Court Martial discussion (merged)

[Mediman14]

Thank you for your Reply.
    My apologies as I couldn't remember the exact words,  here is what I found in the Jag's Policies.

"Parliament has also recognized the importance of the military justice system dealing with breaches of discipline promptly through the enactment of section 162 of the National Defence Act, which states:

"Charges under the Code of Service Discipline shall be dealt with as expeditiously as the circumstances permit".

6. In addition to the institutional requirements for expeditious justice, the Canadian Charter of Rights and Freedoms (Charter) imposes constitutional obligations on the military justice system to dispose of charges in a reasonable time. Section 11 (b) clearly states that:

"Any person charged with an offence has the right … (b) to be tried within a reasonable time".

 

[PuckChaser]

These are probably all excellent questions and points raised to your appointed defense lawyer, who I'm sure is smart enough to see if a delay in the charges would be grounds to have them dropped. I'm sure you don't want to prejudice your case here, so I'd highly recommend you PM FJAG with any specific questions and refrain from posting any further details.

 

[Remius]

Would it not depend on when one actually charged? 

If you are only being charged now for something that happened back then vs being charged back then and still not have had your day in court?

 

[FJAG]

Would it not depend on when one actually charged? 

If you are only being charged now for something that happened back then vs being charged back then and still not have had your day in court?

You are absolutely correct. Mediman14 has misunderstood (and in his latest post has misquoted) the provision of s162 which requires that "charges laid under the . . . " which means that only once a charge has been laid does s162 kick in. S11(b) of the Charter also relates only to post-charge delay. What Mediman14 is discussing right now is called "pre-charge delay".

There has always been a distinction in law since the Supreme Court of Canada case of R v Askov in 1990 where the court threw out a case of "post-charge delay" which was delayed within the court system for three years from date of charge to trial. The length of permissible delay is flexible and case law allows for longer delays for more complex cases etc but it also clearly recognizes that police investigation and prosecutor deliberation prior to a charge being laid can go on for much longer timelines indeed.

:cheers:

 

[DAA]

Off the feeds.....

http://news.nationalpost.com/news/canada/former-canadian-soldier-faces-court-martial-over-alleged-rude-comment-despite-honourable-discharge

 

[ModlrMike]

I saw that yesterday. I found some of the comments quite funny, but sadly uninformed - particularly coming from self professed former members.

Insubordination is and offense and release does not protect you from prosecution. Regardless of the degree of insult, this is a case that must be prosecuted. To do otherwise sets the precedent for escape from much more serious crimes.

 

[Jarnhamar]

Doesn't insubordination need to happen in an operational environment or have an operational impact of some sort? 

 

[brihard]

I confess bafflement at the delay. I know that within civilian law a minor offense (which, let's be fair, this is) would never see prosecution this long after. Even if the crown chose to proceed by indictment, odds fo surviving a Charter challenge rooted in R. v. Askov would be bloody slim. There is a compelling public interest in the service of justice being timely. I'm not sure that the juice is worth the squeeze in pursuing something this long after the fact, as I worry about the message it sends about it being acceptable to leaders to deag out/delay due process.

That said, I certainly do not have all the facts of the case. There may well be good reasons for it to have dragged as it has. But I'm skeptical.

 

[ModlrMike]

I agree that R. v Askov is an important consideration, and probably his strongest argument. That being said, the article makes note of his release taking place three months after his CM was postponed. It should not then be a surprise to him that he is still liable for trial.

I admit that I don't have the reference to hand, but I seem to recall that there is no right of release when one is facing prosecution. Someone correct me if I'm wrong.

 

[Loachman]

It was at a Mess Dinner, and he called a junior Officer "'a pussy' for not ordering another drink", according to the article.

I'd probably call the junior Officer "a pussy" for over-reacting and send him a blank Hurt Feelings Report to be filled out.

Mess Dinners these days, at least at 2 Service Battalion, must be very un-fun activities compared to those at 427 Squadron in the early eighties, from one of which I was casevacked to the Base Hospital at around 0300 by ambulance. It took me over a week to find out how I got the minor head wound that required a couple of stitches. The doctor who came in to release me later in the morning was my next-door neighbour. "H_____", said he, coming through the door. "I heard that there was a Pilot from 427 Squadron in here. If I'd known that it was you, I'd have stitched your head to the pillow". If the apparent 2 Service Battalion standard was in effect back then, almost every Captain and Lieutenant at that dinner would have faced multiple charges.

This seems extremely petty and silly.

 

[Steve_D]

The line that got me was "the military’s so-called code of service discipline" as if it is just some kind of joke.

 

[Fishbone Jones]

This is stupid to the extreme. If it was that important, they should have cancelled his release until it was settled.

If anyone should be charged, it should be whoever is pursuing this.

 

[Happy Guy]

Doesn't matter which unit it is.  The CO makes the call on whether to pursue the matter or not.

I do not know the facts but I might offer an observation - what about personal responsibility for not drinking alcohol while on medication? 

 

[Kat Stevens]

It just blows my mind that this is the sort of thing the military justice system wants to expend time and resources on.  Why was this guy allowed to release in the first place if there was a proceeding over his head?  Did they not know that they would be prcoceeding with it at some point?  Three years is a ludicrous delay for something that would have been a summary trial, $200 fine and 2 weeks CB for one of us lesser mortals.  I hope the junior officer involved feels like a proper twat for being so sensitive.  A quick comeback along the lines of "go fuck your hat" should have been justice enough.

