Sexual assault charges stayed as questions of independence rock military justice

[FJAG]

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.

There are literally dozens and dozens of options open. The question is how to proceed and to what extent the issue is being worked on within JAG.

You may recall that the previous JAG started a strategic project called the Court Martial Comprehensive Review. A draft report was issued in July of 2017.

Incidentally, for any of you that want to read further into the theory and the whyfors and the whatfors  of the military justice system as it operates in Canada, this is definitely the document to give it to you. Warning it's 311 pages long even without the annexes.

Unfortunately in her 2018 report to Parliament, the JAG reported:

A draft CMCR report was provided to the Judge Advocate General in July 2017. In large part due to challenges related to methodology and a paucity of metrics and analytics, the document was of limited assistance in assessing the current court martial system. The draft internal report will therefore serve as a discussion paper. It offers perspectives that may be taken into account following receipt of the Auditor General’s report, the report of the next independent review authority along with other internal and external consultations on the military justice system. The Judge Advocate General published the draft CMCR report on 17 January 2018 and has communicated publicly her decision that the CMCR project has reached its conclusion.18

I haven't heard anything since as to what is happening and as to whether or not DJAG Mil Just has been working on a replacement this project. There certainly have been numerous developments since July 2017 that need consideration.

:cheers:

 

[dapaterson]

I suspect DJAG Mil is more concerned right now with implementing C77 - actual will and direction of government.  (Then again, a prior JAG displayed his disdain for the law by refusing to report as required by the NDA, so who knows what machinations go on in the Legal Branch - sort of like the Mafia, but with out the honour code).

 

[ModlrMike]

OK, if we're going to hold Valente v. R as the benchmark, then there's a direct comparison to the CF. There are very similar structural components between provincial court judges and military judges. Enough to say that in this context, military judges are independent IMHO..

From the same article:

"Finally, the Court turned to administrative independence. The Supreme Court noted the provincial courts already independently decided which judges should hear what cases. Those who questioned the independence of the provincial courts suggested the courts should also gain more control over their budgets, salaries and how judges are promoted. The Supreme Court replied more independence may be "highly desirable," but it was not "essential for purposes of s. 11(d)."

I don't see how there's an 11(d) violation in the current JAG construct. That being said, perhaps an amendment to the NDA that states something like:

"No officer who is not a Legal Officer may advise, instruct, or direct a Legal Officer in the conduct, adjudication, or findings of any court or tribunal. An officer acting as an expert witness before the court may provide advice without contravening this article."

 

[FJAG]

I suspect DJAG Mil is more concerned right now with implementing C77 - actual will and direction of government.  (Then again, a prior JAG displayed his disdain for the law by refusing to report as required by the NDA, so who knows what machinations go on in the Legal Branch - sort of like the Mafia, but with out the honour code).

I can always count on you. 

https://www.youtube.com/watch?v=Uy8KMEOkxyo

;D

...
I don't see how there's an 11(d) violation in the current JAG construct. That being said, perhaps an amendment to the NDA that states something like:

"No officer who is not a Legal Officer may advise, instruct, or direct a Legal Officer in the conduct, adjudication, or findings of any court or tribunal. An officer acting as an expert witness before the court may provide advice without contravening this article."

Initially the judges just declared the order "null and void", yet people keep gnawing on this bone.

As I said above, there are dozens of ways to fix this. I sometimes think that the problem is that with free legal advice and a defence bar that has each lawyer only dealing with a dozen trial cases or so a year, there is plenty of time to think up new and novel arguments to run up the flagpole to see if they wave (or more properly: throw at the wall to see if they stick). On civvy street no one has any time or resources to spend on some of the rinky dink cases that get dealt with at CMs. They get pled out very quickly. Only the most serious cases receive this level of effort.

:worms:

 

[daftandbarmy]

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

Not challenging.  Just asking your POV on this.

You mean like allowing, and strongly supporting, the CO to run their own disciplinary programs to immediately (summarily) punish a variety of transgressions by throwing the guilty b&stards in the battalion jail and, as a result, restoring faith in the military justice system while more effectively incenting everyone to behave themselves?

I’d be shocked ...

 

[QV]

You mean like allowing, and strongly supporting, the CO to run their own disciplinary programs to immediately (summarily) punish a variety of transgressions by throwing the guilty b&stards in the battalion jail and, as a result, restoring faith in the military justice system while more effectively incenting everyone to behave themselves?

