Application of the CODE OF SERVICE DISCIPLINE to Reservists

[Colin Parkinson]

Keep in mind many of them have full time careers and family, along with this "hobby"

 

[mariomike]

Keep in mind many of them have full time careers and family, along with this "hobby"

"Hobby" is a word I have never used in reference to the Reserves. But, I recall hearing it when I was a Reservist.

 

[DAA]

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

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?

From MILPERSCOM Instr 20/04
Active Service - 2.18 Active Service
Pursuant to PC 1989-583 and paragraph 31(1)(b) of the National Defence Act, officers and non-commissioned members of the Reserve Component of the CF are on active service anywhere beyond Canada.

To place a Res F member on "active" service within Canada, I do believe, would require an Order in Council.  Also, a member on Class A Service does not sign an SOU and are restricted to the number of days which they can volunteer to parade.  Other than that, once you venture into the world of Class B Service, then you have an SOU to fall back on and the scale of discipline goes up a notch.

You really can't order a member on Class A to attend anything.  They voluntarily attend parade nights/weekends, additional functions/taskings, so service is of a purely volunteer nature and dependent upon how interested they are in supporting Unit activities and how their attendance impacts on their civilian job/career..

 

[mariomike]

To place a Res F member on "active" service within Canada, I do believe, would require an Order in Council. 

If I recall correctly, the last time that happened was World War Two?

You really can't order a member on Class A to attend anything.  They voluntarily attend parade nights/weekends, additional functions/taskings, so service is of a purely volunteer nature and dependent upon how interested they are in supporting Unit activities and how their attendance impacts on their civilian job/career..

It has an impact on Reservists with careers in the emergency services who have mandated End-of-Shift OT.

 

[chrisf]

Keep in mind many of them have full time careers and family, along with this "hobby"

And it's usually the hobbyists who are the backbone of the unit as far as leadership and experience go.

 

[mariomike]

Keep in mind many of them have full time careers and family, along with this "hobby"

From reading the Reservists Job Protection Superthread, not all employers, or families, are on-board with it.

 

[FJAG]

From MILPERSCOM Instr 20/04
Active Service - 2.18 Active Service
Pursuant to PC 1989-583 and paragraph 31(1)(b) of the National Defence Act, officers and non-commissioned members of the Reserve Component of the CF are on active service anywhere beyond Canada.
To place a Res F member on "active" service within Canada, I do believe, would require an Order in Council.  Also, a member on Class A Service does not sign an SOU and are restricted to the number of days which they can volunteer to parade.  Other than that, once you venture into the world of Class B Service, then you have an SOU to fall back on and the scale of discipline goes up a notch.

Yes it would require an Order in Council (see NDA s31). There are currently a number of OiCs that place reservists on Active Service outside the country on various situations (such as service with NATO [e.g. OiC 1989-513] and various UN ops). Note that under NDA s 31(2) reservists are automatically "deemed" to be on Active Service in certain circumstances regardless of where they are.

Don't forget that reservists can also be ordered on Service (NDA 33). This provision is in fact what QR&O 9.04(2) is based on. Note as well that under NDA s33(2)(b) the governor in council can make regulations for call out on service beyond training.  This has been done so that the Minister of National Defence can call reservists out under QR&O 9.04(3) in case of an emergency (defined as war, invasion, riot, insurrection real or apprehended). This provision is separate from and should not be confused with reservists being called out in Aid of Civil Power under NDA s 275

You really can't order a member on Class A to attend anything.  They voluntarily attend parade nights/weekends, additional functions/taskings, so service is of a purely volunteer nature and dependent upon how interested they are in supporting Unit activities and how their attendance impacts on their civilian job/career..

You are legally quite wrong.

The only time that a reservist truly volunteers is when he decides to join the CF. Thereafter he/she can be ordered to do very many things as long as the service being ordered is within the framework of NDA ss 31, 33 and 275.

