Author Topic: Court Martial discussion (merged)  (Read 79366 times)

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Offline ArmyVern

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Re: Court Martial discussion (merged)
« Reply #50 on: February 02, 2011, 22:56:18 »
...

Can't be that, as that would be related to spouse's residence and not employment status, right?
...

You'll see by the link to the Court Martials and Appeals site that his CM is taking place in Halifax. From the original post we get the notice that he failed to inform his CoC that his spouse had obtained employment in Halifax.

If he was claiming IR saying she was living elsewhere, how come she can travel to work in the same town as he works in but he can't? If her employment is full-time, then why the requirement for seperate residences? Or, is she even travelling from the location of their principal residence ... or staying with him in his IR accommodations (ie they are now residing in the same residence even though it may not be the principal residence) ...

Either of the above would also fall within the scope of the quoted ref requiring notification to the CoC as they impact eligibility/entitlement to benefits.

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Offline clericalchronicals

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Re: Court Martial discussion (merged)
« Reply #51 on: February 03, 2011, 08:25:31 »
The only benefit which is derived from a spouse's employment would be Imposed Restriction, which is now Temporary Relocation/Separation Allowance (TR/SA for shorthand).  The CBI indicates that a member is entitled for a number of reasons, with approval from their respective CM.  One of the foremost reasons: Due to spousal employment in the previous geographical location.

So, easily enough said, sounds like the guy started TR/SA citing his spouse's employment in the former posting location, and when she did finally get employment in Halifax, the member continued to claim the TR/SA.  Dangerous game to be honest.  Guess he lost.

It's one of those benefits that DCBA keeps their eye on, ALL the time.

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Re: Changes to NDA Re: Courts Martial
« Reply #52 on: October 07, 2011, 15:51:42 »
A bump adding the very latest legislation introduced in the House of Commons:
Quote
The Honourable Peter MacKay, Minister of National Defence, introduced two bills in the House of Commons today which propose significant amendments to the National Defence Act. The legislation reflects recommendations made by a former Chief Justice of the Supreme Court of Canada, as well as the Standing Senate Committee on Legal and Constitutional Affairs and the Court Martial Appeal Court of Canada (CMAC).

(....)

The proposed Security of Tenure of Military Judges Act responds to a June 2011 CMAC decision which found that the current provisions of the National Defence Act (NDA) and Queen’s Regulation and Orders for the Canadian Forces do not sufficiently satisfy the constitutional requirements of judicial independence. The proposed legislation is also consistent with recommendations made in 2003 by the late Right Honourable Antonio Lamer, former Chief Justice, following his independent review of the NDA.

The proposed Strengthening Military Justice in the Defence of Canada Act reflects a series of recommendations made by former Chief Justice Lamer, as well as those made in May 2009 by the Standing Senate Committee on Legal and Constitutional Affairs.

(....)

The amendments proposed in the two bills will:
  • Further enhance the independence of military judges;
  • Expressly provide in legislation the purposes, principles and objectives of sentencing in the military justice system;
  • Expand the pool of Canadian Forces members eligible to serve on a court martial panel;
  • Provide for additional sentencing options, including absolute discharges, intermittent sentences and restitution orders, as well as the ability to submit victim impact statements at courts martial;
  • Improve the efficiency of the grievance and military police complaints processes; and
  • Establish the position of the Canadian Forces Provost Marshal in legislation and specify the Provost Marshal’s responsibilities.

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Offline dapaterson

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Re: Changes to NDA Re: Courts Martial
« Reply #53 on: October 07, 2011, 18:25:07 »
Military judges decided that it wasn't plausible for themselves to return to service as military lawyers, and cooked up the "Oh no!  I have no security of tenure" claim.

Spurious logic to secure themselves large paycheques and the resultant large pensions.
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 ArmyVern

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Re: Court Martial discussion (merged)
« Reply #54 on: May 03, 2012, 17:38:39 »
Confirmed.  I was busted down to Cpl last year from Sgt.  It hurt.  But they couldn't hold me down for long!!

 ;)

Good job.

I see that the March CM results of my P2 from theatre are now posted up too. Never let anyone tell you to:  "Elect the CM; they'll never Court Martial you on 129s". Absolutely false.
« Last Edit: May 03, 2012, 17:42:17 by ArmyVern »
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Re: Court Martial discussion (merged)
« Reply #55 on: May 03, 2012, 23:58:16 »
I see that the March CM results of my P2 from theatre are now posted up too. Never let anyone tell you to:  "Elect the CM; they'll never Court Martial you on 129s". Absolutely false.

And the powers of punishment are far greater with a CM. Much better to own up to screwing up at a SM, unless you're not guilty of course.

Offline Bzzliteyr

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Re: Court Martial discussion (merged)
« Reply #56 on: May 04, 2012, 10:19:41 »
And the powers of punishment are far greater with a CM. Much better to own up to screwing up at a SM, unless you're not guilty of course.

