPROPRIATE REMEDY IS TO STRIKE DOWN S. 130(1)(A) 44. Reading in a military nexus requirement is not an available remedy under s. 52 of the Constitution Act, 1982 because it does not make s. 130(1)(a) constitutional in all its dimensions. 45. The application of the military nexus remedy to s. 130(1)(a) is inconsistent with the following two unwritten postulates which form the very foundation of the Constitution of Canada: (1) The Rule of Law which requires that everyone be treated equally before the law and thus prohibits military authorities from exempting Canadian Armed Forces (CAF) members from the criminal jurisdiction of civil courts. (2) Responsibility for the application of the criminal law is vested in the Attorneys General, who independently and objectively supervise the prosecutions of all criminal offences committed in Canada. As a result, the military nexus remedy to s. 130(1)(a) may put the overriding public interest at risk. The Appellants will first discuss the constitutional responsibility of the Attorneys General in the application of criminal law. (1) The Military Nexus Remedy Is Inconsistent with the Unique Constitutional Responsibility of the Attorneys General to Supervise the Prosecution of Crimes Committed in Canada 46. The Attorneys General have the unique and exclusive constitutional responsibility to supervise the prosecution of crimes committed in Canada. The Constitution endows the Attorneys General with prosecutorial discretion and its corollary prosecutorial independence, to enable them to fulfill their constitutional mandate to guard the overriding public interest. Prosecutorial discretion of the Attorneys General is a necessary part of a properly functioning criminal justice system. 49 With or without the military nexus remedy, s. 130(1)(a) is inconsistent with the constitutional responsibility of the Attorneys General over crimes committed in Canada because it allows the prosecution of such crimes by someone who is not under the supervision of an independent Attorney General. 49 R v Anderson, 2014 SCC 41 at para 37 [Anderson].

16 (a) The Constitution confers Prosecutorial Discretion, and its corollary Prosecutorial Independence, on the Attorneys General and No One Else 47. This Court has affirmed that the Attorneys General are the sovereign authority in the prosecution of criminal acts in Canada. In Krieger, the Court stated: It is a constitutional principle that the Attorneys General of this country must act independently of partisan concern when exercising their delegated sovereign authority to initiate, continue or terminate prosecutions. 50 [Emphasis added] 48. The Constitution requires that the prosecution of all criminal acts committed in Canada be under the supervision of the Attorneys General who alone are vested with prosecutorial discretion. Prosecutorial discretion is a term of art. 51 It does not refer to the prosecution of any matter by anybody. In Anderson, this Court recently reiterated that prosecutorial discretion is a principle referring to discretion: i. exercised by the Attorney General; ii. iii. in relation to the prosecution of all criminal acts; and, which is protected from the influence of improper political and other vitiating factors by the principle of independence. 52 i. The Attorneys General Alone Hold the Constitutional Mandate to Supervise the Prosecution of Crimes committed in Canada 49. The Attorney General occupies a position of independence unique among cabinet ministers. He is the guardian of the public interest under the Constitution, Chief Law Enforcement Officer and ultimate keeper of the public peace. 53 He has a privileged constitutional status 54 and enjoys immense constitutional powers. 55 He reflects the interest of the community to see that justice is properly done. 56 His role 50 51 52 53 54 55 56 Krieger v Law Society of Alberta, [2002] 3 S.C.R. 372 at para 3 [Krieger] Anderson, supra note 49 at para 39 (citing Krieger at para 43). Anderson, supra note 49 at para 44 (citing Krieger at para 44). See also R v Power, [1994] 1 S.C.R. 601 at 622 [Power] Trepanier, supra note 16 at para 98. John Edwards, The Attorney General, Politics and the Public Interest, London, Sweet & Maxwell, 1984 at 360 [Edwards, Public Interest]. John Edwards, The Attorney General and the Charter of Rights, in Charter Litigation, R Sharpe, ed (Toronto: Butterworth, 1987) at 53, 68 [Edwards, Charter]. Power, supra note 52 at 616.

