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Report obtained by CTV News shows lack of confidence in military justice system

FJAG

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Inspir said:
https://www.ctvnews.ca/canada/investigation-underway-on-whether-top-military-lawyers-suppressed-damning-report-1.3756272

I'm not privy to any of the background to this but I do note that the report was an "Interim Report" and that there appears to be a claim of "Solicitor and Client Privilege". Both are, in my view, valid reason's to keep the report confidential at this time.

This type of report does not come from the prosecuting or defence arm of the branch but from the Director of Law/Military Justice Strategic with possible support from the Director of Law/Military Justice Policy Directorate (The organization has changed somewhat since my days when it was the Director of Law/Military Justice Policy and Research and I'm not sure if DLaw/MJP would be involved until the report is final) As such, DLaw/MJS is providing legal analysis and advice to the CF and DND. Such advice and accordingly, the report is considered protected by solicitor/client privilege and the Office of the JAG has a duty to protect it from disclosure. At some point in the future, once the report is final and advice is tendered to DND as to a recommended course of action, the MND (and not JAG) would have the option as to whether to release the advice/report or claim it exempt from disclosure under s 23 of the ATI.

I think we are once again seeing a mountain being made into a molehill for pure outrage effect.

:cheers:
 

Retired AF Guy

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FJAG said:
I didn't take the 112 days statistic very seriously because it just doesn't have a ring of truth to it. (Nor anecdotally in my experience - there's also a difference between "charge laid" and "first appearance" albeit the difference should be small but frequently isn't as things run differently). Attached is a link to a chart issued by the Senate which provides some statistics respecting civilian courts and you can see that the median days for "completion time" in Provincial court (lower end cases) is stated as 123 days and superior court (higher end) 514 days.

While this article agrees from Stats Canada* agrees that the median is 121 days, the second paragraph adds a little more detail:  The length of time taken to complete adult criminal court cases declined in 2014/2015. The median amount of time** from an individual’s first court appearance to the completion of their case was 121 days (around 4 months), which was six days shorter than the previous year (Chart 7), and three days shorter than a decade ago.

Nearly half (49%) of all cases took less than four months to complete in 2014/2015. This was followed by 42% of cases that took between 4 and 18 months to complete. The remaining 9% of cases took between 18 and 30 months to complete (6%), or 30 months or longer to complete (3%)
.

* Scroll down to "Case processing times decline" to find above paragraphs.
** Defined in above link as : "Case lengths are calculated based on the number of days it takes to complete a case from first appearance to final decision. The median is the point at which half of all cases had longer limits and half had shorter cases lengths."  Small print under Charts 7 and 8.
 

FJAG

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Just for the sake of information here is an excerpt from the last JAG Annual Report respecting the Court Martial Comprehensive Review:

Court Martial Comprehensive Review

Pursuant to his statutory responsibilities for superintendence and for the conduct of regular reviews of the administration of military justice under subsections 9.2(1) and (2) of the NDA, on 13 May 2016, the JAG directed the Deputy Judge Advocate General for Military Justice (DJAG MJ) to conduct a comprehensive review of the CAF’s court martial system.  The purpose of this review is to conduct a legal and policy analysis of all aspects of the CAF’s court martial system and, where appropriate, to develop and analyze options to enhance the effectiveness, efficiency, and legitimacy of that system.

The comprehensive review commenced on 15 July 2016, and will produce a draft policy-based report for the JAG by 21 July 2017.

The Court Martial Comprehensive Review Team (CMCRT), comprised of legal officers from the Military Justice Division, is considering the following subject matter areas:

