Code of service discipline and the Canadian Charter of rights and freedoms

[silverbach]

The Code of service discipline, being part of the National defence act, can be controlled by courts through our Constitution which obviously includes the Canadian Charter of rights and freedoms.

Roughly, section 1 of the Charter allows a violation to the Charter as long as it is justifiable in a democratic society.

Based on some documents that can be found on the links of the JAG web site, there are a lot of situations during a summary trial of a member of the CF which would be in direct violations of the Charter. This document goes on to suggest that all of those violations would be justified based by section 1 of the Charter.

As a civilian lawyer (at least for now), I find that if that's the case, it would constitute a form of discrimination since the NDA would receive a different treatment than the other federal and provincial laws. But most importantly, some of the rights being violated are against the rule of law and some major procedural rights that are imperative in a society that calls it self democratic.

 

[TangoTwoBravo]

Is your point that members of the military are treated differently than members of the general public?  Members of the Canadian Forces do indeed live under a somewhat different set of rules than the general public, and this is essential for a disciplined and effective military.

Are there specific instances that you are concerned about?

 

[043]

Hmmmmmmm and your point is???

 

[muffin]

As a civilian lawyer (at least for now),

Is there something you are planning on changing when you get in????

... imperative in a society that calls it self democratic.

Who ever said the military was democratic?! The CF protects democracy, they don't necessarily practice it 

 

[Haggis]

...I find that if that's the case, it would constitute a form of discrimination since the NDA would receive a different treatment than the other federal and provincial laws. But most importantly, some of the rights being violated are against the rule of law and some major procedural rights that are imperative in a society that calls it self democratic.

Other Canadian laws are about the general maintenance of "peace order and good government". The Code of Service Discipline is about discipline.
Therefore, it's application must be different from the laws that govern mainstream Canadian society.

 

[silverbach]

all right. I get that. Then, let me ask you this question:

If discipline should win over rights and freedoms, how come a Court martial is more entitled to garantee some of these rights, while still applying and interpreting the very same document, the Code of Service Discipline.

 

[Bruce Monkhouse]

Because a Judge can do the same thing in the civi world.

If you are digging for some huge " I found something special" moment here, I doubt you will find it. There are lots of jobs where, in order to serve, some rights are given away. I sure can't hang out with an ex-convict, but isn't " free association" one of my "rights" under the charter?

 

[xFusilier]

Courts martial have no greater entitlement to the guarantee of rights.  A court martial is a court, complete with judge, rules of evidence, and a guarantee of certain charter protections.  A summary trial is more of a disciplinary proceeding, and whilst deprivation of liberty may constitute a lawful sentence awarded by the officer preceeding a summary trial, I would argue that the jepordy that the defendant is placed in is sufficiently minor to meet the test imposed by s.1 of the Charter, this is further illustrated by the fact that until recently sentences awarded at summary trial did not result in a criminal record (if this is the case and anyone know the section that sets this out, could they please post it).

 

[TangoTwoBravo]

The Charter still affects (to a strong degree) the application of military justice.  

A summary trial permits the timely disposal of relatively minor service offences by the chain of command.  There are no lawyers present and the accused represents himself (although he has an Assisting Officer).  The powers of punishment, however, are limited in scope.  Summary trials allow for discpline to be maintained and minor matters to be handled at the lowest possible level.

At a court martial the accused has the right to legal counsel.  There will also be a prosecutor and there are much greater powers of punishment if the accused is found guilty.  There are other differences but I am not a lawyer.  Courts martial are generally reserved for more serious offences and usually take much longer than summary trials (both to get going and resolve).

Depending on the offence the accused may have the right to choose between the two types of proceedings.

The requirement for a disciplined force can certainly win out over individual rights and freedoms, but it not a matter of carte blanche.  Members of the military still have rights and it is not purely arbitrary.

 

[Bruce Monkhouse]

xFusilier,
There is a whole thread on that somewhere and I believe the end result was that you have one for 5 years for any offense under the NDA.
I will find the thread as my story is there for the "proof".

 

[xFusilier]

Thanks Bruce,

I saw that thread, and I myself looked but its kinda of like trying to find a needle in a haystact, between the NDA, CC, Identification of Criminals Act, the Corrections Act, etc.... Not that I'm questioning anyone on the veracity of there assumptions, more I'd like to know out of sheer morbid curiosity.

 

[silverbach]

Yes Bruce...you refer to freedom of association, section 2d) Canadian charter; but that concerns more union rights in labor law that anything else.

 

[George Wallace]

Actually Bruce is refering to members of a LEA, who should not be maintaining associations with known criminals, convicts or ex-cons.

 

[silverbach]

The highest law in this country is the Constitution, composed of 24 constitutional documents, one of those being the charter of rights and freedoms.

Every federal and provincial law is subjected to the constitutional provisions of this Charter...which means that an organization cannot, for reasons other than legal ones, derogate to that fact.

I understand that in the name of discipline, things gotta move fast...all right, but why can't we do this and protect the accused rights protected by the charter at the same time.

All we really need is a judge and a JAG prosecutor to take care of it.

Again, I feel that the reason things are the way they are right now is for budget reasons and using the discipline argument, with all due respect, is mainly a form of cover-up to the financial reasons which would explain why the system is the way it is as we speak.

 

[043]

The highest law in this country is the Constitution, composed of 24 constitutional documents, one of those being the charter of rights and freedoms.

Every federal and provincial law is subjected to the constitutional provisions of this Charter...which means that an organization cannot, for reasons other than legal ones, derogate to that fact.

I understand that in the name of discipline, things gotta move fast...all right, but why can't we do this and protect the accused rights protected by the charter at the same time.

All we really need is a judge and a JAG prosecutor to take care of it.

Again, I feel that the reason things are the way they are right now is for budget reasons and using the discipline argument, with all due respect, is mainly a form of cover-up to the financial reasons which would explain why the system is the way it is as we speak.

You'll see........you'll see!

 

[xFusilier]

The confusion IMHO, came when we switched terms from Orders Parade, to Summary Trial.  Having been a guest of honour at one, it is not a trial, the guilt of the accused is generally not examined (As the saying goes Sgt-Maj, march the guilt bastard in).  The purpose of a Summary Trial is to allow the accused to make statment in his defence, ie to bring facts before the Presiding Officer, that may (or may not mitigate) the punishment awarded, and to argue the accuracy of the circumstances alleged on the charge report.  It is not a sentence as such nor in the QR&O, the regulations prescribed pursuant to the NDA is it refered to as such.

 

[TangoTwoBravo]

Are you suggesting a full trial with a judge and two lawyers for every service offence?

Summary trials exist for a variety of important service reasons.  One is timeliness.  How long does it take to bring an offence to trial in the civilian realm?  Summary trials allow for the relatively quick resolution of minor breaches which maintains discipline and morale in the unit.  In addition, minor offences can be handled in a summary trial with minimum disruption to the unit.  We can, therefore, deal with these offences in a theatre of operations without having to shut everything down for a full blown court martial.  Summary trials also permit the chain of command to be involved in the handling of disciplinary matters. Since the powers of punishment are restricted it is possible to correct behaviour without destroying the errant member.  

 

[silverbach]

You're right, xFusillier, it's not a sentence, but it is a pusnishment (section 139 NDA), or in french, une peine...but the Co or the designated officer still has to prove all of the elements of the offence beyond reasonable doubt.

 

[silverbach]

I'm all for dealing with summary trials in a quick manner...I feel that what is needed to make this process a constitutional one would not change the nature of this type of trial, which would contribute equally to maintain discipline...

...I guess one needs to be face to face with a 30 day detention to fully appreciate the necessity of protecting procedural rights as labeled in the canadian charter of rights.

 

[Sf2]

The consitution allows for the military to make rules for themselves ie: Nat'l Defence Act.  Herein those regs, give the authority to the Governor in Coucil to make more rules (QR&O) and the CDS his own rules (CFAO, DAOD's)- even if it imposes some limitations on the rights and freedoms of its members all in the name of discipline.  For example, things you lose when you join - the right to trial by jury, public communication of information, and candaditure for office.