Being charged under military law?

[Vladimer]

hey guys, just a quick question, few people told me that if you commit a crime such as theft or murder etc.. while with the army you are charged under military law instead civilian

let me help explain it lol, say your in the reserves, sat/sun your at the base and then on tuesday you go and steal a car, are you charged under civilian law, or military

not planning to do anything illegal here, just something thats been bugging my mind as to what the answer is since i just got sworn in a few weeks ago and i've heard conflicting answers about it

thanks for any help

 

[KevinB]

Certain offences - Murder, Sexual Assault are ONLY tried under the QR&O's IF that offence is committed while overseas.

For regular force members and reserves on duty offence under Canadian Law can be tried by court martial - but 95% of the time are left to civilian authourity.

 

[Gramps]

Generally, as I understand it, reservists are only subject to The Code of Service Discipline while they are "on duty" ( Training Nights or on a Class B or C contract). Any other time they are considered civilians and will be subject to civilian authority. If you are charged on the "civvie" side of the house you cant be charged for the same crime by the military authority (double jeopardy) however, there could be possible job related implications because of it.

 

[Fusilier]

Ref:  A.  QR&O 19.51
B. DAOD 5019

Ref A states, "Officers and non-commissioned members remain subject to the civil law, except as prescribed in the National Defence Act (NDA).  The civil police have power to arrest an officer or non-commissioned member whether or not the member is at a base, unit or element.  An officer in command of a base, unit or element shall afford every facility to the civil authorities in detecting and apprehending officers and non-commissioned members serving at the base, unit or element whose arrest is required on a criminal charge, but he shall require a constable or other civil officer to produce a warrant or show satisfactory evidence of the capacity in which he acts."  So in English, whether Regular or Reserve you could be charged by both the civil auth and/or military.

Ref B, below refers to conduct and performance. So for example,if you were to be charged with drunk driving by the RCMP the military would probably not charge you but you could be placed on Recorded Warning and/or Counselling and Probation which is considered to be administrative action not disciplinary.,


Policy Direction
Context Collectively, CF members have a core responsibility to the government and people of Canada to defend Canada and its interests. Individually, CF members are responsible for their conduct and performance.

A conduct or performance deficiency occurs if a CF member fails to meet the standards of conduct and performance established for CF members.

This DAOD and others in the 5019 series do not apply to below standard performance that is attributable to factors beyond the control of the CF member, such as a lack of training or experience.

Policy Statement CF members shall be held accountable for any failure to meet established standards of conduct and performance resulting from factors within their control.

Requirements The chain of command shall take appropriate measures if a CF member demonstrates conduct or performance deficiencies. Depending on the circumstances, the appropriate measures may involve disciplinary, administrative, and/or other appropriate action. If disciplinary or criminal action is taken to address misconduct, regardless of the outcome, the chain of command may take administrative action to address any performance deficiencies arising from the same circumstances.

The CF shall provide education, counselling and treatment, as appropriate, to assist CF members to prevent, correct or subsequently overcome conduct or performance deficiencies.

So, what does this mean to you...well, you regardless if you are Regular or Reserve you are a member of the CF and therefore subject to the code of service discipline both on or off duty.

 

[Gramps]

According to the QR&O.

CHAPTER 102

DISCIPLINARY JURISDICTION
(Refer carefully to article 1.02 (Definitions) when reading every regulation in this chapter.)


Section 1 â “ Jurisdiction â “ Persons

102.01 â “ PERSONS SUBJECT TO THE CODE OF SERVICE DISCIPLINE
Section 60 of the National Defence Act provides:

"60. (1) The following persons are subject to the Code of Service Discipline:

(a) an officer or non-commissioned member of the regular force;

(b) an officer or non-commissioned member of the special force;

(c) an officer or non-commissioned member of the reserve force when the officer or non-commissioned member is

(i) undergoing drill or training, whether in uniform or not
(ii) in uniform,
(iii) on duty,
(iv) ) [Repealed, S.C. 1998, c. 35, s. 19],
(v) called out under Part VI in aid of the civil power,
(vi) called out on service,
(vii) placed on active service,
(viii) in or on any vessel, vehicle or aircraft of the Canadian Forces or in or on any defence establishment or work for defence
(ix) serving with any unit or other element of the regular force or the special force

 

[Fusilier]

Gramps, thank you for the correction.  :-[

Regardless, as a responsible military member we all have an obligation to conduct ourselves in a way that brings credit to the CF.

 

[Gramps]

"Regardless, as a responsible military member we all have an obligation to conduct ourselves in a way that brings credit to the CF."

I agree with you on that 100%

 

[pbi]

Roger so far.

A common misconception (going in the other direction...) amongst some Res is that if they commit a service offence, then go home and take off their uniforms, they have escaped the consequences of their actions. They haven't: once you commit a service offence you remain subject to being apprehended, tried and punished under the NDA regardless of your status.

Cheers.

 

[Bruce Monkhouse]

...and a lesson  learned the hard way is that any service offence takes 5 years to apply for a pardon, even after getting out.

