Author Topic: Charges in Joshua Caleb Baker 2010 death  (Read 110284 times)

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Offline Hamish Seggie

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Re: More Charges in Joshua Caleb Baker 2010 death
« Reply #75 on: April 05, 2014, 14:20:12 »
Yes, videoing, smoking, laughing, watching.....but most disturbing of all they were waiting for direction and correction from their (gasp!) leadership.  Should they have known better?  Sure they should have but this was also a training opportunity for them.   An opportunity for them to be trained properly on all aspects of the weapon system including correct safety procedures.

MCpls are leaders and they should have ordered the troops under hard cover. I am sure the range safety brief would have covered this.

Leadership was absent on all levels.
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Re: More Charges in Joshua Caleb Baker 2010 death
« Reply #76 on: April 05, 2014, 15:43:50 »
I couldn't agree with you more. 

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Re: More Charges in Joshua Caleb Baker 2010 death
« Reply #77 on: September 19, 2014, 14:15:52 »
From The Globe and Mail:  http://www.theglobeandmail.com/news/national/soldier-convicted-in-fatal-training-accident-in-afghanistan-wins-appeal/article20692226/

Quote
A Calgary soldier convicted for his part in a fatal training accident in Afghanistan has won his appeal.

The Court Martial Appeal Court of Canada has entered a finding of not guilty on Lieutenant Darryl Watts’s conviction for negligent performance of duty.

It also ordered new trials on a conviction of unlawfully causing bodily harm and a second count of negligent performance of duty.

Offline Hamish Seggie

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Re: More Charges in Joshua Caleb Baker 2010 death
« Reply #79 on: September 19, 2014, 14:36:53 »
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Offline FJAG

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Re: Charges in Joshua Caleb Baker 2010 death
« Reply #80 on: September 22, 2014, 20:46:19 »
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Re: Charges in Joshua Caleb Baker 2010 death
« Reply #81 on: September 22, 2014, 20:52:25 »
The CMAC's decision is now published here:

http://decisions.cmac-cacm.ca/cmac-cacm/cmac-cacm/en/item/73356/index.do

 :cheers:

I'd like your professional analysis.
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Offline FJAG

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Re: Charges in Joshua Caleb Baker 2010 death
« Reply #82 on: September 23, 2014, 01:04:10 »
I'd like your professional analysis.

Okay, I'll give it a shot.

First the easy one which deals with why the CMAC substituted an acquittal on Charge 6.

Charge 6 in effect stated that Watts had a duty for ensuring that before his people trained on a live C19 that they first successfully complete training on inert or practice C19s and that he neglected or failed to do so.

The courts decision is based on factual evidence from the transcript that in fact no such inert or practice C19s were available at the base and therefore it would have been impossible to perform such training. In fact the trial judge had, in his instructions to the panel, said that the panel could take that fact into account.

The CMAC stated that if in fact it is impossible to do the duty (because of the absence of inert and practice C19s) then there can't be a military duty in law to do that and that therefore can't be an offence for failing to do that military duty which is impossible to perform. An acquittal should have been entered at trial.

As to charges four and five (unlawfully causing bodily harm and negligent performance of duty by failing to halt the exercise until everyone was under cover) the CMAC ordered a new trial to take place.

At the core of the CMAC's findings as to charges 4 and 5 are the instructions which were given by the Judge Advocate to the panel. The CMAC considered that these instructions contained errors of such a nature that it was impossible to determine if the panel was mislead in how it should analyse the case.

With respect to these two charges it should be noted that unlawfully causing bodily harm in charge 4 requires an underlying unlawful act. The prosecution stated that this was the negligent performance of duty as set out in charge 5 so that both charges share the same factual information and legal analysis. The JA in his charge added words to the effect that the panel could consider evidence of a failure to properly train his soldiers in establishing the "duty". This however was not set out in the particulars of charge 5. I agree that the JA should not have included those words in the instructions.

At para 27 the CMAC states that the JA decided not to instruct the panel on certain evidence. That evidence was that Watts had advised Maj Lunney that he was not experienced on the C19; that Lunney allowed the exercise to continue under WO Ravensdale; and that Lunney was aware that Watts could not be the officer in charge. Note that undoubtedly the panel had heard that evidence during the trial and since I do not have the transcript of the actual instructions by the JA on this issue it is difficult to be critical either way. I do agree with the CMAC that this evidence is key to determining if in fact there was a military duty on Watts and to what extent that duty went. The panel should have been given clear instructions on how to deal with that evidence.

