Application of the CODE OF SERVICE DISCIPLINE to Reservists

[Lumber]

Hypothetical scenario:

CO of a Reserve unit decides, after checking with AJAG, to charge a Class A reservist under seciton ### of the NDA.

Class A reservist is at home and decides to not go to his Summary Trial.

Can the member be further charged for not attending his summary trial? He's not on duty, not on a defence establishment, not undergoing drill or training, and not in uniform [NDA 60 (c)].

If he simply refuses to show up, is the worst that we can do release him under 5F? Can he literally dodge being charged by just not showing up?

 

[mariomike]

For reference,

The Code of Service Discipline and Me
http://www.forces.gc.ca/en/about-reports-pubs-military-law/code-of-service-discipline.page

 

[FJAG]

Hypothetical scenario:

CO of a Reserve unit decides, after checking with AJAG, to charge a Class A reservist under seciton ### of the NDA.

Class A reservist is at home and decides to not go to his Summary Trial.

Can the member be further charged for not attending his summary trial? He's not on duty, not on a defence establishment, not undergoing drill or training, and not in uniform [NDA 60 (c)].

If he simply refuses to show up, is the worst that we can do release him under 5F? Can he literally dodge being charged by just not showing up?

I've never heard of anyone trying to dodge a summary trial by not showing up and think anyone contemplating this is displaying the height of stupidity but you should be aware of two things:

1. Under QR&O 108.20(1) an accused (and his assisting officer) MUST brought before the trial officer in order for the trial to proceed. There are no trials in absentenia; and

2. QR&O 105 deals with the powers of arrest and simply put, the NDA which grants these powers deal with "any person" not just a person subject to the CSD at the time of arrest. Basically if a person was subject to the CSD at the time of the offence and has been charged, he may be arrested, placed in custody and brought before the trial officer, whether or not he is subject to the CSD at the time of arrest.

To fully answer this question I would say that there probably wouldn't be another charge for failing to attend because, as you point out, in all probability the individual would not be subject to the CSD at the time he fails to attend the trial.

:subbies:

 

[mariomike]

Basically if a person was subject to the CSD at the time of the offence and has been charged, he may be arrested, whether or not he is subject to the CSD at the time of arrest, and brought before the trial officer.

See also,

What about after I have left the CF?

It is possible that you can be charged or arrested even if you have ceased to be subject to the CSD (eg. after your release from the CF), as long as you were subject to the CSD at the time you allegedly committed a service offence.

From The Code of Service Discipline and Me.

 

[FJAG]

See also,

What about after I have left the CF?

It is possible that you can be charged or arrested even if you have ceased to be subject to the CSD (eg. after your release from the CF), as long as you were subject to the CSD at the time you allegedly committed a service offence.

From The Code of Service Discipline and Me.

Note that a summary trial MUST be commenced within one year of the date that the service offence has been alleged to be committed. (NDA 163(1.1)). Commencing a summary trial starts when the accused is first brought before the trial officer. A CO/delegated officer loses jurisdiction if the trial is not commenced within that year.

:subbies:

 

[Lumber]

2. QR&O 105 deals with the powers of arrest and simply put, the NDA which grants these powers deal with "any person" not just a person subject to the CSD...

"155. (3) Every person who is not an officer or non-commissioned member but who was subject to the Code of Service Discipline at the time of the alleged commission by that person of a service offence may, without a warrant, be arrested or ordered to be arrested by such person as any commanding officer may designate for that purpose."

So,

We could then, in theory, send the police/MPs to arrest a Class A reservist who has been charged with Insubordination.

Would the Class A member then get paid starting at the time he was placed in custody? Nothing like getting paid for getting arrested.

 

[mariomike]

Note that a summary trial MUST be commenced within one year of the date that the service offence has been alleged to be committed. (NDA 163(1.1)). Commencing a summary trial starts when the accused is first brought before the trial officer. A CO/delegated officer loses jurisdiction if the trial is not commenced within that year.

