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PuckChaser said:
For a member needing a write a memo that is that terse and borderline insubordinate to get help, is a failure of leadership at so many levels it makes my head shake.
Failure in Leadership........You Bet, however, this memo is not chargeable under s. 85. Only under 129(2)(b) which requires the CoC to obtain legal advice from the DJA and is electable by Court Martial. And BTW, 129(2) has been found wanting by the Charter of Rights and Freedoms. R. v. Korolyk, 2016 CM 1002
Insubordination requires an
insubordinate intent. If the guy who submits it, never wrote it. Good luck securing a conviction. If it ever made it to court martial, There are 10 elements to the offence. Three are clearly missing. Directed verdict or no prima facie case. Stay of proceedings.
Humor>Prosecutor gets remustered to MARS and posted to Halifax.<Humor
103.18 - INSUBORDINATE BEHAVIOUR
(1) Section 85 of the National Defence Act provides:
"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."
Notes:
(D) Where a charge is for using threatening or
insulting language, the particulars
must state the
expressions or their substance and the superior officer
to whom they were addressed.
(E) In the case of threatening or
insulting words, they must have been expressed to a
superior officer and with an insubordinate intent, that is to say, they must be, either in themselves, or in
the manner or circumstances in which they were spoken, insulting or disrespectful.
(G) Insubordinate language or conduct
not falling within Notes (E) or (F)
may only be charged under section 129 of the National Defence Act.
R. v. Korolyk, 2016 CM 1002
DECISION RESPECTING AN APPLICATION ASKING FOR THE DECLARATION THAT SUBSECTION 129(2) OF THE NATIONAL DEFENCE ACT IS CONTRARY TO SECTION 7 AND 11(d) OF THE CANADIAN CHARTER OF RIGHTS AND FREEDOMS
FOR THESE REASONS, THE COURT:
[27] FINDS that subsection 129(2) of the National Defence Act violates the presumption of innocence protected by section 11(d) and is not saved under section 1 of Charter.
[28] DECLARES, under section 52 of the Constitution Act, 1982, that subsection 129(2) of the National Defence Act is void insofar as it makes an accused
liable to be convicted despite the existence of a reasonable doubt on the essential element of prejudice to good order and discipline and because the presumption created in subsection 129(2) of the National Defence Act requires the trier of fact to convict in spite of a reasonable doubt.
-----------------------
DMP Policy Directive
Directive #: 003/00
Date: 1 March 2000
Updated: 17 May 2016
Subject: Post-Charge Review
Reasonable Prospect of Conviction
19. The threshold test of “reasonable prospect of conviction” is
objective. This standard is
higher than a “prima facie” case that merely requires that there is evidence whereby a reasonable jury, properly instructed, could convict. On the other hand, the standard does not require “a probability of conviction”, that is, a conclusion that a conviction is more likely than not.
20. A prosecution is
not legally sustainable unless there is evidence to support the accusation that a person subject to the Code of Service Discipline has committed a service offence. In the assessment of the evidence, an actual and reasonable belief that the offence has been committed is necessary but
not sufficient. The evidence must be evaluated to determine
how strong the case is likely to be when presented at court martial and should be made on the assumption that the trier of fact will
act impartially and according to law. This will require a proper assessment on whether
all of the elements of the alleged offence have been met, and may include the relevancy and admissibility of evidence implicating the accused, as well as the competence and
objective credibility of witnesses.
21. Prosecutors are required to consider any
defences that are plainly open to or have been indicated by the accused and any
other factors that could affect the reasonable prospect of a conviction, for example, the existence of a potential
Charter violation that may lead to the exclusion of evidence.
22. The role of the Prosecutor in assessing the reasonable prospect of conviction determination is quasi-judicial in nature. The assessment of the evidence requires a
fair evaluation of evidence in
all the circumstances of the case. Prosecutors must guard against a perception or view of the case simply adopted from the views or
enthusiasm of others. As a case develops and changes during the prosecution process the Prosecutor must guard and maintain the
independence and integrity required to
fairly reassess the case as it evolves.
23. In addition to the task of pressing a case vigorously and firmly, the Prosecutor must ensure that every prosecution is conducted fairly. A Prosecutor is not obliged to believe without reservation everything that he or she has been told by each prospective prosecution witness. As a matter of fairness, any reservation with respect to material evidence
ought to be investigated and addressed in the context of measuring the reasonable prospect of conviction.
Public Interest Criteria
24. Once satisfied that there is a reasonable prospect of conviction to justify the continuation of a prosecution, the Prosecutor must then consider whether, in light of the provable facts and all surrounding circumstances, the
public interest requires a prosecution to be pursued. It is
not the case that all offences for which there is sufficient evidence must be prosecuted.
25. The criteria that may properly be taken into account when deciding whether the public interest requires a prosecution
will vary from case to case. Generally, the
more serious the offence, the more likely that public interest will require that a prosecution be pursued. The resources available for prosecution should
not be used to pursue inappropriate cases, however the costs associated with the conduct of a court martial will never be the determining factor in deciding whether or not to proceed in a case.
26. Public interest criteria that may arise on the facts of a particular case include:
the effect on the maintenance of good order and discipline in the Canadian Forces, including the likely impact, if any, on military operations;
the seriousness or
triviality of the alleged offence;
the views of the victim and any evident impact a decision to prefer a charge may have on him or her;
significant mitigating or aggravating circumstances;
the accused’s background and any
extraordinary personal circumstances of the accused;
the degree of staleness of the alleged offence;
the accused’s alleged
degree of responsibility for the offence;
the likely effect on
public confidence in military discipline or the administration of military justice;
whether preferring a charge would be perceived as counter-productive, for example, by
bringing the administration of justice into disrepute;
the availability and appropriateness of alternatives to preferring a charge;
the prevalence of the alleged offence in the unit or military community at large and the need for general and specific deterrence;
whether the consequences of preferring a charge would be
disproportionately harsh or oppressive, especially considering how other persons implicated in the offence or previous similar cases have been or likely will be dealt with; and
whether the alleged offence is of
considerable public concern.
27. The application of these factors set out above, other relevant factors, and the weight to be given to each will
depend on the circumstances of each case.
28. When a referral authority makes an application for disposal to the DMP he or she will usually express his or her views on public interest
based on input from the Commanding Officer of the accused. The Commanding Officer of the accused will normally be in the
best position to determine how the unit’s disciplinary interests may best be served, and the referral authority will usually be in the best position to determine the
broader interests of his or her command. In the event that the accused and victim do not have the same Commanding Officer, the victim’s commanding officer should be consulted as well.
29. While the views of service authorities and the victim are to be considered by the Prosecutor, the
ultimate decision to proceed with a prosecution is made by the Prosecutor. In the proper exercise of prosecutorial discretion, a Prosecutor may deem it necessary to dispose of a charge or charges in a manner inconsistent with the views of military authorities as expressed in accordance with QR&O article 109.03(2)(c) or 109.05(1).
30. Factors that should not be taken in account when determining whether to lay a charge include:
the rank of the accused;
reasoning which constitutes a prohibited ground of discrimination under section 3 of the Canadian Human Rights Act;
the Prosecutor’s personal feelings about the accused or the victim;
possible or perceived political advantage or disadvantage to the Canadian Forces, the Department of National Defence, the government or any political group or party;
the possible effect of the decision on the personal or professional circumstances of those responsible for the investigation or any other member of the Canadian Forces or the Department of National Defence
PS: All bolds, underlines and italics are the emphasis of C17 Tech
