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

[silverbach]

Actually, that's not true.

The NDA and its regulations are not done by the military; all of those are drafted and brought in force through the legislative branch and its ratification by the Governor general. Military personel, as well as the civilians working for the ministry of defence and the CF, are subjected to that law and some of its regulations.

 

[Sf2]

well, yes, parliament makes the laws.....but the rest holds true

 

[Bruce Monkhouse]

Quote from Silverbach,
.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.

I have been "face to face" with that potential a couple of times and I have to say that I wouldn't change a thing.
It's usually the things that can be done afterwards that piss people off....[adminastrative this and that]

 

[George Wallace]

As a member of the Bar, you are governed by a certain set of Rules and Regulations that will ensure that the Laws of the Land are maintained diligently, fairly and ethically to the highest standards.  The Military is the 'Highest' enforcement 'Agency' in the land to maintain the Freedoms, Laws and Constitution of the Land.  It is therefore an organization that must have a 'higher' set of Rules and Regulations to maintain Discipline and prevent the eventuality that it may rise up and overthrow the duely elected Government.  Its' Members must therefore give up some freedoms, that others take for granted, in order to protect the Democratic Rights of others.  They are being held to higher standards.

Members of the CF are bound by more rules, regulations and laws than any typical Canadian.  The Code of Service Discipline will be the Code that will bind them and supersede any conflicting rule, regulation or law.  Members of the CF must of course be subject to the Laws of Canada, but in the exercise of their duties, they are also bound by the laws of foreign lands, the Geneva Conventions, ROEs, NATO Standing Orders, Orders in Council of the UN, the World Court, etc.  Not what your typical Canadian would be subject to.  

In a way, even with many more Rules and Regulations than Civilians, members of the CF have more freedoms.  I am sure that once you are familiar with them, you will understand the philosophy behind them a lot more.

 

[silverbach]

I agree with you to a certain extent. I mean, I understand and believe in the philosophy behind the Code of Service Discipline and its impact on everyone who is subjected to it, which includes many non-military persons working, for instance, for the ministry of defence.

Where I have a problem is in the process at a summary trial, a process that is completely different than the one in a court martial, even though those two processes have one thing in common: the application of the Code of Service Discipline.

I'm sure you will agree that the philosophy behind this code doesn't change with the type of trial that you selected (summary or Court martial). Now, let's take an example. Say that you are charged with an offence of thsi code, and you wish to have a civilian present at your summary trial as a witness because he could exonerate your involvment in the facts introduced by the MP. According to the NDA and the QR & O, the presiding officer cannot force that civilian to be present at the trial, but can only invite him to be present. If that person doesn't show up, the accused cannot present a full defense. Result: he's found guilty and he gets a punishment under 108.24 or 108.25 of the QR & O which could have a major consequence on the military life of this individual.

This is an example that illustrates how a summary trial can have a major impact on a CF member, and that's why I feel that some portions of the NDA and its regulations should be modified, simply to avoid weird situations like those where a military is convicted when he shouldn't have been, and I don't feel that with such a modification, the discipline or the morale of a unit would be in joepardy.

 

[Bruce Monkhouse]

silverbach,
I don't mean to be rude but, untill you live it, you just won't get it.
Sounds too simple but its so true........reading about "the" military justice system and thinking you "get it" would be like playing airsoft in a sand box and saying you know what is required to work in Iraq.
In the units there is more than just words on a paper......

 

[Ex-Dragoon]

Silverbach,
  You could always contact the AJAG and address your concerns to them as you both in a way speak the same lingo.

 

[Chimo]

I think a point that has not come out in this discussion is that Summary Trials are only used for very specific minor breaches of discipline, allowing the Unit it maintain discipline expeditiously at home and abroad.

Are the rules of evidence different than a Courts Martial, absolutely. Do Summary Trials work, yes. They do. Are the soldiers rights violated when compared to the Charter, probably. However, there are many appeal mechanicisms including a review of all sentencing.

I would suggest you wait to have experience with the Code of Service Discipline before you become too critical.  

 

[muffin]

This is an example that illustrates how a summary trial can have a major impact on a CF member, and that's why I feel that some portions of the NDA and its regulations should be modified, simply to avoid weird situations like those where a military is convicted when he shouldn't have been, and I don't feel that with such a modification, the discipline or the morale of a unit would be in joepardy.

If you disagree with it so, why have you applied to Navy JAG? And for my own morbid curiousity - why have you chosen the infantry as an aternative?!

 

[Sf2]

let's take an example. Say that you are charged with an offence of thsi code, and you wish to have a civilian present at your summary trial as a witness because he could exonerate your involvment in the facts introduced by the MP. According to the NDA and the QR & O, the presiding officer cannot force that civilian to be present at the trial, but can only invite him to be present. If that person doesn't show up, the accused cannot present a full defense. Result: he's found guilty and he gets a punishment under 108.24 or 108.25 of the QR & O which could have a major consequence on the military life of this individual.

