Charges in Joshua Caleb Baker 2010 death

[Journeyman]

Perhaps. But I've got a lot of time for FJAG. He provides a perspective most of us don't have by virtue of his trade. And there are pricks in all trades.

Yes, but we both commented on the Branch as a whole, not individual members.

He's not had good experiences with them.

 

[PuckChaser]

My most recent involved having to listen as a military lawyer proudly told us how his associate beat a ND charge against a LCol (because it was into an unloading pit; the fact that it unarguably was negligent weapon-handling was irrelevant).
.....and of course, a Cpl facing a Summary Trial would automatically be found guilty (based on legal precedence), and would likely learn the correct lesson from this -- safe weapon handling.

Here's the decision, it made my stomach turn. http://www.jmc-cmj.forces.gc.ca/en/2013/nauss.page

Its unfortunate that by virtue of having summary trials not available as an option for certain ranks, we've created a 2-tier justice system where a Cpl and a Col can be charged for the exact same thing/circumstances, and yet the Cpl gets hammered due to "balance of probabilities", and the Col gets off because he's not guilty due to "reasonable" doubt.

I wouldn't fault the defense lawyer in this case, he just did his job. I fault the LCol for not "seeking and accepting responsibility" and pleading guilty.

 

[KevinB]

FJAG -- I appreciate your thoughts -- however I feel the system is broken.  I think you are a shining example into what the system should have been (even when I disagree with you)
Yes I know in theory that the MP's and JAG get SME input.  I've also seen it not work that way...

As Puckchaser alluded to the CF does have a 2 tiered Justice (I prefer Legal) System.  I've seen charges that would have been CM's scuttled to a OC level Summary when the accused said he was going to elect CM as opposed to a CO level Summary.
Looking at a lot of ND's - charges have either not gone forward with, or have been acquitted at trial for legalistic interpretations.
My own belief that is that if the CF was interested in justice and order, that it would re-vamp the NDA to either allow Legal Representation at the Summery Level (an assisting officer is not a lawyer) or restructure the entire Summary Trial system.


But to the issues at hand -- I understand it is not in the purview of the CM Appeals board to re-open other cases, or render judgements reflecting on other cases - but I see in the Watt's appeal, that if the same logic was followed through then the other cases in this incident are also suspect on judgement (even those who plead guilty).

I do not believe the MP investigative (SIU/NIS) task is well served by that branch and this role would be best served by the RCMP, in this respect I think that an uninvolved entity would be the best as this. 

 

[Tibbson]

  I've seen charges that would have been CM's scuttled to a OC level I do not believe the MP investigative (SIU/NIS) task is well served by that branch and this role would be best served by the RCMP, in this respect I think that an uninvolved entity would be the best as this.

Perhaps this is best served by a new topic but everything you have stated refers to the justice system and trial processes but now you make a statement like this.  I cant help but wonder why you think an RCMP investigation would make a difference.  If you think for one minute that the same decissions you disagree with in the military system(s) dont happen in the civilian system then you are sorely mistaken.  Many of these decissions come based on civilian case law as it is.

 

[Edward Campbell]

I agree, broadly, with Kevin, but, probably, for different reasons ...

    1. I think we need a legal system which ought to apply, as far as possible to military personnel and civilians equally, i.e. most offences which are, equally, offences under civil law ought to be tried by civil courts, even when they involve military members
        on military bases or occur outside of Canada. But I also think we need a system of military justice to deal with matters related, primarily, to "good order and service discipline" and to the conduct of operations and it should be equally applicable to
        corporals and colonels; no tiers, ever. As a CO I always felt competent to deal fairly, impartially, justly, will all "service offences," I did seek legal advice when I dealt with a few offences, like those related to drugs, and I would have been content
        to have been able to refer them to a local magistrate. But, a "negligently _____" charge, for any rank up to and including major, was well within my capability to handle at summary trial and for lieutenant colonels and above there were, always,
        colonels and generals with adequate powers. We, COs and commanders, should have had more powers to deal summarily with more people on more issues. We did not need greater powers, just more scope.

    2. I would like to see the RCMP as our police force because I think we lost some vital military functions when we lost e.g. the CProC: traffic control an handling of POWs to name just two. These are infinitely more important to an Army combat
        commander than is investigating most crimes. My sense is that the MP branch are wannabe civilian cops, not Military police.

 

[RedcapCrusader]

    2. I would like to see the RCMP as our police force because I think we lost some vital military functions when we lost e.g. the CProC: traffic control an handling of POWs to name just two. These are infinitely more important to an Army combat
        commander than is investigating most crimes. My sense is that the MP branch are wannabe civilian cops, not Military police.

The current model of of the C Pro C as the CF MP Gp still conduct those functions. Combat troops/commanders have bigger issues to worry about than Traffic Control and Detention/POW Ops.

I spend more time in the field as support to combat element while still acting in a Policing role ref: screening, control, Detention and investigation than I do being a "wannabe civil cop."

 

[Journeyman]

I spend more time in the field .....

RegF?

 

[FJAG]

Here's the decision, it made my stomach turn. http://www.jmc-cmj.forces.gc.ca/en/2013/nauss.page

Its unfortunate that by virtue of having summary trials not available as an option for certain ranks, we've created a 2-tier justice system where a Cpl and a Col can be charged for the exact same thing/circumstances, and yet the Cpl gets hammered due to "balance of probabilities", and the Col gets off because he's not guilty due to "reasonable" doubt.

I wouldn't fault the defense lawyer in this case, he just did his job. I fault the LCol for not "seeking and accepting responsibility" and pleading guilty.

I was previously aware of this case and it was one that also made me  :facepalm:. I agree that there is no blame to the defence lawyer here; he basically did his job. I agree that the case is one of bad optics and one would have hoped a LCol would simply step up and take a hit - by fighting the case (and especially by winning) he's caused a faulty message to be sent out that there is a two-tier system at play. In fact there isn't one in the way that you think. The fact that a LCol and above can't be tried summarily is to their detriment as it forces them to go into a more formal process where powers of punishment are higher and the matter becomes more public and notorious. The fact is that any soldier between the rank of Pte and Maj charged with a negligent discharge would be in the same position vis-a-vis summary trial v court martial elections. LCols and above are denied the ability to elect the trial to be handled at a lower, more informal level.

I think that the ball in this case was dropped by the prosecution which firstly framed the charges poorly and secondly failed to present sufficient evidence to secure a conviction. It is quite possible that the first error - the bad wording - may have been instrumental in the LCol deciding to plead "not guilty". I know that if I'd been defending him I would certainly have advised him of the fragility of the charge as worded.

:cheers:

 

[McG]

Unauthorized and negligent firing of a weapon needs to become a charge (or charges) of its own and not be handled under sect 129.

 

[FJAG]

FJAG -- I appreciate your thoughts -- however I feel the system is broken.  I think you are a shining example into what the system should have been (even when I disagree with you)
Yes I know in theory that the MP's and JAG get SME input.  I've also seen it not work that way...

As Puckchaser alluded to the CF does have a 2 tiered Justice (I prefer Legal) System.  I've seen charges that would have been CM's scuttled to a OC level Summary when the accused said he was going to elect CM as opposed to a CO level Summary.
Looking at a lot of ND's - charges have either not gone forward with, or have been acquitted at trial for legalistic interpretations.
My own belief that is that if the CF was interested in justice and order, that it would re-vamp the NDA to either allow Legal Representation at the Summery Level (an assisting officer is not a lawyer) or restructure the entire Summary Trial system.


But to the issues at hand -- I understand it is not in the purview of the CM Appeals board to re-open other cases, or render judgements reflecting on other cases - but I see in the Watt's appeal, that if the same logic was followed through then the other cases in this incident are also suspect on judgement (even those who plead guilty).

