Author Topic: Why aren't Civilian Justice and Mil Justice tied together closer  (Read 14554 times)

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Offline upandatom

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I have noticed now on several occasions whati will call failures-
Sexual Assaults, Attacks, DUIs etc not brought forth to the Civilian Justice system, Mostly when the MPs are involved, even down to the point where a member was told do not bring this forth to a Civilian Police Force(hinting towards personal and career implications). Look at the amount of Sexual misconduct charges on the CMJ site, which is Internet accesible. how many of those, which in the civilian side would be gross misconducts and would lead to imprisonment.
This all isnt all hush hush knowledge either, it is documented on social media, credible news agencies etc, (the latest CFB Petawawa Incident got me thinking about this a few weeks back, as well as someones FB post stating "Ha, b@#$ i plead guilty and was only given XXXXXXX)
I have started to see that Canada is one of the few countries that frequents the use of the Military Justice system. At an incrdible cost, even several repeat offenders let go with fines, and no real career or personal implications.

Do not read into this the wrong way either;
I understand the need for a Military Justice system, we are to be held to a higher standing then normal citizens because we are to hold the values of Canada and Portray the CF and Canada in the right. I have just seen more often then naught, things being pushed aside, or no real life altering punishments, (im sorry but a $3000 and a reprimand isnt much),

The Military Justice system is great for breaches in service discipline, AWOL, 129s, Frauds, fighting, Conduct Unbecoming etc(things that are specific to the military). However, am I the only one that thinks that some things should be handed to the local/provincial Police Force or the RCMP?   

But why do we have guard dogs, keeping an eye on other guard dogs?

« Last Edit: May 25, 2014, 08:38:35 by milnews.ca »
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Offline Schindler's Lift

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Re: Why isnt Civilian Justice and Mil Justice tied together closer
« Reply #1 on: May 21, 2014, 13:39:56 »
Here's my take based on a number of years of experience.

1)  Victims are free to report a crime to who ever they want.  A civilian police department will direct it to the MP if the crime occured within MP investigative jurisdiction (on base or outside of Canada).  At the same time, if the crime occured of base and outside of MP investigative jurisdiction then itwill be refered to the civilian department of jurisdiction.

2)  Once a crime is reported to the MP, they investigate and draft the report.  If it is strictly a civilian (criminal code or other civilian statute) offence the MP will lay a charge through the civilian court system.   If its a strictly military matter the MP draft the report and the Chain of Command determines what, if any, charges are prefered under the NDA.  When it comes to military charges and whether or not to go forward, the decision by the COC is reviewed and agreed to by the DJA so there is some oversight in the process.

3)  For sensitive or serious crimes they are refered to the CFNIS who will make the same jurisdictional assessment as the frontline MP.  Where the CAF retains jurisdiction the CFNIS then determine where to proceed with any eventual prosecution.  If there is a civilian nexus (a civilian victim or other some such factor) they may vary well elect to proceed "downtown" but in any event that decision is made after consultations with the local Crown and the local Regional Military Prosecutor (RMP).  If there is a comelling reason to proceed via the CSD then the matter is refered for Court Marshal once the CFNIS lay the appropriate military charge.

4)  As to finsl sentencing IF someone is convicted, they can sayall they want but the scentencing guidelines used are the same as in a civilian court.  Someone could say "all I got was..." but they would have gotten essentially the same thing "downtown".  There have been court marshal verdicts successfully overturned or appealed because of too harsh or too lenient a sentence.

5)  Why two systems?  A number of reasons actually.  The civilian system cannot legally deal with matters outside of Canada or within the scope of military ops.  As well, the government recognizes there is not only a need to punish offenders but there are unique disciplinary considerations within the effective operation of a military force.  If you would like to know more I would direct you to the Dickson Commission report or the report submited by Justice Antonio Lamer.  They will both give you better insights into why the systems exist and what is being done to improve them all.

Offline JesseWZ

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Re: Why isnt Civilian Justice and Mil Justice tied together closer
« Reply #2 on: May 21, 2014, 14:49:06 »
I have noticed now on several occasions whati will call failures-
Sexual Assaults, Attacks, DUIs etc not brought forth to the Civilian Justice system, Mostly when the MPs are involved, even down to the point where a member was told do not bring this forth to a Civilian Police Force.