Then, assumming the nature of the offence allows him to, he should elect for court martial where rules of evidence and compelling a witness exsist, if he thinks he'll be exonerated.   If not...too bad so sad, shouldn't have screwed up in the first place.

 

[silverbach]

Well Muffin,

No. 1:

As you might know, as a JAG lawyer, you can be a defense military lawyer. In that capacity, you receive your mandate from the accused. If the client, following my suggestions, wants to challenge a ruling because it goes against the Charter of rights, then you go through the entire process, all the way up tp the supreme court if you have to.

Actually, that's what happened in 1989 in the Généreux case, and the supreme court gave the National defence one hell of a slap in the face, which caused the legislative branch to rewrite a good portion of the NDA.

Trust me, if JAG offers me a job and a client wants me to challenge a section of the NDA or its regulations, I don't see why I shouldn't. After all, if the 9 judges of the supreme court agree with me, I don't think I woul be blamed by my CO.

No. 2:

I chose infantry as an alternative because I wish to collaborate in any way that I can, if I have the opportunity, to the humanitarian situation all over the world...JAG lawyers (operational law) and infantry officers can do that.

 

[muffin]

Well Muffin,

No. 1:

As you might know, as a JAG lawyer, you can be a defense military lawyer. In that capacity, you receive your mandate from the accused. If the client, following my suggestions, wants to challenge a ruling because it goes against the Charter of rights, then you go through the entire process, all the way up tp the supreme court if you have to.

Actually, that's what happened in 1989 in the Généreux case, and the supreme court gave the National defence one hell of a slap in the face, which caused the legislative branch to rewrite a good portion of the NDA.

Trust me, if JAG offers me a job and a client wants me to challenge a section of the NDA or its regulations, I don't see why I shouldn't. After all, if the 9 judges of the supreme court agree with me, I don't think I woul be blamed by my CO.

No. 2:

I chose infantry as an alternative because I wish to collaborate in any way that I can, if I have the opportunity, to the humanitarian situation all over the world...JAG lawyers (operational law) and infantry officers can do that.

Well thanks My morbid curiousity has been satisfied

 

[silverbach]

You're right, Short Final, but that's still not a reason to penalise someone because of a distinction between summary trials and a court martial.

 

[silverbach]

Well Chimo, living in Canada where the supreme law is the Constitution, I will always defend the Constitution to the best of my ability, and if the supreme court convinces me that I'm wrong, then we'll see what will be my stand.

After all, all I want is to protect the interest of my clients (the members of the CF) and give them the best defense possible, even if that means to go against the NDA and its regulations...I guess we shoul dleave this to the supreme court !?! LOL

 

[Bruce Monkhouse]

Quote,
and give them the best defense possible

..which is lawyerspeak for let the guilty run free, society be damned, and I can hide behind this statement....

You probably won't like the military as most are man/woman enough to stand up straight and say "guilty" when they know they are.

 

[silverbach]

well, lawyers and judges are in the same boat: we're in to apply the law.

If the law allows me to challenge an illegal search in a murder case, I would challenge it, at the risk of having the accused kill again. Just need to take a quick look at the decisions of supreme courts, canadian and american, to see that they both endorse this view...and that's good enough for me i fthey feel that the rights and freedoms are more importabt than a police mistake...and that, my friend, is the law.

 

[muffin]

well, lawyers and judges are in the same boat: we're in to apply the law.

If the law allows me to challenge an illegal search in a murder case, I would challenge it, at the risk of having the accused kill again. Just need to take a quick look at the decisions of supreme courts, canadian and american, to see that they both endorse this view...and that's good enough for me i fthey feel that the rights and freedoms are more importabt than a police mistake...and that, my friend, is the law.

<<whispers under breath>> ...just because  it is law - doesn't mean it is right.... it is all a matter of whether or not we can look ourselves in the mirror and get a good nights sleep.....

<<goes back to work>> 

 

[Bruce Monkhouse]

Quote,
well, lawyers and judges are in the same boat: we're in to apply the law

BS, [ where's the flag?]
that has not been true for a long time, judges interpret the law as THEY think it should apply, with the help of a Law Society who for the most part just want to see more paycheques out there running around.....
Now I'm not tarring lawyers by any means but just like my union endorses kife that I would not touch with a 10 foot poll, lawyers must belong to an association who's only reason for existence is to put more power in their hands and thereby MAKE the laws.

 

[Chimo]

Silverbach, I agree with you that the Constitution is the supreme legal document. My point is that the CSD at the Summary Trial level works well. I am only suggesting that perhaps some of your comments on its short comings are based on lack of experience in its use at the functional level.

On the other hand, please feel free to liberate the oppressed...

 

[Bruce Monkhouse]

Thanks Chimo for bringing this back to the original subject......slap me next time I swerve off like that.