I’d be shocked ...

Don't forget charge parade where the guilty b&stards are inspected, marched around, and drilled every couple of hours with all their kit by the duty Sgt over the weekend.   

 

[Kat Stevens]

Don't forget charge parade where the guilty b&stards are inspected, marched around, and drilled every couple of hours with all their kit by the duty Sgt over the weekend.   

That's called SOL/CB/EW&D/defaulters, and I wasn't aware that it's no longer a thing.

 

[FJAG]

You mean like allowing, and strongly supporting, the CO to run their own disciplinary programs to immediately (summarily) punish a variety of transgressions by throwing the guilty b&stards in the battalion jail and, as a result, restoring faith in the military justice system while more effectively incenting everyone to behave themselves?

I’d be shocked ...

There's been a very strong movement for quite some time to limit who in the mil justice system can impose penal sanctions. That has been whittled away to a CO imposing 30 or less days detention and a delegated officer 14 or less. Bill C-77 seeks to eliminate that.

I cannot see the legal arguments for that and quite frankly I know of no case where a service member has gone to the Fed Court on a habeas corpus application to have the punishment declared ultra vires. There is no limitation in section 11 of the Charter of Rights and Freedoms that mandates this. The only body of law that I know of which limits penal punishments are when we delve into administrative law where the closer you come to an administrative hearing that includes restrictions on liberty, the more the process has to become quasi judicial in nature.

IMHO, COs are vested with the power to order people into combat situations where they might very well die. To say that in our disciplinary system a CO can't be trusted to run a fair trial whereby a convicted soldier might be sent to jail just seems downright silly stupid to me. Our penchant for risk aversion has made us scared of our own shadows.

I'm not sure how long Bill C-77 has been in the works, but I've got a pretty good idea which JAG and which CDS has signed off on it.

:facepalm:

 

[dapaterson]

And the problem is solved. In a unanimous verdict, CMAC tossed the unreasonable conclusions of the military judges and told them in no uncertain terms that yes, judges are CAF members and yes, judges are subject to the Code of Service Discipline.

Court Martial Appeal Court of Canada

Court Martial Appeal Court of Canada

decisions.cmac-cacm.ca

 

[daftandbarmy]

And the problem is solved. In a unanimous verdict, CMAC tossed the unreasonable conclusions of the military judges and told them in no uncertain terms that yes, judges are CAF members and yes, judges are subject to the Code of Service Discipline.

Court Martial Appeal Court of Canada

Court Martial Appeal Court of Canada

decisions.cmac-cacm.ca

 

[ModlrMike]

This is the more important part:

An informed person, viewing the matter realistically and practically—and having thought the matter through could, in our respectful view, reach no other conclusion than military judges meet the minimum constitutional norms of impartiality and independence as required by section 11(d) of the Charter.

 

[FJAG]

 

[SeaKingTacco]

That was quite the smackdown of the legal decision making skills of our military judges.

Which I do not take as much of a victory, actually.

 

[dapaterson]

... or the legal analysis skills in the Directorate of Defence Counsel Services who pushed forward those absurd claims.

 

[SeaKingTacco]

... or the legal analysis skills in the Directorate of Defence Counsel Services who pushed forward those absurd claims.

Yeah, there is that.

Too bad that they cannot be sanctioned.

 

[FJAG]

That was quite the smackdown of the legal decision making skills of our military judges.

Which I do not take as much of a victory, actually.

I looked at counsels' names but they were all new to me.

... or the legal analysis skills in the Directorate of Defence Counsel Services who pushed forward those absurd claims.

It's the job of defence counsel to throw Hail Marys (although my guess is there was a lot of laughter in the judges' chambers when they read through the motion to adduce fresh evidence). It's the job of the trial judges to get it right. Then again that's why there are two levels of appeal courts.

Yeah, there is that.

Too bad that they cannot be sanctioned.

Believe me, a judgement worded like that is a "sanction". It's kind of like saying "Have you guys even read Genereux?"

 

[dapaterson]

Yet the lawyers will still get their annual pay incentives after wasting so much court time.

The judges will still wear their robes despite their failure to understand their role in the military. (Funny how it takes non-military judges to put nominally military judges in their place).

 

[FJAG]

Yet the lawyers will still get their annual pay incentives after wasting so much court time.

The judges will still wear their robes despite their failure to understand their role in the military. (Funny how it takes non-military judges to put nominally military judges in their place).