# Sexual assault charges stayed as questions of independence rock military justice



## Lumber (4 Oct 2020)

> The judge, Cmdr. Martin Pelletier, stayed court martial proceedings against Capt. Mark Iredale last month after finding the officer couldn't be guaranteed his right to a trial before an independent and impartial tribunal.



https://www.cbc.ca/news/canada/british-columbia/sexual-assault-military-judges-independence-1.5749072

Ok, so does this not set the precedent that anyone in the forces charged with sexual assault and is going to go before a court marital instead of a civilian court will have their charges stayed?

Edit to add more content directly from article.


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## ModlrMike (4 Oct 2020)

This is crazy. Why can't there be an order that guarantees judicial independence, whilst having these Legal Officers still subject to the CSD? After all, civilian judges have judicial independence, but are still subject to the CCC.

What is the place of military judge if they can't be managed by the military command structure for non-judicial purposes?


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## dapaterson (4 Oct 2020)

ModlrMike said:
			
		

> This is crazy. Why can't there be an order that guarantees judicial independence, whilst having these Legal Officers still subject to the CSD? After all, civilian judges have judicial independence, but are still subject to the CCC.
> 
> What is the place of military judge if they can't be managed by the military command structure for non-judicial purposes?



Clear the military bench, add two judges to the federal court to account for the number of court martials, and move the entire court martial caseload to the federal court.

This all goes back to the retired Chief Military Judge and his successful efforts to sabotage his own court martial.  The judges now think they are outside the law.


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## Oldgateboatdriver (4 Oct 2020)

I am partly in agreement with you, Dapaterson, but not quite.

I agree we should dispose of the whole uniformed bench.

However, I hate when we constantly talk of military justice - Unlike the US, which has a Uniform Code of Military Justice, we have a Code of Service Discipline - the point being the fundamental purpose is maintaining discipline. This requires that the "accused" be judged on the basis of what is required for the maintenance of discipline in the CAF, and only serving members can decide that in my humble opinion.

So in my system, the CAF would eliminate court martial before a judge alone. All court martial   (and as you noted DP, there isn't that big a caseload) would be before a trial judge, for legal aspects, with a panel of members of the CAF to decide the guilt or absence of guilt. You can have different levels with, say five, seven and nine members depending on the gravity of the case, and like the US, on that one, I would agree to a majority vote from the panel instead of unanimous decision - though I could also live with more than simple majority if that is what people want. In such system, you would not move the court martial to Federal Court, you would have judges of the Federal Court come in as bench of the court martial. And you don't need more of them - they already have a very light case load as compared to most courts in Canada.

P.S. One of the main reason I am of this view is because if we simply moved the court martial system to the Federal court and you still had trial by judge alone, you would have judges that have never served that would decide such cases. Yet, one of the most important alternate charge we use in court martial is the general "Conduct to the prejudice of good order and discipline". IMHO, only serving members can decide what that is at any specific point in time and those are charges of great importance as was illustrated (I know, fictional example, but ...) in A Few Good Men.


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## ballz (4 Oct 2020)

Oldgateboatdriver said:
			
		

> This requires that the "accused" be judged on the basis of what is required for the maintenance of discipline in the CAF, and only serving members can decide that in my humble opinion.





			
				Oldgateboatdriver said:
			
		

> You can have different levels with, say five, seven and nine members depending on the gravity of the case, and like the US, on that one, I would agree to a majority vote from the panel instead of unanimous decision - though I could also live with more than simple majority if that is what people want.



Why should the liberty of an accused be more in jeopardy in the military than it is in the civilian court? If someone is charged with murder, how does giving the prosecution an easier time in getting a conviction have anything to do with discipline?

Finding someone guilty or not guilty of a charge has nothing to do with "discipline." The discipline part comes after, in the sentencing.


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## Oldgateboatdriver (4 Oct 2020)

Just a few points, Ballz. And please keep in mind those are my opinions:

The issue is not wether one's liberty is in jeopardy or not, it is "what is the purpose of the CSD". My view is that it's purpose is discipline. I come to that conclusion for various reasons:

1) It's in the title of the damn document;
2) If it's purpose is prosecution of crime, then is useless. You already have a Criminal Code and a complete court system and police system capable of applying it and any supplementary "military" crimes can simply be added in as required;
3) Maintenance of good order and discipline is a paramount concept in military organization, so it's maintenance is an important, if not critical, aim.
4) Best proof of that last point: read an officer's commissioning scroll: "...and you are in such manner and on such occasions as may be prescribed by Us to exercise and well discipline both the inferior Officers and men serving under you and use your best endeavour to keep them in good Order and Discipline."


In short: if the CSD isn't about discipline, then it serves no purpose - leave the whole matters to ordinary courts and police force.


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## ballz (4 Oct 2020)

I'm not questioning the point about whether it's point is discipline...

