Topic: Non-Effective Strength (NES): Minimum Attendance

[mariomike]

Discussion of, "Failure to attend parade"
https://www.google.com/search?rls=com.microsoft%3Aen-CA%3AIE-Address&rlz=1I7GGHP_en-GBCA592&ei=SZPQW-y2Mq2p_QaI3LbIBQ&q=site%3Aarmy.ca+%22Failure+to+attend+parade%22&oq=site%3Aarmy.ca+%22Failure+to+attend+parade%22&gs_l=psy-ab.12...0.0..3631...0.0..0.0.0.......0......gws-wiz.XJAn_kcqEMM

Off topic, but interesting from my point of view given the popular belief that a reservist can't be charged for failing to attend a parade night, they can.  Section 294(1) creates the offence of "Failure to attend Parade".  Although anytime I have brought this offence forward to a JAG officer for consideration they have gone white as a ghost and started to sweat profusely, I'm not sure why any reservist would take the chance of being charged with this as the fine is a staggering $50 for each offence for an officer and $25 for each offence for a non-commissioned member.   

[runormal]

Absolutely.

And, over and above any administrative action, Part VII of the National Defence Act lists those offences for which a service member may be tried by a civilian court. With respect to reservists and training, s 294 provides:

https://laws-lois.justice.gc.ca/eng/acts/n-5/page-60.html#docCont

 

What exactly is the definition of "lawful excuse". It seems quite vague, so I'm assuming many things could you get out of it i.e (previously paid travel expenses, family issues, day job issues).

Roughly how long would it even take with all of the prep work and the trial itself? Since the member is class A, I'd assume that they'd be getting paid the whole time so it would many days missed for a CPL to even loose money.. Heck they might even come out ahead..

[ontheedge]

A reservist being required to train at the order of the CO-This  is something that is not properly communicated on most of the government websites. They all say one night a week, one weekend a month. It doesn’t say anywhere “and any other two-week period for training that the commanding officer may require“, except deep buried in the regs.

Houston we have a problem. I’ll chat with the CO if I can get an offer...

[Eaglelord17]

Those quoted regulations do not say a CO can order you to parade, it says the CDS can, two very different things. Unless there is further direction not quoted here where the CDS has delegated those powers lower, then the CO cannot order you to parade for two weeks.

[garb811]

Houston we have a problem. I’ll chat with the CO if I can get an offer...

You'll do what now...?   

[BeyondTheNow]

You'll do what now...?   

You beat me to it...

Ontheedge: I’m not quite sure what your interpretations are of how you feel issues/concerns are to be approached, but judging by that line of your post it sounds as though you think sauntering up to your CO (“...if you get an offer...”) and raising your concerns about what you think his/her expectations of you are going to be is how it’s done. It’s not. Just so you’re aware...

[FJAG]

Those quoted regulations do not say a CO can order you to parade, it says the CDS can, two very different things. Unless there is further direction not quoted here where the CDS has delegated those powers lower, then the CO cannot order you to parade for two weeks.

Sorry but you are wrong. The regulation provides that "subject to any limitations prescribed by the [CDS] . . .". The order can be given by any superior amongst whom a CO would be the most likely. The CDS is simply made the authority for prescribing any limitations to the QR&O which, incidentally, is a regulation made by the Governor in Council.

What exactly is the definition of "lawful excuse". It seems quite vague, so I'm assuming many things could you get out of it i.e (previously paid travel expenses, family issues, day job issues).

Roughly how long would it even take with all of the prep work and the trial itself? Since the member is class A, I'd assume that they'd be getting paid the whole time so it would many days missed for a CPL to even loose money.. Heck they might even come out ahead..

A "lawful excuse" is one that provides a legal justification for not attending. It would not be something that is merely a personal inconvenience such as the ones that you mention.

The length of time would vary from province to province depending on how busy the court schedules are but I would say several months.

Your assumption about being paid is wrong. Since this is a civilian charge in front of a civilian court, you would not be on duty to attend the trial or any of the court proceedings nor would you get a lawyer from Defence Counsel Services as this is not a "service offence" which is defined as:

service offence means an offence under this Act, the Criminal Code or any other Act of Parliament, committed by a person while subject to the Code of Service Discipline

Technically (and legally). S 294 is specifically provided as an offence triable by a civilian court because at the moment that you fail to attend training you are not subject to the Code of Service Discipline by virtue of S 60(1)(c) of the NDA.

The saving grace for people is that the military makes virtually no use of this provision because it's basically a pain in the butt to do. As a JAG officer I was frequently consulted about this problem and while I always encouraged COs to make use of the provision (if nothing else as a learning exercise and pour encourager les autres), no one ever took me up on it.

 

[dapaterson]

Of course, 9.05 may apply as well - requiring consent to serve with the Regular Force or with another sub-component...

[ontheedge]

You beat me to it...

Ontheedge: I’m not quite sure what your interpretations are of how you feel issues/concerns are to be approached, but judging by that line of your post it sounds as though you think sauntering up to your CO (“...if you get an offer...”) and raising your concerns about what you think his/her expectations of you are going to be is how it’s done. It’s not. Just so you’re aware...

Ya I’m a newbie. Not sure what I missed. I thought if I’m called from the unit CO with an offer, I’ll ask to see what the offer is and what the expectations are.

You seem to be saying that’s not how it’s done?  Take it or leave it?  Any questions about military requirements go look at the website? 

[garb811]

Ya I’m a newbie. Not sure what I missed. I thought if I’m called from the unit CO with an offer, I’ll ask to see what the offer is and what the expectations are.

You seem to be saying that’s not how it’s done?  Take it or leave it?  Any questions about military requirements go look at the website?

I think your expectations about what is going to happen are a little high. Different units do their officer recruitment different ways; with some, the CO personally interviews officer candidates, in others that is delegated to someone like the DCO or a Company Commander etc. So while you may have an interview with the CO, it won't be a "chat" and one thing that isn't going to happen is you negotiating the terms on which you will join the unit one on one with the CO. 

As a recruit, nobody is all that special even if on civie street you are "someone" in your chosen profession and you will be given an offer the same as everyone else gets. For some MOSIDs there are recruiting incentives or promotions to certain ranks based off of established criteria but those are the same across the board as well.  Nobody gets to have a negotiating session with their potential CO to hash out the terms on which they will serve.  The expectations for you will be the same as every other OCdt in the unit.  To show up consistently, to participate in training that is offered, to attend career courses that will get you qualified to OFP so you can actually start doing your job.  If you don't parade more than the bare minimum, if you don't go on a course because it isn't in a location that you prefer etc etc, you are going to find out very rapidly that the unit will lose interest in you and you will end up in a dead end.

The reserves are a flexible and rewarding way for someone to serve their country without a full-time commitment but at the end of the day in order for you to be an attractive candidate and to succeed in your early career, you have to leave a lot of your individual desires and expectations behind and focus on becoming a member of the team.

[Eye In The Sky]

I don't have DWAN access at this particular time...maybe someone can posted the Reserve Officer and NCM TOS CFAO?

[211RadOp]

I don't have DWAN access at this particular time...maybe someone can posted the Reserve Officer and NCM TOS CFAO?

DWAN Links only.

Officer ToS CFAO 49-10 http://corpsec.mil.ca/admfincs/subjects/cfao/049-10_e.asp
NCM ToS CFAO 49-11 http://corpsec.mil.ca/admfincs/subjects/cfao/049-11_e.asp

[klatham]

Sorry but you are wrong. The regulation provides that "subject to any limitations prescribed by the [CDS] . . .". The order can be given by any superior amongst whom a CO would be the most likely. The CDS is simply made the authority for prescribing any limitations to the QR&O which, incidentally, is a regulation made by the Governor in Council.

A "lawful excuse" is one that provides a legal justification for not attending. It would not be something that is merely a personal inconvenience such as the ones that you mention.

The length of time would vary from province to province depending on how busy the court schedules are but I would say several months.

Your assumption about being paid is wrong. Since this is a civilian charge in front of a civilian court, you would not be on duty to attend the trial or any of the court proceedings nor would you get a lawyer from Defence Counsel Services as this is not a "service offence" which is defined as:
 

Technically (and legally). S 294 is specifically provided as an offence triable by a civilian court because at the moment that you fail to attend training you are not subject to the Code of Service Discipline by virtue of S 60(1)(c) of the NDA.

The saving grace for people is that the military makes virtually no use of this provision because it's basically a pain in the butt to do. As a JAG officer I was frequently consulted about this problem and while I always encouraged COs to make use of the provision (if nothing else as a learning exercise and pour encourager les autres), no one ever took me up on it.

 

What if the Reservist in question was on Class A as a member of a Total Force Unit?  Would they not be subject to the Code of Service Discipline per NDA 60(1)(c)(ix)?  If so, would it then be considered a Service Offence?

(ix) serving with any unit or other element of the regular force or the special force,

[FJAG]

What if the Reservist in question was on Class A as a member of a Total Force Unit?  Would they not be subject to the Code of Service Discipline per NDA 60(1)(c)(ix)?  If so, would it then be considered a Service Offence?

(ix) serving with any unit or other element of the regular force or the special force,

That's an interesting question which requires more detail. There is no such legal entity in the NDA called a "Total Force Unit". S 15 of the NDA divides the forces into three components (Regular Force, Reserve Force and Special Force). Formations, units and other elements are embodied from time to time in one or another of those three components (S 17(2))

The real question is whether or not your sample Class A reservist is at the time "serving" in a "regular force" unit (There are no Special Force units at this time). This means one has to be able to define the unit as being part of the regular force component. There is a second, and even more difficult question, as to whether or not a Class A reservist, at the time of the offence is actually "serving" if not told off for duty at that time. I'm not aware of any cases in that respect and while I could offer my own opinion it would be nothing more than that and not an official opinion (seeing that I've been retired since 2009).

