Sexual assault charges stayed as questions of independence rock military justice

[QV]

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.

When OUTCAN and in a theatre of operations, because things are different, then I'd say the CM would have special jurisdiction for any offence. 

When back in Canada, crimes committed by service members should not be routinely handled as disciplinary matters.  They should be handled as crimes by civilian courts and the service members should be treated no differently than anyone else in Canada for the same crime.

This distinction can be made.

 

[ModlrMike]

Veering back to the issue at hand... What is the desired end point for the Military Judges? How will they be able to reconcile their judicial independence, with their military service? They have to be subordinate to someone, otherwise what's the point in having uniform judges in the first place?

Regarding jurisdiction, perhaps the court could limit the matters that it hears. For example, any charge where the CCC carries the potential for imprisonment of two years or greater could be transferred to the civilian court.

In the matter of juries, there's any number of models to choose from. The primary challenge might be avoiding a poisoned jury pool given how small a service we are.

 

[SeaKingTacco]

When OUTCAN and in a theatre of operations, because things are different, then I'd say the CM would have special jurisdiction for any offence. 

When back in Canada, crimes committed by service members should not be routinely handled as disciplinary matters.  They should be handled as crimes by civilian courts and the service members should be treated no differently than anyone else in Canada for the same crime.

This distinction can be made.

You clearly don't have/haven't had much exposure to the military justice system.

In practice, serious crimes such as Sexual Assault, murder, child pornography, etc are handled downtown in provincial court unless there is a clear military nexus and both the crown prosecutor and
the military agree that it should be handled by Court Martial, instead.  My point was, once a service member is operating outside Canada, that provincial court no longer has any jurisdiction to try an offence.

So you are arguing with me about how things actually are done.

 

[QV]

You clearly don't have/haven't had much exposure to the military justice system.

In practice, serious crimes such as Sexual Assault, murder, child pornography, etc are handled downtown in provincial court unless there is a clear military nexus and both the crown prosecutor and
the military agree that it should be handled by Court Martial, instead.  My point was, once a service member is operating outside Canada, that provincial court no longer has any jurisdiction to try an offence.

So you are arguing with me about how things actually are done.

I have a rudimentary understanding of the military justice system, but it's been awhile.  What I am say is how I think it ought to be, not how it is.

To be clear, I think the whole system should be changed so that if a service member commits any crime (not just a very serious one) the case should be dealt with in the same court as any other person in Canada, therefore subject to the same rights and processes as any other person in Canada.  If that service member commits the same crime outside of Canada while in a theatre of operations then I think a CM should have the jurisdiction to hear the case.

So in other words, abolish NDA S.130(1)(a), but keep (1)(b)… maybe?

 

[Remius]

And deal with “minor” service offenses with administrative measures and exclusively with summary trials?

Not challenging.  Just asking your POV on this.

 

[QV]

And deal with “minor” service offenses with administrative measures and exclusively with summary trials?

Not challenging.  Just asking your POV on this.

Yes.  I'd want the CO to be able to deal with minor service offences immediately.  A trooper is insubordinate or late they get marched in that day, there is either a good reason or a punishment forthcoming immediately.  I think that is very important for the maintenance of good order and discipline.

 

[Remius]

Yes.  I'd want the CO to be able to deal with minor service offences immediately.  A trooper is insubordinate or late they get marched in that day, there is either a good reason or a punishment forthcoming immediately.  I think that is very important for the maintenance of good order and discipline.

So then remove the option for CM for those specific offenses that allows for that option.

 

[QV]

So then remove the option for CM for those specific offenses that allows for that option.

Sure.

 

[Jarnhamar]

So then remove the option for CM for those specific offenses that allows for that option.

Bad idea.

Seen a unit try to railroad a guy for a few imagined offenses. They basically wanted to send a message. He surprised everyone and opted for court martial (someone may have suggested it  ).  Unit tried to talk him out of it including trying to change the charges to non-electable ones and even had the padre try to talk him out of it.

Had he went with a summary trial he surely would have been found guilty and punished. Court martial found him not guilty and the chain of command from sgt to CO hammered by higher for the glaring unethical behavior.

Court martials have a benefit of airing dirty laundry that some units like to hide.

 

[Remius]

Bad idea.

Seen a unit try to railroad a guy for a few imagined offenses. They basically wanted to send a message. He surprised everyone and opted for court martial (someone may have suggested it  ).  Unit tried to talk him out of it including trying to change the charges to non-electable ones and even had the padre try to talk him out of it.

Had he went with a summary trial he surely would have been found guilty and punished. Court martial found him not guilty and the chain of command from sgt to CO hammered by higher for the glaring unethical behavior.

Court martials have a benefit of airing dirty laundry that some units like to hide.

So then send those to civilian court? 

This whole thing will be a mess. 

 

[Jarnhamar]

So then send those to civilian court? 

This whole thing will be a mess.

What would happen when civilian courts start seeing nefarious items show up on court documents like 45 seconds late for work, swearing at their boss, wasn't wearing a hat while pumping gas, or rain jacket without gloves  :Tin-Foil-Hat:

I'm not sure is those are electable off the top if my head, I don't know much about this topic. It's really interesting though.

We have sexual assault trials being stayed, pretty big deal especially in light of Op Honour. Has General Vance chimed in about all of this yet?

 

[daftandbarmy]

Bad idea.

Seen a unit try to railroad a guy for a few imagined offenses. They basically wanted to send a message. He surprised everyone and opted for court martial (someone may have suggested it  ).  Unit tried to talk him out of it including trying to change the charges to non-electable ones and even had the padre try to talk him out of it.

