# Civilianizing the Military Justice System: Throwing out the baby with the bathwater or not?



## FJAG (22 Nov 2021)

This latest article by Murray Brewster on the CBC website is once again floating the idea of civilianizing military prosecutors and defence counsel.Liberals to study plan to move military prosecutors and defence lawyers to civilian justice system


> Social Sharing​Review is latest step in addressing the military's sexual misconduct crisis​
> Murray Brewster · CBC News · Posted: Nov 22, 2021 8:29 AM ET | Last Updated: 7 hours ago
> 
> The Liberal government is setting up an internal working group to study whether the civilian justice system should take over all the duties of military prosecutors and defence lawyers in sexual misconduct cases within the Canadian Armed Forces, CBC News has learned. (Murray Brewster/The Canadian Press)
> ...





> https://www.cbc.ca/news/politics/sexual-misconduct-military-canada-1.6257789



Back in the post Somalia days I was part of a study team looking at options on how to reform the Defence Counsel Services. We looked at numerous options including turning it over to be a complete reserve force department, a civilian legal aid system and several others.

In the end we recommended the system in place now which included a core of Reg F defence counsel and a larger group of reservists augmented by a "at own cost" civilian lawyer system.

In large measure the following factors helped turn us in that direction:

any military justice system needs to be portable, to be able of holding trials anywhere in the world and particulalry in operational theatres, if necessary;
defence counsel need to be fully trained and experienced in military law so as to be able to provide appropriate legal advice to their clients;
the military justice system at its policy level needs to have individuals in it who are experienced in defence counsel services in order to insure that future policy decisions are balanced as to the interests of the accused as well as the prosecution; and
as the summary trial system was undergoing change to take more serious offences away from the COs and delegated officers, the military defence system would be receiving an ever increasing load of accused requiring legal advice and services including in deployed circumstances.
There are interesting questions involved in civilianizing prosecutors and defence counsel (and of course judges). One needs to remember that there are different definitions of what is a Judge Advocate General and what his/her responsibilities are. In Canada (as well as the US and other countries) the JAG is the senior legal officer responsible for advising the department on military law (defined as operational law, administrative law and military justice) as well as the superintendence of the military justice system. In other countries, the JAG is just the senior judge of a court that tries military cases and can be either a military or civilian jurist. 

Regardless of what role the judge plays there is a concurrent question as to what the military prosecution service and defence services should be configured as. It is easier to make the argument that defence counsel need to be separate from the chain of command than the prosecution service simply because virtually everywhere in the world, the prosecution service whether civilian or military, is an arm of government.

There are several nations who have a civilianized military justice system but mostly through the civilianization of judges and defence counsel services. Quite frankly there's an attractiveness to that. Firstly it would defeat any of the specious arguments that judges are influenced by the chain of command and secondly it would put military accused on the same footing as civilian accused, qualify for legal aid or foot the bill for your own lawyer (and most soldiers probably make too much money for legal aid). In a lot of ways if accused were paying their own way, trails would be shorter and guilty please more prevalent (yup. I'm that cynical).

So, long story short, IMHO lets make a Military Trial Court based on co-opting superior court criminal division judges from across Canada who will continue to work out of their civilian court houses using their own staff and ordinary procedures. If they are to also work disciplinary cases (and I think they should) then they can receive training on that. Cut Defence Counsel Services completely and make soldiers eligible for whatever legal aid services are available in their home province. While I think getting rid of DMP also has some benefits (such as shedding responsibility for all the crap that happens and foisting it onto the civilian side has some poetic justice to it) I tend to have just enough sensibility left to know that regardless of all the whining from former Colonels turned lawyers and sources for news articles, that the administration of discipline is a core requirement of any military system in order to keep people running into machine gun fire. That requires a system of investigation, legal advice and prosecution. So lets keep that part.

Just to sound more cynical - whatever changes are eventually found desirable will undoubtedly not come into effect for the next decade while people go back to the drawing board to rewrite not only the NDA but a large number of provincial justice laws. The coordination and financing meetings will be a hoot.

Let the fun begin.

🍻


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## dapaterson (22 Nov 2021)

Keep three military lawyers as advisers, but leave the prosecution to civilian professionals, and not to a guy with eleven years at the bar, supervising a crew of layers whose combined workload is less than a junior Crown in any major jurisdiction.


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## daftandbarmy (22 Nov 2021)

FJAG said:


> This latest article by Murray Brewster on the CBC website is once again floating the idea of civilianizing military prosecutors and defence counsel.Liberals to study plan to move military prosecutors and defence lawyers to civilian justice system
> 
> 
> 
> ...



IIRC that one of the great triumphs of the military justice system was 'celerity', and a judgment (with punishment) being rendered quickly and efficiently. Take your lumps and soldier on....

I wonder how this might change with a transfer of responsibility to a famously slow civilian legal process?


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## QV (22 Nov 2021)

I think there is a simpler solution where everyone wins: Decriminalize disciplinary matters/don't mix discipline with crime.  Briefly:

If a soldier commits a crime (an offence as stated in Criminal Code of Canada/CDSA etc) it goes downtown, period. The CAF is still free to pursue administrative action. 

If a soldier commits a disciplinary infraction, the matter is handled by the CO or delegated officers. If it is a serious NDA offence beyond the scope of the CO, it goes through the CM system.

This will require legislation changes, such as repealing offences such as "Stealing" in the NDA (it's fucking theft and its a crime). I think this would be far easier, meet the objectives that are constantly raised, reduce actual or appearance of conflict of interests, rather than throwing the baby out with the bathwater. It would also empower units to enforce discipline. If a soldier is 20 minutes late for a timing or insubordinate, the unit should be able to promptly handle that - like that day, up to some digger time and confinement to barracks with extra work and drill. 

This would necessitate the re-rolling of the CF MP Gp as it is today and reforming it into a force protection group for the CAF with no police duties. Assigning RCMP to theatres for police duties (probably only need one or two/tour), turning over policing jurisdiction for all DND property to the local talent. There would still be a need for DMP/defence and CMs but strictly for serious military specific offences only.  

I feel there would be significant capability gained (re-rolling the MP) and significant cost saved or break even, while being able to take a hands off approach to criminal investigations and prosecutions by allowing the civil authorities to deal with that.


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## dapaterson (22 Nov 2021)

daftandbarmy said:


> IIRC that one of the great triumphs of the military justice system was 'celerity', and a judgment (with punishment) being rendered quickly and efficiently. Take your lumps and soldier on....
> 
> I wonder how this might change with a transfer of responsibility to a famously slow civilian legal process?


The cannabis cupcake court-martial is for an incident in July 2018 - over three years for what appears to be a relatively straight forward proceeding.

Celerity does not appear to be a current feature of the military justice system at present (and not due to a lack of resources).


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## FJAG (22 Nov 2021)

dapaterson said:


> Keep three military lawyers as advisers, but leave the prosecution to civilian professionals, and not to a guy with eleven years at the bar, supervising a crew of layers whose combined workload is less than a junior Crown in any major jurisdiction.


You and I are in deep agreement on that. While DMP does more than prosecute CsM, there are far too many full-timers in the system. You're probably not surprised to learn that there are quite a few Res F leg Os in both DMP and DDCS who are "civilian professionals in criminal law".



daftandbarmy said:


> IIRC that one of the great triumphs of the military justice system was 'celerity', and a judgment (with punishment) being rendered quickly and efficiently. Take your lumps and soldier on....
> 
> I wonder how this might change with a transfer of responsibility to a famously slow civilian legal process?


Unfortunately there hasn't been "celerity" in the CM system for quite some time. There are several phases in a case: the time it is investigated by the police or unit until the charge is "referred' to DMP; the time that DMP reviews and prepares the case after "referral" until DMP "prefers" a charge; and the time from which the charge is "preferred" until the trial actually starts.

Ignoring the time in investigation, in the last reporting period the average time between referral and preferral with DMP was 70 days and the average time from preferral to the commencement of trial was 278 days for a total of 348 days from when investigators hand off a case to when the trial commences 



> Director of Military Prosecutions Annual Report 2019-2020 - Canada.ca
> 
> 
> Director of Military Prosecutions Annual Report 2019-2020
> ...





QV said:


> I think there is a simpler solution where everyone wins: Decriminalize disciplinary matters/don't mix discipline with crime.


To a large extent that is what the current amendments to the NDA under Bill C-71 will do when the regulations are finally written and a determination of what "disciplinary infractions" which are subject to Summary Trails are.

I doubt if your vision for the MPs are part of this or any future reform.

🍻


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## ModlrMike (22 Nov 2021)

I think there's a middle ground here. I'm not convinced that making our lawyers civilians is the right option. Neither is staying with the current system. What I propose is that sexual misconduct complaints be made directly to SMRC, and not COs. The only part that COs should play is that of member welfare. Investigate and try the cases in the civilian system. Have a JAG and MP liaison as part of SMRC to respond to military specific issues or questions, but not necessarily be part of the investigative or judicial pieces. Ensure that there is an SMRC case officer who can keep the file moving forward, and can ensure that the member receives timely updates from a single source. If victims and the public are reassured that there is zero opportunity for the chain of command to influence a case it would go a long way to rehabilitating our reputation in this area.


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## lenaitch (22 Nov 2021)

QV said:


> I think there is a simpler solution where everyone wins: Decriminalize disciplinary matters/don't mix discipline with crime.  Briefly:
> 
> If a soldier commits a crime (an offence as stated in Criminal Code of Canada/CDSA etc) it goes downtown, period. The CAF is still free to pursue administrative action.
> 
> ...


Interesting.  I won't comment on the applicability of the Criminal Code to CAF personnel out-of-country or the ability of Canadian civilian police to enforce, as there might be legislation that I'm not familiar with.

Regarding turning policing of CAF personnel and property over to local law enforcement, I would think it would require legislative changes both at the federal level and with each province.  Law enforcement is a tax-based service, and the federal government doesn't pay local taxes (and grants-in-lieu won't cut it).  In Ontario, municipalities either have their own police service or enter into a contract with another service or the OPP. It would be interesting to see if the DND would have a separate agreement or the base population and workload would somehow be rolled into the municipal data.  Municipalities would want to sign some form of contract in order to protect themselves, particularly those with large bases.  There is currently a catfight going on near here where the provincial government originally said they would pay for law enforcement costs in relation to a provincial correctional facility, but have now withdrawn from that leaving to municipality holding the bag.  Word gets around.

I'm not familiar with the enforcement authority of federal regs such as trespass and traffic and assume there would have to be legislative changes as well.  There would still be a need for some kind of security service, private or otherwise, to address the various things like gate control, key control, access control to specific areas, etc.; all of the things that law enforcement doesn't do.  I assume bases that have them would retain their 'base security force' or whatever they are called in the event a base needs to be locked down or secured for non-civilian reasons.


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## QV (22 Nov 2021)

lenaitch said:


> Interesting.  I won't comment on the applicability of the Criminal Code to CAF personnel out-of-country or the ability of Canadian civilian police to enforce, as there might be legislation that I'm not familiar with.
> 
> Regarding turning policing of CAF personnel and property over to local law enforcement, I would think it would require legislative changes both at the federal level and with each province.  Law enforcement is a tax-based service, and the federal government doesn't pay local taxes (and grants-in-lieu won't cut it).  In Ontario, municipalities either have their own police service or enter into a contract with another service or the OPP. It would be interesting to see if the DND would have a separate agreement or the base population and workload would somehow be rolled into the municipal data.  Municipalities would want to sign some form of contract in order to protect themselves, particularly those with large bases.  There is currently a catfight going on near here where the provincial government originally said they would pay for law enforcement costs in relation to a provincial correctional facility, but have now withdrawn from that leaving to municipality holding the bag.  Word gets around.
> 
> I'm not familiar with the enforcement authority of federal regs such as trespass and traffic and assume there would have to be legislative changes as well.  There would still be a need for some kind of security service, private or otherwise, to address the various things like gate control, key control, access control to specific areas, etc.; all of the things that law enforcement doesn't do.  I assume bases that have them would retain their 'base security force' or whatever they are called in the event a base needs to be locked down or secured for non-civilian reasons.


Yes to most of what you say, I think the legislative changes could be minimal, but I dont want to derail FJAG‘s thread too far.


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## FJAG (22 Nov 2021)

QV said:


> Yes to most of what you say, I think the legislative changes could be minimal, but I dont want to derail FJAG‘s thread too far.


It ain't my thread - it's all of our thread. have at it.

🍻


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## brihard (22 Nov 2021)

QV said:


> I think there is a simpler solution where everyone wins: Decriminalize disciplinary matters/don't mix discipline with crime.  Briefly:
> 
> If a soldier commits a crime (an offence as stated in Criminal Code of Canada/CDSA etc) it goes downtown, period. The CAF is still free to pursue administrative action.
> 
> ...


Mostly agreed, though you'd need a few more bodies than 1 or 2 if going with RCMP for deployed ops, and that would definitely be expensive. Backup policy, collective agreement considerations, etc... Resourcing a deployed op to ensure that 24/7 police service is available (presumably with judicious use of on call) would be fairly costly. Never mind how command and control relationships would work...

It will likely still be necessary for CAF to retain an ability to do law enforcement policing on deployed ops.



lenaitch said:


> I'm not familiar with the enforcement authority of federal regs such as trespass and traffic and assume there would have to be legislative changes as well.  There would still be a need for some kind of security service, private or otherwise, to address the various things like gate control, key control, access control to specific areas, etc.; all of the things that law enforcement doesn't do.  I assume bases that have them would retain their 'base security force' or whatever they are called in the event a base needs to be locked down or secured for non-civilian reasons.



