Author Topic: Class A service and AWOL  (Read 9989 times)

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Offline klatham

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Re: Class A service and AWOL
« Reply #75 on: May 17, 2018, 11:07:53 »
It seems the answer to my question is not clear-cut and there might be some disambiguation required in the future.  I am finding the discussion very interesting though, so I appreciate everyone's responses.

I am guessing that there is a presumption, within the unit, that the CSD does not apply 24/7 to the reserve members, but that presumption might be in error.

Thanks!


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Re: Class A service and AWOL
« Reply #76 on: May 17, 2018, 12:37:33 »
We have the ludicrous situation where it appears, technically, our highest ranking civilian in DND is subject to the CSD when she walks in the door to work as her biography states she currently holds a commission with the Naval Reserve. How about the family members who have joined the local reserve unit while living with his/her parents/spouse in a RHU?

The hybrid units are another excellent case in point.  When I was at a MP Regt we were very clear in continuing to treat our PRes members as if they were members of any other PRes unit, notwithstanding the fact they belonged to a Reg Force UIC.

I'd submit that contrary to FJAG's observation that NDA 60(1) is starting to fall behind, I'd say it has totally been over taken by events a long time ago and the reality is, fortunately, there is a lot of "common sense" currently being practiced on the ground to make sure we aren't putting folks into legal jeopardy simply because of that fact.

Offline dapaterson

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Re: Class A service and AWOL
« Reply #77 on: May 17, 2018, 12:51:41 »

I'd submit that contrary to FJAG's observation that NDA 60(1) is starting to fall behind, I'd say it has totally been over taken by events a long time ago and the reality is, fortunately, there is a lot of "common sense" currently being practiced on the ground to make sure we aren't putting folks into legal jeopardy simply because of that fact.

The Government did strip a member of the Supp Res of a patent because he was a Supp Res member when he came up with the invention, so it's dangerous to assume bad law away - all it takes is one person to decide to follow the law and not common sense and the entire enterprise may collapse on itself.
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Offline Loachman

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Re: Class A service and AWOL
« Reply #78 on: May 17, 2018, 19:24:15 »
1 Wing's Squadrons and Headquarters have been Total Force for over two decades, and I am unaware of any such problems experienced by Class A pers.

Perhaps klatham, though, would be willing to engineer a test case so that we can sort this one out properly...

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Re: Class A service and AWOL
« Reply #79 on: May 17, 2018, 23:29:19 »
The Government did strip a member of the Supp Res of a patent because he was a Supp Res member when he came up with the invention, so it's dangerous to assume bad law away - all it takes is one person to decide to follow the law and not common sense and the entire enterprise may collapse on itself.

That's an excellent case in point that I had forgotten about. Note that while DND tried to strip Brown of the patent, the Federal Court of Appeal later ruled, in part, in Browns favor and while upholding that his Supp Res service made him a "Public Servant" at the relevant time, ruled that his failure to disclose that status did not invalidate the patent. The court left open the question of whether the patent vested in the Crown. I'm not sure about the final resolution of Brown's situation with DND but the case certainly showed how far DND would go when it gets its a** in a twist.

See here:

https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/135341/index.do

http://www.cbc.ca/news/canada/ottawa/veteran-reserves-public-servant-patent-1.3660867

To Haggis: Disingenuous? Really?

The manner of the interpretation of a statute, such as the NDA, can follow several different theories but primarily it is an exercise in determining what the legislature intended the text to mean when the statute was written. Regulations and orders and policies are written not by the legislature but by civil servants who themselves are interpreting the statute within the scope that the legislature allows them to. That said a civil servant's opinion of what the statute means (as interpreted in regulations etc) is worth nothing to the court when the court is asked to make the interpretation. See here eg for a primer: http://aix1.uottawa.ca/~resulliv/legdr/siinscc.html

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Offline dapaterson

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Re: Class A service and AWOL
« Reply #80 on: May 17, 2018, 23:45:30 »
Regulations and orders and policies are written not by the legislature but by civil servants who themselves are interpreting the statute within the scope that the legislature allows them to.

Except for QR&Os it's not always that clear.  QR&Os can be under the authority of the CDS, the Minister, the Treasury Board, or the Governor in Council; in the latter two instances, at least, it's arguable that a court would give greater weight to such regulations due to their source.


QR&Os are odd ducks in many respects (no pre-publication, for one); far too many in the CAF don't understand them, their role, their origin, or the significant latitude granted by the legislature to the CAF in controlling many aspects of its own destiny.  (Or for real fun, try to explain to folks the difference between legislation, regulation, policy & process)
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Re: Class A service and AWOL
« Reply #81 on: May 18, 2018, 01:23:54 »
Except for QR&Os it's not always that clear.  QR&Os can be under the authority of the CDS, the Minister, the Treasury Board, or the Governor in Council; in the latter two instances, at least, it's arguable that a court would give greater weight to such regulations due to their source.


QR&Os are odd ducks in many respects (no pre-publication, for one); far too many in the CAF don't understand them, their role, their origin, or the significant latitude granted by the legislature to the CAF in controlling many aspects of its own destiny.  (Or for real fun, try to explain to folks the difference between legislation, regulation, policy & process)

You're quite right about the sources of QR&Os but even the GIC and TB are delegated entities under legislation.

I think that we frequently downplay the supreme role that the legislature plays in the whole scheme of our laws. Quite frankly, the individual members of the legislature rarely understands the true extent of the legislation that they are enacting because the whole process of legislative drafting is in the hands of smaller committees and specialized civil servants (including DoJ lawyers and military lawyers) of various Ministries.

However, once legislation is enacted it is out of the hands of the drafters and it is up to the courts to interpret the legislation in line with the intention of the legislature when there is a dispute or conflict about the meaning of the law.

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Offline Haggis

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Re: Class A service and AWOL
« Reply #82 on: May 18, 2018, 18:13:41 »
See here eg for a primer: http://aix1.uottawa.ca/~resulliv/legdr/siinscc.html

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Re: Class A service and AWOL
« Reply #83 on: May 18, 2018, 20:29:16 »
It's going to rain this weekend.  Now I have something to do.

I've been replacing some old lawn edging with new the last few days and have more to do. It's going to rain here too and, quite frankly, I'd rather be out in the rain laying more edging than reading law.  ;D Retirement is retirement.

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Offline Haggis

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Re: Class A service and AWOL
« Reply #84 on: May 20, 2018, 10:33:35 »
FJAG:  it didn't rain as much as expected so i haven't yet read your link.

Disingenuous?  Yes, but let me put some much needed (and originally omitted) context to that.

My point was not that the courts could and, possibly, would apply NDA 60 (1)ix literally.  it was that the unit chain of command would be disingenuous to lay a charge based on NDA 60(1)ix read in isolation and without the amplification of relevant regulations, instructions and policies.  Could it happen?  Of course.  A vindictive chain of command may want to make an example of him and "see what happens" when "the lawyers sort it out".  in any case it could possibly bring the discussion of what "deemed on duty" means in a pan-Reserve context back to the forefront.
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