Author Topic: CMAC: NDA s. 130(1)(a) violates Charter right to jury trial  (Read 5392 times)

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Offline Navy_Pete

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Re: CMAC: NDA s. 130(1)(a) violates Charter right to jury trial
« Reply #25 on: December 20, 2018, 16:48:28 »
Thanks FJAG, that's interesting; didn't know the Charter specifically exempted military trials from the jury requirement.

Sounds like that was something specifically considered and excluded during the drafting of the legislation. Our current SCC seems to be pretty good about not reinterpreting the legislation so hopefully they will answer this case once and for all.

From a layman's POV that seems more like a hail mary to take advantage of a loop hole, but always feel that these kinds of appeals are playing the system vice actions taken in the interest of justice. It's the kind of thing that gives defence lawyers a bad reputation, and causes people to have lose faith in the courts.

Offline JesseWZ

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Re: CMAC: NDA s. 130(1)(a) violates Charter right to jury trial
« Reply #26 on: January 16, 2019, 18:37:14 »
Looks like we're in a holding pattern until the SCC hears the case...


Military Court Ruling to Remain in Place Pending Supreme Court Decision - National Post




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Offline garb811

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Re: CMAC: NDA s. 130(1)(a) violates Charter right to jury trial
« Reply #27 on: January 16, 2019, 19:44:41 »
Somebody needs to swallow their pride and start shifting these charges into the civilian system ASAP...

Offline JesseWZ

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Re: CMAC: NDA s. 130(1)(a) violates Charter right to jury trial
« Reply #28 on: January 16, 2019, 22:00:27 »
Somebody needs to swallow their pride and start shifting these charges into the civilian system ASAP...

It’s almost like you’ve met the DMP...
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Offline FJAG

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Re: CMAC: NDA s. 130(1)(a) violates Charter right to jury trial
« Reply #29 on: March 26, 2019, 08:26:08 »
Quote
Supreme Court tests the limits of military justice in rare appeal case

The question: do military courts have authority over serious crimes?
Murray Brewster · CBC News · Posted: Mar 26, 2019 4:00 AM ET

The Supreme Court of Canada debates today whether the Canadian military has the constitutional authority to try its own members for serious crimes like sexual assault and murder — a case that some legal observers are calling a once-in-a-generation event.

A military appeals court ruled last fall that the inability of soldiers, sailors and aircrew to elect trial by jury for serious crimes (those punishable by five years or more in prison) under the military justice system amounts to a violation of the Charter of Rights and Freedoms.

The ruling in the sexual assault case of Master-Cpl. Raphael Beaudry has turned the world of courts martial upside-down and led to a number of cases being adjourned, postponed or pushed off to the civilian court system.

...

See rest of article here:

https://www.cbc.ca/news/politics/supreme-court-military-justice-court-martial-1.5071218

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Offline TimneyTime

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Nice to know that retiring and commenting on things military completely outside my area of knowledge is a legitimate retirement option.

I've read all the CM transcripts form the last few years, and I have to say they seem incredibly fair and even handed.  Noticed that the ones that bring up constitutional issues and other similar challenges also seem to be the ones that are obviously guilty.

Having said that, I also don't see any really good reason why not kick something over to the civilian authority if it is a serious crime committed in Canada (that just happens to have a military member involved) unless there is some kind of operational security issue (like the Deslisle case, which probably should have been a CM).

It's kind of hard to side with the CF courts martial system when you've got people at the highest levels committing fraud.

https://globalnews.ca/news/4889893/canada-military-judge-fraud/

Offline SeaKingTacco

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It's kind of hard to side with the CF courts martial system when you've got people at the highest levels committing fraud.

https://globalnews.ca/news/4889893/canada-military-judge-fraud/

I see. Because one person who is part of a system has allegedly (that is an important word, especially since the trial has not yet occurred) committed a crime, unrelated to the direct functioning of the system, the entire system of military justice is flawed?


Please tell me- what is your specific expertise with the military justice system? Have you ever taken a POCT or a charge laying course? Have you ever acted as an assisting officer or a presiding officer? Have you ever even attended a summary trial or a court martial as a spectator? Have you considered the difficulties that would be instantly created for both discipline and justice if a system of military justice did not exist?


Offline dapaterson

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Re: CMAC: NDA s. 130(1)(a) violates Charter right to jury trial
« Reply #32 on: March 26, 2019, 10:55:33 »
As always, there's the rule of unintended consequences.

A CAF member charged under NDA 130(a) has the right to a lawyer from Defence Counsel Services, at no cost.

A CAF members charged by city police in a civilian court has to pay for their own lawyer.


Pushing more trials to the civilian system also pushes more cost to the accused CAF members.
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Offline Haggis

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Re: CMAC: NDA s. 130(1)(a) violates Charter right to jury trial
« Reply #33 on: March 26, 2019, 11:50:57 »
As always, there's the rule of unintended consequences.

A CAF member charged under NDA 130(a) has the right to a lawyer from Defence Counsel Services, at no cost.

A CAF members charged by city police in a civilian court has to pay for their own lawyer.

Would not a CAF member charged by the CAF under whatever NDA 130(a) becomes and diverted to the civilian courts still have access to counsel from DCS?
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Offline dapaterson

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Re: CMAC: NDA s. 130(1)(a) violates Charter right to jury trial
« Reply #34 on: March 26, 2019, 12:19:35 »
Would not a CAF member charged by the CAF under whatever NDA 130(a) becomes and diverted to the civilian courts still have access to counsel from DCS?