1. The status and institutional structure of tribunals/courts with jurisdiction over service offences, including whether they ought to be: military or civilian in character;  permanent or ad hoc entities; and, capable of deploying to austere or hostile environments inside and outside of Canada;
2. The status and institutional structure of a prosecution service with responsibility for prosecuting service offences, including whether this service ought to be military or civilian in character, and capable of deploying to austere or hostile environments inside and outside of Canada;
3. The mechanism through which defence counsel services are provided to persons accused of committing service offences, including whether such services ought to be:  provided by military or civilian lawyers; provided in whole or in part at public expense; and, capable of being provided within austere or hostile environments inside and outside of Canada;
4. The substantive body of service offences, including full consideration of whether any current offences ought to be updated or repealed, and whether any additional offences ought to be added;
5. The punishments, sanctions, and sentencing laws that apply in respect of service offences, including full consideration of whether any current sentencing provisions ought to be updated or repealed, and whether any additional sentencing options ought to be added;
6. The laws of evidence that ought to apply at trials in respect of service offences;
7. The rights, grounds, and mechanisms of appeal that ought to exist for the Crown and for persons subject to the CSD; and,
8. The special needs of any particular groups who may interact with the military justice system, including victims, young persons, and aboriginal offenders.

During the reporting period, the CMCRT conducted extensive public and internal CAF consultation to seek input on the subject matter areas to be reviewed and analyzed.  Additionally, as part of its review, the CMCRT conducted technical visits involving consultation with foreign subject matter experts from ten countries (United States, Australia, New Zealand, United Kingdom, Ireland, France, Netherlands, Denmark, Norway, and Finland).  The CMCRT also took advantage of opportunities for less in-depth knowledge exchanges with military justice experts from Singapore and Israel, as part of other visits to these places that were being conducted by Office of the JAG legal officers. This comparative study by the CMCRT of how other states operate their military justice systems exposed the CMCRT to a full range of military justice considerations, structures, practices, and outcomes.

http://www.forces.gc.ca/en/about-reports-pubs-military-law-annual-2016-17/ch-3-military-justice-jurisprudence.page

I think we can all agree that this is a proactive forward reaching initiative by JAG rather than what is portrayed in the press as a suspicious hiding of a negative report. How difficult would it have been for CTV to report that "In the course of a far-reaching project to enhance the effectiveness, efficiency and legitimacy of the military justice court martial system, military lawyers obtained an interim report that alleges, in part, lack of confidence in . . ."?

:cheers:
 

Kat Stevens

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Glad I never went up in front of a CO/OC who was only 75% sure I was guilty but jammed me up anyway.
 

SupersonicMax

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Well, the summary trial already has a different burden of proof when compared to a court martial.  You do not need to have certainty beyond reasonable doubt.
 

Kat Stevens

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I Skated on more orders parades than I went down for, so there must have been some doubt involved  8).
 

ballz

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I think "inconsistent" is the best word to describe what I've seen, which when it comes to justice.... is not good.

There were some allusions to senior/executive officers getting away with things that troops would be hung for... I think there are cases of that as was shown, I also look back to the LCol who got convicted TWICE for wearing medals she hadn't earned, and only got a severe reprimand each time.

But also, the talk of NDs was mentioned above... I swear from 2012-2017 in which I was in a Battalion, a soldier could fire off a round while cleaning weapons in the coy stores and the JAG would tell the Chain of Command not to charge him because it wouldn't meet the threshold for negligent. But Gen Rouleau reported himself immediately and pled guilty and got fined $2000.

From the Summary Trials I have seen, I have seen some Majors do a good job and some Majors who shouldn't be allowed to use a gavel at a Mess dinner much less in any sort of disciplinary hearing. I have seen what can only be described as institutional incompetence which resulted in a culture of doing summary trials behind closed doors, and sadly the Majors that did a good job and had a fair hearing, came to fair conclusions, and handed out fair sentences with fair considerations were also not observed by the troops as a result.

There is also great inconsistency among units on when the disciplinary system is actually used and when someone just decides to hand out 10 extras with no trial at all.

I think the inconsistency alone has shaken my confidence no matter how much I think we need our own disciplinary system and no matter how much I think units need to have that kind of tool at the unit level.
 

FJAG

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SupersonicMax said:
Well, the summary trial already has a different burden of proof when compared to a court martial.  You do not need to have certainty beyond reasonable doubt.