I do not believe the MP investigative (SIU/NIS) task is well served by that branch and this role would be best served by the RCMP, in this respect I think that an uninvolved entity would be the best as this.

Kevin

See my comment above re the two-tier issue.

I tend to disagree that the legal system is broken but certainly agree that it needs fine tuning from time-to-time.

There was a significant review of the system that started with the Charter of Rights and Freedoms and went through the post-Somalia reviews. At the time there were numerous options discussed with the most extreme including taking all powers of detention away from the CO to having courts martial before civilian judges. As with everything made in Canada and by a committee, numerous compromises were made. Most importantly, a periodic review of the military justice system (and the military police) was established by the MND and which review was put in the hands of a highly respected former Supreme Court judge. Much of the justice system as it stands is as a result of his recommendations.

I think that the most important thing one has to keep in mind about summary trials is that they are there so that commanding officers have an efficient process for enforcing day-to-day discipline within their units. At the heart of the matter is that we entrust COs and their delegated officers to make life and death decisions involving their troops in combat. To say that we can't trust them to dispense fair justice to their troops for dirty boots and negligent discharges is simply hypocritical. The corporate decision was to ramp up their training in military justice matters which has in fact greatly improved their performance at STs. Remember in 2012-13 the CF had 62 courts martial and 1210 summary trials (down from 2041 in 2007-8). Do you really want to see the size of the legal branch increase ten fold to provide representation at all those STs?  Not me - I'd rather see the infantry get their mortar platoons back.

Re Watts. True, the Court Martial Appeal Court (who incidentally are all senior civilian court judges) can't change the outcomes of other cases which did not get appealed to them. The fact that Watts won some significant issues on appeal however does not necessarily mean that those cases were wrong. I think we both agree that Nauss decision that he had a negligent discharge (the fired round makes that obvious) just not of the charge as it was worded and presented. I think in the Baker scenario that there had to be culpable individuals - I don't have sufficient detailed knowledge of the case to second guess the findings of the courts.

There are several countries that use civilian police to investigate serious military offences. In my mind they have two great shortcomings 1. a lack of knowledge of the military system, ethos, processes etc so that their investigations are handicapped, and 2. a lack of portability (especially in a timely manner) into hazardous foreign areas where the offence may have taken place thus again impeding the investigation. On the other hand civilian police frequently have more experience with serious crimes than the NIS/MPs. Like everything there are trade-offs.

:cheers:

 

[FJAG]

Unauthorized and negligent firing of a weapon needs to become a charge (or charges) of its own and not be handled under sect 129.

In 2011-12 there were 256 charges of s129 (negligent discharge) and 556 charges of s129 (other than negligent discharge). In 2012-2013 there were 254 and 422 respectively.

Prior to Afghanistan there were relatively few negligent discharge charges but thereafter the numbers increased dramatically so that by 2006-7 the JAG reported a serious trend of escalation. By 2007-8 there were 510 negligent discharge charges laid (the vast bulk during training early in the soldiers career). Since then there has been a steady decline attributed by the JAG primarily to better training but also deterrent sentencing at summary trials.

Despite the one case cited above, we have a vast track record of dealing quite well with literally thousands of negligent discharges under the existing s 129 category. There is an old legal adage that says that "hard cases make bad law" which in short means just because one LCol got off doesn't mean we need to change the s129 charge that in general has been working fairly well to address the problem. (We also have s 124 Negligent Performance of a military duty but in my mind a s 129 neglect charge is more apt and unlike s 124, s 129 falls within the jurisdiction of a summary trial)

:cheers:

 

[brihard]

Unauthorized and negligent firing of a weapon needs to become a charge (or charges) of its own and not be handled under sect 129.

I'll play amateur law nerd on this one...

