Capt. Robert Semrau Charged With Murder in Afghanistan
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zipperhead_cop said:
I said something along those lines here:
http://forums.army.ca/forums/threads/91849/post-907823.html#msg907823
You said it better.
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While only 1% of 1% of 1% of 1% of the CF were involved with the incident and shouldn't be commenting on it since the matter is under investigation, a much larger percentage is more than welcome to make comments about some of the names mentioned above and how many times X person may have made questionable calls, as well.
Not in any way making claims about this alleged incident, but in the many other things during that tour. Glass houses.
Not in any way making claims about this alleged incident, but in the many other things during that tour. Glass houses.
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Petamocto said:
Technically, if the matter was still under investigation it wouldn't be before the courts. I agree, one shouldn't talk about an active investigation. However, due to disclosure, there is now public access to the Crown's case (if one knows where to look and who to talk to)
Petamocto said:
Indeed!
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Yes you are right, and I stand corrected; technically the investigation part is done (I'm still in the mind set of when CNIS came to brief all of us). See how that works Vern, someone actually makes a good point and I admit I was wrong.
That being said, everyone is still voicing their opinions on a lot of bits and pieces of the whole story, which I'm not a big fan of, but I can only control myself :-X
That being said, everyone is still voicing their opinions on a lot of bits and pieces of the whole story, which I'm not a big fan of, but I can only control myself :-X
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Petamocto said:
;D When does that start? ;D
McG
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It happened long before that.zipperhead_cop said:
What would your position be if it were a Taliban on trial for putting rounds into a Canadian in similar state? Should he be charged or would you still argue he was doing the brave, honourable and humane thing?zipperhead_cop said:
And IF it was not? As opposed to turning a blind-eye or covering-up, should not the proper authorities decide what happened?zipperhead_cop said:
In your argument, you are assuming knowledge in the head of the first to report - knowledge which may not have been there. Said person may only have had a reasonable belief that a serious violation of LoAC occured without many of the finer details that you speculate. In action would have been tantamount to covering up the event (regarless of what a proper investigation and competent courtl may later decide actually did happen).zipperhead_cop said:
Lets also look at this from a more macroscopic perspective. Sure buddy beside and behind are on the team, but the team is a whole lot bigger than just them.
Consider, the whole Canadian Airborne Regiment suffered for the acts of a few miscreants and a few more "team players" who blindly went with " the dynamics of trusting the guy beside you." The public's first perception of the incident was media lambasting the military for doing nothing. Because action was not seen to be taken prior to the out-cry, the institution was seen to be complicit in the acts of a few, and cover-up was declared. Public confidence in the military leadership was broken and the integrity of the institution (the whole CF and DND) was seen as deviant. The whole CF suffered for the next few years.
Down at the tactical level with the motivations, the individuals, the acts, etc - the current and past situations are light years apart. At the strategic level, there are a lot of common hazards. This time, the publics first perception of the incident was of the military taking action. The public retains confidence in the military leadership and we've retained the exceptional street-cred that has been built over the last two years. The CF gone unscathed had the first reports been the media questioning in-action and institutional integrity. There probably would not be another regiment lost, but we would have been hammered in that last budget and we would be feeling repercussions well into next year or beyond.
I would hope that a soldier would not risk strategic damage to the whole military if that soldier reasonably believed a violation of RoE, LoAC and the CF Code of Conduct to have occurred. In such circumstances, reporting would be the act of a team player and (given the open contempt displayed by some early in this thread) it would require significant moral courage to do so.
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Nobody is going to be able to say you are wrong, myself included. But I still stand by my statement. Take it as you will.
In Canada:
Balance of probabilities is the burden of proof at the Summary Trial level.
Beyond a reasonable doubt is burden of proof at the Courts Martial.
Source: http://www.forces.gc.ca/jag/publications/militaryjusticemilitaire/CourtMartial-eng.pdf
Balance of probabilities is the burden of proof at the Summary Trial level.
Beyond a reasonable doubt is burden of proof at the Courts Martial.
