Sexual assault charges stayed as questions of independence rock military justice

[Lumber]

The judge, Cmdr. Martin Pelletier, stayed court martial proceedings against Capt. Mark Iredale last month after finding the officer couldn't be guaranteed his right to a trial before an independent and impartial tribunal.

https://www.cbc.ca/news/canada/british-columbia/sexual-assault-military-judges-independence-1.5749072

Ok, so does this not set the precedent that anyone in the forces charged with sexual assault and is going to go before a court marital instead of a civilian court will have their charges stayed?

Edit to add more content directly from article.

 

[ModlrMike]

This is crazy. Why can't there be an order that guarantees judicial independence, whilst having these Legal Officers still subject to the CSD? After all, civilian judges have judicial independence, but are still subject to the CCC.

What is the place of military judge if they can't be managed by the military command structure for non-judicial purposes?

 

[dapaterson]

This is crazy. Why can't there be an order that guarantees judicial independence, whilst having these Legal Officers still subject to the CSD? After all, civilian judges have judicial independence, but are still subject to the CCC.

What is the place of military judge if they can't be managed by the military command structure for non-judicial purposes?

Clear the military bench, add two judges to the federal court to account for the number of court martials, and move the entire court martial caseload to the federal court.

This all goes back to the retired Chief Military Judge and his successful efforts to sabotage his own court martial.  The judges now think they are outside the law.

 

[Oldgateboatdriver]

I am partly in agreement with you, Dapaterson, but not quite.

I agree we should dispose of the whole uniformed bench.

However, I hate when we constantly talk of military justice - Unlike the US, which has a Uniform Code of Military Justice, we have a Code of Service Discipline - the point being the fundamental purpose is maintaining discipline. This requires that the "accused" be judged on the basis of what is required for the maintenance of discipline in the CAF, and only serving members can decide that in my humble opinion.

So in my system, the CAF would eliminate court martial before a judge alone. All court martial  (and as you noted DP, there isn't that big a caseload) would be before a trial judge, for legal aspects, with a panel of members of the CAF to decide the guilt or absence of guilt. You can have different levels with, say five, seven and nine members depending on the gravity of the case, and like the US, on that one, I would agree to a majority vote from the panel instead of unanimous decision - though I could also live with more than simple majority if that is what people want. In such system, you would not move the court martial to Federal Court, you would have judges of the Federal Court come in as bench of the court martial. And you don't need more of them - they already have a very light case load as compared to most courts in Canada.

P.S. One of the main reason I am of this view is because if we simply moved the court martial system to the Federal court and you still had trial by judge alone, you would have judges that have never served that would decide such cases. Yet, one of the most important alternate charge we use in court martial is the general "Conduct to the prejudice of good order and discipline". IMHO, only serving members can decide what that is at any specific point in time and those are charges of great importance as was illustrated (I know, fictional example, but ...) in A Few Good Men.

 

[ballz]

This requires that the "accused" be judged on the basis of what is required for the maintenance of discipline in the CAF, and only serving members can decide that in my humble opinion.

You can have different levels with, say five, seven and nine members depending on the gravity of the case, and like the US, on that one, I would agree to a majority vote from the panel instead of unanimous decision - though I could also live with more than simple majority if that is what people want.

Why should the liberty of an accused be more in jeopardy in the military than it is in the civilian court? If someone is charged with murder, how does giving the prosecution an easier time in getting a conviction have anything to do with discipline?

Finding someone guilty or not guilty of a charge has nothing to do with "discipline." The discipline part comes after, in the sentencing.

 

[Oldgateboatdriver]

Just a few points, Ballz. And please keep in mind those are my opinions:

The issue is not wether one's liberty is in jeopardy or not, it is "what is the purpose of the CSD". My view is that it's purpose is discipline. I come to that conclusion for various reasons:

1) It's in the title of the damn document;
2) If it's purpose is prosecution of crime, then is useless. You already have a Criminal Code and a complete court system and police system capable of applying it and any supplementary "military" crimes can simply be added in as required;
3) Maintenance of good order and discipline is a paramount concept in military organization, so it's maintenance is an important, if not critical, aim.
4) Best proof of that last point: read an officer's commissioning scroll: "...and you are in such manner and on such occasions as may be prescribed by Us to exercise and well discipline both the inferior Officers and men serving under you and use your best endeavour to keep them in good Order and Discipline."


