Arrest and Laying Charges

[big bad john]

>> Get real.   We do not need any "Barrackroom Lawyers" resisting arrest because they think they know their rights.

I am real.   If candiates have read the NDA, they will know that "resisting arrest" is actually a service offence (section 150-something).   They would know that resisting arrest will only add to their problems.   They would understand that a superior officer actually DOES have the authority to arrest them, and that he doesn't need an MP to do it for him.  

You seem to be suggesting that it would be better to keep soldiers in the dark about the law, so they don't cause problems.   I suggest that they SHOULD know the law, so that they don't cause problems.

>> I think that your curiosity should be sufficiently sufficed by now.

Thank you GW, but why don't you let me decide that for myself?   The current line of debate is whether the NDA should be taught at BMOQ.   You apparently think it should not.   Your opinion on this is noted.   I would like to continue to hear other opinions on this, if it's aright with you.

>> I am in no way advocating having a course full of 2Lts running around trying to arrest their DS in any way, shape or form

Agreed, absolutely.

>> Taking this thing further off the rails...

Not off the rails at all.   Thanks for this information... this is the kind of thing I was hoping to get out of this thread.   I was very glad to see an MP posting to it.

>> If the Crown declines to appeal, <poof!>, law is overridden and no longer enforceable.  

When this happens, is the relevant act always ammended?   Surely there must be some way for citizens to know what laws are still in force, without having to wade through years of precedent... How do we know whether a judge has overriden some aspect of the NDA in the past, rendering it obselete?

If these are truely your thoughts, I would suggest that you bring them to the attention of your unit Adjutant.  He will counsel you, then you won't have to worry about this any more.  He will also, most likely from the goodness of his heart ensure that you do not have any time to worry about over educating people who have better things to do with the limited time that they have for training.  Failing that he will apply rule number 12 to your hind quarters with a verbal roar.

Secondly, please use the spell check function.

 

[Eowyn]

Gay marriage is a charter issue.

Really a judge at any level can override federal legislation?   By ruling it to be unconstitutional.   By this i am assuming you mean an act brought into effect.  I thought only the supreme court could make those rulings(constitutional or not).   Other courts if not appealed make bidding case law to effect how police work and law exist.  

Ummm, the Charter is part of the constitution.

Obviously you haven't study much law.  Any judge can rule legislation unconstitutional.  The only thing special about the Supreme Court of Canada is that their decisions can not be appealled.  Just using the gay marriage, several of the provincial courts have ruled that the historical definition was unconstitutional.

 

[garb811]

Pot possession and the Prohibition on Gay Marriage are two recent, high profile, examples of laws being declared Unconstitutional.


Please post the case law that show pot possession to be constitutional.   That i would love to see.  

Feel the Reefer love:

Hitzig v. Canada
The meat of it is here:

170 First, if we do not suspend our order, there will immediately be a constitutionally valid exemption in effect and the marihuana prohibition in s. 4 of the CDSA will immediately be constitutionally valid and of full force and effect. In R. v. Parker, supra, this court declared the prohibition invalid as of July 31, 2001 if by that date the Government had not enacted a constitutionally sound medical exemption. Our decision in this case confirms that it did not do so. Hence the marihuana prohibition in s. 4 has been of no force or effect since July 31, 2001. Since the July 8, 2003 regulation did not address the eligibility deficiency, that alone could not have cured the problem. However, our order has the result of constitutionalizing the medical exemption created by the Government. As a result, the marihuana prohibition in s. 4 is no longer inconsistent with the provisions of the Constitution. Although Parliament may subsequently choose to change it, that prohibition is now no longer invalid, but is of full force and effect. Those who establish medical need are simply exempted from it. This consequence removes the cloud of uncertainty from the marihuana prohibition in s. 4 of the CDSA - a cloud which we were told in argument has created very considerable confusion for courts and law enforcement agencies alike. A suspension of our remedy would simply have continued that undesirable uncertainty for a further period of time.

Note that as this was the Court of Appeal for Ontario and in their view, from the period July 31, 2001 to October 07, 2003, simple Possession of Marijuana was not illegal in Ontario.

Gay marriage is a charter issue.

Eowyn already dealt with Charter=Constitution so here's the Case Law lovin' on this one.   Note that this one is declaring Common Law Unconstitutional vice a Statutory Law:   Halpern v. Canada (Attorney General).   Again, Court of Appeal for Ontario so this ruling is technically only binding in Ontario but once you get to this level, most other Provincial Court systems start paying attention.

The only thing special about the Supreme Court of Canada is that their decisions can not be appealled.

It might be appropriate at this point to let say that once it's be declared Unconstitutional by the Supreme Court there are only two choices should the Legislative body not agree with the Courts ruling:   1)   Invoke the Notwithstanding clause of the Constitution which overrides the Supreme Court decision for a 5 year period and keeps the law in effect, or 2)   Parliament, or other Legislative body with jurisdiction, redrafts the law in an attempt to make it Constitutional.

