# Arrest and Laying Charges



## P Kaye (16 Feb 2005)

Is there a resource for CF personnel to ask questions regarding the Code of Service Discipline, laying of charges, authority and procedure to arrest, etc?
Does JAG have a resource for answering such questions?


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## WATCHDOG-81 (16 Feb 2005)

Besides the many references available to anyone, including the National Defence Act, CFAO, DOAD, and QR&O, you can also access the area DJA's (legal officers).  Some information is also available online at the Directorate of Defence Counsel Services which can be found at:

http://www.forces.gc.ca/jag/military_justice/ddcs/default_e.asp?format=print#info

Their toll-free number is 1-888-715-9636


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## P Kaye (16 Feb 2005)

I have heard officers on training courses talk about wanting to "charge" their instructors with service offences (such as threatening to use, or using physical violence).  In the case where the instructors are NCMs, I've heard officers (course candidates) claim the authority to lay charges.
I was always skeptical of this, and have done some detailed research of the NDA and the QR&Os to clarify.
Here is what I have determined (please correct me if I've missed anything).

1)  Authority to lay charges rests with a "commanding officer", or MP, or any officer authorised by the commanding officer to lay charges.  
2)  On a course, the "commanding officer" would be the course officer.  The course officer does not (usually) authorise course candidates to lay charges against instructors.  So NO, officers on course can NOT charge their instructors directly.
BUT...
3) ANY officer has the authority to "arrest" an NCM for a service offence.  I have not found anything in the  NDA or QR&Os that removes this authority from officers on course.  So YES, an officer on course can arrest their instructors.
BUT...
After the arrest, the officer on course who made the arrest would have to appeal to the course officer to lay charges.  The course officer could proceed to lay charges against the instructor, OR turn around and take administrative action against the officer who arrested his instructor.
So, unless your instructor physically assaults you in a serious way, my research has concluded that officers on course should not even think about threatening to arrest or charge their instructors.
But I'm not a lawyer.  Have I gotten anything wrong here, or overlooked anything?


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## George Wallace (16 Feb 2005)

You may want to look into the question of:   Is the officer in fact an officer, or only an officer Candidate?   Does he/she in fact hold a commission?

You   must remember that an Officer Candidate, as a student, is subordinate to the Staff.   The NCMs are in "Delegated" positions.   That being said, they would have more power to charge an officer candidate, than vis versa.

End result.   The Crse Offr has the power.   It goes higher also.   The CI and CO of the School would also become involved eventually.   


(EDIT: If I am not wrong, anyone has the authority to perform an arrest.  The matter of laying charges is different.)

GW


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## WATCHDOG-81 (16 Feb 2005)

P Kaye said:
			
		

> 2)   On a course, the "commanding officer" would be the course officer.   The course officer does not (usually) authorise course candidates to lay charges against instructors.   So NO, officers on course can NOT charge their instructors directly.



A course officer is not a commanding officer.  The commanding officer refers to the officer who is in command of a unit, school, establishment, etc.  Accordingly, the School Commandant or Commanding Officer of the school has the authority to lay charges or to delgate that authority to someone else.  Normally a CO will appoint the DCO or Adjudant as the charging authority in order that the CO can hear the charge if it is a summary trial procedure.


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## Aerobicrunner (16 Feb 2005)

Watchdog 81 wrote:"Normally a CO will appoint the DCO or Adjudant as the charging authority in order that the CO can hear the charge if it is a summary trial procedure."

Actually, the CO may do a memo stating that all persons above the rank of MCpl (for instance) has the authority to lay charges, or conversely he may just state that CSM's and the RSM have the authority.   Depending on the CO and the unit on the specifics.   

QR&O 107.02 â â€œ AUTHORITY TO LAY CHARGES

   The following persons may lay charges under the Code of Service Discipline:
      
   (a) a commanding officer;
        
     (b) *an officer or non-commissioned member authorized by a commanding officer to lay charges*; and
         
   (c) an officer or non-commissioned member of the Military Police assigned to investigative duties with the Canadian Forces National Investigation Service.
        
(G) (P.C. 1999-1305 of 8 July 1999 effective 
1 September 1999)
        NOTE

There must be an actual belief on the part of the person laying a charge that the accused has committed the alleged offence and that belief must be reasonable. A "reasonable belief" is a belief which would lead any ordinary prudent and cautious person to the conclusion that the accused is probably guilty of the offence alleged.

*The CO will appoint Delegated Officers, often comprised of the Adjt, DCO or OC's or 2 I/C's, based on the following:* 

108.10 â â€œ DELEGATION OF A COMMANDING OFFICER'S POWERS
   
 (1) Subsection 163(4) of the National Defence Act provides:
   
     xx"163. (4) A commanding officer may, subject to regulations made by the Governor in Council and to the extent that the commanding officer deems fit, delegate powers to try an accused person by summary trial to any officer under the commanding officer's command, but an officer to whom powers are delegated may not be authorized to impose punishments other than the following:
   
   
(a) detention not exceeding fourteen days;
   
(b) severe reprimand;
     
(c) reprimand;
   
(d) a fine not exceeding basic pay for fifteen days; and
   
(e) minor punishments."