See also,

Limitation periods

A limitation period is a specified period of time within which a charge must be laid. In general, the limitation period begins the instant conduct occurs that may be subject to a charge. If a charge is not laid within the applicable limitation period, the authority to try the accused for the offence charged is lost. Generally there are no limitation periods under the CSD.

With respect to service offences, the general rule is that anyone subject to the CSD at the time of the alleged commission of a service offence, can at any time be charged, dealt with, and tried under the CSD. There are two exceptions to this rule:
•If the offence is punishable under National Defence Act sections 130 or 132 (i.e. an offence under another federal statute or foreign law) and would have been subject to a limitation period if it had been dealt with other than under the CSD, then that other limitation period applies
•Summary trials must begin within one year of the date on which the offence is alleged to have been committed. The summary trial does not have to be completed within one year; it only has to begin within that time. A trial begins when the accused is brought before the presiding officer and the presiding officer takes the oath and causes the charges to be read.

From The Code of Service Discipline and Me.

 

[FJAG]

"155. (3) Every person who is not an officer or non-commissioned member but who was subject to the Code of Service Discipline at the time of the alleged commission by that person of a service offence may, without a warrant, be arrested or ordered to be arrested by such person as any commanding officer may designate for that purpose."

So,

We could then, in theory, send the police/MPs to arrest a Class A reservist who has been charged with Insubordination.

Would the Class A member then get paid starting at the time he was placed in custody? Nothing like getting paid for getting arrested.

By the sounds of your hypothetical it sounds like there is a case behind it in which case I would suggest getting your advice from the AJAG/DJA that supports your chain of command.

I should note that I rarely gave advice on financial matters; that'a a BCompt issue. In general terms however the issue that you are concerned with is called forfeiture and as a starting point the regulations are at QR&O 208.30, 208.31 and thereafter.

Note that here is forfeiture of a day's pay for every day one is sentenced to detention/imprisonment but that there is no forfeiture while in "service" custody awaiting trial under 208.30. A reservist brought before a summary trial is, in my view, entitled to a half day's pay (assuming the whole thing is under six hours) as he is performing a military duty for which he was required to attend.

In addition a forfeiture may be ordered by a commander of a command where "no service is rendered" and that might apply to custody awaiting trial. Again I would suggest if anyone is actually considering any of this then talk to your local legal advisors.

Last point. The arrest/custody/trial doesn't need to, nor should it, last long. Pick him up at 0800, convene the trial for 0900 be finished by noon.

:subbies:

 

[dapaterson]

It's no longer on the DWAN, but there is a transcript of R v Byrne out there; he was charged for conduct while on a base while on a period of class B service.  CLass B over.  Court martial convened.  He didn't show up.

The judge ordered him arrested & charged for not showing up.  At that trial, the judge determined that (as written at the time) the NDA did not cover his absence, and therefore the charge for not attending his own court martial was dropped.

 

[Lumber]

By the sounds of your hypothetical it sounds like there is a case behind it in which case I would suggest getting your advice from the AJAG/DJA that supports your chain of command.

There actually isn't a case behind it. I'm just trying to wrap my head around the way the reserves work. For me, there's never been a question. If you have schedule training or exercies, an event, or anything at all and you are expected to attend, YOU ATTEND. Here though, in the Reserves, I am discovering, there are people (albeit it very very few), who just on a whim that even decide "Meh, I just don't feel like going tonight", and there is jack-f*** all we can do about it, even if it's a big event like Remembrance Day. 99% of the people are great though.

 

[dapaterson]

"155. (3) Every person who is not an officer or non-commissioned member but who was subject to the Code of Service Discipline at the time of the alleged commission by that person of a service offence may, without a warrant, be arrested or ordered to be arrested by such person as any commanding officer may designate for that purpose."

So,

We could then, in theory, send the police/MPs to arrest a Class A reservist who has been charged with Insubordination.