In short: if the CSD isn't about discipline, then it serves no purpose - leave the whole matters to ordinary courts and police force.

 

[ballz]

I'm not questioning the point about whether it's point is discipline...

You're talking about changing the standards for a guilty conviction, i.e. majority decision instead of unanimous decision, therefore making it easier to convict someone of a crime. You're citing discipline as a reason this is necessary.

I don't see how making it easier for the Crown in anyway enhances discipline in any way shape or form. It just opens the door for more mistakes and innocent people are the ones who bear the brunt of those mistakes.

The "discipline" part comes *after* the conviction. Trying to stack the deck against the accused isn't about discipline.

 

[Oldgateboatdriver]

Actually, Ballz, I meant to add this in my last post, but forgot:

If you look at the Constitution Act, 1982, which established the Charter of Rights, Article 11 f) (right to trial before a jury for offences carrying five or more years imprisonment), it specifically exempts military trials and tribunals from the obligation to provide trial before a jury. So, basically, the military tribunals are not bound by any rules applicable to trials by jury, such as unanimous decision of a jury, etc.

 

[dapaterson]

Any discussion of military law and the CSD should be framed by the ongoing work to implement law C-77, which does a fundamental restructure of the CSD, eliminating summary trials and replacing them with summary proceedings.  "Service Infractions" as defined in Regulation will be addressed through summary proceedings, while only Service Offences as defined in the Act will give rise to court martial.

 

[ballz]

If you look at the Constitution Act, 1982, which established the Charter of Rights, Article 11 f) (right to trial before a jury for offences carrying five or more years imprisonment), it specifically exempts military trials and tribunals from the obligation to provide trial before a jury. So, basically, the military tribunals are not bound by any rules applicable to trials by jury, such as unanimous decision of a jury, etc.

I would defer to your legal expertise and also by reading that, to concede/assume that your idea would be constitutional, but that doesn't make it right. There seems to a few problems with our constitution so that there is yet another potential issue in there isn't surprising.

And so even if it isn't required by the constitution, if we're going to put a military member's liberty in jeopardy through an accusation, we can at least give them the same level of fairness we afford to every other Canadian, for example, requiring a unanimous decision by a jury to convict.

 

[FJAG]

Okay, one more time. We've already got a thread on this somewhere and this decision is nothing new. There have been several courts martial with the same result ever since the silly 2 October 2019 order issued by the CDS as a result (and I'd give my left nut to know what legal advice was offered at the time that the order was drafted/issued.) Those decisions have gone in different ways and there is currently no CMAC decision on the issue and on top of that the order appears to not yet being rescinded (although several cases had called it of no force and effect)

The problem here is quite simple: Under the Charter of Rights and Freedoms s 11(d) everyone is guaranteed trial by an independent and impartial tribunal. Ever since the Charter came out DND has been dicking around by fits and starts to determine what exactly a fair and "impartial" tribunal is. We've fine tuned it several times including curtailing the powers of COs/delegated Os at summary trials and changing the terms of service, selection, payment, etc of our military judges.

We pretty much had it all right and then we had that stupid kerfuffle with the Chief Military Judge and some bright genius thought the solution was to appoint the DVCDS to exercise the powers and jurisdiction of a commanding officer with respect to any disciplinary matter involving a military judge on the strength of the Office of the Chief Military Judge. Absolutely the wrong thing to do. In the other thread we already discussed options available the most appropriate being legislative changes which would allow a Federal or provincial superior court judge to be ad hoc'd to conduct a trial (we already use Federal and provincial Court of Appeal judges for our Court Martial Appeal Court. so no biggie)

Anyway, this is just one more in a string of decisions. For anyone who wants to read the full judgement see here.

Any discussion of military law and the CSD should be framed by the ongoing work to implement law C-77, which does a fundamental restructure of the CSD, eliminating summary trials and replacing them with summary proceedings.  "Service Infractions" as defined in Regulation will be addressed through summary proceedings, while only Service Offences as defined in the Act will give rise to court martial.

I've read through Bill C-77 and see nothing there which would cure the issue before us now. The distinction between a service offence and an infraction is helpful in protecting the summary trial system which, however, rarely is challenged because of the absence of legal input in the process and it's low level consequences.

I've long been an advocate for the military trial system primarily because of it's portability into theatres of operation which we rarely use (I know of only one CM ever happening in Afghanistan. It was much more important when we had troops full-time in Germany.

