# Report obtained by CTV News shows lack of confidence in military justice system



## Inspir (11 Jan 2018)

https://www.ctvnews.ca/mobile/canada/report-obtained-by-ctv-news-shows-lack-of-confidence-in-military-justice-system-1.3754529



> *Report obtained by CTV News shows lack of confidence in military justice system*
> 
> The military justice system, operated by the Canadian Armed Forces, is where troops are supposed to find justice, but an internal report obtained exclusively by CTV News reveals a lack of confidence that extends to the highest levels.
> 
> ...


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## Jed (11 Jan 2018)

Inspir said:
			
		

> https://www.ctvnews.ca/mobile/canada/report-obtained-by-ctv-news-shows-lack-of-confidence-in-military-justice-system-1.3754529



Well, it sure took a long time for this to surface. It has been a lame duck system for decades.


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## Journeyman (11 Jan 2018)

Unfortunately, the Report is not publicly available to allow for a more well-versed response. 

However, I tend to agree with the sentiments presented, with one exception:
I think that "raised concerns that the system is run by officers (lawyers and judges) with no combat experience" is a bogus argument.  Where could we possibly get sufficient numbers of lawyers and judges with combat -- especially SOF -- experience?  Until somewhat recently combat experience was scarce, yet the system worked.  

What has changed (based on my personal view), is that our legal system has shifted from "MILITARY lawyers" to "military LAWYERS."

One clear example is the recent legal precedents that have been established when Senior officers have been charged with improper weapon storage or a negligent discharge.  In both cases, where a Cpl would have been justifiably punished, both LCols walked without even a hand-slap.  

The *military* focus appears to have been grossly minimized.



I'll let others ponder why that may be, whether greater concern for Supreme Court overturning the verdict, some form of 'reverse-Stockholm Syndrome' (where, after years of dealing with the lesser-side of military personnel, they believe that our military ethos is offensive), or some other reason.
:dunno:


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## Jarnhamar (11 Jan 2018)

[quote author=Journeyman]

One clear example is the recent legal precedents that have been established when Senior officers have been charged with improper weapon storage or a negligent discharge.  In both cases, where a Cpl would have been justifiably punished, both LCols walked without even a hand-slap.  

[/quote]

I've spoken with privates who couldn't tell a Coleman lantern and stove apart yet but know the specifics of those stories. The ND case gets brought up constantly.


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## Oldgateboatdriver (11 Jan 2018)

I agree with you Journeyman.

In my mind, there is a way to ensure that military justice (read "discipline") is served through officers (and I mean anyone above able seaman by "officer") with  combat/military experience: Start the Standing court martial at 5 members and make the general one a seven member panel. In other words, eliminate any trial by military judge alone. Considering the number of court martial held, as opposed to summary trial where it is already held by an officer with military/combat experience, it would not be that much of problem to do.

And also, since the process is fundamentally a military disciplinary one at its base, we should eliminate the need for a unanimous finding by the court martial panel members. A majority should be sufficient.

All you have to do then is couple the whole thing with powers for a Superior officer/ Senior commander (not the member's direct CO, but one level above - at least) to actually refer more important criminal accusations without a direct military nexus* to actual civilian criminal courts to be dealt with by civilian authorities.

*: For instance, an member accused of murdering another military member in the course of an operation would be dealt with by court martial, while one who murders his spouse, even on a base, would be sent to civilian courts. Similarly, a member charged with drunk driving causing death while in Canada would be sent to civilian courts, etc. etc.


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## RCDtpr (11 Jan 2018)

Oldgateboatdriver said:
			
		

> I agree with you Journeyman.
> 
> In my mind, there is a way to ensure that military justice (read "discipline") is served through officers (and I mean anyone above able seaman by "officer") with  combat/military experience: Start the Standing court martial at 5 members and make the general one a seven member panel. In other words, eliminate any trial by military judge alone. Considering the number of court martial held, as opposed to summary trial where it is already held by an officer with military/combat experience, it would not be that much of problem to do.
> 
> ...



So if I'm reading this correctly something like a murder with a military nexus should be handled via court martial and someone's freedom for 25 years should be decided by majority rather than beyond reasonable doubt?

Not trying to come off as confrontational, just looking to clarify if that's what you're getting at.