You're talking about changing the standards for a guilty conviction, i.e. majority decision instead of unanimous decision, therefore making it easier to convict someone of a crime. You're citing discipline as a reason this is necessary.

I don't see how making it easier for the Crown in anyway enhances discipline in any way shape or form. It just opens the door for more mistakes and innocent people are the ones who bear the brunt of those mistakes.

The "discipline" part comes *after* the conviction. Trying to stack the deck against the accused isn't about discipline.


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## Oldgateboatdriver (4 Oct 2020)

Actually, Ballz, I meant to add this in my last post, but forgot:

If you look at the Constitution Act, 1982, which established the Charter of Rights, Article 11 f) (right to trial before a jury for offences carrying five or more years imprisonment), it specifically exempts military trials and tribunals from the obligation to provide trial before a jury. So, basically, the military tribunals are not bound by any rules applicable to trials by jury, such as unanimous decision of a jury, etc.


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## dapaterson (4 Oct 2020)

Any discussion of military law and the CSD should be framed by the ongoing work to implement  law C-77, which does a fundamental restructure of the CSD, eliminating summary trials and replacing them with summary proceedings.  "Service Infractions" as defined in Regulation will be addressed through summary proceedings, while only Service Offences as defined in the Act will give rise to court martial.


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## ballz (4 Oct 2020)

Oldgateboatdriver said:
			
		

> If you look at the Constitution Act, 1982, which established the Charter of Rights, Article 11 f) (right to trial before a jury for offences carrying five or more years imprisonment), it specifically exempts military trials and tribunals from the obligation to provide trial before a jury. So, basically, the military tribunals are not bound by any rules applicable to trials by jury, such as unanimous decision of a jury, etc.



I would defer to your legal expertise and also by reading that, to concede/assume that your idea would be constitutional, but that doesn't make it right. There seems to a few problems with our constitution so that there is yet another potential issue in there isn't surprising.

And so even if it isn't required by the constitution, if we're going to put a military member's liberty in jeopardy through an accusation, we can at least give them the same level of fairness we afford to every other Canadian, for example, requiring a unanimous decision by a jury to convict.


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## FJAG (4 Oct 2020)

Okay, one more time. We've already got a thread on this somewhere and this decision is nothing new. There have been several courts martial with the same result ever since the silly 2 October 2019 order issued by the CDS as a result (and I'd give my left nut to know what legal advice was offered at the time that the order was drafted/issued.) Those decisions have gone in different ways and there is currently no CMAC decision on the issue and on top of that the order appears to not yet being rescinded (although several cases had called it of no force and effect)

The problem here is quite simple: Under the Charter of Rights and Freedoms s 11(d) everyone is guaranteed trial by an independent and impartial tribunal. Ever since the Charter came out DND has been dicking around by fits and starts to determine what exactly a fair and "impartial" tribunal is. We've fine tuned it several times including curtailing the powers of COs/delegated Os at summary trials and changing the terms of service, selection, payment, etc of our military judges.

We pretty much had it all right and then we had that stupid kerfuffle with the Chief Military Judge and some bright genius thought the solution was to appoint the DVCDS to exercise the powers and jurisdiction of a commanding officer with respect to any disciplinary matter involving a military judge on the strength of the Office of the Chief Military Judge. Absolutely the wrong thing to do. In the other thread we already discussed options available the most appropriate being legislative changes which would allow a Federal or provincial superior court judge to be ad hoc'd to conduct a trial (we already use Federal and provincial Court of Appeal judges for our Court Martial Appeal Court. so no biggie)

Anyway, this is just one more in a string of decisions. For anyone who wants to read the full judgement see here.



			
				dapaterson said:
			
		

> Any discussion of military law and the CSD should be framed by the ongoing work to implement  law C-77, which does a fundamental restructure of the CSD, eliminating summary trials and replacing them with summary proceedings.  "Service Infractions" as defined in Regulation will be addressed through summary proceedings, while only Service Offences as defined in the Act will give rise to court martial.



I've read through Bill C-77 and see nothing there which would cure the issue before us now. The distinction between a service offence and an infraction is helpful in protecting the summary trial system which, however, rarely is challenged because of the absence of legal input in the process and it's low level consequences.

I've long been an advocate for the military trial system primarily because of it's portability into theatres of operation which we rarely use (I know of only one CM ever happening in Afghanistan. It was much more important when we had troops full-time in Germany.

Quite frankly I'm starting to change my mind (not there all the way yet but moving that way). My biggest concern is the luxury and expense of it all. We had 62 courts martial in 2017/18 and 51 in 2018/2019. For this we maintain four judges (1xCol, 3xLCol), a court administrator and all their minions, a Director of Military Prosecutions (Col) with 27 full-time and 8 Res F minions; and a Director of Defence Counsel Services (Col) with 10 full-time and 6 Res F minions. Every time we have a CM, there is an extensive TD element involved.

