# Code of service discipline and the Canadian Charter of rights and freedoms



## silverbach (15 Dec 2005)

The Code of service discipline, being part of the National defence act, can be controlled by courts through our Constitution which obviously includes the Canadian Charter of rights and freedoms.

Roughly, section 1 of the Charter allows a violation to the Charter as long as it is justifiable in a democratic society.

Based on some documents that can be found on the links of the JAG web site, there are a lot of situations during a summary trial of a member of the CF which would be in direct violations of the Charter. This document goes on to suggest that all of those violations would be justified based by section 1 of the Charter.

As a civilian lawyer (at least for now), I find that if that's the case, it would constitute a form of discrimination since the NDA would receive a different treatment than the other federal and provincial laws. But most importantly, some of the rights being violated are against the rule of law and some major procedural rights that are imperative in a society that calls it self democratic.


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## TangoTwoBravo (15 Dec 2005)

Is your point that members of the military are treated differently than members of the general public?  Members of the Canadian Forces do indeed live under a somewhat different set of rules than the general public, and this is essential for a disciplined and effective military.

Are there specific instances that you are concerned about?


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## 043 (15 Dec 2005)

Hmmmmmmm and your point is???


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## muffin (15 Dec 2005)

silverbach said:
			
		

> As a civilian lawyer (at least for now),



Is there something you are planning on changing when you get in????



			
				silverbach said:
			
		

> ... imperative in a society that calls it self democratic.



Who ever said the military was democratic?! The CF protects democracy, they don't necessarily practice it


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## Haggis (15 Dec 2005)

silverbach said:
			
		

> ...I find that if that's the case, it would constitute a form of discrimination since the NDA would receive a different treatment than the other federal and provincial laws. But most importantly, some of the rights being violated are against the rule of law and some major procedural rights that are imperative in a society that calls it self democratic.



Other Canadian laws are about the general maintenance of "peace order and good government". The Code of Service Discipline is about *discipline*.
Therefore, it's application must be different from the laws that govern mainstream Canadian society.


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## silverbach (15 Dec 2005)

all right. I get that. Then, let me ask you this question:

If discipline should win over rights and freedoms, how come a Court martial is more entitled to garantee some of these rights, while still applying and interpreting the very same document, the Code of Service Discipline.


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## Bruce Monkhouse (15 Dec 2005)

Because a Judge can do the same thing in the civi world.

If you are digging for some huge " I found something special" moment here, I doubt you will find it. There are lots of jobs where, in order to serve, some rights are given away. I sure can't hang out with an ex-convict, but isn't " free association" one of my "rights" under the charter?


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## xFusilier (15 Dec 2005)

Courts martial have no greater entitlement to the guarantee of rights.  A court martial is a court, complete with judge, rules of evidence, and a guarantee of certain charter protections.  A summary trial is more of a disciplinary proceeding, and whilst deprivation of liberty may constitute a lawful sentence awarded by the officer preceeding a summary trial, I would argue that the jepordy that the defendant is placed in is sufficiently minor to meet the test imposed by s.1 of the Charter, this is further illustrated by the fact that until recently sentences awarded at summary trial did not result in a criminal record (if this is the case and anyone know the section that sets this out, could they please post it).


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## TangoTwoBravo (15 Dec 2005)

The Charter still affects (to a strong degree) the application of military justice.   

A summary trial permits the timely disposal of relatively minor service offences by the chain of command.   There are no lawyers present and the accused represents himself (although he has an Assisting Officer).   The powers of punishment, however, are limited in scope.   Summary trials allow for discpline to be maintained and minor matters to be handled at the lowest possible level.

At a court martial the accused has the right to legal counsel.   There will also be a prosecutor and there are much greater powers of punishment if the accused is found guilty.   There are other differences but I am not a lawyer.   Courts martial are generally reserved for more serious offences and usually take much longer than summary trials (both to get going and resolve).

Depending on the offence the accused may have the right to choose between the two types of proceedings.

The requirement for a disciplined force can certainly win out over individual rights and freedoms, but it not a matter of carte blanche.   Members of the military still have rights and it is not purely arbitrary.


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## Bruce Monkhouse (15 Dec 2005)

xFusilier,
There is a whole thread on that somewhere and I believe the end result was that you have one for 5 years for any offense under the NDA.
I will find the thread as my story is there for the "proof".


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## xFusilier (15 Dec 2005)

Thanks Bruce,

I saw that thread, and I myself looked but its kinda of like trying to find a needle in a haystact, between the NDA, CC, Identification of Criminals Act, the Corrections Act, etc.... Not that I'm questioning anyone on the veracity of there assumptions, more I'd like to know out of sheer morbid curiosity.


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## silverbach (15 Dec 2005)

Yes Bruce...you refer to freedom of association, section 2d) Canadian charter; but that concerns more union rights in labor law that anything else.