The standard of proof is the same. The following is a quote from Military Justice Summary Trial 2.2 Ch 13

142. Findings refer to the presiding officer's determination as to whether it has been proven, beyond a reasonable doubt, that the accused committed the offence charged. They include determinations regarding the guilt of the accused for any included offence or an attempt to commit an offence with which the accused has been charged.

http://www.forces.gc.ca/en/about-reports-pubs-military-law-summary-trial-level/index.page

:cheers:
 

FJAG

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ballz said:
I think "inconsistent" is the best word to describe what I've seen, which when it comes to justice.... is not good.

. . .

The CF have greatly improved the training that officers need to take before being certified to conduct summary trials.

Unfortunately there will always be some officers who are not as good as others and since we don't do summary trials on a daily basis and since there are some units/commands who have differing standards we will never reach a point where each and every delegated/commanding officer ever reaches the point of having done enough of them to become proficient at them much less experts.

The only way that I could see there being consistency would be if there was a small pool of legally trained officers who went on circuit to preside at summary trials. This is something I'm dead set against because I feel very strongly that the chain of command must have the authority to administer summary justice. It's simply naive to suggest that officers who are entrusted with the right to make life and death decisions in battle are incapable of making a determination as to whether a soldier should be punished for dirty boots etc. Like anything else, I would expect that if a certain delegated officer made a complete hash of a case then the word would gently go from the CSM to the delegated officer and in extreme cases from the CSM to the RSM and into the ear of the CO. This is why we have sergeants major (amongst a host of other things).

:cheers:
 

Blackadder1916

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ballz said:
I think "inconsistent" is the best word to describe what I've seen, which when it comes to justice.... is not good.

There were some allusions to senior/executive officers getting away with things that troops would be hung for... I think there are cases of that as was shown, I also look back to the LCol who got convicted TWICE for wearing medals she hadn't earned, and only got a severe reprimand each time.

If consistency is to be the watchword, then it behooves us to be consistent in presenting the actual facts and not what is incorrectly remembered.  The LCol was not convicted twice for illegally wearing medals; her first court martial was for falsifying results for a CF EXPRES test.  In addition to the severe reprimands she was also fined, $3000 and $5000.  However, I would agree that her treatment was comparatively more lenient than would likely have happened to a junior rank.

https://decisia.jmc-cmj.forces.gc.ca/jmc-cmj/cm/en/item/99015/index.do?r=AAAAAQAGTWlsbGVyAQ
https://decisia.jmc-cmj.forces.gc.ca/jmc-cmj/cm/en/item/98997/index.do?r=AAAAAQAGTWlsbGVyAQ
 

PuckChaser

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FJAG said:
The standard of proof is the same. The following is a quote from Military Justice Summary Trial 2.2 Ch 13

It may appear that way to a lawyer, but to the average soldier who sees a LCol get off a ND charge because they refused to take ownership of wrong doing and blamed the system/training/etc, where a Cpl in a Summary Trial doesn't get that ability, it looks like a stacked deck with different rules depending on your rank.
 

FJAG

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PuckChaser said:
It may appear that way to a lawyer, but to the average soldier who sees a LCol get off a ND charge because they refused to take ownership of wrong doing and blamed the system/training/etc, where a Cpl in a Summary Trial doesn't get that ability, it looks like a stacked deck with different rules depending on your rank.

The fact that there are people out there who have the wrong idea because they'd rather listen to barrack room gossip then reading the reasons for decision published in a public forum isn't my problem.

I long ago stopped underestimating the general public's penchant for believing what they want to believe rather than what is true. We, and the system, shouldn't cater to them. Whatever we do to try to appease them won't be good enough anyway.

:cheers:
 

PuckChaser

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I read the decisions, specifically from my tour in Afghanistan. Already cited is this example: https://decisia.jmc-cmj.forces.gc.ca/jmc-cmj/cm/en/item/99003/index.do

Pled not guilty (after I found 6 other LCols who pled guilty). Found not guilty due to technicalities of C7/C8 manuals and TSOs having "no evidence of being available" and that because he fired the round into the clearing bay it wasn't negligent. Cpl does the same thing, is in and out of a Summary Trial in 30 minutes with a guilty verdict.

