Arrest and Laying Charges

[big bad john]

You have obviously not heard some of the NCO's who trained any Officer course I've taken.  Very polite, very firm, very intimidating.  All they need to mutter is those three little letters, RTU.  It is amazing how even the most senior Officer can get serious then.  In the RM, being RTUed for cause is definitely makes your career prospects interesting.

 

[Wizard of OZ]

holly wood and big john both are good points have the most validity.

 

[big_johnson1]

I agree with HollywoodHitman, this is a brutal thread.

It's appropriate, and expected, that an instructor shows his students the proper respect due to rank and so forth, but that goes both ways, because an instructor is the student's superior, regardless of rank, while in the classroom. I would love to see one of you jack up some MCpl or Sgt who was your course instructor, see what happens when you get marched into the Commandant's office or whatever. If you have a problem with an instructor, unless it is a life or limb situation, your best bet for your own future is to take it to the chain of command and let the instructor's superiors take care of it. I don't know why this is even being talked about   Just because some people in the forces do BOTC and go to RMC doesn't mean they're any better than anyone else.

If you want to know your rights, read the QR&Os, Volume 2.
http://www.admfincs.forces.gc.ca/admfincs/subjects/qr_o/vol2/intro_e.asp

 

[big bad john]

I agree with HollywoodHitman, this is a brutal thread.

It's appropriate, and expected, that an instructor shows his students the proper respect due to rank and so forth, but that goes both ways, because an instructor is the student's superior, regardless of rank, while in the classroom. I would love to see one of you jack up some MCpl or Sgt who was your course instructor, see what happens when you get marched into the Commandant's office or whatever. If you have a problem with an instructor, unless it is a life or limb situation, your best bet for your own future is to take it to the chain of command and let the instructor's superiors take care of it. I don't know why this is even being talked about   Just because some people in the forces do BOTC and go to RMC doesn't mean they're any better than anyone else.

If you want to know your rights, read the QR&Os, Volume 2.
http://www.admfincs.forces.gc.ca/admfincs/subjects/qr_o/vol2/intro_e.asp

Courtesies such as aaddressingOfficers as "sir" are to be expected.   But rank is left at the gate on courses with field work and left while "on duty" (yes, I know, technically an Officer is never off duty) at any courses which I have taken.  

I have also "advised" some Officers while I was posted to CTCRM on the consequences of their trying to throw their rank around.   The world is not perfect, it does happen.   But hopefully it will be part of the learning process.

 

[P Kaye]

>> I agree with HollywoodHitman, this is a brutal thread.

This topic is only "brutal" because you're reading it the wrong way.
Nobody here is advocating officers running around on course arresting their instructors.
I am interested in this issue from a legal perspective.   I want to understand the NDA and QR&O's better, because everybody claims to know them, but many people make vague or false references to what is actually in them.
LEGALLY speaking, I can't find anything in the NDA or QR&Os addressing the specific issue of rank and authority on course.
If you've studied any law at all, you'll know that MP00161 is correct.   A CO or base commander (or even a judge) can NOT override federal legislation like the NDA.   It takes an act of parliament to do that.   The QR&O's are actually a set of regulations guiding the APPLICATION of the DNA.   Much of what is in the QR&Os is direct references to the NDA.

You are obviously correct, except in an extremely unusual case, it would be "brutal" for an officer on course to arrest an instructor.   But it is most certainly NOT "brutal" for those of us who want to understand the technicalities of the NDA better to discuss where the LEGAL authority lies.   Most people in the CF claim to know the NDA and the QR&O's.   Most have not actually read them front to back, however.   I frequently hear people make vague or false references to the NDA and QR&O's.   What IS "brutal" is when people cite legislation they have not even read, or do not understand.

 

[George Wallace]

Now we wouldn't have much of an Armed Forces if everyone were an AJAG, now would we?

Even AJAGs don't know everything about what CFAOs, QR&Os, The NDA, and numerous other Acts, Rules and Regulations.  In fact, I have had opportunity to point things out on occasion.  A little skill in researching and anyone can find the appropriate ruling.

