R v Moriarity, 2012 CM 3017

COURT MARTIAL Citation: R v Moriarity , 2012 CM 3017 Date: 20121018 Docket: 201229 Standing Court Martial Canadian Forces Base Esquimalt Victoria , British Columbia, Canada Between: Her Majesty, the Queen - and – Captain D.J. Moriarity, Accused Before: Lieutenant-Colonel L.-V. d'Auteuil, M.J. Restriction on publication: By court order made under

section 179 of the National Defence Act and

section 486.4 of the Criminal Code , information that could disclose the identity of the persons described in this judgement as the complainants shall not be published in any document or broadcast or transmitted in any way. REASONS ON APPLICATION MADE BY THE ACCUSED FOR AN ORDER DECLARING SUBPARAGRAPH 130(1)(

A) OF THE NATIONAL DEFENCE ACT OF NO FORCE OR EFFECT PURSUANT TO

SECTION 52 OF THE CONSTITUTION ACT, 1982. (Orally) CONTEXT [ 1 ] Captain Moriarity is charged with four offences punishable under

section 130 of the National Defence Act ( NDA ): the two first ones for sexual exploitation contrary to

section 153 of the Criminal Code , the third one for sexual assault contrary to

section 271 of the Criminal Code , and the fourth one for invitation to sexual touching contrary to

section 152 of the Criminal Code . The sexual exploitation offences involving one complainant relate to incidents that allegedly occurred at Vernon Army Cadet Summer Training Centre, British Columbia, in July and August 2010 and in March 2011. The two other offences, involving a second complainant, relate to incidents that allegedly occurred at Ashton Armoury, Victoria, British Columbia, between May 2009 and July 2011. [ 2 ] By way of an application made to this Standing Court Martial pursuant to subparagraph 112.05(5)(

e) of the Queen’s Regulations and Orders for the Canadian Forces , (QR&O), Captain Moriarity is seeking an order from the presiding military judge finding that subparagraph 130(1)(

a) of the NDA to be contrary to

section 7 of the Canadian Charter of Rights and Freed oms (hereafter the Charter ), and if so, as a remedy, an order declaring this NDA provision to be of no force or effect under paragraph 52(1) of the Constitution Act,

1982 . [ 3 ] More specifically, the applicant is looking for a decision from this court that subparagraph 130(1)(

a) of the NDA infringes

section 7 of the Charter because it engages his liberty interests in a manner that is not in accordance with the principles of fundamental justice. He argued before this court that this NDA provision is broader than what is required to achieve the legitimate objective of the legislation. He is seeking an order declaring subparagraph 130(1)(

a) of the NDA being of no force and effect to the extent of the inconsistency pursuant to paragraph 52(1) of the Constitution Act , 1982 , because it is inconsistent with

section 7 and cannot be saved by

section 1 of the Charter . [ 4 ] However, considering that a factual foundation is required for the court in order to be in a position to proceed with the application, counsel suggested, and the court accepted, to proceed first with the hearing of the evidence on the main trial, and once the case was closed for both parties, to open a voir dire in order to proceed with the hearing of the application. EVIDENCE [ 5 ] The evidence on the application consisted of: (

a) Exhibit VD1-1, the written notice of application dated 28 September 2012 and received at the Office of the Court Martial Administrator on 3 October 2012; (

b) Exhibit VD1-2, the written notice of constitutional question dated 1 October 2012, the affidavit of service, and the applicant’s written argument; all those documents received at the Office of the Court Martial Administrator on 3 October 2012; (

c) Exhibit VD1-3, excerpts of 1950 House of Commons official report of debates concerning Bill 133 (an Act Respecting National Defence); (

d) Exhibit VD1-4, excerpts of minutes of proceedings from the House of Commons Special Committee on Bill 133 (an Act Respecting National Defence); (

e) Exhibit VD1-5, excerpts of 1985 House of Commons official report of debates concerning the Statute Law ( Canadian Charter of Rights and Freedoms ) Amendment Act ; (

f) Exhibit VD1-6, the convening order dated 12 September 2012; (

g) Exhibit VD1-7, the charge sheet dated 25 April 2012; (

h) Exhibit VD1-8, Captain Moriarity’s judicial confession; (

i) Exhibit VD1-9, respondent’s written submissions; and (

j) the judicial notice taken by the court of the facts and issues under Rule 15 of the Military Rules of Evidence. FACTS

