# Should the Charter of Rights and Freedoms and the Canadian Human Rights Code apply to the CF?



## Cloud Cover (14 Aug 2004)

I want to pick up on something that PBI alluded to in an earlier post in http://army.ca/forums/threads/17581/post-91000.html#msg91000, [culture of blame/entitlement], and perhaps this should be a new thread as it may be good topic for future reference. This comment is directed at current and former members of the CF who served through all or part of the 1980's ... of course, all members are welcome to respond.   Should the Charter of Rights and Freedoms and the Canadian Human Rights Code apply to the CF? 

My experience both in the uniformed CF and in my present occupation on civvie street in a self regulated profession leads to me to conclude that neither the Charter of Rights and Freedoms nor the Canadian Human Rights Code ought to take jurisdiction over currently practised policies, pratices and procedures WRT CF employment policies. I believe that while the CF should adopt policies, practices and procedures that reflect the values and priciples of the Charter and the CHRC, those statutes and constitutional imperatives were not designed for military application, and do not take into account the reality and necessities of military service. 

Instead, here is what I think should be put in place:

The Ministers Advisory Board on Gender and Employment Equity should be immediately disbanded. All of their reports ought to be thrown into the burn bag. The MABGEE is, was, and will always be a waste of scarce resources that has never produced a credible report or reached a decent conclusion on their own. They constantly recommend changes resulting in further "feminization" - i.e. lowering of standards to achieve what they call "true equality" and related concepts.   [and I mean that in the "global sense", therefore in no way am I advocating gender discrimination in the military.]     

The CF Greivance Board, insofar as it deals with human rights issues, should be reconstituted as a board of first instance, and nothing more.   Civilians employed in the capacity of giving human rights advice or other support may be retained or re-employed as necessary, but they ought to be vetted for any hidden personal agendas.   

A new Tribunal or Board [not one of the JAG variety] should be established, staffed only with properly qualified   members [not lawyers] who are currently serving or who have served with distinction in the CF.   Selected members would sit on the board for fixed terms, around 4 years or so, and all appointments to the board should be on the approval of a majority of a 10-15 member selection committee comprising long serving NCM's only.   Tribunal appointments will be staggered to ensure a mix of experience with fresh perspectives is available and reflected in the decision making process. Let me clear here: Tribunal members are separate and distinct from selection board members. The MND/CDS and all related clowns will have no say on the composition of the Tribunal or the selection committee.


The CF should have its own Code dealing with human rights types of matters. The Code should incorporate to the maximum extent possible fundamental rights and values of the Charter and the CHRC, without imposing an undue burden on an organization whose primary function is [ought to be] war fighting.   In the decision making process, the Tribunal or Board could and should refer to decisions of other human rights tribunals, however the legal principle of _stare decisis _ [binding precedential authority of a higher Court] will have no application in the Code.   

Every member of the CF will be subject to the Code and all of its provisions.

Every member of the CF ought to have gauranteed access to the Code in the event of a breach of the Code.   The Office of the Military Ombudsman will have the right to be notified of every hearing before the board or tribunal, and will have the right to make representations and arguments before the board. The OMB can, with the consent of the complainant, represent the complainant.

No reprisals may be taken for a complaint under the Code that has merit or even breaks new ground.   Frivolous and vexatious complaints calculated or designed to cause injury to the reputation of respondents in the system will be dealt with by appropriate sanctions including a reccommendation for dishonorable discharge.

The board or tribunal shall have remedial order making power including order to accommodate, and in certain cases monetary damage awards payable to the complainant. The board may make recommendations to have respondents face further administartive action such as demotion, dismissal.         

The Code should be subject to judicial review on a standard of correctness for the interpretation of "law" but with certain modifications in order to exclude the more oppressive systemic remedies that may be, and have been, imposed by the current civilian system. In other words, the Code will not be subject "to the political winds of the day."

Above all, common sense will prevail. The "principle of fairness", properly modified to a military requirements, ought to be the driving feature of the Code. 

"Patent unreasonableness" WRT   interpretation of matters of fact, policy and procedure, and operational requirements should be the level of deference given to a Tribunal or Board charged with overseeing the enforcement of the Code. 

I think one benefit of such a system will be that civilian oversight of military human rights affairs will be eliminated, however due process rights with legal representation will be preserved and enhanced. The present one sided David v. Goliath aspect of military human rights issues will be substatially evened out, and the risk of expensive and demoralizing systemic remedies will be much reduced if not outright eliminated. Above all else, political interference will hopefully be eliminated.      

The entire rights system should be funded by the DOJ, and not the DND.

At the present time, twenty year olds entering the CF today were born into the Charter era and the evolving concept of rights and   entitlements. They are products of what some in the legal profession refer to as the "culture of victimhood" that permeates Canadian society. Therefore, they have probably experienced nothing different than what the Charter has provided for them. In contrast, there are serving members who enrolled in the CF before the Charter, and have seen/experienced some of the collateral damage inflicted upon the CF as a result of the surge in human rights and Charter based decisions ... while some of those decisions have produced just and fair outcomes, many have resulted in changes which undermine the effectiveness of services by damaging morale; imposing systemic remedies and education programs which are expensive, time consuming and of little value for the effort and resources invested; and in a few cases have resulted in lowering of critical training standards.   

My apologies for carrying on at length, and perhaps this should be set up as a separate topic for discussion. 

Cheers, 
Fred.            


Edited by M. O'Leary to split from older thread and insert reference link in first para.


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## pbi (14 Aug 2004)

Fred: a great post: I hope it stirs others to write as well. I agree with your points, and you have thought the plan out well. BZ. If we really could do this, I believe it would be good for us.

The obstacle we face is, in my mind, a political one: I doubt any Canadian government that could actually win a majority in this country would be inclined to exempt us from the provisions, even though perhaps the "notwithstanding" clause might apply.

As well, we would have to police ourselves very, very well, in a completely transparent way. We could not send a signal to the latent dinosaurs and sickies that it's time to turn back the clock. That would skewer us, because to a certain extent that's what attracted the unfriendly fire to us in the first place. We had some pretty unpleasant people in the Army, and they played right into the hands of the do-gooders.

Cheers.


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## Slim (14 Aug 2004)

Excellent post. I agree 100%. The introduction of the human rights and all that goes with it have lowered the standards of our fighting forces to the point where they're not even allowed to call them selves fighters anymore. And as for gender normalizing...*One army, one standard. enough said!*

Slim


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## Infanteer (14 Aug 2004)

Other militaries (Australia, Britain, United States) have to some extent saw fit to exclude their Armed Services for the demands of a society on the basis that these demands may inhibit the ability of the Military to fight and win wars.  Clearly the national interest of security overrides the ideal desire for "equality" (a concept which is also up for interpretation).

As well, I further challenge the notion that the Canadian Forces should be a representative of the society it serves and that our recruiting and training policies should be brought in line to promote this ideal (Bold Eagle, "Women in the CF" at the forefront of the Recruiting page)

The Military is a specialized institution charged with a unique duty.  As such, it should be free to define the norms of its sub-culture as it sees fit to promote the duty of warfighting.  A military will never be able to reflect the society it represents and any attempt to do so can only result in failure.  

As a friend of mine stated _"The military is not a microcosm of society.  By that logic 40% of our members should be obese, a fair number should be drug users of various sorts, a percentage should be criminals, child molestors, rapists, and murderers, we should be 51% female, all trades, a quarter of our members should be pacifists and various other forms of hippy/commie/socialist, plus the various slackers, losers, and wastes of air inherent in society.

In short, this society is the last ****ing thing I want to blend in with."_

In other words, there is no standard to be a citizen of Canada and be treated as such; hence the system of rules the government has.  However, the military has a mission, and the fundamental importance of this mission determines that the CF should be free to enforce these standards as long as they promote the overall success of defending Canada.


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## Slim (14 Aug 2004)

Very well put...

I see nothing wrong with women or anyone else, for that matter, in the CF in an trade...So long as the standards don't have to be lowered to get them in and they can do their job along side everyone else and hold up their end with no unusual problems. 

Obese people...Well this has been discussed before and just because youre heavy doesn't mean your out on your keester, but there* IS * a line that should not be crossed.

Slim


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## Infanteer (14 Aug 2004)

> I see nothing wrong with women or anyone else, for that matter, in the CF in an trade...



I agree.   I find it amusing how the CF goes to lengths to stress SHARP training and pushes the image that "it doesn't matter who you are, eveybody is green...." while at the same time asks people to "self-identify" their ethnicity on recruiting forms and deliberately promoting the accomplishments of certain groups to the public for the aim of some ideal "equality of representation".   Seems like conflicting approaches to me.



> Obese people...Well this has been discussed before and just because youre heavy doesn't mean your out on your keester, but there IS a line that should not be crossed.



I think there is a clear line.   There are people with a little beer-belly or an extra chin that are still quite physically fit; just because they may not look lean and hard does not mean they are not effective soldiers, proper physical fitness standards can determine that.
Then there are people who are medically obese, so grossly overweight and likly to suffer from heart disease, circulatory problems, etc if they continue to live their lifestyle as they do; clearly, these conditions are more then likely to prohibit them from functioning properly in a militrary environment.   The sad thing is, I've seen people like this in the Forces.


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## Slim (14 Aug 2004)

One thing I've always liked about the U.S. Marines is that no matter your job everyone is a Marine first...We could go along way with that sort of attitude.

As for your observations on Obese people Infanteer, you're absolutely right. I had an acquaintance who was clinically obese working in the security industry. He has just died while still a relatively young man (42).

He died in bed and with no warning. No word on what killed him but I'll bet it was heart disease!

Slim


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## Cloud Cover (14 Aug 2004)

Well... I just want to be clear about something here. Human rights and the Charter defintely have a place in the CF, the point i was hoping to make was that the CF is a professional organization, and to a certain extent should be permitted to self govern under it's own Code, this is substantially different than the current regime in place. As I indicated, the Code would displace both the Charter and the CHRC, requiring not a section 33 clause, but a constitutional amendment within a federal sphere [provinces not required to sign on.] 

In fact, quite appropriately the CF would be the only organization in the country with such a Code, subject, as I said in my first post, to judicial review.  As an aside, even organizations such as the Law Society of Upper Canada, must interpet and apply the Charter and the Onatrio Human Rights Code to our own Rules of Professional Conduct. And yes, the LSUC has its own, very pro-active discipline committee that some[ ] call nothing but a vehicle through which many special interest agenda's are advanced. As a result, the LSUC is viewed with contempt by many honest, practising lawyers in Ontario. Sound familiar? That is why I am advocating no politcal input what-so-ever, as well as a board appointed by long serving NCM's and not senior officers and b-crats.  

 As far as the US, Australia and others are concerned .... most Western democracies have no similar piece of constituional documents [ and that includes the US Bill of Rights etc.]. The Charter is a uniquely Canadian legal construct that has origins in... you guessed it.. Quebec .... and who brought in the Charter? ... 2 Quebecois .. PET and JC. Both lawyers, both never served in the armed forces or for that matter anybody other than their own interests.   But then again, I guess they were put in charge by the electorate because of their superior intellect and ability to identify with the concerns of average Canadians. [sarcasm]


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## Slim (14 Aug 2004)

Heaven save the forces from well-meaning (or not) politically minded feminest, leftist well wishers that would do away with the service in a heartbeat. Yerch! (makes noise of disgust!) :rage:

Slim


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## Infanteer (14 Aug 2004)

I think the origins of the Charter of Rights and Freedoms is a little more complex then simply "Quebec".  Also, I don't think we should try and label such a proposition as "protecting the Forces from the left" as it tends to turn an appeal based upon the interests of the profession at heart into more of a political rant, turning the subject into a political one which is precisely what we are seeking to avoid with the proposal.