Would the Class A member then get paid starting at the time he was placed in custody? Nothing like getting paid for getting arrested.

155(3) refers to non-military personnel subject to the NDA.  A reservist (even on class A) is not non-military.

I think the authority to arrest would be under 154, since the individual has been charged.  If they are avoiding the trial, then 158(d) provides the justification.

154. (1) Every person who has committed, is found committing or is believed on reasonable grounds to have committed a service offence, or who is charged with having committed a service offence, may be placed under arrest.

Marginal note:Reasonably necessary force

(2) Every person authorized to effect arrest under this Division may use such force as is reasonably necessary for that purpose.

R.S., 1985, c. N-5, s. 154;
R.S., 1985, c. 31 (1st Supp.), s. 48;
1998, c. 35, s. 92.

...

Release from custody

158. (1) A person arrested under this Act shall, as soon as is practicable, be released from custody by the person making the arrest, unless the person making the arrest believes on reasonable grounds that it is necessary that the person under arrest be retained in custody having regard to all the circumstances, including

(a) the gravity of the offence alleged to have been committed;

(b) the need to establish the identity of the person under arrest;

(c) the need to secure or preserve evidence of or relating to the offence alleged to have been committed;

(d) the need to ensure that the person under arrest will appear before a service tribunal or civil court to be dealt with according to law;

(e) the need to prevent the continuation or repetition of the offence alleged to have been committed or the commission of any other offence; and

(f) the necessity to ensure the safety of the person under arrest or any other person.


Marginal note:Retention in custody

(2) If an arrested person is to be retained in custody, the person shall be placed in service custody or civil custody. Such force as is reasonably necessary for the purpose may be used.

Marginal noteuty to receive into service custody

(3) The officer or non-commissioned member in charge of a guard or a guard-room or a member of the military police shall receive and keep a person under arrest who is committed to their custody.

Marginal note:Account in writing

(4) The person who commits a person under arrest to service custody shall, at the time of committal, deliver to the officer or non-commissioned member into whose custody the person under arrest is committed a signed account in writing setting out why the person under arrest is being committed to custody.

R.S., 1985, c. N-5, s. 158;
R.S., 1985, c. 31 (1st Supp.), ss. 51, 60;
1998, c. 35, s. 42;
2013, c. 24, s. 29.

As for pay, the entitlement is from QR&O 203.065, which reads (in part) "(1) Subject to CBI 204.55 (Premium in Lieu of Leave - Reserve Force), an officer or non-commissioned member who is on other than Class "C" Reserve Service is entitled to pay for each day of that service."

 

[mariomike]

Here though, in the Reserves, I am discovering, there are people (albeit it very very few), who just on a whim that even decide "Meh, I just don't feel like going tonight", and there is jack-f*** all we can do about it, even if it's a big event like Remembrance Day.

From what I have read on here,

Technically you only need to parade 1 night a month. That's it. It's better if you come in every night and every weekend obviously but your commitment is one 3 hour period a month. 

 

[DAA]

The DAOD 2020 Series might help    http://www.forces.gc.ca/en/about-policies-standards-defence-admin-orders-directives-2000/toc-2020.page

In particular 2020-0 and 2020-1 under the headings of "Liability to Serve" and "Consequences".

 

[Lumber]

From what I have read on here,

The way it works it you are required to parade one time (night or day) every 30 days. However, there has to have been a minimum of 3 opportunities to parade during that 30 days. If you fail to do so, you are declared as Non-Effective Strength. After that it's a process of either getting you back in, or getting you out.

 

[mariomike]

The DAOD 2020 Series might help    http://www.forces.gc.ca/en/about-policies-standards-defence-admin-orders-directives-2000/toc-2020.page

In particular 2020-0 and 2020-1 under the headings of "Liability to Serve" and "Consequences".

Thanks, DAA. 

