National Defence Act violate right to fair trial

[Strike]

PUBLICATION:  The Ottawa Citizen
DATE:        2008.04.25
EDITION:      Final
SECTION:      News
PAGE:        A4
ILLUSTRATION: Photo: Reuters / The late Supreme Court justice AntonioLamer said that the right to choose the 'trier of facts' should be given to the accused, not the prosecution. ; 
BYLINE:      Meagan Fitzpatrick
SOURCE:      The Ottawa Citizen
WORD COUNT:    553

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Parts of National Defence Act violate right to fair trial, court rules; In military, defendants don't have right to pick type of court martial

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The military's justice system in Canada could get a major shakeup as a result of a court decision yesterday that declared sections of the National Defence Act null and void because they violate the constitutional right to a fair trial.

In the civilian court system, those accused of serious Criminal Code offences have the right to choose between a jury trial and a trial by judge alone. In the military justice system, provisions in the National Defence Act give the director of military prosecutions the power to choose the type of court martial by which an accused will be tried. There are four kinds -- general, disciplinary, standing and special general -- each with different regulations and powers.

A standing court martial, for example, consists of a judge alone, whereas general and disciplinary courts martial have a judge and a panel of military members.

In the case heard before the Court Martial Appeal Court of Canada, involving Joseph Simon Kevin Trepanier, the accused argued that putting the power to choose the type of court martial in the hands of the prosecutor violated his right to a full answer and defence and to control that defence, as provided for by the principles of fundamental justice in the Charter of Rights and Freedoms.

The three-member appeal court agreed that there is no justification for not allowing an accused the opportunity to choose between military judge alone and a military judge and panel. It ruled that the provisions in the National Defence Act are unconstitutional and deemed them "invalid and inoperative."

The court acknowledged that its ruling could mean an overhaul of the military justice system, saying "we are aware that the structure of the courts martial may require a legislative reform of more or less depth, depending on the approach that Parliament may wish to take," it said. The court added that the system "is in dire need of a change and modernization to improve its fairness and meet the constitutional standards."

The appeal court's decision follows a recommendation from former Supreme Court justice Antonio Lamer, who said in a report more than four years ago that the right to choose the "trier of facts" should be given to the accused, not the prosecution. He also recommended that a working group be created to evaluate how courts martial are organized and he suggested a two-tiered military justice system be set up consisting only of a general court martial to try serious crimes and a standing court martial to try minor offences.

The court says authorities have had years to change the system and the implications of its decision could easily and quickly be worked into legislation currently before Parliament that is already proposing amendments to the National Defence Act, Bill C-45.

Mr. Trepanier, a cadet, was charged with a sexual assault in February 2006 in connection with an incident at Canadian Forces Base Borden, Ont., the year before.

He challenged the constitutionality of the director of prosecutions deciding he would be tried by a judge alone, but that motion was dismissed, the trial went ahead. Mr. Trepanier was found guilty in January 2007. His sentence was a reprimand and a fine of $2,000.

Yesterday's court decision was not related to that conviction, only to the constitutional issues around the case.

The ruling can be appealed to the Supreme Court of Canada.



a reprimand and a fine of $2,000.

 

[Eye In The Sky]

Oh FFS...what next? 

 

[Yrys]

Oh FFS...what next? 

The accused will choose the ruling .

 

[Eye In The Sky]

:rofl:

 

[scoutfinch]

No.  The accused will chose the mode of trial. 

At the end of the day, the Courts have determined that there is no justifiable reason why service members can't chose their mode of trial.  It is a right of all Canadians, except service members. Presumably, after hearing argument from both sides, the Court was not pursuaded that there is no defence related reason to deny service members the right to elect.

I can't say I disagree with the Court; however, I didn't hear argument or read the briefs.

 

[medaid]

Hmmm... I want to read the briefs too... It would be most interesting...

 

[Yrys]

No.  The accused will chose the mode of trial.

I'm sorry. I made easy levity when it is something important for all involve, and has repercussions for forces and forces members not involved..

 

[garb811]

Decision is here:  Decision rendered April 24, 2008 in Joseph Simon Kevin Trépanier v. Her Majesty the Queen (CMAC-498)

I hardly see this as laying the grounds for a "major" overhaul of the system...

 

[scoutfinch]

Now, if I could only find time to read a 68 page decision.  This is definitely going to have to wait until next week.  Thanks for the link to the decision.

 

[Old Ranger]

Right to a trial without unreasonable delay has come into play in the past :

 

[dapaterson]

Nothing to do with delays in this instance; everything to do with unloading the Prosecution's deck a little.

 

[Eye In The Sky]

No.  The accused will chose the mode of trial. 

At the end of the day, the Courts have determined that there is no justifiable reason why service members can't chose their mode of trial.  It is a right of all Canadians, except service members. Presumably, after hearing argument from both sides, the Court was not pursuaded that there is no defence related reason to deny service members the right to elect.

I can't say I disagree with the Court; however, I didn't hear argument or read the briefs.

IF it stops there...what will be questioned next WRT to the NDA?  I am sick and tired of touchy-feely-huggy crap in this country.  People need to grow some.

 

[scoutfinch]

The only thing that was being challenged in the NDA by this case was the right to elect mode of trial... something that has been recommended for years. 

I am not sure how having the right to trial by jury is 'touchy/huggy/feely'.

Moreover, challenging the system demonstrates more stones than going along blindly or silently with something that is patently unconstitutional for which there is no demonstrably justifiable rationale... particularly, when it could impact fundamental rights of service members. 

We aren't second class cititzens and while there may be a requirement to restrict some of our rights (in accordance with s.1 of the Charter), according to the Court, this wasn't one of those cases.

 

[armyvern]

The accused will choose the ruling .

I choose "not guilty!!"

>

A little bit of a problem in translation with that post of yours -- good for a much-needed laugh today though -- thank you!!  ;D

 

[garb811]

IF it stops there...what will be questioned next WRT to the NDA?  I am sick and tired of touchy-feely-huggy crap in this country.  People need to grow some.

The NDA gets challenged fairly often.  One of the more famous ones is R. v. Généreux.  Although the Crown lost that one, the SCC did affirm that in general, Courts Martial are Constitutional.  Now what is going on is a process of fine tuning the Constitutionality of the system.  As Scoutfinch said, many potential challenge areas are known and the best step would be to fix the issues via legislation but, as is often the case, problem issues get ignored until someone specifically challenges them.

 

[dapaterson]

R vs Genereux is a great read for anyone with an interest in the military justice system.  Quite a scathing review of the staus quo at the time; essentially stating "Yes, a seperate system of military justice is necessary... but the one you've got is in desperate need of a full overhaul".