17 excludes any notion of winning or losing; his function is a matter of public duty in civil life there can be none charged with greater responsibility. 57 50. In Krieger, this Court explains the unique and important role of the Attorney General 58. The Court recognized the constitutional roots of the office of the Attorney General: In Canada, the office of the Attorney General is one with constitutional dimensions recognized in the Constitution Act, 1867. Although the specific duties conventionally exercised by the Attorney General are not enumerated, s. 135 of that Act provides for the extension of the authority and duties of that office as existing prior to Confederation. [Emphasis added] 51. Prosecutorial discretion can only be exercised under the authority of the Attorney General. Prosecutorial discretion exercised under and on behalf of the Attorney General is an essential constitutional attribute for prosecutorial authorities to be in a position to act independently when prosecuting criminal acts committed in Canada. 59 Only the Attorneys General are fully independent from the political pressures of government 60 in their prosecutorial capacity. ii. The Attorneys General are Constitutionally Responsible for the Prosecution of All Criminal Acts committed in Canada 52. An offence under s. 130(1)(a) catches criminal matters such as, in the present appeals, sexual assault, sexual interference, sexual exploitation and drug trafficking. These criminal matters constitutionally require the exercise of prosecutorial discretion under the authority of the Attorneys General. 57 58 59 60 R v Boucher, [1955] S.C.R. 16 at 24. See also Miazga v Kvello Estate, [2009] 3 S.C.R. 339 at para 47 [Miazga]. Krieger, supra note 50 at para 23. See also Edwards, Charter, supra note 55 at 46. James W O Reilly and Patrick Healy, Independence in the Prosecution of Offences in the Canadian Forces: Military Policing and Prosecutorial Discretion: a study prepared for the Commission of Inquiry into the Deployment of Canadian Forces to Somalia (Ottawa: Canadian Government Publishing, 1997) ( it is always the attorney general (however named) of the particular jurisdiction who is ultimately responsible for litigation matters generally and criminal prosecutions specifically ( ) this is true even in jurisdictions that have created an office of director of public prosecutions. at 40) [O Reilly and Healy]. Krieger, supra note 50 at para 29.

18 iii. Prosecutorial Discretion of the Attorneys General Is Protected from the Influence of Improper Political and other Vitiating Factors by the Principle of Independence. 53. Prosecutorial discretion is a function inherent in the office of the Attorney General that brings the principle of independence into play. 61 Prosecutorial discretion and prosecutorial independence are inextricably intertwined and constitutionally attached to the office of the Attorney General. The quid pro quo of prosecutorial discretion is prosecutorial independence from potential political interference. Only the Attorneys General are fully independent from the political pressures of government 62 and, subject to abuse of process, their decisions are immune from judicial review. 63 54. In Miazga 64, this Court reaffirmed the importance of the independence of the Attorneys General when prosecuting crimes: The independence of the Attorney General is so fundamental to the integrity and efficiency of the criminal justice system that it is constitutionally entrenched. The principle of independence requires that the Attorney General act independently of political pressures from government. [Emphasis added] 55. The rationale for requiring prosecutorial discretion and for rooting it in the established constitutional history of an independent Attorney General is that, to subject such discretion to political interference or judicial supervision, could erode the integrity of our system of prosecution. 65 56. Prosecutorial discretion of the Attorneys General is meant to preserve the integrity of the criminal justice system as a whole, including our system of military tribunals. In Krieger, this Court explained that without it the court would become a supervising prosecutor and cease to be an independent tribunal. 66 61 62 63 64 65 66 Miazga, supra note 57 at para 47. Krieger, supra note 50 at para 29. Anderson, supra note 49 at para 51. Miazga, supra note 57 at para 46. Krieger, supra note 50 at para 31. Ibid, at para 31.

19 57. Prosecutorial discretion of Attorneys General is an essential protection of the citizen against the sometimes overzealous or misdirected exercise of state power. 67 It is essential to dispense justice fairly and impartially, in accordance with the Rule of Law and with due regard to the rights of all those involved in the system, including military accused. 68 58. Prosecutorial discretion, or its corollary the prosecutorial independence of the Attorneys General, has also been recognized as a principle of fundamental justice by four justices of this Court in Regan 69 and by a unanimous bench of the Ontario Court of Appeal in Gill 70. 59. In Regan, Justice Binnie, dissenting on another point, stated that everyone in this country is entitled to equal protection under the law and that an important element of the protection of the law is enshrined in the concept that prosecutors in criminal matters stand independent 71 between the executive and the accused. Prosecutors in our legal system must stand as a buffer between political power and the citizen. 72 They are to act as ministers of justice 73, not as adversaries. Their role excludes any notion of winning or losing 74 as they ought to regard themselves as part of the Court rather than as an advocate. 75 They cannot be a mere advocate instructed by the Executive. 60. To be in a position to respect his or her Minister of Justice obligations of objectivity and independence, 76 the prosecutor needs to be under the supervision of the 67 68 69 70 71 72 73 74 75 76 R v Regan, [2002] 1 S.C.R. 297 at para 157 [Regan]. Marc Rosenberg, The Attorney General and the Administration of Criminal Justice (2009), 34 Queen's LJ 813 at para 101. Regan, supra note 67 at para 157. R v Gill, 2012 ONCA 607, 96 CR (6 th ) 172, Doherty J ( Put in a more positive way, prosecutorial independence, itself a principle of fundamental justice, forecloses judicial review of core decisions under s. 7 for anything other than abuse of process at para 57.) Regan, supra note 67 at para 135. Ibid at para 160. Ibid at para 151. Ibid. Ibid at para 153. Ibid at para 157. See also para 192.