3. Liability to Serve

Training

3.1 The applicable authorities listed in the Authority Table of DAOD 2020-0, Reserve Force, who exercise command over an element of the P Res sub-component must determine the minimum number of days of training required for a CAF member of the P Res (P Res member) under their command. Such determinations may not exceed the periods provided for under QR&O paragraph 9.04(2), Training and Duty, and are subject to any limitations prescribed by the Chief of the Defence Staff (CDS).

Note – To date, the CDS has not prescribed any limitations to the training periods.

 

[DAA]

Another good and worthwhile read, would be MILPERSCOM Instr 20/04, in particular Art 3.12.

3.12 Non-Effective Strength (NES)
(1)  Except for a member of the PRL, a Res F member shall be declared NES when their unauthorized absence from duty has exceeded 30 days, during which time no fewer than three duty periods were conducted by the unit. A period during which a member has been declared NES does not count toward qualifying service for promotion, incentive pay, Canadian Forces' Decoration or clasp, or the RFRG. NES shall not be approved retroactively.
(2)  After unsuccessful attempts to encourage the member to once again become effective, the CO shall then initiate release proceedings under item 5(f) of the table to QR&O 15.01 within 60 days after the member has been declared non-effective; and
(3)  IAW CFAO 2-8, PRLs are composed of P Res members who cannot be carried conveniently on strength of a unit or HQ establishment. Therefore, these members do not normally attend regular duty periods. Their effectiveness as reservists is evaluated separately from other P Res members. A PRL member is declared non-effective only when, without authority, that member has not attended scheduled duty periods resulting in the member not having completed a cumulative total of 14 days of service in a FY where a minimum of 14 duty periods were scheduled. Action as per para 4.9 c is to be taken. If there is no requirement for a minimum of 14 duty periods of service in a FY, the CO shall initiate a sub-component transfer in accordance with QR&O article 10.06, Transfer Between Sub-Components of the Reserve Force, or commence release proceedings.

Don't waste your time and resources pursuing disciplinary action where a member is not willing to participate.  There are "other" administrative measures available to you, so try and use them first!

 

[mariomike]

, the CO shall then initiate release proceedings under item 5(f) of the table to QR&O 15.01 within 60 days after the member has been declared non-effective[/color]; and

Which brings us to the consequences of a 5(f) release.

 

[chrisf]

Here though, in the Reserves, I am discovering, there are people (albeit it very very few), who just on a whim that even decide "Meh, I just don't feel like going tonight", and there is jack-f*** all we can do about it

Don't get hung up on it, the reserves is not a career and anyone who tries to treat it like it is, is foolish.

Troops will miss training sometimes, it's not a big deal.

If they're habitually missing large amounts, either they're crappy troops who'll drift off or be pushed out, OR they may be good troops who have other priorities.

Unless you're blessed with a unit that's at capacity, you're better off with the good troops who show up occasionally rather than no troops, because trust me, if you start trying to punish them for having their lives together, they'll walk.

 

[Lumber]

The DAOD 2020 Series might help    http://www.forces.gc.ca/en/about-policies-standards-defence-admin-orders-directives-2000/toc-2020.page

In particular 2020-0 and 2020-1 under the headings of "Liability to Serve" and "Consequences".

Well I'm confused by QR&O 9.04(2):

Subject to any limitations prescribed by the Chief of the Defence Staff, a member of the Primary Reserve may be ordered to train each year on Class "B" Reserve Service prescribed under subparagraph (1)(b) of article 9.07 (Class "B" Reserve Service) for a period not exceeding 15 days and on Class "A" Reserve Service (see article 9.06 - Class "A" Reserve Service), for a period not exceeding 60 days.

Does this state that our CO can order a member of the reserves to attend 15 consecutive days of training? Without being called out on active service or aide to civil power? What if they can't because of their civilian jobs?

 

[mariomike]

the reserves is not a career and anyone who tries to treat it like it is, is foolish.

The Reserves is the first time I recall hearing someone say, "It's a hobby, not a career."