MASTER CORPORAL D.D. ROYES Appellant v. HER MAJESTY THE QUEEN, 2016 CMAC 1
Opinion
Date: 20160603 Docket: CMAC-568 Citation: 2016 CMAC 1 CORAM: DAWSON J.A. TRUDEL J.A. RENNIE J.A. BETWEEN: MASTER CORPORAL D.D. ROYES Appellant and HER MAJESTY THE QUEEN Respondent Heard at Ottawa, Ontario, on January 22, 2016. Judgment delivered at Ottawa, Ontario, on June 3, 2016. REASONS FOR JUDGMENT BY: TRUDEL J.A. CONCURRED IN BY: DAWSON J.A. RENNIE J.A. Date: 20160603 Docket: CMAC-568 Citation: 2016 CMAC 1 CORAM: DAWSON J.A. TRUDEL J.A. RENNIE J.A. BETWEEN: MASTER CORPORAL D.D. ROYES Appellant and HER MAJESTY THE QUEEN Respondent REASONS FOR JUDGMENT TRUDEL J.A. I. Overview and Issues [ 1 ] The appellant is seeking a declaration stating that paragraph 130(1) (
a) of the National Defence Act , R.S.C. 1985, c. N-5 (NDA), which incorporates by reference nearly all offences under the Criminal Code , R.S.C. 1985, c. C-46 (Criminal Code), as offences under the NDA, violates the right to the benefit of trial by jury guaranteed under
section 11(
f) of the 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).
[ 2 ] Thus, the appellant argues that paragraph 130(1) (
a) and its regulatory counterpart found at
section 103.61 of the Queen’s Regulations and Orders (QR&Os) should be declared to be invalid pursuant to subsection 52(1) of the Constitution Act, 1982 . The text of
section 103.61 of the QR&Os is appended to these reasons (see Appendix I). [ 3 ] This issue arises after the appellant was tried and convicted of sexual assault by a Standing Court Martial ( 2013 CM 4033 ). He was sentenced to a term of imprisonment of 36 months ( 2013 CM 4034 ). He appealed to our Court the legality of the guilty verdict as well as the Military Judge’s decision to dismiss his motion for an order striking down paragraph 130(1) (
a) of the NDA on the basis that it violates
section 7 of the Charter ( 2013 CM 4032 ). [ 4 ] In reasons indexed as 2014 CMAC 10 , our Court dismissed all grounds of appeal with respect to the legality of the guilty verdict, leaving open the constitutional question. This way of proceeding was rendered necessary because the appellant had failed to serve a Notice of Constitutional Question pursuant to Rule 11.1 of the Court Martial Appeal Court Rules , S.O.R./86-959. As a result, the appeal was adjourned on this issue to 23 January 2015 to allow the appellant to comply with the Rules. [ 5 ] On 28 October 2014, a first Notice of Constitutional Question was served, seeking a declaration that
section 130 of the NDA offends
section 7 of the Charter because it is overbroad. [ 6 ] One rapidly notes that this constitutional issue is different from that which is presently in front of the Court. Indeed, on 22 December 2015, the appellant filed a new Notice of Constitutional Question wherein he abandoned his argument under
section 7, focusing instead on
section 11( f ), which reads: " 11. Any person charged with an offence has the right " " 11. Tout inculpé a le droit : " " … " " […] " " (
f) except in the case of an offence under military law tried before a military tribunal, to the benefit of trial by jury where the maximum punishment for the offence is imprisonment for five years or a more severe punishment; " " f " " ) sauf s’il s’agit d’une infraction relevant de la justice militaire, de bénéficier d’un procès avec jury lorsque la peine maximale prévue pour l’infraction dont il est accusé est un emprisonnement de cinq ans ou une peine plus grave; " [ 7 ] This change of heart is subsequent to the Supreme Court of Canada’s decision in R. v.