MPs are defined in the Criminal Code as Peace Officers when within their jurisdiction. They can, and do (often), lay charges through the civilian justice system even for military members. In fact, many charges are not dealt with by the Military Justice system, such as Impaired Driving (amongst others). DUIs (Impaired Driving offenses), Domestic Violence, etc. are dealt with (almost) strictly through civilian courts.

The RCMP (contracted by local or provincial governments) or local municipal forces do not have investigative jurisdiction over crimes that occur on DND Property, therefore you do not need them to come and investigate non-military offenses as MP are considered Peace Officers. (Section II(g)(i) CC). There would be a huge legal, administrative, and logistical cost to even attempting to bring in a local PD to investigate what you consider "non-military offenses."

FJAG may be able to give a better picture on the Court Martial/Summary Trial process; but in my personal view I don't see much disparity in sentencing between the Military side and the civil side. In fact, on the civil side, straight drunkenness (State of Intoxication in a Public Place) may only be a violation ticket or free (if uncomfortable) living accommodations for a night on civi street whereas in the Military it's a formal charge (with accompanying Criminal Record).

A formal reprimand is a considerable career implication, as is any associate administrative measures (C&P) not part of the judicial process. If you read through the actual sentencing decision on the CMJ site, it will list the aggravating and mitigating factors. A Military Judge cannot just pull sentences out of their arse, there has to be precedent and they will list it (R vs Bloggins etc.) throughout the decision justifying the sentence.

Edit: to correct spelling of Court Martian to Court Martial.
« Last Edit: May 21, 2014, 16:28:02 by JesseWZ »
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Offline Schindler's Lift

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Re: Why isnt Civilian Justice and Mil Justice tied together closer
« Reply #3 on: May 21, 2014, 22:17:10 »
Just as a point of clarification, I dont believe a simple NDA charge of Drunkeness would result in a criminal record upon conviction.

Offline FJAG

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Re: Why isnt Civilian Justice and Mil Justice tied together closer
« Reply #4 on: May 22, 2014, 01:20:42 »
I have noticed now on several occasions whati will call failures-
Sexual Assaults, Attacks, DUIs etc not brought forth to the Civilian Justice system, Mostly when the MPs are involved, even down to the point where a member was told do not bring this forth to a Civilian Police Force(hinting towards personal and career implications). Look at the amount of Sexual misconduct charges on the CMJ site, which is Internet accesible. how many of those, which in the civilian side would be gross misconducts and would lead to imprisonment.
This all isnt all hush hush knowledge either, it is documented on social media, credible news agencies etc, (the latest CFB Petawawa Incident got me thinking about this a few weeks back, as well as someones FB post stating "Ha, b@#$ i plead guilty and was only given XXXXXXX)
I have started to see that Canada is one of the few countries that frequents the use of the Military Justice system. At an incrdible cost, even several repeat offenders let go with fines, and no real career or personal implications.

Do not read into this the wrong way either;
I understand the need for a Military Justice system, we are to be held to a higher standing then normal citizens because we are to hold the values of Canada and Portray the CF and Canada in the right. I have just seen more often then naught, things being pushed aside, or no real life altering punishments, (im sorry but a $3000 and a reprimand isnt much),

The Military Justice system is great for breaches in service discipline, AWOL, 129s, Frauds, fighting, Conduct Unbecoming etc(things that are specific to the military). However, am I the only one that thinks that some things should be handed to the local/provincial Police Force or the RCMP?   

But why do we have guard dogs, keeping an eye on other guard dogs?

Boy oh boy! Where do I start. There are so many things that you've said that are misunderstandings, misinterpretations or just plain wrong. I think when you start with making statements about the military or the civilian justice systems and use "social media" and "credible news agencies" as your sources then you are bound to go off in the wrong direction.

Firstly there are numerous forms of justice systems in the world: secular, religious, military etc. Very few countries implement them in the same way. Canada is far from being an example of an extreme implementation of a military justice system; many have much stronger and more invasive systems while some have almost completely abrogated theirs in favour of all encompassing civilian ones. Canada is kind of in the middle ground. Don't forget that while at the trial level we have a military system, at the appeal level it is civilian in that all courts martial are subject to appeal to the Court Martial Appeal Court and to the Supreme Court of Canada both of which are comprised of civilian appeal judges.