20 Attorney General because only he or she is fully protected from the political pressures of government 77 under the Constitution. 61. More recently in Anderson 78, this Court unanimously reiterated that prosecutorial discretion of the Attorneys General is fundamental to the way in which the legal system ought fairly to operate, and delineated in some detail the reasons for this, highlighting that: Prosecutorial discretion of the Attorneys General is a necessary part of a properly functioning criminal justice system; The fundamental importance of prosecutorial discretion lies in advancing the public interest by enabling prosecutors to make discretionary decisions in fulfillment of their professional obligations without fear of judicial or political interference, thus fulfilling their quasijudicial role as ministers of justice ; and Not only does prosecutorial discretion accord with the principles of fundamental justice it constitutes an indispensable device for the effective enforcement of the criminal law. 79 62. Only the Attorneys General are vested with the constitutional responsibility, authority and independence to prosecute crimes committed in Canada. This is indispensable to administer justice fairly and impartially in accordance with the Rule of Law. (b) The Prosecution of Criminal Acts under s. 130(1)(a) Is Not under the Supervision of an Independent Attorney General 63. Section 130(1)(a) is inconsistent with the unique constitutional responsibility of the Attorneys General because it does not provide for the prosecution of the criminal acts it catches to be under the supervision of an independent Attorney General. Section 77 78 79 Krieger, supra note 50 at para 29. Anderson, supra note 49. Ibid at para 37.

21 130(1)(a) is inconsistent with the constitutional and exclusive role of the Attorney General because it authorizes the Director of Military Prosecutions (DMP), the Judge Advocate General (JAG) and commanding officers to prosecute criminal acts committed in Canada and to do so outside the purview and supervision of an independent Attorney General. i. The JAG, the DMP and the Commanding Officer Make Prosecutorial Decisions relative to Criminal Acts 64. The JAG 80 makes prosecutorial decisions in relation to the particular prosecution of criminal acts caught under s. 130(1)(a). He is not under the supervision of the Attorney General. He acts as the superintendent of the military justice system. 81 Subsection 165.17(3) of the NDA states: 165.17 (3) The Judge-Advocate General may issue instructions or guidelines in respect of a particular prosecution. 165.17 (3) Le juge-avocat général peut, par écrit, établir des lignes directrices ou donner des instructions en qui concerne une poursuite en particulier. 65. The DMP is responsible for the preferring of all charges to be tried by court martial and for the conduct of prosecutions at court martial. 82 66. The DMP is under the command of the JAG. 83 The JAG may instruct the DMP in respect of any particular prosecution. 84 Despite his fixed term of appointment 85, he remains under the command of the JAG. 86 His organization is part of and resourced by 80 81 82 83 84 85 86 Généreux, supra note 7 at para 83 (The JAG is not independent but is rather a part of the Executive [emphasis added]). The JAG is a military officer (NDA s. 9(1), s. 9.4). He is a political appointment and holds office during pleasure (NDA, s. 9(2)). He is a senior legal advisor to the Governor General, the Minister, the Defence Department and the Canadian Forces in matters relating to military law officer (NDA, s. 9.1). He is not accountable to Parliament (NDA, s. 9.3). He is responsible to the Minister of National Defence in the performance of his duties and functions, but not in relation to his prosecutorial decisions (NDA, s. 9.3(1), s. 165.17(3)(6)). NDA, s. 9.2. NDA, s. 165.11. Queen s Regulations and Regulations for the Canadian Forces, art 4.081 [QR&O]. NDA, s. 165.17(3) NDA, s. 165.1(2). NDA, s. 165.17(1), QR&O art. 4.081.