Time, I think, to drop this subject?

GW

 

[P Kaye]

>> Even AJAGs don't know everything about what CFAOs, QR&Os, The NDA, and numerous other Acts, Rules and Regulations. 

Of course not.  But they know a heck of a lot more than me... if any of them monitor Army.ca, they might be able to add some clarity to this issue.

>> In fact, I have had opportunity to point things out on occasion.  A little skill in researching and anyone can find the appropriate ruling.

Exactly.  There's nothing like a little "preventative research" to avoid getting one's self into an ugly situation, not knowing who has what authority to do what.  That's part of what Army.ca is all about, right?

>> Time, I think, to drop this subject?
Well, like most subjects, it will die when nobody else has anything to add.  This one hasn't gotten very long or out of control yet.... just look at the "gun control" thread!

 

[big_johnson1]

I want to know one for instance of when an officer has had occasion to arrest an instructor on course. And not some story about how your best friend's cousing's uncle's mechanic did it once, but something that can be verified. I think this is a ridiculous thread because there are a lot of people out there that are going to get the wrong idea regarding this.

I'm not much of one who memorizes the QR&Os, and I know little of the NDA except that which is quoted in the QR&Os, but I do know how to find information, and, like GW says, that is more important because you can't be expected to know everything in there. It is, however, very simple to find references to arrest. If you want to know, you CAN arrest your course instructor.

QR&O Vol 2 105.04 states that an officer may arrest or order the arrest of any non-commissioned officer, any officer of equal or lower rank, and any officer of higher rank that is engaged in a quarrel, fray or disorder.

It doesn't get much more clear than that. From the situations you are talking about, it seems you are concerned with physical violence on the part of the instructor, and that means that technically you could arrest your instructor if he/she was the CDS. But again, why? The chain of command is in place to take care of these types of problems, and while I agree that everyone out there needs to have knowledge of their rights, that doesn't always mean that you should exercise those rights.

Feel free to read up, there's lots of good stuff if you have the patience to sort through the legalese:
http://www.admfincs.forces.gc.ca/intro_e.asp

 

[P Kaye]

>> I want to know one for instance of when an officer has had occasion to arrest an instructor on course

I don't know of any instance ever having occurred.   Again, I was curious.   You could imagine an unlikely, but possible, situation in which an instructor "loses it" in the field, and attacks a student.   In such a case, in order to protect his own safety, ordering another instructor to affect an arrest may be reasonable.   Of course this ia highly unlikely scenario, as course instructors are very well trained, and for the most part, very professional.
But again, this is only a discussion forum.   Nobody is arresting anybody!

>>   I think this is a ridiculous thread because there are a lot of people out there that are going to get the wrong idea

Just as you got the wrong idea, apparently.   All I can suggest is read carefully!   Weren't you ever taught that no question is "ridiculous", unless you already know the answer?.   I don't think we should avoid asking certain questions or discussing certain topics, just because somebody might misunderstand the point.

>> I'm not much of one who memorizes the QR&Os, and I know little of the NDA

Agreed, "memorizing" the QR&Os is a bit excessive.   I do, however, think that it is the duty of every soldier to at least READ the NDA front-to-back at least once.   It's not that long (I've done it).   It is our governing legislation as soldiers, so I think it should be required reading, and it should be tested.   Not so that soldiers have it memorized, but so they have a basic familiarity with what it covers.   It's much easier to look up information later if you know what you're looking for because you've seen it before.  
I was actually very suprised on my BMOQ that we were not given a copy of the NDA to read, AND we were given FALSE information by our Course Officer as to what is in it.   He claimed the NDA gives military officers special rights of entry and search of civilian premises if he/she beleives there are illegal drugs on the premesis.   I asked where this was detailed... he said "the National Defence Act".   I read the NDA, and discovered that he was completley wrong.   There is no such provision anywhere in the NDA.   Telling BMOQ officer candidates that they have this kind of authority is dangerous... one of them might try to exercise it someday, and wind up in jail.