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## Oldgateboatdriver (11 Jan 2018)

As bizarre as it may sound, exRCDcpl, my answer would be "yes", majority decision. My reasons for doing so is that anything with a military nexus is, and should always be, disciplinary first. Unlike the civilian courts, the purpose must always be to instil and maintain discipline, not to show societal reprobation, as civilian laws and courts do. So, for the maintenance of discipline, I much rather send a soldier who "most likely" (that is what a majority decision vs unanimous decision would entail) killed his mate on an ex. to Edmonton than have absolute proof before ending him out to a Federal penitentiary. The non unanimous nature of the decision can be taken into consideration in deciding the appropriate military sentence. 

Quite willing to accept that other people will think I am wrong on this one, as it is purely personal view of the purpose of the Code of Service Discipline.

But I am also willing to bet, here, that officers with combat experience can distinguish between, say a "fragging" and an accidental shooting in action resulting in a blue on blue, much better than civilians would be able to.


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## RCDtpr (11 Jan 2018)

Oldgateboatdriver said:
			
		

> As bizarre as it may sound, exRCDcpl, my answer would be "yes", majority decision. My reasons for doing so is that anything with a military nexus is, and should always be, disciplinary first. Unlike the civilian courts, the purpose must always be to instil and maintain discipline, not to show societal reprobation, as civilian laws and courts do. So, for the maintenance of discipline, I much rather send a soldier who "most likely" (that is what a majority decision vs unanimous decision would entail) killed his mate on an ex. to Edmonton than have absolute proof before ending him out to a Federal penitentiary. The non unanimous nature of the decision can be taken into consideration in deciding the appropriate military sentence.
> 
> Quite willing to accept that other people will think I am wrong on this one, as it is purely personal view of the purpose of the Code of Service Discipline.
> 
> But I am also willing to bet, here, that officers with combat experience can distinguish between, say a "fragging" and an accidental shooting in action resulting in a blue on blue, much better than civilians would be able to.



So I guess my counter question to you would be this.  If you or someone you loved was sent to prison for 25 years because a panel decided you (or they) "most likely" murdered someone, you'd be ok with that decision and accept your punishment even though nothing was actually proven beyond the subjective opinion of people who aren't trained in law, evidence etc. since it maintains discipline?

This is of course keeping in mind that first degree murder carries a mandatory 25 year sentence and therefore the unanimous nature of the decision cannot be taken into consideration for sentencing purposes.


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## Oldgateboatdriver (11 Jan 2018)

Interesting way of phrasing your position, but in practice, civilians are judged subjectively by a jury of their peers who also have no training in law or in matters of evidence (in fact, having a legal background is an automatic ground for exclusion from jury duty so you don't unduly effect the deliberations). That's what the judges instructions to the jury are there for: to tell them how to go through the evidence that was properly put before them. It's also why any decision on what evidence can be adduced at the trial or should be denied is left in the hand of the judge and why, when the circumstances so warrant (i.e. there is clearly a missing piece of necessary evidence), the judge can direct a verdict of acquittal.  All of these would still hold true before a court martial.

Don't think for one moment, however, that civilian juries are better at "getting it right" just because their verdict (one way or the other, BTW - all 12 must agree to acquit for an acquittal also. Anything that is not 12-0 one way or the other is hung jury) must be unanimous, and that their decision is therefore not subjective. There are many books written on the dynamics of juries (unfortunately, I can't refer you to any right now as they are all somewhere in my boxes of law books up in the garage attic  ;D), and it is clear that getting it right is far from being the leading leitmotiv.

However, getting back to your specific question: Yes, send him/her to jail for 25 years. The idea here because it is military code of discipline, is that even if it is not 99% sure, but you think at 75% he/she did it, you would rather have all other members of the  military thinking "you can't get away with this sh*t" than think "unless they have near absolute proof, you'll get away with it". Look at what the report says about one Navy ship 's view of court martials: "It's a way to escape the consequences of misconduct". Is such a view good for discipline?

Also, keep in mind that in the very large majority of cases, the evidence is pretty clear and one sided, for one thing, and that if it is clear that the jury/panel didn't get it right, the appeals court can overturn. It's just that it is more difficult to overturn findings of facts by jury/panels because you don't know their reasons for finding what they found, than the findings of facts of  judge who must explain his/her reasons.


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## RCDtpr (11 Jan 2018)

The problem I have with your argument is you seem to believe the Code of Service Discipline supersedes the Charter of Rights and Freedoms.  None of us have given up our citizenship upon joining the CAF and to argue any of us should not be afforded the same rights as all other Canadians so that an example can be made if necessary, I'll never agree with.