 

[big bad john]

The only thing special about the Supreme Court of Canada is that their decisions can not be appealled.

I am curious.  Is it not true that decisions of the Supreme Court of Canada can be appealed to the Privy Council?  I am relatively new to Canada.

 

[big_johnson1]

Since we're veering dangerously off topic here..

I'm going to agree with GW that we don't need every Tom Dick and Harry running around telling everyone what their rights are. When people are charged, most of the time it happens when you're marched into the RSMs office to do the hatless dance, no one needs to arrest you and when an arrest is made you need to think long and hard about why it is being done by you and not by an MP or a senior member present. During courses, most of the time there are more than 1 DS present, and should one of the instructors get out of hand, it would not become YOUR responsability to deal with it, but it would be the responsability of the other instructors. I still have yet to see an instance where a student would arrest an instructor.

As for teaching the NDA in BMQ, why? We get taught military law on BMQ, I remember because recently I found my old notes and laughed because my handwritting consistently started out as a neat and tidy sentance, and morphed into a scraggaly line that was completely unreadable. Case in point, you're generally too tired or you just don't care. As for resisting arrest, well, if you actually need to arrest someone, they're probably drunk, in which case they'll resist whether they are aware of their rights or not. I understand the brief coverage of the QR&Os and military law on BMQ, but there is no need to teach more than that at that level, especially when courses are being shrunk every day. What did the old guys in my unit tell me, something like 11 weeks on Cornwallis for BMQ? It could be the old "when I was your age I walked 20 miles each way uphill to school" story, but either way, courses are getting shorter and more rushed as we try to push more pers through the system to bolster the ranks. Knowledge of your rights is important, but I'm going to stick with the original thought that most recruits couldn't care less. Be a good leader, have that knowledge or at least the skill to find the knowledge to pass on to your troops. Know enough about them to be able to find out when there is a problem, and then be there to help them. It's in their best interest and yours. I'd rather help the guy working for me before his problem gets full blown and he ends up marching before the CO.

By all means I'm not advocating keeping people in the dark, but how many of us truly pay attention to what our rights are until we are required to exercise them? Lets take that class in BMQ and teach OBLIGATIONS before we teach rights.

I guess we're just trading arguments back and forth here, but I have yet to see what possible benefits there are to teaching the NDA to a bunch of recruits on BMQ. Wait till they get to the JLC level. Once there, they are supposed to have the knowledge and experience to be able to want to learn and use what they learn properly.

 

[garb811]

When this happens, is the relevant act always ammended?   Surely there must be some way for citizens to know what laws are still in force, without having to wade through years of precedent... How do we know whether a judge has overriden some aspect of the NDA in the past, rendering it obselete?

Yes, but the problem becomes keeping up with the amendments.  

The only thing special about the Supreme Court of Canada is that their decisions can not be appealled.

I am curious. Is it not true that decisions of the Supreme Court of Canada can be appealed to the Privy Council? I am relatively new to Canada.

From the Supreme Court website:

The Supreme Court of Canada is Canada's highest court. It is the final general court of appeal, the last judicial resort for all litigants, whether individuals or governments. Its jurisdiction embraces both the civil law of the province of Quebec and the common law of the other provinces and territories.

I'm also against teaching the NDA on BMQ as it just too broad of a document to cover anything meaningful in the time which could be allotted.  Even handing it out for reading on their own time is fraught with danger as simply reading "the law" without the amplification provided by QR&Os, CFAOs, DAODs etc etc all you are doing is leaving the recruit liable to make his own, probably wrong, assumptions about what they are reading.

 

[HollywoodHitman]

Brutal.

 

[P Kaye]

I think I've been convinced... the NDA is too  much for the BMQ.  My thanks particularly to Feral and MP for your good arguments on this.

For those of you who have been content to respond with sarcastic, ill-tempered, or generally bad-mannered comments, you're the reason why I have decided to reduce or discontinue my contribution to Army.ca forums. 

Clearly, there are a few people on Army.ca who lack the maturity to argue their points without behaving like ill-tempered children.  I've never encountered these kinds of intolerable snide comments amongst my peers, superiors or subordinates in either the army, or the civilian worlds.  There are some people on Army.ca who seem to enjoy the opportunity anonymity affords them to be rude and belligerent, and I've had enough of it.  Unfortunately it only seems to be a few people who behave like this... congratulations to those few... you've managed to turn someone else off of Army.ca.

P Kaye

 

[Bruce Monkhouse]

Well, if thats the way you feel, bye bye, I just read through your posts and gee, if one asks contentious questions and offers opinions in such things as gun control, etc., just what did you think would happen? Not everyone is going to say, Yes, Mr. Kaye.
Guess what, welcome to life......