A case in point, hypothetical of course , one could be a M/Cpl with 10 years service but because one was late for work two years before he could not apply for a pardon from something that happened 12 years earlier when he was 16 [before YOA].

 

[Colin2]

Are they still attaching the charge  "Conduct unbecoming of a member of the CAF" to ever other charge? Sec. 119 if I remember correctly?

 

[aesop081]

Section 129 of the NDA : Conduct prejudice to the good order and discipline

Me somewhat familiar with that one   ;D

 

[Acorn]

129 can be an alternate charge if appropriate. It's not a "catch-all" as some believe.

Also, certain service offences are automatically removed from the conduct sheet after one year (if no other offences occur, of course).

Acorn

 

[aesop081]

129 can be an alternate charge if appropriate. It's not a "catch-all" as some believe.

Also, certain service offences are automatically removed from the conduct sheet after one year (if no other offences occur, of course).

Acorn

Quite correct.

However the wording of the 129 is such that its application can be very broad.  For example, on basic, the WO found wrinkles on my combats for the comandant's inspection.  I was subsequently charged with section 129 conduct prejudice to good order and discipline for failing to be ready for inspection as i was ordered.  So in that sense, yes it is not a catch all but it lends itself to be applied as such.

 

[Acorn]

My understanding of how 129 (119 back in the day) was applied in Basic, it was removed from your sheet on completion of the course. It was intended as a disciplinary tool (and still is) and it was expected that many recruits would get one pour encouragre les autres before course end. It is a "catch-all" in the sense it covers disciplinary lapses that don't have specific NDA sections. There is nothing for things like haircuts or dirty rifles, for example.

Acorn

 

[aesop081]

My understanding of how 129 (119 back in the day) was applied in Basic, it was removed from your sheet on completion of the course. It was intended as a disciplinary tool (and still is) and it was expected that many recruits would get one pour encouragre les autres before course end. It is a "catch-all" in the sense it covers disciplinary lapses that don't have specific NDA sections. There is nothing for things like haircuts or dirty rifles, for example.

Acorn

Once again you are correct. the 129 did not stay on my conduct sheet past basic.  My original point was that although it is written as a "catch-all", it certainly used as such.

 

[Fusilier]

129 can be an alternate charge if appropriate. It's not a "catch-all" as some believe.

Also, certain service offences are automatically removed from the conduct sheet after one year (if no other offences occur, of course).

Acorn

Correct!!  (experience talking?  )

Just for ref if anyone is wondering...DAOD 7006-1
"An entry shall be removed from a member's conduct sheet when:

- a pardon of the offence to which the entry relates is granted under the Criminal Records Act (see DAOD 7016-0);

- a review or appeal quashes a finding of guilty; or

- the CDS determines that the entry resulting from a conviction by a foreign court or tribunal is no longer required. A member's application for such a determination must be supported by the member's CO. Normally, this will not be considered before completion of a period of 72 months during which the member has:

- been of good conduct; and

- not been convicted of an offence other than one for which a pardon has been granted.
An entry relating to a conviction which has resulted in a fine of $200 or less, or a minor punishment, for example, seven days confinement to barracks, shall be removed from a member's conduct sheet:

- upon completion of the later of:

- six months service from the date of enrolment or re-enrolment; or

- the member's initial military occupation training;

- upon completion of any period of 12 months during which no conviction has been entered;

- upon promotion to sergeant or when an officer cadet or a non-commissioned member attains commissioned rank; or

- prior to release from the CF of a member, who is to be released without having completed initial military occupation training.

Removal When an entry is removed, any remaining entries shall be entered on a new conduct sheet. The old conduct sheet shall be destroyed.

Disposal of Disciplinary Documents The charge reports, charge sheets and certificates of conviction pertaining to the removed entry shall be taken from the member's service records and destroyed with the member's consent. "

Something that quite a few people don't know - if charged with AWOL if the absense was more than four hours you will lose a days pay plus any punishment ie; fine, CB etc.

 

[reccecrewman]

I've seen cases such as a soldier gets a DUI and has to take time off work to go to court to sort the mess out, but then afterwards ends up being dealt with by the Army as well. It's like a double whammy.

 

[Kat Stevens]

119 was just another training aid when I went through basic and TQ3, almost everybody got one.

 

[pbi]

I've seen cases such as a soldier gets a DUI and has to take time off work to go to court to sort the mess out, but then afterwards ends up being dealt with by the Army as well. It's like a double whammy.

He got charged under the NDA as well as under the Criminal Code? That would be a double whammy, and would be illegal if it was for the same offence, since the NDA recognizes all "other Canadian law".  Maybe he was handled administratively by the Army, such as C&P or alcohol abuse treatment? The criminal charge takes care of the law-breaking aspect; the admin action takes care of the military performance and behaviour side of things. Or, if you want, the "professional" aspect of stupid behaviour like DUI.

Cheers.

 

[Springroll]

I know an ex reg force guy who was charged with attempted murder under the CC. He was not on duty and it did not happen on DND turf but was later "charged" by the CF for a variety of different breaches he made. He was released, and not on good terms. He spent over 2 years in a Fed jail, 3 years on probation and is now an electrician in Alberta.