Author Topic: Why aren't Civilian Justice and Mil Justice tied together closer  (Read 14548 times)

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Offline FJAG

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Re: Why isnt Civilian Justice and Mil Justice tied together closer
« Reply #25 on: May 23, 2014, 22:18:35 »
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...

There is really no question that s 130 is "military law". Moriarity is specifically about that and is only the most recent of many cases that acknowledges that. If you think s 130 has the "potential to be vastly overreaching" then read s 132 sometime and start a discussion group as to whether shari'a law would be included.  :stirpot:

I really don't think that there is any great controversy within the police or prosecution arms of the Forces as to when and how s 130 should be used. Where I see the issue coming from is in the numerous Pleas in Bar of Trial that are being continuously brought by defence counsel in order to avoid a trial. Moriarity is a perfect example of two people who on the facts were clearly guilty of the crimes and turned to lame attempts (IMHO) to escape the consequences of their acts.

One thing that scoffers of the military justice system frequently gloss over is that the CF provides free legal counsel to individuals who would never qualify for legal aid in a civilian court. The downside of having no cost restraints and having as many defence counsel as we do and as few trials as we have is that the lawyers have entirely too much time to dream up and argue fanciful Charter challenges.

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Offline garb811

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Re: Why isnt Civilian Justice and Mil Justice tied together closer
« Reply #26 on: May 23, 2014, 22:30:23 »
... The downside of having no cost restraints and having as many defence counsel as we do and as few trials as we have is that the lawyers have entirely too much time to dream up and argue fanciful Charter challenges.

 :cheers:
Sadly, it isn't just defence counsel who fall into this trap; I have been privileged to know a few RMP who felt they had to cover each and every possible challenge to a charge, no matter how remote, before they were comfortable to move forward to CM, leading to a lot of wasted time and effort by us being used as their personal investigative service to chase rainbows.

Offline Schindler's Lift

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Re: Why isnt Civilian Justice and Mil Justice tied together closer
« Reply #27 on: May 23, 2014, 22:51:15 »
Sadly, it isn't just defence counsel who fall into this trap; I have been privileged to know a few RMP who felt they had to cover each and every possible challenge to a charge, no matter how remote, before they were comfortable to move forward to CM, leading to a lot of wasted time and effort by us being used as their personal investigative service to chase rainbows.

Agreed.  I've even had one (I suspect one of the ones you are talking about) who would only consider a charge when he viewed it as a "slam dunk" which would result in every little potential defence argument being run to ground by investigators, no matter how unlikely.  I'm not talking elements or offence facts as much as all the "what ifs" he could come up with.  Pretty soon investigators would start to schedule their consultations for the times his partner was in the office so they wouldn't need to deal with that particular RMP.  He had forgotten that the phrase "trying a case" has multiple connotations.

Offline dapaterson

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Re: Why isnt Civilian Justice and Mil Justice tied together closer
« Reply #28 on: May 23, 2014, 23:37:34 »
Agreed.  I've even had one (I suspect one of the ones you are talking about) who would only consider a charge when he viewed it as a "slam dunk" which would result in every little potential defence argument being run to ground by investigators, no matter how unlikely.  I'm not talking elements or offence facts as much as all the "what ifs" he could come up with.  Pretty soon investigators would start to schedule their consultations for the times his partner was in the office so they wouldn't need to deal with that particular RMP.  He had forgotten that the phrase "trying a case" has multiple connotations.

Not at all.  He was making those cases very trying...
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Offline Schindler's Lift

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Re: Why isnt Civilian Justice and Mil Justice tied together closer
« Reply #29 on: May 24, 2014, 10:28:22 »
Not at all.  He was making those cases very trying...

I'm sure that if we all compared names we would be speaking of the same two or three pers.

Offline Retired AF Guy

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Re: Why isnt Civilian Justice and Mil Justice tied together closer
« Reply #30 on: May 24, 2014, 14:53:34 »
[t]he 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....

Actually, from what I read in the local paper (Kingston Whig-Standard) a fine is pretty normal for a first time impaired charge, and usually under $2,000.00.
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Offline FJAG

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Re: Why isnt Civilian Justice and Mil Justice tied together closer
« Reply #31 on: May 24, 2014, 21:50:47 »
I'm sure that if we all compared names we would be speaking of the same two or three pers.

I'll make that unanimous although I think "two or three" is an understatement.

Risk aversion is rampant in the system

I'll get back to what I said before; there are far too many defence counsel AND prosecutors for the number of cases we have in the system.

In the civilian courts, the average prosecutor appearing on the "daily" remand docket has more files in his arms than DND handles in a year.

 :cheers:
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