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## George Wallace (15 Dec 2005)

Actually Bruce is refering to members of a LEA, who should not be maintaining associations with known criminals, convicts or ex-cons.


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## silverbach (15 Dec 2005)

The highest law in this country is the Constitution, composed of 24 constitutional documents, one of those being the charter of rights and freedoms.

Every federal and provincial law is subjected to the constitutional provisions of this Charter...which means that an organization cannot, for reasons other than legal ones, derogate to that fact.

I understand that in the name of discipline, things gotta move fast...all right, but why can't we do this and protect the accused rights protected by the charter at the same time.

All we really need is a judge and a JAG prosecutor to take care of it.

Again, I feel that the reason things are the way they are right now is for budget reasons and using the discipline argument, with all due respect, is mainly a form of cover-up to the financial reasons which would explain why the system is the way it is as we speak.


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## 043 (15 Dec 2005)

silverbach said:
			
		

> The highest law in this country is the Constitution, composed of 24 constitutional documents, one of those being the charter of rights and freedoms.
> 
> Every federal and provincial law is subjected to the constitutional provisions of this Charter...which means that an organization cannot, for reasons other than legal ones, derogate to that fact.
> 
> ...



You'll see........you'll see!


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## xFusilier (15 Dec 2005)

The confusion IMHO, came when we switched terms from Orders Parade, to Summary Trial.  Having been a guest of honour at one, it is not a trial, the guilt of the accused is generally not examined (As the saying goes Sgt-Maj, march the guilt bastard in).  The purpose of a Summary Trial is to allow the accused to make statment in his defence, ie to bring facts before the Presiding Officer, that may (or may not mitigate) the punishment awarded, and to argue the accuracy of the circumstances alleged on the charge report.  It is not a sentence as such nor in the QR&O, the regulations prescribed pursuant to the NDA is it refered to as such.


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## TangoTwoBravo (15 Dec 2005)

Are you suggesting a full trial with a judge and two lawyers for every service offence?

Summary trials exist for a variety of important service reasons.   One is timeliness.   How long does it take to bring an offence to trial in the civilian realm?   Summary trials allow for the relatively quick resolution of minor breaches which maintains discipline and morale in the unit.   In addition, minor offences can be handled in a summary trial with minimum disruption to the unit.   We can, therefore, deal with these offences in a theatre of operations without having to shut everything down for a full blown court martial.   Summary trials also permit the chain of command to be involved in the handling of disciplinary matters. Since the powers of punishment are restricted it is possible to correct behaviour without destroying the errant member.


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## silverbach (15 Dec 2005)

You're right, xFusillier, it's not a sentence, but it is a pusnishment (section 139 NDA), or in french, _une peine_...but the Co or the designated officer still has to prove all of the elements of the offence beyond reasonable doubt.


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## silverbach (15 Dec 2005)

I'm all for dealing with summary trials in a quick manner...I feel that what is needed to make this process a constitutional one would not change the nature of this type of trial, which would contribute equally to maintain discipline...

...I guess one needs to be face to face with a 30 day detention to fully appreciate the necessity of protecting procedural rights as labeled in the canadian charter of rights.


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## Sf2 (15 Dec 2005)

The consitution allows for the military to make rules for themselves ie: Nat'l Defence Act.   Herein those regs, give the authority to the Governor in Coucil to make more rules (QR&O) and the CDS his own rules (CFAO, DAOD's)- even if it imposes some limitations on the rights and freedoms of its members all in the name of discipline.   For example, things you lose when you join - the right to trial by jury, public communication of information, and candaditure for office.


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## silverbach (15 Dec 2005)

Actually, that's not true.

The NDA and its regulations are not done by the military; all of those are drafted and brought in force through the legislative branch and its ratification by the Governor general. Military personel, as well as the civilians working for the ministry of defence and the CF, are subjected to that law and some of its regulations.


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## Sf2 (15 Dec 2005)

well, yes, parliament makes the laws.....but the rest holds true


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## Bruce Monkhouse (15 Dec 2005)

Quote from Silverbach,
_.I guess one needs to be face to face with a 30 day detention to fully appreciate the necessity of protecting procedural rights as labeled in the canadian charter of rights._

I have been "face to face" with that potential a couple of times and I have to say that I wouldn't change a thing.
It's usually the things that can be done afterwards that piss people off....[adminastrative this and that]


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## George Wallace (15 Dec 2005)

As a member of the Bar, you are governed by a certain set of Rules and Regulations that will ensure that the Laws of the Land are maintained diligently, fairly and ethically to the highest standards.   The Military is the 'Highest' enforcement 'Agency' in the land to maintain the Freedoms, Laws and Constitution of the Land.   It is therefore an organization that must have a 'higher' set of Rules and Regulations to maintain Discipline and prevent the eventuality that it may rise up and overthrow the duely elected Government.   Its' Members must therefore give up some freedoms, that others take for granted, in order to protect the Democratic Rights of others.   They are being held to higher standards.