Our trial processes and procedures may be somewhat different from civilian courts but the law which is applied by the courts is consistent with how it is applied by civilian courts. (Our courts martial are in fact very similar to civilian courts in how they conduct trials - summary trials of course have no direct civilian counterparts but have been redesigned to ensure a higher degree of procedural fairness)

All of the CF's legal officers and military trial judges are fully trained as lawyers firstly by civilian law schools and called to the bar of a Provincial civilian law society before they start their military legal training.

The Code of Service Discipline has specific offences that relate solely to the military but also incorporate all other Federal offences (most notably the Criminal Code) when the committed offence relates to the maintenance of order and discipline in the Forces.

The issues that you raise at their heart have the question of when is it appropriate to have an individual who has committed an offence be tried by the military or by civilians? This relates to who has the jurisdiction to deal with the offender and the offence. In many cases it is very easy to make that determination. Once either the chain of command, the military police, the National Investigation Service or the civilian police become aware of an incident that could constitute an offence then the incident is investigated. During the course of an investigation any one of these agencies either could or should refer the matter to one of the other investigating agencies (if the issue is relatively clear cut) or seek legal advice from their own prosecutions or legal advisor arms (if the issue is complex) In the end, either the law dictates who should have exclusive jurisdiction (e.g. NDA s. 70(a) prohibits the military from trying an individual for a murder committed within Canada). Where the law does not dictate the jurisdiction then the factual circumstances will be the indicator.

As an example a service member who commits sexual assaults on civilians who he meets at a civilian bar would undoubtedly be charged and prosecuted by the appropriate civilian authorities. On the other hand a service member who commits a sexual assault against another service member on a base would undoubtedly be charged and prosecuted by military authorities.

In short, there is a rational system that considers whether an offence committed by a service member, (which is not a merely a pure disciplinary offence), has a sufficient military connection to allow it to be tried by the military rather than a civilian court. What may appear to be pure serendipity is in fact a system populated by professional police and prosecutors, both civilian and military, who know how to sort these matters out.

On the issue of sentences you need to remember two things. Firstly, the summary trial system is there to deal with the less serious disciplinary offences while the court martial system deals with the more serious criminal offences. Secondly, before a military charge is laid, the person laying the charge MUST obtain legal advice from a CF legal officer (QR&O 107.03) which ensures that the appropriate legal considerations (including jurisdiction) are taken into account. (Note that there is also a post-trial review conducted by legal officers of all summary trials to ensure that the findings and sentence are legal).

When it comes to sentences awarded at a court martial, you need to remember that there are legal trained judges, prosecutors and defence counsel at the trial. I can assure you having conducted several of these myself that at sentencing both sides make the strongest case for their side including referring to the sentences awarded by both military and civilian courts in similar circumstances. There are many principles that the military judges use in deciding what the appropriate sentence should be and these principles mirror those used in the civilian courts.

Do I think that sometimes there are sentences imposed which people will disagree with - you betcha. That happens in civilian courts as well.

Do I think that the "social media" or "credible news agencies" that you read don't have a clue as to what goes on in either the military or civilian justice system and what an appropriate sentence should be - you betcha again.

I have no respect for social media when it comes to these fields and very little respect for the vast majority of the "credible news agencies" either. My reasons are the following: neither of them take the time to educate themselves on how either system works; they don't give credit to the fact that the vast majority of the police, lawyers and judges are hard working professionals that are doing a good job the vast majority of the time; they generally have private agendas that they are trying to promote; and they make their living or their reputation through creating controversy even if there is no real controversy.

Have a good one.

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Offline upandatom

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Re: Why isnt Civilian Justice and Mil Justice tied together closer
« Reply #5 on: May 22, 2014, 08:24:29 »
Thanks for the clarity. The whole thing while being taught on leadership courses etc (or more over powerpointed to death with) is not put into lamens terms.

Like I said, I understand the need for a seperate military court- to an extent (mainly to cover Disciplinary matters).

Summary trials I understand fully, no need to back/prove we need those.

Thanks
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Offline JesseWZ

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Re: Why isnt Civilian Justice and Mil Justice tied together closer
« Reply #6 on: May 22, 2014, 10:47:29 »

Like I said, I understand the need for a seperate military court- to an extent (mainly to cover Disciplinary matters).

