JTF2 & AFG (merged)

[Thumbshark]

If the DMP would have gone through with prosecution, apart from the secrecy issues with the identity of the members,  the defence would have requested the matter be withdrawn as the per Supreme Court Ruling:
Askov v. R., [1990] 2 S.C.R. 1199, is a 1990 appeal heard before the Supreme Court of Canada which established the criteria and standards by which Canadian courts judge whether an accused's right under the Canadian Charter of Rights and Freedoms, Section 11(b) "to be tried within a reasonable time" has been infringed.

The appellants argued successfully that criminal charges against them should be stayed on the grounds that their trial had been unreasonably delayed, contrary to the Charter’s guarantee under Section 11(b) that "Any person charged with an offence has the right... to be tried within a reasonable time." Disagreeing with the Court of Appeal for Ontario, the Supreme Court found that the delays were indeed unreasonable and directed a stay of proceedings against the appellants. Thousands of pending criminal cases were consequently dismissed on similar grounds.

 

[FJAG]

FJAG

What about the possibility that the DMP figured with the long delay due to all of the legal back and forth would likely result in a loss on appeal based on said delay?

I wish I had more insight on this but unfortunately don't.

I don't think that delay would have been the issue.  While initial judicial response to the R v Askov rule resulted in numerous overenthusiastic dismissals by the court, the decision mellowed in time and a much more balanced approach to analysing delay developed over time.

The unit brought charges quickly and the paperwork seemed to go through the system quite well until it came onto the desk of the CMJ. DMP took the matter to court where it was rejected once before the Court of Appeal overturned it. It seems to me that the chain of command and the prosecutors acted diligently to move this matter forward even though it took a long time.

Generally where the prosecution and court moves diligently but the matter is delayed by outside circumstances and there is no prejudice to the accused the courts do not dismiss for delay.  I'm greatly generalizing a very complex law here. While I'm not certain I would think it was something else.

I sometimes think that we're often the cause of our own problems by being so secretive about many things like what were the reasons why the prosecution came to the conclusion that there was no"reasonable likelihood of conviction"? By not publicly stating why a certain decision is made we leave the public to speculate and once they do it's only too easy to think the worst.

Here's an example of where we kept information restricted when it ought to be made very public.

In 1999 there was a Fatal Accidents Inquiry in Winnipeg. The inquiry concerned the 1997 death of a civilian scrap metal worker who died as a result of cutting into a live German 105mm HEAT-T round that had been cleared off the Shilo ranges. He was using hydraulic sheers to separate steel from aluminium components. You should be aware that the Shilo ranges were swept annually for scrap metal, especially inert 105mm TP-T rounds which were subsequently sold to scrap yards.

During the course of the 1999 inquiry it was determined that a similar fatality to a scrap worker had occurred in Winnipeg in 1981 when he had been doing the same type of job using a cutting torch. The subsequent BoI and FAI were advised the Germans had in the late 1970s fired 250 of these rounds and had an inordinate blind rate as a result of which they stopped firing the rounds and never fired them again at Shilo. Besides the 1 round that exploded in 1981 another 12 x 105mm HEAT-T rounds were found at the scrap yard. 105mm HEAT-T and TP-T after firing and scouring by Shilo sand and years of weathering can look virtually identical.

By the time of the 1997 death Canadians were responsible for the final level 3 screening of scrap before it left the base.

During the course of the 1999 FA Inquiry the Canadian ammo tech witnesses involved in the level 3 screening had only anecdotal information about the 1981 incident. Most had thought the 1981 incident had involved a Canadian artillery 105mm HE round. They all denied any knowledge that German 105mm HEAT-T had ever been fired on the ranges. They had never been provided the information that came out of the 1981 incident BoI or the FAI which made it clear the rounds had been fired and had many blinds.

In effect by not disseminating the "confidential" 1981 BoI and FAI findings as to the presence of a significant number of blind 105mm HEAT-T rounds to the subsequent ammo techs responsible for the screening of scrap, the circumstances for the second incident were set in motion.

We've gotten a lot better but we still over classify and hide away too much information.

 

[George Wallace]

Where things went off track were as a result of the fact that the charge sheet was marked SECRET in accordance with internal DND directives that specific info about JTF2 and its members be so classified.

Ordinarily when a charge sheet is preferred the Chief Military Judge assigns a trial judge to hear the trial. In this case the CMJ refused to assign a judge on the grounds that the charge sheet was marked SECRET and because trials are to be "open to the public" and he considered the security classification to be contrary to that. Under then existing provisions of the NDA a trial judge could close proceedings to the public or protect secret information but could not do so before a trial judge is assigned. This is nothing more or less than a systemic "Catch 22".

Interesting.  If the "Charge Sheet" was "over classified" as SECRET, then why did someone not think to go back to the "ORIGINATOR" and have them lower the CLASSIFICATION?

 

[Infanteer]

For a thread about a legal issue, there was a lot of crap about passive-aggresiveness and the physics of a chokehold.  Let's keep this one on topic.

 

[FJAG]

Interesting.  If the "Charge Sheet" was "over classified" as SECRET, then why did someone not think to go back to the "ORIGINATOR" and have them lower the CLASSIFICATION?

The explanation given by the DMP prosecutor in his affidavit for the Federal Court was as follows: DMP was the originator and had set the security classification because it was mandated by both National Defence Security Instruction 27 and DCDS 05/1993 Security and Public Affairs Policy JTF2. In the end, the FCA agreed with DMP that the MCJ should have accepted the charge sheet as classified.

DMP and MCJ did try to work the matter out but couldn't come to a solution. We have two highly ranked senior legal officers here who do know how the system works. I can only presume that downgrading the security classification was either not possible or desirable and the CMJ was hung up in the Catch 22 situation.

You should note that at the time there was already legislation drafted which would have created a mechanism to resolve the issue but it was not yet before the legislature (Those things frequently take years to get on parliament's agenda). The issue wouldn't happen today.

 

[Snakedoc]

Thanks for your insight FJAG, that is some great information to help better understand the case and it is great to have your expertise on the forum!