High Court to hear military justice appeal

[trooper142]

https://www.therecord.com/news-story/8316519-high-court-to-hear-military-justice-appeal/

OTTAWA — The Supreme Court of Canada has agreed to hear a case that challenges the constitutionality of the military court martial system and, if successful, could have dramatic ramifications for the Canadian Forces.

The case was brought by Master Cpl. Clarence Stillman and eight other current and former Forces members who say their rights were infringed because, under the military system, they were not entitled to have their cases heard by a jury.

The Court Martials Appeal Court of Canada rejected the challenge against the court-martial system last year, after which Stillman and the others asked the Supreme Court to hear the case.

A positive finding by the Supreme Court would represent a blow to the existing court-martial system and force officials — and the federal government — to rethink how they prosecute criminal cases in the military.

The Constitution says anyone charged with an offence with a maximum penalty of five or more years in prison is entitled to a jury trial "except in the case of an offence under military law tried before a military tribunal."

Those military tribunals come in the form of courts martial, of which there are two types. A standing court martial is heard by a military judge alone, while a general court martial involves a judge and a panel of five other service members.

Military personnel charged with a serious crime are usually given the choice between the two types and are forced in some instances to have their cases heard by a general court martial.

But Stillman and the others are challenging the exception from jury trials for military personnel, which is laid out in section 11(f) of the Charter of Rights and Freedoms.

Among their arguments is that a general court martial is not the same as a jury trial because it includes fewer members and those members are often higher in rank than the accused and part of the chain of command.

They also argue that military personnel charged with a Criminal Code offence, even if it is under National Defence Act, should be treated the same as anyone else — namely by giving military personnel the option of a jury.

The National Defence Act allows for any criminal offence committed by a service member to be considered a military offence, which has been interpreted to this point as making them subject to the court-martial system.

"Our argument is very simple: A civilian offence is not an offence under military law according to section 11(f)," said Lt.-Cmdr. Mark Letourneau, one of the two military lawyers representing Stillman and the other appellants.

"So right now the situation is that soldiers, members of the military, who are charged ... for a civilian offence, really, are being deprived of the right to jury for no reason."

A military supply technician, Stillman was found guilty and sentenced by a standing court martial in October 2013 to six years in prison and dismissal from the Forces after a service member was shot at a residence in CFB Shilo, Man.

A date for the Supreme Court to hear the case has yet to be set.

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Interesting times are ahead, this coupled with the review of the military justice system that was expected in the fall, point to changes to how the military conducts justice.

Thoughts?

 

[Lumber]

1. Stay the hell away from NDA charges and how we dole out military justice; however
2. When a civilian crime is tried in the military justice system (I believe the crime itself requires a very clear military nexus in these cases), then I believe there is a good argument to be made that your are infringing on their rights.

Perhaps a simple modification would be that, in those cases and those cases alone, we could have a new typeof court martial, one involving a larger and more diverse "jury", but still one made up of serving members and presided over by a military judge?

 

[garb811]

Yet again, "we" (Defence Counsel Services) are taking "ourselves" to Court:

R. v. Déry, 2017 CMAC 1 (CanLII)

SOLICITORS OF RECORD:

Defence Counsel Services          For The Appellants
Gatineau, Quebec

Canadian Military Prosecution Service          For The Respondents
Ottawa, Ontario

 

[AirDet]

Someone correct me if I'm wrong but didn't Australia dissolve their military justice system.

 

[FJAG]

Yet again, "we" (Defence Counsel Services) are taking "ourselves" to Court:
. . .