The final element to the decision relates to Watt's argument respecting the "reasonable person" standard. In this respect you should note that the CMAC didn't answer the argument in that they found it was not necessary to do so because of the two previous points but it is an interesting argument nonetheless. -- Negligent performance of a military duty has its foundation in basic criminal negligences standards - a person does something that causes harm and is does it in a manner that is a marked departure from how a reasonable person would do it. At the heart is the matter are the elements set out by the Supreme Court of Canada as set out in para 130 which all revolve around choosing to do the thing that causes harm. Watt's argument quite simply is that he did not "choose" to be the OIC practice but in fact was ordered to do so after advising his superiors that he didn't have the experience and in such circumstances his rank, training and experience should be taken into account (and by this he's undoubtedly referring to his lack of training and experience on the C19). That's an interesting question but unfortunately the CMAC avoided answering it. Please note that it is not unusual for appeal courts to provide reasons on only those matters that directly lead to their ruling. In this case the first two sets of errors on charges 4 and 5 were sufficient to order a new trial so it was not necessary to analyse and rule on this final point. It's an interesting argument and it would have been nice if they had though.

In summary, the CMAC's rulings are legally reasonable. I expect there will be many who are unhappy with them but quite simply if there were no inert or practice C19 in theatre to train on then charge 6 should never have been laid; if they were there then  evidence of that fact should have been presented at trial.

One additional comment - I have known the judge advocate who ran this trial for several decades. He was a civilian crown prosecutor before becoming JA and has a ton of experience and skill in both military law and regular criminal law. He's one of our very best judges. The fact of the matter is that every once in a while a judge sees things differently then the CMAC afterwards. Trials are very dynamic and when a judge drafts his instructions to the panel he does not have the benefit of having a transcript of the evidence (only his notes) and generally he has very little time. The CMAC on the other hand has both and therefore can parse the case with true 20/20 hindsight.

At this point folks we're all back to "innocent until proven guilty" and will need to see what the re-trial on charges 4 and 5 will bring.

 :cheers:
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Offline Brihard

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Re: Charges in Joshua Caleb Baker 2010 death
« Reply #83 on: September 23, 2014, 01:36:17 »
A case that nicely highlights the occasional disjunct between 'law' and 'justice'.

You're shooting off claymores on a range, and your troops aren't behind cover. Now, I've never been called to the bar, but I'm an infantry NCO who's shot claymores and run ranges. There was without a shred of doubt criminal stupidity at play here, and as the man in command the functioning of the military demands accountability from the officer in question. I really hope that the furthering of this legal process can arrive at that in some manner. We need people who eff up this badly and who allow troops to be killed or injured as a result to be made an example of for purposes of general deterrence.
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Re: Charges in Joshua Caleb Baker 2010 death
« Reply #84 on: September 23, 2014, 03:14:09 »
A case that nicely highlights the occasional disjunct between 'law' and 'justice'.

You're shooting off claymores on a range, and your troops aren't behind cover. Now, I've never been called to the bar, but I'm an infantry NCO who's shot claymores and run ranges. There was without a shred of doubt criminal stupidity at play here, and as the man in command the functioning of the military demands accountability from the officer in question. I really hope that the furthering of this legal process can arrive at that in some manner. We need people who eff up this badly and who allow troops to be killed or injured as a result to be made an example of for purposes of general deterrence.

Personally i think this is a witch hunt, others were charged, why is this the only case with such publicity? Why weren't his superiors held to account for putting in charge on a range for a weapon he wasn't experienced or trained with? With the case going back to court, while it means the process and the on going nightmare for Mr. Watts has not ended we may get some more answers.
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Re: Charges in Joshua Caleb Baker 2010 death
« Reply #85 on: September 23, 2014, 04:26:19 »
Personally i think this is a witch hunt, others were charged, why is this the only case with such publicity? Why weren't his superiors held to account for putting in charge on a range for a weapon he wasn't experienced or trained with? With the case going back to court, while it means the process and the on going nightmare for Mr. Watts has not ended we may get some more answers.

Maj Lunney was his superior. Lunney was charged, pled guilty to negligent performance of duty and sentenced to a reduction in rank to Capt and given a severe reprimand.