Quite frankly I'm starting to change my mind (not there all the way yet but moving that way). My biggest concern is the luxury and expense of it all. We had 62 courts martial in 2017/18 and 51 in 2018/2019. For this we maintain four judges (1xCol, 3xLCol), a court administrator and all their minions, a Director of Military Prosecutions (Col) with 27 full-time and 8 Res F minions; and a Director of Defence Counsel Services (Col) with 10 full-time and 6 Res F minions. Every time we have a CM, there is an extensive TD element involved.

The problem is that the Federal Court - Trial Division does not generally do criminal cases which is typically within the jurisdiction of the provincial courts. Criminal procedure is somewhat specialized and one would need to set up a system that 1) was capable of dealing with criminal cases in a military context and 2) have sufficient portability to allow cases to be heard anywhere within Canada and, where necessary outside as well. In addition civilian courts are pretty busy and it takes quite a while for a case to get to trial (the military justice system isn't all that speedy either - note that in 2017/18 there were 173 days of CM sitting in total for all judges combined - i.e. days when a CM actually sat - and the average number of days from when an RDP was issued until the CM was completed was 402 calendar days)

I keep saying that we need to radically reform the reserve system to make it a useable, capable capability. I feel the same way about the current military justice system. We've fine tuned it into an expensive yet ponderous machine which is slowly becoming unfit for purpose. Still, it is a lot easier to fix the present problem than to reinvent the wheel. That said the damn institution is way too expensive and over-staffed.

Who did the legal review the CDS's order anyway?

:cheers:

 

[ModlrMike]

I would defer to your legal expertise and also by reading that, to concede/assume that your idea would be constitutional, but that doesn't make it right. There seems to a few problems with our constitution so that there is yet another potential issue in there isn't surprising.

And so even if it isn't required by the constitution, if we're going to put a military member's liberty in jeopardy through an accusation, we can at least give them the same level of fairness we afford to every other Canadian, for example, requiring a unanimous decision by a jury to convict.

That's not the issue here though. The question to be settled, is can military judges be subordinate to the CDS, while simultaneously retaining judicial independence.

I say yes. Take the Medical Branch as an example. The CDS would never influence a Medical Officer's clinical opinion. None the less, medical personnel remain subject to CSD and subordinate to the chain of command for all other issues.

 

[FJAG]

And so even if it isn't required by the constitution, if we're going to put a military member's liberty in jeopardy through an accusation, we can at least give them the same level of fairness we afford to every other Canadian, for example, requiring a unanimous decision by a jury to convict.

That's a bit apples and oranges.

Very few of the tens of thousands of criminal trials held every year are before a jury. That's reserved for the most serious of crimes and by far the vast majority of civilian criminal trials proceed before a judge sitting alone.

In the court martial system it works the same way where only the most serious cases are heard by a General Court Martial of a judge and five members who must pass a unanimous finding of guilty to convict. By far the most courts martial are Standing Courts Martial consisting of a judge sitting alone.

:cheers:

 

[ballz]

That's not the issue here though. The question to be settled, is can military judges be subordinate to the CDS, while simultaneously retaining judicial independence.

I know it's not the issue from the original post, I was responding to OGB's proposed system.

That's a bit apples and oranges.

Very few of the tens of thousands of criminal trials held every year are before a jury. That's reserved for the most serious of crimes and by far the vast majority of civilian criminal trials proceed before a judge sitting alone.

In the court martial system it works the same way where only the most serious cases are heard by a General Court Martial of a judge and five members who must pass a unanimous finding of guilty to convict. By far the most courts martial are Standing Courts Martial consisting of a judge sitting alone.

:cheers:

I don't see how it's apples and oranges. Rob Semrau was tried for murder in a court martial. We have plenty of other things that can happen that would be of that level of seriousness. Under OGB's proposed system, they only would require a jury vote of 3 to 5 to convict him, not 5 of 5.

I get it what you are saying, the vast majority of criminal cases go before a judge and judge alone. That's fine, we can do that. Like I said, give the accused the same that we afford every other Canadian.

Then the very very serious ones go before jury and require a unanimous  decision. I'm saying, that's great, we should also do that. Like I said, give the accused the same that we afford every other Canadian.

And if there's a reason that 3 of 5 is good enough for the military then I'd like for someone to tell me.

And again, I'm saying in response OGB's proposed system, not the goat rodeo which is quite frankly way above my head.