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## Cloud Cover (14 Aug 2004)

Infanteer: you are correct that origins of the Charter are not simply based on the Quebec Charter of Rights and Freedoms [RSQ 1976], however it served as a useful precedent. Of course, the Quebec Charter cannot be inconsistent with the Canadian Charter. As far as left bashing, I agree. WRT PET and JC ... not meant to be a political bash either ... but they are from the same cloth in so many ways, but so was Brian M, and the same with the present occupier of 24 Sussex Dr. People like that continue to form governments in Canada which subsitiute shifting political policy for sound military policy. In the past 30 years, only two political leaders have consistently favoured the latter over the former   .. Steve Harper and P. Manning. Neither has/had a snowballs chance of forming a government, partly  because of their views on things of a military nature.   Oddly enough, and despite media reports to the contrary, they are strong supporters of the Charter, but not the twisting of legal concepts to arrive at a construct of equality substantially different than one that should apply to a military organization. 

Best regards,
Fred.


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## clasper (16 Aug 2004)

Sorry for not quoting your entire sentence, but the following phrase just leaped out at me:



			
				whiskey 601 said:
			
		

> ...they are strong supporters of the Charter, but not the twisting of legal concepts to arrive at a construct of equality...



So are you against the Charter of Rights and Freedoms being applied to soldiers, or against lawyers trying to make a buck by proving that blind epileptic grandmothers deserve an equal opportunity to pursue their dream of joining the infantry?   (No offense to any blind epileptic grandmothers out there with military aspirations...)

The various boards out there (MAGBEE, etc.) could definitely benefit from some level of reform, and I think many of your ideas have merit, but I think it is hypocritical for Canadian soldiers to not be subject to the Charter of Rights that they are fighting to protect.

Two phrases that have been used to describe a current cultural problem are "culture of victimhood" and "culture of blame/entitlement".   Since this problem exists in most western countries, I don't think this problem can be attributed to the Charter of Rights and Freedoms or the Canadian Human Rights Code.   Based on my personal experience (living in my 3rd western country now), I would refute that the problem is worse in Canada because of the Charter.

I believe this cultural problem is the root cause of your dissatisfaction, and throwing out the Charter for soldiers (and going through the bother of writing another Code for them) isn't going to solve the root cause- it's just going to cover up some of the nasty symptoms.


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## combat_medic (16 Aug 2004)

I think the biggest point being debated here is making the CF "equal" versus "egalitarian".

The former allows anyone to serve, regardless of gender, ethnic origin, religion, political views, sexual orientation etc., provided they meet the requirements to serve.

The latter would allow everyone to serve. To allow in a quadrapalegic with cerebral palsy simply because it would be against the Charter to do otherwise.

While I don't think it's possible to apply either the Charter of Rights and Freedoms or the Human Rights Code directly to the CF, I think our own regulations and codes should be based off them, for the most part. Allow soldiers to serve in an enviroment free from harrassment, abuse, assault etc. (within reason), while still maintaining the standards that the CF dictates. Give a soldier who's arrested the right to instruct and retain counsel, to a free and impartial trial, as applicable, and a right to appeal. Let women serve without the fear of abuse of authority, harassment, and let minorities serve without fear of prejudice. 

Everyone seems to have a problem with SHARP training and, while I found the lectures and videos about as interesting as dental surgery, I could certainly see their use. For a person who does not have any preconceived prejudices, and who will likely never discriminate against someone else, they will probably see the training as rather useless. But for the one guy out of a hundred who is a racist/sexist/whatever-ist, it gives him fair warning that is he acts upon his prejudices, there will be consequences, and maybe he'll make the smart decision and keep his opinions to himself. 

The Charter and Code were written based on the ethos of the Canadian people. While the CF is, and should be held to a higher standard, we are still Canadian citizens, and should have the same ethics as the remainder of the country. We're around to defend the ethics and principles that make us Canadian.

Just as the US "don't ask, don't tell" military policy is reflective of current US social views on sexual orientation (unfortunate as it may be), our policies in the CF are just as reflective. The Canadian government removed the death penalty in 1976, but the Nation Defense Act kept capital punishment on the books until 1998. While it hadn't been carried out for 50 years, the military saw it necessary to keep their laws tighter and more severe than the remainder of the country, and they still do. Offenses that are considered a misdemeanor in regular court could land you in detention barracks in the CF. With power comes responsibility, right? 

While the CF may not apply either the Charter or the Code directly to soldiers, I have no doubt that the Generals who are writing CFAOs, the NDA and other governing documents of the CF certainly are keeping them in mind.


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## Cloud Cover (16 Aug 2004)

Combat Medic- it goes much deeper than that ... Canadian Forces members have a far tougher time obtaining justice than other members of society for a myriad of reasons. I think internalizing Charter and HR problems to an arbitration board comprosed of military personnel would manifestly produce far more expeditious results which better suit the military way of life. We don't ask civvies to settle their Charter and HR problems under the rubric of a military culture, yet it is expected that the reverse apply to serving members. Ralph Irvine fought for 10 years before he received proper recognition by the justice system, despite 29 years of outstanding service and the fact he had the support of his superiors the whole way through. They were more than willing to accommodate him, it was the b-crats who made a fight of it. Mr. Matt Stopford's case is another glaring example of atrocious behaviour that transcends bounds of common decency, let alone respect for his current medical status. Will he ever see the day? .... Would he have to fight so hard for compensation if his cause was one of a different more politically sensitive nature? He has not suffered from percieved inequality, so somehow this has raised the threshold with respect to his claim. He is disabled, he can no longer serve, and he has been discriminated against in a multitiude of ways ... and for what purpose?  

I am in favour of Charter/HRights principles for serving members of the CF, I just think that the opportunity to invoke procedural delay in the current system is too tempting for the higher ups to pass by. Conversely, a different standard is provided for them, and there is rarely a time for them to go cap in hand and request fair treatment. They just take it, and more. 

And yes, the concept of gauranteed success with respect to certain egalitarian outcomes is troubling given the nature of the institution and it's assigned role, which is not analogous to any other in society.


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## bgreen (17 Aug 2004)

Great discussion....,

This year I am teaching History 30 to a group of grade 12 students and I will cover the charter as part of the curriculum material.  In covering their rights as citizens I am also going to challenge these students as to their responsibilities.  As part of the responsibility training, I am covering leadership styles and follower duties, service to country and others, as well as being informed decision makers.

I just completed the Law of Armed Conflict course at PSTC in Kingston.  I am very proud that we as CF members have agreed to such a chivalrous code of conduct.  Likewise I think the Charter is a cultural practice that would be the envy of a lot of developing nations.  But I feel quite strongly that we need a warrior ethic that is valued by CF members, our government and of course Canadian citizens.

While not advocating a class structure, I think a valued class of warriors/soldiers (Gurkha) governed by the NDA and QR and Os is the way of the future.  Our veterans did heroic deeds.  Our serving members are likewise engaged in honourable missions.  How do we encourage/demonstrate to those yet to come and our nonserving citizens our worth if not by our own service freely given?


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## Infanteer (17 Aug 2004)

Ahh, the timeless debate of the essence of the "warrior culture"; I've seen arguments get wrapped around the axles over this theoretical concept; often in misapplied rants.

BGreen, good on you for giving our young students such a lesson.  I am glad to see that now every teacher is a card carrying unionist that insists that Louis Riel was a hero and all Canada did in the Second World War was to intern Japanese people.


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## pbi (17 Aug 2004)

_"I believe this cultural problem is the root cause of your dissatisfaction, and throwing out the Charter for soldiers (and going through the bother of writing another Code for them) isn't going to solve the root cause- it's just going to cover up some of the nasty symptoms._

Hmmm. Good point here. I'll reverse engines a bit to accept that this may indeed be true. Maybe wwe don't need to change the protection of rights: maybe we need to change the attitudes of our people. My example is the USMC, with whom I have some famiilarity: while I do not know to what (if any...) extent the US military is exempted from the Constitutional Amendments or other bills of rights, I know that the US is a nation that holds these things up very proudly. The Marines, however, do not have to deal very often with Marines who are fat slobs, or who won't cut their hair, or who want to dress and act like ragbags. This is, in my opinion, because Marines have learned to develop a warrior spirit and a fierce pride in being Marines. As a rule they do not act in any whiny, unprofessional manner, and they look down severely on the US Army which they regard as an employment agency for the indigent of America.

The Marine of today is trained under a revised Recruit Depot system known as "The Crucible". While this has had mixed reviews by Marines and others, a key idea behind it was to work on challenging the minds of young recruits as well as their bodies. Emphasis was placed on identifying and developing natural leaders, and on instilling the importance of virtues such as honesty, persistence, team work and courage. These virtues were specifically noted as lacking in Marine recruits and it was felt to be affecting the Corps.

The Marines are not perfect, and the Corps has its problems. But, I think they have taken a path that we should follow. Train and educate our people to think of themselves as soldiers first, with mission ahead of self. Much as bgreen has suggested, we need to instill the warrior culture and outlook, to offset that whiny "what's in it for me?" mentality that permeates our society.   (Good post bgreen-how was the tour?) There are pitfalls, and we risk the mortal sin of being un-PC, but perhaps there are greater risks we should think of. Cheers.


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## Torlyn (17 Aug 2004)

combat_medic said:
			
		

> I think the biggest point being debated here is making the CF "equal" versus "egalitarian".
> 
> The former allows anyone to serve, regardless of gender, ethnic origin, religion, political views, sexual orientation etc., provided they meet the requirements to serve.
> 
> The latter would allow everyone to serve. To allow in a quadrapalegic with cerebral palsy simply because it would be against the Charter to do otherwise.



I think you may be mistaken here...  THe charter does not, and would not grant said quadrapalegic with CP in to the armed forces..  The caveat being "...[CCRF] guarantees the rights and freedoms set out in it subject only to (this is the important part) such reasonable limits prescribed by law as can be demostrably justified in a free and democratic society."

This is how certain exemptions such as the one you erroniously mentioned would not occur.  What I find extremely alarming is the propensity in this thread for people to ignore the CCRF for military application...  I thought that as part of the military, you (not sure on the honourific...  I'm in the application process right now, so in order to not ruffle feathers, I'll stick with honourific "you")  are supposed to defend the beliefs, rights, and freedoms of Canadians.  Given that the CCRF was created in order to codify said rights & freedoms, it seems somewhat hypocritacal to swear an oath to protect these rights, and then request/desire a different set of rules/regulations for those protecting these rights.  combat_medic, I'm not suggesting that you personally believe this (as you stated further on in your post, regarding protection of the Canadian ethos), nor that you alluded to it in the quoted reply, I'm commenting on the thread in general.

As such, please keep in mind that this is a civillian perspective, which, while I'm sure some members will ignore it completely, or slag it due to its evocative nature, will hopefully be granted the same respect that messages from acting/retired members deserves.  Thanks,

B.N.S.