Unauthorized AND negligent? Or Unauthorized AND/OR Negligent? If you go with strict 'negligent discharge', then the elements of that offense would be 'discharge of a weapon' - which is pretty obvious when it happens - and negligence, which then becomes what is legally wrangled over. The negligent quality of an action must be proven according to the standard of the summary trial or the court martial. Proving negligence, particularly beyond a reasonable doubt, can be damned hard.  Conversely, if you go strictly with 'unauthorized', it could be pretty hard to prove any element of intent, and intent is normally a requisite when laying a charge of just about anything. What is certain is that there would be a lot of new legal challenges to the new offence, and that the so-called 'technicalities' loathed those of us who pride ourselves as professionals would only multiply. The existing charge of conduct prejudicial to the maintenance of good order and discipline offers a good catchers mitt for the various and sundry Stuff Dumb Troops Can Do That's Dumb. Included in such category is of course NDs.

What we have in the CF is not an inappropriate offense, but rather an ugly blended legal system wherein 'justice' and the uniquely military quality of 'discipline' is increasingly subordinated to 'legalism', but yet has hideous gaps in due process. It's possible under the recent amendments found in the 'Strengthening Military Justice in the Defence of Canada Act'. for instance, for circumstances to exist in which the right combination of the charge and the sentence can allow an officer commanding a company or squadron (or another person delegated by the CO) to saddle a soldier with a criminal record, based on a balance of probabilities burden of broof, without that soldier having had the opportunity to be defended by an actual lawyer. And then on the other hand it's possible for manifest miscarriages of justice or discipline to be perfectly legal, with no-brainer ND cases offering a great example.

I do not have solutions to offer. But it's sure as hell flawed.

 

[Tibbson]

What we have in the CF is not an inappropriate offense, but rather an ugly blended legal system wherein 'justice' and the uniquely military quality of 'discipline' is increasingly subordinated to 'legalism', but yet has hideous gaps in due process. It's possible under the recent amendments found in the 'Strengthening Military Justice in the Defence of Canada Act'. for instance, for circumstances to exist in which the right combination of the charge and the sentence can allow an officer commanding a company or squadron (or another person delegated by the CO) to saddle a soldier with a criminal record, based on a balance of probabilities burden of broof, without that soldier having had the opportunity to be defended by an actual lawyer. And then on the other hand it's possible for manifest miscarriages of justice or discipline to be perfectly legal, with no-brainer ND cases offering a great example.

I have never seen a situation where a summary trials findings would result in a criminal record for a service person and nothing in the recent ammendments changes that from what ive seen.  It would of course go on the members service record for a time but such results would never be submitted to CPIC by the MP.  If a clerical error occurred and they were submitted by the court NCO at an MP Det they would not make it past the staff at the MP national records centre doing the entering.    Only court martial findings get entered.

 

[Bruce Monkhouse]

Well I know when I retired having a summary trial conviction stopped me from getting a pardon for a criminal record I had pre-military.

 

[brihard]

I have never seen a situation where a summary trials findings would result in a criminal record for a service person and nothing in the recent ammendments changes that from what ive seen.  It would of course go on the members service record for a time but such results would never be submitted to CPIC by the MP.  If a clerical error occurred and they were submitted by the court NCO at an MP Det they would not make it past the staff at the MP national records centre doing the entering.    Only court martial findings get entered.

OK, I may have missed the mark on this one- I'm looking at the newly added S.249.27 of the NDA in the 'strengthening military justice' act. It stipulates that an offense under various CSD sections for which the penalty does not exceed a reprimand, severe reprimand, a month's pay, or minor punishment does not constitute a criminal offense, meaning that a punishment of reduction in rank or any detention would. Both of those fall within the powers of the summary trial. Am I to understand, then, that under NO circumstances are summary trials entered onto what we would consider a 'criminal record'? Although Bruce's comment suggests that they still make it into CRIMS. What's the threshold in the Canadian military law system for a conviction to result in fingeprinting and a submission to the RCMP and that person getting an FPS number? Is it a conviction for any offense in a court martial?

 

[KevinB]

Perhaps this is best served by a new topic but everything you have stated refers to the justice system and trial processes but now you make a statement like this.  I cant help but wonder why you think an RCMP investigation would make a difference.  If you think for one minute that the same decissions you disagree with in the military system(s) dont happen in the civilian system then you are sorely mistaken.  Many of these decissions come based on civilian case law as it is.

