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

[Jarnhamar]

There are other issues with the reserve system (which I won't get into)

Why not Kyle?
Sort of unfair to argue there are other issues with the reserve system but stop short of explaining what they are.

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.

Definitely agree.

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.

Okay. And the reserve system is a sort of closed circuit community that people "escape from".
We know the government and other organizations don't like dealing with reserves and/or the culture of abuse that systemically plagues reserves for fear of being called racist. We just launch money at them.

And it's racist to ask where X millions of dollars are spent.

I surmise getting rid of the reserve system will force FN members/communities to intrigrate with the rest of our system which will force the systemic abuse out into the open and require it be dealt with.

I've never heard or read of a positive thing about the reserve system (but I could very well be wrong or misguided)

 

[Burrows]

Why not Kyle?
Sort of unfair to argue there are other issues with the reserve system but stop short of explaining what they are.

The topic being discussed is criminal and military justice.  The impact that this CANFORGEN has on aboriginal mbrs directly pertains to it.  The other perceived or real shortcoming of the reserve system does not.

Okay. And the reserve system is a sort of closed circuit community that people "escape from".

That may be your individual belief, but it is not something that you, as an individual, can assert universally.

We know the government and other organizations don't like dealing with reserves and/or the culture of abuse that systemically plagues reserves for fear of being called racist. We just launch money at them.

And it's racist to ask where X millions of dollars are spent.

As stated above, systemic abuse is not something that is limited to reserves.  Tying this back to the reserves is ignorant and a straw man argument.  Moving the same family unit off a reserve would not address the cause.


Discussing the financial management of the reserve system is not the purpose of this thread.

I surmise getting rid of the reserve system will force FN members/communities to intrigrate with the rest of our system which will force the systemic abuse out into the open and require it be dealt with.

We tried forced integration before.  It resulted in systemic abuse that Canada still wears the blame for.

I've never heard or read of a positive thing about the reserve system.

Then you haven't looked.  The news is about as non-partisan to the reserve system as it is to the CAF.

 

[Jarnhamar]

Moved response to a more appropriate area.

 

[H11F]

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

It is unfortunate that this is how it will likely be interpreted by the vast majority, but hopefully education on the history and purpose of said provision can help alleviate feeling like a two-tier system for sentencing considerations has been created.

First, Aboriginal individuals are under-represented in the population and yet over-represented in the Criminal Justice System. No matter how you spin it, no matter what you think of different groups of people and their history, that should trigger alarm bells for anyone.

Second, the CANFORGEN is poorly constructed. While I appreciate it bringing to light changes to the NDA, the manner in which it focuses on those provisions which have entered into force does a disservice to the provisions themselves. The changes that you are concerned about should be read as such:

National Defence Act
203.3 A service tribunal that imposes a sentence shall also take into consideration the following principles: (c.1) all available punishments, other than imprisonment and detention, that are reasonable in the circumstances and consistent with the harm done to victims or to the community should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders


All this is saying is: "Hey, you need to consider all aggravating and mitigating factors when considering a sentence that is appropriate to the case before you and that fits with the objects of the Military Justice System. Oh, and by the way, there are some additional historic factors which should be considered for Aboriginal offenders."

That doesn't mean that such factors could not apply to anyone else, it just means that a Presiding Officer or Judge/Justice should consider historic factors that are unique to Aboriginal culture. The Gladue Principle is not any automatic reduction in sentence. Further, the factors to be considered are not an excuse or justification of criminal conduct.

Also keep in mind that the way the CANFORGEN presents 203.3(c.1) of the NDA is in isolation from the rest of the Division dealing with sentencing. That doesn't work in any context - heck, all of our jobs and tasks are complex, and to have only one piece isolated and explained w/o context would do a disservice to it as well.

Some of those factors that should be considered include: family circumstances, support network, residential schools, unemployment, lack of educational opportunities, dislocation from aboriginal communities, loneliness and community fragmentation, family involvement in a criminal environment, loss of identity, culture and ancestral knowledge, substance abuse, poverty, racism, abuse, and witness to violence.

Some of those could be considered for all offenders, some are a little more specific to Aboriginal offenders.

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 ... 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.

I am actually going to disagree with this. There are a number of recruiting initiatives, such as Black Bear, which bring in Aboriginal youth in an attempt to demonstrate that the CAF is a possible career path. These programs have a different entry process than normal entry (not different standards, just a different process as far as I can tell), and there is no reason to believe the Gladue factors wouldn't be worth considering. Further, given the number of individuals in the CAF with all sorts of historical backgrounds that have an effect on them, I wouldn't consider CFRG an effective filtering system.

H11F.

 

[Navy_Pete]

I am actually going to disagree with this. There are a number of recruiting initiatives, such as Black Bear, which bring in Aboriginal youth in an attempt to demonstrate that the CAF is a possible career path. These programs have a different entry process than normal entry (not different standards, just a different process as far as I can tell), and there is no reason to believe the Gladue factors wouldn't be worth considering. Further, given the number of individuals in the CAF with all sorts of historical backgrounds that have an effect on them, I wouldn't consider CFRG an effective filtering system.

H11F.

Fair point.  Also noticed it is supposed to apply to summary trials, so even if there is a small number of Aboriginal members, theoretically could come up for something as stupid as an AWOL or another one of the 'baby 5' charges.