Members of the CF are bound by more rules, regulations and laws than any typical Canadian.   The Code of Service Discipline will be the Code that will bind them and supersede any conflicting rule, regulation or law.   Members of the CF must of course be subject to the Laws of Canada, but in the exercise of their duties, they are also bound by the laws of foreign lands, the Geneva Conventions, ROEs, NATO Standing Orders, Orders in Council of the UN, the World Court, etc.   Not what your typical Canadian would be subject to.   

In a way, even with many more Rules and Regulations than Civilians, members of the CF have more freedoms.   I am sure that once you are familiar with them, you will understand the philosophy behind them a lot more.


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## silverbach (15 Dec 2005)

I agree with you to a certain extent. I mean, I understand and believe in the philosophy behind the Code of Service Discipline and its impact on everyone who is subjected to it, which includes many non-military persons working, for instance, for the ministry of defence.

Where I have a problem is in the process at a summary trial, a process that is completely different than the one in a court martial, even though those two processes have one thing in common: the application of the Code of Service Discipline. 

I'm sure you will agree that the philosophy behind this code doesn't change with the type of trial that you selected (summary or Court martial). Now, let's take an example. Say that you are charged with an offence of thsi code, and you wish to have a civilian present at your summary trial as a witness because he could exonerate your involvment in the facts introduced by the MP. According to the NDA and the QR & O, the presiding officer cannot force that civilian to be present at the trial, but can only invite him to be present. If that person doesn't show up, the accused cannot present a full defense. Result: he's found guilty and he gets a punishment under 108.24 or 108.25 of the QR & O which could have a major consequence on the military life of this individual.

This is an example that illustrates how a summary trial can have a major impact on a CF member, and that's why I feel that some portions of the NDA and its regulations should be modified, simply to avoid weird situations like those where a military is convicted when he shouldn't have been, and I don't feel that with such a modification, the discipline or the morale of a unit would be in joepardy.


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## Bruce Monkhouse (15 Dec 2005)

silverbach,
I don't mean to be rude but, untill you live it, you just won't get it.
Sounds too simple but its so true........reading about "the" military justice system and thinking you "get it" would be like playing airsoft in a sand box and saying you know what is required to work in Iraq.
In the units there is more than just words on a paper......


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## Ex-Dragoon (15 Dec 2005)

Silverbach,
  You could always contact the AJAG and address your concerns to them as you both in a way speak the same lingo.


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## Chimo (15 Dec 2005)

I think a point that has not come out in this discussion is that Summary Trials are only used for very specific minor breaches of discipline, allowing the Unit it maintain discipline expeditiously at home and abroad. 

Are the rules of evidence different than a Courts Martial, absolutely. Do Summary Trials work, yes. They do. Are the soldiers rights violated when compared to the Charter, probably. However, there are many appeal mechanicisms including a review of all sentencing.

I would suggest you wait to have experience with the Code of Service Discipline before you become too critical.


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## muffin (15 Dec 2005)

silverbach said:
			
		

> This is an example that illustrates how a summary trial can have a major impact on a CF member, and that's why I feel that some portions of the NDA and its regulations should be modified, simply to avoid weird situations like those where a military is convicted when he shouldn't have been, and I don't feel that with such a modification, the discipline or the morale of a unit would be in joepardy.



If you disagree with it so, why have you applied to Navy JAG? And for my own morbid curiousity - why have you chosen the infantry as an aternative?!


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## Sf2 (15 Dec 2005)

> let's take an example. Say that you are charged with an offence of thsi code, and you wish to have a civilian present at your summary trial as a witness because he could exonerate your involvment in the facts introduced by the MP. According to the NDA and the QR & O, the presiding officer cannot force that civilian to be present at the trial, but can only invite him to be present. If that person doesn't show up, the accused cannot present a full defense. Result: he's found guilty and he gets a punishment under 108.24 or 108.25 of the QR & O which could have a major consequence on the military life of this individual.



Then, assumming the nature of the offence allows him to, he should elect for court martial where rules of evidence and compelling a witness exsist, if he thinks he'll be exonerated.   If not...too bad so sad, shouldn't have screwed up in the first place.


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## silverbach (15 Dec 2005)

Well Muffin,

No. 1:

As you might know, as a JAG lawyer, you can be a defense military lawyer. In that capacity, you receive your mandate from the accused. If the client, following my suggestions, wants to challenge a ruling because it goes against the Charter of rights, then you go through the entire process, all the way up tp the supreme court if you have to.

Actually, that's what happened in 1989 in the Généreux case, and the supreme court gave the National defence one hell of a slap in the face, which caused the legislative branch to rewrite a good portion of the NDA.