The issue which you are really addressing is the order to train which comes under NDA s33(2)(a) (QR&O 9.04(2) and the various orders and directives issued by commands and PRLs thereunder) where the perceived difficulty is enforcement of the order to train.

While a reservist is generally not legally subject to the CSD under s 60(1)(c) to trial by a service tribunal for being AWAO, they are subject to trial before a civilian court under NDA s294(1) and (2). The problem is that the powers of punishment are limited to relatively minor fines and therefore no one bothers to use this method.

The issue is therefore not one of reservists being ordered to or volunteering to attend training but one of the chain of command not enforcing the powers that they have to compel attendance. There are numerous diverse positions as to why the various chains of command universally do not use these powers to firm up what has become a weak system which I'll leave to others to debate. Suffice it to say that in my opinion the problem is heavily entrenched in an attitude shared by the regular force and reserve force chains of command that if you push reservists too hard they'll just quit. I think that's entirely false.

:subbies:

 

[daftandbarmy]

Suffice it to say that in my opinion the problem is heavily entrenched in an attitude shared by the regular force and reserve force chains of command that if you push reservists too hard they'll just quit. I think that's entirely false.

:subbies:

You are 100% correct.

Sadly, I find that we don't 'push' our soldiers enough and they get out because we bore them to death.

I've seen a disturbing trend over the past few years where poor senior leaders, who do not know how to properly train, motivate and lead their troops, fall back on the NDA and the old 'if they don't attend my one crappy training event per month they won't get paid' ploy as the only tool in their attendance arsenals.

Of course, these people are never really held accountable, and as long as they keep turning up they get promoted.

 

[Lumber]

While a reservist is generally not legally subject to the CSD under s 60(1)(c) to trial by a service tribunal for being AWAO, they are subject to trial before a civilian court under NDA s294(1) and (2). The problem is that the powers of punishment are limited to relatively minor fines and therefore no one bothers to use this method.

:subbies:

Well then the problem is not just with the Chain of Command but with the entire instituion. Consider: the overarching document that provides direction with respect to Reservists and their attendance is CF MILP ERS Instr 20/04 (yes there are QR&Os and DAODs, but this is the highest level that gives specific direction). In these instructions, it says:

...a Res F member shall be declared NES when their unauthorized absence from duty has exceeded 30 days...

Then, through an MHRRP it explain the process for someone going NES (Contact them, get them to come back, get them to quit, or kick them out).

Nowhere in any of these documents (and I have been poring over them) does it recommend, direct, or even hint at the idea of ordering a member to come, nor do any of these documents even hint that disciplinary action can be taken against them (you need to go to QR&Os or the NDA for that).

So it more than a chain of command thing.

 

[dapaterson]

CMP 20/04 and the MHRPP are guides for administration.  They are process guides, not leadership direction.  The latter should come through the chain of command.

 

[Journeyman]

..... poor senior leaders, who do not know how to properly train, motivate and lead their troops, fall back on the NDA ....

"Rules are mostly made to be broken and are too often for the lazy to hide behind."  :nod:

                                                                                                Gen. Douglas MacArthur

 

[DAA]

You are legally quite wrong.

Yes, I am but I really wasn't quite sure just how to say it other than saying "It's just not worth the effort, grief and aggravation you will encounter in trying to do something about it."  I've had the pleasure of employing members on Class A and it does become frustrating when they don't show up for a scheduled work day.  The CoC wouldn't even consider disciplinary action, let alone administrative action.  Sadly enough the status quo was pretty much "If a member shows up for Class A, consider it a bonus."    :facepalm:

 

[Blackadder1916]

Interesting discussion, and concerning a situation that I had some experience with.  Back in the mists of time, while Adjt of a reserve unit, one of the young soldiers engaged in some Remembrance Day stupidity and the decision was made to charge him.  He was aware that he would be held responsible for his actions and hoping to avoid the consequences, did not show up for scheduled parades nor respond to attempts to contact him.  How did we deal with this?