[6] Without going deeply through the circumstances of this case, the judicial confession made by Captain Moriarity revealed that atthe time of the incidents on which the charges are based, which is between March 2007 and July 2011, he was subject to the Code ofService Discipline by performing military duties as a Cadet Instructor Cadre (CIC) officer on a defence establishment, and that he was ina position of trust and authority with respect to cadets. [7] It is during the summer of 2011, after both complainants learned that Captain Moriarity had been returned to his unit becauseanother cadet had come forward with an allegation that he had had inappropriate conversation with him online, that they decided on theirown to disclose what happened between them and Captain Moriarity. [8] Charges were laid against Captain Moriarity and they were preferred on 11 May 2012 by the Director of Military Prosecutions.

POSITION OF THE APPLICANT [9] The applicant is taking the position that

section 130 of the NDA is a service offence because the definition at

section 2 of theNDA of a service offence and the application of subparagraph 130(1)(

a) of the NDA make Criminal Code offences, such as the onesCaptain Moriarity is charged with, a service offence. [10] Then, using paragraph 130(2) of the NDA, the applicant suggested to the court that it may potentially see it impose on him thepunishment prescribed for the related Criminal Code provisions, which would mean that if he is found guilty by the court of sexualexploitation or invitation to sexual touching, a minimum sentence of 45-days' imprisonment and a maximum of 10-years' imprisonment,and if found guilty of sexual assault, a maximum of 10-years' imprisonment. [11] Being exposed to the threat of being imprisoned, defence counsel argued that the applicant’s liberty enunciated at

section 7 of theCharter is engaged by the availability of a penalty of imprisonment, as established by the Supreme Court of Canada in Canada (AttorneyGeneral) v PHS Community Services Society, 2011 SCC 44, at paragraph 90. [12] Then, the applicant submitted that the court shall consider if his liberty interests are deprived in accordance with the principles offundamental justice and, specifically, with the one that legislation of a criminal nature just not be overbroad (see R v Demers, 2004 SCC46, at paragraph 37). [13] In order for the court to proceed with its analysis, he suggested that the purpose of

section 130 is to articulate a standard ofconduct that is required to achieve the Code of Service Discipline’s purpose of enforcing internal discipline effectively and efficiently. [14] He came to that suggestion by relying, first, on the legislative history as it appeared from some excerpts of 1950 House ofCommons official report of debates concerning Bill 133 (an Act Respecting National Defence), some excerpts of minutes of proceedingsfrom the House of Commons Special Committee on Bill 133 (an Act Respecting National Defence), and an excerpt of 1985 House ofCommons official report of debates concerning the Statute Law (Canadian Charter of Rights and Freedoms) Amendment Act. [15] Secondly, the applicant relies on the place of the considered provision in the Code of Service Discipline and its roots in theConstitution. [16] Finally, he based his suggestion on case law decisions, such as R v Généreux, (SCC), [1992] 1 SCR 259, atparagraphs 60 and 67, R v Mackay, (SCC), [1980] 2 SCR 370, at paragraphs 32, 55, and 58, and R v Reddick, CMAJ 9,at paragraph 22. [17] Essentially, he submitted to the court that the main purpose of the Code of Service Discipline, in which can be foundsubparagraph 130(1)(

a) of the NDA, is to maintain discipline and integrity in the Canadian Forces. In that respect, he suggested to thecourt that this provision cannot be broader than the Code.

[18] The applicant conceded that his own factual situation does not support his argument that subparagraph 130(1)(

a) is overbroad. However, he suggested that the court may proceed with the use of hypotheses in determining this question, as it was the case in R vHeywood, (SCC), [1994] 3 SCR 761, at paragraph 62. [19] Then, as a hypothesis to consider by the court, he suggested that a person subject to the Code of Service Discipline may becharged through subparagraph 130(1)(

a) of the NDA for a conduct that is completely unrelated to the objective of the Code, which is tomaintain discipline and integrity in the Canadian Forces, and it would result in a situation where subparagraph 130(1)(

a) of the NDAwould allow a service tribunal to deal with unrelated matters to military discipline which is far beyond from what is the purpose of theCode. [20] The applicant does not deny the fact that subparagraph 130(1)(