Ha, and I completely think the opposite.  I was busted down to Cpl on a summary trial.  Had I opted for the Court Martial (ooh, cringe in fear of those words, NOT) then the powers of punishment would have been far greater (life in prison) BUT the fact that it is a completely JUST process (neutral as in they use the facts and no prior chatting in the mess the night before the trial) would have resulted in a far lesser punishment.

In a CM, the judge is neutral and only looks at fact, the lawyers are neutral and look out for the best interests of their clients and the lawyers don't only fight for the sentencing decision, they debate and decide the punishment as well, using precedences, career history, etc.

Unless the charge is silly and you were caught completely red handed, opt for the CM.  (but even then, the lawyers do their jobs and can find technicalities, obscure laws and other examples to help you win).

Just my 2 cents.
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Offline Remius

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Re: Court Martial discussion (merged)
« Reply #57 on: May 04, 2012, 10:28:50 »
Ah barracks room lawyering...
Optio

Offline Eye In The Sky

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Re: Court Martial discussion (merged)
« Reply #58 on: May 04, 2012, 11:18:24 »
Ha, and I completely think the opposite.  I was busted down to Cpl on a summary trial.  Had I opted for the Court Martial (ooh, cringe in fear of those words, NOT) then the powers of punishment would have been far greater (life in prison) BUT the fact that it is a completely JUST process (neutral as in they use the facts and no prior chatting in the mess the night before the trial) would have resulted in a far lesser punishment.

In a CM, the judge is neutral and only looks at fact, the lawyers are neutral and look out for the best interests of their clients and the lawyers don't only fight for the sentencing decision, they debate and decide the punishment as well, using precedences, career history, etc.

Unless the charge is silly and you were caught completely red handed, opt for the CM.  (but even then, the lawyers do their jobs and can find technicalities, obscure laws and other examples to help you win).

Just my 2 cents.

Also, the rules of evidence are significantly different in a ST and CM; something admissable at ST may not be at a CM. 
Everything happens for a reason.

Sometimes the reason is you're stupid and make bad decisions.

Offline Bzzliteyr

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Re: Court Martial discussion (merged)
« Reply #59 on: May 04, 2012, 11:29:19 »
Ah barracks room lawyering...

Not barracks room lawyering at all.. fact.  I was slated for a CM last year when the charges were dropped due to a technicality my lawyer found.  My regiment fixed it and relaid the charges a weeka later.  I was invited into a an office and chatted with.  I subsequently chose ST for the next round of fun and got hit, hard.  Demotion to Cpl from Sgt is not only a financial hit but a HUGE psycholigcal one as well. 

After my lawyer from the CM heard about the decision, I was encouraged to put in a "request for review of decision and sentence" in regards to the ST.  My lawyer suggested that had the case gone to CM, the sentence would have been much less than that and if we looked at precedence it may have come out at around $1000ish dollars.  Instead, The review was found in my favour, I was returned my rank on parade and given a $2500 fine with reprimand.

No barrack room lawyering here.
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Offline Remius

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Re: Court Martial discussion (merged)
« Reply #60 on: May 04, 2012, 11:48:06 »

Unless the charge is silly and you were caught completely red handed, opt for the CM.  (but even then, the lawyers do their jobs and can find technicalities, obscure laws and other examples to help you win).

Just my 2 cents.

This statement right here.  That is barracks room lawyering, not fact.

 Your particular case is fact.  Everyone's is different.
Optio

Offline Bzzliteyr

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Re: Court Martial discussion (merged)
« Reply #61 on: May 04, 2012, 11:52:17 »
This statement right here.  That is barracks room lawyering, not fact.

 Your particular case is fact.  Everyone's is different.

Okay, you got me there. 

However as a leader that has been down that route the first thing I recommend to a solider is to call the 1-800 legal counsel hotline, then I tell them of my experience and how it went with the same caveat you just wrote: individual experiences may vary.

I just hate the fear we instill in everyone that a court martial is the scariest thing out there when it is actually the most just trial you can be a part of.

*edited to add final argument.

« Last Edit: May 04, 2012, 11:54:59 by Bzzliteyr »
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Offline dogger1936

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Re: Court Martial discussion (merged)
« Reply #62 on: May 04, 2012, 12:21:20 »
Okay, you got me there. 

However as a leader that has been down that route the first thing I recommend to a solider is to call the 1-800 legal counsel hotline, then I tell them of my experience and how it went with the same caveat you just wrote: individual experiences may vary.

I just hate the fear we instill in everyone that a court martial is the scariest thing out there when it is actually the most just trial you can be a part of.

*edited to add final argument.