His sentencing is here: http://www.jmc-cmj.forces.gc.ca/en/2012/lunney.page

WO Ravensdale was also charged, convicted on four counts, imprisoned for six months (suspended), reduced in rank to sergeant and fined $2,000

His sentencing is here: http://www.jmc-cmj.forces.gc.ca/en/2013/ravensdale-pg.page

 :cheers:
« Last Edit: September 23, 2014, 04:34:57 by FJAG »
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Re: Charges in Joshua Caleb Baker 2010 death
« Reply #86 on: September 23, 2014, 04:32:44 »
Personally i think this is a witch hunt, others were charged, why is this the only case with such publicity? Why weren't his superiors held to account for putting in charge on a range for a weapon he wasn't experienced or trained with? With the case going back to court, while it means the process and the on going nightmare for Mr. Watts has not ended we may get some more answers.

His superiors were held accountable.  His OC was charged, he plead guilty and was reduced in rank to Capt from Maj.
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Re: Charges in Joshua Caleb Baker 2010 death
« Reply #87 on: September 23, 2014, 17:15:26 »
I believe Lunney wasn't even near the range when it happened.
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Re: Charges in Joshua Caleb Baker 2010 death
« Reply #88 on: October 02, 2014, 13:37:32 »
What burns my *** is how an INFANTRY officer who managed to get to Afghanistan can claim they where not at least cognizant of the C19.

It's a Claymore mine - I mean it's not like it was something ridiculously unique.  He did not need to be a SME on the damn thing - just had to run the damn range.  IIRC it is part of the mandatory training package for deploying soldiers... (at least for Infantry types)

In reading the Appeal - I an awestruck that they did not get C19 training before deployment.
 *the only time I fired a live C19 was in Afghan pre-deployment training

To me, it appears that a whole lot of issues are surrounding this case.


However I cannot understand the issues of the case
1) IF the C-19 misfired, then its the case of life sucks, wear a helmet.  At that point in time, I do not see why anyone would be charged.

 
2) The "facts" of the case are rather confusing, as it almost seems to be a he said - she said on who was the OIC

« Last Edit: October 02, 2014, 13:46:50 by KevinB »
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Re: Charges in Joshua Caleb Baker 2010 death
« Reply #89 on: October 02, 2014, 14:57:23 »
Infantry officers are taught and fire the C19 on DP1.1. I blew one on infantryman DP1 and I blew 2 or 3 on my infantry officer DP1.1, I don't understand how anyone with 00180 as a trade can say he does not know how to operate a C19.


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Re: Charges in Joshua Caleb Baker 2010 death
« Reply #90 on: October 03, 2014, 17:16:57 »

However I cannot understand the issues of the case
1) IF the C-19 misfired, then its the case of life sucks, wear a helmet.  At that point in time, I do not see why anyone would be charged.


The question over whether or not the weapon misfired is, in my opinion, a moot point for the most part.  I don't really care if it fell over post placement and pre firing ir if it was placed wrong or even constructed faulty.  The bottom line in my mind is that leaders had an obligation to ensure the range was run safely and if they had done so by ensuring personel were properly under cover AND far enough away...wwe wouldnt be having this discussion.   Two leaders took responsibility while one person has proven he is no leader.

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Re: Charges in Joshua Caleb Baker 2010 death
« Reply #91 on: October 04, 2014, 10:19:33 »
Argh -- I had a long post about this that seems to have evaporated.

1) I would argue that the C19 performance is indeed germane to the discussion - as if you have a M67/C13 detonate when pulling the pin (unlikely but bear with me) do you charge the OIC?

2) Members testified they heard WO Ravensdale tell folks to seek cover, I would suggest that you can lead a horse to water...
  I would offer that he identified an issue and gave commands to rectify.

3) I would further argue that given the recent rulings of the courses that both Maj L and WO R probably where advised they could beat the CM, but out of guilt etc they did not attempt.

4) Initially I bore Lt Watts a great deal of animosity, I still think his "I was not experienced on the C19 to be a bullshit cop out" - but I think that the CF Legal system needs a massive overhaul - as frankly the way recent ND stuff is going is farcical, but also I'd be much more interested to see what an AmmoTech has to say about the C19 misfire that some idiot JAG or MP.
  Honestly I would take a Pioneer qualified Cpl opinion on the C19 more than those.



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Re: Charges in Joshua Caleb Baker 2010 death
« Reply #92 on: October 04, 2014, 10:24:43 »
Argh -- I had a long post about this that seems to have evaporated.

1) I would argue that the C19 performance is indeed germane to the discussion - as if you have a M67/C13 detonate when pulling the pin (unlikely but bear with me) do you charge the OIC?

2) Members testified they heard WO Ravensdale tell folks to seek cover, I would suggest that you can lead a horse to water...
  I would offer that he identified an issue and gave commands to rectify.

3) I would further argue that given the recent rulings of the courses that both Maj L and WO R probably where advised they could beat the CM, but out of guilt etc they did not attempt.

4) Initially I bore Lt Watts a great deal of animosity, I still think his "I was not experienced on the C19 to be a bullshit cop out" - but I think that the CF Legal system needs a massive overhaul - as frankly the way recent ND stuff is going is farcical, but also I'd be much more interested to see what an AmmoTech has to say about the C19 misfire that some idiot JAG or MP.
  Honestly I would take a Pioneer qualified Cpl opinion on the C19 more than those.

I happen to be both an AT and Pnr Cpl. :D
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Offline KevinB

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Re: Charges in Joshua Caleb Baker 2010 death
« Reply #93 on: October 04, 2014, 10:36:38 »
I know  ;)

But seriously -- given the claims of a misfire - and a "reverse payload" I'd have been more interested in expert testimonies.




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Re: Charges in Joshua Caleb Baker 2010 death
« Reply #94 on: October 04, 2014, 12:13:19 »
I know  ;)

But seriously -- given the claims of a misfire - and a "reverse payload" I'd have been more interested in expert testimonies.

There were three viable options explored by the various experts called to assist with the invest and/or testify .  Misfire, reverse payload or that the weapon was not placed firmly enough given the ground type and that after placement it fell over or had its placement inadvertently adjusted while the firing wire was played out.  No matter what, had the range been set properly and run properly none of the deaths or injuries would have occured

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Re: Charges in Joshua Caleb Baker 2010 death
« Reply #95 on: October 04, 2014, 12:53:23 »
Let's just agree to disagree in that aspect.
  Historically I'm aware of training deaths outside the ability of participants and staff to prevent.

Are transcripts of the incident available?
 
 
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Offline FJAG

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Re: Charges in Joshua Caleb Baker 2010 death
« Reply #96 on: October 04, 2014, 17:06:46 »
. . .  I'd be much more interested to see what an AmmoTech has to say about the C19 misfire that some idiot JAG or MP.
  Honestly I would take a Pioneer qualified Cpl opinion on the C19 more than those.

Jeez Kevin I thought you were smarter than that.

No MP or JAG provides an opinion in a case about what happened. In each and every case evidence comes from witnesses, either lay witnesses who report on what they did, or saw, or heard, or expert witnesses (such as the ammo techs you refer to) who provide expert opinions based on facts or hypotheticals which have been introduced as evidence in the case.

All that MPs report at trial is what physical evidence they found or what was admitted to them in statements by others. All lawyers do is to present and cross examine witnesses who provide the actual evidence and then provide the court with an analysis of what the presented evidence establishes in the relevant legal framework, often in the face of conflicting fact and expert evidence.

I think you are being mighty cavalier about who you are calling "idiots".

 >:(
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Re: Charges in Joshua Caleb Baker 2010 death
« Reply #97 on: October 04, 2014, 18:09:15 »
He's not had good experiences with them.
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Re: Charges in Joshua Caleb Baker 2010 death
« Reply #98 on: October 05, 2014, 11:07:50 »
He's not had good experiences with them.
Who has?    ::)

My most recent involved having to listen as a military lawyer proudly told us how his associate beat a ND charge against a LCol (because it was into an unloading pit; the fact that it unarguably was negligent weapon-handling was irrelevant).
.....and of course, a Cpl facing a Summary Trial would automatically be found guilty (based on legal precedence), and would likely learn the correct lesson from this -- safe weapon handling.

"Idiots"?  No. 
"Non-productive parasites fostering a nanny-state and a mindless, small-print warning industry because of all the other ambulance-chasing lawyers out there."  Yes.


But we stray....slightly.... from the topic at hand.

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Re: Charges in Joshua Caleb Baker 2010 death
« Reply #99 on: October 05, 2014, 11:12:37 »
Perhaps. But I've got a lot of time for FJAG. He provides a perspective most of us don't have by virtue of his trade. And there are pricks in all trades.
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