CANFORGEN 097/19 - IMMEDIATE CHANGES TO THE MILITARY JUSTICE SYSTEM

[Lumber]

See below.

I'm very happy with para 4C.

However, I'm curious about para 4B. Did they just create a regulation whereby two members of the FORCES, of equal position and rank, could receive different punishments based on their cultural identity? I mean, the second sentence seems to negate the first. "You have to consider their indigenous identity, but you also have to pick a punishment that is reasonable and consistent", which means if it is different than what I would get, it's not consistent, in which case, what's the point? Did this get added to the NDA just to make it look like their are doing something without actually doing anything?

CANFORGEN 097/19 JAG 001/19 041856Z JUL 19

IMMEDIATE CHANGES TO THE MILITARY JUSTICE SYSTEM

UNCLASSIFIED

REFS: A.AN ACT TO AMEND THE NATIONAL DEFENCE ACT AND TO MAKE RELATED AND CONSEQUENTIAL AMENDMENTS TO OTHER ACTS (BILL C-77)
B.NDA SUBPARAGRAPH 203.3(A)(II)
C.NDA PARAGRAPHS 203.3(C),(C.1) AND (D)
D.NDA SUBSECTION 249.27(1)

1. THE PURPOSE OF THIS CANFORGEN IS TO ANNOUNCE ROYAL ASSENT OF THE ACT AT REF A AND THE RESULTING CHANGES TO THE MILITARY JUSTICE SYSTEM (MJS),SOME OF WHICH HAVE AN IMMEDIATE IMPACT ON SERVICE TRIBUNALS

2. REF A RECEIVED ROYAL ASSENT ON 21 JUNE 2019

3. REF A AMENDS THE NATIONAL DEFENCE ACT (NDA) BY STRENGTHENING THE MJS AND ALIGNING IT WITH THE CIVILIAN CRIMINAL JUSTICE SYSTEM WHILE RESPECTING THE UNIQUE REQUIREMENTS OF THE MJS. REF A ADDS THE DECLARATION OF VICTIMS RIGHTS ENSHRINING FOR VICTIMS OF SERVICE OFFENCES THE RIGHT TO INFORMATION, PROTECTION, PARTICIPATION, AND RESTITUTION. REF A ALSO ADDS SENTENCING PRINCIPLES RELATED TO GENDER-IDENTITY AND EXPRESSION AND INDIGENOUS OFFENDERS CONSIDERATIONS AND IT REFORMS SUMMARY TRIALS INTO NON-PENAL AND NON- CRIMINAL SUMMARY HEARINGS. SOME AMENDMENTS CAME INTO FORCE ON ROYAL ASSENT AND THE REMAINDER WILL COME INTO FORCE AT A LATER DATE

4. THE FOLLOWING AMENDMENTS TO THE NDA ARE NOW IN FORCE:

a. EVIDENCE THAT A SERVICE OFFENCE WAS MOTIVATED BY BIAS, PREJUDICE OR HATE BASED ON GENDER IDENTITY OR EXPRESSION CONSTITUTES AN AGGRAVATING CIRCUMSTANCE THAT MUST BE TAKEN INTO CONSIDERATION WHEN A SENTENCE IS IMPOSED (REF B)

b. PARTICULAR ATTENTION IS TO BE AFFORDED TO THE CIRCUMSTANCES OF INDIGENOUS OFFENDERS WHEN CONSIDERING THE APPROPRIATE PUNISHMENTS. THE PUNISHMENTS MUST BE REASONABLE IN THE CIRCUMSTANCES AND CONSISTENT WITH THE HARM DONE TO VICTIMS OR TO THE COMMUNITY (REF C)

c. A PERSON CONVICTED OF CERTAIN SERVICE OFFENCES WILL NOT HAVE A CRIMINAL RECORD WHEN THE PERSON IS SENTENCED TO ONE OR MORE OF THE FOLLOWING PUNISHMENTS: SEVERE REPRIMAND, REPRIMAND, FINE NOT EXCEEDING BASIC PAY FOR ONE MONTH OR MINOR PUNISHMENT (REF D)

5. THE REMAINING PROVISIONS WILL COME INTO FORCE AT A LATER DATE ALONG WITH RELATED PROVISIONS AMENDING THE QUEEN S REGULATIONS AND ORDERS FOR THE CANADIAN FORCES

6. ALL CANADIAN ARMED FORCES MEMBERS QUALIFIED TO PRESIDE AT SUMMARY TRIALS ARE REQUIRED TO APPLY THESE NEW SENTENCING PRINCIPLES AND BE FAMILIAR WITH THE AMENDMENTS RELATED TO CRIMINAL RECORDS BEFORE PRESIDING AT SUMMARY TRIALS

7. OFFICERS PRESIDING AT SUMMARY TRIALS WHO HAVE ANY QUESTIONS ABOUT THE PROVISIONS THAT HAVE COME INTO FORCE SHOULD CONTACT A LEGAL OFFICER.

 

[dapaterson]

For context on 4B, read: https://en.wikipedia.org/wiki/R_v_Gladue

 

[Brad Sallows]

>Did they just create a regulation whereby two members of the FORCES, of equal position and rank, could receive different punishments based on their cultural identity?

Not "cultural identity" so much as "history"; I suppose being raised without the aggravating factors and simply claiming aboriginal identity isn't enough.  (Although: the provision ultimately is there to reduce "over-representation", so maybe identity is enough.)  But essentially: yes.  If you were raised poor, abused, discriminated against, etc, and are not aboriginal, you won't get the benefit of the provision.

"THE PUNISHMENTS MUST BE REASONABLE IN THE CIRCUMSTANCES AND CONSISTENT WITH THE HARM DONE TO VICTIMS OR TO THE COMMUNITY (REF C) "

Punishments should be reasonable (etc) and consistent (etc) for all persons, period.  Should we suppose that unreasonable and inconsistent punishments are OK for non-aboriginals?  If not, then the provision is unnecessary.  But although that's what the text suggests, I doubt it's what is meant.  What is meant boils down to more leniency for aboriginals.

 

[brihard]

For context on 4B, read: https://en.wikipedia.org/wiki/R_v_Gladue

Yup, clearly referring to Gladue. In civilian courts there may be a Gladue Report submitted before sentencing to examine whether there are factors applicable to an aboriginal offender’s personal history.

 

[Eye In The Sky]

But, if a white member grew up in the same environment gets charged...no consideration is given to their "personal history"?

 

[vonGarvin]

Reference 4.c., does this mean that if someone were a reservist Sgt say in 1989 and was convicted, got a severe rep and oh, I dunno, say 500 fine (less than monthly salary), then that person would no longer have a criminal record due to this?

Asking for a friend...

 

[brihard]

Reference 4.c., does this mean that if someone were a reservist Sgt say in 1989 and was convicted, got a severe rep and oh, I dunno, say 500 fine (less than monthly salary), then that person would no longer have a criminal record due to this?

Asking for a friend...

Has ‘your friend’ applied for a record suspension? (The new term for what was a ‘pardon’)

Unlikely this will cause any automatic expungements of records, but that should be a pardonable matter.

 

[vonGarvin]

Has ‘your friend’ applied for a record suspension? (The new term for what was a ‘pardon’)

Unlikely this will cause any automatic expungements of records, but that should be a pardonable matter.

I'll ask him.


*pause*

He says he didn't.

He thanks you. 

 

[FJAG]

I'll ask him.


*pause*

He says he didn't.

He thanks you. 

Second  :rofl: of the day.

:cheers:

 

[Haggis]

I'll ask him.


*pause*

He says he didn't.

He thanks you. 

Perhaps your friend should lobby for equal treatment to what occurred to those convicted of simple cannabis possession.

 

[garb811]

Reference 4.c., does this mean that if someone were a reservist Sgt say in 1989 and was convicted, got a severe rep and oh, I dunno, say 500 fine (less than monthly salary), then that person would no longer have a criminal record due to this?

Asking for a friend...

Further to this, missing from the CANFORGEN is the actual wording of the applicable Section of the NDA which would probably have been helpful for a lot of people, including your friend:

249.27 (1) A person who is convicted of any of the following offences, or who has been convicted of any of them before the coming into force of this section, has not been convicted of a criminal offence:

a) an offence described in section 85, 86, 87, 89, 90, 91, 95, 96, 97, 99, 101, 101.1, 102, 103, 108, 109, 112, 116, 117, 118, 118.1, 120, 121, 122, 123, 126 or 129 for which the offender is sentenced to

    (i) a severe reprimand,

    (ii) a reprimand,

    (iii) a fine not exceeding basic pay for one month, or

    (iv) a minor punishment;

(b) an offence under section 130 that constitutes a contravention within the meaning of the Contraventions Act.

In short, there is already a provision in place to take care of anything that meets the new criteria...

I'm at a bit of a loss ref this, as there are now two references in the NDA WRT criminal records that do not align. Division 6.2 specifically names CSD offences which are "designated" which enables them to be treated as criminal convictions IAW the Identification of Criminals Act, yet the newest changes imply that some offences which are not designated offences are still going to be treated as causing a "criminal record" under the NDA, yet there is no legal authority to gather the required fingerprints, photographs and other information that may be required to get these "criminal convictions" entered into CPIC.

For ref, designated offences are:

196.26 In this Division, designated offence means an offence under any of the following provisions of this Act:

    (a) paragraphs 75(a) to (d) (offences related to security);

    (b) paragraphs 77(a) and (d) to (i) (offences related to operations);

    (c) section 78 (spying for the enemy);

    (d) section 79 (mutiny with violence);

    (e) section 80 (mutiny without violence);

    (f) paragraphs 81(a) and (b) (offences related to mutiny);

    (g) section 84 (striking or offering violence to a superior officer);

    (h) paragraphs 87(a) to (c) (resisting arrest or custody);

    (i) section 95 (abuse of subordinates);

    (j) section 100 (setting free without authority or allowing or assisting escape);

    (k) section 101 (escape from custody);

    (l) section 101.1 (failure to comply with conditions);

    (m) section 102 (hindering arrest or confinement or withholding assistance);

    paragraphs 111(1)(a) and (b) (improper driving of vehicles);

    (o) section 113 (causing fires);

    (p) section 114 (stealing);

    (q) section 115 (receiving);

    (r) paragraphs 116(a) and (b) (destruction, damage, loss or improper disposal), if the conduct is wilful;

    (s) paragraphs 117(a) to (d) and (f) (miscellaneous offences), except where the offender unlawfully obtains transportation by fraud;

    (t) section 118 (offences in relation to tribunals);

    (u) section 118.1 (failure to appear or attend);

    (v) section 119 (false evidence);

    (w) section 124 (negligent performance of duties), if the negligence results in death or bodily harm;

    (x) section 127 (negligent handling of dangerous substances);

    section 128 (conspiracy); or

    (z) section 130 (service trial of civil offences), if the act or omission is punishable under any other Act of Parliament and constitutes an offence under that other Act that is an indictable offence or is deemed to be an indictable offence by paragraph 34(1)(a) of the Interpretation Act.

 

[Navy_Pete]

But, if a white member grew up in the same environment gets charged...no consideration is given to their "personal history"?

It really should be considered for everyone, but given that there are multiple generations that were destroyed by the residential schools and some other fairly awful things that Canada did to it's own people, seems fair that it's (theoretically) mandatory.  Even with the SJC decision, it's not getting done, and was one of the points for action in both the Truth and Reconciliation report as well as the Missing and Murdered Indigenous Women report.  Read the summary for both sometime, absolutely appalling what happened.  Aside from the sexual and physical abuse and neglect of children, forced cultural assimilation, kidnapping and separating them from their families and all the other horrors from that, there was also some really awful things like a sled dog slaughter in northern communities by the RCMP.  There are a lot of people that had similarly bad childhoods, but none of that was the result of a systematic campaign against the FN that started hundreds of years ago when Europeans rolled up and the GoC enthusiastically picked up the torch.  The last school closed in the early 90s, so it's not even like it's ancient history.

Highly recommend reading the report; absolutely opened my eyes and really knocked the shine of naivety that I had for Canada as an idea and brought it down to reality. I think Canada as a whole is better than most countries, but that is some really ugly history that we need to confront. It's been going on for generations, and when it's that widespread affecting grandparents down to the kids, it's going to take generation to sort out. 

[/end rant]

The Gladue reports are also supposed to provide some alternative sentencing options, are those even an option for the CMJ system? Some of the recommendations are pretty straightforward (ie person likely has Fetal Alcohol system, so should be sent for diagnosis and maybe have counseling/treatment as part of the sentencing), but others are things like release to the community with conditions, healing lodges, etc to deal with underlying mental health issues (ie trauma from being abused in residential schools). I'm not really sure how they are reconciling the Gladue report goals with using it as a mitigating factor, when we don't have the same sentencing tools that you would on civy side, or how you would even go about getting some kind of equivalent for a FN member. It's already a fairly byzantine bureaucratic process on civvie cases with a huge shortage of report writers, so sounds like it could be a pretty messy complication to any otherwise straightforward CM.

PS they aren't free; suppose anyone has figured out whose FIN code one of those would get charged to? 

 

[cld617]

But, if a white member grew up in the same environment gets charged...no consideration is given to their "personal history"?

That's not what it says at all, it says "particular attention" is to be afforded, not that leniency or no consideration is to be afforded to anyone of any color or ethnic background. All this additional measure does is create a situation where whoever is dishing out punishments is mandated to consider particulars which evidently have been overlooked so often enough in the past that we've decided they need to be considered, rather than that consideration being optional.

 

[Navy_Pete]

As an aside, think the Gladue report type scenarios are much less likely/severe for the CMJ anyway; the people that really need them are probably not likely to even walk into a recruiting centre. It's meant for people that find themselves inadvertently in the justice system, and not really for someone that deliberately joined the CAF and became subject to the CSD. From what I can tell, we already do a pretty good job of taking a lot of these things into consideration for everyone, and people that have gotten into issues because of an addiction problem or whatever seem to get treatment before the actual trial rolls around.

This seems more like a token consideration for appearances sake, but would be interested to see what happens if it ever came up in a CM.

 

[Jarnhamar]

If we got rid of the FN reserve system we would have to worry about giving "particular attention" to FN members less and less.

This does seem like a token consideration for appearences sake in the CAF.

 

[Kilted]

"There was also some really awful things like a sled dog slaughter in northern communities by the RCMP."


I actually covered this in school. It was found that apart from some dogs being put down for safety and health concerns, this never occurred. There weren't even as many dogs in the North as were allegedly killed to begin with. 

http://publications.gc.ca/site/eng/389331/publication.html

 

[Brad Sallows]

>It's meant for people that find themselves inadvertently in the justice system

Aka "people convicted of a crime".  People don't get there "inadvertently", and if we really meant to reduce "over-representation in the system" (which is chiefly a euphemism for "over-represented in prison") then we'd have to start before entry into the "the system" (eg. stop arresting people, or stop charging people).

 

[Navy_Pete]

>It's meant for people that find themselves inadvertently in the justice system

Aka "people convicted of a crime".  People don't get there "inadvertently", and if we really meant to reduce "over-representation in the system" (which is chiefly a euphemism for "over-represented in prison") then we'd have to start before entry into the "the system" (eg. stop arresting people, or stop charging people).

I guess I meant that they are part of the justice system as an offender, vice consciously signing up and having the NDA and CMJ system apply.  Poor choice of words I guess.

 

[Navy_Pete]

"There was also some really awful things like a sled dog slaughter in northern communities by the RCMP."


I actually covered this in school. It was found that apart from some dogs being put down for safety and health concerns, this never occurred. There weren't even as many dogs in the North as were allegedly killed to begin with. 

http://publications.gc.ca/site/eng/389331/publication.html

Bit more complicated then that, and there was a follow on report done by the Qikiqtani Truth Commission that goes into a lot more detail, and is pretty balanced.  The RCMP report was pretty one sided, and QC ended up paying out a $3M settlement a few years ago.  Basically the Inuit were used to keeping the dogs loose; the RCMP and others said that was a safety issue and put a bunch of them down (probably without the normal warnings or explanation on why the dogs where shot). The whole thing grew into a bit of a mythical proportions, but it wasn't the straightforward 'health and safety' issue the RCMP wrote it off as.

There wasn't necessarily any kind of deliberate order to cull the sled dogs, but they were a bunch of outsiders applying a bunch of city policies to people that were used to being small groups of hunter gatherers, which was par for the course with the general 'we know better' approach the government takes.

https://www.qtcommission.ca/sites/default/files/public/thematic_reports/thematic_reports_english_rcmp_sled_dog.pdf

 

[Burrows]

If we got rid of the FN reserve system we would have to worry about giving "particular attention" to FN members less and less.

This does seem like a token consideration for appearences sake in the CAF.

As someone who routinely works with First Nations offenders and the justice system, I can tell you that the reserves themselves are not the problem.  There are other issues with the reserve system (which I won't get into), but you cannot blame their existence for criminal behaviours. There are many hard working persons who live on the reserves who share the same or similar values as you and I.  They want to be happy, safe, and loved.


The contributing factor is more related to what is known as inter-generational trauma, specifically the victimization of new generations by the old, who themselves were victimized.  These behaviours and values are often learned from the caregivers, who themselves have suffered similar.  We see the same types of issues from families of all races and are seem more content to sympathize when we refer to it as "broken homes".  The reality is that the historical marginalization, including the residential school system, of the First Nations was perpetuated by the institution of Canada.  The government has acknowledged this.


First Nations have reserves because they were here first and we sought to corral them.  Ironically, it was Canadian Governors who enabled this through a rampant misinterpretation of the kings orders that were designed to protect the first nations who helped Britain to claim Canada.  The reality is that while many of these reserves struggle due to a lack of funding, many are also successful.  The idea that a reserve, as a geographical entity, contributes to deviance is flawed.  All that line of thinking seeks to do is perpetuate a false stereotype of the First Nations people as a whole.  What has been stereotyped as universal is an almost involuntarily adapted sub-culture that is caused, in part, by the inter-generational trauma. That subculture is crime, substance abuse, and violence. That subculture is, by and large, the only coping skills they have learned from generation spanning broken homes.  That subculture is prevalent in every race across our society. It is absolute ignorance to consider a geographic location as the cause of it.


You would be surprised how many first nations offenders present very similarly to persons with unmanaged PTSD.  Because it is PTSD.  It is the same PTSD we see in child soldiers, in our own people, in first responders and civilians.  And it is because we have not put systems in place that make it truly a possibility to address these issues in the long term.  Geography is not the cause.  The fact that we continually make mental health care a secondary priority is.  The only time geography comes into play is that when we can barely provide these services in major cities we can't provide them at all in other places where they are still very much needed.


Caveat to my statements this being these:


1) There are First Nations offenders who, like offenders from all other races, are just assholes.  And from what I've seen on the street, the First Nations communities are actually quite remarkable at policing their own in this regard - I have seen individuals excommunicated from groups for crimes that were "too far".


2) The application of Gladue by the courts is flawed when we continually fail to provide a correctional and judicial system that allows for effective correction and re-integration.  An effective judicial system sentences offenders for the time needed to rehabilitate, and an effective correctional system provides the resources and treatment options to do so. The lack of theraputic services and treatment options inside our provincial systems perpetuates this.  A person, any person, shouldn't need to be sentenced to over two years before they have an option to get help.  You know this system is broken when people ask for more time so that they can access these services.  I have seen that happen more than once and it breaks my heart.