# Court Martial discussion (merged)



## Mike_NavRes (26 Mar 2005)

Hey guys,

Just a quick question PURELY out of curiousity of a CF hopefull.  I presume when you are sworn in you officially become part of the CF.  And that also entitles you to military law.  Now if your a reserve, where is the boundaries of being court-martialed?  To rephrase, does the RCMP or city police detain a CF reserve until MP's arrive?  Is every law enforced by the military on a reserve member?  I think Ive asked too many questions in a row, lol, but I am a little confused if a drunk in public charge all the way up to murder would be enforced by Military Police, and what would the city police do with you? 

Thank you very much for answering these uncommon questions and Im sure I would learn them when and if I am accepted, I just cant seem to find an answer anywhere else and its bugging me!!

Mike


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## Love793 (26 Mar 2005)

Generally speaking, the civil authorities will process you (unless for some reason, it would suit all party better for the Military to handle it).  As a reservist you're subject to the Code of Service discipline, basically only when being paid by DND or when on DND property (including DND leased or borrowed property).  That being said, remember the CF ID Card, is not a get out jail free card.  If something happens, when on civie street, regardless of the out come, you are obligated to let your chain of command know.  Small things have a nasty way of creeping back and biting people in the a$$.  It's best if your chain is aware of it, to head off any major problems before they arise.


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## Sapper24 (28 Mar 2005)

Wait until your basic, you'll learn all about court Martials and such, everything you need to know about them.


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## Michael Dorosh (28 Mar 2005)

When I was arrested by the civilian police once upon a time, the local military police were informed as a matter of courtesy, and I was questioned seperately by members of the SIU on a related matter.  The two organizations do work closely with each other, which is in all our best interests I think.


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## someguyincanada (11 Jun 2005)

I remember there was a location on the din or the jag website where you could look at the court martial transcripts. Would anyone have the link, I had it for the longest time and Ive lost it. 

Much Appreciated

Jay


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## Scoobie Newbie (11 Jun 2005)

http://www.forces.gc.ca/jag/main_e.asp


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## KevinB (11 Jun 2005)

I think it is a closed site - I can get on the transcripts at work - but not at home -- I think it is DIN only (or I am dumb and cant find it tonight)


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## KevinB (11 Jun 2005)

I double checked at work - I found it here.

I will get CFL or another to check a link from home and we will confirm wherever or nit is tis DWAN/DIN only...


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## someguyincanada (11 Jun 2005)

CFL thats the site that i have been looking over with no success


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## someguyincanada (12 Jun 2005)

I checked the site over and there was no transcripts on it :'(


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## KevinB (12 Jun 2005)

http://cmj.mil.ca/transcripts_e.asp

It is DWAN/DIN specific. 

 I was browsing thru 3 Boland courtmartials  :-[  (not all mine damn it) today (mine was a mear 38 pages - Mark's second was over 400...)


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## Scoobie Newbie (12 Jun 2005)

Does it make for good reading?


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## Cloud Cover (12 Jun 2005)

Should be able to order a transcript of any court proceeding in the country, as long as there is not a child protection order in place. They are expensive.

Are you looking for evidentiary and testimonial transcript or the written decision?


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## KevinB (12 Jun 2005)

Interesting...

 The DIN was up and down today - I could never get back to my bookmarks to send the site - or post it - so I wrote it down and took it home - sure enough it requires DIN access - although, I believe you can make a freedom of info request...

 I have ALWAYS been an ends justified the means sort of guy.


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## Cloud Cover (12 Jun 2005)

KevinB said:
			
		

> I have ALWAYS been an ends justified the means sort of guy.



I'm shocked.

Anyway, as long as the "ends" is above board, the means are incidental. Potentially illegal, but incidental.


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## KevinB (12 Jun 2005)

CFL said:
			
		

> Does it make for good reading?



Wait for my book  

 I'm either going to call it "Warts and All: Pretending for Freedom" or "Voting from the Rooftops:The ONLY way to Effect change in the CF"


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## Scoobie Newbie (12 Jun 2005)

I like the first title.


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## Infanteer (12 Jun 2005)

CFL said:
			
		

> Does it make for good reading?





			
				KevinB said:
			
		

> Wait for my book
> 
> I'm either going to call it "Warts and All: Pretending for Freedom" or "Voting from the Rooftops:The ONLY way to Effect change in the CF"





			
				CFL said:
			
		

> I like the first title.





You two should go on the road with your act; I'm pissing myself laughing as I chase you two around these forums....


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## Britney Spears (14 Jun 2005)

And you didn't post the picture?


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## Navalsnpr (30 Jun 2005)

This URL will give you some info on past and upcoming CM's:

Courts Martial & Appeals


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## Scoobie Newbie (30 Jun 2005)

Hey Infanteer I'm the Gingerbread man.


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## Infanteer (1 Jul 2005)

Looking at the list of Court Martials that concluded - why are the penalties so light?

Possesion of Child Porn - 10 days

Theft of Explosive Substances - 30 days

Trafficking - 14 days + $1000 fine

Are these guys getting dinged civvie side as well?


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## S McKee (1 Jul 2005)

Infanteer said:
			
		

> Looking at the list of Court Martials that concluded - why are the penalties so light?
> 
> Possesion of Child Porn - 10 days
> 
> ...



No, and the sentences that are handed down at a courts martial are proportional to what a civilian would get for a similar offence. One must remember a couple of things when examining the military justice system:  one, many of the persons that are tried are first time offenders (always a mitigating factor in sentencing); and two, many of the incidents (not all) that are heard by the military courts wouldn't even make it to trial in the civilian court system.


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## Scoobie Newbie (1 Jul 2005)

Let me get this straight.  Your saying that if I were a civy and got caught trafficking I would on average receive 14 days in jail and a fine?  Seems light in either system.


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## Kat Stevens (1 Jul 2005)

The term "first offence" has always cracked me up.  Chances are it's his/her first arrest, probably the 9th or 10th offence.

Kat


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## S McKee (1 Jul 2005)

CFL said:
			
		

> Let me get this straight.   Your saying that if I were a civy and got caught trafficking I would on average receive 14 days in jail and a fine?   Seems light in either system.



Technically if you passed a joint to another person you trafficked in drugs (it is commonly refered to as "social trafficking" (which doesn't go to court in the civilian system). Now I don't know the circumstances surrounding this particular incident however I have seen individuals in CF charged for trafficking when they have done just that, and I suspect this may have been the case here. It seems to be a catch all charge when a number of soldiers cop to smoking or using drugs with each other. However just to set your mind at ease there is a  person serving significant DB time, 65 days (a matter of public record) for trafficking in a small amount of drugs.   Plus you have to keep in mind that CF members are usually released once they are convicted of these sorts of charges, which the military courts view as an added punishment.


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## Scoobie Newbie (1 Jul 2005)

yeah I guess.


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## Scoobie Newbie (1 Jul 2005)

Does getting convicted for drugs in the CF get you a "record" that is accessible to civies (ie like civies would get).


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## S McKee (1 Jul 2005)

CFL said:
			
		

> Does getting convicted for drugs in the CF get you a "record" that is accessible to civies (ie like civies would get).



In years past no, if you committed a serious offence within the military i.e. assault, sexual assault, drugs, it was buried with your CF records. Within the last 2-3 years however new changes in legislation compel the military police to use the Identifications of Criminals Act and the DNA Identification Act to pass this information along to the Canadian Police Information Centre (CPIC) for certain offences. So if you do a nasty, your fingerprints, photograph and for sexual offences, your blood (for a  DNA profile) are submitted and are accessible to the civilian police, in short you have a criminal  record.


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## Bruce Monkhouse (1 Jul 2005)

Jumper,
This here "In years past no, if you committed a serious offence within the military i.e. assault, sexual assault, drugs, it was buried with your CF records." doesn't jive with what happened when I got out.
I tried to get a pardon for a  civilian charge at 16 but was thus informed by the pardons and local police that ANY charge under NDA was there for minimum 5 years.
Trust me, its one of my the piss-offs about the time I served, lets see late once in the last 3 years of his job, ......almost all jobs/ positions= great employee........military= 5 years before pardon.[ and the 200 dollar fine, of course]


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## S McKee (1 Jul 2005)

I should add a caveat if you were charged by the Military Police and your case went through the civilian courts you would be subject to the Identification  of Criminals act. You mentioned you were 16 when you tried to get a pardon, so I'm assumig this offence didn't happen while you were in the military. Secondly  if you were charged under the NDA (under the old system)  how would the civilian police get your conduct sheet? It's attached to your pers file and they have no access it, therefore they wouldn't know what you were charged for.. I'm afraid somebody was leading you down the garden path.


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## Bruce Monkhouse (1 Jul 2005)

No, simple "awol"  for less than 30 minute- type CO's punishment, still have all the letters and responses that my father wrote to our local MP on my behalf.    No luck....


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## S McKee (1 Jul 2005)

Since AWOL is not a Criminal Code Offence I don't understand why you would need a pardon?


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## Bruce Monkhouse (1 Jul 2005)

Whoops, confusion..the criminal charge was for Theft over 200 when I was 16. When I planned on getting out 11 years later I wanted to apply for some jobs that would have required a criminal free past so I tried for a pardon but was informed it would take 2 more years  BECAUSE of the military charge 3 years ago.. [and they had the records]


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## S McKee (5 Jul 2005)

A good link for information on pardons is http://laws.justice.gc.ca/en/c-47/text.html  the Criminal Records Act.


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## Cloud Cover (5 Jul 2005)

Bruce Monkhouse said:
			
		

> Whoops, confusion..the criminal charge was for Theft over 200 when I was 16. When I planned on getting out 11 years later I wanted to apply for some jobs that would have required a criminal free past so I tried for a pardon but was informed it would take 2 more years  BECAUSE of the military charge 3 years ago.. [and they had the records]



LOL: you did 11 years for theft over 200? WTF did you steal, a gold brick?


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## Island Ryhno (5 Jul 2005)

LOL Whiskey, here all this time I thought Bruce was a screw, not The screw  ;D


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## Scoobie Newbie (5 Jul 2005)

I think he meant getting out of the army.


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## Cloud Cover (6 Jul 2005)

I know.


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## Bruce Monkhouse (7 Jul 2005)

Quote from Whiskey 601,
_LOL: you did 11 years for theft over 200? WTF did you steal, a gold brick?_ 

....wow, thats why they called me "goldbrick" 
Na, I did the first 3 years for theft over 200, the rest I did for the same reason as Holmoka....


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## pappy (7 Jul 2005)

If my long term memory serves me, I believe it was Former Commandant of the Marine Corps Chesty Puller that was quoted saying:
 "You ain't a Marine till you've been to the Brig and caught the Clap"

I'm sure he wasn't thinking in that specific order of events....

Most lifers had a stack of "Page Elevens" that would replace the offending one in your PRB when changing duty stations....   :

I guess I'm only half, I tend to pick my dates better....


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## TCBF (7 Jul 2005)

I was too drunk to catch the clap.  We seemed to have a lot of crab infestations in Pet.  Of course, by the time this came to life, buddy was in the field, and the Medics wanted to treat everone in his call sign.  Kinda funny when the CO's driver started to scratch...

Tom


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## pappy (7 Jul 2005)

;D or the CO himself  haha

I was in Korea for some winter fun and games along the DMZ back in 1979, hummm you know they still shoot at us... ops another story, well the young ladies of well the oldest profession, aka Bush Bunnies, well being rather full of energy and more then willing to work hard for thier money... some times took to thier work to the extreme....

One young PFC in my section was well I'd say trying to wear it out....  as the rumor of the dreaded "black clap" and other unpleaentness floating around, this young Marine was concerned about some rather painful feelings comeing from his lower half.  We sent him off to see the Corpsman, well I was in the BAS shooting the turds with HM3 Doc Joker our Corpsman, warming up in the tent, being some 40 below outside... well in comes PFC Pomes walking slowly and painfully....  "Step into my Office and drop trou PFC" Doc Joker advised

being behind a screen he had no clue anyone else was there....  he discribed his perdickerment to the Corpsman and Doc Joker said with the most concrened medical voice:
"Holly S#$% Pomes, you know what you got!, my god you may ever be allowed to leave Korea..."  Pomes to say the least was speachless, stunned at the idea of a life time of pain and discomfort....   

Doc walks back to where I was and whispered in my ear with a boyish smile....  "watch this..."  out comes some rubbing acohol and some cotton ballls....  pouring a liberal amount of acohol into a lil stainless steel bowl, Doc walks back in and begins to tell Pomes the evils of his ways and the fact that this may be the end of life as he knows it...

Doc finishes with "I'll  fix an IV and some Penicillan, first wash it off and I'll be right back..."  Pomes, well not being the brightest bulb in the pack, did just that...

Just as Doc walked back to join me, Pomes began his task....  Out comes a blood curdling screm I'm sure was heard in North Korea....

By now Doc is laughing his ass off and steps back to see Pomes and informes him all he had was some friction burns.... and to try a little lube or foreplay next time...  

Doc Joker didn't just get that nickname for nothing.... cruel but effective.... and well from our prespective enteraining as well....

 ;D


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## The Bread Guy (7 Jun 2008)

Quietly announced same day as new CDS....

*Department of National Defence Introduces Amendments to The National Defence Act*
CF news release NR-08.037,  6 Jun 08
News release - backgrounder

OTTAWA - The Honourable Peter Gordon MacKay, Minister of National Defence and Minister of the Atlantic Canada Opportunities Agency today introduced legislation in the House of Commons to amend the National Defence Act (NDA) following the recent decision of the Court Martial Appeal Court of Canada (CMAC) in R. v. Trépanier.

“This Bill will more closely align procedures for the selection of mode of trial by court martial and court martial decision-making with the approach in the civilian criminal justice system, while preserving the attributes essential to satisfy the unique needs of the military justice system,” said Minister MacKay.  “It will ensure that the court martial process continues to function in a manner in which Canadians can have trust and confidence.”

On April 24, 2008, the CMAC struck down the provisions of the NDA authorizing the Director of Military Prosecutions to select the type of court martial that will try an accused and requiring the Court Martial Administrator to convene the selected type of court martial.  The Court ruled that they violated the accused person’s constitutional right to full answer and defence.  The decision has removed the authority to convene courts martial, an essential step in bringing a matter to trial.

The legislation introduced today will result in the selection of the mode of trial being governed by operation of law.  The number of types of court martial will be reduced from four to two, and the accused will have the ability to choose the type of trial in circumstances similar to those set out in the Criminal Code.

“The changes will bring the needed clarity, certainty and stability to the military justice system,” said Brigadier-General Kenneth Watkin, Q.C., Judge Advocate General.

-30-


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## Occam (2 Feb 2011)

I won't post the individual's details here, but there's an upcoming CM, and the general message announcing the CM states this:

A. NDA SECTION 129 - ALTERNATIVE TO THE SECOND CHARGE - AN OFFENCE 
PUNISHABLE UNDER SECTION 129 OF THE NATIONAL DEFENCE ACT, THAT IS TO 
SAY, CONTRARY TO ARTICLE 26.02 OF THE QUEENS REGULATIONS AND ORDERS, 
FAILED TO INFORM HIS COMMANDING OFFICER THAT HIS COMMON-LAW PARTNER 
HAD OBTAINED EMPLOYMENT IN HALIFAX NOVA SCOTIA

B. NDA SECTION 129 - ALTERNATIVE TO THE FIRST CHARGE - IN THAT HE 
FAILED OT INFORM HIS COMMANDING OFFICER THAT HIS COMMON-LAW SPOUSE 
OBTAINED EMPLOYMENT

C. NDA SECTION 125 - WILFULLY MADE A FALSE STATEMENT IN A DOCUMENT 
SIGNED BY HIM THAT WAS REQUIRED FOR AN OFFICAL PURPOSE

The charge sheet actually reads:

Charge 1 (alternate to charge 2): S. 129(2)(b) NDA, neglect to the prejudice of good order and discipline.
Charge 2 (alternate to charge 1): S. 129(1) NDA, neglect to the prejudice of good order and discipline.
Charge 3: S. 125(a) NDA, wilfully made a false statement in a document signed by him that was required for an official purpose.

I've racked my brain trying to think of an occasion where I would be obligated to inform my CO that my spouse had obtained employment, but I'm not coming up with anything.  Anyone else think of a reason?


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## Michael OLeary (2 Feb 2011)

Could entitlements for Parental Leave be a possibility?

http://www.cmp-cpm.forces.gc.ca/dgcb-dgras/pub/cbi-dra/205-eng.asp



> 205.461(10) (Limitation) PATA is not payable to a member under paragraph (7) if the two-week waiting period is served by:
> 
> 1. a person in receipt of maternity benefits; or
> 2. another person who is also in receipt of parental benefits in relation to the same child.


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## mwhy321 (2 Feb 2011)

Could be several things
-Claiming IR or LTA benefits if member claims spouse resided elsewhere.
-Claiming Parental benefits

Obviously has to do with some sort of fraud


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## dapaterson (2 Feb 2011)

Court Martials are a matter of public record.  I suspect you are referring to R v MCpl Smith

http://www.jmc-cmj.forces.gc.ca/ccm-cmc/fca-cs/doc/smith2.pdf


The QR&O referred to in the first charge reads:



> 26.02 – DOMESTIC EVENTS AFFECTING PENSION, ANNUITY, PAY, ALLOWANCES, BENEFITS OR EXPENSES
> 
> (1) An officer or non-commissioned member shall notify their commanding officer in writing of changes in their family status and of the occurrence of other domestic events that might affect the member’s pension, annuity, pay, allowances, benefits or expenses and the commanding officer shall report to National Defence Headquarters any circumstances that might bring the member’s eligibility into doubt. (1 September 2001)
> 
> ...


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## Occam (2 Feb 2011)

Michael O'Leary said:
			
		

> Could entitlements for Parental Leave be a possibility?



Hmmm...yes, that could definitely be it, although the circumstances would be interesting to hear.  I suppose the charges would fit if he claimed his wife had already served the waiting period when in fact she had not.



			
				Oh to be purple said:
			
		

> -Claiming IR or LTA benefits if member claims spouse resided elsewhere.



Can't be that, as that would be related to spouse's _residence_ and not employment status, right?

As for the QR&O, I'm still drawing a blank when it comes to a reason when I would be obligated to notify the CO in writing that my spouse had found employment.  I've never once informed my CO in writing or otherwise that my wife either found a job or got laid off/quit - although as long as I'm having my taxes deducted at source as single, it doesn't really affect my pension, annuity, pay, allowances, benefits or expenses.  Or does it?

I'm looking forward to seeing the transcript of the decision on this one!


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## medicineman (2 Feb 2011)

I'm thinking that person charged is living/employed in one place, stated that their common law spouse was living with them on a stat dec and now turns out that they are not...straight fraud by the sounds of it.  Anyother thoughts?

MM


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## armyvern (2 Feb 2011)

Occam said:
			
		

> ...
> 
> Can't be that, as that would be related to spouse's _residence_ and not employment status, right?
> ...



You'll see by the link to the Court Martials and Appeals site that his CM is taking place in Halifax. From the original post we get the notice that he failed to inform his CoC that his spouse *had obtained employment in Halifax*.

If he was claiming IR saying she was living elsewhere, how come she can travel to work in the same town as he works in but he can't? If her employment is full-time, then why the requirement for seperate residences? Or, is she even travelling from the location of their principal residence ... or staying with him in his IR accommodations (ie they are now residing in the same residence even though it may not be the principal residence) ...

Either of the above would also fall within the scope of the quoted ref requiring notification to the CoC as they impact eligibility/entitlement to benefits.


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## clericalchronicals (3 Feb 2011)

The only benefit which is derived from a spouse's employment would be Imposed Restriction, which is now Temporary Relocation/Separation Allowance (TR/SA for shorthand).  The CBI indicates that a member is entitled for a number of reasons, with approval from their respective CM.  One of the foremost reasons: Due to spousal employment in the previous geographical location.

So, easily enough said, sounds like the guy started TR/SA citing his spouse's employment in the former posting location, and when she did finally get employment in Halifax, the member continued to claim the TR/SA.  Dangerous game to be honest.  Guess he lost.

It's one of those benefits that DCBA keeps their eye on, ALL the time.


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## The Bread Guy (7 Oct 2011)

A bump adding the very latest legislation introduced in the House of Commons:


> The Honourable Peter MacKay, Minister of National Defence, introduced two bills in the House of Commons today which propose significant amendments to the National Defence Act. The legislation reflects recommendations made by a former Chief Justice of the Supreme Court of Canada, as well as the Standing Senate Committee on Legal and Constitutional Affairs and the Court Martial Appeal Court of Canada (CMAC).
> 
> (....)
> 
> ...



More in Backgrounders

Amendments to the National Defence Act Security of Tenure of Military Judges Act
Amendments to the National Defence Act Strengthening Military Justice in the Defence of Canada Act


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## dapaterson (7 Oct 2011)

Military judges decided that it wasn't plausible for themselves to return to service as military lawyers, and cooked up the "Oh no!  I have no security of tenure" claim.

Spurious logic to secure themselves large paycheques and the resultant large pensions.


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## armyvern (3 May 2012)

Bzzliteyr said:
			
		

> Confirmed.  I was busted down to Cpl last year from Sgt.  It hurt.  But they couldn't hold me down for long!!





Good job.

I see that the March CM results of my P2 from theatre are now posted up too. Never let anyone tell you to:  "Elect the CM; they'll never Court Martial you on 129s". Absolutely false.


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## PuckChaser (4 May 2012)

ArmyVern said:
			
		

> I see that the March CM results of my P2 from theatre are now posted up too. Never let anyone tell you to:  "Elect the CM; they'll never Court Martial you on 129s". Absolutely false.



And the powers of punishment are far greater with a CM. Much better to own up to screwing up at a SM, unless you're not guilty of course.


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## Bzzliteyr (4 May 2012)

PuckChaser said:
			
		

> And the powers of punishment are far greater with a CM. Much better to own up to screwing up at a SM, unless you're not guilty of course.



Ha, and I completely think the opposite.  I was busted down to Cpl on a summary trial.  Had I opted for the Court Martial (ooh, cringe in fear of those words, NOT) then the powers of punishment would have been far greater (life in prison) BUT the fact that it is a completely JUST process (neutral as in they use the facts and no prior chatting in the mess the night before the trial) would have resulted in a far lesser punishment.

In a CM, the judge is neutral and only looks at fact, the lawyers are neutral and look out for the best interests of their clients and the lawyers don't only fight for the sentencing decision, they debate and decide the punishment as well, using precedences, career history, etc.

Unless the charge is silly and you were caught completely red handed, opt for the CM.  (but even then, the lawyers do their jobs and can find technicalities, obscure laws and other examples to help you win).

Just my 2 cents.


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## Remius (4 May 2012)

Ah barracks room lawyering...


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## Eye In The Sky (4 May 2012)

Bzzliteyr said:
			
		

> Ha, and I completely think the opposite.  I was busted down to Cpl on a summary trial.  Had I opted for the Court Martial (ooh, cringe in fear of those words, NOT) then the powers of punishment would have been far greater (life in prison) BUT the fact that it is a completely JUST process (neutral as in they use the facts and no prior chatting in the mess the night before the trial) would have resulted in a far lesser punishment.
> 
> In a CM, the judge is neutral and only looks at fact, the lawyers are neutral and look out for the best interests of their clients and the lawyers don't only fight for the sentencing decision, they debate and decide the punishment as well, using precedences, career history, etc.
> 
> ...



Also, the rules of evidence are significantly different in a ST and CM; something admissable at ST may not be at a CM.


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## Bzzliteyr (4 May 2012)

Crantor said:
			
		

> Ah barracks room lawyering...



Not barracks room lawyering at all.. fact.  I was slated for a CM last year when the charges were dropped due to a technicality my lawyer found.  My regiment fixed it and relaid the charges a weeka later.  I was invited into a an office and chatted with.  I subsequently chose ST for the next round of fun and got hit, hard.  Demotion to Cpl from Sgt is not only a financial hit but a HUGE psycholigcal one as well.  

After my lawyer from the CM heard about the decision, I was encouraged to put in a "request for review of decision and sentence" in regards to the ST.  My lawyer suggested that had the case gone to CM, the sentence would have been much less than that and if we looked at precedence it may have come out at around $1000ish dollars.  Instead, The review was found in my favour, I was returned my rank on parade and given a $2500 fine with reprimand.

No barrack room lawyering here.


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## Remius (4 May 2012)

Bzzliteyr said:
			
		

> Unless the charge is silly and you were caught completely red handed, opt for the CM.  (but even then, the lawyers do their jobs and can find technicalities, obscure laws and other examples to help you win).
> 
> Just my 2 cents.



This statement right here.  That is barracks room lawyering, not fact.

 Your particular case is fact.  Everyone's is different.


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## Bzzliteyr (4 May 2012)

Crantor said:
			
		

> This statement right here.  That is barracks room lawyering, not fact.
> 
> Your particular case is fact.  Everyone's is different.



Okay, you got me there.  

However as a leader that has been down that route the first thing I recommend to a solider is to call the 1-800 legal counsel hotline, then I tell them of my experience and how it went with the same caveat you just wrote: individual experiences may vary.

I just hate the fear we instill in everyone that a court martial is the scariest thing out there when it is actually the most just trial you can be a part of.

*edited to add final argument.


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## dogger1936 (4 May 2012)

Bzzliteyr said:
			
		

> Okay, you got me there.
> 
> However as a leader that has been down that route the first thing I recommend to a solider is to call the 1-800 legal counsel hotline, then I tell them of my experience and how it went with the same caveat you just wrote: individual experiences may vary.
> 
> ...



I fully agree. When I was threatened with a trumped up charge that was not valid in the least that 1 800 number was a godsend. Having issued cautions and done investigations many many times. I knew they messed up the process totally and that being denied legal aide and not getting read a caution was a little.....messed up to say the least.  Within 5 minutes of talking to a surprisingly excited high ranking officer; my mind was set at ease that I had nothing to worry about.


If I messed up in a black and white area I would go summary and take the punishment as expected and deserved. However after being on the fun side of a trumped up attempt to charge I would go court marshal in a second.
Congrats on getting the rank back.


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## armyvern (4 May 2012)

Bzzliteyr said:
			
		

> Ha, and I completely think the opposite.  I was busted down to Cpl on a summary trial.  Had I opted for the Court Martial (ooh, cringe in fear of those words, NOT) then the powers of punishment would have been far greater (life in prison) BUT the fact that it is a completely JUST process (neutral as in they use the facts and no prior chatting in the mess the night before the trial) would have resulted in a far lesser punishment.
> 
> In a CM, the judge is neutral and only looks at fact, the lawyers are neutral and look out for the best interests of their clients and the lawyers don't only fight for the sentencing decision, they debate and decide the punishment as well, using precedences, career history, etc.
> 
> ...



Well, to be fair, yours was very "special" and some more _off_ factors were involved --- ergo the favourable follow-ups to your particular process. Not quite "normal" was yours.

I've done more than a few DIs; I never discuss with my OC, CO or higher. They are aware that I am doing one - that's it. I make them aware when I submit to the JAG reps. Their first hint of details and facts surrounding the DI occurs when they see that file back from the JAG. The particular PO authority reads and decides how/if they wish to proceed. I haven't had one, to date, ask me what I'd like them to do, what I think the outcome should be, what I think a fine or punishment should be upon their determining someone guilty etc. 

Once they have that file, my job is simply to march X in to be RDPd (if the PO decides to proceed), march X back in for election, march X back in for CM or ST; and, I haven't had a single one expect anything different of me. I did my job. They did theirs.


----------



## TN2IC (4 May 2012)

What's this 1-800 number for references?

PM me if needed.


----------



## aesop081 (4 May 2012)

Stinky Finger said:
			
		

> What's this 1-800 number for references?
> 
> PM me if needed.



http://www.forces.gc.ca/jag/ddcs-dsad/index-eng.asp



> Duty telephone numbers
> 
> For legal advice on your right to counsel on arrest
> or interrogation by the police: 1-613-292-2137
> ...


----------



## garb811 (5 May 2012)

Point to note, and it is probably self evident to most, these numbers are only for use if there is a military nexus to the investigation/arrest etc.  If you get arrested by the civilian police, call a civie lawyer or use the civilian legal aid number.


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## The Bread Guy (7 May 2012)

Just breaking out the Court Martial discussion into Military Admin.

*Milnet.ca Staff*


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## catalyst (29 Sep 2013)

I've tried googling and searching but I can't seem to understand - 

What is the court martial appeal process (how long does it take, the process, steps)

What does it mean when a decision is "reserved" (for a hearing that just happened).


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## JesseWZ (29 Sep 2013)

I am sure FJAG will be along shortly regarding your first question.
As for your second question, typically when a judge reserves a decision, it means he has not made a decision yet and has set aside a time to deliver the decision at a future date. Often times there are a number of complex legal issues a judge must weigh out (case law, arguments by both, evidence, etc) in order to render a "decision" or a verdict. Because of that, often the judge cannot just pull one out of the air, and thus a decision gets reserved for a future date. 

In this case, google is your friend. 
http://en.wikipedia.org/wiki/Reserved_decision


----------



## FJAG (29 Sep 2013)

Hi.

JesseWZ hit the nail on the head re a "reserved decision" so I'll just deal with the first question.

The process for appeals is set out in the National Defence Act as part of the Code of Service Discipline at Division 9 starting at section 228. You'll find that here: http://laws-lois.justice.gc.ca/eng/acts/n-5/page-103.html#h-152

The Court Martial Appeal Court of Canada has a website. The site provides information on the court and its past decisions. One very important element set out there are the CMAC's Rules which you can find here: http://www.cmac-cacm.ca/business/rules/rules_full_e.shtml

In short, the CMAC is a court which has both a designated Chief Justice and an administrator and staff and is co-located with the Federal Court in Ottawa. Besides the CJ there are judges designated from the Federal Court of Appeal and the Courts of Appeal of the various provinces to sit as appeal judges. A panel is generally of three judges although individual judges can hear motions or applications.

The procedures can vary depending on what needs to be addressed and a full explanation would be lengthy and complex, but in its simplest terms and appeal generally runs like this.

1.


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## catalyst (29 Sep 2013)

JesseWZ said:
			
		

> I am sure FJAG will be along shortly regarding your first question.
> As for your second question, typically when a judge reserves a decision, it means he has not made a decision yet and has set aside a time to deliver the decision at a future date. Often times there are a number of complex legal issues a judge must weigh out (case law, arguments by both, evidence, etc) in order to render a "decision" or a verdict. Because of that, often the judge cannot just pull one out of the air, and thus a decision gets reserved for a future date.
> 
> In this case, google is your friend.
> http://en.wikipedia.org/wiki/Reserved_decision



D'oh - not sure how my google fu missed that. Thanks Jesse and FJag. Makes more sense now


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## FJAG (29 Sep 2013)

I note my above post ends with the number 1. When I typed it last night there was a lot more to it. When you first saw my post was there more or did it stop there right from the beginning????

If it was cut off before, I'll try to retype what I had said.

 :stars:


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## FJAG (29 Sep 2013)

Meh. My guess is it got cut off so here goes again.

The basic process works like this:

1.  The person who feels that the court martial made an error (either as to conviction or as to sentence) will initiate the process by filing a Notice of Appeal which sets out a very brief statement of the error(s) that the court is alleged to have committed.

2.  All other parties to the proceedings are called Respondents. Once served with a NofA, the respondents who intend to contest the appeal will file a Notice of Appearance. In addition if a respondent also wishes to challenge the court below, that respondent will also file a cross-appeal.

3.  Once served by a NofA and/or cross-appeal the administrator of the Office of the Chief Military Judge (one of whose judges will have conducted the court martial) will file a Memorandum of Particulars and subsequently the Record of the court martial and an Appeal Book. These include, amongst other things, the original charge sheet, any evidence filed in the trial, a transcript of the proceedings, disposition and orders made.

4.  The appellant shall file a Memorandum of Fact and Law (also called Factum) which includes a detailed argument as to how the court allegedly erred including direct references to the transcript, evidence filed and any relevant case law.

5.  Each respondent shall file a Memorandum of Fact and Law as to their detailed arguments etc.

6.  Where a respondent has filed a cross-appeal and set out arguments in support of that, the Appellant may file a Memorandum in Reply.

7.  The appellant will file a Request for Hearing and the CMAC Chief Justice shall assign judges to hear the appeal and the administrator shall set a date for hearing.

In general for a run-of-the-mill appeal all of the above takes about nine months.

The hearing of an appeal will generally be a half day or a full day at best. Except in very rare circumstances, there is no new evidence presented before the court. The hearing consists solely of oral presentations by the parties lawyers as to the merits of their case and questions from the bench to the lawyers to seek clarifications.

The following my occur:

1.  If the appeal is a weak one the court may choose to render a decision dismissing the appeal after hearing only the appellant. (the sweetest words a respondent's lawyer can hear at an appeal is "We don't need to hear from you Major Bloggins")

2.  Again, where the appeal is weak, the court may hear from the respondent and at the end just adjourn for a brief time and then come back and dismiss the appeal from the bench with very short oral reasons.

3.  Where the appeal is more complex and/or the court wishes to give detailed reasons for its decisions, the court will "reserve" and will issue a written decision and reasons. Typically this takes one two two months but could be longer.

The above is a typical process. Matters can be much more involved where there are applications for leave to appeal, motions, applications for bail pending appeal, a need to involve the Attorney General's office where there are constitutional issues etc.

Once you've reviewed this as well as the reference material I'd be happy to answer any further questions you might have.

 :cheers:


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## Mediman14 (1 Mar 2015)

Hi there,
 Can anyone answer this question, as I am unable to find a answer to this in any Pubs. Does Court Martials usually have time frames for charging anyone? According to one of Jag Policies, it basically says that Mbrs have the right to go through the process exponentially. But it doesn't say any given time lines.


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## PuckChaser (1 Mar 2015)

Does anyone have a giant spotlight on it that says "FJAG"?  ;D


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## Tibbson (1 Mar 2015)

I'm sure FJAG will have a more concise answer but I believe there is no formal time frame set down in any legislation.  The accused can make application to have the matter thrown out if they feel it has gone on too long but then then the prosecution gets to explain why the matter has taken the time it has.  The Judge then decides if the accused's application has merit after considering the reasons and referring to prior case law.


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## Mediman14 (1 Mar 2015)

What about if something was supposedly said in 2011? T o me, I would think it is a waste of time and energy


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## Ludoc (1 Mar 2015)

From Forces.gc.ca's CSD FAQs: 





> Limitation periods
> 
> A limitation period is a specified period of time within which a charge must be laid. In general, the limitation period begins the instant conduct occurs that may be subject to a charge. If a charge is not laid within the applicable limitation period, the authority to try the accused for the offence charged is lost. Generally there are no limitation periods under the CSD.
> 
> ...


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## FJAG (1 Mar 2015)

I'm not sure what you mean by "Mbrs have the right to go through the process exponentially". If you use the true meaning of the term then there is no such rule or right. I'd be interested in knowing where you got that from.

To get to your question, however, Luduc has given you a pretty good answer. There are various offences that a person in the military may be charged with. ss 73 to 129 of the NDA list the charges which we most typically consider to be "military offences". A charge under any of these is not subject to any limitation period. Starting at s 286 of the NDA are a number of offences which are triable by civilian courts and these are, as specified, to limitation periods of 6 months from the date that the offence occurred.

s 130 and 132 of the NDA allow the military to try a member for any offence which is an offence under 1) any other Federal Law or 2) any other foreign law if the offence occurred in that foreign country. Many of those laws do have various limitation periods and if the specific offence being charged has such a limitation then it applies equally to a service member at either a summary trial or a court martial. (see s 69(2) of the NDA)

The most important law incorporated by s130 is the Criminal Code of Canada. The criminal code provides for three classes of offences: indictable offences, (the most serious); summary conviction, (the least serious); and hybrid (the ones in between). Where an offence is an indictable one the matter goes generally to a superior court to trial and there is no limitation period. Where an offence is identified as a summary conviction one, it generally goes to a lower level provincial court or magistrate for trial and there is a six month limitation period. Where the offence is identified in the CCC as a hybrid one then the prosecutor can choose whether the matter proceeds as an indictable or a summary conviction process. Until such time that the prosecutor chooses there is no time limit but once the prosecutor chooses summary conviction then the 6 month time limit applies. Note that one should always look very closely at each particular offence to see if it provides for a limitation period other than the standard. 

You've probably noticed that this is the usual legal response of -- "it all depends". That's because it does and what you've gotten here is the short and not fully complete answer. If you want to share what offence you are talking about then I might be able to give you a more accurate answer. If you do not want to do that on this board then feel free to pm me.

 :cheers:


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## Mediman14 (1 Mar 2015)

Thank you for your Reply.
    My apologies as I couldn't remember the exact words,  here is what I found in the Jag's Policies.

"Parliament has also recognized the importance of the military justice system dealing with breaches of discipline promptly through the enactment of section 162 of the National Defence Act, which states:

"Charges under the Code of Service Discipline shall be dealt with as expeditiously as the circumstances permit".

6. In addition to the institutional requirements for expeditious justice, the Canadian Charter of Rights and Freedoms (Charter) imposes constitutional obligations on the military justice system to dispose of charges in a reasonable time. Section 11 (b) clearly states that:

"Any person charged with an offence has the right … (b) to be tried within a reasonable time".


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## PuckChaser (1 Mar 2015)

These are probably all excellent questions and points raised to your appointed defense lawyer, who I'm sure is smart enough to see if a delay in the charges would be grounds to have them dropped. I'm sure you don't want to prejudice your case here, so I'd highly recommend you PM FJAG with any specific questions and refrain from posting any further details.


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## Remius (1 Mar 2015)

Would it not depend on when one actually charged?  

If you are only being charged now for something that happened back then vs being charged back then and still not have had your day in court?


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## FJAG (1 Mar 2015)

Crantor said:
			
		

> Would it not depend on when one actually charged?
> 
> If you are only being charged now for something that happened back then vs being charged back then and still not have had your day in court?



You are absolutely correct. Mediman14 has misunderstood (and in his latest post has misquoted) the provision of s162 which requires that "charges laid under the . . . " which means that only once a charge has been laid does s162 kick in. S11(b) of the Charter also relates only to post-charge delay. What Mediman14 is discussing right now is called "pre-charge delay". 

There has always been a distinction in law since the Supreme Court of Canada case of R v Askov in 1990 where the court threw out a case of "post-charge delay" which was delayed within the court system for three years from date of charge to trial. The length of permissible delay is flexible and case law allows for longer delays for more complex cases etc but it also clearly recognizes that police investigation and prosecutor deliberation prior to a charge being laid can go on for much longer timelines indeed.

 :cheers:


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## DAA (8 Jan 2016)

Off the feeds.....

http://news.nationalpost.com/news/canada/former-canadian-soldier-faces-court-martial-over-alleged-rude-comment-despite-honourable-discharge


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## ModlrMike (8 Jan 2016)

I saw that yesterday. I found some of the comments quite funny, but sadly uninformed - particularly coming from self professed former members.

Insubordination is and offense and release does not protect you from prosecution. Regardless of the degree of insult, this is a case that must be prosecuted. To do otherwise sets the precedent for escape from much more serious crimes.


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## Jarnhamar (8 Jan 2016)

Doesn't insubordination need to happen in an operational environment or have an operational impact of some sort?


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## brihard (8 Jan 2016)

I confess bafflement at the delay. I know that within civilian law a minor offense (which, let's be fair, this is) would never see prosecution this long after. Even if the crown chose to proceed by indictment, odds fo surviving a Charter challenge rooted in R. v. Askov would be bloody slim. There is a compelling public interest in the service of justice being timely. I'm not sure that the juice is worth the squeeze in pursuing something this long after the fact, as I worry about the message it sends about it being acceptable to leaders to deag out/delay due process.

That said, I certainly do not have all the facts of the case. There may well be good reasons for it to have dragged as it has. But I'm skeptical.


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## ModlrMike (8 Jan 2016)

I agree that R. v Askov is an important consideration, and probably his strongest argument. That being said, the article makes note of his release taking place three months after his CM was postponed. It should not then be a surprise to him that he is still liable for trial.

I admit that I don't have the reference to hand, but I seem to recall that there is no right of release when one is facing prosecution. Someone correct me if I'm wrong.


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## Loachman (8 Jan 2016)

It was at a Mess Dinner, and he called a junior Officer "'a pussy' for not ordering another drink", according to the article.

I'd probably call the junior Officer "a pussy" for over-reacting and send him a blank Hurt Feelings Report to be filled out.

Mess Dinners these days, at least at 2 Service Battalion, must be very un-fun activities compared to those at 427 Squadron in the early eighties, from one of which I was casevacked to the Base Hospital at around 0300 by ambulance. It took me over a week to find out how I got the minor head wound that required a couple of stitches. The doctor who came in to release me later in the morning was my next-door neighbour. "H_____", said he, coming through the door. "I heard that there was a Pilot from 427 Squadron in here. If I'd known that it was you, I'd have stitched your head to the pillow". If the apparent 2 Service Battalion standard was in effect back then, almost every Captain and Lieutenant at that dinner would have faced multiple charges.

This seems extremely petty and silly.


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## Steve_D (8 Jan 2016)

The line that got me was "the military’s *so-called* code of service discipline" as if it is just some kind of joke.


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## Fishbone Jones (8 Jan 2016)

This is stupid to the extreme. If it was that important, they should have cancelled his release until it was settled.

If anyone should be charged, it should be whoever is pursuing this.


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## Happy Guy (8 Jan 2016)

Doesn't matter which unit it is.  The CO makes the call on whether to pursue the matter or not.

I do not know the facts but I might offer an observation - what about personal responsibility for not drinking alcohol while on medication?


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## Kat Stevens (8 Jan 2016)

It just blows my mind that this is the sort of thing the military justice system wants to expend time and resources on.  Why was this guy allowed to release in the first place if there was a proceeding over his head?  Did they not know that they would be prcoceeding with it at some point?  Three years is a ludicrous delay for something that would have been a summary trial, $200 fine and 2 weeks CB for one of us lesser mortals.  I hope the junior officer involved feels like a proper twat for being so sensitive.  A quick comeback along the lines of "go fuck your hat" should have been justice enough.


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## Maxadia (8 Jan 2016)

This is the type of thing I would expect to see pursued in an over the top, easily offended culture where political correctness has spun out of control.  How did this junior officer ever make it through BMQ without trying to have his entire teaching staff charged?

I'm not saying that this should be ignored.  But certainly, someone could have pulled the guy aside to have him fix his mental beret.  And certainly a senior NCO could have also instructed the junior officer on developing a backbone.

Court martial, though?  Pulling witnesses from across the country? Three years later?

Yes - this is why our army is _ _ _ _ _ _ up.


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## medicineman (8 Jan 2016)

Strikes me that there is more than meets the eye here...for the area commander to decide to proceed with a CM, either the CO concocted a really elaborate story, there was some pokey chest involved or the Brigade Commander is a total (add your own denigration - I don't want to get charged too  : ).  Either way, I don't think we've heard the whole story.  It does seem odd that they're pursuing this now, however, the dude released after the original trial was postponed.  As a WO, I would HOPE he'd realize that they might just bring him back to sort it all out - I seem to recall something during my release proceeding from the Reg Force that things I did might come back later to bite me in the backside even after I left.  That's the NDA.  I did testify at a CM of a mentally challenged individual that released prior to the trial - they'd been out about 6-8 months before they appeared in court.  Sounds like they need to hire more trial lawyers to get things done in a timelier manner?

As for doltus erectus folks in the comment section, well, I would have to say I could count the combined IQ points of most on my pinky fingernail.

Time to get the popcorn out and watch the trial I guess...

MM


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## Old Sweat (8 Jan 2016)

There has to be more to this than we have seen in the published accounts. It does seem to me that as a superior when faced with a subordinate who is intoxicated and belligerent or obnoxious, usually the best course of action is to find a way to protect the individual from himself or herself. 

Sometimes things don't work out and maybe the incident got too visible and too ugly. 

Mods, we are going in circles. This thread could use a time out or even a lock.


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## ballz (8 Jan 2016)

RDJP said:
			
		

> Yes - this is why our army is _ _ _ _ _ _ up.



Or perhaps the Charlie net sort out SNCOs like they are supposed to. The best way to "protect" this WO would be for his CSM to do his job and hammer this kind of stuff, and these cases probably wouldn't arise in the first place. While I personally would not have gone down the same route, (I don't know the circumstances the junior officer found themselves in either) I feel no sympathy for a WO that speaks this way to a superior and has to eat it as a result. If a Private spoke this way to a MCpl, we'd hang him. I thought with higher ranks came higher expectations and more accountability?

While I understand where everyone is coming from thinking the junior officer is just being "weak," they very likely weren't even asked about whether or not they wanted charges pursued. Perhaps the dumb WO yelled it in front of everyone and forced someone's hand. There is a lot of "what if's," on this, so I also agree with medicineman that there is probably more to this than meets the eye.



			
				Jarnhamar said:
			
		

> Doesn't insubordination need to happen in an operational environment or have an operational impact of some sort?



No.

"85. Every person who uses threatening or insulting language to, or behaves with contempt toward, a superior officer is guilty of an offence and on conviction is liable to dismissal with disgrace from Her Majesty's service or to less punishment."


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## Jarnhamar (8 Jan 2016)

ballz said:
			
		

> No.
> 
> "85. Every person who uses threatening or insulting language to, or behaves with contempt toward, a superior officer is guilty of an offence and on conviction is liable to dismissal with disgrace from Her Majesty's service or to less punishment."



Thanks.
I had a friend who was charged opted for court martial. One of the charges against him was insubordination but I recall him saying that charge was dropped and changed to something else. The jag guy he spoke with or legal defense (can't remember) said that insubordination needs to have something to do with operations.  That sounded strange to me though, I'll ask him about it.

When I looked up insubordination this caught my eye.


> (H) Mere abusive or violent language used by, or contemptuous behaviour on the part of, a drunken person should not be charged under section 85 of the National Defence Act. As a general rule, the interests of discipline would be served by laying a charge under section 97 of the National Defence Act (see article 103.30 - Drunkenness) or section 120 of the National Defence Act (see article 103.60 - Conduct to the Prejudice of Good Order and Discipline).


I wounder if someone in that situation would be able to argue the alcohol mixed with medication could cause a state of simulated drunkeness or something.


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## ballz (8 Jan 2016)

Jarnhamar said:
			
		

> Thanks.
> I had a friend who was charged opted for court martial. One of the charges against him was insubordination but I recall him saying that charge was dropped and changed to something else. The jag guy he spoke with or legal defense (can't remember) said that insubordination needs to have something to do with operations.  That sounded strange to me though, I'll ask him about it.



Maybe some weird nuances that a JAG might know of that was specific to his case. I've seen a Cpl charged with insubordination for some remarks he made to a Sgt who wasn't keeping up while on PT and received I think 7 days CB or something. See my remarks about feeling no sympathy for this WO.



			
				Jarnhamar said:
			
		

> When I looked up insubordination this caught my eye.I wounder if someone in that situation would be able to argue the alcohol mixed with medication could cause a state of simulated drunkeness or something.



That's an interesting one, especially considering Mr. Pear is charged with both insubordination and drunkenness. Looks like if he gets off with one, he's getting the other one. Anywho, that's enough barrack room lawyering for me I think...


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## dapaterson (8 Jan 2016)

For those interested, the Chief Military Judge page for the trial is at: http://decisia.jmc-cmj.forces.gc.ca/jmc-cmj/cm/en/item/99675/index.do



			
				medicineman said:
			
		

> Sounds like they need to hire more trial lawyers to get things done in a timelier manner?



I seem to recall reading on this site someone positing that there are already too many lawyers doing courts martial in the CAF; because their case load is so low (especially compared to civilian lawyers) they have too much time for esoteric and outrageous motions, resulting in delays.


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## kratz (8 Jan 2016)

Jarnhamar said:
			
		

> Doesn't insubordination need to happen in an operational environment or have an operational impact of some sort?



Interestingly no.
At a mess dinner, in uniform, identifiable as a CAF member, 
all meet the bare minimum to act appropriately or be subject to the law.


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## PuckChaser (8 Jan 2016)

We're been pulling people back after retirement for years, why is this guy special? In fact, a lot pull-pin once they know they're going to a CM, hoping to avoid punishment/the whole process.


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## brihard (8 Jan 2016)

The CO of 2 Svc at the time was a no-nonsense type. I know her well. That the matter resulted in charges is utterly unsurprising, and not inappropriate. But that it has resurfaced after this length of timing IS odd to me. Not sure if it's any relevance, but 2 Svc is under new command now and has been since this past summer. I don't know if the new CO would have any impact on such a matter whatsoever.


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## garb811 (8 Jan 2016)

If the delays were the fault of the RMP, getting the case dismissed would be easy peasy.  Since he has gone to the court of public opinion, it would appear to me the delays have likely been at the request of the defense...


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## Underway (8 Jan 2016)

I was at a unit when a member on his way out (2 weeks left I think), sent a very insubordinate email to the CO and BCC'd his DivO.  His release was delayed 6 months until the situation was dealt with.  Long story short, keep your crabbing to yourself until you are fully out of uniform.


----------



## George Wallace (8 Jan 2016)

Old Sweat said:
			
		

> There has to be more to this than we have seen in the published accounts. It does seem to me that as a superior when faced with a subordinate who is intoxicated and belligerent or obnoxious, usually the best course of action is to find a way to protect the individual from himself or herself.
> 
> Sometimes things don't work out and maybe the incident got too visible and too ugly.



I have to agree.  There is likely a lot more to this than what Mr Drapeau and client have told the media.  I just don't find it ethical that Mr Drapeau is playing this out in the media to make it a matter of "Trial of Public Opinion".  He must be grasping at straws to be trying to have it be a media circus of Public Opinion vs facts in Court.  Add to all that, the throwing in of the "I have PDST Catchall" as a defence and this is really going to prove interesting once it gets into the CM stage.


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## ModlrMike (8 Jan 2016)

Looking at the CM site, drunkenness is the primary charge, with two charges of insubordination as the secondary charges. So while the article might be factually true, it's not necessarily the correct or the whole truth. I also notice that the original trial was convened on 26 Jan 15, which might reduce the speedy trial argument.

I agree with others, there's clearly more to the story here than a simple insubordination whilst drunk. It will be interesting to read the transcript if the CM continues.

I must state however that I'm dismayed that he trotted out the "PTSD drugs made me do it" defence.


----------



## chrisf (8 Jan 2016)

If it wasn't important enough to delay his release, it's probably not important enough to waste resources on now, unless we're missing some extremely drastic details.

It's seems like an awful lot of money, time, and public good will to expend on something, with extremely little benefit. I realize discipline and order are important, but other then spooking a few people on the edge of retirement, what's to be gained?


----------



## PuckChaser (8 Jan 2016)

Not a Sig Op said:
			
		

> If it wasn't important enough to delay his release, it's probably not important enough to waste resources on now, unless we're missing some extremely drastic details.



If the JAG is backed up with cases, its likely he wouldn't get a trial for a year or 2. Look at all the decisions from last year, most are over 1 year from the date of the offense. We also don't know if he was already releasing, or pulled pin because he was told he was being charged.

I look at it this way, you get a public intoxication charge while on vacation in BC. You go home to Ontario, does that mean you don't have to worry about the consequences of your actions because you're not where you were charged? No, you still have to deal with it.

If he's not guilty, he should be happy to prove it in court. Crying to the CBC about getting "screwed by the man" is not the way to go about it. We're paying this lawyers and judges on salary anyway, I'd rather have them very busy doing things.


----------



## Loachman (8 Jan 2016)

PuckChaser said:
			
		

> We're paying this lawyers and judges on salary anyway, I'd rather have them very busy doing things.



Here - drink this six-pack while I discuss your mother's morals.


----------



## chrisf (8 Jan 2016)

PuckChaser said:
			
		

> I look at it this way, you get a public intoxication charge while on vacation in BC. You go home to Ontario, does that mean you don't have to worry about the consequences of your actions because you're not where you were charged? No, you still have to deal with it.



Not if you don't go back to BC.

I know Canadian Forces members love to see their own get eaten, and I have no doubt the individual in this case is doing his best to game the system to get out of a charge he knows he's likely guilty of... 

But...

Like it or not, public good will is a commodity, and anyone who couldn't see a charge against a civilian being dragged out in public is blind.

As with anything else you do in uniform, apply the Globe and Mail test... ask "What will this look like on the front page of a national news paper?".

We know exactly what those headlines look like now.

So now in addition to man hours and money, you've also expended a whole lot of that public good will.

At some point, someone really needs to ask "Is this worth it?"

It's too late for that now, so march the guilty bastard in... but keep in mind, even if you get a conviction, and you put the details out in public, you're not going to win back any of that public good will by saying you proved he was drunk and said rude things.


----------



## chrisf (8 Jan 2016)

Oh, and as an added bonus, if you're making the Globe and Mail test on something, for any legal matters, you might as well add "What will Michael Drapeau say about this?" because that's invariably who they're going to go to for a sound bite.


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## PuckChaser (8 Jan 2016)

10 minutes from now, nobody is going to remember this dude's name, let alone that the CAF charged him for being rude. The CAF community, however, will remember we let someone get away with something because he cried to CBC and pulled pin to avoid justice.

Maybe he's not guilty, but the way to prove that is in actual court, not the court of public opinion. As a Warrant Officer, he should know that.


----------



## chrisf (8 Jan 2016)

It all goes into the collective public consciousness, even if they don't remember his name, there will be a vague recollection of it.

If the CF is not willing to consider public image, then I wish you the best of luck with the next 8 years of liberal government.


----------



## Scoobie Newbie (8 Jan 2016)

PuckChaser said:
			
		

> 10 minutes from now, nobody is going to remember this dude's name, let alone that the CAF charged him for being rude. The CAF community, however, will remember we let someone get away with something because he cried to CBC and pulled pin to avoid justice.
> 
> Maybe he's not guilty, but the way to prove that is in actual court, not the court of public opinion. As a Warrant Officer, he should know that.


What I'll remember is it took 3 yrs to bring a guy to trial for something he should have got extras for instead of worrying about bigger fish.


----------



## PuckChaser (8 Jan 2016)

Sheep Dog AT said:
			
		

> What I'll remember is it took 3 yrs to bring a guy to trial for something he should have got extras for instead of worrying about bigger fish.



We have his recollection of the events, that's it. We'll get the whole story once the decision is rendered. I strongly doubt the A/JAG is going to refer to GCM for something so minor. We also have no idea why there was a delay, perhaps he requested it? There's so much speculation to just say "the system is screwing this guy". Everyone's also glossing over the fact that he's a Warrant Officer, and can/should be held to a higher standard.