That's DDCS's job and duty. To say they are taking "ourselves" to court is a misapprehension of DDCS and it's independence from the Chain of Command. In effect, DDCS operates under the general supervision of the JAG

Under section 249.17 of the National Defence Act (NDA) individuals, whether civilian or military, who are “liable to be charged, dealt with and tried under the Code of Service Discipline” have the “right to be represented in the circumstances and in the manner prescribed in regulations.”  Defence Counsel Services is the organization that is responsible for assisting individuals exercise these rights
. . .
The director “provides, and supervises and directs” the provision of the legal services set out in Queen’s Regulations and Orders.  These services may be divided into the categories of “legal advice” where advice of a more summary nature is provided, often delivered as a result of calls to the duty counsel line, and “legal counsel” which typically involves a more sustained solicitor-client relationship with assigned counsel and representation of an accused before a judge or military judge or the Court Martial Appeal Court or Supreme Court of Canada.

Defence counsel operate under the same rules and professional code of conduct as their civilian counterparts. The rule on advocacy for lawyers from Ontario (for example) are as follows:

Advocacy
5.1-1 When acting as an advocate, a lawyer shall represent the client resolutely and honourably within the limits of the law while treating the tribunal with candour, fairness, courtesy, and respect.

Commentary
[1] Role in Adversarial Proceedings - In adversarial proceedings, the lawyer has a duty to the client to raise fearlessly every issue, advance every argument and ask every question, however distasteful, that the lawyer thinks will help the client's case and to endeavour to obtain for the client the benefit of every remedy and defence authorized by law. The lawyer must discharge this duty by fair and honourable means, without illegality and in a manner that is consistent with the lawyer's duty to treat the tribunal with candour, fairness, courtesy and respect and in a way that promotes the parties' right to a fair hearing in which justice can be done. Maintaining dignity, decorum and courtesy in the courtroom is not an empty formality because, unless order is maintained, rights cannot be protected.

The arguments being brought in this case are not without some merit. Two of the three judges of the Court Martial Appeal court have in fact bought into them. I personally buy into the decision made by the three judges in Royce and the Chief Justice in this case (which makes it 4 to 2) but that only shows that there is a legal argument that can be (and perhaps should be) raised.

:cheers:

 

[Remius]

Someone correct me if I'm wrong but didn't Australia dissolve their military justice system.

Sort of.  They replaced it.


We may well have to look at how they did it.

 

[FJAG]

Sort of.  They replaced it.


We may well have to look at how they did it.

Actually they looked at how we did it. Over the years there have been numerous contact visits back and forth and many of our concepts have been brought into the revisions to the system which they did.

Here's an overview of their most recent system:

https://www.aph.gov.au/Parliamentary_Business/Committees/Senate/Foreign_Affairs_Defence_and_Trade/Completed_inquiries/2004-07/miljustice/report/c02

Note that they too have a system which has both pure military disciplinary offences and imported civilian offences as we do:

The DFDA creates three categories of offence:

- military discipline offences for which there are no civilian counterparts (e.g. absence without leave, insubordinate conduct, disobedience of a command, etc);

- offences with a close civilian criminal law equivalent (such as assault on a superior or subordinate);

- civilian criminal offences imported from the law applicable in the Jervis Bay Territory.

The most recent discussion as to their system is in their JAG's 2016 annual report to parliament. (Note that the Australian JAG is not comparable to the Canadian JAG. In Australia the JAG acts as the senior judicial officer in their justice system and not as the chief advisor on military law as ours is):

http://www.defence.gov.au/JAG/JAG_Report_2016.pdf

:cheers:

 

[garb811]

That's DDCS's job and duty. To say they are taking "ourselves" to court is a misapprehension of DDCS and it's independence from the Chain of Command. In effect, DDCS operates under the general supervision of the JAG

Yeah, bad post on my part.

I fully understand this is their role but what I've observed over the last number of years is DDCS has been launching, I won't say continual, but a significant number of Charter challenges WRT the CSD.  If members of the Legal Branch truly believe sections of the CSD are unconstitutional, why not work the legislation to fix the identified issues rather than taking the time, effort and expense to launch appeals?  Or is this a case of members of the Branch being uncertain and getting the Court's viewpoint?  I'm not really a fan of amending things via case law as you never really know what is going to be the outcome and quite often there are unanticipated repercussions. 

Follow-up question.  What's with the "bundling"?  It also seems a number of appeals will be pushed through at the same time, which isn't something I've seen much of with regard to civilian cases.  Is that simply economy of effort on the part of DDCS?

 

[Oldgateboatdriver]

I believe the nuance you are missing, garb811, is that the JAG lawyers assigned to the DDCS are lawyers that are ethically bound to push every possible legal matter that could possibly favour their client - which are the accused in the military disciplinary process - short of breaking the law themselves, be that by lying, cheating, misrepresenting or any other such improper way.

But so long as they make an argument that can be somehow supported in favour of their client, they are bound to do everything they can to get them off the hook, exactly as any civilian defence lawyer would. Their wearing a uniform does not change where or how they should raise any issue regarding the validity/invalidity of the CSD: in open court is where they are to do it if it could have a favourable outcome for the CAF member they represent.

That is also the very reason they have to be independent of any chain of command, where their representation of CAF member is concerned.

 

[FJAG]

Yeah, bad post on my part.

I fully understand this is their role but what I've observed over the last number of years is DDCS has been launching, I won't say continual, but a significant number of Charter challenges WRT the CSD.  If members of the Legal Branch truly believe sections of the CSD are unconstitutional, why not work the legislation to fix the identified issues rather than taking the time, effort and expense to launch appeals?  Or is this a case of members of the Branch being uncertain and getting the Court's viewpoint?  I'm not really a fan of amending things via case law as you never really know what is going to be the outcome and quite often there are unanticipated repercussions. 

Follow-up question.  What's with the "bundling"?  It also seems a number of appeals will be pushed through at the same time, which isn't something I've seen much of with regard to civilian cases.  Is that simply economy of effort on the part of DDCS?

Re bundling. In appropriate cases a court of appeal may order that cases be either "consolidated" or "heard together". I took a quick view of the Dery case and I noticed one order by the court to hear four of the cases together (I presume there were other orders to that effect so that all eleven were brought together for one hearing.) I looked for a specific rule for the CMAC (something like Federal Court Rule 105) but couldn't find it.

I think DDCS's kick at faint hope defences comes from several things.

Firstly, the first and second directors of Defence Counsel Services were both avid defence lawyers who would try anything regardless how weak the argument might be. The vast majority of their pleas in bar of trial usually failed. Notwithstanding this there is now an ongoing culture within DDCS to try harder.

Secondly there is the fact that when retaining DDCS counsel, clients don't pay a fee and the lawyers have a much smaller case load than their civilian counterparts. This means that there is no financial pressure on the client to limit their lawyer's efforts and there is little time limit or financial pressure on the lawyer to self limit their activities. The result is a more thorough and more proactive defence on even minor cases. Civilian lawyers generally would only put in such effort on major cases for major clients.

:cheers:

 

[Navy_Pete]

Once in a while I read through the CM transcripts (to see what kind of shenanigans folks get up to). My general impression is that the actual outcomes are quit fair so I don't think anyone gets a bad deal by not having a jury, and would suspect some of the results would have been worse for the defendant if they didn't have a very impartial judge going through the evidence.  Also, if the jury was a bunch of military folks, there would probably be even less tolerance for someone who was basically just being an asshat.

They typically seem to have a 90 or 129 attached to it though, so not sure how easy it would be to kick it to civvy court. Get the catch all argument , but there is also some merit when you may not have done anything illegal on the civvy side, but was shady enough that you definitely didn't live up to the expectations of the service, so you need something more than just admin measures to deal with it.

This also seems like an expensive hail Mary play by some folks that did stupid things and wants to prove they are right, so my sympathy for them is pretty low.

 

[SeaKingTacco]

I have sat through enough Court Martials to also wonder how the average dependent would do against a jury of their military peers.

I would rather take my chances with a military judge...