a) of the NDA may serve a public function as well, by punishingspecific conduct which threatens public order and welfare within the purpose of the Code. However, he is of the opinion that suchfunction cannot justify a situation where a person subject to the Code of Service Discipline is charged for an unrelated matter to theapplication of that Code through subparagraph 130(1)(

a) of the NDA. [21] In addition to his argument, the applicant highlighted the fact that for similar criminal offences committed in similarcircumstances, a person subject to the Code of Service Discipline may receive different treatment from the one he would have received ifhe had been prosecuted before a civilian court of criminal jurisdiction, which would include the possibility of a jury trial. [22] Then, the applicant took the position that the violation cannot be justified under

section 1 of the Charter and that the onlyremedy available to the court is to invalidate, pursuant to

section 52 of the Constitution Act, 1982, subparagraph 130(1)(

a) of the NDAfor being inconsistent with

section 7 of the Charter. POSITION OF THE RESPONDENT [23] The respondent submitted to the court that this application must be dismissed because: (

a) the evidentiary foundation is insufficient to entertain this Charter challenge; (

b) the over-breadth analysis under

section 7 of the Charter does not apply; and (

c) if the over-breadth analysis applies, then it nevertheless fails. [24] The respondent suggested, first, to the court that there is no factual foundation for supporting the constitutional challenge madeby the applicant, and, as a result, this court would have to proceed with an analysis in the abstract, (see Ellis v R, 2010 CMAC 3, atparagraphs 27 to 31), which it must not do. [25] To the suggestion made by the applicant that the court may use hypothetical situations to proceed with its analysis, therespondent reminded the court that they must be reasonable as indicated by the Supreme Court of Canada in R v Heywood, (SCC), [1994] 3 SCR 761, at paragraph 62.

He indicated to the court that the applicant failed to submit such reasonable hypotheses. [26] Concerning the over-breadth analysis under

section 7 of the Charter, the respondent submitted that subparagraph 130(1)(

a) ofthe NDA does not create a service offence because it simply incorporates into the Code of Service Discipline all other Federal Acts, suchas the Criminal Code. Then, it does not impose a risk to or engage the applicant's liberty and must not be subjected to any analysis undersection 7 of the Charter. [27] However, if the court embarks in the over-breadth analysis as to determine if the right to liberty of the applicant has beendeprived in accordance or not with this principal of fundamental justice, it urged the court to properly and accurately identify thepurposes of subparagraph 130(1)(

a) of the NDA, which, to his opinion, the applicant failed to do. He submitted to the court that the

purposes are the following ones: (

a) the maintenance of public peace, order, and welfare; (

b) recognition that offences triable under civil law may take on wholly unique significance or connotation when committed by amember of the Canadian Forces; and (

c) the legitimate legislative intention of mandating respect for and obedience of federal laws by members of the Canadian Forces. To make such assertions, he relies especially on the remarks of Justice Lamer in Généreux at paragraph 31 of that decision. [28] When using these objectives, he suggested that the court should conclude that subparagraph 130(1)(

a) of the NDA is notoverbroad and clearly respects Parliament’s objectives when it was issued because it is directly related and proportional to them. [29] For the respondent, the applicant’s liberty is deprived in accordance with the principle of fundamental justice that law must notbe overbroad. Subparagraph 130(1)(

a) of the NDA challenges applicant’s right to liberty in a very less significant kind and degree thanthe Heywood or Demers Supreme Court cases. [30] Finally, it is suggested by the respondent that if the court concludes that subparagraph 130(1)(

a) of the NDA is invalid pursuantto

section 52 of the Constitution Act, 1982, then it should not consider striking down that provision as a remedy in the circumstances. ANALYSIS [31]

Section 7 of the Charter reads as follows: 7. Every one has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with theprinciples of fundamental justice. [32] The Chief Justice of the Supreme Court of Canada expressed, in a very clear manner, what is legally required by that sectionwhen she said, at paragraph 12 of the decision of Charkaoui v Canada (Citizenship and Immigration), 2007 SCC 9 , [2007] 1S.C.R. 350:

Section 7 of the Charter guarantees the right to life, liberty and security of the person, and the right not to be deprived thereofexcept in accordance with the principles of fundamental justice. This requires a claimant to prove two matters: first, that there has beenor could be a deprivation of the right to life, liberty and security of the person, and second, that the deprivation was not or would not bein accordance with the principles of fundamental justice.

If the claimant succeeds, the government bears the burden of justifying thedeprivation under s. 1, which provides that the rights guaranteed by the Charter are subject only to such reasonable limits prescribed bylaw as can be demonstrably justified in a free and democratic society. [33] I agree with the applicant that the threshold to engage the right to liberty under

section 7 of the Charter for an analysis of anoffence provision is very low. As established in PHS Community Services Society and in R v Malmo-Levine, 2003 SCC 74 ,[2003] 3 S.C.R. 571, at paragraph 84, the availability of imprisonment or the risk of such thing is sufficient to trigger an analysis undersection 7 of the Charter. So the applicant has established that, by the effect of subparagraph 130(1)(

a) of the NDA, considering that thereis a potential for a minimum sentence of 45 days of imprisonment and a maximum of 10-years' imprisonment, there could be adeprivation of his right to liberty. [34] Then, the applicant is left with the burden to prove that the deprivation was not or would not be in accordance with the principles

of fundamental justice, and more specifically that subparagraph 130(1)(

a) of the NDA must not be overbroad. [35] For the purpose of this application, I find necessary to reiterate some basic principles governing the existence of a military justicesystem in our country. [36] In Généreux, the Supreme Court of Canada recognized the necessity for the armed forces to posses its own system of tribunalsand its own code of discipline. Paragraph 60 of this decision clearly established that: The purpose of a separate system of military tribunals is to allow the Armed Forces to deal with matters that pertain directly tothe discipline, efficiency and morale of the military.

The safety and well-being of Canadians depends considerably on the willingnessand readiness of a force of men and women to defend against threats to the nation's security. To maintain the Armed Forces in a state ofreadiness, the military must be in a position to enforce internal discipline effectively and efficiently. Breaches of military discipline mustbe dealt with speedily and, frequently, punished more severely than would be the case if a civilian engaged in such conduct. As a result,the military has its own Code of Service Discipline to allow it to meet its particular disciplinary needs.

In addition, special servicetribunals, rather than the ordinary courts, have been given jurisdiction to punish breaches of the Code of Service Discipline. Recourse tothe ordinary criminal courts would, as a general rule, be inadequate to serve the particular disciplinary needs of the military. There is thusa need for separate tribunals to enforce special disciplinary standards in the military.... [37] Then what is a Code of Service Discipline?

In Généreux, the Supreme Court answered that question in those terms at paragraph67: The Code of Service Discipline defines the standard of conduct to which military personnel and certain civilians are subject andprovides for a set of military tribunals to discipline breaches of that standard.... [38] Interestingly enough, the Supreme Court of Canada had contemplated that same issue in R v Mackay, (SCC),[1980] 2 SCR 370, and the Chief Justice, in his dissenting opinion, answered to that question at paragraph 5 and 6 as follows: The National Defence Act deals in a very wide way with what are called "service of-fences".

The term is defined in s. 2 to mean "anoffence under this Act, the Criminal Code or any other Act of the Parliament of Canada, committed by a person while subject to theCode of Service Discipline". The Code of Service Discipline covers, of course, members of the regular forces and also, in prescribedcircumstances, members of the re-serve forces.

It deals, in the main, with disciplinary offences and misconduct connected with militaryactivities but, as the definition above indicates, it also deals with offences punishable by ordinary law and subjects an accused member ofthe armed forces to trial before a service tribunal for all classes of "service offences".

There is only the exception stated in s. 60 of theAct that "a service tribunal shall not try any person charged with an offence of murder, rape or manslaughter, committed in Canada." Although a scale of punishments is fixed for service offences in s. 126 of the Act, nonetheless where the offence is a contravention of theordinary law, it is the punishment that is fixed by that law that applies.

The governing provision is s. 120, headed Offences Punishable byOrdinary law … [39] According to the Supreme Court of Canada, the Code of Service Discipline is a set of rules establishing the standard of conductto be followed by the military members and some civilians with the Canadian Forces. This Code deals with specific military offencesand offences punishable by ordinary law and provides for a set of military tribunals to deal with the breaches of those standards. [40] Then, knowing what is the Code of Service Discipline, what is its purpose?