We already have a farce when it comes to summary trials and don't need the court martial system becoming a kangaroo court of "march the guilty *******" in as well.

Having said all that, I do absolutely agree our court martial system is broken when it comes to timeframes etc. and I can't understand why.  RMP has a fraction of the files cross their desk for prosecution as their civilian counterparts yet they take 3x as long to get anything done.

Edit to add the caveat that when I refer to us being afforded the same rights and any other Canadian I'm referring to serious allegations that can result in criminal records and jail time.  I understand I gave up certain rights upon joining such as refusing unsafe work in combat, being where I'm told to be when I'm told to be there, grooming standards at work etc.


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## daftandbarmy (11 Jan 2018)

Must be a slow news day for the CBC. There's a lot of this stuff already out there:


Canada’s military summary trials are frozen in time

Military summary trials are ancient, outdated, and unfair—and they are insulated from judicial scrutiny.

http://mdlo.ca/wp-content/uploads/2016/02/Summary-Trials-frozen-in-time.pdf


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## FJAG (12 Jan 2018)

daftandbarmy said:
			
		

> Must be a slow news day for the CBC. There's a lot of this stuff already out there:
> 
> Canada’s military summary trials are frozen in time
> 
> ...



When I saw the comments that you quoted I immediately knew who the author of this article would be.

As usual his article is, in my humble opinion, filled with pejorative language and exaggerations which are not borne out by the reality of the situation. The Canadian summary trial system, like its courts martial, has been revised over the years to fit the changing nature of both Canadian justice and its military. Are our trial systems perfect? Nope, but not for lack of reviews and debates (including consultations with the chain of command). 

Pretty much every justice system has some flaws and there will always be cases where at least someone will be dissatisfied with the outcome, whether too lenient or too harsh.

Quite frankly, I don't know what the author of that article really wants. I've heard him call down the system and our leadership for years but never seen him offer any practical solution that would more perfectly balance the needs of the chain of command for expedient disciplinary proceedings and the individual's right to a fair hearing. What he puts forward here is that:



> . . . Canada should follow the example of many of our NATO Allies and modernize summary trials by making them fair and compliant with the constitutional and Charter requirements.



We already have done that. Our system is both constitutionally and Charter compliant. The reference to NATO is a red herring used to try to incorporate concepts from the European Court of Human Rights which do not apply to us. Our Supreme Court is already quite competent. Within the CF whenever the liberty of the accused is at risk, he must be given an election that allows him to remove the matter from his CO to a court martial where all the legal procedural safeguards are available. While an accused has no right to legal counsel at a summary trial there is involvement by legal officers at all key points along the way: during charge laying, during the election, post trial and at a s108.45 Review.

I won't make any comments about the new study until I've had a chance to see it for myself but I'm not surprised that in any such study there will be people at both ends of the scale who rely on anecdotal evidence to explain their views. 

I will say that I do agree entirely with the comments that it takes far too long for a matter to get to trial at court martial. Considering how few cases there are and the large number of judges, prosecutors and defence counsel we have, proceedings should move much more quickly. It's a known problem in the branch which has been addressed over and over but with only minimal success. The trouble here is that notwithstanding the delay, it's still less than the delay in civilian courts.

One additional comment from above which relates to the heavy use of "Standing Courts Martial" (or "judge alone trials") and the fact that they do not have input from "combat" or "military" officers. The use of Standing Courts Martial has gone up dramatically over the last few decades (we used to have four CMs: General, Disciplinary, Standing and Special General) Disciplinary Courts Martial were the workhorse but when we streamlined to two SCM and GCM, SCMs took over most of the lower end cases. In large part the chain of command was supportive of this because it reduced an administrative load of providing large panels of officers to choose from and to sit on trials.

As I said before, there is no shortage of opinions when it comes to the CF justice system. I also don't doubt that it could use some fine tuning (especially trial delays). Where I draw the line though is when I hear ridiculous statements that line officers aren't competent or fair when conducting summary trials, or that legal officers don't really understand what the disciplinary system is supposed to do or that the chain of command and the legal branch do not consult and modify the system when it becomes appropriate to do so. These are all knowledgeable and professional people doing their best. There may occasionally be a hiccup that appears bad to an outsider (or even insider who doesn't fully understand either the requirements of a disciplinary system or fundamental justice issues of the case) but that doesn't mean the system is broken.