The problem is that the Federal Court - Trial Division does not generally do criminal cases which is typically within the jurisdiction of the provincial courts. Criminal procedure is somewhat specialized and one would need to set up a system that 1) was capable of dealing with criminal cases in a military context and 2) have sufficient portability to allow cases to be heard anywhere within Canada and, where necessary outside as well. In addition civilian courts are pretty busy and it takes quite a while for a case to get to trial (the military justice system isn't all that speedy either - note that in 2017/18 there were 173 days of CM sitting in total for all judges combined - i.e. days when a CM actually sat - and the average number of days from when an RDP was issued until the CM was completed was 402 calendar days)

I keep saying that we need to radically reform the reserve system to make it a useable, capable capability. I feel the same way about the current military justice system. We've fine tuned it into an expensive yet ponderous machine which is slowly becoming unfit for purpose. Still, it is a lot easier to fix the present problem than to reinvent the wheel. That said the damn institution is way too expensive and over-staffed.

Who did the legal review the CDS's order anyway?

 :cheers:


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## ModlrMike (4 Oct 2020)

ballz said:
			
		

> I would defer to your legal expertise and also by reading that, to concede/assume that your idea would be constitutional, but that doesn't make it right. There seems to a few problems with our constitution so that there is yet another potential issue in there isn't surprising.
> 
> And so even if it isn't required by the constitution, if we're going to put a military member's liberty in jeopardy through an accusation, we can at least give them the same level of fairness we afford to every other Canadian, for example, requiring a unanimous decision by a jury to convict.



That's not the issue here though. The question to be settled, is can military judges be subordinate to the CDS, while simultaneously retaining judicial independence.

I say yes. Take the Medical Branch as an example. The CDS would never influence a Medical Officer's clinical opinion. None the less, medical personnel remain subject to CSD and subordinate to the chain of command for all other issues.


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## FJAG (4 Oct 2020)

ballz said:
			
		

> And so even if it isn't required by the constitution, if we're going to put a military member's liberty in jeopardy through an accusation, we can at least give them the same level of fairness we afford to every other Canadian, for example, requiring a unanimous decision by a jury to convict.



That's a bit apples and oranges.

Very few of the tens of thousands of criminal trials held every year are before a jury. That's reserved for the most serious of crimes and by far the vast majority of civilian criminal trials proceed before a judge sitting alone.

In the court martial system it works the same way where only the most serious cases are heard by a General Court Martial of a judge and five members who must pass a unanimous finding of guilty to convict. By far the most courts martial are Standing Courts Martial consisting of a judge sitting alone.

 :cheers:


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## ballz (5 Oct 2020)

ModlrMike said:
			
		

> That's not the issue here though. The question to be settled, is can military judges be subordinate to the CDS, while simultaneously retaining judicial independence.



I know it's not the issue from the original post, I was responding to OGB's proposed system.



			
				FJAG said:
			
		

> That's a bit apples and oranges.
> 
> Very few of the tens of thousands of criminal trials held every year are before a jury. That's reserved for the most serious of crimes and by far the vast majority of civilian criminal trials proceed before a judge sitting alone.
> 
> ...



I don't see how it's apples and oranges. Rob Semrau was tried for murder in a court martial. We have plenty of other things that can happen that would be of that level of seriousness. Under OGB's proposed system, they only would require a jury vote of 3 to 5 to convict him, not 5 of 5.

I get it what you are saying, the vast majority of criminal cases go before a judge and judge alone. That's fine, we can do that. Like I said, give the accused the same that we afford every other Canadian.

Then the very very serious ones go before jury and require a unanimous  decision. I'm saying, that's great, we should also do that. Like I said, give the accused the same that we afford every other Canadian.

And if there's a reason that 3 of 5 is good enough for the military then I'd like for someone to tell me.

And again, I'm saying in response OGB's proposed system, not the goat rodeo which is quite frankly way above my head.


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## FJAG (5 Oct 2020)

ballz said:
			
		

> I know it's not the issue from the original post, I was responding to OGB's proposed system.
> 
> I don't see how it's apples and oranges. Rob Semrau was tried for murder in a court martial. We have plenty of other things that can happen that would be of that level of seriousness. Under OGB's proposed system, they only would require a jury vote of 3 to 5 to convict him, not 5 of 5.
> 
> ...



Sorry but OGB was wrong on that one. See NDA s 192(2).



> Decision
> 
> (2) A decision of the panel in respect of a finding of guilty or not guilty, of unfitness to stand trial or of not responsible on account of mental disorder is determined by the unanimous vote of its members. A decision in respect of any other matter is determined by a majority vote.



https://laws-lois.justice.gc.ca/eng/acts/N-5/page-28.html#docCont

The majority vote provision was abolished some time ago.