The Supreme Court of Canada could not be clearerthan it was in Généreux, when at paragraph 31, the court said: ... Although the Code of Service Discipline is primarily concerned with maintaining discipline and integrity in the Canadian ArmedForces, it does not serve merely to regulate conduct that undermines such discipline and integrity. The Code serves a public function aswell by punishing specific conduct which threatens public order and welfare.

Many of the offences with which an accused may becharged under the Code of Service Discipline, which is comprised of Parts IV to IX of the National Defence Act, relate to matters whichare of a public nature. For example, any act or omission that is punishable under the Criminal Code or any other Act of Parliament is alsoan offence under the Code of Service Discipline. Indeed, three of the charges laid against the appellant in this case related to conductproscribed by the Narcotic Control Act. Service tribunals thus serve the purpose of the ordinary criminal courts, that is, punishing

wrongful conduct, in circumstances where the offence is committed by a member of the military or other person subject to the Code ofService Discipline.

Indeed, an accused who is tried by a service tribunal cannot also be tried by an ordinary criminal court (ss. 66 and 71of the National Defence Act).... [41] This relationship between the military laws and the civil law was discussed by the Supreme Court of Canada in Mackay byJustice McIntyre in those terms at paragraph 71: Since very early times it has been recognized in England and in Western European countries which have passed their legal traditions andprinciples to North America that the special situation created by the presence in society of an armed military force, taken with the specialneed for the maintenance of efficiency and discipline in that force, has made it necessary to develop a separate body of law which hasbecome known as military law.

The development of this body of law included, sometimes in varying degree but always clearlyrecognized, a judicial role for the officers of the military force concerned. It was inevitable that the question of the relationship ofmilitary law to the ordinary civil law would arise. It was also inevitable that the question of the relationship to the civil law of those alsosubject to the military law would have to be faced.

Holdworth, in his History of English Law, 7th rev. ed., (1966), vol. 10, p. 382, saysthat Blackstone did not deal with these questions but "they were beginning to be raised at or shortly after the time when he wrote in".These questions have been in great part resolved. As a general proposition in England and in Canada, a member of the armed servicesbecomes upon enlistment subject to military law but remains subject to the general civil law.

His entry into service adds an obligation inthe requirement of conformance with the military law but leaves him subject to the ... civil law.... [42] It is clear for the court that, as any other Canadian citizen, soldiers, airmen, and sailors remain subject to the civil law, includingthe Criminal Code, and also become subject to additional specific obligations when enlisting in the Canadian Forces. [43] Subparagraph 130(1) of the NDA reads as follow: 130.

(1) An act or omission (

a) that takes place in Canada and is punishable under

Part VII, the Criminal Code or any other Act of Parliament, or (…) is an offence under this Division and every person convicted thereof is liable to suffer punishment as provided in subsection (2). [44] In Application under s. 83.28 of the Criminal Code (Re) 2004 SCC 42 , [2004] 2 SCR. 248, Iacobucci and Arbour JJ.,for majority stated, at paragraph 34: The modern principle of statutory

interpretation requires that the words of the legislation be read "in their entire context and intheir grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament”...The modern approach recognizes the multi-faceted nature of statutory

interpretation. Textual considerations must be read in concert withlegislative intent and established legal norms. [45] Adopting this approach, I come to the conclusion that the purpose of subparagraph 130(1) (a)of the NDA, further to its readingand as established by case law, is to have the persons subject to the Code of Service Discipline remain subject to the civil law, whichwould include criminal law, as any other citizen of Canada. [46] The sole effect of this provision is to make any act punishable under

Part VII of the NDA, the Criminal Code or any other Act ofParliament as an offence under the Code of Service Discipline, or what we are used to call a service offence as defined at

section 2 of theNDA. At first sight, by enacting this provision, Parliament used the means necessary to achieve its objective, which was to have CanadianForces members remain subject to the civil law.