(1 September 1999)
   
 (2) Delegation of powers of trial and punishment by a commanding officer pursuant to subsection 163(4) of the National Defence Act is subject to the following limitations:
     
   (a) a commanding officer may not delegate his powers of trial and punishment to an officer who:
     
   (i) has not been trained, in accordance with a curriculum established by the Judge Advocate General, and certified by the Judge Advocate General as being qualified to perform the duties of a delegated officer, or (1 April 2000)

 (ii) is below the rank of captain;
      
   (b) a commanding officer may only delegate powers of trial and punishment in respect of non-commissioned members below the rank of warrant officer; and
   
 (c) a commanding officer may not delegate powers of trial and punishment in respect of the civil offences referred to in paragraph (3) of article 108.07 (Jurisdiction â â€œ Offences).


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## George Wallace (16 Feb 2005)

Usually you will find that MCpls will be recommending to a SSM that a person be Charged, and the SSM will initiate the Charge Process.  In most cases, Units will allow WOs and above to lay charges on their own initiatives.

The original question, however, was that a Student (officer Candidate) felt that they could lay charges against Course Staff.  The answer is usually NO, except under extremely extenuating circumstances.  In most cases, Students can only lay a complaint up through the normal Chain of Command following the procedures laid out in Regs.  If they do not get a satisfactory response in the alloted timeframe, they may proceed to the next level of Command.  The Buck eventually stops at the Governor General.


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## big_johnson1 (16 Feb 2005)

When you are a student on a course, you are just that, a student. The instructor, regardless of rank, is your superior in the class room because they are (supposed to be) qualified to be there. If there are problems with an instructor, the student should make a complaint, but disciplinary action comes from his chain of command. Think about the ranges.. It doesn't matter what rank you are, the RSO outranks you out there, and for good reason.


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## P Kaye (17 Feb 2005)

>> Is the officer in fact an officer, or only an officer Candidate?  Does he/she in fact hold a commission?

One of the cases I heard about was a 2Lt on his MOC course.  As a 2Lt, the officer was a course candidate, but he was indeed an officer with a commission.
One of his instructors allegedly made a violent threat against the candidate while on course.  In this case, I was curious if Section 85 of the National Defence Act applies:

85. Every person who uses threatening or insulting language to, or behaves with contempt toward, a superior officer is guilty of an offence...

The question is whether the candidate would be considered a "superior officer" of a course NCM while he is on the course.

There is a provision in the National Defence Act regarding "customs of the service".  It might be a considered a "custom of the service" that an officer on course is not considered a "superior officer" over the course instructors, for the purposes of interpreting the NDA.  I'm interested in this from a legal perspective.


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## Glorified Ape (17 Feb 2005)

Aren't officer cadets, for all intents and purposes (short of pay), rankless? Am I wrong in thinking a private outranks me (and behaving as such)?


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## P Kaye (17 Feb 2005)

That is not correct.  As an OCdt, you are an "Officer", but not a "Commissioned Officer".  You are not supposed to be saluted.  NCMs *should*, however, address you as "Sir".  At your unit, Cpls and MCpls should generally treat you with respect, for example, by not yelling at you in front of troops.  Instead, they should quietly take you aside and say "excuse me Sir, but...".
An OCdt, or 2Lt should always, of course, listen carefully to the advice of all trained NCMs.
On course, it's a different matter.  OCdts and 2Lts are untrained officers, and on course we're simply "candidates".
But a Private certainly does NOT "outrank" an OCdt, under any circumstances.


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## garb811 (17 Feb 2005)

P Kaye said:
			
		

> >> Is the officer in fact an officer, or only an officer Candidate?   Does he/she in fact hold a commission?
> 
> One of the cases I heard about was a 2Lt on his MOC course.   As a 2Lt, the officer was a course candidate, but he was indeed an officer with a commission.
> One of his instructors allegedly made a violent threat against the candidate while on course.   In this case, I was curious if Section 85 of the National Defence Act applies:
> ...


Is this Academic "curious" or finding out if there is action you can take, which you will do so if you find out you can, curious?  If it's the latter, I strongly suggest you contact your nearest MP Det as from the limited information you have provided not only is Sect 85 of the NDA possibly an issue but the Criminal Code Offence of Uttering Threats may be as well.


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## P Kaye (17 Feb 2005)

Honestly, the situation has NOT occurred in my case, and I have not yet directly observed such a situation.
I have heard about this situation through a colleague.   He said at the time of the incident he had only been in the military a very short time and didn't know his rights.   He later was told he could have arrested the NCM who uttered the threats (even though that NCM was one of his instructors).
This got me curious, for a number of reasons:

1) People seem to make claims about what can and can't be done, without really knowing.   You ask them to point you to the reference, and they make vague references to "somewhere in the QR&Os".   Usually it's something they've heard by word-of-mouth, and passed along without questioning.   I've even been taught things on course that when I later looked them up, found out were incorrect.   I've developed the philosophy that for certain things, the only way to be sure is to go look at the relevant documentation myself.

2) If a time ever comes that I find myself in such a situation, it would be far better to know ahead of time what my rights and authorities are.

3) If troops ever ask questions like this of me, I'd rather be able to pull out my FMP and give them the exact reference, rather than pass them bull*** based on second-hand information of questionable validity.


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## Wizard of OZ (17 Feb 2005)

I would not try to arrest a crse DS while being a student on a crse.  I would take it through the chain of command.  

Your abilities as a Commissioned Officer are not in effect while a candidate at a school.  This is in most school policies.  The DS does out rank you so there for you are no longer a "superior officer".  But the use of threats of physical violence is a criminal act if the person actually felt threatened.  That is a criminal matter and should be dealt with accordingly.  Through the chain to the MP's and then NIS or the SIIS branch of us depending on rank or circumstances.


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## garb811 (17 Feb 2005)

Ahh...seen.   OK, check out Sect 154 and 155 of the NDA.   _Technically_ your friend could have arrested the instructor, however whether he should have is another matter entirely.   



			
				Wizard of OZ said:
			
		

> Your abilities as a Commissioned Officer are not in effect while a candidate at a school. This is in most school policies. The DS does out rank you so there for you are no longer a "superior officer".


So you're saying the School Cmdt, normally of the rank of Maj or LCol, has the authority to issue a Standing Order which will then override the NDA?   Next thing you'll be telling me is that Base Commanders can direct the MPs that they can process any Impaired Driver they want as long as it's not an Officer...


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## P Kaye (17 Feb 2005)

Thanks MP.

>>Technically your friend could have arrested the instructor, however whether he should have is another matter entirely.

Personally, I would say the only reason why it might be necessary to use this authority is if the incident happened in the field, the instructor was obviously irrational, and the candidate (or another candidate observing the incident) was actually concerned for his/her safety.   Or if the instructor actually rose a hand or began to shove or otherwise offer physical force against the candidate.   In THIS case, as a candidate (whether the victim of, or an observer of the incident). I might order one of the other course instructors to arrest the violent instructor.   The next step, I guess, would be to get the offender and the victim to the course officer, and turn the offender over to the custody of the course officer?   From there the course officer would presumeably turn the matter over the MPs, or at the very least investigate the matter fully himself.


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## Glorified Ape (17 Feb 2005)

P Kaye said:
			
		

> That is not correct.   As an OCdt, you are an "Officer", but not a "Commissioned Officer".   You are not supposed to be saluted.   NCMs *should*, however, address you as "Sir".   At your unit, Cpls and MCpls should generally treat you with respect, for example, by not yelling at you in front of troops.   Instead, they should quietly take you aside and say "excuse me Sir, but...".
> An OCdt, or 2Lt should always, of course, listen carefully to the advice of all trained NCMs.
> On course, it's a different matter.   OCdts and 2Lts are untrained officers, and on course we're simply "candidates".
> But a Private certainly does NOT "outrank" an OCdt, under any circumstances.



Ahhh, that clears up alot. Thanks. I thought, given my perception, that it was kind of wierd that my liaison corporal called me "sir" in correspondence. Now I know why.


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## Wizard of OZ (17 Feb 2005)

"So you're saying the School Cmdt, normally of the rank of Maj or LCol, has the authority to issue a Standing Order which will then override the NDA?   Next thing you'll be telling me is that Base Commanders can direct the MPs that they can process any Impaired Driver they want as long as it's not an Officer... "

   Really is that what it says or does it say that while attending a school you don't carry that rank with the instructors as superiors?

read my friend don't assume, they set the policy from the NDA and make it fit to the needs of that particular environment.

or how bout a base commander himself?


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## Wizard of OZ (17 Feb 2005)

I am not saying that they are not officers by any stretch.  I am saying that they should be careful attempting to arrest a DS as a student on a crse.  Most schools do not allow this to happen.  That is what the chain of command at most schools do.  

Your right it does say that and a whole bunch of other lovely things.  But it is up to the individual to place limitations on them and at a school i think those limitations are imposed by those higher.  Am i not correct here or would not NCMs be arrested all the time teaching officers if things did not go well?  As DS of a crse they hold a higher standing not necessarily rank in the real world.


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## HollywoodHitman (17 Feb 2005)

This is BRUTAL. You mean to tell me that a Sgt who is teaching for example, a bunch of future Infantry Officers needs to say something like 'Sir, I would highly recommend that you engage yourself accordling to the level required of this particular field operation, or I will be sad, and might have to give you a failing grade"??????????? Or do you say "Sir, if you don't get your ass moving, I'm gonna stick my foot in it".....? - Either way, there is not a chance in hell it's a serious threat. I'm willing to bet a bruised ego and some embarassment are at the roots of all of this.

Brutal.


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## big bad john (17 Feb 2005)

You have obviously not heard some of the NCO's who trained any Officer course I've taken.  Very polite, very firm, very intimidating.  All they need to mutter is those three little letters, RTU.  It is amazing how even the most senior Officer can get serious then.  In the RM, being RTUed for cause is definitely makes your career prospects interesting.


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## Wizard of OZ (17 Feb 2005)

holly wood and big john both are good points have the most validity.


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## big_johnson1 (17 Feb 2005)

I agree with HollywoodHitman, this is a brutal thread.

It's appropriate, and expected, that an instructor shows his students the proper respect due to rank and so forth, but that goes both ways, because an instructor is the student's superior, regardless of rank, while in the classroom. I would love to see one of you jack up some MCpl or Sgt who was your course instructor, see what happens when you get marched into the Commandant's office or whatever. If you have a problem with an instructor, unless it is a life or limb situation, your best bet for your own future is to take it to the chain of command and let the instructor's superiors take care of it. I don't know why this is even being talked about     Just because some people in the forces do BOTC and go to RMC doesn't mean they're any better than anyone else.