 :cheers:


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## QV (5 Oct 2020)

This whole problem would go away entirely if military justice was used strictly for military disciplinary matters only with criminal code offences handled in a civilian court. 

Sexual assault is a crime first, disciplinary matter a distant second.


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## SeaKingTacco (5 Oct 2020)

QV said:
			
		

> This whole problem would go away entirely if military justice was used strictly for military disciplinary matters only with criminal code offences handled in a civilian court.
> 
> Sexual assault is a crime first, disciplinary matter a distant second.



And if a member of the CAF sexually assaults someone while on deployment in a foreign country- then what?

If a “civilian court” is to handle the matter, you now only have two choices:

A) the member walks, as the Canadian courts have no jurisdiction (generally) on crimes committed Outside Canada; or
B) you turn the member over to the local constabulary/justice system. How would you like to face a charge of rape in, say, Afghanistan,  in the Afghani legal system?  Like your chances for a fair trial? You could also face the death penalty in many places around the world...

This is why we have a system of military justice, separate, but parallel to the civilian system in Canada. Our needs are different and we need to maintain good order and discipline on a world-wide basis.


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## blacktriangle (5 Oct 2020)

SeaKingTacco said:
			
		

> And if a member of the CAF sexually assaults someone while on deployment in a foreign country- then what?
> 
> If a “civilian court” is to handle the matter, you now only have two choices:
> 
> ...



Fair points. 

Although if Afghanistan was actively prosecuting rapes, I think the member would get off due to excessive wait times in the judicial system...there would be quite a backlog I'd imagine.


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## SeaKingTacco (5 Oct 2020)

reveng said:
			
		

> Fair points.
> 
> Although if Afghanistan was actively prosecuting rapes, I think the member would get off due to excessive wait times in the judicial system...there would be quite a backlog I'd imagine.



I picked Afghanistan, strictly as an example. Feel free to insert any other country of your choice...


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## Cloud Cover (5 Oct 2020)

SeaKingTacco said:
			
		

> And if a member of the CAF sexually assaults someone while on deployment in a foreign country- then what?
> 
> If a “civilian court” is to handle the matter, you now only have two choices:
> 
> ...



“B” is out if the question- the members Charter Rights exist outside of the country.  “A” is a legislative change that likely could be justified in a S. 1 analysis especially when the existing alternative has repeatedly shot itself in the constitutional nuts. 

Does anybody have an answer to FJAG’s query re: who provided legal advice to the CDS?


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## QV (5 Oct 2020)

SeaKingTacco said:
			
		

> And if a member of the CAF sexually assaults someone while on deployment in a foreign country- then what?
> 
> If a “civilian court” is to handle the matter, you now only have two choices:
> 
> ...



When OUTCAN and in a theatre of operations, because things are different, then I'd say the CM would have special jurisdiction for any offence.  

When back in Canada, crimes committed by service members should not be routinely handled as disciplinary matters.  They should be handled as crimes by civilian courts and the service members should be treated no differently than anyone else in Canada for the same crime. 

This distinction can be made.


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## ModlrMike (5 Oct 2020)

Veering back to the issue at hand... What is the desired end point for the Military Judges? How will they be able to reconcile their judicial independence, with their military service? They have to be subordinate to someone, otherwise what's the point in having uniform judges in the first place?

Regarding jurisdiction, perhaps the court could limit the matters that it hears. For example, any charge where the CCC carries the potential for imprisonment of two years or greater could be transferred to the civilian court.

In the matter of juries, there's any number of models to choose from. The primary challenge might be avoiding a poisoned jury pool given how small a service we are.


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## SeaKingTacco (5 Oct 2020)

QV said:
			
		

> When OUTCAN and in a theatre of operations, because things are different, then I'd say the CM would have special jurisdiction for any offence.
> 
> When back in Canada, crimes committed by service members should not be routinely handled as disciplinary matters.  They should be handled as crimes by civilian courts and the service members should be treated no differently than anyone else in Canada for the same crime.
> 
> This distinction can be made.



You clearly don't have/haven't had much exposure to the military justice system.

In practice, serious crimes such as Sexual Assault, murder, child pornography, etc are handled downtown in provincial court unless there is a clear military nexus and both the crown prosecutor and
the military agree that it should be handled by Court Martial, instead.  My point was, once a service member is operating outside Canada, that provincial court no longer has any jurisdiction to try an offence.

So you are arguing with me about how things actually are done.


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## QV (5 Oct 2020)

SeaKingTacco said:
			
		

> You clearly don't have/haven't had much exposure to the military justice system.
> 
> In practice, serious crimes such as Sexual Assault, murder, child pornography, etc are handled downtown in provincial court unless there is a clear military nexus and both the crown prosecutor and
> the military agree that it should be handled by Court Martial, instead.  My point was, once a service member is operating outside Canada, that provincial court no longer has any jurisdiction to try an offence.
> ...