Source: http://www.forces.gc.ca/jag/publications/militaryjusticemilitaire/CourtMartial-eng.pdf
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Simian Turner said:
Are you sure? I may have missed it, but I don't see anything in that link regarding the burden of proof at Summary Trial.
However, the presentation "Lesson 7 – Conduct of Summary Trial" on the JAG website says "To determine that the offence has been proved beyond a reasonable doubt, he/she must conclude that each element of the offence charged has been proven beyond a reasonable doubt".
ballz
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Simian's link answers my question well enough since it was court martials I was wondering about.
I think that article (which now the link doesn't work) has been changed (drastically). Here is the new version: http://www.torontosun.com/news/columnists/peter_worthington/2010/04/03/13455676.html
In the original, it had said that this trial would be based on a majority decision as opposed to unanimous decision, which is the second time I've read (while reading about this trial) that court martials in Canada were based on a balance of probabilities, hence me asking the question. Either which way, Simian's link works for what I was wondering about.
I think that article (which now the link doesn't work) has been changed (drastically). Here is the new version: http://www.torontosun.com/news/columnists/peter_worthington/2010/04/03/13455676.html
In the original, it had said that this trial would be based on a majority decision as opposed to unanimous decision, which is the second time I've read (while reading about this trial) that court martials in Canada were based on a balance of probabilities, hence me asking the question. Either which way, Simian's link works for what I was wondering about.
Occam said:
The Dickson Report/Somalia Inquiry (http://www.forces.gc.ca/somalia/vol5/v5c40be.htm) lead to the amendment of the NDA (http://dsp-psd.pwgsc.gc.ca/Collection-R/LoPBdP/LS/361/c25-e.htm) recommended the following:
The 40.27 The standard of proof at a trial for major disciplinary or criminal misconduct be proof beyond a reasonable doubt.
40.29 The standard of proof at a trial of minor disciplinary misconduct be proof on a balance of probabilities.
I am unaware of a more recent amendment.
TangoTwoBravo
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I see nothing in the actual bill about changing how findings are made.
I recently completed Presiding Officer Training, and it is proof beyond a reasonable doubt at summary trials.
For administrative matters the balance of probabilities applies.
I recently completed Presiding Officer Training, and it is proof beyond a reasonable doubt at summary trials.
For administrative matters the balance of probabilities applies.
T2B
Perhaps you did not close enough:
" e. Summary Trials (41)
1) Reduced Powers of Punishment...
In consequence of this diminished disciplinary power, clause 42 would eliminate the existing requirement that certain punishments be approved by a higher authority. The punishments available to a commanding officer at summary trial which require prior approval by higher authority are detention of a person above the rank of private; detention in excess of 30 days; and reduction in rank (see section 163(2) of the Act).(43)
Note: (43) The reduction of the maximum period of detention following summary trial from 90 to 30 days, the restriction to reduction of one rank level for the punishment of reduction of rank following summary trial, and the related abolition of the requirement for prior approval by higher authority of certain punishments, mirror recommendations 16, 19 and 20 of the first Dickson report. The Somalia Inquiry recommended that any sentence of detention should only be imposed by a court martial (see recommendation 40.1). The Inquiry also recommended, however, that the standard of proof at summary trials be reduced from the current criminal standard to the civil standard of proof on a balance of probabilities and that accused be compellable witnesses at summary trials (recommendation 40.29).
Perhaps you did not close enough:
" e. Summary Trials (41)
1) Reduced Powers of Punishment...
In consequence of this diminished disciplinary power, clause 42 would eliminate the existing requirement that certain punishments be approved by a higher authority. The punishments available to a commanding officer at summary trial which require prior approval by higher authority are detention of a person above the rank of private; detention in excess of 30 days; and reduction in rank (see section 163(2) of the Act).(43)
Note: (43) The reduction of the maximum period of detention following summary trial from 90 to 30 days, the restriction to reduction of one rank level for the punishment of reduction of rank following summary trial, and the related abolition of the requirement for prior approval by higher authority of certain punishments, mirror recommendations 16, 19 and 20 of the first Dickson report. The Somalia Inquiry recommended that any sentence of detention should only be imposed by a court martial (see recommendation 40.1). The Inquiry also recommended, however, that the standard of proof at summary trials be reduced from the current criminal standard to the civil standard of proof on a balance of probabilities and that accused be compellable witnesses at summary trials (recommendation 40.29).