Extras is real nice to say, but there's so many situations that they wouldn't be practical/possible.


----------



## Scoobie Newbie (8 Jan 2016)

PuckChaser said:
			
		

> We have his recollection of the events, that's it. We'll get the whole story once the decision is rendered. I strongly doubt the A/JAG is going to refer to GCM for something so minor. We also have no idea why there was a delay, perhaps he requested it? There's so much speculation to just say "the system is screwing this guy". Everyone's also glossing over the fact that he's a Warrant Officer, and can/should be held to a higher standard.
> 
> Extras is real nice to say, but there's so many situations that they wouldn't be practical/possible.


Agreed. I should have said given what's reported.


----------



## George Wallace (8 Jan 2016)

Not a Sig Op said:
			
		

> Not if you don't go back to BC.



I don't know who is giving you legal advice, but you should fire them.


----------



## jollyjacktar (8 Jan 2016)

Underway said:
			
		

> I was at a unit when a member on his way out (2 weeks left I think), sent a very insubordinate email to the CO and BCC'd his DivO.  His release was delayed 6 months until the situation was dealt with.  Long story short, keep your crabbing to yourself until you are fully out of uniform.



Extra 6 months pay and pension...


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## George Wallace (8 Jan 2016)

jollyjacktar said:
			
		

> Extra 6 months pay and pension...



Would that not depend of whether he beat the Charge or not?


----------



## Scoobs (9 Jan 2016)

As the primary charge is drunkenness, you see where the main focus is.  As well, I'm not sure if you know this, but you don't have to actually be drunk to have this charge brought against you.  All that needs to happen is alcohol + an incident = possible charge and most likely a conviction.  I was the Assisting Officer of a young fellow a few years back and he was found guilty of drunkenness even though he wasn't drunk (it didn't help that he knocked his room mate out over a video game).

I agree with many of the posters here, there may be more to this story here and that is what the CM will determine.  

My personal thoughts:

1. This took way too long to bring about, whether or not the former member was getting out or trying to avoid prosecution.  No matter the circumstances, this delay, although legal, does not shine a good light on the whole system/process.

2. A WO should be held to a higher standard, after all, he was a Senior NCO who was supposed to be setting the example.  Once again, let's pass judgement on why he was charged and why this wasn't handled in a different way after we see how the CM goes, along with the evidence presented.

3. The purpose of the Code of Service Discipline is not to satisfy public perception, like some posters have commented about.  The purpose is to maintain good order and discipline.  Although I'm not a fan of how long this has taken, it is well within the C of C's purvey to proceed with charges against this former member (people have been calling him a civilian.  He's a former member.  This is a very important distinction.)

4. The WO mentioning that the alcohol was a bad mix with his medication.  Ya think?

5. I'd like to offer more of my opinion, but I need to suck back and follow my own advice, let's wait to see what evidence is shown at the CM and then pass judgement.

As an aside, while in KAF almost 9 years ago now I was walking through the tent area and noticed a Cpl without his shirt on (I knew who he was and previously had no issues with him).  That was no biggie, but the fact that he literally had his pants at his thighs with other countries' troops walking by (including male and female personnel) was not acceptable to me.  I politely told him that I understood about the shirt, but that he needed to pull his pants up.  I even explained to him why (due to the other personnel walking by), even though I definitely did not need to.  It would have ended there, but he chose to give a snide comment back (I don't remember exactly what it was, but it was most definitely insubordinate).  He did pull his pants up, but I had to have a conversation with his unit's Adjudant.  His unit CSM wanted to charge him, but I was okay with an apology.  I'm sure that he got extras or some other sort of discipline, but to me that was the end of it.  Remember, this was for a Cpl, not a WO.

My two cents....


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## medicineman (9 Jan 2016)

ModlrMike said:
			
		

> I must state however that I'm dismayed that he trotted out the "PTSD drugs made me do it" defence.



I always love that one, especially since there is a little label on many of those bottles that specifically tell you to avoid drinking...

I agree with the fact that this dude is a now retired WO, so should be held to higher standard.  I also seem to recall that when I was a WO, there was a little leeway in how I was able to conduct myself to actual officers, due to the relationships we were required to work in.  I've (and I'm sure many other of us here as well have) come so close to that fine line on many occasions that needed photo replay to make sure I stayed onside - I/we usually picked the time and place to have that little convo to ensure decorum was maintained.  This dude MAY very well have stepped over that line.  

Someone (Ballz IIRC) mentioned his CSM/RSM should have muckled onto him and got him a cab out of there...I remember being off the BOS list for my last 6 months in my last Battalion because of someone that was playing pokey chest, drunk, in the mess with the RSM.  He kindly and calmly escorted this fellow to a cab and was going to ignore it...until the guy got out the other side and came back at him.  Whose to say this didn't happen and that's why it went up?  I had a platoon Sgt many moons ago that grabbed our female DCO's butt in our field mess (yeah, that long ago when were allowed to drink in bivouac) not once, but twice in the same evening.  Never seen someone posted so fast in my life - was banished to RSS land without any hope of promotion ever again nor another real job.  Once people have drunk enough to have the common sense safety catch go from "S" to "A", they honestly are going to get what they deserve unfortunately, be it a five knuckle hangover, torn ACL (saw that happen to someone that went full retard), a couple torn ligaments in their ankle (your's truly) resulting in much time on light duty, not to mention loss of respect of some of my betters, to someone getting charged for playing pokey chest with the wrong person in front of the wrong people.  

We can speculate all we like, but, until the new trial date in March, all we can do is sit back, wait and when the time comes -  op: and watch.

MM


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## PuckChaser (9 Jan 2016)

If his excuse is PTSD drugs, and the prescription from a MO says no alcohol, is the issue now not drunkenness, but disobeying a lawful command from the MO? If he's going to make excuses, there's ways to turn them back on him.


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## Jarnhamar (9 Jan 2016)

It's a bit of a catch 22 when we have a culture of have another drink, pussy.

I'd rather spend 24 hours on duty than go to a mess function for a couple hours. They're like mine fields now.


----------



## jollyjacktar (9 Jan 2016)

I have yet to attend one and I intend to keep it that way.


----------



## Scoobie Newbie (9 Jan 2016)

Please share how you accomplished this feat


----------



## jollyjacktar (9 Jan 2016)

Just lucky, I guess.


----------



## Fishbone Jones (9 Jan 2016)

Whatever happened to "What happens in the Mess, stays in the Mess"?


----------



## SeaKingTacco (9 Jan 2016)

That has never been true, especially in mixed rank mess functions.


----------



## Kat Stevens (9 Jan 2016)

I was voluntold to serve at plenty of "grown up" mess dinners in both of those upper messes, and the bahaviour I witnessed at all of them would have got us lesser mortals a month of CB, or worse.  Mess dinner shenanigans gets covered up all the time, I think someone was out for this guy.


----------



## Pusser (9 Jan 2016)

Jarnhamar said:
			
		

> *It's a bit of a catch 22 when we have a culture of have another drink, ******.
> 
> I'd rather spend 24 hours on duty than go to a mess function for a couple hours. They're like mine fields now.



That culture is long dead.  No one is forced to drink and anyone who cannot have a drink without turning into an a**hole, should refrain from having one.  Pretty simple that.  Every mess dinner for the last 20 years has offered a temperate option.

As for avoiding mess functions for being minefields, that's your loss.  I seek them out and even organize them when I can (it's a surefire way to get the kind I like).  You're paying for the mess so you might as well enjoy it.  If you don't like what your mess is doing with your money, then get involved and help steer things.

More to the point of this thread, however, is that I too suspect that there is much more to this than what we've seen in the National Post.  Keep in mind that although calling an officer names may seem relatively minor, depending on the circumstances, the implications can indeed be much more serious.  A warrant officer who is openly contemptuous of his/her superiors with impunity can cause serious damage to an entire unit.  If others look to their "superior" and see him/her disrespecting an officer, what's to stop them from doing the same?  No CO can afford to have his/her junior officers (who help the CO do his job) disrespected by the senior NCOs and warrant officers any more than he/she can afford to have the senior NCOs and warrant officers disrespected by his/her officers.  Disrespect and insubordination can be infectious and disastrous.

I always get a kick out of how Michel Drapeau is always described as an "expert" in military law.  Do folks realize that he never served as a legal officer in the CF?  He only became a lawyer after he left.


----------



## jollyjacktar (9 Jan 2016)

By all means, if you want to be a mess dinner maven then do dig in and enjoy.  They are, however, not for everyone, persons such as myself would rather never have the joy of attending in our lives.  I understand that mess membership is mandatory but participation in the activities should be at the member's option.


----------



## X Royal (9 Jan 2016)

George Wallace said:
			
		

> I don't know who is giving you legal advice, but you should fire them.


Care to explain this George?
If a provincial offense of public intoxication is laid and the charged offender does not respond to the charge and is out of province, they will never issue a arrest warrant outside of the province the charge is laid in.
Many offenders with far more serious charges get a buy due to the fact it would cost more to return the offender than the charges will produce fines. Warrants for arrest generally include a return distance of "X" km's, province wide, country wide or even world wide.
If a current serving member the CF just may stick their nose in though.


----------



## Scoobie Newbie (9 Jan 2016)

Kat Stevens said:
			
		

> I was voluntold to serve at plenty of "grown up" mess dinners in both of those upper messes, and the bahaviour I witnessed at all of them would have got us lesser mortals a month of CB, or worse.  Mess dinner shenanigans gets covered up all the time, I think someone was out for this guy.


At our officers mess two members got caught fucking that weren't married to each other. Nothing but Keyser Soze shit happened after that.


----------



## jollyjacktar (9 Jan 2016)

What?  They started shooting everyone and burned the place down?


----------



## Blackadder1916 (9 Jan 2016)

Pusser said:
			
		

> More to the point of this thread, however, is that I too suspect that there is much more to this than what we've seen in the National Post.  Keep in mind that although calling an officer names may seem relatively minor, depending on the circumstances, the implications can indeed be much more serious.  A warrant officer who is openly contemptuous of his/her superiors with impunity can cause serious damage to an entire unit.  If others look to their "superior" and see him/her disrespecting an officer, what's to stop them from doing the same?  No CO can afford to have his/her junior officers (who help the CO do his job) disrespected by the senior NCOs and warrant officers any more than he/she can afford to have the senior NCOs and warrant officers disrespected by his/her officers.  Disrespect and insubordination can be infectious and disastrous.



Exactly.  Baah! https://www.youtube.com/watch?v=QeF1JO7Ki8E


----------



## Scoobie Newbie (9 Jan 2016)

No but that wouldn't surprise me. We all know the shit that happens in the officers mess would never fly at any other. By Keyser Soze I mean "puff then the situation was gone"


----------



## MJP (9 Jan 2016)

Pusser said:
			
		

> More to the point of this thread, however, is that I too suspect that there is much more to this than what we've seen in the National Post.  Keep in mind that although calling an officer names may seem relatively minor, depending on the circumstances, the implications can indeed be much more serious.  A warrant officer who is openly contemptuous of his/her superiors with impunity can cause serious damage to an entire unit.  If others look to their "superior" and see him/her disrespecting an officer, what's to stop them from doing the same?  No CO can afford to have his/her junior officers (who help the CO do his job) disrespected by the senior NCOs and warrant officers any more than he/she can afford to have the senior NCOs and warrant officers disrespected by his/her officers.  Disrespect and insubordination can be infectious and disastrous.



Aye,

I talked to my friends at 2 Svc who were at the dinner and it is more than some thin skinned officer making waves.  As with every news story on the CF there is one side, the other and the truth.


----------



## Retired AF Guy (9 Jan 2016)

X Royal said:
			
		

> Care to explain this George?
> If a provincial offense of public intoxication is laid and the charged offender does not respond to the charge and is out of province, they will never issue a arrest warrant outside of the province the charge is laid in.
> Many offenders with far more serious charges get a buy due to the fact it would cost more to return the offender than the charges will produce fines. Warrants for arrest generally include a return distance of "X" km's, province wide, country wide or even world wide.
> If a current serving member the CF just may stick their nose in though.



Many provinces (and some states) have agreements between them that deal with this kind of stuff. You get a ticket in B.C. and the information is sent to your home provinces DMV. When it comes to renew your plate or drivers license, the DMV will refuse to renew until you settle the outstanding fine.


----------



## X Royal (9 Jan 2016)

And none of this applies to a Provincial Liquor License Act offenses.
And even for the Highway Traffic Act offenses it general only applies to neighboring jurisdictions.


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## PuckChaser (9 Jan 2016)

From the Ontario Attorney General:



> What happens if I ignore my ticket?
> 
> If you do not respond to the ticket within 15 days, you may be convicted of the offence you are charged with.
> If you are convicted you would be required to pay the set fine, court costs and, if it is not a parking ticket, the victim fine surcharge by the due date.
> ...



So no, you can't just blow off a ticket and it goes away.


----------



## Fishbone Jones (10 Jan 2016)

OK, we're going to wait until the situation clarifies itself a bit. If there is something earth shattering or worthy of update, contact a Mod to have it included.

---Staff---


----------



## The Bread Guy (18 Mar 2016)

Bumped with the latest:


> A former army warrant officer, accused of mouthing a schoolyard taunt to a junior officer at an official dinner, was acquitted of disciplinary charges before a court martial on Thursday, but has been left holding thousands of dollars in private legal bills.
> 
> Wade Pear, a veteran of multiple ground tours in Afghanistan, Bosnia and Cyprus, was tried before the military tribunal, even though he’s been a civilian for two-and-a-half years.
> 
> ...


No decision posted yet on the CM site's page for the case yet.


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## The Bread Guy (22 Jul 2016)

From the Info-machine:


> The Judge Advocate General (JAG), Major-General Blaise Cathcart, has launched a proactive comprehensive review of the Canadian Armed Forces’ (CAF) court martial system.
> 
> Identified as one of the JAG’s initiatives in the coming year, the comprehensive review is outlined in the recently released 2015 - 2016 Annual Report of the Judge Advocate General and is to be completed by July 14, 2017.
> 
> ...


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## tomahawk6 (22 Jul 2016)

The JAG is an expert on military law but he needs an official study ? Pretty absurd.


----------



## The Bread Guy (22 Jul 2016)

tomahawk6 said:
			
		

> The JAG is an expert on military law but he needs an official study ? Pretty absurd.


So he should just wing it off the top of his head?


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## FJAG (23 Jul 2016)

tomahawk6 said:
			
		

> The JAG is an expert on military law but he needs an official study ? Pretty absurd.



That comment is a complete miss.

The fact of the matter is that almost every country has it's own military justice system many of which vary widely.

Our own system is steeped in the processes from the British system from over a hundred years ago and which has evolved over time. Our two systems now deviate quite widely.  Over the last thirty years or so our amendments to the NDA (and especially the courts martial system) have been small incremental changes many (if not most) of which have been in reactive responses to successful Supreme Court challenges and the Somalia Inquiry.

Personally I think it's a great idea to do a comprehensive review of the system. In particular--and IMHO--the current system is overstaffed yet rampant with delay from charge to trial.

I think you fundamentally misunderstand the role of the JAG. 

While he is the most senior military legal officer and the advisor on military law to the CDS and the MND, he has the responsibility of supervising a number of fields on military law, specifically military justice, operational law and administrative law. While the JAG is clearly very knowledgeable in military justice, the the true subject matter experts in military justice at any given time are the Director of Military Prosecutions (re prosecution matters), the Director of Defence Counsel Services (re defence counsel matters) and the Deputy Judge Advocate General/Military Justice (re military justice in total. All three are Colonels) and their respective staffs. In  addition there is the Chief Military Judge and the Chief Justice of the Court Martial Appeal Court, a fairly robust group of civilian lawyers who practice in the field of military justice and former Supreme Court Justices Brian Dickson and Antonio Lamer (who were involved in reviewing various military justice (and military police) matters some twenty and ten years ago in the post-Somalia era.)

I think your misunderstanding comes from the fact that where the article says "a review" you took it to be "a study". A review serves an entirely different purpose from that of a study. A review looks at the existing situation and then, by way of input from all the proper stakeholders and by comparisons to other existing systems, etc, delivers recommendations to the JAG which, if accepted by him, will then be drafted into to the appropriate legislation and regulations for implementation. DJAG/MJ has been assigned as the Director General of the CM Review Team and the team's terms of reference can be found here: http://www.forces.gc.ca/en/about-reports-pubs-military-law/court-martial-comprehensive-review.page

Again, IMHO, this review is not only a great idea but is long overdue. Rather than being reactive to outside stimuli, it will be proactive in shaping an improved system for the future. Having the DJAG/MJ run the review is entirely appropriate and in keeping with how military justice initiatives are undertaken within the Office of the JAG.

:cheers:


----------



## tomahawk6 (23 Jul 2016)

See that didnt require a review costing hundreds of thousands of dollars and wasting hundreds of man hours in a system that you say is inefficient. Perhaps comparing civilian charging practices to the military one might be the way to go here ?




> Personally I think it's a great idea to do a comprehensive review of the system. In particular--and IMHO--the current system is overstaffed yet rampant with delay from charge to trial.



http://www.forces.gc.ca/en/about-policies-standards-queens-regulations-orders-vol-02/index.page


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## FJAG (23 Jul 2016)

tomahawk6 said:
			
		

> See that didnt require a review costing hundreds of thousands of dollars and wasting hundreds of man hours in a system that you say is inefficient. Perhaps comparing civilian charging practices to the military one might be the way to go here ?



Take my word for it; the issues involved are much more complex than you are giving them credit for. 

I have no idea what the review will cost but the key members involved are already on the government payroll and the work they are doing is entirely within their usual scope of work so this is not an incremental cost.

I presume that there will be some costs involved with the consultations but generally the stakeholders usually involved on these types of issues provide their input at no cost.

Is there a cost benefit to this type of review? Who knows. Is there a cost benefit on anything that the military does? I would expect a more efficient system might have some cost benefits in addition to the general benefits received from a better system.

The general civilian charging system does not work in a process that needs to be mobile and work both at home and abroad in an operational context. That said the military justice system has already incorporated many of civilian justice system elements and practices and I'm quite sure would benefit from others. That's what the review is there to look into.

 :cheers:


----------



## tomahawk6 (23 Jul 2016)

Very good points FJAG thanks for putting up with my viewpoint.Our system in the US military is more decentralized and at least intially can move pretty quickly.The conviction rate is 90% so I expect thats similar to the CF.Appeals move up the chain of command.Whether deployed or at home there is a JAG presence to help the commander with legal advice.Let me offer an anecdote.

A group of black soldiers threatened a couple of white soldiers while waiting for a bus.Things got heated and a white soldier fired at the black soldiers inflicting minor injuries.The MP's arrested both groups and took them to the stockade.Someone had a sense of humor because the white soldiers were placed in a cell with some of the black soldiers that they had had a tussle with.The Staff Judge Advocate's office assigned lawyers to the soldiers.All the soldiers except a white soldier went with judge only trial option.All were convicted and went to the Disciplinary Barracks at Leavenworth.The white soldier that asked for a jury trial was not convicted and was returned to duty,albeit a different unit at a different installation - mine.His file put War and Peace to shame.I interviewed him as I was the Company CO and then assigned him to a platoon/squad.He turned out to be a model troop.The system worked after a fashion.


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## FJAG (23 Jul 2016)

tomahawk6 said:
			
		

> Very good points FJAG thanks for putting up with my viewpoint.Our system in the US military is more decentralized and at least intially can move pretty quickly.The conviction rate is 90% so I expect thats similar to the CF.Appeals move up the chain of command.Whether deployed or at home there is a JAG presence to help the commander with legal advice.. . .



Your system is not to different from the way that ours used to be. Our system is as much "decentralized" as the US one when one speaks of the geographic distribution of legal officers. Our AJAGs and DJAs (LCols and Majs) are posted across Canada and accompany our forces on operations. They fulfill much the same role as you Staff Judge Advocates and their staff as far as providing legal advice to supported units including on military justice matters. In the past they also conducted prosecution and defence roles although now that is confined to the DMP and DDCS and their staffs. One major difference is that SJAs and their people are part of the "commanders staff" while in Canada AJAGs and DJAs are advisors who remain solely under the command of the JAG and are "not subject to the command of a officer who is not a legal officer" see QR&O 4.081

Where we differ and where we are now "centralized" is in the process of preferring charges and convening courts. In the US system "convening authority" resides in designated senior commanders of the chain of command (such as a Commander of a Combatant Command). That used to be the way that we did it but after the Somalia fiasco things were changed to reduce the perception (and in some cases the fact) of command interference in the judicial process by the CoC. In Canada the sole convening authority is now the Court Martial Administrator.

Similarly we have tightened up on who may "prefer" a charge for a court martial. Previously that rested in the CoC but is now reserved for the Director of Military Prosecutions. The role of the CoC includes investigation of charges (with or without MP or NIS assistance) and referral of charges upwards to Delegated Officers, Commanding Officers or Superior Commanders who have summary trial powers and, if the powers of punishment are inadequate, onward referral to a Referring Authority (i.e. the CDS or an Officer Commanding a Command) for referral to the DMP for review, further investigation, redraft of charges and finally preferral to the convening authority (CM Administrator).

One additional point. Our National Investigation Service (rough equivalent to your CID, NCIS, AFOSI) has the power to lay charges and also, where a delegated officer, CO, or Superior Commander decides not to proceed with the charge, to by pass that officer and refer the charge to the appropriate Referring Authority. My understanding is that US MPs etc do not have charge laying powers and no recourse if the CoC declines to proceed.

Our system works well for a force of our size and is reasonably expandable in the event of an unlikely ramping up of the CF. The US system is capable of operating at a more massive scale commensurate with its force structure but has frequently been criticised for undue/illegal command interference (particularly more recently in sexual assault cases). The retort is that discipline is a command function and accordingly commanders should not have their authorities reduced or restructured simply because the trial has gone from a summary proceeding to a court martial.

I've been a line officer (artillery and infantry) before I became a legal officer so I can see both sides of the argument. I think we've done the right thing but could go further yet. On the other hand I do not want to go the way of some of the European countries where much of the military justice system is in the hands of civilian federal prosecutors and judges.

 :cheers:


----------



## ontheedge (10 Oct 2018)

I’m curious about a military tribunal court martial type question. I know the military tribunal can order jail time for things that under civilian law seem minor. And I’ve looked at some cases, mod. But I’m wondering peoples experience what is the most minor offense that resulted in jail time?

[added:  Brass knuckles gets 10 days in the Barracks?  What does that mean?  Do soldiers confined to Barracks get to call their parents, or have access to internet/email?]


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## tomahawk6 (10 Oct 2018)

Our first level of legal action is Non Judicial punishment administered by the company and or other commanders higher up the food chain its usually called Art 15.The types of punishment levied can include loss of pay,or confinement either in barracks or the post guardhouse. A member has the right to refuse NJP which would send the offender to a court martial where the punishment would be more severe.


The most trivial case I can remember, was caused by a black soldier that was close to his discharge date that refused to conform to haircut standards.He refused NJP and it went to Court Martial.He ended up getting a lower level of discharge where he would lose certain GI bill benefits.Being a hard head he wouldn't listen, he thought he would never need the benefits.He had a bad attitude calling his black platoon sgt an "uncle Tom". anyway he was discharged on time but he would never be able to re -enlist and lost the best parts of the GI Bill like education and health benfits all for an improper haircut.


----------



## dangerboy (10 Oct 2018)

tomahawk6 said:
			
		

> Our first level of legal action is Non Judicial punishment administered by the company and or other commanders higher up the food chain its usually called Art 15.The types of punishment levied can include loss of pay,or confinement either in barracks or the post guardhouse. A member has the right to refuse NJP which would send the offender to a court martial where the punishment would be more severe.
> 
> The most trivial case I can remember, was caused by a black soldier that was close to his discharge date that refused to conform to haircut standards.He refused NJP and it went to Court Martial.He ended up getting a lower level of discharge where he would lose certain GI bill benefits.Being a hard head he wouldn't listen, he thought he would never need the benefits.He had a bad attitude calling his black platoon sgt an "uncle Tom". anyway he was discharged on time but he would never be able to re -enlist and lost the best parts of the GI Bill like education and health benfits all for an improper haircut.



Just pointing out that this is an example of American military justice, their military justice system is different from the Canadian military justice.


----------



## tomahawk6 (10 Oct 2018)

So what if any is the CF equivalent or do you just send everyone to a court martial ?


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## kratz (10 Oct 2018)

For punishments we have:
- Summary Trials and
- Courts Martial

The CoC also has the option to apply Administrative measures, in addition to the above.


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## FJAG (10 Oct 2018)

tomahawk6 said:
			
		

> So what if any is the CF equivalent or do you just send everyone to a court martial ?



This is a comprehensive overview of how our military justice system functions:

http://www.forces.gc.ca/en/about-reports-pubs-military-law/military-justice-overview.page



			
				ontheedge said:
			
		

> I’m curious about a military tribunal court martial type question. I know the military tribunal can order jail time for things that under civilian law seem minor. And I’ve looked at some cases, mod. But I’m wondering peoples experience what is the most minor offense that resulted in jail time?
> 
> [added:  Brass knuckles gets 10 days in the Barracks?  What does that mean?  Do soldiers confined to Barracks get to call their parents, or have access to internet/email?]



Generally the military justice system does not provide jail time for things that are a minor matter.

In serious matters which are the rough equivalent of civilian offences, courts martial tend to give sentences of imprisonment in roughly equal terms to what a civilian court would. There are, however, offences that are unique to the military environment where detention is imposed to aid in enforcing the strict requirements of military discipline which is, of course, not a feature of civilian life.

"Confinement to ship or barracks" is not imprisonment or detention. It is a "minor punishment" under QR&O 104.13 that is in effect what one might consider "house arrest" where the individual carries on normal work at his ordinary place of duty, eats his meals at the mess hall as per usual and then spends his time in quarters as may be set out by the unit's rules. See s 7 and 9 to QR&O 108 http://www.forces.gc.ca/en/about-policies-standards-queens-regulations-orders-vol-02/ch-108.page

 :cheers:


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## Lumber (11 Oct 2018)

FJAG said:
			
		

> "Confinement to ship or barracks" is not imprisonment or detention. It is a "minor punishment" under QR&O 104.13 that is in effect what one might consider "house arrest" where the individual carries on normal work at his ordinary place of duty, eats his meals at the mess hall as per usual and then spends his time in quarters as may be set out by the unit's rules. See s 7 and 9 to QR&O 108 http://www.forces.gc.ca/en/about-policies-standards-queens-regulations-orders-vol-02/ch-108.page
> :cheers:



One thing I found odd about summary trials and a punishment confinement to barracks (but in reality is just practicing prudence): 
- You're innocent until proven guilty, and the presiding officer is supposed to be someone who is at arm's length from the case, and while they probably know the gist of what happened, they shouldn't know the details
- nonetheless, everytime I've been to or heard of a summary trial where the result was confinement to barracks, the accused always showed up to the trial with a bag packed, and his personal affairs in order for a 1 week stay away from home
- it's like someone told them they were going to be found guilty, and that the punishment would be somewhere in the realm of 3-7 days CTB, but how could that be?


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## 211RadOp (11 Oct 2018)

As an SSM, when I conducted a Summary Trial, I looked at the history of the accused and what the unit usually gave for the offence.  If there was a chance of the member being confined to barracks, I told them to be prepared and have everything ready in case he was found guilty and sentenced to confinement to barracks.  Sometimes he just got a fine and went on his merry way, but he was prepared to spend a week in barracks.


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## mariomike (11 Oct 2018)

kratz said:
			
		

> For punishments we have:
> - Summary Trials and
> - Courts Martial



Regarding the difference between the two,

Summary Trial vs Courts Martial  
https://army.ca/forums/threads/113353.0


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## ModlrMike (11 Oct 2018)

211RadOp said:
			
		

> As an SSM, when I conducted a Summary Trial, I looked at the history of the accused and what the unit usually gave for the offence.  If there was a chance of the member being confined to barracks, I told them to be prepared and have everything ready in case he was found guilty and sentenced to confinement to barracks.  Sometimes he just got a fine and went on his merry way, but he was prepared to spend a week in barracks.



In addition, I would say that a good Assisting Officer will not only help the member achieve the best possible outcome, but prepare them for the worst. Telling them to pack a bag falls into that category.


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## ontheedge (11 Oct 2018)

Wow thanks, this has been helpful!

1.  Being sequestered in Barracks - is that for Reserve as well as for Regular Force? 
2.  Where are the barracks located in Toronto?  e.g. is there one at 660 Fleet in Toronto?  Dennison??

That's crazy that a CO can order up to 21 days... is there phone or internet or email access while in barracks?


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## Navy_Pete (11 Oct 2018)

ontheedge said:
			
		

> Wow thanks, this has been helpful!
> 
> 1.  Being sequestered in Barracks - is that for Reserve as well as for Regular Force?
> 2.  Where are the barracks located in Toronto?  e.g. is there one at 660 Fleet in Toronto?  Dennison??
> ...



Not sure about the army side, but on ships this just means you have your shore leave suspended. It doesn't pause, so if over that two-three weeks most of it is at sea, really makes no difference.

There is a routine for personnel under punishment, so they have to report to the folks on duty at specific times.  We had a few guys catch that, and normally the chiefs find something useful for them to do so they stay busy.  Giving spaces a good cleaning ('Sunday routine'), touching up paint, etc. are fall backs, but if we were fueling or something they were part of that evolution (which means someone else can get shore leave). Same idea for the base, and there is usually something going on over the weekends where a PUP could get voluntold to help with so they are being productive.

They still had some free time with the same normal access to things they had otherwise (except maybe use of the mess bar?) but it's not jail or anything.  

CO's of operational units can make decisions that put people's life and billions of dollars of equipment at risk, so a CTB of 21 days isn't really that big a deal in comparison.


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## Blackadder1916 (11 Oct 2018)

ontheedge said:
			
		

> Wow thanks, this has been helpful!
> 
> 1.  Being sequestered in Barracks - is that for Reserve as well as for Regular Force?
> 2.  Where are the barracks located in Toronto?  e.g. is there one at 660 Fleet in Toronto?  Dennison??
> ...



While technically it is a punishment that can be imposed on a Reservist despite some logistical limitations; however, to do so to the typical Reservist (a part-timer) would be counterproductive.  If you sentenced a part-time soldier to confinement to quarters or extra duty and drill, then you would have to pay him for those days that he did the punishment.  The most likely punishment would be a fine.


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## dapaterson (11 Oct 2018)

Some Reserve COs, cognizant of their soldier's financial situation, have been known to impose extra duties along with a fine, as a partial mitigation of the potential impact of a fine on someone in financial distress.


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## Edward Campbell (11 Oct 2018)

dapaterson said:
			
		

> Some Reserve COs, cognizant of their soldier's financial situation, have been known to impose extra duties along with a fine, as a partial mitigation of the potential impact of a fine on someone in financial distress.




As a CO, many years decades ago I was always conscious of the impact of a punishment on a family. I knew that when I fined a married soldier I was, in fact taking money out of the household budget that fed and clothed a wife and kids, too; equally I knew that many soldiers had (needed) part time jobs and CB or extra work and drill could also cause some unintended hardships.

It did not deter me from punishing ... but it made me think about the consequences. It also made troop commanders delve, properly, into the lives and circumstances of the soldiers they commanded because I expected them, as assisting officers, to assist me, too, by telling me about their soldiers situations.

There is a balance to be struck between our duty and our powers.


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## ontheedge (12 Oct 2018)

E.R. Campbell said:
			
		

> It did not deter me from punishing ... but it made me think about the consequences. It also made troop commanders delve, properly, into the lives and circumstances of the soldiers they commanded because I expected them, as assisting officers, to assist me, too, by telling me about their soldiers situations.
> 
> There is a balance to be struck between our duty and our powers.



Wow nicely said!  

You've actually now turned me to another question:  can a soldier refuse an order that violates what he or she believes is an ethos principle.  I guess what I’m trying to understand is that if a soldier feels an order is demeaning or immoral, can he refuse to comply, state his reason, and move on. Or should the soldier expect to have to explain himself before several superiors and potentially a court martial. 

[edited to remove gratuitous examples]


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## ModlrMike (12 Oct 2018)

The answers you seek can be found here: QR&O Chapter 102

The short answers are:

Scenario 1 - you're not subject to the CSD, and there is no obligation to follow these orders;
Scenario 2 - not likely to happen, so your question is moot. CO's don't get there by being foolish or capricious.

Even if the CO were to push the points in either or both scenario, then they wouldn't be COs for long.

FWIW, please stop asking crazy hypothetical questions.


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## ontheedge (12 Oct 2018)

Thank you for the answers.  I do appreciate it. My hypothetical questions were meant to draw out principles which you have elucidated in your answer.


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