Moriarity , 2015 SCC 55 , [2015] 3 S.C.R. 485 [ Moriarity SCC ] , issued on 19 November 2015. [ 8 ] In Moriarity SCC , the Supreme Court of Canada held that paragraph 130(1) (
a) of the NDA does not violate
section 7 of the Charter . [ 9 ] This finding obviously answered the question as posited in the first Notice of Constitutional Question. Hence the second Notice which is at the center of this continued hearing. [ 10 ] At the outset of the hearing, the respondent sought
summary dismissal of the appeal arguing that the appellant was impermissibly raising a new issue. Having heard the parties on the respondent's motion, our Court exercised its discretion to hear the matter on its merits despite the constitutional question being new to the debate. These reasons address the new constitutional question filed by the appellant with respect to
section 11(
f) of the Charter . [ 11 ] I am of the view that this appeal cannot succeed. I arrive at this conclusion in light of three issues, as framed by the appellant at the hearing of this appeal: A . First, what did the Supreme Court decide in Moriarity SCC and what is the effect of that decision? B . Second, in light of Moriarity SCC , does the settled jurisprudence of this Court require a finding that paragraph 130(1) (
a) of the NDA violates
section 11(
f) of the Charter ? C . Finally, is an offense under paragraph 130(1)(
a) of the NDA a service offense as defined in
section 2 of the NDA , and are service offenses under military law within the meaning of
section 11(
f) of the Charter ? [ 12 ] Because of my proposed conclusion, I need not address the appellant’s arguments on
section 1 of the Charter or on remedy. A. First, what did the Supreme Court decide in Moriarity SCC and what is the effect of that decision? " (1) " This Court’s Decisions " " [ 13 ] Prior to the Supreme Court of Canada’s decision, this Court had recently pronounced itself on the constitutionality of paragraph 130(1) (
a) of the NDA both in R. v. Moriarity , 2014 CMAC 1 , 455 N.R. 59 [ Moriarity CMAC ], and in R. v. Larouche , 2014 CMAC 6 , 460 N.R. 248 [ Larouche ]. I find it helpful to briefly review these decisions in order to place the Supreme Court of Canada’s decision in context. [ 14 ] In Moriarity CMAC , this Court held that, correctly interpreted, paragraph 130(1) (
a) does not violate
section 7 and
section 11(
f) of the Charter . Blanchard C.J. reviewed the relevant jurisprudence of this Court and the Supreme Court of Canada, and determined that despite the broad language of the provision, it must be read in the context of a military nexus requirement, and only includes those offences " “whose commission is directly connected to discipline, efficiency, and morale in the military” " which " “may be prosecuted as service offenses under the [Code of Service Discipline]” " (at paragraph 66).
[15] Blanchard C.J. further concluded, at paragraph 100, that the purpose of paragraph 130(1)(
a) of the NDA is in accordance with thepurpose of a separate system of military tribunals, as stated by Lamer C.J. in R. v. Généreux, (SCC), [1992] 1 S.C.R.259 at page 293, 88 D.L.R. (4th) 110: "“to allow the Armed Forces to deal with matters that pertain directly to the discipline, efficiencyand morale of the military”". Thus, "“paragraph 130(1)(
a) can be no broader than the purpose or object of the [Code of ServiceDiscipline]”". [16] On the basis of this
interpretation of the scope and the purpose of paragraph 130(1)(a), Blanchard C.J. concluded that it was notoverbroad, as the military nexus requirement, which is "“essential to ensuring the constitutionality”" of the provision (at paragraph 102),ensures that it is not broader than necessary to accomplish its purpose (at paragraph 105). The same overbreadth analysis applied to hisconclusion that neither
section 7 nor
section 11(
f) of the Charter was violated (at paragraphs 105 and 108). [17] This Court rendered its decision in Larouche after it decided Moriarity CMAC, but also before the Supreme Court of Canadapronounced itself in Moriarity SCC. Our Court arrived at the same practical result, but reframed the analysis in Moriarity CMAC.Cournoyer J.A. stated that the provision is overbroad and violates
section 7 and
section 11(
f) of the Charter. He ordered a remedialreading in of the military nexus requirement, to bring the provision within the limits set by
section 7 and
section 11(
f) of the Charter(Larouche, at paragraphs 15 and 133). [18] In both Moriarity CMAC and Larouche, this Court drew its conclusions with respect to
section 7 and
section 11(
f) of the Charter onthe basis of the same overbreadth analysis.
(2) The Scope of the Supreme Court of Canada’s Decision in Moriarity SCC [19] The appellant argues that the Supreme Court of Canada’s decision only addresses the constitutionality of paragraph 130(1)(
a) of theNDA under
section 7. Therefore, this Court’s conclusion remains valid that, absent the remedy of military nexus, paragraph 130(1)(a)violates
section 11(
f) and is unconstitutional. In other words, Moriarity CMAC and Larouche remain good law as they concern section11(
f) of the Charter. "[""20""] " The appellant relies heavily on paragraph 30 of the Supreme Court of Canada’s reasons in Moriarity SCC, where CromwellJ. wrote": " [T]he question of the scope of Parliament’s authority to legislate in relation to “Militia, Military and Naval Service, andDefence” under s. 91(7) of the Constitution Act, 1867 and the scope of the exemption of military law from the right to a jurytrial guaranteed by s. 11(
f) of the Charter are not before us in these appeals. We are concerned here with articulating thepurpose of two challenged provisions in order to assess the rationality of some of their effects. We are not asked todetermine the scope of federal legislative power in relation to the military justice or to consider other types of Charterchallenges. We take the legislative objective at face value and as valid and nothing in my reasons should be taken asaddressing any of those other matters. [21] The appellant submits this paragraph means that the Supreme Court of Canada’s conclusions in Moriarity SCC are strictly limitedto
section 7 and do not apply to an analysis under
section 11(f). Effectively, the appellant asks this Court to consider
section 7 and section11(
f) in completely separate silos. I disagree with this approach. [22] In my view, in paragraph 30, Cromwell J. simply specified that he was not addressing the constitutional limits of military justice,including the scope of
section 11(
f) of the Charter in a general sense, nor other Charter challenges that might arise in the future, and thathis reasons should not be read as conclusive of those questions. [23] I cannot, as the appellant invites me to do, read into that paragraph a statement that, although this Court applied an identicalanalysis to
section 7 and
section 11(f), and although the Supreme Court of Canada rejected this Court’s approach to that analysis,somehow this Court’s approach in Moriarity CMAC and Larouche remains valid in respect of
section 11(f). With respect, this line ofreasoning leads to an absurd result: holding the same legal conclusions simultaneously correct and incorrect, depending on whichprovision of the Charter is being considered. [24] The appellant also points to paragraph 55 of Moriarity SCC, suggesting that it reflects a continued acceptance of the military nexusrequirement insofar as the Supreme Court of Canada relied upon Ionson v. The Queen (1987), 4. C.M.A.R. 433, aff’d [1989] 2 S.C.R.1973.
"[""25""] " Paragraph 55 reads": " [55] A “military nexus” case from the 1980s supports this broader understanding of the connection between criminaloffences committed by members of the armed forces and military discipline. In Ionson v. The Queen (1987), (CMAC), 4 C.M.A.R. 433, aff’d (SCC), [1989] 2 S.C.R. 1073, the accused, a member of the regulararmed forces, was a steward posted to HMCS Fundy in Esquimalt, British Columbia. While off duty and off his ship and thebase, he was found by civilian police to be in possession of cocaine.
At the time, he was driving a civilian vehicle (his own),was dressed in civilian clothes and there was no connection with other military members. He was convicted of possession ofa narcotic by a Standing Court Martial. He raised a plea in bar of trial that there was not a sufficient military nexus to givejurisdiction to the Standing Court Martial. The President denied his plea in bar of trial, finding that there was a very realmilitary nexus.
That conclusion was affirmed by the CMAC (at p. 438), quoting with approval these words: “[The militaryauthorities’] concern and interest in seeing that no member of the forces uses or distributes drugs and in ultimatelyeliminating their use, may be more pressing than that of civilian authorities” (MacEachern v. The Queen (1985), (CMAC), 4 C.M.A.R. 447, at p. 453). This Court affirmed that result. Ionson is consistent with a broadunderstanding of when at least a rational connection will exist between criminal offences committed by a member of thearmed forces and military discipline, efficiency and morale.
[26] The appellant is not assisted by this paragraph. Cromwell J. states at the outset that the case was a "“military nexus”" case butrelies on it entirely to support his "“broad understanding of when at least a rational connection will exist between criminal offencescommitted by a member of the armed forces and military discipline, efficiency, and morale”" (Moriarity SCC at paragraph 55). Clearly,he relies on military nexus in Ionson as analogous to rational connection; after the military nexus doctrine was explicitly rejected earlierin the decision (at paragraphs 35-40).
This single reference to a military nexus case cannot be read to revive it. [27] At the hearing of this appeal, the appellants contended that overbreadth as a principle of fundamental justice for the purposes ofsection 7 of the Charter is distinct from overbreadth outside that context, and that a provision which has been found not to be overbroadunder
section 7 may nonetheless be overbroad in other contexts — in this case, for the purposes of
section 11(f). [28] First and foremost, this position is belied by the fact, once again, that in this Court’s decisions on which the appellant relies for theanalysis of paragraph 130(1)(
a) of the NDA under
section 11(
f) of the Charter (Moriarity CMAC; Larouche; R. v. Vezina, 2014 CMAC 3,461 N.R. 286), the very same overbreadth analysis was adopted for both
section 7 and
section 11(f). [29] Notwithstanding the Supreme Court of Canada’s lack of a specific affirmative statement that paragraph 130(1)(
a) of the NDA doesnot violate
section 11(f), it is not, in my view, open to the appellant to sidestep the Supreme Court of Canada’s decision on the basis ofthis Court’s earlier statements. It is not open to this Court, either, having been overturned in that analysis by the Supreme Court ofCanada, to reject its guidance when faced with substantially the same question in relation to a different
section of the Charter. [30] Further, the appellant is not assisted by his reliance on the Supreme Court of Canada’s reasons in R. v. Sharpe, 2001 SCC 2, [2001]1 S.C.R. 45 [Sharpe]. The appellant argues that Sharpe demonstrates a distinct meaning to overbreadth when considered outside thecontext of
section 7 of the Charter. I disagree. [31] In Sharpe, the Supreme Court of Canada addressed a challenge to Canada’s laws criminalizing the possession of child pornographyon the basis that they offended the right to freedom of expression protected by paragraph 2(
b) and the right to liberty under
section 7 ofthe Charter, without being reasonable limits demonstrably justified in a free and democratic society within the meaning of
section 1. "[""32""] " In Sharpe, the Crown conceded that criminalizing possession of child pornography limited the right of free expression. Thus,the Chief Justice only considered whether that limitation was reasonable and demonstrably justified in a free and democratic society. Itwas not necessary for the Court to deal with the
section 7 argument. The Chief Justice stated that: "“[s]ince [the
section 7] argumentwholly replicates the overbreadth concerns that are the central obstacle to the justification of the
section 2(
b) breach, it is not necessary toconsider it separately”" (at paragraph 18)." " "[""33""] " It is worth noting that the Court explicitly proceeded on the basis that the overbreadth analysis was identical under
section 1as it would be in respect of
section 7. Although the legal approach has been refined over the years, there is no reason to conclude thatSharpe represents a distinct approach to overbreadth when considering the Charter in a context other than under
section 7. Although nosingle statement defining the approach to overbreadth can be readily isolated from Sharpe, it seems clear to me that the approach tooverbreadth is essentially the same as what was later stated and applied in Moriarity SCC." " [34] I realize that in Sharpe, the analysis focused on the effects of the law rather than its purpose like in Moriarity SCC. Yet, the centralquestion was the same: properly construed, does the law have effects that are not rationally connected to its purpose? [35] In my respectful view, Sharpe illustrates that, in addition to being a principle of fundamental justice for the purpose of
section 7,overbreadth can be useful when considering whether a limit is demonstrably justified for the purpose of
section 1. In the absence of, or inaddition to, having an effect on a person’s right to life, liberty, and security of the person, it may be relevant under the Charter to considerwhether a law is overbroad in its effect on other guaranteed rights. [36] The appellant provided no additional authority for the suggestion that the content of the overbreadth analysis is to be different, orthat there might be different results to the question of overbreadth whether
section 7 is at issue or not. In so stating, I have taken intoconsideration the recent decision of the Supreme Court of Canada in R. v. Safarzadeh-Markhali, 2016 SCC 14, [2016] S.C.J. No. 14, sentto the members of the panel by counsel for the appellant while this matter was under advisement. [37] I am also reminded that sections 8 through 14 of the Charter have been held to describe breaches of the principles of fundamentaljustice within the meaning of
section 7 (see Re B.C. Motor Vehicle Act, (SCC), [1985] 2 S.C.R. 486 at page 502, 24D.L.R. (4th) 536). In that vein, I find it difficult to hold on one hand that a law is in accordance with the principles of fundamental justiceunder
section 7 of the Charter, but on the other that it violates
section 11(
f) on an overbreadth analysis that has been specifically rejectedby the Supreme Court of Canada. [38] In sum, I conclude that the effect of the Supreme Court of Canada’s decision in Moriarity SCC was not only to affirm thatparagraph 130(1)(
a) of the NDA does not violate
section 7 of the Charter, but to correct this Court’s approach to the question ofoverbreadth and determine that, properly interpreted, paragraph 130(1)(
a) does not contain a military nexus requirement, and that evenwithout this requirement the provision is not overbroad. [39] In my view, by rejecting the necessity of a military nexus in order to give jurisdiction to military tribunals over members of theCanadian Forces and civilians accompanying them, the Supreme Court of Canada has removed the sole prerequisite to the application ofthe exception contained in
section 11(f), i.e. the exception to the constitutional right to a trial by jury. [40] Therefore, I conclude that notwithstanding the absence of a specific order to this effect, Moriarity SCC effectively dictates thatparagraph 130(1)(
a) of the NDA does not violate
section 11(
f) of the Charter for overbreadth. This Court’s conclusions that it does(Larouche), or that it would in the absence of a military nexus requirement (Moriarity CMAC), can no longer be relied upon for thosepropositions. [41] I turn now to the appellant’s other arguments.
B. This Court’s settled jurisprudence [42] The appellant further submits that rejecting his appeal on the sole basis of Moriarity SCC would entail inappropriately overturningthirty years of settled jurisprudence of this Court. In light of the Supreme Court of Canada’s decision in Moriarity SCC and myconclusions on its ambit, this argument must also fail. [43] This issue largely overlaps with the appellant’s first argument, addressed above.
I find it helpful nonetheless to discuss it as aseparate argument in order to fully answer the appellant’s claim. [44] The appellant repeated that this Court has consistently asserted the necessity of military nexus in the system of military justice, andthat this line of authority must be followed. The history of the military nexus doctrine is aptly set out in Moriarity CMAC at paragraphs48 to 61. [45] To the extent that the conclusion that I propose is inconsistent with past decisions of this Court emphasizing the need for militarynexus to abide by
section 11(
f) of the Charter, it is because of the more recent guidance of the Supreme Court of Canada. [46] I add that in arguing for this Court’s broad endorsement of military nexus as fundamental to the military justice system, theappellant effectively overlooks this Court’s decision in R. v. Reddick, (CMAC), 112 C.C.C. (3d) 491, [1996]C.M.A.J. No. 9 [Reddick], a division of powers case. For this Court, Strayer C.J. wrote: "I believe that the concern about "nexus" in the Bill of Rights or Charter context is now misplaced because of the decision of""the Supreme Court of Canada in ""Généreux"".
That decision has confirmed the basic legitimacy of a separate system ofmilitary justice. It has recognized that such a system is generally subject to the requirements of the Charter, albeit that thoserequirements may mandate somewhat different results in the military context. Thus military justice is not treated as a seriousexception to the system of fundamental justice generally guaranteed to Canadians by the Charter (at page 504). " "[""47""] " Strayer C.J. also addressed the question of military nexus in relation to
section 11(
f) of the Charter directly": " "As to the application of the exemption for military tribunals from the Charter requirements of trial by jury, this reallyinvolves statutory
interpretation or division of powers issues as to whether the offence in question is truly "an offence undermilitary law" in the words of paragraph 11(
f) of the Charter. Is the offence in question in its essence a "military offence"validly prescribed by Parliament under head 91(7) of the Constitution Act, 1867? If so, then the exception in the Charterapplies (ibidem at page 505).
" [48] Notwithstanding this Court’s subsequent restrictive reading of Strayer C.J.’s comments on nexus, limiting them to the division ofpowers context (Moriarity CMAC, at paragraph 60), Reddick undermines the appellant’s suggestion that his appeal is directly in line withdecades of this Court’s jurisprudence, from which Moriarity SCC can be somehow distinguished. [49] The military nexus doctrine had already been effectively removed from the constitutional analysis by the Reddick decision, and hasnow been fully rejected by the Supreme Court.
As suggested by Strayer C.J., the task remains to enforce the standards of the Charter in amilitary context following the generally applicable analytical principles (Reddick, at page 505). [50] Strayer C.J.’s comments in Reddick on
section 11(
f) of the Charter in particular, read in light of Moriarity SCC, point to how it canbe determined whether the deprivation of the right to trial by jury falls within the exception written into the constitutional text. If theaccused is charged under a validly enacted offence and the offence is, properly interpreted, an offence under military law, then it doesnot violate
section 11(
f) to deny the accused a trial by jury. [51] This brings me to the appellant’s final argument. C. Does paragraph 130(1)(
a) fall within the exception to the right to trial by jury? [52] At the hearing of this appeal, the appellant submitted that, notwithstanding the Supreme Court of Canada’s conclusions onoverbreadth, paragraph 130(1)(
a) of the NDA does not refer to offences under military law within the meaning of
section 11(
f) of theCharter, and therefore violates the right to trial by jury. [53] It is clear to me that the acts or omissions referred to in paragraph 130(1)(
a) are "“Service Offences”" as defined in
section 2 of theNDA: "“an offence under this Act, the Criminal Code or any other Act of Parliament, committed by a person while subject to the Codeof Service Discipline”". [54] "“Military law”" is not defined in the Charter or the NDA, but is defined in the Criminal Code: "“military law includes all laws,regulations or orders relating to the Canadian Forces”". [55] The only basis by which the appellant contended that a service offence would not constitute an offence under military law withinthe meaning of
section 11(
f) of the Charter was premised on the continued application of the military nexus doctrine. [56] Indeed, this Court has previously held that "“[a]n offence that has a real military nexus and falls within the letter of s. 120(1) [now130(1)] of the National Defence Act] is an offence under military law as that term is used in s. 11(
f) of the Charter of Rights”" (R. v.MacDonald, (CMAC), [1983] 150 D.L.R. (3d) 620 at page 625, 6 C.C.C. (3d) 551). [57] The appellant would have this Court continue to endorse this approach in the face of the Supreme Court of Canada’s rejection ofthe military nexus doctrine. I am unable to do so. [58] The Supreme Court unequivocally rejected this
interpretation of paragraph 130(1)(
a) of the NDA:
" An intent to limit the application of these provisions to situations in which there is a “direct link” between the circumstances of the offence and the military is nowhere apparent in the legislation. " " … " " We must therefore conclude that Parliament turned its mind to the circumstances in which it is appropriate to subject members of the armed forces to the military justice system. In the case of regular and special forces, it concluded that it was appropriate to do so in all circumstances, with the exception of the small group of offences which are excluded.
" " ( " " Moriarity SCC " " , at paragraphs " " 36-37 " " ) " [ 59 ] In light of the Supreme Court of Canada’s comments in Moriarity SCC , my previous conclusion on its impact, and the text of the NDA and the Criminal Code , I conclude that service offences are offences under military law. I therefore propose to dismiss this final argument. II. Proposed conclusion [ 60 ] For these reasons, I conclude that the Supreme Court of Canada’s decision in Moriarity SCC dictates finding that paragraph 130(1) (
a) of the NDA , interpreted without a military nexus requirement, does not violate
section 11(
f) of the Charter . [ 61 ] As a result I would answer the constitutional question in the negative: Paragraph 130(1) (
a) of the NDA , and its regulatory counterpart found at
section 103.61 of the QR&Os are not invalid pursuant to section 52(1) of the Constitution Act, 1982 . [ 62 ] Consequently, I propose to dismiss the appeal with the result that the sentence imposed by the Standing Court Martial on December 14, 2013 stands. "Johanne Trudel" J.A. “I agree. Eleanor R. Dawson J.A.” “I agree. Donald J. Rennie J.A.”
ANNEXE I " Queen’s Regulations and Orders (QR&Os) " " Ordonnance et règlements royaux applicables aux forces canadiennes (ORFC) " " … " " […] " " 103.61 - OFFENCES AGAINST OTHER CANADIAN LAW " " 103.61 " " - INFRACTIONS À D'AUTRES LOIS DU CANADA " "
(1) Section 130 of the National Defence Act provides: " "
(1) L'
article 130 de la
Loi sur la défense nationale prescrit : " " "130.
(1) An act or omission " " «130.
(1) Constitue une infraction à la présente
partie 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 " " 1. 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. 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, " " 2. 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. " " is an offence under this Part and every person convicted thereof is liable to suffer punishment as provided in subsection (2). " " Quiconque en est déclaré coupable encourt la peine prévue au paragraphe (2). " "
(2) Subject to subsection (3), where a service tribunal convicts a person under subsection (1), the service tribunal shall, " "
(2) Sous réserve du paragraphe (3), la peine infligée à quiconque est déclaré coupable aux termes du paragraphe (1) est: " " a. if the conviction was in respect of an offence " " 1. la peine minimale prescrite par la disposition législative correspondante, dans le cas d'une infraction: " " 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 " " a. 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. committed outside Canada under
section 235 of the Criminal Code , " " b. commise à l'étranger et prévue à l'
article 235 du Code criminel , " " impose a punishment in accordance with the enactment prescribing the minimum punishment for the offence; or " " [en blanc/Blank] " " b.in any other case, " " 2.dans tout autre cas : " " i. impose the punishment prescribed for the offence by
Part VII, the Criminal Code or that other Act, or " " a. soit la peine prévue pour l'infraction par la
partie VII de la présente loi, le Code criminel ou toute autre loi pertinente, " " ii. impose dismissal with disgrace from Her Majesty's service or less punishment. " " b. soit comme peine maximale, la destitution ignominieuse du service de Sa Majesté. " "
(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). " "
(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) 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." (1 September 1999) " "
(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.» (1er septembre 1999) " " 2) The statement of the offence in a charge under
section 130 should be in the following form: " "
(2) L'énoncé de l'infraction dans le cas d'une accusation relevant de l'article 130 devrait être rédigé selon la formule suivante : " " An offence punishable under
section 130 of the National Defence Act , that is to say, (state the offence) contrary to (state the provision under which the offence is prescribed). " " Une infraction punissable selon l'
article 130 de la
Loi sur la défense nationale , soit (indiquez l'infraction) contrairement à (indiquez la disposition qui établit l'infraction). " " " COURT MARTIAL APPEAL COURT OF CANADA NAMES OF COUNSEL AND SOLICITORS OF RECORD DOCKET: CMAC-568 STYLE OF CAUSE: MASTER CORPORAL D.D. ROYES v. HER MAJESTY THE QUEEN PLACE OF HEARING: Ottawa, Ontario DATE OF HEARING: January 22, 2016 REASONS FOR JUDGMENT BY: TRUDEL J.A. CONCURRED IN BY: DAWSON J.A. RENNIE J.A.
DATED: june 3, 2016 APPEARANCES : Lieutenant-Commander Mark Letourneau Lieutenant-Colonel Jean-Bruno Cloutier For The Appellant Major Dylan Kerr Lieutenant-Colonel Anne Litowski For The Respondent SOLICITORS OF RECORD : Defence Counsel Services National Defence Gatineau, Qc For The Appellant Canadian Military Prosecution Service National Defence Ottawa, Ontario For The Respondent
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