Case information
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35755
Second Lieutenant Moriarity, et al. v. Her Majesty the Queen, et al.
(Federal) (Criminal) (By Leave)
Docket
Judgments on applications for leave to appeal are rendered by the Court, but are not necessarily unanimous.
| Date | Proceeding | Filed By (if applicable) |
|---|---|---|
| 2015-11-25 | Appeal closed | |
| 2015-11-20 | Formal judgment sent to the registrar of the court of appeal and all parties | |
| 2015-11-20 | Judgment on appeal and notice of deposit of judgment sent to all parties | |
| 2015-11-19 |
Judgment on the appeal rendered, CJ Abe Ro Cro Mo Ka Wa Ga Côt, The appeals from the judgment of the Court Martial Appeal Court of Canada, Numbers CMAC-560 and CMAC-563, 2014 CMAC 1, dated January 20, 2014, heard on May 12, 2015, are dismissed. The constitutional questions are answered as follows: 1. Does s. 130(1)(a) of the National Defence Act, R.S.C. 1985, c. N-5, infringe s. 7 of the Canadian Charter of Rights and Freedoms? Answer: No. 2. If so, is the infringement a reasonable limit prescribed by law that can be demonstrably justified in a free and democratic society under s. 1 of the Canadian Charter of Rights and Freedoms? Answer: It is unnecessary to answer the question. 3. Does s. 117(f) of the National Defence Act, R.S.C. 1985, c. N-5, infringe s. 7 of the Canadian Charter of Rights and Freedoms? Answer: No. 4. If so, is the infringement a reasonable limit prescribed by law that can be demonstrably justified in a free and democratic society under s. 1 of the Canadian Charter of Rights and Freedoms? Answer: It is unnecessary to answer the question. Dismissed |
|
| 2015-05-20 | Transcript received, (92 pages) | |
| 2015-05-12 | Judgment reserved OR rendered with reasons to follow | |
| 2015-05-12 | Respondent's condensed book, Submitted in Court (14 copies) - Joint with 35873 | Her Majesty the Queen |
| 2015-05-12 | Appellant's condensed book, Submitted in court (14 copies) - Joint with 35873 & 35946 | Second Lieutenant Moriarity |
| 2015-05-12 |
Hearing of the appeal, 2015-05-12, CJ Abe Ro Cro Mo Ka Wa Ga Côt Judgment reserved |
|
| 2015-04-13 | Notice of appearance, Steven Richards and Bruce MacGregor will be present at the hearing. | Her Majesty the Queen |
| 2015-03-18 | Notice of appearance, (Letter Form), Delano K. Fullerton, Mark Létourneau and Jean-Bruno Cloutier will be present at the hearing. Mark Létourneau and Jean-Bruno Cloutier will present oral argument of 30 minutes each for the appellants. Mark Létourneau will speak in English and Jean-Bruno Cloutier in French. | Second Lieutenant Moriarity |
| 2015-03-13 | Notice of hearing sent to parties | |
| 2015-03-10 |
Appeal hearing scheduled, 2015-05-12, (previously tentatively scheduled for February 12, 2015) Judgment reserved |
|
| 2015-01-19 | Appeal perfected for hearing | |
| 2015-01-15 | Certificate (on limitations to public access) | Her Majesty the Queen |
| 2015-01-15 | Certificate of counsel (attesting to record) | Her Majesty the Queen |
| 2015-01-15 | Respondent's book of authorities, (Book Form), joint with 35873, Completed on: 2015-01-15 | Her Majesty the Queen |
| 2015-01-15 | Respondent's record, (Book Form), Completed on: 2015-01-15 | Her Majesty the Queen |
| 2015-01-15 | Respondent's factum, (Book Form), joint with 35873, Completed on: 2015-01-15, (Electronic version filed on 2015-01-21) | Her Majesty the Queen |
| 2014-11-14 | Appellant's book of authorities, (Book Form), (JOINT with 35873) 4 volumes, Completed on: 2014-11-14 | Second Lieutenant Moriarity |
| 2014-11-14 | Certificate of counsel (attesting to record) | Second Lieutenant Moriarity |
| 2014-11-14 | Appellant's record, (Book Form), Completed on: 2014-11-14 | Second Lieutenant Moriarity |
| 2014-11-14 | Appellant's factum, (Book Form), (JOINT with 35873) , Completed on: 2014-12-15, (Electronic version filed on 2014-11-18) | Second Lieutenant Moriarity |
| 2014-09-25 | Letter advising the parties of tentative hearing date and filing deadlines (Leave granted) | |
| 2014-09-23 | Notice of constitutional question(s) | Second Lieutenant Moriarity |
| 2014-09-19 | Order on motion to state a constitutional question, (BY THE CHIEF JUSTICE) | |
| 2014-09-19 |
Decision on the motion to state a constitutional question, CJ, UPON APPLICATION by the appellants for an order stating constitutional questions and extending the time to serve and file a reply to the motion to state constitutional questions in the above appeal; AND THE MATERIAL FILED having been read; IT IS HEREBY ORDERED THAT THE CONSTITUTIONAL QUESTIONS BE STATED AS FOLLOWS: 1. 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? 2. 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? Any attorney general who intervenes pursuant to par. 61(4) of the Rules of the Supreme Court of Canada shall pay the appellant and respondent the costs of any additional disbursements they incur as a result of the intervention. IT IS HEREBY FURTHER ORDERED THAT: 1.The motion for an extension of time to serve and file the reply to the motion to state constitutional questions is granted and the deadline to file the reply is extended to September 16, 2014; 2. The notice of constitutional question shall be served and filed on or before September 26, 2014; 3. Any notices of intervention respecting constitutional questions shall be served and filed on or before October 24, 2014; 4. The appellants’ record, factum and book of authorities shall be served and filed on or before November 14, 2014; 5. Any person wishing to intervene in this appeal under Rule 55 of the Rules of the Supreme Court of Canada shall serve and file a motion for leave to intervene on or before December 5, 2014; 6. The appellants and respondent shall serve and file their responses, if any, to the motions for leave to intervene on or before December 12, 2014; 7. Replies to any responses to the motions for leave to intervene shall be served and filed on or before December 16, 2014; 8. The respondent’s record, factum and book of authorities shall be served and filed on or before January 15, 2015; 9. Any attorney general wishing to intervene pursuant to par. 61(4) of the Rules of the Supreme Court of Canada shall serve and file their factum and book of authorities on or before January 29, 2015. Granted |
|
| 2014-09-19 | Submission of motion to state a constitutional question, CJ | |
| 2014-09-19 | Correspondence received from, Counsel for the Respondent, re.: will not file a response and takes no position. | Her Majesty the Queen |
| 2014-09-16 | Reply to the motion to state a constitutional question, (Letter Form), Motion to ext. time included, Completed on: 2014-09-16, (Electronic version filed on 2014-09-18) | Second Lieutenant Moriarity |
| 2014-09-04 | Response to the motion to state a constitutional question, (Letter Form), Completed on: 2014-09-04, (Electronic version filed on 2014-09-04) | Her Majesty the Queen |
| 2014-08-27 | Motion to state a constitutional question, (Letter Form), Completed on: 2014-08-27 | Second Lieutenant Moriarity |
| 2014-08-27 | Notice of appeal, (Letter Form), Completed on: 2014-08-27 | Second Lieutenant Moriarity |
| 2014-07-28 | Copy of formal judgment sent to Registrar of the Court of Appeal and all parties | |
| 2014-07-28 | Judgment on leave sent to the parties | |
| 2014-07-24 |
Judgment of the Court on the application for leave to appeal, The application for leave to appeal from the judgment of the Court Martial Appeal Court of Canada, Numbers CMAC-560 and CMAC-563, 2014 CMAC 1, dated January 20, 2014, is granted without costs. Granted, without costs |
|
| 2014-05-12 | All materials on application for leave submitted to the Judges, CJ Cro Wa | |
| 2014-04-14 | Applicant's reply to respondent's argument, (Book Form), Proof of service missing. Received., Completed on: 2014-05-13, (Electronic version filed on 2014-04-14) | Second Lieutenant Moriarity |
| 2014-04-04 | Certificate (on limitations to public access), (Letter Form), (Electronic version filed on 2014-04-04) | Her Majesty the Queen |
| 2014-04-04 | Respondent's response on the application for leave to appeal, (Book Form), Completed on: 2014-04-04, (Electronic version filed on 2014-04-04) | Her Majesty the Queen |
| 2014-03-07 | Letter acknowledging receipt of an incomplete application for leave to appeal and without formal Court of Appeal order, file opened 2014-03-07. | |
| 2014-03-06 | Certificate (on limitations to public access), (Book Form), (Included in the application for leave to appeal), (Electronic version filed on 2014-03-06) | Second Lieutenant Moriarity |
| 2014-03-06 | Application for leave to appeal, (Book Form), Court of appeal Orders missing. Moriarity order received 2014-03-10. Hannah is still missing. Received 2014-03-11., Completed on: 2014-03-10, (Electronic version filed on 2014-03-06) | Second Lieutenant Moriarity |
Parties
Please note that in the case of closed files, the “Status” column reflects the status of the parties at the time of the proceedings. For more information about the proceedings and about the dates when the file was open, please consult the docket of the case in question.
Main parties
| Name | Role | Status |
|---|---|---|
| Second Lieutenant Moriarity | Appellant | Active |
v.
| Name | Role | Status |
|---|---|---|
| Her Majesty the Queen | Respondent | Active |
And Between
| Name | Role | Status |
|---|---|---|
| Private M.B.A. Hannah | Appellant | Active |
v.
| Name | Role | Status |
|---|---|---|
| Her Majesty the Queen | Respondent | Active |
Counsel
Party: Second Lieutenant Moriarity
Counsel
J.-B. Cloutier
Delano K. Fullerton
241, Boulevard Cité-des-Jeunes
Block 300, Asticou Centre
Gatineau, Quebec
J8Y 6L2
Telephone: (819) 934-3334
FAX: (819) 997-6322
Email: mark.letourneau@forces.gc.ca
Agent
2600 - 160 Elgin Street
P.O. Box 466, Stn. A
Ottawa, Ontario
K1P 1C3
Telephone: (613) 786-0211
FAX: (613) 788-3573
Email: matthew.estabrooks@gowlingwlg.com
Party: Private M.B.A. Hannah
Counsel
J.-B. Cloutier
Delano K. Fullerton
241, Boulevard Cité-des-Jeunes
Block 300, Asticou Centre
Gatineau, Quebec
J8Y 6L2
Telephone: (819) 934-3334
FAX: (819) 997-6322
Email: mark.letourneau@forces.gc.ca
Agent
2600 - 160 Elgin Street
P.O. Box 466, Stn. A
Ottawa, Ontario
K1P 1C3
Telephone: (613) 786-0211
FAX: (613) 788-3573
Email: matthew.estabrooks@gowlingwlg.com
Party: Her Majesty the Queen
Counsel
Bruce W. MacGregor
305 Rideau Street, 9th Floor
Ottawa, Ontario
K1A 0K2
Telephone: (613) 996-5723
FAX: (613) 995-1840
Summary
Keywords
None.
Summary
Case summaries are prepared by the Office of the Registrar of the Supreme Court of Canada (Law Branch). Please note that summaries are not provided to the Judges of the Court. They are placed on the Court file and website for information purposes only.
Canadian Charter of Rights and Freedoms - Whether s. 130(1)(a) of the National Defence Act violates s. 7 and s. 11(f) of the Charter - Whether the military nexus doctrine applies to s. 130(1)(a) of the National Defence Act - Whether s. 130(1)(a) of the National Defence Act is constitutional.
The applicant Moriarity was a Cadet Instructor Cadre officer. While in a position of trust and authority with respect to cadets he interacted with, he engaged in inappropriate sexual relationships with two cadets. He was charged with four Criminal Code offences: two offences relating to sexual exploitation contrary to s. 153, one offence for sexual assault contrary to s. 271 and one offence for invitation to sexual touching contrary to s. 152.
The applicant Hannah was a member of the Canadian Forces and a student at the Canadian Forces Base Gagetown. He purchased and delivered a controlled substance to another engineering candidate and the drugs were found in that student’s quarters on the base. He was charged with trafficking of a substance included in Schedule IV contrary to s. 5(1) of the Controlled Drugs and Substances Act and unlawful selling of a substance containing a drug included in Schedule F contrary to the Food and Drug Regulations and Food and Drugs Act.
The applicants confessed and made admissions but challenged the constitutionality of s. 130(1)(a) of the National Defence Act. Their constitutional challenges and their appeals from conviction were dismissed.
Lower court rulings
Standing Court Martial
201229, 2012 CM 3017
Application for an order declaring s. 130(1)(a) of the National Defence Act of no force or effect pursuant to s. 52 of the Constitution Act, 1982 dismissed. Applicant convicted of four offences punishable under s. 130 of the National Defence Act.
Standing Court Martial
201276, 2013 CM 2011
Application for an order declaring s. 130(1)(a) of the National Defence Act of no force or effect pursuant to s. 52 of the Constitution Act, 1982 dismissed. Applicant convicted of two offences punishable under s. 130 of the National Defence Act.
Court Martial Appeal Court of Canada
CMAC-560, CMAC-563, 2014 CMAC1
Appeal dismissed
Memorandums of argument on application for leave to appeal
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Related links
Factums on appeal
The factums of the appellant, the respondent and the intervener will be posted here at least 2 weeks before the hearing unless they contain personal information, information that is subject to a publication ban, or any other information that is not part of the public record. You may also obtain copies of factums by filling out the Request for Court records form or by contacting the Court’s Records Centre either by email at records-dossiers@scc-csc.ca or by telephone at 613‑996‑7933 or at 1‑888‑551‑1185.
If you have questions about a factum or want permission to use a factum, please contact the author of the factum directly. Their contact information appears on the first page of each factum.
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