No.  Per the NDA, "249.17 A person who is liable to be charged, dealt with and tried under the Code of Service Discipline has the right to be represented in the circumstances and in the manner prescribed in regulations made by the Governor in Council."

If the charge is not under the Code of Service Discipline, they would not be covered.  Thus, charged in a civilian court under the Criminal Code would not be covered.

See also QR&O 101.10 through 101.12.
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Offline Haggis

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Re: CMAC: NDA s. 130(1)(a) violates Charter right to jury trial
« Reply #35 on: March 26, 2019, 12:57:53 »
Yup, got that, dapaterson, but let me restate the question a bit with an example, situated in a future post NDA 130(a).

Would not a CAF member charged by the CAF under whatever NDA 130(a) becomes and diverted to the civilian courts still have access to counsel from DCS?

Right now a member could be charged by the CAF with say, unsafe storage of a personal firearm in a PMQ (CCC 86(2)), a hybrid offence.  The offence has a clear military nexus in that it's alleged to have occurred on a defence establishment. The charge would be laid by the MP.  The charge is then diverted to the civilian system when the member elected trial by jury in the absence of NDA 130(a), it having been struck down.  Would DCS then be able to provide counsel?
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Offline dapaterson

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Re: CMAC: NDA s. 130(1)(a) violates Charter right to jury trial
« Reply #36 on: March 26, 2019, 13:33:49 »
If it's a charge under an act other than the NDA (and its subset, the CSD) then no, under the current construct, there is no authority for DDCS to offer support to the individual.
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Offline FJAG

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Re: CMAC: NDA s. 130(1)(a) violates Charter right to jury trial
« Reply #37 on: March 26, 2019, 14:56:25 »
If it's a charge under an act other than the NDA (and its subset, the CSD) then no, under the current construct, there is no authority for DDCS to offer support to the individual.

Ditto with a small reservation. Under s 249.19, the charge must be under the CSD for DDCS to become engaged. There are offenses under the NDA which are not part of the CSD and where DDCS would not be engaged even now.

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Offline dapaterson

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Re: CMAC: NDA s. 130(1)(a) violates Charter right to jury trial
« Reply #38 on: March 26, 2019, 15:04:47 »
Thanks, good catch.  Misstatement on my part.
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Re: CMAC: NDA s. 130(1)(a) violates Charter right to jury trial
« Reply #39 on: March 26, 2019, 19:34:22 »
No.  Per the NDA, "249.17 A person who is liable to be charged, dealt with and tried under the Code of Service Discipline has the right to be represented in the circumstances and in the manner prescribed in regulations made by the Governor in Council."

If the charge is not under the Code of Service Discipline, they would not be covered.  Thus, charged in a civilian court under the Criminal Code would not be covered.

See also QR&O 101.10 through 101.12.

Naturally, none of civilian lawyers currently calling for the CSD to be eviscerated and all charges to go into the provincial or federal court system would even think of profitting from that, right?

Offline dapaterson

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Re: CMAC: NDA s. 130(1)(a) violates Charter right to jury trial
« Reply #40 on: March 26, 2019, 19:35:16 »
Oddly, the lawyers arguing against 130(a), as far as I know, are military...
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Offline FJAG

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Re: CMAC: NDA s. 130(1)(a) violates Charter right to jury trial
« Reply #41 on: March 26, 2019, 20:44:05 »
Oddly, the lawyers arguing against 130(a), as far as I know, are military...

Quite correct.

Back in the day when I was still doing some prosecuting (and defending occasionally -- in those days prosecutors were one of the DJA's from the region where the offender was from and the defending officer was a DJA who came from some other region in Canada) military defending officers (who are government salaried officers) spent considerably more time researching and preparing for a trial (even the relatively minor ones) than any private firm lawyer would have available or would charge the client for. As a result there would be numerous "Hail Mary" pleas in bar of trial thrown out at the beginning of each trial. It's still that way and is a by-product of the fact that we have so few trials and so many lawyers involved in prosecutions and defence that each prosecutor and defending officer a) has a very low case load (really, it's a tiny, tiny fraction of what civilian prosecutors and defence counsel have); and therefore b) can spend an inordinate amount of time spinning legal arguments up the wazoo.

It's purely my guess that the s 130 application in this case was exactly one of those things that probably nobody, including the DDCS defending officers, expected to actually succeed.

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Offline dapaterson

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Re: CMAC: NDA s. 130(1)(a) violates Charter right to jury trial
« Reply #42 on: March 26, 2019, 20:45:56 »
I seem to recall that a similar motion had been rejected multiple times in the past by other courts.
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Re: CMAC: NDA s. 130(1)(a) violates Charter right to jury trial
« Reply #43 on: March 26, 2019, 21:40:02 »
I seem to recall that a similar motion had been rejected multiple times in the past by other courts.

Yup. There had been several such pleas in bar at the court martial level in the past (I'm not going to hunt them down). The Royes decision was (IMHO) a definite rejection of the argument by the CMAC. At the CMAC level there has been the Dery case (including the Stillman case and several others all heard together with Dery) which was decided subsequent to Royes  The leading cases are discussed in the Beaudry decision itself:

https://decisions.cmac-cacm.ca/cmac-cacm/cmac-cacm/en/item/344716/index.do

Also see the Dery decision:

https://decisions.cmac-cacm.ca/cmac-cacm/cmac-cacm/en/item/231524/index.do

As well as that of Stillman whose case was also heard by the SCC together with the Beaudry appeal:

https://decisions.cmac-cacm.ca/cmac-cacm/cmac-cacm/en/item/363697/index.do?q=stillman

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