First, we contacted an officer in another unit who was related to the soldier (actually, that officer contacted us first informally because he was aware of the situation and wanted to minimize the eventual crap that would fall on his relative) and requested that he inform the soldier that ignoring the situation would not make it go away.  Second, we sent him a registered letter telling him that unless he contacted the unit and made arrangements to schedule disciplinary proceedings, he would be arrested and any scheduling would be made without any input from him.  He was also informed that he had a set time in which to contact the unit (IIRC, we gave him one week) and should he not respond, not only would he be arrested in order to answer to the charges, but release proceeding would be initiated.

We did not have to resort to arrest as he gave himself up and the charges were dealt with by summary trial on already scheduled parade nights.  His eventual fine was probably equivalent to any pay that he received for the days of both the incident and subsequent trial.  While he did meet with his assisting officer (the relative from other unit) at a time other than scheduled duty, he did not sign a pay sheet for those days (nor did he request pay for those times).

On another note, at a later date I did have occasion to order the arrest of a Class A Reservist (a retired Reg F Sgt), but the circumstances were not similar to this discussion.

 

[Eaglelord17]

While he did meet with his assisting officer (the relative from other unit) at a time other than scheduled duty, he did not sign a pay sheet for those days (nor did he request pay for those times).

As a side note and a question, I know you said this was the past, but technically isn't a Reservist is required to sign a paysheet if they are working for the military now as I thought they didn't allow volunteering anymore? If I have been told correctly this would have changed after the decade of darkness, and likely as a response to the decade of darkness.

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.

As I told one Reg Force Sgt who was crapping on Reservists (not saying you are, just the context of the conversation), it takes more dedication to show up to the Reserves then the Regs. The reason being if you don't want to be there, you don't have to be. How many people in the Regs would show up to 'x' crappy event if they didn't have to? On top of that, your expected to maintain a civilian job, a family, and on your off time be available to work for the Reserves, it can be a very tight balance.

I know with my unit, they now have a tough time finding people to work sometimes as they told us all to go get jobs and to not count on the Reserves for work. Fair enough as the Reserves isn't meant to be a career, the problem they have now is that we all DID go get jobs and aren't available for all the odd taskings that they need people for.

 

[FJAG]

Well then the problem is not just with the Chain of Command but with the entire instituion. Consider: the overarching document that provides direction with respect to Reservists and their attendance is CF MILP ERS Instr 20/04 (yes there are QR&Os and DAODs, but this is the highest level that gives specific direction). In these instructions, it says:

Then, through an MHRRP it explain the process for someone going NES (Contact them, get them to come back, get them to quit, or kick them out).

Nowhere in any of these documents (and I have been poring over them) does it recommend, direct, or even hint at the idea of ordering a member to come, nor do any of these documents even hint that disciplinary action can be taken against them (you need to go to QR&Os or the NDA for that).

So it more than a chain of command thing.

The chain of command doesn't stop at the unit level.

Remember that there is a hierarchy to the legal documents that direct things for the military. At the top is the NDA which is created by parliament. Next comes the QR&Os which are regulations and orders issued by the GiC, the Minister, the CDS (the little (G), (M), or (C) listed with a particular QR&O indicates who issued it). Below that come CFAOs, DAODs, Finance instrs, Pers Instrs etc. At each level more detailed information is provided by those people who have the authority to provide it with the limitation that such direction cannot contradict a higher order, regulation, directive on the topic.

In effect, each and every document is created by the government bureaucracy (both military and civilian/political) who have authority over us. (Technically the chain of command goes from the Queen, through the GG then trhough the CDS and thereafter the military officers but do not underestimate that the civilian bureaucracy also has an influence in many matters which impact on the rank and file.) At the top of this heap is the legislature which through the provision of NDA s 294(1) gives parliament's authority for a legal process to punish a reservist who fails to attend training. There is no need for any subordinate rules or orders or directions to make that happen although I agree entirely with you that if this provision was pointed out in concert with NES procedures it might spur action at the unit level. In fact I'll go further, I think that NES instructions should mention that NDA s 294(1) is an option for the CO to consider.