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## Bruce Monkhouse (17 Aug 2004)

Torlyn,
I know who you got the info. from about "slagging" something just because it came from a civilian and thats NOT the way we work around here. Your last post was a good solid post and I could care less who gave it, that is all we ask of people so that this will continue to be the place to go for good solid info and discussion.
The one thing that I can see wrong with your post[just my opinion] is yes the serving members took an oath to uphold,etc. but sometimes, I believe, it is required for the keepers of the piece to be able to fight against those who would try to destroy the peace, on the same terms, some of which would make the charter cry.  This probably has come about because of my present trade and the things I get to see and hear.
And just to restate, all we ask on the site is that when something is just your opinion, state it as such.  Thank you,
Bruce


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## clasper (17 Aug 2004)

Bruce Monkhouse said:
			
		

> ...sometimes, I believe, it is required for the keepers of the piece to be able to fight against those who would try to destroy the peace, on the same terms, some of which would make the charter cry.



Could you expand on this Bruce?  I'm having a hard time envisioning a situation where soldiers fighting for peace would have to go against the Charter (perhaps a lack of imagination on my part).

Torlyn: a much better post than I have come to expect from those in the ninja sniper clan.  Please keep heading in that direction...


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## Bruce Monkhouse (17 Aug 2004)

Clasper,
I read my post again and went, hmmm also. Where I was leaning to about the charter was more the search/ admissibility of evidence/ detainment that "might" be necessary in a certain situation/crisis.
Just a situation to help explain my position[cause I'm not doing a good job :-[]   Say, at the Oka crisis,   when a Mohawk   warrior would come out towards the military lines you can be sure that there was a "line" on the whole time.   Now if tonight during an exercise, for example, a military sniper was doing the same thing in the same place there could be a charter case brought up on discriminatory grounds.


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## combat_medic (17 Aug 2004)

I'm not suggesting that the CCRF should not apply at all to the CF, but there are parts of it that could not be applied to military life. Members of the CF are often given powers, both at home and abroad that are above and beyond what regular civilians have, and as such, are subject to more strenuous laws to keep them in check (part of the "with power comes responsibility"). Discipline with such power must be maintained, or all you have is a bunch or uniformed thugs walking around with assault rifles. 

I stated that the NDA and CFAOs and other laws by which members of the CF are bound should be based upon the CCRF, and upon the ethos of the Canadian people. However, having the CF obey the CCRF verbatim would not work. The CF needs more freedoms at times (aid to civil power, war measures acts etc.), and needs to impose harsher discipline upon its members at others. Therefore, while we as soldiers should strive to uphold the CCRA among other 'Canadian' principles and ethics, we cannot always be bound to it. We need to hold ourselves to a higher standard, and that requires tightening the rules at times.


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## Highland Laddie (17 Aug 2004)

pbi said:
			
		

> _"I believe this cultural problem is the root cause of your dissatisfaction, and throwing out the Charter for soldiers (and going through the bother of writing another Code for them) isn't going to solve the root cause- it's just going to cover up some of the nasty symptoms._
> 
> Hmmm. Good point here. I'll reverse engines a bit to accept that this may indeed be true. Maybe wwe don't need to change the protection of rights: maybe we need to change the attitudes of our people. My example is the USMC, with whom I have some famiilarity: while I do not know to what (if any...) extent the US military is exempted from the Constitutional Amendments or other bills of rights, I know that the US is a nation that holds these things up very proudly. The Marines, however, do not have to deal very often with Marines who are fat slobs, or who won't cut their hair, or who want to dress and act like ragbags. This is, in my opinion, because Marines have learned to develop a warrior spirit and a fierce pride in being Marines. As a rule they do not act in any whiny, unprofessional manner, and they look down severely on the US Army which they regard as an employment agency for the indigent of America.
> 
> ...



I agree with the points made here, both pro and con with the USMC 'system' or 'ethic' in regards to equality, etc.

At the end of the day, the incoming 5.56MM / 7.62MM / 81mm / 155MM round is not going to care about your race, gender, age, language, etc. The fact of the matter is we are soldiers first, individuals with our unique attributes (race, gender, fitness, trade) second. 

The lack of cognisance on this underlying fact is one of the key problems when dealing with 'Charter' issues in the CF. You should be able to fail people off of their BMQ/SQ/MOC/ etc course if they are not physically fit or physically capable (unlike today), because at the end of the day this may cost them their lives or someone else's life. All the Charter rights in the world won't do us a bit of good if we can't defend ourselves and our national interests, and thus have someone else's "Charter" imposed on us.


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## Slim (17 Aug 2004)

Well having been in both the old army and the new, and watched one change into the other I must say that there are some good changes and some bad ones with respect to the troopies and how they're treated these days.

But really when it comes down to whom to employ and whom to get rid of (and I understand that someone has to be really bad before they do) the only deciding factor should be *Can they do their job * 

If not, whats the point in keeping them? You're just wasting money (which is in short enough supply these days)

Is the army that scared of lawsuits that they cannot turn away anyone unless they're stark raving loonie, drooling on the pavement or have no pulse? Are there that many special interest groups waiting in the wings to pounce on the Forces if they don't hire so and so who is a member of the XXXXX Rights Organization?

I guess there are...

Slim


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## Brad Sallows (17 Aug 2004)

I think it important to clarify, and anyone who dissents from being included in "we" may do so: when we write or speak of soldiers operating under "different" rules, we almost always implicitly mean additional limitations, not liberties*.  The soldier safeguards democratic principles and human rights without necessarily enjoying the full benefit of the freedoms and entitlements and powers, but rather with additional burdens of duty and responsibility.

Rather than throw out the book and write our own, it is easiest to start with the Charter and seek exemptions only where demonstrably necessary - which is how it is done.  That not all the necessary exemptions have been sought or successfully proven is not a compelling reason to start from scratch.  If a limitation is ideologically imposed rather than rationally, it isn't going to matter whether we are subject to the Charter, etc, or not - the political will trump the military.

*Exceptions?


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## loyalcana (17 Aug 2004)

combat_medic said:
			
		

> I'm not suggesting that the CCRF should not apply at all to the CF, but there are parts of it that could not be applied to military life.



May I ask which parts of the Charter you think should not apply in military application?


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## Cloud Cover (17 Aug 2004)

Hello all:   I looked at my first and second posts and I guess I should have said in the first paragraph :     _Should the Charter of Rights and Freedoms and the Canadian Human Rights Code apply to the CF as of right?_

And in the second paragraph, I should have said: _â Å“the Charter of Rights and Freedoms nor the Canadian Human Rights Code ought to take jurisdiction as of right  over currently practised policies, practices and procedures WRT CF employment policies.â ?_

In neither post did I advocate exempting the CF from the general intent of both pieces of legislation, in fact I suggested a Code or Rules of conduct which should reflect the rights afforded under the Charter and the HRights code, with necessary military modifications. CFAO's and the like would be subject for analysis to this Code, not the conventional Charter and CHRC. And, the Code should be part of the governing legislation of a self regulating profession, because civilian tribunals and courts are constantly analogizing military situations with civilian ones, and then importing civilian remedies and ethos into what should be a pristine military environment.

Simply creating such a Code by statute is not going to purify the CF of it's social reengineering taint, nor will it chase away rednecks who are still serving. A change of code is not a substitute for a change of culture. That takes leadership in the form of leading by example, acting professionally and competently in the face of adversity, and a willingness by all to learn from others.   It seems the prevailing standing doctrine of government is one of distrust of all things military, and only the military can change that. It won't happen if the military has to go to the civilian justice system to sort itself out.


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## Cloud Cover (17 Aug 2004)

Re: Torlyn's post. I agree with Mr. Monkhouse, nothing wrong in format with that post, although I respectfully disagree with parts of the substantive argument put forth:

Torlyn said: 
_I think you may be mistaken here...   THe charter does not, and would not grant said quadrapalegic with CP in to the armed forces..   The caveat being "...[CCRF] guarantees the rights and freedoms set out in it subject only to (this is the important part) such reasonable limits prescribed by law as can be demostrably justified in a free and democratic society."_

Agreed. Nobody gets into the CF because of the Charter. A person with CP would almost assuredly not get admission to the CF. That was an extreme example, and so was the Granny one earlier, although lots of service members are grand parents! With respect to the Section 1 onus placed on the CF, see para. numbered 38 below to see how muddled that can actually be. The thread is not just about admissions to the CF, in fact I meant it to be more about what happens if, for example, a member acquires a brain injury while serving. I would expect the CF to do a lot better with respect to the treatment of the injured than it has recently. In fact, the Charter and HR Code requires this be done, as seen below in this 2004 CHRC decision, where the CF actually tried to argue, in part, the Charter did not apply, but even if it did, they were in compliance with the Code: 

_â Å“[38] The third portion of the Meiorin analysis requires that the impugned standards be reasonably necessary for the employer to accomplish its purpose; i.e. the safe and efficient performance of the job. The CAF must establish that it cannot accommodate the complainant and others adversely affected by the standard without experiencing undue hardship. The CAF must ensure that the procedure, if any, to assess the issue of accommodation, addressed the possibility that it may discriminate unnecessarily on a prohibited ground. Second, the substantive content of either a more accommodating standard which was offered by the CAF, or alternatively the CAF's reasons for not offering any such standard must be assessed. As I have already found at paragraph 139 of the 2001 decision, the September 1995 guidelines, to the extent that they allowed for individual assessment, were reasonably necessary to accomplish the CAF's goal of ensuring that members meet universality of service. Thus they evidenced a more accommodating standard in assessing members suffering from CAD than the prior 1979 standards and bridging policies. Yet the CAF failed to use a more individualized accommodating standard, such as that found in the September 1995 guidelines, in assessing Mr. XXX (further elaborated upon below).â ?_

Note: â Å“undue hardshipâ ? is a loaded legal term of art. In fact, the law requires an employer such as the CF to prove on a balance of probabilities that it would be impossible to accommodate an individuals request for Human Rights or Charter consideration, on grounds of disability or otherwise. This means either changing the job, or remuster, or some other alternative before claiming â Å“well, that's impossible because we are the army and our needs are inherently different.â ? The Meorin case noted above was one of gender discrimination involving a female forest firefighter in BC who could not pass newly implemented physical fitness standards. BC had to change the standards to meet the code. Is that an appropriate standard for the CF? The main quote, obviously, was from a case involving the air force. 

Torlyn said:
_â Å“I thought that as part of the military, you (not sure on the honourific...   I'm in the application process right now, so in order to not ruffle feathers, I'll stick with honourific "you")   are supposed to defend the beliefs, rights, and freedoms of Canadians.   Given that the CCRF was created in order to codify said rights & freedoms, it seems somewhat hypocritacal to swear an oath to protect these rights, and then request/desire a different set of rules/regulations for those protecting these rights.â ? _ 

In pith and substance, and despite the wording of the oath, members of the CF do not have to defend the beliefs, rights and freedoms of Canadians.   If they did, it would create a positive obligation to defend every citizens belief, right and freedom, real or imagined. The CF defends tangible things like the territorial integrity of a land wherein citizens may hold whatever rights, freedoms and beliefs the Legislatures and Courts say they can have. It cannot defend an ideal, because ideals are intangible.

Here's a little hypocrisy for you:

*â Å“Tailoring Standards to Probability of Involvement In Military Duties*

[51] The December 1999 review also acknowledged that some within the CAF had argued that minimum physical capability standards ought to be tailored to rank or according to the probability of involvement in General Military Duties  or physically demanding activities. For example, in the case of an officer, it conceded that Career Review decisions did not place much emphasis on whether the officer had the ability to perform General Military Duties. This was in part because the specification of duties was indefinite and also because of the greater managerial/supervisory responsibilities of officers and their more numerous options for staff employment. Unfortunately this argument of tailoring standards to probability of involvement had been internally rejected on the basis that:

".... consistency in policy was essential if credibility with the Human Rights Commission were to be maintained. In other words, the Working Group concluded that it would be better to defend a one-dimensional policy that looked consistent, but which had little or no empirical grounding, than to attempt to defend a differentiated policy that more accurately reflected the requirements of different rank levels." 

Why the CHRC feels it is unfortunate to have consistency in policy and standards in a military organization simply reflects that they are the wrong organization to be reviewing Charter and Human Rights issues at the CF. You have to admit, it takes an extraordinary amount of calculated gumption to facially implement a one dimensional policy, ostensibly for all of the CF, and then start making exceptions to it on a case by case, rank by rank, gender over gender, race over race system of promotion, retention, remuster etc.      Makes it tough for senior NCO's and Captains to look their troops in the eye and tell them that although they would prefer â Å“virtues such as honesty, persistence, team work and courageâ ?, when the chips are down, they'll have to take as a substitute the â Å“whiny "what's in it for me?" mentality that permeates our society.  [thx. pbi ;D]   This has lead to situations where, in the words of one Jurist, â Å“astonishingly disrespectfulâ ? conduct between a supposed aggrieved CF member and her superiors took place in an operational squadron.   The result was an ordeal before the CHRC that, although thankfully unsuccessful, needlessly ruined the careers of some dedicated professionals. 

If anybody wants references on any of the above, i would be pleased to oblige. 
Cheers ....


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## Cloud Cover (18 Aug 2004)

And finally .. lets fire things up here with a bit of humor tinged with sarcasm.         

Scenario 1 

PM PM changes his mind. In exchange for a lucrative shipping contract between his son's company and Halliburton Inc. to transport bars of gold to the Cayman Islands, 1 RPR [the Royal Pearson Regiment:   part of the new â Å“money is limitless high readiness Peace Brigade.â ?] is tasked to go to Iraq.   PM PM goes to visit the troops before they leave to make sure they have everything that they don't need.   Corporal Lipshitz, a 34 year old white male who joined up in 1999 and was told he would be a â Å“peacekeeperâ ?,     [right after he graduated with a Poli Sci degree in International Relations from Queens] tells the PM outright that he will not go because it is too dangerous, all he was trained for, in his opinion, was peacekeeping and that he has a reasonable prospect of serious injury or dying over there. He says to the PM:

â Å“I'm not going over to that crap-hole, there's no air conditioning and I need that to control my skin rashes. Besides, I signed up to protect the Charter, not fight Bush's war. I know this war is wrong ... and I did a paper on this for my friends at the Hole-aris Institute. The government cannot jeopardize my right to life, liberty and security of the person in order to secure Corporate America's racist need for blood and oil.â ?

WO Armbuster, one of several thousand disgruntled ex-armour soldiers in the brigade, grabs Lipshitz and takes him out behind the ex-tank park. The next day, court martial proceedings were initiated against Sergeant Lipshitz. He faces life in front of the firing squad, except weekends because the shads need the range.

Lipshitz's JAG lawyer is a happy man because, even though he is new and started out as a Captain, he has this case all figured out.   With an eye on appealing Lipshitz's convictions to a civilian court, he advances 4 theories of defence:

A)	Lipshitz has a right to life, liberty and security of the person under section 7 of the Charter. The government has the onus of proving that the deployment can be justified in a free and democratic society. 
B)	Lipshitz can advance an NCR [Not Criminally Responsible] defence: while drinking profusely the night before the incident, Lipshitz watched The Corporation and Fahrenheit 911. When he woke up in the morning, his state of mind was such that the only facts he knew about Iraq came from those movies. Mike Moore subliminally programmed him to snap. So, he was under a temporary state of memory loss, due to his problem with alcohol, which the military caused by stressing him out; and was thus vulnerable to subversion;
C)	Lipshitz's current mental state precludes a trial because Armbuster beat him senseless;
D)	Armbuster also broke his leg, depriving him of his right to mobility under section 6 (1) of the Charter, or in the alternative, section 6(2)(b) provides that he has a right to employment in a province, not a foreign country so the feds couldn't make him go anyway.           

Scenario 2

On Saturday, while visiting the troops in Iraq to make sure they aren't breaking the rules, Jake Leighton witnesses the Every 3rd day Adventist platoon, RPR, take a beating in an ambush where they were enjoying their protected day off. It seems the Mahdi have disrespected the Charter and the   Law of Armed Conflict by using the piggy platoon as human shields. PMPM gets pissed off, because Leighton calls up his friends at the Toronto Star, and accuses the PM of coddling up to the Americans while deliberately starving the military of proper equipment. â Å“This was totally preventableâ ?, says Jake â Å“We should have sent over some Merkva tanks and flamethrowers, just like me and the CBC told him before.â ? 

PM gets pissed off, and orders the armour to re-equip ASAP. â Å“Act like an ad agency and do this quietly through the back door. This is no time to be cheap, the legacy I so rightly deserve is on the line here. Buy all the transport planes and tanks you need and make it snappy. You have 2 weeks to get over there and finish thisâ ?, he tells a bewildered B-Gen. Ippersquat. 

While warily eyeing Pte. Armbuster [just out of the brig], who was lurking behind the PM, the B-Gen. politely refuses to go, saying â Å“my wife left me for another woman .... I'm a single parent now,   so I have to stay and look after the kids. I can manage the war from here by satellite feed. But I'm still entitled to the tax break, field pay and a couple of medals because we have a one dimensional policy on that.â ? 

Every other soldier-parent about to be deployed has a spouse at home to look after their kids, so they have to go. Armbuster snaps again, and the next week,   after getting out of the hospital the good B-Gen consults his lawyer, who takes government purchase order numbers for payment. When apprised fully of the facts, the lawyer says â Å“Oh, don't worry, go ahead and continue to refuse ... they are discriminating against you on the basis of family status. You have a good Human Rights claim if they fire you, because they have to accommodate you under the same rules that they have for disabled people. Are there any more of you? Because maybe we could get a systemic remedy going and hit them with a cla$$ action. They should just be sending single straight guys over there. Anyway, even if I'm wrong, under the HRights code, they can't take any reprisals against you for filing the complaint. Let me know if they even mention it, because that's hara$$ment, and we can get them for that too. Now please leave, I have some Admirals in the waiting room   ... something about no stirrups in the sick bay of a submarine.â ?


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## Bruce Monkhouse (18 Aug 2004)

I think the worst part about reading that is that the HR people/lawyers read this and lick their lips in anticipation.

..and thier wondering where the sarcasm is.


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## combat_medic (18 Aug 2004)

Will, read whiskey's post above and you'll have your answer.

Whiskey, excellent post! Now who's willing to bet that some JAG or civvie lawyer is reading it and saying to themself, "Yeah, I COULD make that claim... what a great way to get a name for myself!"


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## MissMolsonIndy (18 Aug 2004)

combat_medic said:
			
		

> I'm not suggesting that the CCRF should not apply at all to the CF, but there are parts of it that could not be applied to military life.



I disagree. I think that the exlusion of groups within Canada from one or more of the rights and freedoms in the Canadian Charter and the Canadian Human Rights code completely defeats the purpose of the Charter altogether: one people, one nation, standing on equal grounds (We live in a highly stratified society, where we all come from different political, economic, religious and social backgrounds. Inequality to a certain degree is inevitable, even in communist states. I believe the aims of the Canadian Charter/Human Rights Code is to compensate for the inequality within our society, and assemble everyone on as level a playing field as can be created.) I believe that the exclusion of one group, or many groups for that matter, would destroy the equilibrium already attained. Take for example Aboriginal communities. The Canadian government has granted Aboriginal peoples compensation, for the events that occurred throughout the colonial period, in the form of government-paid education, independent rule (in certain cases) and grants/bursaries, and the discrimination many Aboriginal communities face is on the rise because of it. Sure, they received compensation, and many communities were granted independent rule from the Canadian state, but at what cost?



			
				combat_medic said:
			
		

> Members of the CF are often given powers, both at home and abroad that are above and beyond what regular civilians have, and as such, are subject to more strenuous laws to keep them in check (part of the "with power comes responsibility"). Discipline with such power must be maintained, or all you have is a bunch or uniformed thugs walking around with assault rifles.



I won't deny that what you've said is true, but at the same time...the entire pie is missing from your slice. Members of the CF are often given powers, both at home and abroad that are above and beyond what regular civilians have, as are lawyers, physicians, politicians and any other memebers working within a specialized field. After excluding one group...where do you draw the line, and how? More importantly, what's to stop the exclusion of other groups which do not see the rights and freedoms applicable to their particular circumstances? 

It would be wiser not to put yourself in a situation where you would have to draw a line at all.


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## Spr.Earl (18 Aug 2004)

A)   Lipshitz has a right to life, liberty and security of the person under section 7 of the Charter. The government has the onus of proving that the deployment can be justified in a free and democratic society


Scenario.

You are over seas,there is a protest.
You are part of the R.R.F. and are armed with live ammo facing the protesters.
You see a man with a lit moltov coktail what would you do?


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## MissMolsonIndy (18 Aug 2004)

To whom is your question directed?

And (assuming that Lipshitz is the supposed character in your scenario), is he/she the one holding the "lit moltov coktail", or the R.R.F. member?


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## Infanteer (18 Aug 2004)

MissMolsonIndy;

What you do not understand is that the military possess unique position within society as an institution that serves as the ultimate protector of the sovereignty of the state through the use of armed force.   Although other self-professed groups may have some sort of claim to exemptions or special revisions to the Charter (such as your example of Native groups, who base their claims on account of ancestry and relative time spent in Canada), most of these claims are very subjective in nature.   The military's claim however, is very real and necessary, due to the ultimate demands, up to the sacrifice of ones life, that soldiers are burdened with.

This unique status makes two requirements:

1) As Brad Sallows mentioned, extra responsibilities and burdens that are inapplicable to most Canadians under their Charter Rights.   In the civilian world, if you do not like your job, you can just leave (although it would be rude to do so abruptly).   In the military, the national interest demands that all soldiers are present when the state so requires; don't show up for work and you go to jail.   As well in your position, if you are unhappy with your boss or the government, you can apply for union certification, criticise them, or sign a petition to bring on pressure.   In the interest of discipline and loyalty, this is forbidden in the military as well.   Do either of these in a wartime setting, and you can be shot for desertion or mutiny.   These extra responsibilities and burdens are necessary for the maintenance of good order within a standing military force.

2) As Whiskey is alluding to with his proposal, their are certain legal requirements and obligations that the institution of the military must be exempted from in order to act unhindered in maintaining a functional fighting force.   Although not the case in Canada, other states (the US, Britain, Australia) have saw fit to ban women from combat positions in the name of cohesion and maintenance of high standards.   The issue is debatable (we've done it plenty of times here) but the principal is the same.   The unique and vitally important position held by a military force means it must be able to (in this case) recruit and train its members through application of only one standard, the performance of its soldiers and units in combat.   Trying to do so under any other principle (equality, Charter Rights) only invites disaster.

Good post, but ensure you understand the nature of the issue before you issue a blanket statement.


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## MissMolsonIndy (18 Aug 2004)

Fair enough. I like someone who can give it to me straight, I respect that. I'm all for new insight.

It'll prove to be interesting, because we're coming from two very different standpoints: legal and military.