Had he went with a summary trial he surely would have been found guilty and punished. Court martial found him not guilty and the chain of command from sgt to CO hammered by higher for the glaring unethical behavior.

Court martials have a benefit of airing dirty laundry that some units like to hide.

That's why I'd elect trial by CM in the event I was accused of not inspecting the latrines

https://www.youtube.com/watch?v=IMoFlaEcKoM

 

[FJAG]

Veering back to the issue at hand... What is the desired end point for the Military Judges? How will they be able to reconcile their judicial independence, with their military service? They have to be subordinate to someone, otherwise what's the point in having uniform judges in the first place?
...

The short answer is that by having been serving legal officers, military judges have gained knowledge and experience in military law and the military in general which a civilian judge wouldn't have. That plays a significant role at the trial level while at the appeal level the issue is much more legal concepts that most any appellate judge could master, but even there there is one justice who is appointed Chief Justice for a number of years to provide some consistency and management to the CMAC.

That actually raised an interesting point for me. This whole thing went off the rails because the senior judge was the accused. But let's pretend the CDS goes off the rails and commits an offence. Who is he responsible to in the chain of command? The CDS, like the JAG, is a GiC appointment. The JAG reports to the Minister and is responsible to him (NDA s 9.1(3)). I've never given it any thought before all this but how would you go about disciplining the CDS or the JAG?

Not sure if this is an actual gap (like the Chief Judge) or whether I just don't know the answer.

???

 

[Jarnhamar]

Does staying court martial proceedings mean someone is essentially off the hook/not guilty?

 

[FJAG]

Does staying court martial proceedings mean someone is essentially off the hook/not guilty?

No. Technically it's more of a suspension or halting of the proceedings. The court can always lift a stay of proceedings and carry on with the trial process. In most, but not all, cases, however, it practically means the case has been terminated indefinitely and is not brought back. There is neither a finding of guilty nor not guilty.

:cheers:

 

[ModlrMike]

This whole thing went off the rails because the senior judge was the accused.

Right, but his alleged offence had nothing to do with any decisions from the bench, therefore no conflict arises. The challenge of course comes in asking who is going to hear the case, when every other judge is subordinate to the accused. That question is far more complex, and you've accurately identified the accompanying question of who hears a case against the CDS.

What I don't understand, how does being subordinate to someone for matters of discipline and leadership equal judicial interference? Again, I look to the Medical Branch as an example of how decisions regarding purely medical matters are not interfered with by the chain of command, other than by more senior or expert medical personnel.

 

[PuckChaser]

Looking at this with only a rudimentary view of the NDA and CMs (although I did stay at a Holiday Inn was an orderly at a GCM once), the issue seems to me that if military judges are subject to CSD, then they would be subject to NDA 83 "Disobedience of a lawful command" which could mean the VCDS/CDS could issue an order for certain findings for certain charges thereby removing their impartiality? If so, isn't the simple fix to make a provision in the NDA that any order to a military judge in relation to findings of guilt/sentencing is inherently unlawful which would remove that outside influence into the court?

 

[ModlrMike]

I suppose they could, but then I suppose the order could be considered illegal. It would be an extremely foolish officer who ordered a CF judge to produce a specific finding.

 

[FJAG]

What I don't understand, how does being subordinate to someone for matters of discipline and leadership equal judicial interference? Again, I look to the Medical Branch as an example of how decisions regarding purely medical matters are not interfered with by the chain of command, other than by more senior or expert medical personnel.

Being subordinate to someone does not equal "judicial interference" it equals "lack of judicial independence". There is a subtle difference. "Judicial interference" means there is an act of interference while "judicial independence" means a state of being where acts of judicial interference by the executive cannot happen. In Canada judicial independence has been described in Valente v. R as:

The Court gave three requirements for judicial independence within the meaning of section 11(d) of the Charter. There must be 1) security of tenure, 2) financial security, and 3) institutional independence in administrative matters relevant to the functioning of the judge.

Wikipedia

Basically the term of service and salary are set by parliament in statute and cannot be interfered with by the executive. The third is a more difficult concept which can be simplified into:

The Executive must not interfere with, or attempt to influence the adjudicative function of the judiciary. However, there must necessarily be reasonable management constraints. At times there may be a fine line between interference with adjudication and proper management controls.

I understand your point about medical personnel but to put it in a nutshell, the medical branch is within the chain of command and does not have any requirements for or guarantees of independence under the Charter of Rights and Freedoms. In other words the "independence" of the medical branch extends only so far as legislation subordinate to the Charter or regulations or directives or orders made by the executive permits. Those could change on a dime.

Just as an example, QR&O 34.011 provides:

34.011 – RESPONSIBILITIES OF MEDICAL OFFICERS
The senior medical officer at all levels of command is the responsible adviser to the senior officer exercising the function of command or executive authority on all matters pertaining to the health and physical efficiency of all personnel under his jurisdiction.

(C)

Note the provision as an "advisor" and note the authority for the order is (C) i.e. the CDS. I frankly haven't read through the myriad of provisions of references as to medical care but I seriously doubt if the "independence" of the medical officer is anywhere near the same level as prescribed by the Charter for judges.

:cheers:

 

[Kilted]

Could we not have judges release from the forces when they are appointed as a judge and carry on an afiliation similar to an HCol, but are still a civilian and not under the CDS, but have the expertise to perform the job.