Author Topic: Sexual assault charges stayed as questions of independence rock military justice  (Read 3898 times)

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Offline QV

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And deal with “minor” service offenses with administrative measures and exclusively with summary trials?

Not challenging.  Just asking your POV on this.

Yes.  I'd want the CO to be able to deal with minor service offences immediately.  A trooper is insubordinate or late they get marched in that day, there is either a good reason or a punishment forthcoming immediately.  I think that is very important for the maintenance of good order and discipline.

Online Remius

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Yes.  I'd want the CO to be able to deal with minor service offences immediately.  A trooper is insubordinate or late they get marched in that day, there is either a good reason or a punishment forthcoming immediately.  I think that is very important for the maintenance of good order and discipline.

So then remove the option for CM for those specific offenses that allows for that option.
Optio

Offline QV

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So then remove the option for CM for those specific offenses that allows for that option.

Sure.

Offline Jarnhamar

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So then remove the option for CM for those specific offenses that allows for that option.

Bad idea.

Seen a unit try to railroad a guy for a few imagined offenses. They basically wanted to send a message. He surprised everyone and opted for court martial (someone may have suggested it  :whistle: ).  Unit tried to talk him out of it including trying to change the charges to non-electable ones and even had the padre try to talk him out of it.

Had he went with a summary trial he surely would have been found guilty and punished. Court martial found him not guilty and the chain of command from sgt to CO hammered by higher for the glaring unethical behavior.

Court martials have a benefit of airing dirty laundry that some units like to hide.
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Online Remius

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Bad idea.

Seen a unit try to railroad a guy for a few imagined offenses. They basically wanted to send a message. He surprised everyone and opted for court martial (someone may have suggested it  :whistle: ).  Unit tried to talk him out of it including trying to change the charges to non-electable ones and even had the padre try to talk him out of it.

Had he went with a summary trial he surely would have been found guilty and punished. Court martial found him not guilty and the chain of command from sgt to CO hammered by higher for the glaring unethical behavior.

Court martials have a benefit of airing dirty laundry that some units like to hide.

So then send those to civilian court? 

This whole thing will be a mess. 
Optio

Offline Jarnhamar

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So then send those to civilian court? 

This whole thing will be a mess.


What would happen when civilian courts start seeing nefarious items show up on court documents like 45 seconds late for work, swearing at their boss, wasn't wearing a hat while pumping gas, or rain jacket without gloves  :Tin-Foil-Hat:

I'm not sure is those are electable off the top if my head, I don't know much about this topic. It's really interesting though.

We have sexual assault trials being stayed, pretty big deal especially in light of Op Honour. Has General Vance chimed in about all of this yet?
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Offline daftandbarmy

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Bad idea.

Seen a unit try to railroad a guy for a few imagined offenses. They basically wanted to send a message. He surprised everyone and opted for court martial (someone may have suggested it  :whistle: ).  Unit tried to talk him out of it including trying to change the charges to non-electable ones and even had the padre try to talk him out of it.

Had he went with a summary trial he surely would have been found guilty and punished. Court martial found him not guilty and the chain of command from sgt to CO hammered by higher for the glaring unethical behavior.

Court martials have a benefit of airing dirty laundry that some units like to hide.

That's why I'd elect trial by CM in the event I was accused of not inspecting the latrines ;)

https://www.youtube.com/watch?v=IMoFlaEcKoM
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Offline FJAG

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Veering back to the issue at hand... What is the desired end point for the Military Judges? How will they be able to reconcile their judicial independence, with their military service? They have to be subordinate to someone, otherwise what's the point in having uniform judges in the first place?
...

The short answer is that by having been serving legal officers, military judges have gained knowledge and experience in military law and the military in general which a civilian judge wouldn't have. That plays a significant role at the trial level while at the appeal level the issue is much more legal concepts that most any appellate judge could master, but even there there is one justice who is appointed Chief Justice for a number of years to provide some consistency and management to the CMAC.

That actually raised an interesting point for me. This whole thing went off the rails because the senior judge was the accused. But let's pretend the CDS goes off the rails and commits an offence. Who is he responsible to in the chain of command? The CDS, like the JAG, is a GiC appointment. The JAG reports to the Minister and is responsible to him (NDA s 9.1(3)). I've never given it any thought before all this but how would you go about disciplining the CDS or the JAG?

Not sure if this is an actual gap (like the Chief Judge) or whether I just don't know the answer.

 ???
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Offline Jarnhamar

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Does staying court martial proceedings mean someone is essentially off the hook/not guilty?
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Offline FJAG

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Does staying court martial proceedings mean someone is essentially off the hook/not guilty?

No. Technically it's more of a suspension or halting of the proceedings. The court can always lift a stay of proceedings and carry on with the trial process. In most, but not all, cases, however, it practically means the case has been terminated indefinitely and is not brought back. There is neither a finding of guilty nor not guilty.

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Offline ModlrMike

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This whole thing went off the rails because the senior judge was the accused.