I'm going to venture out and do some research on the subject...

Showdown begins tomorrow at sunrise. How good are you at rock-paper-scissors?


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## axeman (18 Aug 2004)

The charter already applies to us here in the military . just not much heard about it  it because the QR&O's out weigh them for many things .There are time that if you look you can see where they are a good idea but at times they are also a hinderance  like many things here you take the good with the bad . As to being in the RRF   the guy would be down under the right of self peservation of self and others. The charter was forced upon/introduced  into the CF in the early/ mid 80's .  ???  :fifty: its here live it, love it


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## Spr.Earl (18 Aug 2004)

MissMolsonIndy said:
			
		

> To whom is your question directed?
> 
> And (assuming that Lipshitz is the supposed character in your scenario), is he/she the one holding the "lit moltov coktail", or the R.R.F. member?


My question is too all in Uniform.
What would you do?


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## Spr.Earl (18 Aug 2004)

Spr.Earl said:
			
		

> A)     Lipshitz has a right to life, liberty and security of the person under section 7 of the Charter. The government has the onus of proving that the deployment can be justified in a free and democratic society
> 
> 
> Scenario.
> ...



This is for all in Uniform and as I asked what would you do?


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## Infanteer (18 Aug 2004)

The man has a lit molotov cocktail; that is akin to pulling the safety pin on a hand grenade.   

I'd shoot him if I had to and would be within the legal bounds of any reasonable ROE's.   A better choice would be a high pressure fire hose; perhaps there is something to be said about bringing the proper (non-lethal) equipment.


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## Spr.Earl (18 Aug 2004)

Theres one answer lets see some more before I enlighten all.


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## Infanteer (18 Aug 2004)

Let's not get off the topic of Charter Rights (Maybe you could split the topic).  As well, the "what if's?"  are innumberable; I remember constant "what if's" in a ROE class.  Bottom line is, nothing can preclude you from defending your life.  Any more specific discussion starts to move into the realm of OPSEC.


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## Spr.Earl (18 Aug 2004)

This is not hitting OPSEC.
Take my word. 
The question was given too us before going over seas,the AJAG posed it to us and asked us what we do.


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## Bruce Monkhouse (18 Aug 2004)

What other assets are available?  What is the man doing? ie threatening, close to others,?


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## Armymedic (18 Aug 2004)

Infanteer said:
			
		

> The man has a lit molotov cocktail; that is akin to pulling the safety pin on a hand grenade.
> 
> I'd shoot him if I had to and would be within the legal bounds of any reasonable ROE's.   A better choice would be a high pressure fire hose; perhaps there is something to be said about bringing the proper (non-lethal) equipment.



And I would be getting ready to treat second and third degree burns on our soldiers and a GSW on a civilian if my ROE's for care allow me.


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## Infanteer (18 Aug 2004)

You wouldn't need to treat soldiers for burns if the threat was eliminated with rifle fire.   Civilians would probably get it as the thrower dropped, but that's the price you pay for taking part in a mob attacking a group of armed soldiers.

Needless to say, those fire houses you see used in Crowd Control would not only eliminate the incendiary weapon, but would probably disperse the rioters.


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## Slim (18 Aug 2004)

I know in times past the rioters in cypress (to be exact) almost got a number of their own shot for that very reason. A Molotov Cocktail or other Homemade EID is considered lethal force!

Slim


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## Spr.Earl (19 Aug 2004)

O.K. this conumdrum was put to us in Wainright back in 96 by the AJAG.
He asked the question ,we all said blow him away!
The same question I posted

Wrong!!
His answer was

"He had not commited a threating act even though ithe Moltov was lit!!"
When he said that I stood up and questioned him.

He stated I would be charged under the "CRIMINAL CODE OF CANADA" for Murder!!
I told him out right I'd drop him and he told me I'd end up in Klink.
The lecture ended up in one big shouting match as too the Criminal Code of Canada and Q@RO's.
In the end we learned we have right's and we don't.

So there is your answer


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## Slim (19 Aug 2004)

You';re telling me that if an individual, who is participating in a riot, against Canadian Soldiers, lights a Molotov Cocktail and someone ( a member of the CF) shoots him, that member will be charged with murder?

I do not agree

Under the criminal code you can respond with potentially lethal force if you *BELIEVE * you or someone else is going to be hurt or killed due to another's actions.

I know that for a fact because we are constantly being forced to review the criminal code at work for those exact things.

Slim


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## Infanteer (19 Aug 2004)

I wonder if the AJAG knew that would stick.   These things are all split second decisions, and I doubt the AJAG was in the position to be making a definitive statement on that very hectic situation from his comfy chair in Ottawa.

To me, waiting for the guy to chuck the thing at me and my fellow soldiers is unacceptable.   The AJAG was trying to play Mr Technical, while anyone who's watched Palestinian's light Molotov Cocktails knows that as soon as the things are lit, there flying.   My defence was that Force Protection was my primary concern and that the lit molotov cocktail presented a clear threat to the safety of me and the other soldiers and that the ROE's stated that we had every right to protect ourselves.   I'd rather be judged by 12 then carried out by 6 (And that's what I'd say to the AJAG).


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## Bruce Monkhouse (19 Aug 2004)

Sorry boys, but I have to agree with Spr. Earl, that could have been water and a piece of toilet paper and the "person" just wanted to make a point, which is why I asked about his positioning, threatening manner, cabability, etc.
It sucks, imagine what a cop must go through sometime?


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## Infanteer (19 Aug 2004)

So Bruce, if someone levels a plastic gun that is identical to a real handgun at a police officer, the officer is criminally liable for murder even if the person levels a toy gun at the officer just for the purpose of "making a point"?

I seem to remember a similar question in my ROE lecture as well and you are on the right track when you state to look at manner, capability, etc.  I think the AJAG's question is a loaded one, because anyone who lights a molotov cocktail is going to whip the thing pretty quick.  

If he is just holding the thing then he is not a threat, although I would definately respond with appropriate escalation my perhaps leveling my rifle at him so he knows we will defend ourselves (I guess a similar situation would be if a guy was loading an AK with a magazine; nothing threatening, but take the appropriate force protection measures).


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## Bruce Monkhouse (19 Aug 2004)

No the officer would be protected[but be put through the wringer by those who wouldn't have the parts to stand there] as he had no means of knowing if the capability to deliver the lethal force was there or not. That is why it is impossible to answer THAT question with the info. provided, what if there was no way he could deliver it? ie. distance That would negate your argument about throwing it real quick, if there was no way it could reach the troops, than what is your shooting of him?
 I still firmly believe you had the answer before however, my life or the life of my comrades, or the life of this individual.....?


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## combat_medic (19 Aug 2004)

Spr Earl: I can certainly understand your perspective on the matter. If someon in a rioutous crowd were about to throw a lethal weapon at me, akin to a grenade or other potentially lethal device, I'd certainly be prepared to back it up with lethal force. The problem is, was he going to throw it? Can you prove it? Was your life actually at risk? What are your ROEs? If he was just standing there in the midst of a peaceful demonstation and happened to have a bottle in his hand that he lit, it's a lot different than if a mob of civilians was bearing down on your position, bent on destruction.

I think the AJAG needs to consider the situation before giving a catch-all response that you would be charged with murder.


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## Brad Sallows (19 Aug 2004)

I think the JAG's point is that unless you have a ROE which permits you to fire on someone holding a lit molotov cocktail you are limited to self-defence, which requires a "hostile"* act.  Simply holding the weapon might not be deemed hostile, the same way someone merely holding a loaded rifle is not committing a hostile act.  If the arm is cocked for throwing, or the rifle is levelled/pointed/aimed, the act is assuredly "hostile".

*I can't recall the definition for self-defence purposes...is it "imminent and deadly"?


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## Spr.Earl (19 Aug 2004)

ROE's were not part of the so called lecture as we had non because we were still in Canada in Wain. doing work up's for over seas thats' why I posted the question!
WE HAD NO ROE'S when the lecture was given!!
Go from there.


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## Infanteer (19 Aug 2004)

Obviously, as the three previous posts have pointed out, this specific hypothetical case study is fraught with "what if's" (what if he was cocking his arm, what if the crowd was aggressive).   If the AJAG was to present the situation as "guy lighting molotov cocktail" he is either getting sloppy or just trying to scare some troops, as no case is that cut and dry without other circumstances.


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## Spr.Earl (19 Aug 2004)

The end of it all was.

Yes it was lit but still not a threat!!

The threat would be if he threw it!!!
Then you could drop him!

That was the JAG's responce.

Ergo,what Rights under the Charter of Rights and Freedoms and Canadian Human Rights Code do we have   when it comes too performing our Duty even though when we react iinstinctively due to our training?


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## The_Solecist (19 Aug 2004)

Perhaps our training models and exercises need to reflect more realistic situations.

Training that causes an instinctive 'drop him' response is good in that there is little delay between the need to act, and the action.
However, the instinctive reaction, which I think should be trained into soldiers, is to consider the situation in light of the ROEs and the laws applicable.

As soldiers in the Canadian Forces, we fall under Canadian law wherever we are, as well as any international laws which Canada has agreed to.

~~~

Overall I found this thread quite interesting.   When I joined the CF Reserve, I was informed that by becoming a soldier, and taking on the responsibilities thereof I was forgoing certain rights afforded to regular citizens of Canada.   These are off set by thing permitted of me in the legitimate performance of my duties, for example there are few civilians who are permitted to even get their hands on automatic weapons, let alone fire them.   Under the right circumstances we as soldiers can be required to carry loaded weapons openly in public.

Things like hair cuts and other imposed restrictions exist for a reason -- discipline, without which the smooth functioning of the military would grind to a halt.


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## MissMolsonIndy (19 Aug 2004)

Ok, boys...this is where I stand on the matter:

I agree with the comments that combat_medic has made. You can never know the outcome, until the outcome unfolds before you. I've taken some philosophy in my days...and my general stance lies with a philosopher who believes that you can never really know anything. You may have good reason to believe something is so, but you can never truly "know," until the action/event unfolds. 

Now imagine what detectives and policemen go through...they're forced to rely on knowledge and educated guesses in hopes to acheive positive consequences. Pressure.

As far as Military exclusion from the Charter/Human Rights Code...I stand my ground. In taking into consideration all that has been said, along with some of my own research into the area, I've been able to draw the following:

Considering we reside in a reasonably peaceful nation, and are seldomnly called upon in times of war/peace-keeping, I see no reason for full exclusion, or even partial exclusion for that matter, while Canadian soldiers/citizens are free of the atrocities brought about by war. However, in times of war, I believe that it is not possible for the military to abide by the Charter in full. Therefore, I think a decree should be passed by the legislative body, including and excluding the military from specific rights, freedoms and outlaws that are seen/not seen fit with the Canadian Military in times where drastic measures are likely to be taken.

As it stands, I don't see the Charter as interfering with the rights and freedoms of Canadian soldiers...and exluding the military institution from rights and freedoms granted to every Canadian citizen, when it's clearly unnecessary (i.e. when the Canadian military is in no position where they would have to apply force to maintain peace and sovereignty) would upset the equilibrium in our society. In times of war...I agree with a lot of the comments made: it is clear that military conduct comes into direct conflict with the Charter, and ammendments need to be made to the Charter when the situation calls for it. And who's to determine that? I think we may have just found our next topic of discussion...


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## Michael Dorosh (19 Aug 2004)

MissMolsonIndy said:
			
		

> Ok, boys...this is where I stand on the matter:
> 
> I agree with the comments that combat_medic has made. You can never know the outcome, until the outcome unfolds before you. I've taken some philosophy in my days...and my general stance lies with a philosopher who believes that you can never really know anything. You may have good reason to believe something is so, but you can never truly "know," until the action/event unfolds.
> 
> ...



seldom called upon?   We've had soldiers operating continuously in Yugoslavia since the 1990s, in Afghanistan since 2001/2002, and before that had troops continuously in Cyprus since the mid 1970s.   Not to mention the UNDOF and MFO missions (and many others).   Granted, there has been scarcely little "war fighting" but there were operational deployments in the face of either an armed enemy, or as a buffer between two similarly armed opponents.   There has been Oka and the FLQ here at home.

Legislation is not necessary, all we need is for QR&Os and CFAOs to take precedence over the Charter.   Is this not currently the case?

As Infanteer keeps saying (and he is correct) - train as hard as you would fight.  You can't have two sets of rules for man management, one for "good times" and another for "bad times".

As a soldier, you agree to have some of your freedoms stripped from you, for the greater good of the Army as a whole.

Kim Beattie wrote in DILEAS, his history of the 48th Highlanders in World War Two, that the greatest sacrifice the soldiers made was surrendering to constant invasions of their personal privacy.  We also beat the best trained, most highly motivated and most successful army in the history of the world on a consistent basis, and we didn't do it to secure oil supplies, we did it to stop mass genocide.  Had we maintained that kind of army and will in peacetime, perhaps the 6 million would have been a few million fewer.


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## combat_medic (19 Aug 2004)

Missmolsonindy: To draw another comparison for you, take this example. You show up at your current job with you hair down, or, as a guy, you show up having not shaven that morning (a little stubble, but nothing really unkempt). In virtually any other job, no one would even notice or care. In the military, you would be charged. There are sets of rules we are required to adhere to, in peacetime just as well as at war. To make a set of regulations for the military, they must be in force all the time. If your troops aren't used to regulations and discipline and then suddently a war breaks out when all sorts of new regulations come into place, you aren't going to be prepared. 

Despite Canada not having declared a war against anyone for a long time, we are all still training for it. Train for war, pray for peace. All the war-fighting skills are still taught in courses, and we prepare ourselves for a potential war. Peacekeeping and war-fighting are not as vastly different as many people would lead you to believe, and there are a lot of skills that are valuable to both, with an obvious change in levels of force, and rules of engagement.


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## Cloud Cover (19 Aug 2004)

Just to be clear re: shooting the protestor etc. 
A soldier disciplined in any manner for using force of   any kind would not, repeat not, be deprived of advancing a Charter based defence based on section 7 [i.e.the LLSP provision- life in peril or imminent peril, no choice but to make a life or death situation decision, and you can bet all extenuating circumstances will come into play, i.e ROE's etc.]   Murder is a full fault offence, a heavy onus requires that the Crown would still have to prove, beyond a reasonable doubt, all of the elements of the offence, _mens _ and _actus _, for this type of charge. Convictions of this sort are rare in Canada, the most recent one that comes to mind is the case of Acting-Seargent Kenneth Dean of the OPP at Ipperwash. And, in my opinion, the conviction of the police officer was a travesty of justice. Incidentally, the circumstances of that case were closely analogous to the situation outlined by Spr. Earl.


As far as QR&O's   etc. go, they do not take precedence of over the Charter, but where they are inconsistent with the Charter, the regs   may be saved in very limited and extremely rare circumstances. That would depend on a competent and compelling argument put forth on the part of the Crown .... not likely to happen given their current propensity concede arguments and then go off strange tangents.


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## muskrat89 (19 Aug 2004)

Dang - interesting (and long) thread. Unfortunately, I'm not as eloquent as some of you, but my feeling is this:

(And Infanteer alluded to this fact, earlier) - Soldiers are asked to do things that NO other element of society is asked to do - it is unfair and impractical to try and hold them to them to the same standards, as the rest of society. 

On the flip side, I think, generally, they also self-govern themselves better than most segments of society..

I think it is sad that so many, in the general population, are armchair experts, in regards to their rights. It's too bad that they weren't so knowledgeable, in their responsibilities...


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## George Wallace (19 Aug 2004)

Infanteer said:
			
		

> So Bruce, if someone levels a plastic gun that is identical to a real handgun at a police officer, the officer is criminally liable for murder even if the person levels a toy gun at the officer just for the purpose of "making a point"?



Not really.  I have a collection of DeWadded wpns in our Regt'l collection.  They were once valuable artifacts, now they are junk; unless someone were to take one and use it in the commissioning of a crime.  Then they are legally considered weapons again.  

GW


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## Brad Sallows (19 Aug 2004)

I would not like to see any body of regulations supercede the Charter.

I am confident there are already laws on the books in the QR&O, Criminal Code, etc that might be found unconstitutional if challenged.  Wait for a challenge.  If a regulation is deemed important enough to retain, no Charter amendment is necessary; the notwithstanding clause may be used.  If government agrees with the challenge, it is within the power of government to accept the outcome and to assume whatever risk follows.


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## clasper (19 Aug 2004)

There have been a few scenarios put forth, but I'm still waiting for a convincing argument as to why military members should be exempted from some or all of the Charter as a matter of course.

First, the argument of "added responsibility".   This is absolutely true, soldiers do have more obligations than civilians (including keeping there hair short, being clean shaven, going into possible life threatening situations, etc.)   This is what the QR&O's are for, and since they are publicly available, Pte. Bloggins knows (or should know) what rights he's giving up and what his new obligations are when he signs on the dotted line (which he does voluntarily).

Secondly, the deployment in Oka.   The Surete de Quebec were trying to enforce a legally obtained warrant, and were fired on for their trouble.   The government subsequently deployed the military to act against some of its own citizens (which requires an act of Parliament, IIRC).   So did the military violate the Charter rights of the protesters?   I don't think so- the deployment went according to the law of the land.   Whether having a golf course built on your ancestors graves constitutes a Charter violation is a whole other argument which doesn't really apply to the military discussion at hand.

Thirdly, the protester holding the flaming bottle.   If the situation is happening in a foreign land, then there will be ROE's agreed upon by the UN, NATO, or whatever other authority we're deployed under.   The ROE's will be in line with what the international community is trying to accomplish in said foreign territory, and as long as the soldier acts according to the ROE's, I don't see how a protester can claim that his basic human rights were violated by the soldier.   He might argue that his basic human rights were violated by a foreign government invading his territory, but this dispute is way above the pay grade of the individual soldier.

If the protest was taking place on Canadian soil, and was beyond the ability of the RCMP (or other police service) to take care of it, then the military could be called in.   This would involved the declaration of martial law (again, an act of Parliament) and many Charter rights would be suspended for all citizens for the duration.   If the government doesn't have the time to write specific ROE's for this scenario, I'm sure some planners have prepared some and filed them somewhere.

Fourthly, the observation that some of our allies have rolled back some rights by banning women from the combat arms.   I don't think this is necessary, and here's why.   I work in an industry (the oilfield) that is physically demanding, politically conservative, and male-dominated.   Over the years I've met probably about a thousand rig workers, including one female roughneck (which is the dirtiest, most basic, and most physically demanding job in the industry).   She was tough as nails, and no one gave her a harder time than anyone else because she could do the job.   How does the industry get away with this 99.9% gender imbalance?   Simple- it comes down to who can do the job.   I don't know how many women out there can do the job of the infantry, but I know the number is larger than zero.   As Infanteer mentioned earlier, the Charter doesn't demand that half of our soldiers are women, nor do we want it to.   But not excluding them is reasonable, I think.

To sum up, yes Charter rights do get suspended from time to time for certain individuals, and we already have processes in place for this.   So why should we exempt military personnel from some or all of the Charter as a matter of course?


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## MissMolsonIndy (19 Aug 2004)

Michael Dorosh said:
			
		

> seldom called upon?   We've had soldiers operating continuously in Yugoslavia since the 1990s, in Afghanistan since 2001/2002, and before that had troops continuously in Cyprus since the mid 1970s.   Not to mention the UNDOF and MFO missions (and many others).   Granted, there has been scarcely little "war fighting" but there were operational deployments in the face of either an armed enemy, or as a buffer between two similarly armed opponents.   There has been Oka and the FLQ here at home.



In comparison to other nations in the globe? Yes, seldom called upon. Canada is by no means a nation that exerts superior military force, nor has it been throughout history. Realistically, the Canadian Military, although well-trained and knowledgable, is underfunded, outdated and ridiculed. If war were ever waged on Canadian grounds, the capacity of our military strength would contain the enemy temporarily, and eventually collapse. My intentions are not to drive a stake through the heart of the Canadian Military, but to offer you a perspective that many civilians share. The majority of you hold a rank within the Canadian Military, so naturally bias is ingrained within your responses, much like it is in my own. I have genuine respect for the Canadian Military, and agree that government funding needs to be instated, as well as sustained. Understandably, cut-backs will have to be made...perhaps they could start with the cutting of a "bilingual standard" on all Canadian documentation. 

Scenario:

War is waged on Canadian grounds, and Canada is brought into direct hot conflict. Would you...

A) Rather have agreed to cut-backs on a bilingual standard on all Canadian documentation, saving the government millions of dollars, which could then be funneled into important bodies of government, such as the Canadian Military, allowing Canada to augment her military forces and perhaps even stand on her own two feet in the face of conflict. (Yes, the people of Quebec may not have a copy of documentation translated into french, for their own archives...but I'm almost certain there are those that have come to master both languages, and could maybe even (bear with me here) translate it orally.)

Or

B) Rather have kept bilingualism as a running standard in Canada, rendering the Canadian Military stagnant politically, socially and economically. Although the Canadian political, economic and social structure would collapse as a direct result of war, at least when the citizens of Quebec came to the West Coast and rummaged through debris, they could read and understand wash, rinse and repeat cycles on shamphoo bottles.




			
				Michael Dorosh said:
			
		

> Legislation is not necessary, all we need is for QR&Os and CFAOs to take precedence over the Charter.   Is this not currently the case?



Agreed. When the situation calls for, I think that the QR&Os and CFAOs should take precedence over the Charter. It's a sticky situation, but I suppose you're right; It seems like one of very few viable options. But you also have to understand that the "precedence" of military rules and regulations comes with its own set of problems. The Charter and the Military Code of Conduct come into direct conflict...common ground will have to be found, with neither being exlcuded in part or in full, but overlooked/conclusively "inapplicable," as seen fit with the situation.




			
				Michael Dorosh said:
			
		

> As a soldier, you agree to have some of your freedoms stripped from you, for the greater good of the Army as a whole.



Which ones in particular? I'm not arguing you on this point, I'm just another curious mind...


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## MissMolsonIndy (19 Aug 2004)

clasper said:
			
		

> There have been a few scenarios put forth, but I'm still waiting for a convincing argument as to why military members should be exempted from some or all of the Charter as a matter of course.



My sentiments exactly. Don't argue scenarios in favour of your stance for the sake of arguing. Many of the scenarios presented, although taken into consideration, would have difficulty finding any ground to stand on in the face of the Canadian legislative assemblies, who ultimately predominate in law-making.


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## Michael Dorosh (19 Aug 2004)

MissMolsonIndy said:
			
		

> In comparison to other nations in the globe? Yes, seldom called upon. Canada is by no means a nation that exerts superior military force, nor has it been throughout history.



Never exerted superior military force in our history?   We had the 4th largest air force in the world in 1945 and the 3rd largest navy/surface fleet in the world at the same time.   First Canadian Army was responsible for clearing the Rhineland - the prelude to the Rhine River crossings in March 1945. From the air, the RCAF killed, maimed and left homeless tens of thousands of German civilians in places like Hamburg, Berlin, and the Ruhr (Happy Valley).     In World War One, we were considered an elite - the Canadian Corps were used as shock troops and the Germans always rushed their best units into the line when they found out either the Canadian Corps or the ANZACs had moved in opposite them - as it always told them a major offensive was in the offing.

Also, regardless of whether or not we actually fought on North German Plain, Canada had a full mechanized   brigade in Europe from the 1950s through the 1980s preparing to fight World War Three.   Regardless of whether or not they fired a single shot, and this is the entire point, they had to be ready to go into combat at a moment's notice.   That outweights other considerations - discipline had to be maintained just as importantly as if they were in a shooting war, otherwise they would have been useless in a fight.

Even had our military not fired a shot at places like Kapyong, Tora Bora, or Medak Pocket, the point is that the military has to be prepared to do so.   There are distinctions drawn between peace time and wartime armies, but they should not include standards of discipline.   In fact, in peacetime standards are usually higher - certainly for dress they are.




> Which ones in particular? I'm not arguing you on this point, I'm just another curious mind...



All of them!   You don't get to dress how you want, do your hair as you want, decide whether to shave or not, some commanders even tell you what kind of undershorts you are allowed to wear.   You subordinate your own interests and desires to those of your unit.   In theory - it's not as spartan or rigid as that in practice, and good commanders will indulge their troops - but only in small ways, such as letting you wear your favourite Stanfields under your uniform.   But the Sword of Damocles is omnipresent.


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## Eowyn (19 Aug 2004)

MissMolsonIndy said:
			
		

> Agreed. When the situation calls for, I think that the QR&Os and CFAOs should take precedence over the Charter. It's a sticky situation, but I suppose you're right; It seems like one of very few viable options. But you also have to understand that the "precedence" of military rules and regulations comes with its own set of problems. The Charter and the Military Code of Conduct come into direct conflict...common ground will have to be found, with neither being excluded in part or in full, but overlooked/conclusively "inapplicable," as seen fit with the situation.
> 
> 
> > I think it's time for a little lesson in law.  Having spent some time in law school, I can most assuredly state that no statue or regulation takes precedence over the Constitution, which includes the Charter.  A legislative body can invoke a portion of the Charter (the notwithstanding clause) to shield some statues from the effect of the Charter.
> ...


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## MissMolsonIndy (19 Aug 2004)

Michael Dorosh said:
			
		

> Never exerted superior military force in our history?   We had the 4th largest air force in the world in 1945 and the 3rd largest navy/surface fleet in the world at the same time.   First Canadian Army was responsible for clearing the Rhineland - the prelude to the Rhine River crossings in March 1945.   In World War One, we were considered an elite - the Canadian Corps were used as shock troops and the Germans always rushed their best units into the line when they found out either the Canadian Corps or the ANZACs had moved in opposite them - as it always told them a major offensive was in the offing.



Allow me to rephrase. I've glued my eyes to History Books over the course of my study, and am well aware of Canada's contributions during the war years, as well the years that followed. I never meant for you to gather that history had never witnessed Canadian military force, but instead for you to understand that military strength is not Canada's strong-point. Looking back, Canada has made innumerable contributions, including all of the ones you just finished mentioning, but take a look at the contributions from an analytical stand-point. Would we still have been considered an "elite" military force had we not been backed by Democratic Powerhouses? Would Canada have even made contributions if it were not backed by nations with tremendous military strength? I have no aims of undermining the Canadian Military, but many of Canada's contributions throughout history have been alongside nations whose military strength was significantly stronger than our own, making Canada's contributions more successful than they would have been otherwise. 

Again, if war were waged on Canada...our political, economic and social structure would collapse if the American Military refused Canada aid. You failed to comment on this point...does this mean you agree, or does it mean you're still searching for a rebuttle?


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## MissMolsonIndy (19 Aug 2004)

Eowyn said:
			
		

> I think it's time for a little lesson in law.   Having spent some time in law school, I can most assuredly state that no statue or regulation takes precedence over the Constitution, which includes the Charter.   A legislative body can invoke a portion of the Charter (the notwithstanding clause) to shield some statues from the effect of the Charter.
> 
> As well, statues overrule regulations.   So if there is a conflict the constitution rules, the statues and lastly regulations.



I stand corrected. You're the expert. I'm still at the beginning of my long road to law school. What kind of law do you study?


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## combat_medic (19 Aug 2004)

Not to venture any further off topic, but Canada has made more contributions, per capita, to international peacekeeping missions than any other country in the world since the inception and invention of peacekeeping by Lester B Pearson in the 50s. Just because we don't exert military force through war doesn't mean we're not active militarily. Currently, there are nearly 2,000 Canadian troops overseas everywhere from Haiti to the Sudan in 14 different NATO and UN peacekeeping missions. That alone shows the need for a strong and active military... and no, we're not the laughing stock of the world community, as you seem to think. Canadian soldiers are very highly thought of as professionals, and our training is some of the best in the world. 

As for legalities, do you think if a soldier said that it was within his charter rights to have a goatee and long hair, and believed in it strongly enough to take it to court, do you honestly think he would win the case and be allowed to stay in the CF?


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## Michael Dorosh (19 Aug 2004)

MissMolsonIndy said:
			
		

> Allow me to rephrase. I've glued my eyes to History Books over the course of my study, and am well aware of Canada's contributions during the war years, as well the years that followed. I never meant for you to gather that history had never witnessed Canadian military force, but instead for you to understand that military strength is not Canada's strong-point. Looking back, Canada has made innumerable contributions, including all of the ones you just finished mentioning, but take a look at the contributions from an analytical stand-point. Would we still have been considered an "elite" military force had we not been backed by Democratic Powerhouses? Would Canada have even made contributions if it were not backed by nations with tremendous military strength? I have no aims of undermining the Canadian Military, but many of Canada's contributions throughout history have been alongside nations whose military strength was significantly stronger than our own, making Canada's contributions more successful than they would have been otherwise.
> 
> Again, if war were waged on Canada...our political, economic and social structure would collapse if the American Military refused Canada aid. You failed to comment on this point...does this mean you agree, or does it mean you're still searching for a rebuttle?



The entire point of alliances, though, is bo have either equal partners, or partners capable of providing different things of benefit to each other.   If Canada wasn't "backed" be democratic powerhouses, we wouldn't have been in the war.   And vice versa.   Canada contributed economically too - we made more light machine guns in Canada during WW II than Britain and Australia put together.   We trained more aircrew in Canada than anywhere else (BCATP), and the majority of sailors on the North Atlantic Run were Canadians.   We were an equal partner in many ways - having an Army headquarters in Europe in WW II was a huge indication of that.   And you keep saying our allies had "tremendous military strength".   So did we.

Which is the point.   While of course we are dependent on our allies - so too are our allies dependent on us.   For that reason, we need a viable military capable of deploying in slightly less time than it takes the proverbial asthmatic ant to carry his heavy shopping home.

So to answer the question about an invasion of Canada - military action never happens in a political vacuum and it is folly to presume it ever would, or could.   We are, as you well know, symbionts with the US.   If you are suggesting surrendering our soveriegnty to the US, I disagree.    However, that discussion seems off topic.   If you can come up with a viable scenario of anyone invading Canada and the US refusing to assist (you may want to reconsider what NORAD is all about, for one, then check out NATO's agreements where the majority of Europe have pledged that an attack on one member is to be considered an attack on all), I'd be willing to consider the question.   But it seems irrelevant.

The salient point is that our armed forces need to be viable, and must always train as if they were needed to fight a war tomorrow.   Our niche, as discussed in another thread, may be peace missions under the auspices of the UN, may be security missions under NATO, or may be bailing out after a tsunami in Vancouver - but whatever those missions are, they will be predicated on having a professional, disciplined group of soldiers to carry them out.   Which is why we don't have special rules to live by in peacetime that are different in wartime - it simply can't work that way.

If you are suggesting we not live up to the expectations of our allies, I would have to ask where your pride is.   In more practical terms, we've seen the effect of not joining the coalition of the willing on such issues as softwood lumber and Mad Cow/the closed border.   (I live in beef country...)   Do you really think Canada can afford to go on thumbing its nose at its allies?


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## Cloud Cover (19 Aug 2004)

"I think it's time for a little lesson in law.   Having spent some time in law school, I can most assuredly state that no statue or regulation takes precedence over the Constitution, which includes the Charter.   A legislative body can invoke a portion of the Charter (the notwithstanding clause) to shield some statues from the effect of the Charter.

As well, statues overrule regulations.   So if there is a conflict the constitution rules, the statues and lastly regulations."

????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????????


Sigh... well, I don't know much, but I do know this:

The rights Pte. Bloggins is giving up are, at worst, minimally impaired, if at all. And to reiterate, none of his section 7-11 rights are fettered with at all, even though the military has it's own variety of a criminal justice system.       

With respect to Oka, that was 12 years ago, and Charter law has left those types of situations in the dust. Any government that tries anything like that   now better have deep pockets, because the lawyers will out number the troops 10 to 1. Count on it ...and... tons of Charter and HR based litigation arose out that particular dispute, some is still ongoing, some failed and a few were ultimately successful. Bottom line there: to my knowledge no individual culpability was assigned to any CF member who was there, and several civvies were injured in a few of the clashes, not to mention the CF members who took the odd kick in the groin.   The precedence of the Dean decision may well alter the preceding observation. Anyway, as I recall, more than a few warning shots were fired live on TV....

WRT to our much maligned Sergeant Lipshitz , if he taps someone overseas IAW ROE, he isn't gonna get jacked up by his own side. If he strays off course, CYA is the law of the political jungle and I can assure you he is at the bottom of the food chain.      

WRT the notwithstanding clause: section 33 of the Charter is a general override provision. Quebec used it with Bill 178 [the language law].   Outside of Quebec, the power of override has only been used once, in Saskatchewan, to protect a back to work law. Don't count on it ever being used by the FG, b/c to do so would be â Å“illiberalâ ?, so to speak.

WRT Martial Law: on its face, the Emergencies Act does not suspend Charter rights, indeed it would appear to enshrine those rights. The Act says nothing about suspending rights, just civil liberties, with compensation ... there is a wide gap between those 2 concepts. No immediate Act of Parliament is required for a Minister to declare, for example, a public order emergency, however   a motion for confirmation must be tabled in Parliament forthwith and in any event no later than 7 days. The validity of any of the provisions of the Emergencies Act remain untested at the present time. 

And, not all Charter rights may be overridden by section 33:

Rights that can be overridden: [these are heavily truncated]

Section 2: fundamental freedoms: conscience, religion, thought, expression, belief, opinion, press, peaceful assembly and association; 

Sections 7-14: legal rights: LLSP, presumption of innocence, search, seizure, arbitrary detention, right to be informed of the charge without unreasonable delay and to have a trial without delay, retain a lawyer, self- incrimination; trial by jury [except for a purely military offence tried before a military tribunal]; prosecution only for offences known to Canadian or International law at the time the offence was committed.

Section 15: Equality Rights: disability, sexual orientation, gender, race and religion etc. [note: religious equality is not the same as the right to guaranteed right to have a religion.]

There are more that can be overridden, but they are not germane to the subject matter at hand.

Rights that CANNOT be overridden:

Section 3: Democratic Rights: voting, calling elections etc.
Section 6: Mobility Rights: freedom of movement unless imprisoned or other order of the court;
Sections 16-23: Language rights;
Section 24: Enforcement Provisions: empowers court to order a remedy where right is infringed;
Section 28: sexual equality. [note: this is not the contentious equality provision, although arguably it would do fine one was in a pinch.]


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## Cloud Cover (19 Aug 2004)

And WRT ..   my last TX:

"WRT to our much maligned Sergeant Lipshitz , if he taps someone overseas IAW ROE, he isn't gonna get jacked up by his own side. If he strays off course, CYA is the law of the political jungle and I can assure you he is at the bottom of the food chain."

Isn't this where fostering a military culture grounded in an institution of excellence comes in? Training, professionalism, seflessness, unwavering obedience and loyalty to the corps etc.?


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## MissMolsonIndy (19 Aug 2004)

A little objection, and the crowd goes wild.


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## Michael Dorosh (19 Aug 2004)

MissMolsonIndy said:
			
		

> A little objection, and the crowd goes wild.



Seems like the consistent theme in all the responses has been the need for a professional, disciplined army in peace as in war.   You haven't presented a viable alternate case.   In fact, you've relied on suppositions that are actually falsehoods (chiefly the notion that Canada hasn't had a need, or actually expressed, military force throughout its existence).

You may want to change your focus to go back and re-examine the prerequisites for a professional military and whether on not the Charter inhibits this.  The other historical precedents you talk about have only served to drag the conversation off topic.


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## MissMolsonIndy (19 Aug 2004)

As of yet, I haven't denied the need for a "professional, disciplined army" in peace and war, and instead encouraged it. You're right, my case my not be entirely viable, but if we're speaking in those specific terms, neither is yours, or any other case presented here. The difference between you and I is that I accept that the case that I'm trying to present has holes, and I take criticism in a constructive manner.


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## Michael Dorosh (19 Aug 2004)

MissMolsonIndy said:
			
		

> As of yet, I haven't denied the need for a "professional, disciplined army" in peace and war, and instead encouraged it. You're right, my case my not be entirely viable, but if we're speaking in those specific terms, neither is yours, or any other case presented here. The difference between you and I is that I accept that the case that I'm trying to present has holes, and I take criticism in a constructive manner.



I wasn't aware you had offered any criticism; indeed, all I've seen was a lack of understanding or misinterpretation of the role of military power in Canada's history.


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## Cloud Cover (19 Aug 2004)

MissMolsonIndy said:
"You're right, my case my not be entirely viable, but if we're speaking in those specific terms, neither is yours, or any other case presented here."

Take a deep look at all of the postings contained herein, your remarks are a little off base with that one. Then, collect all of your postings in this thread, and please articulate your case in clear and concise terms, and might i ask that your remarks be confined to the subject matter at hand: The Charter; Professionalism + Self Governance; and reorientating the culture back towards where it ought to be. If you are hoping to engage in historical debates with some of these members, you do so at the peril of your own word and reputation. And in the end, if you wanna be a lawyer or philosopher or whatever, your word and reputation are what matter most. Take some time to do this right, I gaurantee it will be pay future dividends on this forum.


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## MissMolsonIndy (19 Aug 2004)

You betcha'

I'm going camping, but you'll have your clear, concise and articulate response shortly.

I'm gaining a lot of insight here, and this is by far one of the most interesting debates I've partaken in, but where this conversation will prove to be a dead-end is the fact that I can comment on my own biased nature, while the majority of you overlook your own.


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## Eowyn (19 Aug 2004)

whiskey 601 said:
			
		

> "
> 
> 
> Sigh... well, I don't know much, but I do know this:
> ...



The Charter says nothing against having a separate justice system.  The only qualification is that system must abide by the Charter, which the military one does.  I believe that is why the military justice system went through a very large revamping a few years ago.


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## Michael Dorosh (19 Aug 2004)

MissMolsonIndy said:
			
		

> You betcha'
> 
> I'm going camping, but you'll have your clear, concise and articulate response shortly.
> 
> I'm gaining a lot of insight here, and this is by far one of the most interesting debates I've partaken in, but where this conversation will prove to be a dead-end is the fact that I can comment on my own biased nature, while the majority of you overlook your own.



Your bias is that we have a bias that overrides our knowledge of history and our own profession.

I agree with Eowyn - step back, consolidate, think about what you are saying, and try again.   Frankly, I think you are smarter than you give yourself credit for, you just lack experience.   I was seven years in University and never really understood what a "thesis" was - it wasn't til I got online and started talking to peers - which I think you and I are - that I learned what I really needed to about debate and the nature of discourse.

Go camping, think about what you are saying, and come back again and articulate what it is you are trying to say.   I'll look forward to it.

Incidentally, if you feel I am biased in that I feel Canada's military has been either engaged in operations, or else had a high potential to be engaged in same operations, in the last 60 years, so be it - but you need to prove the opposite was true.


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## Cloud Cover (19 Aug 2004)

Eowyn
I don't recall saying that the Charter precludes a military justice system, in fact there is explicit recognition of the military justice system [MJS} in the text of the document. And, to state that the military justice system as a whole complies with the Charter is somewhat of a misnomer, to say the least. Even the Criminal Code of Canada doesn't comply with the Charter in places, as I'm sure you learned in law school.   And, I don't know what law school you went to- [though I'm sure it was good one] - one of the first things law students, nay, 1st year poli-sci students, are taught, is minimal impairment as one of the most critical aspects of the Oakes test. As I said in the post, Bloggins 7-11 rights are minimally impaired, if at all in the scenario from which his name arose. It follows, therefore, that at best, his rights are promoted, not degraded . As far as statutory language goes, the Charter encourages the MJS[Criminal] to thrive in its own right:   

CCRF, section 11. 
Any person charged with an offence has the right: 
...
(f) except in the case of an offence under military law tried before a military tribunal, to the beneft of trial by jury, where the maximum punishment for the offence is imprisonment for five years or a more severe punishment.

So, you obviously are in full agreement with what i have said so far in this thread.   If not, I encourage you to elaborate in a reasoned and rational manner. Execution will be the key.
BZ on your military career, you made a career decision that you will never regret. 

Cheers, ... FN.


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## Bruce Monkhouse (19 Aug 2004)

MissIndy,
I'm not sure that you should be making ANY assumpions of bias upon others.

_QUOTE
Understandably, cut-backs will have to be made...perhaps they could start with the cutting of a "bilingual standard" on all Canadian documentation. 

Scenario:

War is waged on Canadian grounds, and Canada is brought into direct hot conflict. Would you...

A) Rather have agreed to cut-backs on a bilingual standard on all Canadian documentation, saving the government millions of dollars, which could then be funneled into important bodies of government, such as the Canadian Military, allowing Canada to augment her military forces and perhaps even stand on her own two feet in the face of conflict. (Yes, the people of Quebec may not have a copy of documentation translated into french, for their own archives...but I'm almost certain there are those that have come to master both languages, and could maybe even (bear with me here) translate it orally.)

Or

B) Rather have kept bilingualism as a running standard in Canada, rendering the Canadian Military stagnant politically, socially and economically. Although the Canadian political, economic and social structure would collapse as a direct result of war, at least when the citizens of Quebec came to the West Coast and rummaged through debris, they could read and understand wash, rinse and repeat cycles on shamphoo bottles._

Vous devrais penser un peu plus avant de ecrire. Merci! 
Bruce


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## Cloud Cover (19 Aug 2004)

As per M Dorosh et. al, perhaps it would be best to let MMI disengage and retreat to the high ground and reconsider tactical options at this point. I'm sure you agree, at this point MMI is owed this, as the offer has been previously extended.   

Cheers, and BTW, if '83 Regs is NFG Rookie, holy crap!! I am not worthy!!!!


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## Cloud Cover (15 Sep 2004)

I guess Miss Molson Indy has gone AWOL!! Too bad, there was a great discussion going here.... it's my understanding the British soldier in the article below was investigated by his C.O., and cleared of wrongdoing, yet for some reason charges were laid by Metro (UK) Police. Can anyone confirm this, with a credible refernce source, i.e. journal or similar piece? I am toying with some idea's for a new thread on this matter, which will once again bring up the subject matter of a professional organization which enjoys some measure of deference from civilian entities. I am specifically looking for the scenario leading to events from which the charges stem. Thank you in advance for your assistance.   

W601.


From the Guardian:
British soldier charged with murder of Iraqi civilian 

Tuesday September 7, 2004 

Police today charged a 21-year-old British soldier with the murder of an Iraqi civilian, the first civilian murder charge in connection with the war in Iraq. 
A Metropolitan police spokesman said trooper Kevin Williams, of the 2nd Royal Tank Regiment, would appear at Bow Street magistrates court later today charged with the murder of Hassan Said. 

In May, the attorney general, Lord Goldsmith, ordered a civilian police investigation into the death of Said, who died in ad-Dayr, near Basra in south-eastern Iraq, on August 3 2003. Said is believed to have been shot while being arrested, but little has been made public about the incident in which he died. 

Lord Goldsmith was expected to make a statement in connection with the case later today. 

The British military has launched 131 investigations into deaths and injuries of Iraqis, in incidents ranging from combat to detentions to road accidents. Seven cases cover detainees who died in custody. Lord Goldsmith announced in June that four soldiers would be charged in military courts with sexually abusing detainees.

The government has previously expressed regret and sympathy for the deaths of Iraqi civilians, but it is fighting a lawsuit by the families of six Iraqis allegedly killed by British troops, who have gone to the high court in London seeking to force an independent investigation. Hassan Said's case is not among these. 

The government says it has paid more than  £142,000 in compensation to settle 106 cases of death, injury and property damage in Iraq. Another 537 claims have been denied, while 149 remain under investigation. 


Today the prime minister, Tony Blair, said that most of the 8,000 British troops in Iraq "have done a fantastic job an amazing job in Basra and elsewhere". Mr Blair told reporters at his monthly press conference that it was important British troops "adhere to high standards, and where they don't we take action".


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## Bruce Monkhouse (15 Sep 2004)

Some thoughts and articles.

http://arabiansea.com/s/baghdad/      Click on" war crimes?" at the top     I could use some coin.

http://www.theolympian.com/home/news/20040908/topstories/139662_ARC.shtml

Attorney General Lord Goldsmith said in a written statement to Parliament that he had been asked by the Ministry of Defense to review the case "after charges were dismissed by the soldier's commanding officer. This meant the case could not be tried by court martial." 

http://www.thisislondon.com/news/articles/13027935?source=PA

That one is interesting, so from what I've gathered this morning is that he can't be court-martialled because his CO declined to press charges. Personally I would think that someone higher-up the food chain could over-rule the CO's finding based on the evidence. Two reasons come to mind quick [a] keeping it out of the civilian system and all the bad publicity that it entails and * especially in a combat area the personal involved could be a little too intertwined[not saying that about this case, not enough facts yet] to make a fair objective finding and not to mention the possible feeling that the "big guy sold us out" feeling the men might have.

EDIT: One more...   http://www.thesun.co.uk/article/0,,2-2004420467,00.html*


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## Bruce Monkhouse (15 Sep 2004)

Just to add a question to this, would this be the same in the Canadian military?


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