I fully agree. When I was threatened with a trumped up charge that was not valid in the least that 1 800 number was a godsend. Having issued cautions and done investigations many many times. I knew they messed up the process totally and that being denied legal aide and not getting read a caution was a little.....messed up to say the least.  Within 5 minutes of talking to a surprisingly excited high ranking officer; my mind was set at ease that I had nothing to worry about.


If I messed up in a black and white area I would go summary and take the punishment as expected and deserved. However after being on the fun side of a trumped up attempt to charge I would go court marshal in a second.
Congrats on getting the rank back.

Offline ArmyVern

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Re: Court Martial discussion (merged)
« Reply #63 on: May 04, 2012, 20:38:52 »
Ha, and I completely think the opposite.  I was busted down to Cpl on a summary trial.  Had I opted for the Court Martial (ooh, cringe in fear of those words, NOT) then the powers of punishment would have been far greater (life in prison) BUT the fact that it is a completely JUST process (neutral as in they use the facts and no prior chatting in the mess the night before the trial) would have resulted in a far lesser punishment.

In a CM, the judge is neutral and only looks at fact, the lawyers are neutral and look out for the best interests of their clients and the lawyers don't only fight for the sentencing decision, they debate and decide the punishment as well, using precedences, career history, etc.

Unless the charge is silly and you were caught completely red handed, opt for the CM.  (but even then, the lawyers do their jobs and can find technicalities, obscure laws and other examples to help you win).

Just my 2 cents.

Well, to be fair, yours was very "special" and some more off factors were involved --- ergo the favourable follow-ups to your particular process. Not quite "normal" was yours.

I've done more than a few DIs; I never discuss with my OC, CO or higher. They are aware that I am doing one - that's it. I make them aware when I submit to the JAG reps. Their first hint of details and facts surrounding the DI occurs when they see that file back from the JAG. The particular PO authority reads and decides how/if they wish to proceed. I haven't had one, to date, ask me what I'd like them to do, what I think the outcome should be, what I think a fine or punishment should be upon their determining someone guilty etc.

Once they have that file, my job is simply to march X in to be RDPd (if the PO decides to proceed), march X back in for election, march X back in for CM or ST; and, I haven't had a single one expect anything different of me. I did my job. They did theirs.
« Last Edit: May 04, 2012, 20:42:11 by ArmyVern »
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Offline TN2IC

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Re: Court Martial discussion (merged)
« Reply #64 on: May 04, 2012, 21:30:34 »
What's this 1-800 number for references?

PM me if needed.

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Re: Court Martial discussion (merged)
« Reply #65 on: May 04, 2012, 21:32:29 »
What's this 1-800 number for references?

PM me if needed.

http://www.forces.gc.ca/jag/ddcs-dsad/index-eng.asp

Quote
Duty telephone numbers

For legal advice on your right to counsel on arrest
or interrogation by the police: 1-613-292-2137

For legal advice on summary trials and elections:
1-888-715-9636 or in Ottawa: 613-997-8985 

Offline garb811

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Re: Court Martial discussion (merged)
« Reply #66 on: May 05, 2012, 18:44:56 »
Point to note, and it is probably self evident to most, these numbers are only for use if there is a military nexus to the investigation/arrest etc.  If you get arrested by the civilian police, call a civie lawyer or use the civilian legal aid number.

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Re: Court Martial discussion (merged)
« Reply #67 on: May 07, 2012, 13:49:46 »
Just breaking out the Court Martial discussion into Military Admin.

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Court Martial Appeal Decision / Process
« Reply #68 on: September 29, 2013, 00:22:04 »
I've tried googling and searching but I can't seem to understand -

What is the court martial appeal process (how long does it take, the process, steps)

What does it mean when a decision is "reserved" (for a hearing that just happened).

Offline JesseWZ

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Re: Court Martial Appeal Decision / Process
« Reply #69 on: September 29, 2013, 01:29:55 »
I am sure FJAG will be along shortly regarding your first question.
As for your second question, typically when a judge reserves a decision, it means he has not made a decision yet and has set aside a time to deliver the decision at a future date. Often times there are a number of complex legal issues a judge must weigh out (case law, arguments by both, evidence, etc) in order to render a "decision" or a verdict. Because of that, often the judge cannot just pull one out of the air, and thus a decision gets reserved for a future date.

In this case, google is your friend.
http://en.wikipedia.org/wiki/Reserved_decision
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Offline FJAG

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Re: Court Martial Appeal Decision / Process
« Reply #70 on: September 29, 2013, 02:48:55 »
Hi.

JesseWZ hit the nail on the head re a "reserved decision" so I'll just deal with the first question.