TangoTwoBravo
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Read the Bill, not the recommendation report.
Military Law is never a simple matter, the Presiding Officer Training Course Slides and Handbook offer insight and references. Mr. Dickson's recommendations were added as footnotes to the actual Bill to amend the NDA.
Your honour, the question has been asked and answered to the satisfaction of the asker, can we move on...No...OK. As has been stated...
The Determination of Guilt at both a Summary Trial and a Court Martial is based on reasonable doubt.
"The presiding officer must consider the evidence received as well as the representations
of the accused and determine whether it has been proved beyond a reasonable doubt that the
accused committed the offence charged. In order to make such a finding, the presiding officer
must conclude that all the required elements of the offence have been proved beyond a
reasonable doubt. The required elements would include, as a minimum, the following: that the
accused was the person who committed the offence; that the accused intended to commit the
offence; that the offence was committed on the date that was alleged in the charge report portion
of the RDP; and that the acts or omissions alleged occurred. [/b]"
Some administrative matters at both ST and CM can be made on the balance of probabilities, for example from NDA: Fitness to Stand Trial - Presumption of fitness
198. (1) An accused person is presumed fit to stand trial unless the court martial is satisfied on the balance of probabilities that the accused person is unfit to stand trial
Mental Disorder When Offence Committed
Defence of mental disorder
202.13 (1) No accused person shall be held responsible under this Act for a service offence in respect of an act committed or an omission made while suffering from a mental disorder that rendered the person incapable of appreciating the nature and quality of the act or omission or of knowing that it was wrong.
Presumption
(2) Every person is presumed not to suffer from a mental disorder so as to be exempt from responsibility by virtue of subsection (1), until the contrary is proved on the balance of probabilities.
Summary Trials by Commanding Officers
Jurisdiction
163. (1) A commanding officer may try an accused person by summary trial if all of the following conditions are satisfied:...
(e) the commanding officer does not have reasonable grounds to believe that the accused person is unfit to stand trial or was suffering from a mental disorder at the time of the commission of the alleged offence.
References:
POTC Handbook: http://www.forces.gc.ca/jag/publications/Training-formation/MilJustice_JustMilv2.1-eng.pdf
NDA: http://www.canlii.org/en/ca/laws/stat/rsc-1985-c-n-5/latest/rsc-1985-c-n-5.html#history
Your honour, the question has been asked and answered to the satisfaction of the asker, can we move on...No...OK. As has been stated...
The Determination of Guilt at both a Summary Trial and a Court Martial is based on reasonable doubt.
"The presiding officer must consider the evidence received as well as the representations
of the accused and determine whether it has been proved beyond a reasonable doubt that the
accused committed the offence charged. In order to make such a finding, the presiding officer
must conclude that all the required elements of the offence have been proved beyond a
reasonable doubt. The required elements would include, as a minimum, the following: that the
accused was the person who committed the offence; that the accused intended to commit the
offence; that the offence was committed on the date that was alleged in the charge report portion
of the RDP; and that the acts or omissions alleged occurred. [/b]"
Some administrative matters at both ST and CM can be made on the balance of probabilities, for example from NDA: Fitness to Stand Trial - Presumption of fitness
198. (1) An accused person is presumed fit to stand trial unless the court martial is satisfied on the balance of probabilities that the accused person is unfit to stand trial
Mental Disorder When Offence Committed
Defence of mental disorder
202.13 (1) No accused person shall be held responsible under this Act for a service offence in respect of an act committed or an omission made while suffering from a mental disorder that rendered the person incapable of appreciating the nature and quality of the act or omission or of knowing that it was wrong.