I have a rudimentary understanding of the military justice system, but it's been awhile.  What I am say is how I think it ought to be, not how it is. 

To be clear, I think the whole system should be changed so that if a service member commits any crime (not just a very serious one) the case should be dealt with in the same court as any other person in Canada, therefore subject to the same rights and processes as any other person in Canada.  If that service member commits the same crime outside of Canada while in a _theatre of operations_ then I think a CM should have the jurisdiction to hear the case. 

So in other words, abolish NDA S.130(1)(a), but keep (1)(b)… maybe?


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## Remius (5 Oct 2020)

And deal with “minor” service offenses with administrative measures and exclusively with summary trials?

Not challenging.  Just asking your POV on this.


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## QV (5 Oct 2020)

Remius said:
			
		

> And deal with “minor” service offenses with administrative measures and exclusively with summary trials?
> 
> Not challenging.  Just asking your POV on this.



Yes.  I'd want the CO to be able to deal with minor service offences immediately.  A trooper is insubordinate or late they get marched in that day, there is either a good reason or a punishment forthcoming immediately.  I think that is very important for the maintenance of good order and discipline.


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## Remius (5 Oct 2020)

QV said:
			
		

> Yes.  I'd want the CO to be able to deal with minor service offences immediately.  A trooper is insubordinate or late they get marched in that day, there is either a good reason or a punishment forthcoming immediately.  I think that is very important for the maintenance of good order and discipline.



So then remove the option for CM for those specific offenses that allows for that option.


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## QV (5 Oct 2020)

Remius said:
			
		

> So then remove the option for CM for those specific offenses that allows for that option.



Sure.


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## Jarnhamar (5 Oct 2020)

Remius said:
			
		

> So then remove the option for CM for those specific offenses that allows for that option.



Bad idea.

Seen a unit try to railroad a guy for a few imagined offenses. They basically wanted to send a message. He surprised everyone and opted for court martial (someone _may_ have suggested it   ).  Unit tried to talk him out of it including trying to change the charges to non-electable ones and even had the padre try to talk him out of it.

Had he went with a summary trial he surely would have been found guilty and punished. Court martial found him not guilty and the chain of command from sgt to CO hammered by higher for the glaring unethical behavior.

Court martials have a benefit of airing dirty laundry that some units like to hide.


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## Remius (5 Oct 2020)

Jarnhamar said:
			
		

> Bad idea.
> 
> Seen a unit try to railroad a guy for a few imagined offenses. They basically wanted to send a message. He surprised everyone and opted for court martial (someone _may_ have suggested it   ).  Unit tried to talk him out of it including trying to change the charges to non-electable ones and even had the padre try to talk him out of it.
> 
> ...



So then send those to civilian court?  

This whole thing will be a mess.


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## Jarnhamar (5 Oct 2020)

Remius said:
			
		

> So then send those to civilian court?
> 
> This whole thing will be a mess.




What would happen when civilian courts start seeing nefarious items show up on court documents like 45 seconds late for work, swearing at their boss, wasn't wearing a hat while pumping gas, or rain jacket without gloves  :Tin-Foil-Hat:

I'm not sure is those are electable off the top if my head, I don't know much about this topic. It's really interesting though.

We have sexual assault trials being stayed, pretty big deal _especially_ in light of Op Honour. Has General Vance chimed in about all of this yet?


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## daftandbarmy (5 Oct 2020)

Jarnhamar said:
			
		

> Bad idea.
> 
> Seen a unit try to railroad a guy for a few imagined offenses. They basically wanted to send a message. He surprised everyone and opted for court martial (someone _may_ have suggested it   ).  Unit tried to talk him out of it including trying to change the charges to non-electable ones and even had the padre try to talk him out of it.
> 
> ...



That's why I'd elect trial by CM in the event I was accused of not inspecting the latrines 

https://www.youtube.com/watch?v=IMoFlaEcKoM


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## FJAG (5 Oct 2020)

ModlrMike said:
			
		

> Veering back to the issue at hand... What is the desired end point for the Military Judges? How will they be able to reconcile their judicial independence, with their military service? They have to be subordinate to someone, otherwise what's the point in having uniform judges in the first place?
> ...



The short answer is that by having been serving legal officers, military judges have gained knowledge and experience in military law and the military in general which a civilian judge wouldn't have. That plays a significant role at the trial level while at the appeal level the issue is much more legal concepts that most any appellate judge could master, but even there there is one justice who is appointed Chief Justice for a number of years to provide some consistency and management to the CMAC.

That actually raised an interesting point for me. This whole thing went off the rails because the senior judge was the accused. But let's pretend the CDS goes off the rails and commits an offence. Who is he responsible to in the chain of command? The CDS, like the JAG, is a GiC appointment. The JAG reports to the Minister and is responsible to him (NDA s 9.1(3)). I've never given it any thought before all this but how would you go about disciplining the CDS or the JAG?

Not sure if this is an actual gap (like the Chief Judge) or whether I just don't know the answer.

 ???


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## Jarnhamar (5 Oct 2020)

Does staying court martial proceedings mean someone is essentially off the hook/not guilty?


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## FJAG (5 Oct 2020)

Jarnhamar said:
			
		

> Does staying court martial proceedings mean someone is essentially off the hook/not guilty?



No. Technically it's more of a suspension or halting of the proceedings. The court can always lift a stay of proceedings and carry on with the trial process. In most, but not all, cases, however, it practically means the case has been terminated indefinitely and is not brought back. There is neither a finding of guilty nor not guilty.

 :cheers:


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## ModlrMike (5 Oct 2020)

FJAG said:
			
		

> This whole thing went off the rails because the senior judge was the accused.



Right, but his alleged offence had nothing to do with any decisions from the bench, therefore no conflict arises. The challenge of course comes in asking who is going to hear the case, when every other judge is subordinate to the accused. That question is far more complex, and you've accurately identified the accompanying question of who hears a case against the CDS.

What I don't understand, how does being subordinate to someone for matters of discipline and leadership equal judicial interference? Again, I look to the Medical Branch as an example of how decisions regarding purely medical matters are not interfered with by the chain of command, other than by more senior or expert medical personnel.


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## PuckChaser (5 Oct 2020)

Looking at this with only a rudimentary view of the NDA and CMs (although I did stay at a Holiday Inn was an orderly at a GCM once), the issue seems to me that if military judges are subject to CSD, then they would be subject to NDA 83 "Disobedience of a lawful command" which could mean the VCDS/CDS could issue an order for certain findings for certain charges thereby removing their impartiality? If so, isn't the simple fix to make a provision in the NDA that any order to a military judge in relation to findings of guilt/sentencing is inherently unlawful which would remove that outside influence into the court?


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## ModlrMike (6 Oct 2020)

I suppose they could, but then I suppose the order could be considered illegal. It would be an extremely foolish officer who ordered a CF judge to produce a specific finding.


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## FJAG (6 Oct 2020)

ModlrMike said:
			
		

> What I don't understand, how does being subordinate to someone for matters of discipline and leadership equal judicial interference? Again, I look to the Medical Branch as an example of how decisions regarding purely medical matters are not interfered with by the chain of command, other than by more senior or expert medical personnel.



Being subordinate to someone does not equal "judicial interference" it equals "lack of judicial independence". There is a subtle difference. "Judicial interference" means there is an act of interference while "judicial independence" means a state of being where acts of judicial interference by the executive cannot happen. In Canada judicial independence has been described in Valente v. R as:



> The Court gave three requirements for judicial independence within the meaning of section 11(d) of the Charter. There must be 1) security of tenure, 2) financial security, and 3) institutional independence in administrative matters relevant to the functioning of the judge.



Wikipedia

Basically the term of service and salary are set by parliament in statute and cannot be interfered with by the executive. The third is a more difficult concept which can be simplified into:

The Executive must not interfere with, or attempt to influence the adjudicative function of the judiciary. However, there must necessarily be reasonable management constraints. At times there may be a fine line between interference with adjudication and proper management controls.

I understand your point about medical personnel but to put it in a nutshell, the medical branch is within the chain of command and does not have any requirements for or guarantees of independence under the Charter of Rights and Freedoms. In other words the "independence" of the medical branch extends only so far as legislation subordinate to the Charter or regulations or directives or orders made by the executive permits. Those could change on a dime.

Just as an example, QR&O 34.011 provides:



> 34.011 – RESPONSIBILITIES OF MEDICAL OFFICERS
> The senior medical officer at all levels of command is the responsible adviser to the senior officer exercising the function of command or executive authority on all matters pertaining to the health and physical efficiency of all personnel under his jurisdiction.
> 
> (C)



Note the provision as an "advisor" and note the authority for the order is (C) i.e. the CDS. I frankly haven't read through the myriad of provisions of references as to medical care but I seriously doubt if the "independence" of the medical officer is anywhere near the same level as prescribed by the Charter for judges.

 :cheers:


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## Kilted (6 Oct 2020)

Could we not have judges release from the forces when they are appointed as a judge and carry on an afiliation similar to an HCol, but are still a civilian and not under the CDS, but have the expertise to perform the job.


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## FJAG (6 Oct 2020)

Kilted said:
			
		

> Could we not have judges release from the forces when they are appointed as a judge and carry on an afiliation similar to an HCol, but are still a civilian and not under the CDS, but have the expertise to perform the job.