I disagree with you here. I think the Court Martial should be as broad as it is now, and used for criminal matters (Sec 130 of the NDA is a bridge section allowing most (but not all)) Federal Offences to be laid under the NDA). Like it or not, the Military is a seperate and distinct lifestyle. There would be very few other professions that as a result of a conviction you can be demoted. Johnny the Carpenter doesn't lose his journeyman status after assaulting someone... etc.

 I actually think it is fairer to members that they are tried by Court Martial (when in the appropriate jurisdiction.) The profession of arms isn't 8-4, Monday to Friday. Even if you live off base and have very few other military connections, we are all in the same boat and the uniformed members of the Court Martial (jury, Judge, Counsel) understand that.

It is much more fair (don't read fair as lenient, I mean fair in the dictionary definition of the word) to the member and takes into account the unique lifestyle that is the CF. Civilian judges are very good at what they do, but likely have never worn a uniform in the CF, and without living it, it is near impossible to grasp all the uniqueness of our collective organization profession.
 
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Offline dapaterson

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Re: Why isnt Civilian Justice and Mil Justice tied together closer
« Reply #7 on: May 22, 2014, 11:04:46 »
Per the study material for the presiding officer's course,

Quote
Military Nexus
19. In the past, when determining whether the CF had jurisdiction over offences under the Criminal Code and other Acts of Parliament pursuant to section 130 of the NDA, the courts applied an interpretation of military law requiring the offences to have military nexus.36 To have a military nexus, an offence had to be “so connected with the service in its nature and in the circumstances of its commission, that it would tend to affect the general standard of discipline and efficiency of the service”.37 The need to prove military nexus for such offences has been eliminated by the CMAC.38 However, in many circumstances it is more appropriate for civilian authorities to exercise criminal jurisdiction. For assistance with respect to the decision whether military authorities should proceed with prosecution , the advice of the unit legal advisor should be sought.

(link)

That said, I'm inclined to side with the Honorable Justice Letourneau, who wrote:

Quote
Why should a soldier charged with a serious ordinary criminal law offence, committed entirely in civilian-like circumstances, be deprived of his constitutional right to a jury trial as well as the substantive and procedural rights given to a civilian before civilian courts? Merely because he is a soldier? Since he risks his life for our collective benefit, should he not be entitled to, if not a better, at least an equal treatment before and under the law? Should not the rule under the Constitution be equal justice for one and for all rather than equal justice for all except for one who is a soldier?
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Offline dapaterson

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Re: Why isnt Civilian Justice and Mil Justice tied together closer
« Reply #8 on: May 22, 2014, 11:23:16 »
Interesting...  On further reading, it appears that the presiding officer course material is already out of date.  The Court Martial Appeal Court, earlier this year, reiterated the requirement for a military nexus for charges under s130 of the act.

Quote
[66]           Despite its broad language, the scope of paragraph 130(1)(a) is necessarily circumscribed by the existence of a military nexus. While the provision is broad enough to include virtually all federal offences, only those whose commission is directly connected to discipline, efficiency and morale in the military may be prosecuted as service offences under the CSD. This requirement becomes even clearer when one examines the purpose of that provision and the NDA as a whole.
This posting made in accordance with the Charter of Rights and Freedoms, section 2(b):
Everyone has the following fundamental freedoms: freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication
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Offline JesseWZ

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Re: Why isnt Civilian Justice and Mil Justice tied together closer
« Reply #9 on: May 22, 2014, 11:49:05 »
I should probably provide clarification to my post, as on third reading it could be read that I support a return to a "soldier = court martial, civilian = civilian trial system". That is not what I would like to see. I think our current system of checks and balances works well. I was simply articulating that despite the OPs misgivings about the system, when an offense has a Military Nexus, it is just as fair (not lenient, fair) to the member to be tried by Court Martial as there are many factors that civilian Learned Judges (despite being very good judges) may not consider, that very good Military Judges will.

This allows for a fairer trial and sentencing should the accused be found guilty and takes into account the uniqueness of our chosen profession.

Post-coffee posting from now on for me.
« Last Edit: May 22, 2014, 12:56:18 by JesseWZ »
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Offline putz

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Re: Why isnt Civilian Justice and Mil Justice tied together closer
« Reply #10 on: May 22, 2014, 12:31:21 »
  Reviewing this post and the attached case law matters I was wondering.  Why is it always harped on MP to use the CDS 99.9% of the time offences occurred involving a service member.  Not all offences are detrimental to the discipline or maintenance of the unit/CF.  Seems that this day and age the CMAC seems to think so as well.  MP have the power to proceed civilian but more often then not are told not to.