If you want to know your rights, read the QR&Os, Volume 2. 
http://www.admfincs.forces.gc.ca/admfincs/subjects/qr_o/vol2/intro_e.asp


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## big bad john (17 Feb 2005)

Feral said:
			
		

> I agree with HollywoodHitman, this is a brutal thread.
> 
> It's appropriate, and expected, that an instructor shows his students the proper respect due to rank and so forth, but that goes both ways, because an instructor is the student's superior, regardless of rank, while in the classroom. I would love to see one of you jack up some MCpl or Sgt who was your course instructor, see what happens when you get marched into the Commandant's office or whatever. If you have a problem with an instructor, unless it is a life or limb situation, your best bet for your own future is to take it to the chain of command and let the instructor's superiors take care of it. I don't know why this is even being talked about     Just because some people in the forces do BOTC and go to RMC doesn't mean they're any better than anyone else.
> 
> ...



Courtesies such as aaddressingOfficers as "sir" are to be expected.   But rank is left at the gate on courses with field work and left while "on duty" (yes, I know, technically an Officer is never off duty) at any courses which I have taken.   

I have also "advised" some Officers while I was posted to CTCRM on the consequences of their _trying _ to throw their rank around.   The world is not perfect, it does happen.   But hopefully it will be part of the learning process.


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## P Kaye (18 Feb 2005)

>> I agree with HollywoodHitman, this is a brutal thread.

This topic is only "brutal" because you're reading it the wrong way.
Nobody here is advocating officers running around on course arresting their instructors.
I am interested in this issue from a legal perspective.   I want to understand the NDA and QR&O's better, because everybody claims to know them, but many people make vague or false references to what is actually in them.
LEGALLY speaking, I can't find anything in the NDA or QR&Os addressing the specific issue of rank and authority on course.
If you've studied any law at all, you'll know that MP00161 is correct.   A CO or base commander (or even a judge) can NOT override federal legislation like the NDA.   It takes an act of parliament to do that.   The QR&O's are actually a set of regulations guiding the APPLICATION of the DNA.   Much of what is in the QR&Os is direct references to the NDA.

You are obviously correct, except in an extremely unusual case, it would be "brutal" for an officer on course to arrest an instructor.   But it is most certainly NOT "brutal" for those of us who want to understand the technicalities of the NDA better to discuss where the LEGAL authority lies.   Most people in the CF claim to know the NDA and the QR&O's.   Most have not actually read them front to back, however.   I frequently hear people make vague or false references to the NDA and QR&O's.   What IS "brutal" is when people cite legislation they have not even read, or do not understand.


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## George Wallace (18 Feb 2005)

Now we wouldn't have much of an Armed Forces if everyone were an AJAG, now would we?

Even AJAGs don't know everything about what CFAOs, QR&Os, The NDA, and numerous other Acts, Rules and Regulations.  In fact, I have had opportunity to point things out on occasion.  A little skill in researching and anyone can find the appropriate ruling. 

Time, I think, to drop this subject?

GW


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## P Kaye (18 Feb 2005)

>> Even AJAGs don't know everything about what CFAOs, QR&Os, The NDA, and numerous other Acts, Rules and Regulations.  

Of course not.  But they know a heck of a lot more than me... if any of them monitor Army.ca, they might be able to add some clarity to this issue.

>> In fact, I have had opportunity to point things out on occasion.  A little skill in researching and anyone can find the appropriate ruling. 

Exactly.  There's nothing like a little "preventative research" to avoid getting one's self into an ugly situation, not knowing who has what authority to do what.  That's part of what Army.ca is all about, right?

>> Time, I think, to drop this subject?
Well, like most subjects, it will die when nobody else has anything to add.  This one hasn't gotten very long or out of control yet.... just look at the "gun control" thread!


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## big_johnson1 (18 Feb 2005)

I want to know one for instance of when an officer has had occasion to arrest an instructor on course. And not some story about how your best friend's cousing's uncle's mechanic did it once, but something that can be verified. I think this is a ridiculous thread because there are a lot of people out there that are going to get the wrong idea regarding this.

I'm not much of one who memorizes the QR&Os, and I know little of the NDA except that which is quoted in the QR&Os, but I do know how to find information, and, like GW says, that is more important because you can't be expected to know everything in there. It is, however, very simple to find references to arrest. If you want to know, you CAN arrest your course instructor.

QR&O Vol 2 105.04 states that an officer may arrest or order the arrest of any non-commissioned officer, any officer of equal or lower rank, and any officer of higher rank that is engaged in a quarrel, fray or disorder.

It doesn't get much more clear than that. From the situations you are talking about, it seems you are concerned with physical violence on the part of the instructor, and that means that technically you could arrest your instructor if he/she was the CDS. But again, why? The chain of command is in place to take care of these types of problems, and while I agree that everyone out there needs to have knowledge of their rights, that doesn't always mean that you should exercise those rights.

Feel free to read up, there's lots of good stuff if you have the patience to sort through the legalese: 
http://www.admfincs.forces.gc.ca/intro_e.asp


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## P Kaye (18 Feb 2005)

>> I want to know one for instance of when an officer has had occasion to arrest an instructor on course

I don't know of any instance ever having occurred.   Again, I was curious.   You could imagine an unlikely, but possible, situation in which an instructor "loses it" in the field, and attacks a student.   In such a case, in order to protect his own safety, ordering another instructor to affect an arrest may be reasonable.   Of course this ia highly unlikely scenario, as course instructors are very well trained, and for the most part, very professional.
But again, this is only a discussion forum.   Nobody is arresting anybody!

>>   I think this is a ridiculous thread because there are a lot of people out there that are going to get the wrong idea 

Just as you got the wrong idea, apparently.   All I can suggest is read carefully!   Weren't you ever taught that no question is "ridiculous", unless you already know the answer?.   I don't think we should avoid asking certain questions or discussing certain topics, just because somebody might misunderstand the point.

>> I'm not much of one who memorizes the QR&Os, and I know little of the NDA

Agreed, "memorizing" the QR&Os is a bit excessive.   I do, however, think that it is the duty of every soldier to at least READ the NDA front-to-back at least once.   It's not that long (I've done it).   It is our governing legislation as soldiers, so I think it should be required reading, and it should be tested.   Not so that soldiers have it memorized, but so they have a basic familiarity with what it covers.   It's much easier to look up information later if you know what you're looking for because you've seen it before.   
I was actually very suprised on my BMOQ that we were not given a copy of the NDA to read, AND we were given FALSE information by our Course Officer as to what is in it.   He claimed the NDA gives military officers special rights of entry and search of civilian premises if he/she beleives there are illegal drugs on the premesis.   I asked where this was detailed... he said "the National Defence Act".   I read the NDA, and discovered that he was completley wrong.   There is no such provision anywhere in the NDA.   Telling BMOQ officer candidates that they have this kind of authority is dangerous... one of them might try to exercise it someday, and wind up in jail.

I suppose this is a related topic: do people agree that the NDA should be required reading for ALL soldiers at BMQ?

>> Feel free to read up...
Thank you!


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## Wizard of OZ (18 Feb 2005)

I suppose this is a related topic: do people agree that the NDA should be required reading for ALL soldiers at BMQ?


If we want them to be on crse for about 6 months sure cause to read and understand it would take that long. ;D


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## P Kaye (18 Feb 2005)

>> If we want them to be on crse for about 6 months sure cause to read and understand it would take that long. 

Surely you don't have that low an opinion of our soldiers!!   
Have you actually read the NDA?   I have, and it's not really that long an act, and it's not hard to understand the jist of it.   It could be read in a one-hour period, and discussed in a second one-hour period.
I'm not suggesting we make them go to law school and be able to argue the finer points of the relationships between the NDA and the Constitution!


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## big bad john (18 Feb 2005)

They would be better off learning their soldier/trade skills and the "Rocks and Shoals" than the whole act.   I believe that part is covered.   Correct me if I am mistaken anyone.   Arresting and laying of charges is not that much of a Soldiers life.


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## Wizard of OZ (18 Feb 2005)

Surely you don't have that low an opinion of our soldiers!!  
Have you actually read the NDA?  I have, and it's not really that long an act, and it's not hard to understand the jist of it.  It could be read in a one-hour period, and discussed in a second one-hour period.
I'm not suggesting we make them go to law school and be able to argue the finer points of the relationships between the NDA and the Constitution! 

No i don't have a low opinion of our soliders i just know how the crse are made and when you factor in the coffee breaks questions and power point presentations this would be at least a 6 month crse. ;D

In reality i could be done in a week but big john is right it should be factored to where and who is learning it.


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## P Kaye (18 Feb 2005)

>> They would be better off learning their soldier/trade skills and the "Rocks and Shoals" than the whole act.

Again, they could do it in two lecture periods (even one period, if you had them skim over some of the gory details).  This would not prevent them from learning soldiering skills.  At LEAST every soldier should be given a photocopy of the act on their BMQ, and suggested that they read it on their own.  But I really think a lecture period or two should be given to it.  It is fundamental knowledge... the act that gives legal authorization for the military to exist, train and conduct operations.

I agree though, it's a matter of time.  If it takes a week, it's obviously infeasible.  I do think it could be covered in two hours though (we weren't allowed coffee breaks in the middle of our lectures on my BMQ!).


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## big_johnson1 (18 Feb 2005)

Regarding teaching the troops the NDA, I have had no occasion to even see it other than what is quoted in the QR&Os. I will say though that on the Junior Leader's Course there is an in-depth study of the QR&Os and discussions of arrest and charge procedures. It's not really necessary for a Private or a junior Corporal to know how to arrest someone, and completely out of their scope to lay charges, but at the junior leader level it is covered quite extensively (although laying charges still depends unit to unit, although I think that has already been covered). We had to do searches through the QR&Os and CFAOs for several weeks, and while this is not a complicated thing, it gives you the opportunity to read through the regs and understand that there are many slight differences to what is said in one paragraph, to what is said in another paragraph that at face value seem to be the same. As for officers, I haven't been to BOTC yet, and I got an IAP bypass so I didn't do that either, so I have no idea what they teach there, but I would expect that again, it would be a quick and dirty explanation of the regs appropriate to the rank it is being taught to, similar to the bits and pieces covered on BMQ.

I understand what you are saying about people telling you one thing, and finding out that in reality, the regs state something different, as I myself have been in the same boat. A lot of things aren't told to us, and the only way you can get them is if you read the CANFORGENs and understand your rights. But BMQ isn't really the environment for that. One of the key issues as a junior leader was to be able to help those under you understand their rights. I helped one of the guys I worked with understand his rights and obligations for commonlaw statues, because he didn't know where to look and didn't want to get secondary information from the CC that may or may not be in his best interest. From what I've seen, a lot of the troops don't give a damn about their rights until the opportunity arises when they will need to exercise those rights. Not that I'm using a blanket statement here, but I think a lot of the younger members who join tend to miss the importance of that information, until they've matured to the point where they realize how much a few lines in the CFAOs or NDA can affect their lives.