 :cheers:


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## Inspir (12 Jan 2018)

https://www.ctvnews.ca/canada/investigation-underway-on-whether-top-military-lawyers-suppressed-damning-report-1.3756272



> *Investigation underway on whether top military lawyers suppressed damning report*
> 
> Top military officers are under investigation over whether they unlawfully suppressed a report that is critical of the military justice system, CTV News has learned.
> 
> ...


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## Furniture (12 Jan 2018)

I have no experience with CMs, but in my experience with Summary Trials too many of the sentences are far too lenient. When a repeat offender gets a fine of $500-800 for being late for duty watches, but is making $1800 in tax free allowances a month on top of their pay(now also tax free) the sentence sends the wrong message. Our fines are stuck in the '80s while our pay is now in 2018... 

We are forced to rely on administrative action to enforce discipline and the disciplinary system is seen more as an administrative step.


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## Remius (12 Jan 2018)

It's worse in the PRes where troops can end up making more than they get fined...


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## QV (12 Jan 2018)

WeatherdoG said:
			
		

> I have no experience with CMs, but in my experience with Summary Trials too many of the sentences are far too lenient. When a repeat offender gets a fine of $500-800 for being late for duty watches, but is making $1800 in tax free allowances a month on top of their pay(now also tax free) the sentence sends the wrong message. Our fines are stuck in the '80s while our pay is now in 2018...
> 
> We are forced to rely on administrative action to enforce discipline and the disciplinary system is seen more as an administrative step.



Ok, describe the punishment you believe is fair for the capital crime of being late.  A $500 hit (and likely a ton of extra duties) is not out of the realm of reasonable.  Discipline is a constant and needs to come in more ways then a summary trial.


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## Journeyman (12 Jan 2018)

FJAG said:
			
		

> ... notwithstanding the delay, it's still less than the delay in civilian courts.


The news story 'claims' that "On average, it takes 434 days from when charges are laid to completion of the court martial, compared to the median 112 days from first appearance to completion of the trial in civilian criminal cases."*



			
				FJAG said:
			
		

> ...in any such study there will be people at both ends of the scale who rely on anecdotal evidence to explain their views.


The overarching topic is "the lack of confidence" in the system;  people, writ large, often base opinions (such as non-quantifiable degrees of confidence), on anecdotal evidence.  

The two senior officer examples I alluded to (LCol Nauss - ND and LCdr Carlyon - Wpn Storage) are public record, readily available via CanLII.  Now, a lawyer could read those decisions and conclude, "yep, the judge was brilliant; nothing to see here".... but to a _mere_  soldier, the results contribute to that whole "lack of confidence in the system" and, as Jarnhammer mentioned, increased "anecdotal evidence" as the troops shake their heads and spread the story.

Now, perhaps if the only thing wrong is so many people having a poorly-informed lack of confidence, the Legal Branch only needs more Public Affairs officers to explain how sunny everything actually is. 



* [ 'claims' in ellipses because it's acceptable in some circles to simply dismiss anything disagreeable as fake news]


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## captloadie (12 Jan 2018)

The reason I see that we still look at the decisions of summary trials as forgone conclusions (walk the guilty ***** in) is because very few charges proceed to that point unless there is a relative certainty of a conviction. According to the statistics on the JAG site, on average 87% of summary trials end in a finding of guilty. Could the overall thought process be why waste everyone's time if the outcome is not going to produce the desired results of the CoC? Unfortunately, I often find that the desired result is to mete out discipline, and not see the disciplinary system upheld. It is just as important for members who have been investigated have a chance to be acquitted, and a cloud removed from over their head, rather than for charges to just disappear, or the whispers of that they just didn't have enough on him/her to make something stick.


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## RCDtpr (12 Jan 2018)

captloadie said:
			
		

> The reason I see that we still look at the decisions of summary trials as forgone conclusions (walk the guilty ***** in) is because very few charges proceed to that point unless there is a relative certainty of a conviction. According to the statistics on the JAG site, on average 87% of summary trials end in a finding of guilty. Could the overall thought process be why waste everyone's time if the outcome is not going to produce the desired results of the CoC? Unfortunately, I often find that the desired result is to mete out discipline, and not see the disciplinary system upheld. It is just as important for members who have been investigated have a chance to be acquitted, and a cloud removed from over their head, rather than for charges to just disappear, or the whispers of that they just didn't have enough on him/her to make something stick.



I have provided numerous testimonies in summary, court martial, and civilian trials and can say that based on my experience charges that go to summary are foregone conclusions because the CoC decided that, not the evidence.  I can think of several examples I personally investigated, recommended to the unit CO no charges be laid, and because that didn't fit the narrative they were looking for, charges were laid and the individuals convicted.  One trial particularly stands out to me in which the presiding officer used all of his "legal" knowledge he learned on his week long presiding officer course to twist my testimony in a manner he could use and outright ignored anything that didn't point to the culpability of the accused.  I personally did not believe the accused was the individual responsible for the crime. 

After the trial I was chatting with the major who was acting as the presiding officer and he made the comment to me "thankfully we were able to convict that bag of ****."

That was the day I lost any faith or respect for the summary trial system I may have had left at that point.

Keep in mind I'm only sharing personal experiences of issues I've seen for summary trials conducted in which the investigator was trained.  I haven't even taken into account summary trials in which the accused was "investigated" by an investigator whose only skill was being the first Sgt or above the CoC saw on the morning they wanted the invest done.


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## FJAG (12 Jan 2018)

Journeyman said:
			
		

> The news story 'claims' that "On average, it takes 434 days from when charges are laid to completion of the court martial, compared to the median 112 days from first appearance to completion of the trial in civilian criminal cases."*



I didn't take the 112 days statistic very seriously because it just doesn't have a ring of truth to it. (Nor anecdotally in my experience - there's also a difference between "charge laid" and "first appearance" albeit the difference should be small but frequently isn't as things run differently). Attached is a link to a chart issued by the Senate which provides some statistics respecting civilian courts and you can see that the median days for "completion time" in Provincial court (lower end cases) is stated as 123 days and superior court (higher end) 514 days.

http://sen.parl.gc.ca/portal/pdf/LCJC-Cases-Consequences-e.pdf

I don't think we need to argue the point as we both agree that the time is too long. In my view there is a better explanation for delay in civilian court because the case load is very high while in the military the caseload per prosecutor is quite low. Incidentally, I also agree with the "cost" criticism which is directly tied to the number of people per case we have working the CM system.



			
				Journeyman said:
			
		

> The overarching topic is "the lack of confidence" in the system;  people, writ large, often base opinions (such as non-quantifiable degrees of confidence), on anecdotal evidence.
> 
> The two senior officer examples I alluded to (LCol Nauss - ND and LCdr Carlyon - Wpn Storage) are public record, readily available via CanLII.  Now, a lawyer could read those decisions and conclude, "yep, the judge was brilliant; nothing to see here".... but to a _mere_  soldier, the results contribute to that whole "lack of confidence in the system" and, as Jarnhammer mentioned, increased "anecdotal evidence" as the troops shake their heads and spread the story.
> 
> ...



I can't agree that the 'overarching topic is "lack of confidence" in the system".  I haven't read the report but only the article which, like most articles, cherry picks support from the report for it's own premise. Once I've read the actual report I might change my mind about that although I tend to think I probably won't. Anecdotal evidence has a big problem. Things that function the way that should do not attract any attention. People rarely stand around the water cooler and discuss a court martial that played out the way that it should but will immediately start criticising one where they believe the accused was treated unfairly or was let off too easily. As a result the minority of cases which might be problematic enter into mythology and are seen as representative of the status quo when they really aren't. I take some satisfaction from the fact that complaints about the system come from both sides, those that think accused are treated to leniently and those who feel to harshly or unfairly. Again, I look forward to seeing the final report.

 :cheers:


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## FJAG (12 Jan 2018)

Inspir said:
			
		

> https://www.ctvnews.ca/canada/investigation-underway-on-whether-top-military-lawyers-suppressed-damning-report-1.3756272



I'm not privy to any of the background to this but I do note that the report was an "Interim Report" and that there appears to be a claim of "Solicitor and Client Privilege". Both are, in my view, valid reason's to keep the report confidential at this time.

This type of report does not come from the prosecuting or defence arm of the branch but from the Director of Law/Military Justice Strategic with possible support from the Director of Law/Military Justice Policy Directorate (The organization has changed somewhat since my days when it was the Director of Law/Military Justice Policy and Research and I'm not sure if DLaw/MJP would be involved until the report is final) As such, DLaw/MJS is providing legal analysis and advice to the CF and DND. Such advice and accordingly, the report is considered protected by solicitor/client privilege and the Office of the JAG has a duty to protect it from disclosure. At some point in the future, once the report is final and advice is tendered to DND as to a recommended course of action, the MND (and not JAG) would have the option as to whether to release the advice/report or claim it exempt from disclosure under s 23 of the ATI.