Offline upandatom

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Re: Why isnt Civilian Justice and Mil Justice tied together closer
« Reply #11 on: May 22, 2014, 13:14:22 »
Per the study material for the presiding officer's course,

That said, I'm inclined to side with the Honorable Justice Letourneau, who wrote:

that quote pulls directly into what I was trying to say- Military Justice for acts that contradict the CSD be handled by Military Prosecution, and in turn, all other "law" infringements handled by outside agencies.
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Offline upandatom

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Re: Why isnt Civilian Justice and Mil Justice tied together closer
« Reply #12 on: May 22, 2014, 13:21:30 »
  Reviewing this post and the attached case law matters I was wondering.  Why is it always harped on MP to use the CDS 99.9% of the time offences occurred involving a service member.  Not all offences are detrimental to the discipline or maintenance of the unit/CF.  Seems that this day and age the CMAC seems to think so as well.  MP have the power to proceed civilian but more often then not are told not to.

Very much so, more often then not I see that they are told by CoC and back channel alleys to proceed with CSD breach and not Civilian Matter. I know of one particular Sexual Assault case, that the member involved was told- Do not go to civilian authorities, MPs are handling it, and in the end, the sexual assault was never brought forward, the DUI (MPs pulled member over 5 min later after the original call) was never pushed forward either. All the person ended with was C&P and a $2000 fine....

Which is to me disgusting....
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Offline JesseWZ

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Re: Why isnt Civilian Justice and Mil Justice tied together closer
« Reply #13 on: May 22, 2014, 13:31:26 »
Very much so, more often then not I see that they are told by CoC and back channel alleys to proceed with CSD breach and not Civilian Matter. I know of one particular Sexual Assault case, that the member involved was told- Do not go to civilian authorities, MPs are handling it, and in the end, the sexual assault was never brought forward, the DUI (MPs pulled member over 5 min later after the original call) was never pushed forward either. All the person ended with was C&P and a $2000 fine....

Which is to me disgusting....

I cannot speak to the file in question as I know nothing about it, but perhaps the elements of the offense (critical in laying and convicting someone of a charge) were not met for either the Sexual Assualt or the Impaired Operation of a Motor Vehicle. I'll say it again, if anyone is on DND property, civilian authorities cannot investigate without a bunch of hoops to jump through and Memorandums of Understanding etc. If the MPs were handling it, there was an established Military Nexus, otherwise it would be a "shadow file" and not an investigation.

Why would you report a sexual assualt to multiple police agencies? Jurisdiction is jurisdiction, if it happened on DND property, it is the MP mandate to investigate. If it didn't, then that is a grey area. Clearly something was pushed forward as the member received a C&P and a fine...

What charge resulted in a $2000 fine then?

 Your posts are starting to sound like you have an (ill-informed) axe to grind. 
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Offline ExRCDcpl

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Re: Why isnt Civilian Justice and Mil Justice tied together closer
« Reply #14 on: May 22, 2014, 16:34:31 »
If someone were to be sexually assaulted in Toronto and called the Ottawa police to make the complaint....they would be told there is nothing that they can do and to call toronto police.  It's no different when dealing with the MP's.  If it's MP jurisdiction they investigate, if it's not, they refer the person to the appropriate civilian police service.  As for nothing being brought forward.....well I can tell you that as a police officer I have seen on many occasions a sexual assault is investigated and through investigation it was determined to be an unfounded accusation or not enough evidence to proceed.  Please don't assume that you have any idea what goes on during investigations etc.

As for the impaired, how do you know the guy didn't blow a warn (not a criminal offence) and the unit took it upon themselves to take administrative action?
« Last Edit: May 22, 2014, 16:37:42 by RCDcpl »

Offline FJAG

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Re: Why isnt Civilian Justice and Mil Justice tied together closer
« Reply #15 on: May 22, 2014, 18:32:54 »
That said, I'm inclined to side with the Honorable Justice Letourneau,

"Why should a soldier charged with a serious ordinary criminal law offence, committed entirely in civilian-like circumstances, be deprived of his constitutional right to a jury trial as well as the substantive and procedural rights given to a civilian before civilian courts? Merely because he is a soldier? Since he risks his life for our collective benefit, should he not be entitled to, if not a better, at least an equal treatment before and under the law? Should not the rule under the Constitution be equal justice for one and for all rather than equal justice for all except for one who is a soldier?"
who wrote:

I've never been much of a fan of Letourneau who in my humble opinion frequently went off on unnecessary tangents in his decisions. In my view the Yale article was one of those where he took Strayer's well-reasoned Reddick decision and (once again} went on a tangent to get to one of his hobby-horses about why soldiers are denied their rights under the constitution?

With great respect they are not denied their rights at all. Section 11(f) of the Charter of Rights and Freedoms states:

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


The simple answer is that it is not a denial of a constitutional right to a trial by jury, if the very constitution itself provides for a trial before a military tribunal instead of a jury.  The constitution itself recognizes that there are valid reasons for treating military personnel differently than civilians and incorporates that rationale in s11(f).

It's fair game to disagree with the constitution and argue that it should be changed but it's simply untrue to say, like Letourneau does, that soldiers are "deprived of their constitutional rights" when in fact a trial by a court martial is the right that is expressly conferred by the constitution on the military in lieu of a jury trial.

To change the focus of the question maybe we should be asking ourselves whether juries (as we know them) have had their time and should be eliminated or changed. Very many jurisdictions (including ones founded in British common law) have abandoned juries in various ways either entirely or by substituting one or two "lay judges" or "amici" to assist the legally trained judge in making fact findings. See here for a broad overview http://en.wikipedia.org/wiki/Jury_trial

 :pop:

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« Last Edit: May 23, 2014, 17:50:55 by FJAG »
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Offline garb811

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Re: Why isnt Civilian Justice and Mil Justice tied together closer
« Reply #16 on: May 22, 2014, 18:39:56 »
...Please don't assume that you have any idea what goes on during investigations etc....

Why let reality get in the way of uninformed perception?

Very much so, more often then not I see that they are told by CoC and back channel alleys to proceed with CSD breach and not Civilian Matter. I know of one particular Sexual Assault case, that the member involved was told- Do not go to civilian authorities, MPs are handling it, and in the end, the sexual assault was never brought forward, the DUI (MPs pulled member over 5 min later after the original call) was never pushed forward either. All the person ended with was C&P and a $2000 fine....

Which is to me disgusting....
Your profile shows you are a Sigs MCpl.  I highly doubt you have any significant exposure to the kind of information you are intimating that you do.  Scuttlebutt, a conversation with MP, possibly even MP friends.  But you do not have access to MPIR which would give you a full understanding of why, or why not, something may, or may not, have proceeded in the fashion you "think" it should.

Yes, the MP CoC instructs its members to proceed via CSD when the it is an MP investigation and the accused is subject to the CSD, under most circumstances.  Impaired driving is not one of those circumstances, in fact explicit direction has been given to process impaired drivers through the civilian side.  There is nothing underhanded or wrong about this direction, it is within our lawful authority to do that, just like I have the lawful authority to direct a member to cease an investigation under a variety of circumstances, or order them to continue to investigate when they think they shouldn't, order that there will be "zero tolerance" for offences and take away the normal discretion MP have with regard to laying a charge or not for offences they have the legal authority to do so etc.  This is not specific to MP, it is the same for the chain of command of any police service/agency. 

The recent decision ref NDA S. 130 is not going to have the impact many seem to think it will.  Although "military nexus" is not defined clearly anywhere, it is clear that if the accused is subject to the CSD and the alleged offense has occurred on a Defence Establishment, the military nexus exists but on the other hand, if the accused is subject to the CSD and the alleged offence occurred off of a Defence Establishment, the establishment of that nexus will be much more onerous.  So, for example:

A CAF member is found to be in possession of a joint by MP while being searched subsequent to arrest for impaired driving on a Base.  S. 130 can be used to lay the possession offence pursuant to the CDSA.  On the other hand, Edmonton police find a CAF member in possession of a joint in the same circumstances on 137th Ave and exercise their discretion and don't charge him for possession due to the small amount.  The CAF is unlikely to be able to subsequently lay a CDSA possession charge via S. 130, even though the civilian police are deemed to have waived jurisdiction by not pursuing the charge, which has happened in the past.

Offline dapaterson

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Re: Why isnt Civilian Justice and Mil Justice tied together closer
« Reply #17 on: May 22, 2014, 18:42:32 »
I've never been much of a fan of Letourneau who in my humble opinion frequently went of on unnecessary tangents in his decisions. In my view the Yale article was one of those where he took Strayer's well-reasoned Reddick decision and (once again} went on a tangent to get to one of his hobby-horses about why soldiers are denied their rights under the constitution?

With great respect they are not denied their rights at all. Section 11(f) of the Charter of Rights and Freedoms states:

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


The simple answer is that it is not a denial of a constitutional right to a trial by jury, if the very constitution itself provides for a trial before a military tribunal instead of a jury.  The constitution itself recognizes that there are valid reasons for treating military personnel differently than civilians and incorporates that rationale in s11(f).

It's fair game to disagree with the constitution and argue that it should be changed but it's simply untrue to say, like Letourneau does, that soldiers are "deprived of their constitutional rights" when in fact a trial by a court martial is the right that is expressly conferred by the constitution on the military in lieu of a jury trial.

To change the focus of the question maybe we should be asking ourselves whether juries (as we know them) have had their time and should be eliminated or changed. Very many jurisdictions (including ones founded in British common law) have abandoned juries in various ways either entirely or by substituting one or two "lay judges" or "amici" to assist the legally trained judge in making fact findings. See here for a broad overview http://en.wikipedia.org/wiki/Jury_trial

 :pop:

 :cheers:

I fear you are putting concepts into Letourneau's mouth that are not there.  Nowhere does he deny the need for a system of military justice.  In the quote he speaks exclusively of "a serious ordinary criminal law offence, committed entirely in civilian-like circumstances".  Section 11(f) of the charter provides cover for a military tribunal, dealing with a military charge, but as has been reiterated in Moriarty there must be a military nexus for a s130 charge.  Hardly a reactionary idea that, when acting outside their capacity as soldiers, soldiers are in fact citizens, and deserve to be treated as such.
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Offline Schindler's Lift

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Re: Why isnt Civilian Justice and Mil Justice tied together closer
« Reply #18 on: May 22, 2014, 20:50:08 »
  Reviewing this post and the attached case law matters I was wondering.  Why is it always harped on MP to use the CDS 99.9% of the time offences occurred involving a service member.  Not all offences are detrimental to the discipline or maintenance of the unit/CF.  Seems that this day and age the CMAC seems to think so as well.  MP have the power to proceed civilian but more often then not are told not to.

Actually you are 99.9% wrong with your figures.  The MP use the CSD precisely 0% or the time since they have no authority to lay a charge under the CSD.  They draft the report after their investigation and they submit it to the COC when a civilian charge is not appropriate.

Those MP that can lay charges under the NDA (those MP posted to CFNIS) adhere to the policies and legal advise in so far as which way to proceed, civie or NDA.

Offline putz

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Re: Why isnt Civilian Justice and Mil Justice tied together closer
« Reply #19 on: May 22, 2014, 22:52:59 »
Actually you are 99.9% wrong with your figures.  The MP use the CSD precisely 0% or the time since they have no authority to lay a charge under the CSD.  They draft the report after their investigation and they submit it to the COC when a civilian charge is not appropriate.

Those MP that can lay charges under the NDA (those MP posted to CFNIS) adhere to the policies and legal advise in so far as which way to proceed, civie or NDA.

I like how I never said anything about patrol MP laying the charges.....  But the inability for Detatchment MP to lay charges is a different conversation that has been covered repeatedly.  But hey thanks for the lesson.... /end sarcasm
« Last Edit: May 22, 2014, 22:56:23 by putz »

Offline Schindler's Lift

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Re: Why isnt Civilian Justice and Mil Justice tied together closer
« Reply #20 on: May 22, 2014, 23:35:05 »
I like how I never said anything about patrol MP laying the charges.....  But the inability for Detatchment MP to lay charges is a different conversation that has been covered repeatedly.  But hey thanks for the lesson.... /end sarcasm

Hmmmm, let me look back for a second.  Nope, don't see any place in which you make a distinction.  In fact, you distinctly state "MP" which by its vary definition includes Detachment MP as well as those assigned to the NIS.  In fact, the way you used it you could also have been refering to reserve MP but  I at least gave you that much benefit of the doubt.  Perhaps I wasnt generous enough.