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## P Kaye (18 Feb 2005)

>> It's not really necessary for a Private or a junior Corporal to know how to arrest someone

True, but it might happen that they are arrested for some reason.  If they knew the NDA they would know what to expect, what their *legal* rights are exactly, what should happen immediately following the arrest, and even who is authorised to arrest them.  They would understand better that an arrest is not the same as a charge.

>> if you read the CANFORGENs 

Unfortunately, this gets back to a common problem for Class A reservists... we usually don't have access to the DIN, except on parade nights, whe we're too busy to read things like CANFORGENs.

>>  a lot of the troops don't give a darn about their rights until the opportunity arises 

Exactly... we can't trust that they're going to go off and read the NDA on their own (like I did), or read a thread like this on Army.ca.  We hvae to be sure it is part of their basic training, IMO.


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## George Wallace (18 Feb 2005)

P Kaye said:
			
		

> True, but it might happen that they are arrested for some reason. If they knew the NDA they would know what to expect, what their *legal* rights are exactly, what should happen immediately following the arrest, and even who is authorised to arrest them. They would understand better that an arrest is not the same as a charge.



Get real.  We do not need any "Barrackroom Lawyers" resisting arrest because they think they know their rights.  An arrest and charge will not happen over a short period of time.  A soldier arrested or charged will be given an opportunity to seek council and will probably have an Assisting Officer assigned to them.  They will have access to QR & Os, CFAOs and whatever documentation they may require.  



> Unfortunately, this gets back to a common problem for Class A reservists... we usually don't have access to the DIN, except on parade nights, whe we're too busy to read things like CANFORGENs.
> 
> >> a lot of the troops don't give a darn about their rights until the opportunity arises
> 
> Exactly... we can't trust that they're going to go off and read the NDA on their own (like I did), or read a thread like this on Army.ca. We hvae to be sure it is part of their basic training, IMO.



I think that your curiosity should be sufficiently sufficed by now.

GW


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## garb811 (18 Feb 2005)

Wizard of OZ said:
			
		

> "So you're saying the School Cmdt, normally of the rank of Maj or LCol, has the authority to issue a Standing Order which will then override the NDA?   Next thing you'll be telling me is that Base Commanders can direct the MPs that they can process any Impaired Driver they want as long as it's not an Officer... "
> 
> Really is that what it says or does it say that while attending a school you don't carry that rank with the instructors as superiors?
> 
> ...


Obviously you've had much more exposure to the various school Standing Orders in your 5 years than I have in my 19 and since I have absolutely no idea which set of school SO's (CFLRS? CFMPA?) you're referring to I'll let you continue with your belief that an Officer can override an Act of Parliament.      

Now having said that, thinking about it a bit you may be referring to a SO which states something along the lines of "Directing Staff, no matter what the rank, carry out their instructional duties under my authority and as such, any direction which they give you may be considered to be direction from myself" (I'm just just winging the wording here but I think you get the point).   Something like this would definately set the tone that the instructors are to be heard and obeyed but it does not remove the students rank and authority provided by the NDA, nor does it make a lower ranked instructor a "superior" in any sense of the usage you would find in the NDA or QR&O's.   I know there are some folks posted to various schools on here and it would be interesting to see if their SO's have anything which covers this topic.   If you want Oz, feel free to PM me with an actual reference to support your claims and we'll carry on from there.

Also, please note that I originally said "Technically your friend could have arrested the instructor, however whether he should have is another matter entirely.".   I am in no way advocating having a course full of 2Lts running around trying to arrest their DS in any way, shape or form.



			
				P Kaye said:
			
		

> If you've studied any law at all, you'll know that MP00161 is correct.   A CO or base commander (or even a judge) can NOT override federal legislation like the NDA.


Taking this thing further off the rails... Actually a judge (at any level) can override federal legislation by ruling it to be Unconstitutional and it's up to the Crown to decide to appeal this or not.   If the Crown declines to appeal, <poof!>, law is overridden and no longer enforceable.   Doesn't happen every day but it can and does happen.   Pot possession and the Prohibition on Gay Marriage are two recent, high profile, examples of laws being declared Unconstitutional.



			
				George Wallace said:
			
		

> Get real. We do not need any "Barrackroom Lawyers" resisting arrest because they think they know their rights. An arrest and charge will not happen over a short period of time. A soldier arrested or charged will be given an opportunity to seek council and will probably have an Assisting Officer assigned to them. They will have access to QR & Os, CFAOs and whatever documentation they may require.


It should also probably be pointed out that the vast majority of persons charged pursuant to the NDA at the unit level are never arrested in relation to that charge.   You don't need to arrest someone to lay a charge against them.


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## P Kaye (18 Feb 2005)

>> Get real.   We do not need any "Barrackroom Lawyers" resisting arrest because they think they know their rights. 

I am real.   If candiates have read the NDA, they will know that "resisting arrest" is actually a service offence (section 150-something).   They would know that resisting arrest will only add to their problems.   They would understand that a superior officer actually DOES have the authority to arrest them, and that he doesn't need an MP to do it for him.   

You seem to be suggesting that it would be better to keep soldiers in the dark about the law, so they don't cause problems.   I suggest that they SHOULD know the law, so that they don't cause problems.

>> I think that your curiosity should be sufficiently sufficed by now.