The process for appeals is set out in the National Defence Act as part of the Code of Service Discipline at Division 9 starting at section 228. You'll find that here: http://laws-lois.justice.gc.ca/eng/acts/n-5/page-103.html#h-152

The Court Martial Appeal Court of Canada has a website. The site provides information on the court and its past decisions. One very important element set out there are the CMAC's Rules which you can find here: http://www.cmac-cacm.ca/business/rules/rules_full_e.shtml

In short, the CMAC is a court which has both a designated Chief Justice and an administrator and staff and is co-located with the Federal Court in Ottawa. Besides the CJ there are judges designated from the Federal Court of Appeal and the Courts of Appeal of the various provinces to sit as appeal judges. A panel is generally of three judges although individual judges can hear motions or applications.

The procedures can vary depending on what needs to be addressed and a full explanation would be lengthy and complex, but in its simplest terms and appeal generally runs like this.

1.
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Offline ArmySailor

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Re: Court Martial Appeal Decision / Process
« Reply #71 on: September 29, 2013, 10:38:29 »
I am sure FJAG will be along shortly regarding your first question.
As for your second question, typically when a judge reserves a decision, it means he has not made a decision yet and has set aside a time to deliver the decision at a future date. Often times there are a number of complex legal issues a judge must weigh out (case law, arguments by both, evidence, etc) in order to render a "decision" or a verdict. Because of that, often the judge cannot just pull one out of the air, and thus a decision gets reserved for a future date.

In this case, google is your friend.
http://en.wikipedia.org/wiki/Reserved_decision

D'oh - not sure how my google fu missed that. Thanks Jesse and FJag. Makes more sense now :)

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Re: Court Martial Appeal Decision / Process
« Reply #72 on: September 29, 2013, 11:17:21 »
I note my above post ends with the number 1. When I typed it last night there was a lot more to it. When you first saw my post was there more or did it stop there right from the beginning????

If it was cut off before, I'll try to retype what I had said.

 :stars:
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Re: Court Martial Appeal Decision / Process
« Reply #73 on: September 29, 2013, 12:48:06 »
Meh. My guess is it got cut off so here goes again.

The basic process works like this:

1.  The person who feels that the court martial made an error (either as to conviction or as to sentence) will initiate the process by filing a Notice of Appeal which sets out a very brief statement of the error(s) that the court is alleged to have committed.

2.  All other parties to the proceedings are called Respondents. Once served with a NofA, the respondents who intend to contest the appeal will file a Notice of Appearance. In addition if a respondent also wishes to challenge the court below, that respondent will also file a cross-appeal.

3.  Once served by a NofA and/or cross-appeal the administrator of the Office of the Chief Military Judge (one of whose judges will have conducted the court martial) will file a Memorandum of Particulars and subsequently the Record of the court martial and an Appeal Book. These include, amongst other things, the original charge sheet, any evidence filed in the trial, a transcript of the proceedings, disposition and orders made.

4.  The appellant shall file a Memorandum of Fact and Law (also called Factum) which includes a detailed argument as to how the court allegedly erred including direct references to the transcript, evidence filed and any relevant case law.

5.  Each respondent shall file a Memorandum of Fact and Law as to their detailed arguments etc.

6.  Where a respondent has filed a cross-appeal and set out arguments in support of that, the Appellant may file a Memorandum in Reply.

7.  The appellant will file a Request for Hearing and the CMAC Chief Justice shall assign judges to hear the appeal and the administrator shall set a date for hearing.

In general for a run-of-the-mill appeal all of the above takes about nine months.

The hearing of an appeal will generally be a half day or a full day at best. Except in very rare circumstances, there is no new evidence presented before the court. The hearing consists solely of oral presentations by the parties lawyers as to the merits of their case and questions from the bench to the lawyers to seek clarifications.

The following my occur:

1.  If the appeal is a weak one the court may choose to render a decision dismissing the appeal after hearing only the appellant. (the sweetest words a respondent's lawyer can hear at an appeal is "We don't need to hear from you Major Bloggins")

2.  Again, where the appeal is weak, the court may hear from the respondent and at the end just adjourn for a brief time and then come back and dismiss the appeal from the bench with very short oral reasons.

3.  Where the appeal is more complex and/or the court wishes to give detailed reasons for its decisions, the court will "reserve" and will issue a written decision and reasons. Typically this takes one two two months but could be longer.

The above is a typical process. Matters can be much more involved where there are applications for leave to appeal, motions, applications for bail pending appeal, a need to involve the Attorney General's office where there are constitutional issues etc.

Once you've reviewed this as well as the reference material I'd be happy to answer any further questions you might have.

 :cheers:
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Offline Mediman14

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Court Martial
« Reply #74 on: March 01, 2015, 17:22:48 »
 Hi there,
 Can anyone answer this question, as I am unable to find a answer to this in any Pubs. Does Court Martials usually have time frames for charging anyone? According to one of Jag Policies, it basically says that Mbrs have the right to go through the process exponentially. But it doesn't say any given time lines.