I tilt at a lot of windmills - some with no basis perhaps. (P.S. Spell Check is your friend)
  I feel that whenever a training death occurs - there is pressure exerted to ensure someone (or several) are picked to be visible examples of correction.  I'm not sure if there was undue command influence in this case -- but I have seen it before where a (then) young Major was squashed, and senior personnel where left unmolested. 
  To me the RCMP would remove any real or illusioned command influence.

I've been looking for more testimony/evidence on the incident (C19) and am not pulling a lot up.

From a Justice perspective - if one persons sentence for an incident is 'wrong', then one can make a case the related cases are also incorrect.  I'm not naive enough to understand the Legal system does not work that way - however.

 

[little jim]

Okay, I'll give it a shot.
:cheers:

Sorry to get back onto the actual issue of Maj Watts again.

First - FJAG – that you for the informative post.

My concerns here are as follows:

Got it – Maj Watts wasn’t trained on the C19 and given the lack of resources/training aids in theatre cannot be held responsible for a weapon system he hasn’t been formally trained on.  (By extension here I would hate to think there is now a legal precedence against expecting junior officers to read up on things they don’t know.)

But wait a minute.  Maj Watts is a PRes Armour Officer.  He has never formally been qualified on his ability to lead what in essence was an infantry platoon within an infantry company.  So by accepting the Class C contract and employment isn’t there a reasonable expectation that he would be taking responsibility for what he was getting himself into?  If a situation had occurred overseas which questioned his command abilities while conducting operations the expectation I would have now is he would argue he was never trained for so therefore cannot be held responsible for any decisions he made while on deployment.

What is the expectation now for any junior officer (PRes or RegF) deploying on operations.

A friend who is a bit of a self-titled crap-stirrer is trying to find someone who works out of the reserve armouries in Calgary.  He is convinced that the Standing Orders for the KOCR has Maj Watts down as being qualified to run claymore ranges…..but then again it is probably just a template everyone has filled out for the yearly RSO list.

 

[FJAG]

I've been looking for more testimony/evidence on the incident (C19) and am not pulling a lot up.

And you probably won't. The court posts the decisions it makes and, of course, news reporters that attend the trial post snippets of what they thought they heard in evidence but transcripts are very rarely available online. The court doesn't post them but sometimes public interest groups upload copies.

I believe that in this case a full transcript was made and filed with the Court Martial Appeal Court in Ottawa (I note from the CMAC case index that a nine volume appeal book was filed by the trial court administrator which undoubtedly includes the transcript and all paper exhibits). I would think that as a public record, they should be available for viewing at the court in Ottawa.  I say that with a bit of a caveat in that while I have reviewed court records in the past as a lawyer I've never tried doing it as a retired joe shmoe. If anything however it, or a copy, should be available from the court's administrator or under an Access to Information request (but I don't know what either the court or AtI would charge for copies-and these days pretty much everyone charges for these things.)

You can call the court at (613) 996-6795 or 1-800-665-3329 to see what their policies are.

:cheers:

 

[KevinB]

Thanks -- I will try and do just that  :cheers:

 

[The Bread Guy]

This from The Canadian Press:

The Canadian Forces says it will not challenge a court ruling that overturned a soldier's conviction in a fatal training accident in Afghanistan.

In September, the Court Martial Appeal Court of Canada found Darryl Watts of Calgary not guilty of negligent performance of duty.

It ordered a new trial on a conviction of unlawfully causing bodily harm and a second count of negligent performance of duty.

An official with military prosecutions said Tuesday the military will not appeal to the Supreme Court of Canada.

But Maj. Anne Litowski, the Director of Military Prosecutions 3, said no decision has been made yet on whether to go ahead with a new trial.

"No decision taken yet regarding a new trial," Litowski wrote in an email to The Canadian Press. "Still looking at the file."

She did not say when a decision would be made ....