Thank you GW, but why don't you let me decide that for myself?   The current line of debate is whether the NDA should be taught at BMOQ.   You apparently think it should not.   Your opinion on this is noted.   I would like to continue to hear other opinions on this, if it's aright with you.

>> I am in no way advocating having a course full of 2Lts running around trying to arrest their DS in any way, shape or form

Agreed, absolutely.

>> Taking this thing further off the rails... 

Not off the rails at all.   Thanks for this information... this is the kind of thing I was hoping to get out of this thread.   I was very glad to see an MP posting to it.

>> If the Crown declines to appeal, <poof!>, law is overridden and no longer enforceable.   

When this happens, is the relevant act always ammended?   Surely there must be some way for citizens to know what laws are still in force, without having to wade through years of precedent... How do we know whether a judge has overriden some aspect of the NDA in the past, rendering it obselete?


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## Wizard of OZ (18 Feb 2005)

Pot possession and the Prohibition on Gay Marriage are two recent, high profile, examples of laws being declared Unconstitutional.


Please post the case law that show pot possession to be constitutional.  That i would love to see.  

Gay marriage is a charter issue.

Taking this thing further off the rails... Actually a judge (at any level) can override federal legislation by ruling it to be Unconstitutional and it's up to the Crown to decide to appeal this or not.  If the Crown declines to appeal, <poof!>, law is overridden and no longer enforceable.  Doesn't happen every day but it can and does happen.l.

Really a judge at any level can override federal legislation?  By ruling it to be unconstitutional.  By this i am assuming you mean an act brought into effect.  
I thought only the supreme court could make those rulings(constitutional or not).  Other courts if not appealed make bidding case law to effect how police work and law exist.  

All that was meant by the other part was that the DS is the authority in the class room.  They do not outrank them in the real world.  And yes it would come from the CO of the school not to override any act of Parliament.


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## big bad john (18 Feb 2005)

P Kaye said:
			
		

> >> Get real.   We do not need any "Barrackroom Lawyers" resisting arrest because they think they know their rights.
> 
> I am real.   If candiates have read the NDA, they will know that "resisting arrest" is actually a service offence (section 150-something).   They would know that resisting arrest will only add to their problems.   They would understand that a superior officer actually DOES have the authority to arrest them, and that he doesn't need an MP to do it for him.
> 
> ...




If these are truely your thoughts, I would suggest that you bring them to the attention of your unit Adjutant.  He will counsel you, then you won't have to worry about this any more.  He will also, most likely from the goodness of his heart ensure that you do not have any time to worry about over educating people who have better things to do with the limited time that they have for training.  Failing that he will apply rule number 12 to your hind quarters with a verbal roar.

Secondly, please use the spell check function.


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## Eowyn (18 Feb 2005)

Wizard of OZ said:
			
		

> Gay marriage is a charter issue.
> 
> Really a judge at any level can override federal legislation?   By ruling it to be unconstitutional.   By this i am assuming you mean an act brought into effect.  I thought only the supreme court could make those rulings(constitutional or not).   Other courts if not appealed make bidding case law to effect how police work and law exist.



Ummm, the Charter is part of the constitution.

Obviously you haven't study much law.  Any judge can rule legislation unconstitutional.  The only thing special about the Supreme Court of Canada is that their decisions can not be appealled.  Just using the gay marriage, several of the provincial courts have ruled that the historical definition was unconstitutional.


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## garb811 (18 Feb 2005)

Wizard of OZ said:
			
		

> Pot possession and the Prohibition on Gay Marriage are two recent, high profile, examples of laws being declared Unconstitutional.
> 
> 
> Please post the case law that show pot possession to be constitutional.   That i would love to see.


Feel the Reefer love:

Hitzig v. Canada
The meat of it is here:


> 170 First, if we do not suspend our order, there will immediately be a constitutionally valid exemption in effect and the marihuana prohibition in s. 4 of the CDSA will immediately be constitutionally valid and of full force and effect. In R. v. Parker, supra, this court declared the prohibition invalid as of July 31, 2001 if by that date the Government had not enacted a constitutionally sound medical exemption. Our decision in this case confirms that it did not do so. Hence the marihuana prohibition in s. 4 has been of no force or effect since July 31, 2001. Since the July 8, 2003 regulation did not address the eligibility deficiency, that alone could not have cured the problem. However, our order has the result of constitutionalizing the medical exemption created by the Government. As a result, the marihuana prohibition in s. 4 is no longer inconsistent with the provisions of the Constitution. Although Parliament may subsequently choose to change it, that prohibition is now no longer invalid, but is of full force and effect. Those who establish medical need are simply exempted from it. This consequence removes the cloud of uncertainty from the marihuana prohibition in s. 4 of the CDSA - a cloud which we were told in argument has created very considerable confusion for courts and law enforcement agencies alike. A suspension of our remedy would simply have continued that undesirable uncertainty for a further period of time.



Note that as this was the Court of Appeal for Ontario and in their view, from the period July 31, 2001 to October 07, 2003, simple Possession of Marijuana was not illegal in Ontario.



> Gay marriage is a charter issue.



Eowyn already dealt with Charter=Constitution so here's the Case Law lovin' on this one.   Note that this one is declaring Common Law Unconstitutional vice a Statutory Law:   Halpern v. Canada (Attorney General).   Again, Court of Appeal for Ontario so this ruling is technically only binding in Ontario but once you get to this level, most other Provincial Court systems start paying attention.



			
				Eowyn said:
			
		

> The only thing special about the Supreme Court of Canada is that their decisions can not be appealled.


It might be appropriate at this point to let say that once it's be declared Unconstitutional by the Supreme Court there are only two choices should the Legislative body not agree with the Courts ruling:   1)   Invoke the Notwithstanding clause of the Constitution which overrides the Supreme Court decision for a 5 year period and keeps the law in effect, or 2)   Parliament, or other Legislative body with jurisdiction, redrafts the law in an attempt to make it Constitutional.


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## big bad john (18 Feb 2005)

The only thing special about the Supreme Court of Canada is that their decisions can not be appealled. 

I am curious.  Is it not true that decisions of the Supreme Court of Canada can be appealed to the Privy Council?  I am relatively new to Canada.


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## big_johnson1 (18 Feb 2005)

Since we're veering dangerously off topic here.. 

I'm going to agree with GW that we don't need every Tom Dick and Harry running around telling everyone what their rights are. When people are charged, most of the time it happens when you're marched into the RSMs office to do the hatless dance, no one needs to arrest you and when an arrest is made you need to think long and hard about why it is being done by you and not by an MP or a senior member present. During courses, most of the time there are more than 1 DS present, and should one of the instructors get out of hand, it would not become YOUR responsability to deal with it, but it would be the responsability of the other instructors. I still have yet to see an instance where a student would arrest an instructor.

As for teaching the NDA in BMQ, why? We get taught military law on BMQ, I remember because recently I found my old notes and laughed because my handwritting consistently started out as a neat and tidy sentance, and morphed into a scraggaly line that was completely unreadable. Case in point, you're generally too tired or you just don't care. As for resisting arrest, well, if you actually need to arrest someone, they're probably drunk, in which case they'll resist whether they are aware of their rights or not. I understand the brief coverage of the QR&Os and military law on BMQ, but there is no need to teach more than that at that level, especially when courses are being shrunk every day. What did the old guys in my unit tell me, something like 11 weeks on Cornwallis for BMQ? It could be the old "when I was your age I walked 20 miles each way uphill to school" story, but either way, courses are getting shorter and more rushed as we try to push more pers through the system to bolster the ranks. Knowledge of your rights is important, but I'm going to stick with the original thought that most recruits couldn't care less. Be a good leader, have that knowledge or at least the skill to find the knowledge to pass on to your troops. Know enough about them to be able to find out when there is a problem, and then be there to help them. It's in their best interest and yours. I'd rather help the guy working for me before his problem gets full blown and he ends up marching before the CO.

By all means I'm not advocating keeping people in the dark, but how many of us truly pay attention to what our rights are until we are required to exercise them? Lets take that class in BMQ and teach OBLIGATIONS before we teach rights.

I guess we're just trading arguments back and forth here, but I have yet to see what possible benefits there are to teaching the NDA to a bunch of recruits on BMQ. Wait till they get to the JLC level. Once there, they are supposed to have the knowledge and experience to be able to want to learn and use what they learn properly.


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## garb811 (18 Feb 2005)

P Kaye said:
			
		

> When this happens, is the relevant act always ammended?   Surely there must be some way for citizens to know what laws are still in force, without having to wade through years of precedent... How do we know whether a judge has overriden some aspect of the NDA in the past, rendering it obselete?


Yes, but the problem becomes keeping up with the amendments.   





			
				big bad john said:
			
		

> The only thing special about the Supreme Court of Canada is that their decisions can not be appealled.
> 
> I am curious. Is it not true that decisions of the Supreme Court of Canada can be appealed to the Privy Council? I am relatively new to Canada.



From the Supreme Court website:


> The Supreme Court of Canada is Canada's highest court. It is the final general court of appeal, the last judicial resort for all litigants, whether individuals or governments. Its jurisdiction embraces both the civil law of the province of Quebec and the common law of the other provinces and territories.



I'm also against teaching the NDA on BMQ as it just too broad of a document to cover anything meaningful in the time which could be allotted.  Even handing it out for reading on their own time is fraught with danger as simply reading "the law" without the amplification provided by QR&Os, CFAOs, DAODs etc etc all you are doing is leaving the recruit liable to make his own, probably wrong, assumptions about what they are reading.


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## HollywoodHitman (18 Feb 2005)

Brutal.


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## P Kaye (21 Feb 2005)

I think I've been convinced... the NDA is too  much for the BMQ.  My thanks particularly to Feral and MP for your good arguments on this.

For those of you who have been content to respond with sarcastic, ill-tempered, or generally bad-mannered comments, you're the reason why I have decided to reduce or discontinue my contribution to Army.ca forums.  

Clearly, there are a few people on Army.ca who lack the maturity to argue their points without behaving like ill-tempered children.  I've never encountered these kinds of intolerable snide comments amongst my peers, superiors or subordinates in either the army, or the civilian worlds.  There are some people on Army.ca who seem to enjoy the opportunity anonymity affords them to be rude and belligerent, and I've had enough of it.  Unfortunately it only seems to be a few people who behave like this... congratulations to those few... you've managed to turn someone else off of Army.ca.

P Kaye


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## Bruce Monkhouse (21 Feb 2005)

Well, if thats the way you feel, bye bye, I just read through your posts and gee, if one asks contentious questions and offers opinions in such things as gun control, etc., just what did you think would happen? Not everyone is going to say, Yes, Mr. Kaye.
Guess what, welcome to life......


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