Military Justice System and Mental Health

[Kiwi99]

Team, good morning

Wondering if any other NCOs have run into a situation where the JAG office tells the unit CoC not to proceed with summary trial against a soldier due to the fact that they have been diagnosed with a mental health (MH) issue.  These issues range from mild PTSD to anxiety, depression, etc, but nothing that would prevent the soldier from knowing the difference between right and wrong.  Most of the issues stem from being AWOL (days not hours), drunk and drug use and on most occasions a combination of all three rolled up into one big problem.

I have seen it where I work every time in the last 12 months where a soldier commits a service offence/s but as soon as the soldier makes it aware that they have been diagnosed with a MH issue the UDI is effectively closed and there is no further action taken (if there is the ability to do admin action that is taken but on all occasions the soldiers were already recommended for 5F release so there was really no further admin action that could be done).  On top of that, admin action such as ICs, RWs and CMPs were scoffed at by the soldier/s in question as being just another piece of paper and have never corrected the issue.

I know MH is a touchy issue and that many get very emotional about the subject, but the way I see it here on this base (Edmonton), there are a lot of soldiers that in reality are no longer subject to the code of service discipline.  Endstate; is this unique to this base or is this a Forces wide direction?

Thanks for your input

 

[FJAG]

It's been quite a few years since I retired so there may be some specific directions that I'm not aware of but I'll give it a shot based on the provisions of the NDA.

s 163 of the NDA provides the circumstances whereby a CO (and by inference, a delegated officer) may try an accused.

S163(e) provides that one of the conditions that must be met is:

(e) the commanding officer does not have reasonable grounds to believe that the accused person is unfit to stand trial or was suffering from a mental disorder at the time of the commission of the alleged offence.

Accordingly, if there are reasonable grounds for believing that the individual is unfit to stand trial at the time of trial or was suffering from a mental disorder at the time of the offence, then a CO is precluded from conducting a summary trial.

That shouldn't end the matter, however. Where an offence has been committed and the CO is precluded from trying the accused the charge should/could be referred for further action including to the Director of Military Prosecutions for court martial.

Basically unfitness to stand trial and mental disorder at the time of the offence are two very distinct concepts both of which can be tested at a court martial.

Mental disorder at the time of the offence is a defence which an accused may raise at trial with the appropriate expert evidence to establish whether or not he was or was not suffering from the degree of mental incapacity that would make a legal defence to his actions.

Unfitness at the time of trial at a court martial is governed by the provisions of Division 7 of the NDA. Basically everyone is presumed to be competent to stand trial (NDA 198(1)) If the issue of unfitness is raised then a separate trial, again based on expert evidence, is held to determine whether or not the accused is fit to stand trial, needs treatment etc.

During my days there were very few of these issues raised (Matchee was one) but I presume that with the scale of PTSD these days that the issue may be more prevalent or at least people are more cognizant of it. Again, I don't know if there is some recent direction within the system on the issue.

Based on the examples that you have given, I can understand that the chain of command would not anxious to elevate a minor AWOL case to a court martial just to test the competency angle. Similarly I can see that perhaps the words "suffering a mental disorder at the time of the commission of the offence" may be too broadly interpreted. There are mental disorders that are relevant to the offence and others that have no particular relevance. I can see where to a lay person, such as a CO, it may be difficult to determine which is which and therefore to err on the side of caution and to the benefit to the accused. Considering that in these cases the individuals were already slated for 5F releases I can understand why the chain of command may be opting for the path of least resistance. That, unfortunately, may be sending a poor message.

:cheers: