FJAG
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This latest article by Murray Brewster on the CBC website is once again floating the idea of civilianizing military prosecutors and defence counsel.Liberals to study plan to move military prosecutors and defence lawyers to civilian justice system
Back in the post Somalia days I was part of a study team looking at options on how to reform the Defence Counsel Services. We looked at numerous options including turning it over to be a complete reserve force department, a civilian legal aid system and several others.
In the end we recommended the system in place now which included a core of Reg F defence counsel and a larger group of reservists augmented by a "at own cost" civilian lawyer system.
In large measure the following factors helped turn us in that direction:
Regardless of what role the judge plays there is a concurrent question as to what the military prosecution service and defence services should be configured as. It is easier to make the argument that defence counsel need to be separate from the chain of command than the prosecution service simply because virtually everywhere in the world, the prosecution service whether civilian or military, is an arm of government.
There are several nations who have a civilianized military justice system but mostly through the civilianization of judges and defence counsel services. Quite frankly there's an attractiveness to that. Firstly it would defeat any of the specious arguments that judges are influenced by the chain of command and secondly it would put military accused on the same footing as civilian accused, qualify for legal aid or foot the bill for your own lawyer (and most soldiers probably make too much money for legal aid). In a lot of ways if accused were paying their own way, trails would be shorter and guilty please more prevalent (yup. I'm that cynical).
So, long story short, IMHO lets make a Military Trial Court based on co-opting superior court criminal division judges from across Canada who will continue to work out of their civilian court houses using their own staff and ordinary procedures. If they are to also work disciplinary cases (and I think they should) then they can receive training on that. Cut Defence Counsel Services completely and make soldiers eligible for whatever legal aid services are available in their home province. While I think getting rid of DMP also has some benefits (such as shedding responsibility for all the crap that happens and foisting it onto the civilian side has some poetic justice to it) I tend to have just enough sensibility left to know that regardless of all the whining from former Colonels turned lawyers and sources for news articles, that the administration of discipline is a core requirement of any military system in order to keep people running into machine gun fire. That requires a system of investigation, legal advice and prosecution. So lets keep that part.
Just to sound more cynical - whatever changes are eventually found desirable will undoubtedly not come into effect for the next decade while people go back to the drawing board to rewrite not only the NDA but a large number of provincial justice laws. The coordination and financing meetings will be a hoot.
Let the fun begin.
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Review is latest step in addressing the military's sexual misconduct crisis
Murray Brewster · CBC News · Posted: Nov 22, 2021 8:29 AM ET | Last Updated: 7 hours ago
The Liberal government is setting up an internal working group to study whether the civilian justice system should take over all the duties of military prosecutors and defence lawyers in sexual misconduct cases within the Canadian Armed Forces, CBC News has learned. (Murray Brewster/The Canadian Press)
The Liberal government is setting up an internal working group to study whether the civilian justice system should take over all the duties of military prosecutors and defence lawyers in cases beyond sexual misconduct within the Canadian Armed Forces, CBC News has learned.
The review, being conducted in coordination with the federal Department of Justice, is the latest step towards addressing the sexual misconduct crisis that has gripped the Department of National Defence for the better part of this year.
Reference to the review is contained in documents obtained by CBC News and Defence Minister Anita Anand acknowledged, in an interview, that it is one of several initiatives being considered ahead of the findings of the misconduct external review panel headed by former supreme court justice Louise Arbour.
"It is profound," Anand said on the margins of the Halifax International Security Forum over the weekend. "I am preparing the ground for us to be able to act quickly on the recommendations in their final form from Madam Arbour."
The latest statutory review of the military justice system, released earlier this year, and penned by another retired supreme court justice, Morris Fish, recommended a series of measures to improve the independence of military prosecutors and defence lawyers, including a look at them becoming civilians. ...
Back in the post Somalia days I was part of a study team looking at options on how to reform the Defence Counsel Services. We looked at numerous options including turning it over to be a complete reserve force department, a civilian legal aid system and several others.
In the end we recommended the system in place now which included a core of Reg F defence counsel and a larger group of reservists augmented by a "at own cost" civilian lawyer system.
In large measure the following factors helped turn us in that direction:
- any military justice system needs to be portable, to be able of holding trials anywhere in the world and particulalry in operational theatres, if necessary;
- defence counsel need to be fully trained and experienced in military law so as to be able to provide appropriate legal advice to their clients;
- the military justice system at its policy level needs to have individuals in it who are experienced in defence counsel services in order to insure that future policy decisions are balanced as to the interests of the accused as well as the prosecution; and
- as the summary trial system was undergoing change to take more serious offences away from the COs and delegated officers, the military defence system would be receiving an ever increasing load of accused requiring legal advice and services including in deployed circumstances.
Regardless of what role the judge plays there is a concurrent question as to what the military prosecution service and defence services should be configured as. It is easier to make the argument that defence counsel need to be separate from the chain of command than the prosecution service simply because virtually everywhere in the world, the prosecution service whether civilian or military, is an arm of government.
There are several nations who have a civilianized military justice system but mostly through the civilianization of judges and defence counsel services. Quite frankly there's an attractiveness to that. Firstly it would defeat any of the specious arguments that judges are influenced by the chain of command and secondly it would put military accused on the same footing as civilian accused, qualify for legal aid or foot the bill for your own lawyer (and most soldiers probably make too much money for legal aid). In a lot of ways if accused were paying their own way, trails would be shorter and guilty please more prevalent (yup. I'm that cynical).
So, long story short, IMHO lets make a Military Trial Court based on co-opting superior court criminal division judges from across Canada who will continue to work out of their civilian court houses using their own staff and ordinary procedures. If they are to also work disciplinary cases (and I think they should) then they can receive training on that. Cut Defence Counsel Services completely and make soldiers eligible for whatever legal aid services are available in their home province. While I think getting rid of DMP also has some benefits (such as shedding responsibility for all the crap that happens and foisting it onto the civilian side has some poetic justice to it) I tend to have just enough sensibility left to know that regardless of all the whining from former Colonels turned lawyers and sources for news articles, that the administration of discipline is a core requirement of any military system in order to keep people running into machine gun fire. That requires a system of investigation, legal advice and prosecution. So lets keep that part.
Just to sound more cynical - whatever changes are eventually found desirable will undoubtedly not come into effect for the next decade while people go back to the drawing board to rewrite not only the NDA but a large number of provincial justice laws. The coordination and financing meetings will be a hoot.
Let the fun begin.