Government Property Traffic Regulations is what covers stuff like going 18 in a 15 on most federal property (some of Ottawa has something separate through the National Capital Commission). GPTR already empowers municipal and provincial police,a nd allows authority to be delegated to others at the whim of a minister or of the RCMP commissioner. Trespass son federal property is simply applied through the relevant provincial statute, there's no special federal trespass thing. That said, defense installations also have their own federal regulations, the Defence Controlled Access Area regs if memory serves. I don't know what that currently reads for delegating enforcement authority.

That said I agree with QV that, against the other stuff being talked about here, these smaller nuts and bolt issues would be pretty minor. Who gets to shoot a LIDAR, stop a car, check ID, or tell someone to GTFO of the property is small potatoes compared to authority to charge and prosecute criminal stuff.


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## QV (23 Nov 2021)

brihard said:


> Mostly agreed, though you'd need a few more bodies than 1 or 2 if going with RCMP for deployed ops, and that would definitely be expensive. Backup policy, collective agreement considerations, etc... Resourcing a deployed op to ensure that 24/7 police service is available (presumably with judicious use of on call) would be fairly costly. Never mind how command and control relationships would work...
> 
> It will likely still be necessary for CAF to retain an ability to do law enforcement policing on deployed ops.
> 
> ...



On the deployment part, I don’t think you’d need more than one or two RCMP for a typical task force. Their role would be limited to handling investigating any serious criminal matters, not a police patrol presence, more of an embedded GIS. C2 is straight back to mounty HQ. And let’s be honest there’s not a lot of that going on. But if it did, the accused would be shipped out asap anyway. The MPs would still be around in different name and they’d handle base or fob defence and security, convoy escorts, and the specialized tasks they hold now that align with their more focused security role (they‘d do all this in Canada too to the detriment of the commissionaires). This would be a more appropriate way to support ops IMHO, and it’s something that needs to be done right, not half assed and passed around like it is now. Discipline is the responsibility of the officers (as per their scroll) through the warrant officers and sergeants with disciplinary infractions sorted by the unit. 

If the plan is to civilianize the justice system, then you can’t ignore the police in this. I say go all the way.


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## brihard (23 Nov 2021)

If it’s strict investigative without patrol/response duties, then yeah, two bodies could do it. So call it a deployment of three to account for HLTA and such. I have no idea what kind of ‘first response’ policing a deployed op requires, but they would likely need to have the capability too- so two bodies available as paid on call when not working their normal hours.

If someone were to decide that they want an immediate response capability 24/7, then immediately you’re up to 11 members minimum to allow for two member response with 24/7 shift coverage. One always on with one on call for backup could do 24/7 with maybe 6- again, factoring HLTA and a spare body in case of injury/illness. I don’t know what level of manning deployed MP dets normally have or if there are members on shift 24/7.


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## daftandbarmy (23 Nov 2021)

QV said:


> On the deployment part, I don’t think you’d need more than one or two RCMP for a typical task force. Their role would be limited to handling investigating any serious criminal matters, not a police patrol presence, more of an embedded GIS. C2 is straight back to mounty HQ. And let’s be honest there’s not a lot of that going on. But if it did, the accused would be shipped out asap anyway. The MPs would still be around in different name and they’d handle base or fob defence and security, convoy escorts, and the specialized tasks they hold now that align with their more focused security role (they‘d do all this in Canada too to the detriment of the commissionaires). This would be a more appropriate way to support ops IMHO, and it’s something that needs to be done right, not half assed and passed around like it is now. Discipline is the responsibility of the officers (as per their scroll) through the warrant officers and sergeants with disciplinary infractions sorted by the unit.
> 
> If the plan is to civilianize the justice system, then you can’t ignore the police in this. I say go all the way.



It's important to remember what Military Police are tasked with, which might not exactly match what might be expected from a unionized police force:

A Short History of the Canadian Military Police​
Members of the CProC enforced discipline, controlled traffic, operated prisoner-of-war facilities, and controlled the movement of refugees. By 1945, CProC elements across the United Kingdom, Italy and Northwest Europe included thirteen provost companies, two independent brigade provost sections, two detention barracks, a field punishment camp, a training depot and several special investigation sections. Back in Canada, the CProC maintained 18 provost companies to support the various Military Districts, staffed 28 military detention barracks, and operated one training centre. The CProC also maintained one provost company in Newfoundland, which was not yet part of Canada. At its peak wartime strength the CProC comprised around 6120 personnel.