Offline putz

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Re: Why isnt Civilian Justice and Mil Justice tied together closer
« Reply #21 on: May 23, 2014, 00:19:44 »
Yep. still don't see where I said anything about MP laying charges.  I said that MP get told to proceed with CSD instead of Criminal Code.  Last time I checked when you write a GO you include the CSD offences in it.

Offline lcis00110

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Re: Why isnt Civilian Justice and Mil Justice tied together closer
« Reply #22 on: May 23, 2014, 15:33:48 »
As a neutral party to this conversation, I would like to point out (AND THANK YOU) that this thread is a great read!!!

I think I'm picking up a lot of knowledge here.  I too actually have always been curious as to the major differences between CSD and the CCC (Criminal Code of Canada).  Please continue with the discussion so I may continue to absorb this great info!!!
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Offline FJAG

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Re: Why isnt Civilian Justice and Mil Justice tied together closer
« Reply #23 on: May 23, 2014, 20:15:03 »
I fear you are putting concepts into Letourneau's mouth that are not there.  Nowhere does he deny the need for a system of military justice.

I never said that he did. Genereux validated the constitutionality of a separate military justice system and Letourneau accepted that (He has little choice).

In the quote he speaks exclusively of "a serious ordinary criminal law offence, committed entirely in civilian-like circumstances".  Section 11(f) of the charter provides cover for a military tribunal, dealing with a military charge, but as has been reiterated in Moriarty there must be a military nexus for a s130 charge.  Hardly a reactionary idea that, when acting outside their capacity as soldiers, soldiers are in fact citizens, and deserve to be treated as such.

It's obvious that he was talking about a "serious criminal law offence" because the issue of a jury trial really only applies to serious offences.

Where the problem comes in is the issue of "in civilian-like circumstances". I think in his article, Letourneau was overreacting to the Reddick decision. Moriarity does a good job of explaining its limitation. But I'm not here to argue military nexus one way or the other.

My problem is that Letourneau (in the article that you cite and which I recall I threw into another thread as a backgrounder on nexus) is fast and loose with his language.

Take a look at the opening paragraph where he says "Contrary to France, for example, where the jurisdiction of military tribunals is limited to times of war and offences committed abroad by French soldiers, military courts in Canada, even in peacetime, have concurrent jurisdiction with civilian courts over ordinary criminal law offences."

In Part 4 starting at page 13 he points to the "rights" which soldiers lose within the military justice system: the "constitutional right to a trial by jury . . ."; the right to a preliminary inquiry; differing rules of evidence; different arrest and detention provisions; differing sentencing provisions.

What Letourneau has done is to take a paper on "The Status of Military Nexus" and gone off on a tangent about how the system denies rights to soldiers. If the paper had been one wherein which he discussed the pros and cons of the two systems and the rationale behind the differences then one could have respected it. But he didn't do that - he just threw them into a discussion about nexus with the intention that the reader just presume that these differences are bad in and of themselves. In my mind that is both lazy and dishonest legal argument and shows his bias against the existing scope of the military justice system.

The only point I was making before is that you cannot honestly say that a soldier is "deprived of the constitutional right to a trial by jury" when the constitution itself (by way of s 11(f) of the Charter) provides for a differing military justice system. To this point in time, The Supreme Court has reviewed the system several times and, while it has found issues (some major ones) that required fine tuning, overall it has accepted the military justice system using courts martial instead of juries as fully constitutional. Soldiers are being treated constitutionally differently but they have not been "deprived" of a constitutional right.

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Offline dapaterson

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Re: Why isnt Civilian Justice and Mil Justice tied together closer
« Reply #24 on: May 23, 2014, 20:30:15 »
I think we differ on our interpretation of 11(f):

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


Is s130 "military law"?  That's the fundamental question; while it is included in the CSD, it has the potential to be vastly overreaching.  And thus, if abused, s130 has the potential to deny 11(f) rights - since it could see an offence that is only tenuously related to the military tried before a military tribunal by virtue of its inclusion under the wide-ranging nature of s130.

Moriarty does attempt to inject some common sense, and does understand that an excessively proscriptive replacement for s130 would not work.

The military justice system is fine and constitutional for military offences.  The degree to which s130 specific offences are military in nature is where potential problems lie.


And if Letourneau does tend to go on about that a wee little bit, there are far worse areas for people to fixate upon...
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