Presumption
(2) Every person is presumed not to suffer from a mental disorder so as to be exempt from responsibility by virtue of subsection (1), until the contrary is proved on the balance of probabilities.
Summary Trials by Commanding Officers
Jurisdiction
163. (1) A commanding officer may try an accused person by summary trial if all of the following conditions are satisfied:...
(e) the commanding officer does not have reasonable grounds to believe that the accused person is unfit to stand trial or was suffering from a mental disorder at the time of the commission of the alleged offence.
References:
POTC Handbook: http://www.forces.gc.ca/jag/publications/Training-formation/MilJustice_JustMilv2.1-eng.pdf
NDA: http://www.canlii.org/en/ca/laws/stat/rsc-1985-c-n-5/latest/rsc-1985-c-n-5.html#history
Wait there was a subsequent Bill to amend the Bill to amend the NDA!
Since Bill C-25 also required the Defence Minister to arrange for an independent review of the Bill's provisions and operation every five years. :
http://www.forces.gc.ca/site/news-nouvelles/news-nouvelles-eng.asp?cat=00&id=1917
Amendments to the National Defence Act: Bill C-25, its review, and Bill C-7, An Act to Amend the National Defence Act
BG-06.010 - April 27, 2006
Highlights of Bill C-7 include:
• enhancing the independence of military judges;
• permitting the appointment of part-time military judges;
• requiring the unanimous decision of a court martial panel to find an accused guilty or not guilty;
• providing for additional sentencing options, including absolute discharges, intermittent sentences and restitution orders; and
• clarifying the responsibilities of the Canadian Forces Provost Marshal and the Military Police Complaints Commission.
Reform of the military justice system is not a one-time event. As Canadian law evolves, it is essential that the National Defence Act be updated to reflect current Canadian values and legal standards, and to ensure that it continues to be an effective instrument in maintaining the operational effectiveness of the CF. Bill C-7 represents the latest evolution in a continuing process to improve an already sound and fair military justice system.
Link to Bill C-7
http://www2.parl.gc.ca/Sites/LOP/LegislativeSummaries/Bills_ls.asp?lang=E&ls=c7&source=library_prb&Parl=39&Ses=1
b. Evidence
New section 203.5 of the NDA provides that when a court martial sentences an individual, a disputed fact must be proved on a balance of probabilities. However, the prosecution must always prove aggravating facts and previous convictions beyond a reasonable doubt.
Since Bill C-25 also required the Defence Minister to arrange for an independent review of the Bill's provisions and operation every five years. :
http://www.forces.gc.ca/site/news-nouvelles/news-nouvelles-eng.asp?cat=00&id=1917
Amendments to the National Defence Act: Bill C-25, its review, and Bill C-7, An Act to Amend the National Defence Act
BG-06.010 - April 27, 2006
Highlights of Bill C-7 include:
• enhancing the independence of military judges;
• permitting the appointment of part-time military judges;
• requiring the unanimous decision of a court martial panel to find an accused guilty or not guilty;
• providing for additional sentencing options, including absolute discharges, intermittent sentences and restitution orders; and
• clarifying the responsibilities of the Canadian Forces Provost Marshal and the Military Police Complaints Commission.
Reform of the military justice system is not a one-time event. As Canadian law evolves, it is essential that the National Defence Act be updated to reflect current Canadian values and legal standards, and to ensure that it continues to be an effective instrument in maintaining the operational effectiveness of the CF. Bill C-7 represents the latest evolution in a continuing process to improve an already sound and fair military justice system.
Link to Bill C-7
http://www2.parl.gc.ca/Sites/LOP/LegislativeSummaries/Bills_ls.asp?lang=E&ls=c7&source=library_prb&Parl=39&Ses=1
b. Evidence
New section 203.5 of the NDA provides that when a court martial sentences an individual, a disputed fact must be proved on a balance of probabilities. However, the prosecution must always prove aggravating facts and previous convictions beyond a reasonable doubt.
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