Right, but his alleged offence had nothing to do with any decisions from the bench, therefore no conflict arises. The challenge of course comes in asking who is going to hear the case, when every other judge is subordinate to the accused. That question is far more complex, and you've accurately identified the accompanying question of who hears a case against the CDS.

What I don't understand, how does being subordinate to someone for matters of discipline and leadership equal judicial interference? Again, I look to the Medical Branch as an example of how decisions regarding purely medical matters are not interfered with by the chain of command, other than by more senior or expert medical personnel.
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Offline PuckChaser

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Looking at this with only a rudimentary view of the NDA and CMs (although I did stay at a Holiday Inn was an orderly at a GCM once), the issue seems to me that if military judges are subject to CSD, then they would be subject to NDA 83 "Disobedience of a lawful command" which could mean the VCDS/CDS could issue an order for certain findings for certain charges thereby removing their impartiality? If so, isn't the simple fix to make a provision in the NDA that any order to a military judge in relation to findings of guilt/sentencing is inherently unlawful which would remove that outside influence into the court?

Offline ModlrMike

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I suppose they could, but then I suppose the order could be considered illegal. It would be an extremely foolish officer who ordered a CF judge to produce a specific finding.
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Offline FJAG

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What I don't understand, how does being subordinate to someone for matters of discipline and leadership equal judicial interference? Again, I look to the Medical Branch as an example of how decisions regarding purely medical matters are not interfered with by the chain of command, other than by more senior or expert medical personnel.

Being subordinate to someone does not equal "judicial interference" it equals "lack of judicial independence". There is a subtle difference. "Judicial interference" means there is an act of interference while "judicial independence" means a state of being where acts of judicial interference by the executive cannot happen. In Canada judicial independence has been described in Valente v. R as:

Quote
The Court gave three requirements for judicial independence within the meaning of section 11(d) of the Charter. There must be 1) security of tenure, 2) financial security, and 3) institutional independence in administrative matters relevant to the functioning of the judge.


Wikipedia

Basically the term of service and salary are set by parliament in statute and cannot be interfered with by the executive. The third is a more difficult concept which can be simplified into:

The Executive must not interfere with, or attempt to influence the adjudicative function of the judiciary. However, there must necessarily be reasonable management constraints. At times there may be a fine line between interference with adjudication and proper management controls.

I understand your point about medical personnel but to put it in a nutshell, the medical branch is within the chain of command and does not have any requirements for or guarantees of independence under the Charter of Rights and Freedoms. In other words the "independence" of the medical branch extends only so far as legislation subordinate to the Charter or regulations or directives or orders made by the executive permits. Those could change on a dime.

Just as an example, QR&O 34.011 provides:

Quote
34.011 – RESPONSIBILITIES OF MEDICAL OFFICERS
The senior medical officer at all levels of command is the responsible adviser to the senior officer exercising the function of command or executive authority on all matters pertaining to the health and physical efficiency of all personnel under his jurisdiction.

(C)

Note the provision as an "advisor" and note the authority for the order is (C) i.e. the CDS. I frankly haven't read through the myriad of provisions of references as to medical care but I seriously doubt if the "independence" of the medical officer is anywhere near the same level as prescribed by the Charter for judges.

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Offline Kilted

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Could we not have judges release from the forces when they are appointed as a judge and carry on an afiliation similar to an HCol, but are still a civilian and not under the CDS, but have the expertise to perform the job. 

Offline FJAG

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Could we not have judges release from the forces when they are appointed as a judge and carry on an afiliation similar to an HCol, but are still a civilian and not under the CDS, but have the expertise to perform the job.

There are literally dozens and dozens of options open. The question is how to proceed and to what extent the issue is being worked on within JAG.

You may recall that the previous JAG started a strategic project called the Court Martial Comprehensive Review. A draft report was issued in July of 2017.

Incidentally, for any of you that want to read further into the theory and the whyfors and the whatfors  of the military justice system as it operates in Canada, this is definitely the document to give it to you. Warning it's 311 pages long even without the annexes.

Unfortunately in her 2018 report to Parliament, the JAG reported:

Quote
A draft CMCR report was provided to the Judge Advocate General in July 2017. In large part due to challenges related to methodology and a paucity of metrics and analytics, the document was of limited assistance in assessing the current court martial system. The draft internal report will therefore serve as a discussion paper. It offers perspectives that may be taken into account following receipt of the Auditor General’s report, the report of the next independent review authority along with other internal and external consultations on the military justice system. The Judge Advocate General published the draft CMCR report on 17 January 2018 and has communicated publicly her decision that the CMCR project has reached its conclusion.18

I haven't heard anything since as to what is happening and as to whether or not DJAG Mil Just has been working on a replacement this project. There certainly have been numerous developments since July 2017 that need consideration.