I think we are once again seeing a mountain being made into a molehill for pure outrage effect.

 :cheers:


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## Retired AF Guy (12 Jan 2018)

FJAG said:
			
		

> I didn't take the 112 days statistic very seriously because it just doesn't have a ring of truth to it. (Nor anecdotally in my experience - there's also a difference between "charge laid" and "first appearance" albeit the difference should be small but frequently isn't as things run differently). Attached is a link to a chart issued by the Senate which provides some statistics respecting civilian courts and you can see that the median days for "completion time" in Provincial court (lower end cases) is stated as 123 days and superior court (higher end) 514 days.



While this article agrees from  Stats Canada* agrees that the median is 121 days, the second paragraph adds a little more detail:  _The length of time taken to complete adult criminal court cases declined in 2014/2015. The median amount of time** from an individual’s first court appearance to the completion of their case was 121 days (around 4 months), which was six days shorter than the previous year (Chart 7), and three days shorter than a decade ago.

Nearly half (49%) of all cases took less than four months to complete in 2014/2015. This was followed by 42% of cases that took between 4 and 18 months to complete. The remaining 9% of cases took between 18 and 30 months to complete (6%), or 30 months or longer to complete (3%)_.

* Scroll down to "Case processing times decline" to find above paragraphs. 
** Defined in above link as : "Case lengths are calculated based on the number of days it takes to complete a case from first appearance to final decision. The median is the point at which half of all cases had longer limits and half had shorter cases lengths."  Small print under Charts 7 and 8.


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## FJAG (12 Jan 2018)

Just for the sake of information here is an excerpt from the last JAG Annual Report respecting the Court Martial Comprehensive Review:



> Court Martial Comprehensive Review
> 
> Pursuant to his statutory responsibilities for superintendence and for the conduct of regular reviews of the administration of military justice under subsections 9.2(1) and (2) of the NDA, on 13 May 2016, the JAG directed the Deputy Judge Advocate General for Military Justice (DJAG MJ) to conduct a comprehensive review of the CAF’s court martial system.  The purpose of this review is to conduct a legal and policy analysis of all aspects of the CAF’s court martial system and, where appropriate, to develop and analyze options to enhance the effectiveness, efficiency, and legitimacy of that system.
> 
> ...



http://www.forces.gc.ca/en/about-reports-pubs-military-law-annual-2016-17/ch-3-military-justice-jurisprudence.page

I think we can all agree that this is a proactive forward reaching initiative by JAG rather than what is portrayed in the press as a suspicious hiding of a negative report. How difficult would it have been for CTV to report that "In the course of a far-reaching project to enhance the effectiveness, efficiency and legitimacy of the military justice court martial system, military lawyers obtained an interim report that alleges, in part, lack of confidence in . . ."?

 :cheers:


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## Kat Stevens (12 Jan 2018)

Glad I never went up in front of a CO/OC who was only 75% sure I was guilty but jammed me up anyway.


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## SupersonicMax (12 Jan 2018)

Well, the summary trial already has a different burden of proof when compared to a court martial.  You do not need to have certainty beyond reasonable doubt.


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## Kat Stevens (12 Jan 2018)

I Skated on more orders parades than I went down for, so there must have been some doubt involved  8).


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## ballz (12 Jan 2018)

I think "inconsistent" is the best word to describe what I've seen, which when it comes to justice.... is not good.

There were some allusions to senior/executive officers getting away with things that troops would be hung for... I think there are cases of that as was shown, I also look back to the LCol who got convicted TWICE for wearing medals she hadn't earned, and only got a severe reprimand each time.

But also, the talk of NDs was mentioned above... I swear from 2012-2017 in which I was in a Battalion, a soldier could fire off a round while cleaning weapons in the coy stores and the JAG would tell the Chain of Command not to charge him because it wouldn't meet the threshold for negligent. But Gen Rouleau reported himself immediately and pled guilty and got fined $2000.

From the Summary Trials I have seen, I have seen some Majors do a good job and some Majors who shouldn't be allowed to use a gavel at a Mess dinner much less in any sort of disciplinary hearing. I have seen what can only be described as institutional incompetence which resulted in a culture of doing summary trials behind closed doors, and sadly the Majors that did a good job and had a fair hearing, came to fair conclusions, and handed out fair sentences with fair considerations were also not observed by the troops as a result.

