Advocates for the Rule of Law returned to the Supreme Court of Canada last month in the Stillman and Beaudry appeals to make important submissions on the topic of stare decisis. I attended with my co-counsel, Adam Goldenberg and Peter Grbac. Mr. Goldenberg’s oral submissions were stellar and the panel kept him up for an additional few minutes to ask him various pointed questions.
ARL’s submissions were confined to the issue of stare decisis, but the main issue in the appeals, which the parties themselves tackled, concerned another important rule of law issue: the proper method of constitutional interpretation. The issue before the court was the proper interpretation of s.11(f) of the Charter and whether s.130 of the National Defence Act offends that section.
Section 11(f) of the Charter provides the right to trial by jury where the maximum punishment for the offence is five years imprisonment of more, “except in the case of an offence under military law tried before a military tribunal”.
Section 130(1) of the National Defence Act purports to grant military tribunals broad jurisdiction over criminal acts committed by service members. It states that an act or omission that is “punishable under Part VII of the Act, the Criminal Code or any other Act of Parliament” falls under military jurisdiction. In essence, any military service member who violates federal law will be tried before a military tribunal and will not enjoy the benefit of a trial by jury.
Arguments before the Court
There was no dispute between the parties that a hearing before a military tribunal did not constitute a trial by jury as that term is used in s.11(f) of the Charter. As such, the only issue for the Court was the meaning of “military law” in s.11(f).
Counsel for the military service members put forward a narrow interpretation in keeping with the majority’s decision in Beaudry. They argued that “military law” is distinct from “civil law” and concerns narrow offences that go directly to military discipline, such as mutiny, sedition or desertion. The service members appealed to the history of the term, noting that, as early as 1689, the right to trial by jury was only suspended in the case of particular offences. Section 130(1) of the National Defence Act is therefore unconstitutional, so they argued, since it effectively eliminates the right to trial by jury for service members who commit civil law offences.
Her Majesty the Queen took the opposite view, arguing that “military law” essentially means whatever Parliament says it does. Section 130(1) of the Act had been law for decades when the Charter was enacted. The framers would have therefore understood that “military law” would be given a broad interpretation in accordance with s.130(1).
At first glance, it is worth noting that both positions, while arriving at opposite conclusions, rely on seemingly originalist methodology. Brown J. referred to the service members’ argument as “original intent on steroids,” but it would probably be fairer to describe it as original meaning on steroids. The service members argued that military law should have a fixed and static meaning, in accordance with the historic meaning of the term. The Queen, by contrast, took a position that is more in keeping with original intended or expected applications. The argument focused not on the public or legal meaning of the term “military law” in 1982, but on what the framers understood and expected when they wrote the term into s.11(f) of the Charter.
In my respectful view, both positions rely on a flawed understanding of originalist methodology. The Queen’s position, though exceptionally well-argued before the Court, is simply not tenable. Whatever the framers may have supposedly “intended” it strains credulity to suggest that they wanted Parliament to have the power to effectively define the scope of Charter protections. This would be anathema to the Charter‘s very purpose. The fact that a law was already in existence at the time the Charter was enacted is certainly relevant, but it cannot be determinative of what a Charter right means.
On the other hand, the service members’ preferred interpretation of military law is overly static. Military law would be confined to a very narrow category of historical military offences and Parliament would be significantly handicapped in creating new military offences. What is more, this position relies on what might be called “historical meaning” rather than “original legal meaning.” The issue in interpreting a constitutional text is not what a term meant in 1689, but what it meant at the time the document was enacted. The historical meaning is certainly evidence of original legal meaning, but the two should not be conflated. Thus, the fact that the “military law” historically referred to a narrow category of specific offences can shed light on the meaning of s.11(f), but it does not necessarily tell us what the term “military law” meant in 1982, and more specifically, what it meant and continues to mean in s.11(f) of the Charter.
A Dynamic Originalist Interpretation
The right protected in s.11(f) is the right to trial by jury. The reference to “military law tried before a military tribunal” is preceded by the phrase “except in the case of,” meaning such cases are an exception to the right. It is a well-established canon of construction that exceptions are to be construed narrowly. At the outset, this certainly favours a narrower construction.
At the same time, the term “military law” is general. Section 11(f) could have said “Except in cases of mutiny, sedition, desertion or other similar offences…” but it doesn’t. The fact that it employs the broader term “military law” suggests that it was not meant to be limited to specific offences that existed in 1982 (let alone 1689).
As with most provisions in constitutional documents, the term military law should be afforded a “dynamic originalist” interpretation. Its original meaning should be preserved in a general sense, but not its original specific interpretation or intended applications. This is similar to the connotation/denotation distinction we see in many Australian decisions. “Military law” must be anchored to some basic original meaning – Parliament is not permitted to define it – but that meaning must retain some degree of elasticity.
As I argued in a recent article, interpreting the original meaning dynamically should not be confused or conflated with the living tree approach. The former keeps the interpretation moored to the original meaning, but conceives of the original meaning in broader terms – what Ruth Sullivan calls “original sense”. The living tree approach, at least in its modern incarnation, departs from the original meaning and interprets the provision in light of modern social and economic realities. Thus if we take the example of “freedom of association” in s.2(d) of the Charter, an originalist would say that while the phrase should be interpreted dynamically to admit new types of associations that did not exist in 1982, the core original meaning of the phrase is a negative right to associate freely. A living tree-ist, on the other hand, might (depending on his or her conception of justice) re-interpret the phrase as a positive right to government facilitation of associations.