 :cheers:
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Offline dapaterson

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I suspect DJAG Mil is more concerned right now with implementing C77 - actual will and direction of government.  (Then again, a prior JAG displayed his disdain for the law by refusing to report as required by the NDA, so who knows what machinations go on in the Legal Branch - sort of like the Mafia, but with out the honour code).
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Offline ModlrMike

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OK, if we're going to hold Valente v. R as the benchmark, then there's a direct comparison to the CF. There are very similar structural components between provincial court judges and military judges. Enough to say that in this context, military judges are independent IMHO..

From the same article:

"Finally, the Court turned to administrative independence. The Supreme Court noted the provincial courts already independently decided which judges should hear what cases. Those who questioned the independence of the provincial courts suggested the courts should also gain more control over their budgets, salaries and how judges are promoted. The Supreme Court replied more independence may be "highly desirable," but it was not "essential for purposes of s. 11(d)."

I don't see how there's an 11(d) violation in the current JAG construct. That being said, perhaps an amendment to the NDA that states something like:

"No officer who is not a Legal Officer may advise, instruct, or direct a Legal Officer in the conduct, adjudication, or findings of any court or tribunal. An officer acting as an expert witness before the court may provide advice without contravening this article."

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Offline FJAG

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I suspect DJAG Mil is more concerned right now with implementing C77 - actual will and direction of government.  (Then again, a prior JAG displayed his disdain for the law by refusing to report as required by the NDA, so who knows what machinations go on in the Legal Branch - sort of like the Mafia, but with out the honour code).

I can always count on you. 

https://www.youtube.com/watch?v=Uy8KMEOkxyo

;D

...
I don't see how there's an 11(d) violation in the current JAG construct. That being said, perhaps an amendment to the NDA that states something like:

"No officer who is not a Legal Officer may advise, instruct, or direct a Legal Officer in the conduct, adjudication, or findings of any court or tribunal. An officer acting as an expert witness before the court may provide advice without contravening this article."

Initially the judges just declared the order "null and void", yet people keep gnawing on this bone.

As I said above, there are dozens of ways to fix this. I sometimes think that the problem is that with free legal advice and a defence bar that has each lawyer only dealing with a dozen trial cases or so a year, there is plenty of time to think up new and novel arguments to run up the flagpole to see if they wave (or more properly: throw at the wall to see if they stick). On civvy street no one has any time or resources to spend on some of the rinky dink cases that get dealt with at CMs. They get pled out very quickly. Only the most serious cases receive this level of effort.

:worms:
« Last Edit: October 06, 2020, 16:44:09 by FJAG »
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Offline daftandbarmy

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And deal with “minor” service offenses with administrative measures and exclusively with summary trials?

Not challenging.  Just asking your POV on this.

You mean like allowing, and strongly supporting, the CO to run their own disciplinary programs to immediately (summarily) punish a variety of transgressions by throwing the guilty b&stards in the battalion jail and, as a result, restoring faith in the military justice system while more effectively incenting everyone to behave themselves?

I’d be shocked ...
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Offline QV

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You mean like allowing, and strongly supporting, the CO to run their own disciplinary programs to immediately (summarily) punish a variety of transgressions by throwing the guilty b&stards in the battalion jail and, as a result, restoring faith in the military justice system while more effectively incenting everyone to behave themselves?

I’d be shocked ...

Don't forget charge parade where the guilty b&stards are inspected, marched around, and drilled every couple of hours with all their kit by the duty Sgt over the weekend.   

Offline Target Up

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Don't forget charge parade where the guilty b&stards are inspected, marched around, and drilled every couple of hours with all their kit by the duty Sgt over the weekend.   

That's called SOL/CB/EW&D/defaulters, and I wasn't aware that it's no longer a thing.
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Offline FJAG

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You mean like allowing, and strongly supporting, the CO to run their own disciplinary programs to immediately (summarily) punish a variety of transgressions by throwing the guilty b&stards in the battalion jail and, as a result, restoring faith in the military justice system while more effectively incenting everyone to behave themselves?

I’d be shocked ...

There's been a very strong movement for quite some time to limit who in the mil justice system can impose penal sanctions. That has been whittled away to a CO imposing 30 or less days detention and a delegated officer 14 or less. Bill C-77 seeks to eliminate that.

I cannot see the legal arguments for that and quite frankly I know of no case where a service member has gone to the Fed Court on a habeas corpus application to have the punishment declared ultra vires. There is no limitation in section 11 of the Charter of Rights and Freedoms that mandates this. The only body of law that I know of which limits penal punishments are when we delve into administrative law where the closer you come to an administrative hearing that includes restrictions on liberty, the more the process has to become quasi judicial in nature.

IMHO, COs are vested with the power to order people into combat situations where they might very well die. To say that in our disciplinary system a CO can't be trusted to run a fair trial whereby a convicted soldier might be sent to jail just seems downright silly stupid to me. Our penchant for risk aversion has made us scared of our own shadows.

I'm not sure how long Bill C-77 has been in the works, but I've got a pretty good idea which JAG and which CDS has signed off on it.

 :facepalm:
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