CANFORGEN 139/08 - AMENDMENT TO NDA

[Jorkapp]

UNCLASSIFIED



I AM PLEASED TO ANNOUNCE THAT BILL C 60, WHICH AMENDS CERTAIN PROVISIONS OF THE NATIONAL DEFENCE ACT RELATING TO COURTS MARTIAL, RECEIVED ROYAL ASSENT ON 18 JUN 08. THE NEW LEGISLATION AND CORRESPONDING AMENDMENTS TO THE QR AND O CAME INTO FORCE ON 18 JUL 08


THE AMENDMENTS ESTABLISH A LEGAL FRAMEWORK THAT MORE CLOSELY ALIGNS THE SELECTION OF MODE OF TRIAL AND COURT MARTIAL DECISION MAKING WITH THAT WHICH EXISTS IN THE CIVILIAN CRIMINAL JUSTICE SYSTEM WHILE MAINTAINING THE ATTRIBUTES ESSENTIAL TO SATISFY THE UNIQUE NEEDS OF THE MILITARY JUSTICE SYSTEM


SPECIFICALLY, THE AMENDMENTS:


GOVERN THE SELECTION OF THE TYPE OF COURT MARTIAL TO TRY AN ACCUSED PERSON BY OPERATION OF LAW BY SPECIFYING THE TYPE OF COURT MARTIAL TO BE USED BASED ON THE SPECIFIC OFFENCE(S) CHARGED AND BY PROVIDING THE ACCUSED PERSON WITH THE RIGHT TO CHOOSE THE TYPE OF COURT MARTIAL IN CIRCUMSTANCES SIMILAR TO THOSE SET OUT IN THE CRIMINAL CODE


SIMPLIFY THE COURT MARTIAL STRUCTURE BY ELIMINATING THE SPECIAL GENERAL COURT MARTIAL AND THE DISCIPLINARY COURT MARTIAL AND PROVIDING THE GENERAL COURT MARTIAL AND THE STANDING COURT MARTIAL WITH THE SAME POWERS OF PUNISHMENT AND JURISDICTION TO TRY ALL ACCUSED PERSONS SUBJECT TO THE CODE OF SERVICE DISCIPLINE


REFINE THE PROCEDURE FOR COURT MARTIAL DECISION MAKING BY ENHANCING THE ABILITY OF MILITARY JUDGES TO DEAL WITH PRE-TRIAL MATTERS AND BY REQUIRING KEY DECISIONS OF A GENERAL COURT MARTIAL PANEL TO BE MADE BY UNANIMOUS VOTE, AND


CLARIFY CERTAIN OTHER PROVISIONS OF THE NATIONAL DEFENCE ACT


THE AMENDMENTS SERVE TO MAINTAIN THE TRUST AND CONFIDENCE OF CANADIANS IN THE MILITARY JUSTICE SYSTEM AND STRENGTHEN THE CANADIAN FORCES AS A NATIONAL INSTITUTION REFLECTING THE NORMS AND VALUES OF CANADIAN SOCIETY


ACCESS TO THE NEW LEGISLATION ALONG WITH BACKGROUND INFORMATION AND AMENDMENT HIGHLIGHTS IS AVAILABLE ON THE JAG WEBSITE AT: HTTP:JAG.DWAN.DND.CA ACCESS TO THE AMENDED QR AND O WILL BE AVAILABLE SHORTLY ON THE DEFENCE INFORMATION NETWORK


QUESTIONS REGARDING THE AMENDMENTS TO THE NATIONAL DEFENCE ACT AND QR AND O SHOULD BE DIRECTED TO UNIT LEGAL ADVISORS


COMMANDERS AT ALL LEVELS ARE REQUESTED TO ENSURE THAT THIS MESSAGE IS GIVEN THE WIDEST POSSIBLE DISTRIBUTION TO THEIR UNITS


SIGNED BY BGEN K. WATKIN

So now we get a choice: Standing or General.

I've never experienced nor witnessed a Court Martial, so I'm in the dark about the implications of this. Anyone care to comment?

 

[dapaterson]

What this means is:

Defence lawyers will have to advise clients on impact of choosing judge alone vs military panel in a CM - the individual will now have greater choice in the type of trial.

Judges will be able to take actions pre-trial that, it the past, might have meant lengthy adjournments and delays.

Overall,. it should iron out some procedural issues, and resolve a challenge that went to the Court Martial appeal court and resulted in the old methods of determination of the type of CM (solely in the hands of the prosecution) being thrown out as unconstitutional.