Read through the NDA changes, and didn't actually see it in any of the ref paras.  May have missed it, but was this consideration officially rolled into the NDA somewhere as a mitigating consideration?

Reminds me that I need to do the presiding officer course refresher; curious if it will be updated to reflect any of this.

I got curious so actually went and read through the changes to the NDA, but didn't actually see anything

 

[H11F]

Fair point.  Also noticed it is supposed to apply to summary trials, so even if there is a small number of Aboriginal members, theoretically could come up for something as stupid as an AWOL or another one of the 'baby 5' charges.

Read through the NDA changes, and didn't actually see it in any of the ref paras.  May have missed it, but was this consideration officially rolled into the NDA somewhere as a mitigating consideration?

Reminds me that I need to do the presiding officer course refresher; curious if it will be updated to reflect any of this.

I got curious so actually went and read through the changes to the NDA, but didn't actually see anything

I think it depends on where you are looking. For example, I noticed that some QR&Os were updated to reflect the changes (104.19 - Criminal Record has the new 249.27(1)(a) wording), where as the NDA most would access on Justice Law Website doesn't have the 249.27(1)(a) amendment. The Related and Coordinating Amendments to Bill C-77 start at s63(1) I think, but are a pain to go through (IMHO anyways).

H11F.

 

[Navy_Pete]

No, I agree, reading the bill was brutal.  I tried but gave up after the third time I lost track of what was original/changed.

Sure it makes sense when you see the NDA with edit changes mode, but it's mostly a tarted up 'track changes' record.

 

[gcclarke]

Fair point.  Also noticed it is supposed to apply to summary trials, so even if there is a small number of Aboriginal members, theoretically could come up for something as stupid as an AWOL or another one of the 'baby 5' charges.

Read through the NDA changes, and didn't actually see it in any of the ref paras.  May have missed it, but was this consideration officially rolled into the NDA somewhere as a mitigating consideration?

Reminds me that I need to do the presiding officer course refresher; curious if it will be updated to reflect any of this.

I got curious so actually went and read through the changes to the NDA, but didn't actually see anything

I don't expect to see much in the way of changes to how summary trials go, considering that folks handing out sentences at summary trials seem to be in the habit of completely ignoring precedent and instead like to just give what they feel like giving, regardless of what everyone else is doing. Expecting anything remotely resembling consistency there is unreasonable.

 

[H11F]

I don't expect to see much in the way of changes to how summary trials go, considering that folks handing out sentences at summary trials seem to be in the habit of completely ignoring precedent and instead like to just give what they feel like giving, regardless of what everyone else is doing. Expecting anything remotely resembling consistency there is unreasonable.

Summary trials will eventually be a thing of the past. Bill C-77 even removes the definition from the NDA (if I recall correctly). We will eventually see summary hearings and service infractions.

H11F.

 

[Brad Sallows]

If we mean for unique (to aboriginals) circumstances to be considered, the law should state it ("unique") plainly*.  Otherwise readers will be prone to the reasonable error that "particular attention to the circumstances of Aboriginal offenders" is approximately "give mitigating evidence greater weight for aboriginals".

*When something "they meant" has to be explained and clarified in articles and discussions and seminars and PD training etc, it's an indicator for a re-draft.

 

[Navy_Pete]

I don't expect to see much in the way of changes to how summary trials go, considering that folks handing out sentences at summary trials seem to be in the habit of completely ignoring precedent and instead like to just give what they feel like giving, regardless of what everyone else is doing. Expecting anything remotely resembling consistency there is unreasonable.

That's a pretty broad statement with zero supporting evidence.  I think I've sat through about 20 or so for one reason or another, and even the same charges were apple and orange comparisons, but they generally seemed pretty reasonable and fair in the judgements when you took into account the mitigating/aggravating factors (1st AWOL vs 3rd, for example).  JAGs were consulted for the punishments, so it wasn't done in a bubble.  Even XOs I thought were power mad arseholes were surprisingly fair and reasonable.

JAG reports are pretty consistent stats wise, and unless you review every finding with the facts, pretty hard to make a sweeping statement.  Only a pretty small portion of findings are challenged by the members, and it seems to be a about an even split over time on which ones were quashed, and which ones were upheld, so overall probably working reasonably well.  If 96% never appeal, probably a good indicator that the members generally are okay with the outcomes.  The high 'guity' findings are just an indication that stuff doesn't proceed unless it's pretty clear cut and I've seen a few STs end in not guilty on some of the charges if the evidence didn't support them. Pretty hard to argue AWOL when cameras are pointing at the brow with a DTG though.

Agree this is a weird CANFORGEN, hopefully this is followed up with clarification and actual plain language direction. 

 

[SeaKingTacco]

Navy Pete beat me to it.

There is no such thing as a "going rate" for a particular charge, if a Presiding Officer is doing their job properly and considering all the aggravating and mitigating factors when sentencing.

A sentence must always be the minimum required to both correct behavior and send a message to others.

This is why it is almost impossible to compare sentences arrived at during various summary trials- there are far too many variables.

 

[Eye In The Sky]

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?

Thanks for the post and info to consider.  This is a subj I admittedly know very little about;  growing up in a small province (PEI), I've never been aware of the real, national-level history other than broad strokes stuff.  My first awareness of FN issues probably began during the Oka crisis.  At that time I was a young troop in Gagetown and had a fairly one-sided opinion of the situation.

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.

Copy, thanks.