[41]          The accused is of the opinion that the prosecution failed to prove beyond a reasonable doubt the prejudice to good order and discipline because it did not demonstrate that he had actual knowledge or ought to have known the specific instructions and orders to which both charges referred to.
[59]          I would like to add that from the court's perspective, when a weapon's drill is done improperly causing a weapon to fire when it is not supposed to or when it is not authorized to, it does not constitute automatically a penal negligence offence in the meaning of section 129 of the National Defence Act.

Good luck using that defense at your unit. I can also personally attest that because idiots who couldn't remember their drills, I spent the entire time deployed in Kabul (at the same time as LCol Nauss) at least once a week in FFO behind my barracks going over TOETs because there was another ND.

For him to claim he didn't have knowledge of the orders and handling instructions is absolutely laughable, and perhaps worse still is that the prosecution was inept enough to be unable to prove he should have reasonably known what he was doing in a theatre of war with his service rifle.
 

ballz

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Blackadder1916 said:
If consistency is to be the watchword, then it behooves us to be consistent in presenting the actual facts and not what is incorrectly remembered.  The LCol was not convicted twice for illegally wearing medals; her first court martial was for falsifying results for a CF EXPRES test.  In addition to the severe reprimands she was also fined, $3000 and $5000.  However, I would agree that her treatment was comparatively more lenient than would likely have happened to a junior rank.

https://decisia.jmc-cmj.forces.gc.ca/jmc-cmj/cm/en/item/99015/index.do?r=AAAAAQAGTWlsbGVyAQ
https://decisia.jmc-cmj.forces.gc.ca/jmc-cmj/cm/en/item/98997/index.do?r=AAAAAQAGTWlsbGVyAQ

:surrender:

:cheers: to keeping me accountable... although now that my memory is properly refreshed, I think I'm more miffed about it then when I wrote that.
 

daftandbarmy

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PuckChaser said:
I read the decisions, specifically from my tour in Afghanistan. Already cited is this example: https://decisia.jmc-cmj.forces.gc.ca/jmc-cmj/cm/en/item/99003/index.do

Pled not guilty (after I found 6 other LCols who pled guilty). Found not guilty due to technicalities of C7/C8 manuals and TSOs having "no evidence of being available" and that because he fired the round into the clearing bay it wasn't negligent. Cpl does the same thing, is in and out of a Summary Trial in 30 minutes with a guilty verdict.

Good luck using that defense at your unit. I can also personally attest that because idiots who couldn't remember their drills, I spent the entire time deployed in Kabul (at the same time as LCol Nauss) at least once a week in FFO behind my barracks going over TOETs because there was another ND.

For him to claim he didn't have knowledge of the orders and handling instructions is absolutely laughable, and perhaps worse still is that the prosecution was inept enough to be unable to prove he should have reasonably known what he was doing in a theatre of war with his service rifle.

In NI we had a (very self-satisfied and annoying) OC found guilty and fined 1000 quid for having an ND on an operation, during a big cordon and search op. It took about two days to do the business on him, as I recall, including extracting him from a trench in the South Armagh cuds.

We thanked the Karma Gods, of course ;)
 

Cloud Cover

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daftandbarmy said:
In NI we had a (very self-satisfied and annoying) OC found guilty and fined 1000 quid for having an ND on an operation, during a big cordon and search op. It took about two days to do the business on him, as I recall, including extracting him from a trench in the South Armagh cuds.

We thanked the Karma Gods, of course ;)

I'm sorry, but in a Monty Python context that reads like the OC was rudely beating off regularly in a trench.
 

daftandbarmy

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whiskey601 said:
I'm sorry, but in a Monty Python context that reads like the OC was rudely beating off regularly in a trench.

Hmmm... thinking about his rifle coy at the time, you're probably not far wrong ;)

As an aside, he was back in the field the next day, which is an excellent example of summary justice in action IMHO.
 

pbi

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"...Some senior military brass told the report’s authors they believed some serious offenses would be better handled in the civilian justice system...."

No, please. Don't tell me we have senior officers who actually want this? IIRC we already don't try the most serious criminal offenses: what "some serious offenses" are they referring to?
 
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