There are literally dozens and dozens of options open. The question is how to proceed and to what extent the issue is being worked on within JAG.

You may recall that the previous JAG started a strategic project called the Court Martial Comprehensive Review. A draft report was issued in July of 2017. 

Incidentally, for any of you that want to read further into the theory and the whyfors and the whatfors  of the military justice system as it operates in Canada, this is definitely the document to give it to you. Warning it's 311 pages long even without the annexes.

Unfortunately in her 2018 report to Parliament, the JAG reported:



> A draft CMCR report was provided to the Judge Advocate General in July 2017. In large part due to challenges related to methodology and a paucity of metrics and analytics, the document was of limited assistance in assessing the current court martial system. The draft internal report will therefore serve as a discussion paper. It offers perspectives that may be taken into account following receipt of the Auditor General’s report, the report of the next independent review authority along with other internal and external consultations on the military justice system. The Judge Advocate General published the draft CMCR report on 17 January 2018 and has communicated publicly her decision that the CMCR project has reached its conclusion.18



I haven't heard anything since as to what is happening and as to whether or not DJAG Mil Just has been working on a replacement this project. There certainly have been numerous developments since July 2017 that need consideration.

 :cheers:


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## dapaterson (6 Oct 2020)

I suspect DJAG Mil is more concerned right now with implementing C77 - actual will and direction of government.  (Then again, a prior JAG displayed his disdain for the law by refusing to report as required by the NDA, so who knows what machinations go on in the Legal Branch - sort of like the Mafia, but with out the honour code).


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## ModlrMike (6 Oct 2020)

OK, if we're going to hold Valente v. R as the benchmark, then there's a direct comparison to the CF. There are very similar structural components between provincial court judges and military judges. Enough to say that in this context, military judges are independent IMHO..

From the same article:

"Finally, the Court turned to administrative independence. The Supreme Court noted the provincial courts already independently decided which judges should hear what cases. Those who questioned the independence of the provincial courts suggested the courts should also gain more control over their budgets, salaries and how judges are promoted. The Supreme Court replied more independence may be "highly desirable," but it was not "essential for purposes of s. 11(d)." 

I don't see how there's an 11(d) violation in the current JAG construct. That being said, perhaps an amendment to the NDA that states something like:

"No officer who is not a Legal Officer may advise, instruct, or direct a Legal Officer in the conduct, adjudication, or findings of any court or tribunal. An officer acting as an expert witness before the court may provide advice without contravening this article."


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## FJAG (6 Oct 2020)

dapaterson said:
			
		

> I suspect DJAG Mil is more concerned right now with implementing C77 - actual will and direction of government.  (Then again, a prior JAG displayed his disdain for the law by refusing to report as required by the NDA, so who knows what machinations go on in the Legal Branch - sort of like the Mafia, but with out the honour code).



I can always count on you.  

https://www.youtube.com/watch?v=Uy8KMEOkxyo

;D



			
				ModlrMike said:
			
		

> ...
> I don't see how there's an 11(d) violation in the current JAG construct. That being said, perhaps an amendment to the NDA that states something like:
> 
> "No officer who is not a Legal Officer may advise, instruct, or direct a Legal Officer in the conduct, adjudication, or findings of any court or tribunal. An officer acting as an expert witness before the court may provide advice without contravening this article."



Initially the judges just declared the order "null and void", yet people keep gnawing on this bone.

As I said above, there are dozens of ways to fix this. I sometimes think that the problem is that with free legal advice and a defence bar that has each lawyer only dealing with a dozen trial cases or so a year, there is plenty of time to think up new and novel arguments to run up the flagpole to see if they wave (or more properly: throw at the wall to see if they stick). On civvy street no one has any time or resources to spend on some of the rinky dink cases that get dealt with at CMs. They get pled out very quickly. Only the most serious cases receive this level of effort.

:worms:


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## daftandbarmy (9 Oct 2020)

Remius said:
			
		

> And deal with “minor” service offenses with administrative measures and exclusively with summary trials?
> 
> Not challenging.  Just asking your POV on this.



You mean like allowing, and strongly supporting, the CO to run their own disciplinary programs to immediately (summarily) punish a variety of transgressions by throwing the guilty b&stards in the battalion jail and, as a result, restoring faith in the military justice system while more effectively incenting everyone to behave themselves?

I’d be shocked ...


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## QV (9 Oct 2020)

daftandbarmy said:
			
		

> You mean like allowing, and strongly supporting, the CO to run their own disciplinary programs to immediately (summarily) punish a variety of transgressions by throwing the guilty b&stards in the battalion jail and, as a result, restoring faith in the military justice system while more effectively incenting everyone to behave themselves?
> 
> I’d be shocked ...



Don't forget charge parade where the guilty b&stards are inspected, marched around, and drilled every couple of hours with all their kit by the duty Sgt over the weekend.