						MP History
					

Although military police and provost  capabilities existed in Canada well before to Confederation in 1867, it was not until 1917 that the first Canada-wide military police organization was formed....



					www.cmpa-apmc.org


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## RedFive (23 Nov 2021)

brihard said:


> If it’s strict investigative without patrol/response duties, then yeah, two bodies could do it. So call it a deployment of three to account for HLTA and such. I have no idea what kind of ‘first response’ policing a deployed op requires, but they would likely need to have the capability too- so two bodies available as paid on call when not working their normal hours.
> 
> If someone were to decide that they want an immediate response capability 24/7, then immediately you’re up to 11 members minimum to allow for two member response with 24/7 shift coverage. One always on with one on call for backup could do 24/7 with maybe 6- again, factoring HLTA and a spare body in case of injury/illness. I don’t know what level of manning deployed MP dets normally have or if there are members on shift 24/7.


I think in this case, it would depend mostly upon what the scope of duties are, and the expected outcomes are.

Is the RCMP only to Police Canadians in theatres? Indigenous populations? Respond to stand-to's? Patrols in or outside of base lines? Are we taking these files all the way to prosecution or are we only responsible for the initial scene and hand off to higher (RCMP deployed from Canada? further NIS capability retained by CAF or othern investigative capabilities?

I feel like, given the membership of the RCMP I know, these opportunities would not be lacking for applicants, but that's just the members I know.


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## stoker dave (23 Nov 2021)

On board ships, my memory is that just about everything was handled on board.  Will a police officer need to be posted to ships on extended deployment?  How will sexual assaults be handled when the event occurs 1,000 miles from land?


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## KevinB (23 Nov 2021)

stoker dave said:


> On board ships, my memory is that just about everything was handled on board.  Will a police officer need to be posted to ships on extended deployment?  How will sexual assaults be handled when the event occurs 1,000 miles from land?


You guys still have planks?


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## lenaitch (23 Nov 2021)

brihard said:


> That said I agree with QV that, against the other stuff being talked about here, these smaller nuts and bolt issues would be pretty minor. Who gets to shoot a LIDAR, stop a car, check ID, or tell someone to GTFO of the property is small potatoes compared to authority to charge and prosecute criminal stuff.


Agree.  Legislative tweaking aside, the big nut would be funding.


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## daftandbarmy (23 Nov 2021)

stoker dave said:


> On board ships, my memory is that just about everything was handled on board.  Will a police officer need to be posted to ships on extended deployment?  How will sexual assaults be handled when the event occurs 1,000 miles from land?



If you want to pass your promotion board I'm guessing that the correct answer is: "There will be no sexual assaults on my ships, Admiral."


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## OldSolduer (23 Nov 2021)

KevinB said:


> You guys still have planks?


Don't forget yardarms and keels....just as we land guys should not forget the stocks and pillories...


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## daftandbarmy (23 Nov 2021)

OldSolduer said:


> Don't forget yardarms and keels....just as we land guys should not forget the stocks and pillories...



Or, that old favourite:

Field Punishment No. 1​This is a drawing of Field Punishment No. 1, nicknamed "crucifixion" by soldiers. Soldiers were tied for two hours a day in full view of their fellow soldiers. Rendered immobile by their restraints, soldiers could not move or scratch against common irritants such as flies or lice.

_Tied to the Wheel - Field Punishment. Common in War_
Drawn by Private Thomas Fisher
CWM 20030054-001
















						Official Art - Field Punishment No. 1 | Canada and the First World War
					

Canada's contribution to the First World War led to growing autonomy and international recognition, but at great cost.




					www.warmuseum.ca


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## dimsum (23 Nov 2021)

daftandbarmy said:


> Rendered immobile by their restraints, soldiers could not move or scratch against common irritants such as flies or lice. check their phones and/or social media


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## EnchantedEng (27 Feb 2022)

QV said:


> I think there is a simpler solution where everyone wins: Decriminalize disciplinary matters/don't mix discipline with crime.  Briefly:
> 
> If a soldier commits a crime (an offence as stated in Criminal Code of Canada/CDSA etc) it goes downtown, period. The CAF is still free to pursue administrative action.
> 
> ...


Why do I like this idea?


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## PPCLI Guy (27 Feb 2022)

So remind MPs to focus on being the Police *for* the Force, istead of the Police* of* the Force?

Heresy.

I once witnessed, at a Bde PD session, an MP Pl Comd tell the Bde Comd that the function of MPs was to protect the reputation of the CAF.

It did not end well.


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## QV (28 Feb 2022)

EnchantedEng said:


> Why do I like this idea?


Because it takes "policing" out of the chain of command and it leaves discipline in the chain of command.


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