 

[FJAG]

I know it's not the issue from the original post, I was responding to OGB's proposed system.

I don't see how it's apples and oranges. Rob Semrau was tried for murder in a court martial. We have plenty of other things that can happen that would be of that level of seriousness. Under OGB's proposed system, they only would require a jury vote of 3 to 5 to convict him, not 5 of 5.

I get it what you are saying, the vast majority of criminal cases go before a judge and judge alone. That's fine, we can do that. Like I said, give the accused the same that we afford every other Canadian.

Then the very very serious ones go before jury and require a unanimous  decision. I'm saying, that's great, we should also do that. Like I said, give the accused the same that we afford every other Canadian.

And if there's a reason that 3 of 5 is good enough for the military then I'd like for someone to tell me.

And again, I'm saying in response OGB's proposed system, not the goat rodeo which is quite frankly way above my head.

Sorry but OGB was wrong on that one. See NDA s 192(2).

Decision

(2) A decision of the panel in respect of a finding of guilty or not guilty, of unfitness to stand trial or of not responsible on account of mental disorder is determined by the unanimous vote of its members. A decision in respect of any other matter is determined by a majority vote.

https://laws-lois.justice.gc.ca/eng/acts/N-5/page-28.html#docCont

The majority vote provision was abolished some time ago.

:cheers:

 

[QV]

This whole problem would go away entirely if military justice was used strictly for military disciplinary matters only with criminal code offences handled in a civilian court.

Sexual assault is a crime first, disciplinary matter a distant second.

 

[SeaKingTacco]

This whole problem would go away entirely if military justice was used strictly for military disciplinary matters only with criminal code offences handled in a civilian court.

Sexual assault is a crime first, disciplinary matter a distant second.

And if a member of the CAF sexually assaults someone while on deployment in a foreign country- then what?

If a “civilian court” is to handle the matter, you now only have two choices:

A) the member walks, as the Canadian courts have no jurisdiction (generally) on crimes committed Outside Canada; or
B) you turn the member over to the local constabulary/justice system. How would you like to face a charge of rape in, say, Afghanistan,  in the Afghani legal system?  Like your chances for a fair trial? You could also face the death penalty in many places around the world...

This is why we have a system of military justice, separate, but parallel to the civilian system in Canada. Our needs are different and we need to maintain good order and discipline on a world-wide basis.

 

[blacktriangle]

And if a member of the CAF sexually assaults someone while on deployment in a foreign country- then what?

If a “civilian court” is to handle the matter, you now only have two choices:

A) the member walks, as the Canadian courts have no jurisdiction (generally) on crimes committed Outside Canada; or
B) you turn the member over to the local constabulary/justice system. How would you like to face a charge of rape in, say, Afghanistan,  in the Afghani legal system?  Like your chances for a fair trial? You could also face the death penalty in many places around the world...

This is why we have a system of military justice, separate, but parallel to the civilian system in Canada. Our needs are different and we need to maintain good order and discipline on a world-wide basis.

Fair points.

Although if Afghanistan was actively prosecuting rapes, I think the member would get off due to excessive wait times in the judicial system...there would be quite a backlog I'd imagine. 

 

[SeaKingTacco]

Fair points.

Although if Afghanistan was actively prosecuting rapes, I think the member would get off due to excessive wait times in the judicial system...there would be quite a backlog I'd imagine. 

I picked Afghanistan, strictly as an example. Feel free to insert any other country of your choice...

 

[Cloud Cover]

And if a member of the CAF sexually assaults someone while on deployment in a foreign country- then what?

If a “civilian court” is to handle the matter, you now only have two choices:

A) the member walks, as the Canadian courts have no jurisdiction (generally) on crimes committed Outside Canada; or
B) you turn the member over to the local constabulary/justice system. How would you like to face a charge of rape in, say, Afghanistan,  in the Afghani legal system?  Like your chances for a fair trial? You could also face the death penalty in many places around the world...

This is why we have a system of military justice, separate, but parallel to the civilian system in Canada. Our needs are different and we need to maintain good order and discipline on a world-wide basis.

“B” is out if the question- the members Charter Rights exist outside of the country.  “A” is a legislative change that likely could be justified in a S. 1 analysis especially when the existing alternative has repeatedly shot itself in the constitutional nuts.

Does anybody have an answer to FJAG’s query re: who provided legal advice to the CDS?