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## Kat Stevens (9 Oct 2020)

QV said:
			
		

> Don't forget charge parade where the guilty b&stards are inspected, marched around, and drilled every couple of hours with all their kit by the duty Sgt over the weekend.



That's called SOL/CB/EW&D/defaulters, and I wasn't aware that it's no longer a thing.


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## FJAG (9 Oct 2020)

daftandbarmy said:
			
		

> You mean like allowing, and strongly supporting, the CO to run their own disciplinary programs to immediately (summarily) punish a variety of transgressions by throwing the guilty b&stards in the battalion jail and, as a result, restoring faith in the military justice system while more effectively incenting everyone to behave themselves?
> 
> I’d be shocked ...



There's been a very strong movement for quite some time to limit who in the mil justice system can impose penal sanctions. That has been whittled away to a CO imposing 30 or less days detention and a delegated officer 14 or less. Bill C-77 seeks to eliminate that.

I cannot see the legal arguments for that and quite frankly I know of no case where a service member has gone to the Fed Court on a habeas corpus application to have the punishment declared ultra vires. There is no limitation in section 11 of the Charter of Rights and Freedoms that mandates this. The only body of law that I know of which limits penal punishments are when we delve into administrative law where the closer you come to an administrative hearing that includes restrictions on liberty, the more the process has to become quasi judicial in nature.

IMHO, COs are vested with the power to order people into combat situations where they might very well die. To say that in our disciplinary system a CO can't be trusted to run a fair trial whereby a convicted soldier might be sent to jail just seems downright silly stupid to me. Our penchant for risk aversion has made us scared of our own shadows.

I'm not sure how long Bill C-77 has been in the works, but I've got a pretty good idea which JAG and which CDS has signed off on it.

 :facepalm:


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## dapaterson (24 Jun 2021)

And the problem is solved.  In a unanimous verdict, CMAC tossed the unreasonable conclusions of the military judges and told them in no uncertain terms that yes, judges are CAF members and yes, judges are subject to the Code of Service Discipline.






						R. v. Edwards; R. v. Crépeau; R. v. Fontaine; R. v. Iredale - Court Martial Appeal Court
					






					decisions.cmac-cacm.ca


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## daftandbarmy (24 Jun 2021)

dapaterson said:


> And the problem is solved.  In a unanimous verdict, CMAC tossed the unreasonable conclusions of the military judges and told them in no uncertain terms that yes, judges are CAF members and yes, judges are subject to the Code of Service Discipline.
> 
> 
> 
> ...


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## ModlrMike (24 Jun 2021)

This is the more important part:



> An informed person, viewing the matter realistically and practically—and having thought the matter through could, in our respectful view, reach no other conclusion than military judges meet the minimum constitutional norms of impartiality and independence as required by section 11(d) of the Charter.


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## FJAG (24 Jun 2021)




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## SeaKingTacco (24 Jun 2021)

FJAG said:


>


That was quite the smackdown of the legal decision making skills of our military judges.

Which I do not take as much of a victory, actually.


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## dapaterson (24 Jun 2021)

... or the legal analysis skills in the Directorate of Defence Counsel Services who pushed forward those absurd claims.


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## SeaKingTacco (24 Jun 2021)

dapaterson said:


> ... or the legal analysis skills in the Directorate of Defence Counsel Services who pushed forward those absurd claims.


Yeah, there is that.

Too bad that they cannot be sanctioned.


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## FJAG (24 Jun 2021)

SeaKingTacco said:


> That was quite the smackdown of the legal decision making skills of our military judges.
> 
> Which I do not take as much of a victory, actually.


I looked at counsels' names but they were all new to me.


dapaterson said:


> ... or the legal analysis skills in the Directorate of Defence Counsel Services who pushed forward those absurd claims.


It's the job of defence counsel to throw Hail Marys (although my guess is there was a lot of laughter in the judges' chambers when they read through the motion to adduce fresh evidence). It's the job of the trial judges to get it right. Then again that's why there are two levels of appeal courts. 


SeaKingTacco said:


> Yeah, there is that.
> 
> Too bad that they cannot be sanctioned.


Believe me, a judgement worded like that is a "sanction". It's kind of like saying "Have you guys even read Genereux?"

🍻


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## dapaterson (24 Jun 2021)

Yet the lawyers will still get their annual pay incentives after wasting so much court time.

The judges will still wear their robes despite their failure to understand their role in the military.  (Funny how it takes non-military judges to put nominally military judges in their place).


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## FJAG (24 Jun 2021)

dapaterson said:


> Yet the lawyers will still get their annual pay incentives after wasting so much court time.
> 
> The judges will still wear their robes despite their failure to understand their role in the military.  (Funny how it takes non-military judges to put nominally military judges in their place).








🍻


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