:subbies:

 

[Haggis]

Many years ago another JAG told me that even though s 294 is listed in Part VII as an offence triable by civil courts, this charge could also be laid under s130 "Offences Against Other Canadian Law" and tried by a CO/delegated officer.

 

[Blackadder1916]

As a side note and a question, I know you said this was the past, but technically isn't a Reservist is required to sign a paysheet if they are working for the military now as I thought they didn't allow volunteering anymore? If I have been told correctly this would have changed after the decade of darkness, and likely as a response to the decade of darkness.

What is your definition of "working for the military"?

Just because someone may have to deal with the consequences of his actions should not give him unlimited resources to deal with his problem.  In the example I gave, we paid the soldier in question for those days that he actually showed at the unit (they were scheduled parade nights) during which time all aspects of the disciplinary process were done including providing him an opportunity to meet with his assisting officer.  If he chose to meet with his assisting officer at a time other than allotted, then that was his problem. 

 

[FJAG]

Many years ago another JAG told me that even though s 294 is listed in Part VII as an offence triable by civil courts, this charge could also be laid under s130 "Offences Against Other Canadian Law" and tried by a CO/delegated officer.

Unfortunately you were misinformed.

S 294 is part of Part VII of the NDA titled OFFENCES TRIABLE BY A CIVIL COURTS

The first section of Part VII states:

286. (1) Subject to subsection (2), every person, including an officer or non-commissioned member, is liable to be tried in a civil court in respect of any offence prescribed in this Part.

While s130 allows military tribunals to assume jurisdiction where a person commits a federal offence in general, it does not allow a military court to assume jurisdiction of a case which has been expressly put into the sole jurisdiction of a civil court.

Remember as well that for there to be a valid s130 charge then the individual would have to at the time that he committed the federal offence upon which the s130 charge is laid  have had to be in circumstances where he would be subject to the CSD. As previously indicated if a person fails to show up for training as ordered then at the time he fails to appear for duty he would not be subject to the CSD.

:subbies:

 

[dapaterson]

Actually, the writing of 130 suggests that charges under Part VII of the NDA are permitted under the CSD (emphasis added):

130. (1) An act or omission
(a) that takes place in Canada and is punishable under Part VII, the Criminal Code or any other Act of Parliament, or
(b) that takes place outside Canada and would, if it had taken place in Canada, be punishable under Part VII, the Criminal Code or any other Act of Parliament,
is an offence under this Division and every person convicted thereof is liable to suffer punishment as provided in subsection (2).

 

[FJAG]

Actually, the writing of 130 suggests that charges under Part VII of the NDA are permitted under the CSD (emphasis added):

130. (1) An act or omission
(a) that takes place in Canada and is punishable under Part VII, the Criminal Code or any other Act of Parliament, or
(b) that takes place outside Canada and would, if it had taken place in Canada, be punishable under Part VII, the Criminal Code or any other Act of Parliament,
is an offence under this Division and every person convicted thereof is liable to suffer punishment as provided in subsection (2).

The thrust of Part VII is to create offences that would involve offenders who are not subject to the CSD (such as reservists not on duty etc or civilians) and have them subject to trial by a civil court. One would be hard pressed to find circumstances within these classes of cases where the offender would be subject to the CSD so that s 130 could be used (although I admit that there could be some which could apply - such as s 295 where a person shows up with kit "out of proper order".) In all such circumstances, however, there are better charges available under the CSD which would provide a better range of punishment.

My previous statement may not have been worded as eloquently as it could have been but the thrust of what I said is still correct. Where a soldier fails to appear to train as ordered in circumstances where he does not fall into one of the conditions set out in s 60(1)(c) whereby he becomes subject to the CSD then the person cannot be tried by a military tribunal regardless of what charge in the CSD is used. If the soldier is not subject to the CSD at that time then the only court that has jurisdiction to try him is a civil court under s 294.

:subbies: