R. v. Derival, 2018 CM 4006

COURT MARTIAL Citation: R. v. Derival , 2018 CM 4006 Date: 20180315 Docket : 201760 Standing Court Martial Canadian Forces Base Esquimalt Victoria, British Columbia, Canada Between: Her Majesty the Queen Prosecutor and Responding Party - and - Leading Seaman K. Derival Accused and Moving Party Before: Commander J.B.M. Pelletier, M.J. RULING ON RESPONDENT’S MOTION TO QUASH AN APPLICATION SEEKING A CONSTITUTIONAL REMEDY FOR VIOLATION OF RIGHTS GUARANTEED UNDER

SECTION 7 OF THE CANADIAN CHARTER OF RIGHTS AND FREEDOMS (Orally) [ 1 ] In a revised notice of application dated 7 February 2018, supported by written arguments, the applicant, Leading Seaman Derival, asks the Court to find that sections 23(1) and 90 of the National Defence Act ( NDA ) violate his right to liberty protected by

section 7 of the Canadian Charter of Rights and Freedoms and that charges 1 and 2 alleging that he was absent without leave contrary to

section 90 of the NDA be stayed.

[2] Reacting to the application, the respondent prosecution filed a motion asking that the application be summarily dismissed,arguing that the lack of factual and legal foundation makes it frivolous and without any prospect of success. [3] Generally, the applicant alleges that sections 23(1) and 90 together create a scheme by which he, as any other member of theRegular Force, is deprived of his right to liberty by being required to serve in the Canadian Armed Forces (CAF) until lawfully releasedat the discretion of the State as provided by

section 23 of the NDA and by being obliged to be at a given place at a given time for dutyunless on leave approved by the State. As these legislative provisions limit his physical movement as in “going to places where the restof the public is free to roam”, it is argued that they violate his liberty as what has been described as a free-standing Charter right. Whennot sheltered by a declaration pursuant to

section 33 of the Charter, such violations are not in accordance with the principle offundamental justice and, therefore, can only be saved by an analysis under

section 1 of the Charter, the evidence of which is to bepresented by the prosecution. [4] No evidence was adduced in support of the application, other than the charge sheet preferred against Leading SeamanDerival. The applicant relies on the relevant legislative provisions in support of his argument. In written argument, the applicant refers toa number of legal authorities, none of which provide direct support to the various steps of his argument, which he readily qualified as“novel” and untested. [5] The lack of legal support does not necessarily make an argument frivolous. Counsel can raise novel concepts.

Yet, theobligation remains to substantiate the argument in fact and/or in law. When an argument does not benefit from any connection withrecognized legal principles or is in direct contradiction with legal principles recognized in legislation or jurisprudence, it risks beingconsidered frivolous and be summarily dismissed as there is no basis on which the application could succeed. [6] The first step in arguing a violation under

section 7 of the Charter is for an applicant to demonstrate a deprivation of liberty. Here, the applicant does not elaborate in writing on the alleged deprivation of his liberty but rather makes an assumption that suchdeprivation is obvious. Yet, the obligation to serve until released found in

section 23 of the NDA does not constitute a full-time physicalrestriction on members of the CAF. Not only can they be granted leave for periods of time that may vary from vacations to extendedperiods of leave without pay as provided for in

chapter 16 of the Queen’s Regulations & Orders for the Canadian Forces, the everydaylife of most members of the CAF employed in Canada consists of a workday of eight or so hours before and after which they are free toroam about. Despite this,

section 90 of the NDA sanctions an absence from a place of duty without authority or leave. [7] Applying this reality to the legal test relevant to the notion of liberty under

section 7 of the Charter, the applicant providesno argument as to how the operation of sections 23(1) and 90 of the NDA may be equated to the legal principle of freedom from physicalrestraint that he alleges. Nor does he argue how these provisions could be equated to a statutory duty to submit to any procedure or doanything that could be equated or associated with a deprivation of liberty attracting the requirement to apply the rules of fundamentaljustice. The applicant refers to the decision in Blencoe v. B.C. (Human Rights Commission), 2000 SCC 44 , [2000] 2 S.C.R. 307,which first extended the reach of

section 7 in ruling that liberty is engaged when state compulsions or prohibitions affect important andfundamental life choices. Yet, the applicant does not mention in written or oral arguments what fundamental life choices of members ofthe CAF are affected by the application of sections 23(1) and 90 of the NDA to them.

It is acknowledged, however, that membership inthe CAF, hence the application of sections 23(1) and 90 to a specific person, is the result of the choice of that person to join the CAF inthe first place. [8] Based on deficiencies in arguments, orally and in writing, by the applicant and in light of the legal landscape as I understandit, revealing a careful and measured application by courts of the notion of liberty of the person in the context of

section 7 of the Charter, Ihave to conclude that the applicant has failed to show any basis upon which I could find that the liberty of Leading Seaman Derival wasengaged by the sole application of sections 23(1) and 90 of the NDA to him. As there is no basis to find that the applicant’s liberty hasbeen violated, the primary argument of the applicant alleging breach of a “freestanding constitutional right” cannot possibly succeed. [9] In written argument, the applicant states he does not rely on the fact that

section 90 of the NDA can lead to a period ofimprisonment as the

section itself directly restricts the physical liberty of the applicant. This position is acknowledged, but it remainsthat the possibility of imprisonment in

section 90 engages liberty interests. This is sufficient to trigger Charter,

section 7 scrutiny. [10] I therefore must comment on the second step that an applicant is required to fulfil in arguing a breach of

section 7 of theCharter, namely to demonstrate that the deprivation of liberty alleged is not in accordance with the principles of fundamental justice. [11] The applicant’s main argument, qualified as a “free-standing constitutional right”, has not been identified or suggested by theSupreme Court of Canada (SCC) at paragraph 145 of the decision of R. v. Malmo-Levine, 2003 SCC 74 as argued by the applicant. In

fact, in expressly rejecting the “pleasure principle” argued by Mr. Malmo-Levine, Gonthier and Binnie JJ for the majority clearly stated that a violation of a

section 7 right must first be established before a court is to enter into any free-standing inquiry as to whether the right balance was struck between individual and societal interests (paragraph 96) or whether the pleasure of the many should not be curtailed by the harm to the few (paragraph 101). Therefore, the novel argument suggested by the applicant is not only unsupported in law, it is contrary to accepted legal principles. The applicant’s argument has the effect of collapsing the two steps required to establish a violation of

section 7 into one, an idea rejected by the SCC.

Therefore, that novel argument cannot provide a basis on which his application could succeed. [ 12 ] This conclusion is also directly applicable to the applicant’s alternative argument, to the effect that sections 23(1) and 90 of the NDA violate the principles of fundamental justice as they constitute legislation of which the objective, albeit rationally connected, is grossly disproportionate to its effects by definition, as it violates a “free-standing constitutional right.” [ 13 ] The applicant has not offered any other argument to support the claim that sections 23(1) and 90 of the NDA would be grossly disproportionate to the state interest under the recognized test for gross disproportionality in Malmo-Levine .

Having submitted, in quoting the SCC in R. v. Moriarity, 2015 SCC 55 , that the purpose of those provisions is the same as the purpose of the Code of Service Discipline, even if NDA , section 23(1) is not part of the Code, the applicant concedes that the purpose of the impugned provisions are rationally connected to their effects. In the notice of application, it is alleged that the state interest being addressed by section 23(1) is the maintenance of sufficient personnel numbers in the CAF and that the state interest being addressed by

section 90 is to motivate CAF members to attend to their duty. Yet, the applicant adduces no evidence of legislative intent or legislative facts in support of this statement of state interest. He also offers no evidence of adverse effects beyond the loss of freedom to roam alleged at the outset in his argument as to restriction of liberty. Yet, the effects of these dispositions may vary. For instance, a right to release is provided for in

section 30 of the NDA . A release on request is available to members wishing to leave the CAF, even if a status of active service or a state of emergency may restrict opportunities to obtain a release. The power to issue orders may create a situation where the liberty of some members of the CAF is entirely different than others. No evidence is offered on any of these nuances.

The applicant’s counsel simply argued orally that, in modern times, a legislative provision forcing someone to remain with an employer until permitted to leave, combined with another provision creating a penal offence to sanction something so minor as being late or absent from work is grossly disproportionate. [ 14 ] In light of this, the application is a bare invitation to review the wisdom of the legislative policy adopted in successive versions of the NDA as it pertains to the offence of absence without leave.

It could be argued that the same invitation was made to the SCC in Malmo-Levine and a minority of two judges would have struck down that law. Yet, in that case, the court had facts to rely on in weighing government policy on the criminalization of marihuana. No such facts are before me in this case. [ 15 ] In the circumstances, I am left to conclude that there is, on the present record before me, no basis on which this application could succeed. The application must, therefore, be summarily dismissed. FOR THESE REASONS: [ 16 ] The prosecution’s motion to quash is granted.

Counsel : The Director of Military Prosecutions as represented by Major M.E. Leblond, Prosecutor and Counsel for the Responding Party Lieutenant-Colonel D. Berntsen, Defence Counsel Services, Counsel for Leading Seaman K. Derival, the Accused and Moving Party