Similarly, in conceiving of the original meaning in dynamic terms, it is important not to overshoot the level of abstraction. Her Majesty the Queen argued that the broad meaning of military law is any law that Parliament designates as military law in the National Defence Act. Aside from the problems described above, this proposed meaning is implausibly broad, especially considering that “military law” is included as an exception to a Charter right. To say that a term means whatever Parliament says it means from time to time is to rob it of an essential and unchanging meaning.
In determining the original meaning of “military law,” the inquiry should be focused not on the particular offences that were deemed to be military law in 1982, but the common thread running through those offences. As the jurisprudence indicates, these are offences that have a nexus with military conduct and, more specifically, concern the discipline, efficiency and morale of the armed forces.
The “military nexus” standard is consistent with early post-Charter case-law. In MacDonald v. R., 4 C.M.A.R. 277, the Court Martial Appeal Court held that for an offence to fall within s.120(1) of the National Defence Act (now s.130(1)), it must have a “real military nexus.” MacDonald is an important case since it was decided in 1983, just one year after the Charter was enacted. The principle of contemporanea expositio est optima et fortissima, in lege is applicable here. It holds that judicial interpretations that are contemporaneous with the enactment of the statute should be favoured as a court at that time would have been most attuned to the original meaning. This principle is often conflated with the original meaning canon (See Perka v. The Queen,  2 SCR 232 at 264-265, as an example), but the two are actually distinct. The original meaning rule is a canon of statutory interpretation, while contemporanea expositio is a rule of evidence regarding how best to discern the original meaning (see Ruth Sullivan, Sullivan on the Construction of Statutes, 6th ed. (Markham, ON: LexisNexis Canada, 2014) at paras. 6.11-6.13.).
This “dynamic originalist” interpretation is also consistent with how Canadian courts have traditionally interpreted other similar subjects in the Constitution. An analogy can be drawn here between “military law” in s.11(f) and “criminal law” in s.91(27). While the former deals with a limitation on a Charter right, not a federal grant of power, and should arguably be interpreted more narrowly, both provisions clearly refer to a general category that would allow for new specific offences to come within the category from time to time. Just as the Privy Council and the Supreme Court historically eschewed a narrow conception of “criminal law” that would limit its meaning to those particular offences that existed in 1867, opting instead for a broader definition of prohibitions with penalties that concern a traditional criminal law purpose, so too should “military law” be interpreted to include any offence with a “real military nexus.” By the same token, it would be an affront to the division of powers to interpret “criminal law” to mean any law in the Criminal Code, as this would effectively empower Parliament to define the scope of its own jurisdiction. So too, then, the meaning of “military law” must not be construed too broadly to mean offences set out in the National Defence Act, lest Parliament be permitted to set the boundaries of the right to trial by jury.
The military nexus standard is admittedly imperfect, lending itself to a certain amount of subjectivity. Indeed, Her Majesty the Queen would take the position that any offence committed by a military service member, regardless of how far removed from the military base or military service, implicates the discipline, efficiency and morale of the armed forces. More ink will undoubtedly have to be spilled on the subject, and the courts will likely need to rely on the opinion of experts in the field. But as the doctrine develops over time, the courts should be able to reduce indeterminacy and produce a workable and predictable framework to assess when conduct has a true military nexus versus when its effect upon unit discipline, efficiency or moral is merely incidental. And where truly ambiguous cases arise, they should be resolved in favour of the right to trial by jury, as military offences are an exception to that otherwise robust right.
Section 130(1) of the Military Defence Act need not be overturned. Her Majesty the Queen was correct in pointing out that the provision existed for decades prior to the enactment of the Charter, which, as noted above, is a relevant, but not determinative, consideration. At the same time, the meaning of that section must be understood in light of s.11(f) of the Charter. It is plausible to read s.130(1) as implicitly incorporating a “miltary nexus” standard, as the Court Martial Appeal Court did in MacDonald. Ambiguous provisions should be read in a way that renders them Charter-compliant wherever possible, and s.130(1) is such a case. Section 130(1) should therefore be upheld, but it should be construed more narrowly to require a military nexus, in accordance with the Charter.
Advocates for the Rule of Law intervened on the issue of stare decisis and was alone in making submissions in that regard during oral argument. I am proud of the work we did and am hopeful that the Court will use these appeals as an opportunity to clarify the importance of horizontal stare decisis, especially at intermediate appeal courts where the doctrine is most commonly applied. Due to the inherent constraints on being an intervener, ARL confined its submissions to the stare decisis issue and left it for the parties to argue the proper method of constitutional interpretation. However, were we in a position to make additional submissions on that issue, ARL would have argued for adopting the military nexus standard based on a dynamic originalist approach. This approach, in our view, is most consistent with the literal meaning, statutory context and purpose of s.11(f) and with the way in which our courts have approached similar interpretive issues throughout Canadian history.