 

[Maxadia]

This is the type of thing I would expect to see pursued in an over the top, easily offended culture where political correctness has spun out of control.  How did this junior officer ever make it through BMQ without trying to have his entire teaching staff charged?

I'm not saying that this should be ignored.  But certainly, someone could have pulled the guy aside to have him fix his mental beret.  And certainly a senior NCO could have also instructed the junior officer on developing a backbone.

Court martial, though?  Pulling witnesses from across the country? Three years later?

Yes - this is why our army is _ _ _ _ _ _ up.

 

[medicineman]

Strikes me that there is more than meets the eye here...for the area commander to decide to proceed with a CM, either the CO concocted a really elaborate story, there was some pokey chest involved or the Brigade Commander is a total (add your own denigration - I don't want to get charged too  : ).  Either way, I don't think we've heard the whole story.  It does seem odd that they're pursuing this now, however, the dude released after the original trial was postponed.  As a WO, I would HOPE he'd realize that they might just bring him back to sort it all out - I seem to recall something during my release proceeding from the Reg Force that things I did might come back later to bite me in the backside even after I left.  That's the NDA.  I did testify at a CM of a mentally challenged individual that released prior to the trial - they'd been out about 6-8 months before they appeared in court.  Sounds like they need to hire more trial lawyers to get things done in a timelier manner?

As for doltus erectus folks in the comment section, well, I would have to say I could count the combined IQ points of most on my pinky fingernail.

Time to get the popcorn out and watch the trial I guess...

MM

 

[Old Sweat]

There has to be more to this than we have seen in the published accounts. It does seem to me that as a superior when faced with a subordinate who is intoxicated and belligerent or obnoxious, usually the best course of action is to find a way to protect the individual from himself or herself.

Sometimes things don't work out and maybe the incident got too visible and too ugly.

Mods, we are going in circles. This thread could use a time out or even a lock.

 

[ballz]

Yes - this is why our army is _ _ _ _ _ _ up.

Or perhaps the Charlie net sort out SNCOs like they are supposed to. The best way to "protect" this WO would be for his CSM to do his job and hammer this kind of stuff, and these cases probably wouldn't arise in the first place. While I personally would not have gone down the same route, (I don't know the circumstances the junior officer found themselves in either) I feel no sympathy for a WO that speaks this way to a superior and has to eat it as a result. If a Private spoke this way to a MCpl, we'd hang him. I thought with higher ranks came higher expectations and more accountability?

While I understand where everyone is coming from thinking the junior officer is just being "weak," they very likely weren't even asked about whether or not they wanted charges pursued. Perhaps the dumb WO yelled it in front of everyone and forced someone's hand. There is a lot of "what if's," on this, so I also agree with medicineman that there is probably more to this than meets the eye.

Doesn't insubordination need to happen in an operational environment or have an operational impact of some sort?

No.

"85. Every person who uses threatening or insulting language to, or behaves with contempt toward, a superior officer is guilty of an offence and on conviction is liable to dismissal with disgrace from Her Majesty's service or to less punishment."

 

[Jarnhamar]

No.

"85. Every person who uses threatening or insulting language to, or behaves with contempt toward, a superior officer is guilty of an offence and on conviction is liable to dismissal with disgrace from Her Majesty's service or to less punishment."

Thanks.
I had a friend who was charged opted for court martial. One of the charges against him was insubordination but I recall him saying that charge was dropped and changed to something else. The jag guy he spoke with or legal defense (can't remember) said that insubordination needs to have something to do with operations.  That sounded strange to me though, I'll ask him about it.

When I looked up insubordination this caught my eye.

(H) Mere abusive or violent language used by, or contemptuous behaviour on the part of, a drunken person should not be charged under section 85 of the National Defence Act. As a general rule, the interests of discipline would be served by laying a charge under section 97 of the National Defence Act (see article 103.30 - Drunkenness) or section 120 of the National Defence Act (see article 103.60 - Conduct to the Prejudice of Good Order and Discipline).

I wounder if someone in that situation would be able to argue the alcohol mixed with medication could cause a state of simulated drunkeness or something.

 

[ballz]

Thanks.
I had a friend who was charged opted for court martial. One of the charges against him was insubordination but I recall him saying that charge was dropped and changed to something else. The jag guy he spoke with or legal defense (can't remember) said that insubordination needs to have something to do with operations.  That sounded strange to me though, I'll ask him about it.

Maybe some weird nuances that a JAG might know of that was specific to his case. I've seen a Cpl charged with insubordination for some remarks he made to a Sgt who wasn't keeping up while on PT and received I think 7 days CB or something. See my remarks about feeling no sympathy for this WO.

When I looked up insubordination this caught my eye.I wounder if someone in that situation would be able to argue the alcohol mixed with medication could cause a state of simulated drunkeness or something.

That's an interesting one, especially considering Mr. Pear is charged with both insubordination and drunkenness. Looks like if he gets off with one, he's getting the other one. Anywho, that's enough barrack room lawyering for me I think...