[ 47 ] The applicant raised the fact that by making a criminal offence as a service of-fence in using subparagraph 130(1)(

a) of the NDA , a person subject to the Code of Ser-vice Discipline will be tried by a service tribunal and then expose himself or herself to have a tribunal specifically set to deal with matters that pertain to military discipline dealing with offences of a criminal nature that have nothing to do with maintaining discipline and integrity of the Canadian Forces, and may also receive a different treatment from the one he would have received if he had been prosecuted before a civilian court of criminal jurisdiction. [ 48 ] I am of the opinion that, for a person subject to the Code of Service discipline, being tried by a service tribunal for a criminal offence is a consequence or the result of the application of a different provision in the Code, which is the one granting jurisdiction to a service tribunal to deal with a service offence [ 49 ] As I mentioned to the applicant’s counsel during his address to the court, it is not the offence provision that confers to a military tribunal the necessary jurisdiction to deal with it, but the provision in the Code allowing the authority to a service tribunal to deal with a service offence.

As an example,

section 92 of the NDA does not specify in what context a military tribunal may dispose or not of a charge for disgraceful conduct, as it is also the case for a charge laid under

section 130 of the NDA . As

section 92 of the NDA ,

section 130 of the NDA does create a service offence, nothing more, nothing less. [ 50 ] What it is really raised by the applicant is the effects on a person subject to the Code of Service Discipline of a criminal charge laid under subparagraph 130(1)( a ), which results in being tried by a service tribunal. However, I am of the opinion that this provision has no such effect. [ 51 ] In other words, the applicant would like this court to determine if a service tribunal is the proper forum to deal with a criminal offence that it is unrelated with military discipline?

This question is more a matter involving an issue in relation to the competence of the court to hear the matter than anything else. The analysis does not raise such question and it won’t be answered. [ 52 ] As conceded by the applicant, the factual background submitted to the court does not allow it to make any decision concerning this matter.

He suggested to the court that it could use hypotheses to achieve that, as it was the case in Heywood . [ 53 ] The wide variety of offences involved by the use of the various provisions of Criminal Code as a service offence or any other Act of the Parliament in the circum-stances where a person subject to the Code of Service Discipline may be charged are so different that it makes impossible for the court to consider any reasonable hypotheses that would help it to decide this matter. [ 54 ] What the applicant is asking the court to do is to determine the scope of the jurisdiction of a service tribunal in order to determine if the impugned provision is overbroad and, as a result, violates his right to liberty. [ 55 ] The actual factual foundation or the scheme for the legal analysis does not allow such thing.

To the contrary, evidence adduced supports the fact that this court has jurisdiction to deal with this matter because it involves an officer on duty on a defence establishment and having a relation of authority with cadets. [ 56 ] No deleterious effects have been demonstrated by the applicant, and in that regard he has failed to demonstrate to the court that he was deprived of his right to liberty not in accordance with the principle of fundamental justice. [ 57 ] The approach taken by this court reflects exactly what was suggested by the Court Martial Appeal Court in Reddick at paragraph 28, where the question of the nexus to determine the jurisdiction of a court was discussed: I therefore conclude that the nexus doctrine has no longer the relevance or force which influenced many of the earlier decisions of this Court.

Indeed I think it can be put aside as distracting from the real issue which is one of the division of powers. In addressing that issue a court martial must start by considering whether the Code of Service Discipline gives it jurisdiction in the circumstances alleged in the charges.

If so, it can presume that the Code, as part of the National Defence Act , is constitutionally valid unless the accused can demonstrate that in his particular circumstances the application of the Code to him would have an unconstitutional consequence. [ 58 ] In the present case, the applicant failed to demonstrate that in his particular circumstances, the application of the Code to him

would have an unconstitutional consequence. [59] Reality is that such thing must always be done on case by case analysis and in the absence of any factual foundation to justify it,a court martial may decline or refrain to proceed with such analysis because, as stated in Mackay v. Manitoba, (SCC),[1989] 2 S.C.R. 357, at pages 361 and 362, and confirmed by the Court Martial Appeal Court in Ellis: Charter decisions should not and must not be made in a factual vacuum... [60] Here, facts did not support the applicant’s submission that subparagraph 130(1)(

a) of the NDA to be contrary to

section 7 of theCharter. DISPOSITION FOR THESE REASONS, THE COURT: [61] DISMISSED the application. Counsel: Lieutenant-Colonel S. Richards, Canadian Military Prosecutions Service Counsel for Her Majesty, the Queen Major S. Collins, Captain Bruce, and Lieutenant-Commander M. Létourneau, Directorate of Defence Counsel Services Counsel for Captain D.J. Moriarity