Just to complicate things even further, paras (vi) and (vii) deal with call outs on service and placing on active service. Generally all these involve some form of Class B or C service and not Class A. There are other strange provisions such as Order in Council OIC P.C. 1989-583 which places all officers and non-commissioned members of the reserve force on active service anywhere beyond Canada for the purposes of fulfilling Canada's commitment to NATO. Based on that one could make the technical argument that a Class A reservist vacationing in Italy could be subject to the CSD for an offence done there.

"Technical argument" however is not "legally sound argument". Everything depends on the circumstances; the willingness of military prosecutors to press a point; and a judge to accept it as the law. Barrack room lawyering is not as simple as one might hope for.

 

[klatham]

Thanks for that info and analysis.

I had no idea there was a provision that made Class A reservists subject to the CSD while outside of Canada.  I am guessing that this is not widely known.

The unit I am talking about is a Reg Force regt with a single PRes sqn.

[garb811]

While it is interesting as a general topic of discussion to "what if" a whole bunch of different scenarios, it is also important to realize that most of what is being talked about is really an academic exercise rather than something that is anything beyond a remote possibility. I'd be more willing to bet that a MP reservist I know is going to win the $60 mil on Friday before they are going to be ordered to parade for 15 Class B days next summer or charged under s 294 for not showing up on Thursday night even though they belong to a MP Regt (which is a Reg Force unit with a PRes Coy)...

[ontheedge]

While it is interesting as a general topic of discussion to "what if" a whole bunch of different scenarios, it is also important to realize that most of what is being talked about is really an academic exercise rather than something that is anything beyond a remote possibility. I'd be more willing to bet that a MP reservist I know is going to win the $60 mil on Friday before they are going to be ordered to parade for 15 Class B days next summer or charged under s 294 for not showing up on Thursday night even though they belong to a MP Regt (which is a Reg Force unit with a PRes Coy)...

Thanks for this. My next question was on a practical level when was this technical power ever used to compel attendance?  Seems like an entire academic discussion as you’ve answered.

[FJAG]

Thanks for this. My next question was on a practical level when was this technical power ever used to compel attendance?  Seems like an entire academic discussion as you’ve answered.

I was with the Office of the JAG from 1985 to 2006 and never ran across a case where s 294 was used. I had numerous discussions with unit COs and RSMs about how to compel attendance but typically when s 294 was mentioned they lost interest.

I tend to agree with garb811. While there are real powers within the NDA that can be used, the fact that traditionally we have not used them makes much of this discussion academic.

 

[Brihard]

Barrack room lawyering is not as simple as one might hope for.

 

Pfft. Do you even BEARDFORGEN?

[TheSnake]

I have a question? As a Class A Reserves, I gave a reason for why I am not showing up for a parade night, they however didn't think it was a great reason I already went to parade more than once this month .Would they give out a NES? or is this them not saying it is a good reason?

[FJAG]

I have a question? As a Class A Reserves, I gave a reason for why I am not showing up for a parade night, they however didn't think it was a great reason I already went to parade more than once this month .Would they give out a NES? or is this them not saying it is a good reason?

Check out what the NES policy is in your unit/bde. In general, CFAO 49-11 Annex D provided that a member becomes NES when he/she hasn't paraded for 30 days during which no less than three parades were conducted by the unit. If you've already paraded this month you are most probably not NES.

 

[Brihard]

I have a question? As a Class A Reserves, I gave a reason for why I am not showing up for a parade night, they however didn't think it was a great reason I already went to parade more than once this month .Would they give out a NES? or is this them not saying it is a good reason?

They cannot use NES in this case, however if attendance expectations have already been communicated to you, there’s nothing that stops them from using administrative action such as initial counseling, recorded warning, counseling and probation, and ultimately release. My regiment is using this to enforce the CO’s orders regarding 75% attendance expectations.

McDonalds would write you up and then quickly fire you for not showing up to work. A reserve unit is a job and can expect and enforce attendance for your scheduled duty. We get a lot of BS or I’ll considered reasons for why guys ‘can’t’ show up on a parade night. It’s up to the chain of command to decide to accept an excuse for not showing up for work.

[TheSnake]

Regarding ED&T what would happen if it's not approved ?

[Brihard]

Regarding ED&T what would happen if it's not approved ?

Then you're expected to show up for work per the work schedule your chain of command has given you, same as any other job. Though an ED&T getting denied is rare. You can also file a grievance against a denied ED&T if you feel it's been denied unjustly, and you may get the decision reversed. I'm actually on six months ED&T right now due to an overload of stuff in my life that was hurting my reserve attendance to the point where it was negatively impacting both me and my job performance. My chain understood it and has no issue with it.

[TheSnake]

Then you're expected to show up for work per the work schedule your chain of command has given you, same as any other job. Though an ED&T getting denied is rare. You can also file a grievance against a denied ED&T if you feel it's been denied unjustly, and you may get the decision reversed. I'm actually on six months ED&T right now due to an overload of stuff in my life that was hurting my reserve attendance to the point where it was negatively impacting both me and my job performance. My chain understood it and has no issue with it.

Thank you, I know it is very unlikely my unit would say no. It's just that I would rather do this than ask for a Release/Quit.