There is also great inconsistency among units on when the disciplinary system is actually used and when someone just decides to hand out 10 extras with no trial at all.

I think the inconsistency alone has shaken my confidence no matter how much I think we need our own disciplinary system and no matter how much I think units need to have that kind of tool at the unit level.


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## FJAG (12 Jan 2018)

SupersonicMax said:
			
		

> Well, the summary trial already has a different burden of proof when compared to a court martial.  You do not need to have certainty beyond reasonable doubt.



The standard of proof is the same. The following is a quote from Military Justice Summary Trial 2.2 Ch 13



> 142. Findings refer to the presiding officer's determination as to whether it has been proven, beyond a reasonable doubt, that the accused committed the offence charged. They include determinations regarding the guilt of the accused for any included offence or an attempt to commit an offence with which the accused has been charged.



http://www.forces.gc.ca/en/about-reports-pubs-military-law-summary-trial-level/index.page

 :cheers:


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## FJAG (12 Jan 2018)

ballz said:
			
		

> I think "inconsistent" is the best word to describe what I've seen, which when it comes to justice.... is not good.
> 
> . . .



The CF have greatly improved the training that officers need to take before being certified to conduct summary trials.

Unfortunately there will always be some officers who are not as good as others and since we don't do summary trials on a daily basis and since there are some units/commands who have differing standards we will never reach a point where each and every delegated/commanding officer ever reaches the point of having done enough of them to become proficient at them much less experts. 

The only way that I could see there being consistency would be if there was a small pool of legally trained officers who went on circuit to preside at summary trials. This is something I'm dead set against because I feel very strongly that the chain of command must have the authority to administer summary justice. It's simply naive to suggest that officers who are entrusted with the right to make life and death decisions in battle are incapable of making a determination as to whether a soldier should be punished for dirty boots etc. Like anything else, I would expect that if a certain delegated officer made a complete hash of a case then the word would gently go from the CSM to the delegated officer and in extreme cases from the CSM to the RSM and into the ear of the CO. This is why we have sergeants major (amongst a host of other things).

 :cheers:


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## Blackadder1916 (12 Jan 2018)

ballz said:
			
		

> I think "inconsistent" is the best word to describe what I've seen, which when it comes to justice.... is not good.
> 
> There were some allusions to senior/executive officers getting away with things that troops would be hung for... I think there are cases of that as was shown, I also look back to the LCol who got convicted TWICE for wearing medals she hadn't earned, and only got a severe reprimand each time.



If consistency is to be the watchword, then it behooves us to be consistent in presenting the actual facts and not what is incorrectly remembered.  The LCol was not convicted twice for illegally wearing medals; her first court martial was for falsifying results for a CF EXPRES test.  In addition to the severe reprimands she was also fined, $3000 and $5000.  However, I would agree that her treatment was comparatively more lenient than would likely have happened to a junior rank.

https://decisia.jmc-cmj.forces.gc.ca/jmc-cmj/cm/en/item/99015/index.do?r=AAAAAQAGTWlsbGVyAQ
https://decisia.jmc-cmj.forces.gc.ca/jmc-cmj/cm/en/item/98997/index.do?r=AAAAAQAGTWlsbGVyAQ


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## PuckChaser (12 Jan 2018)

FJAG said:
			
		

> The standard of proof is the same. The following is a quote from Military Justice Summary Trial 2.2 Ch 13



It may appear that way to a lawyer, but to the average soldier who sees a LCol get off a ND charge because they refused to take ownership of wrong doing and blamed the system/training/etc, where a Cpl in a Summary Trial doesn't get that ability, it looks like a stacked deck with different rules depending on your rank.


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## FJAG (12 Jan 2018)

PuckChaser said:
			
		

> It may appear that way to a lawyer, but to the average soldier who sees a LCol get off a ND charge because they refused to take ownership of wrong doing and blamed the system/training/etc, where a Cpl in a Summary Trial doesn't get that ability, it looks like a stacked deck with different rules depending on your rank.



The fact that there are people out there who have the wrong idea because they'd rather listen to barrack room gossip then reading the reasons for decision published in a public forum isn't my problem.

I long ago stopped underestimating the general public's penchant for believing what they want to believe rather than what is true. We, and the system, shouldn't cater to them. Whatever we do to try to appease them won't be good enough anyway.

 :cheers:


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## PuckChaser (12 Jan 2018)

I read the decisions, specifically from my tour in Afghanistan. Already cited is this example: https://decisia.jmc-cmj.forces.gc.ca/jmc-cmj/cm/en/item/99003/index.do

Pled not guilty (after I found 6 other LCols who pled guilty). Found not guilty due to technicalities of C7/C8 manuals and TSOs having "no evidence of being available" and that because he fired the round into the clearing bay it wasn't negligent. Cpl does the same thing, is in and out of a Summary Trial in 30 minutes with a guilty verdict. 



> [41]           The accused is of the opinion that the prosecution failed to prove beyond a reasonable doubt the prejudice to good order and discipline because it did not demonstrate that he had actual knowledge or ought to have known the specific instructions and orders to which both charges referred to.
> [59]           I would like to add that from the court's perspective, when a weapon's drill is done improperly causing a weapon to fire when it is not supposed to or when it is not authorized to, it does not constitute automatically a penal negligence offence in the meaning of section 129 of the National Defence Act.



Good luck using that defense at your unit. I can also personally attest that because idiots who couldn't remember their drills, I spent the entire time deployed in Kabul (at the same time as LCol Nauss) at least once a week in FFO behind my barracks going over TOETs because there was another ND. 

For him to claim he didn't have knowledge of the orders and handling instructions is absolutely laughable, and perhaps worse still is that the prosecution was inept enough to be unable to prove he should have reasonably known what he was doing in a theatre of war with his service rifle.


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## ballz (13 Jan 2018)

Blackadder1916 said:
			
		

> If consistency is to be the watchword, then it behooves us to be consistent in presenting the actual facts and not what is incorrectly remembered.  The LCol was not convicted twice for illegally wearing medals; her first court martial was for falsifying results for a CF EXPRES test.  In addition to the severe reprimands she was also fined, $3000 and $5000.  However, I would agree that her treatment was comparatively more lenient than would likely have happened to a junior rank.
> 
> https://decisia.jmc-cmj.forces.gc.ca/jmc-cmj/cm/en/item/99015/index.do?r=AAAAAQAGTWlsbGVyAQ
> https://decisia.jmc-cmj.forces.gc.ca/jmc-cmj/cm/en/item/98997/index.do?r=AAAAAQAGTWlsbGVyAQ



 :surrender: 

 :cheers: to keeping me accountable... although now that my memory is properly refreshed, I think I'm more miffed about it then when I wrote that.


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## daftandbarmy (14 Jan 2018)

PuckChaser said:
			
		

> I read the decisions, specifically from my tour in Afghanistan. Already cited is this example: https://decisia.jmc-cmj.forces.gc.ca/jmc-cmj/cm/en/item/99003/index.do
> 
> Pled not guilty (after I found 6 other LCols who pled guilty). Found not guilty due to technicalities of C7/C8 manuals and TSOs having "no evidence of being available" and that because he fired the round into the clearing bay it wasn't negligent. Cpl does the same thing, is in and out of a Summary Trial in 30 minutes with a guilty verdict.
> 
> ...



In NI we had a (very self-satisfied and annoying) OC found guilty and fined 1000 quid for having an ND on an operation, during a big cordon and search op. It took about two days to do the business on him, as I recall, including extracting him from a trench in the South Armagh cuds. 

We thanked the Karma Gods, of course


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## Cloud Cover (15 Jan 2018)

daftandbarmy said:
			
		

> In NI we had a (very self-satisfied and annoying) OC found guilty and fined 1000 quid for having an ND on an operation, during a big cordon and search op. It took about two days to do the business on him, as I recall, including extracting him from a trench in the South Armagh cuds.
> 
> We thanked the Karma Gods, of course



I'm sorry, but in a Monty Python context that reads like the OC was rudely beating off regularly in a trench.


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## daftandbarmy (15 Jan 2018)

whiskey601 said:
			
		

> I'm sorry, but in a Monty Python context that reads like the OC was rudely beating off regularly in a trench.



Hmmm... thinking about his rifle coy at the time, you're probably not far wrong 

As an aside, he was back in the field the next day, which is an excellent example of summary justice in action IMHO.


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## pbi (24 Jan 2018)

"...Some senior military brass told the report’s authors they believed some serious offenses would be better handled in the civilian justice system...."

No, please. Don't tell me we have senior officers who actually want this? IIRC we already don't try the most serious criminal offenses: what "some serious offenses" are they referring to?


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