Trust me, if JAG offers me a job and a client wants me to challenge a section of the NDA or its regulations, I don't see why I shouldn't. After all, if the 9 judges of the supreme court agree with me, I don't think I woul be blamed by my CO.

No. 2:

I chose infantry as an alternative because I wish to collaborate in any way that I can, if I have the opportunity, to the humanitarian situation all over the world...JAG lawyers (operational law) and infantry officers can do that.


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## muffin (15 Dec 2005)

silverbach said:
			
		

> Well Muffin,
> 
> No. 1:
> 
> ...



Well thanks  My morbid curiousity has been satisfied


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## silverbach (15 Dec 2005)

You're right, Short Final, but that's still not a reason to penalise someone because of a distinction between summary trials and a court martial.


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## silverbach (15 Dec 2005)

Well Chimo, living in Canada where the supreme law is the Constitution, I will always defend the Constitution to the best of my ability, and if the supreme court convinces me that I'm wrong, then we'll see what will be my stand.

After all, all I want is to protect the interest of my clients (the members of the CF) and give them the best defense possible, even if that means to go against the NDA and its regulations...I guess we shoul dleave this to the supreme court !?! LOL


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## Bruce Monkhouse (15 Dec 2005)

Quote,
_and give them the best defense possible_

..which is lawyerspeak for let the guilty run free, society be damned, and I can hide behind this statement....

You probably won't like the military as most are man/woman enough to stand up straight and say "guilty" when they know they are.


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## silverbach (15 Dec 2005)

well, lawyers and judges are in the same boat: we're in to apply the law.

If the law allows me to challenge an illegal search in a murder case, I would challenge it, at the risk of having the accused kill again. Just need to take a quick look at the decisions of supreme courts, canadian and american, to see that they both endorse this view...and that's good enough for me i fthey feel that the rights and freedoms are more importabt than a police mistake...and that, my friend, is the law.


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## muffin (15 Dec 2005)

silverbach said:
			
		

> well, lawyers and judges are in the same boat: we're in to apply the law.
> 
> If the law allows me to challenge an illegal search in a murder case, I would challenge it, at the risk of having the accused kill again. Just need to take a quick look at the decisions of supreme courts, canadian and american, to see that they both endorse this view...and that's good enough for me i fthey feel that the rights and freedoms are more importabt than a police mistake...and that, my friend, is the law.



<<whispers under breath>> ...just because  it is law - doesn't mean it is right.... it is all a matter of whether or not we can look ourselves in the mirror and get a good nights sleep.....

<<goes back to work>>


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## Bruce Monkhouse (15 Dec 2005)

Quote,
_well, lawyers and judges are in the same boat: we're in to apply the law_

BS, [ where's the flag?]
that has not been true for a long time, judges interpret the law as THEY think it should apply, with the help of a Law Society who for the most part just want to see more paycheques out there running around.....
Now I'm not tarring lawyers by any means but just like my union endorses kife that I would not touch with a 10 foot poll, lawyers must belong to an association who's only reason for existence is to put more power in their hands and thereby MAKE the laws.


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## Chimo (15 Dec 2005)

Silverbach, I agree with you that the Constitution is the supreme legal document. My point is that the CSD at the Summary Trial level works well. I am only suggesting that perhaps some of your comments on its short comings are based on lack of experience in its use at the functional level.

On the other hand, please feel free to liberate the oppressed...


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## Bruce Monkhouse (15 Dec 2005)

Thanks Chimo for bringing this back to the original subject......slap me next time I swerve off like that.


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## Michael OLeary (15 Dec 2005)

Siverbach, as one of the lawyers on the forum, why don't you apply your professional point of view and explain to us how these two seemingly contradictory (in your mind) documents (Charter and NDA) can legally co-exist, and have done so without undue stress for so long.

Secondly, I would recommend that you review the role of the JAG in the review of charges and summary trial preparations which they now execute before a charge is laid and summary trial conducted. The system certainly has many more legal checks and balances than it did ever before the Charter.


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## silverbach (15 Dec 2005)

I'm sure that the summary trial process is working exaclty the way the JAG office wanted it to work. Previously, when I talked about the constitution, I wasn't thinking at all on the way members of the CF are doing their job. My only concern is the procedural irregularities during the summary trials, especially if we consider that 94 % of the cases in 2004-2005 were handled by officers during summary trials.

Bottom line is that if an accused doesn't mind being judged in a summary trial and that between 5 to 10 of his constitutional rights are being violated, then it's all good for me. If this person makes that decision and wants his case to be handled that way after I gave him my advice, cool ! It's his call.


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## Michael OLeary (15 Dec 2005)

Then I guess we can sum this up. Feel free to pursue change from within the JAG or from the bench of the Supreme Court, whichever you achieve first.

Cheers.

Locked.


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