I suppose this is a related topic: do people agree that the NDA should be required reading for ALL soldiers at BMQ?

>> Feel free to read up...
Thank you!

 

[Wizard of OZ]

I suppose this is a related topic: do people agree that the NDA should be required reading for ALL soldiers at BMQ?


If we want them to be on crse for about 6 months sure cause to read and understand it would take that long. ;D

 

[P Kaye]

>> If we want them to be on crse for about 6 months sure cause to read and understand it would take that long.

Surely you don't have that low an opinion of our soldiers!!  
Have you actually read the NDA?   I have, and it's not really that long an act, and it's not hard to understand the jist of it.   It could be read in a one-hour period, and discussed in a second one-hour period.
I'm not suggesting we make them go to law school and be able to argue the finer points of the relationships between the NDA and the Constitution!

 

[big bad john]

They would be better off learning their soldier/trade skills and the "Rocks and Shoals" than the whole act.   I believe that part is covered.   Correct me if I am mistaken anyone.   Arresting and laying of charges is not that much of a Soldiers life.  

 

[Wizard of OZ]

Surely you don't have that low an opinion of our soldiers!! 
Have you actually read the NDA?  I have, and it's not really that long an act, and it's not hard to understand the jist of it.  It could be read in a one-hour period, and discussed in a second one-hour period.
I'm not suggesting we make them go to law school and be able to argue the finer points of the relationships between the NDA and the Constitution!

No i don't have a low opinion of our soliders i just know how the crse are made and when you factor in the coffee breaks questions and power point presentations this would be at least a 6 month crse. ;D

In reality i could be done in a week but big john is right it should be factored to where and who is learning it.

 

[P Kaye]

>> They would be better off learning their soldier/trade skills and the "Rocks and Shoals" than the whole act.

Again, they could do it in two lecture periods (even one period, if you had them skim over some of the gory details).  This would not prevent them from learning soldiering skills.  At LEAST every soldier should be given a photocopy of the act on their BMQ, and suggested that they read it on their own.  But I really think a lecture period or two should be given to it.  It is fundamental knowledge... the act that gives legal authorization for the military to exist, train and conduct operations.

I agree though, it's a matter of time.  If it takes a week, it's obviously infeasible.  I do think it could be covered in two hours though (we weren't allowed coffee breaks in the middle of our lectures on my BMQ!).

 

[big_johnson1]

Regarding teaching the troops the NDA, I have had no occasion to even see it other than what is quoted in the QR&Os. I will say though that on the Junior Leader's Course there is an in-depth study of the QR&Os and discussions of arrest and charge procedures. It's not really necessary for a Private or a junior Corporal to know how to arrest someone, and completely out of their scope to lay charges, but at the junior leader level it is covered quite extensively (although laying charges still depends unit to unit, although I think that has already been covered). We had to do searches through the QR&Os and CFAOs for several weeks, and while this is not a complicated thing, it gives you the opportunity to read through the regs and understand that there are many slight differences to what is said in one paragraph, to what is said in another paragraph that at face value seem to be the same. As for officers, I haven't been to BOTC yet, and I got an IAP bypass so I didn't do that either, so I have no idea what they teach there, but I would expect that again, it would be a quick and dirty explanation of the regs appropriate to the rank it is being taught to, similar to the bits and pieces covered on BMQ.

I understand what you are saying about people telling you one thing, and finding out that in reality, the regs state something different, as I myself have been in the same boat. A lot of things aren't told to us, and the only way you can get them is if you read the CANFORGENs and understand your rights. But BMQ isn't really the environment for that. One of the key issues as a junior leader was to be able to help those under you understand their rights. I helped one of the guys I worked with understand his rights and obligations for commonlaw statues, because he didn't know where to look and didn't want to get secondary information from the CC that may or may not be in his best interest. From what I've seen, a lot of the troops don't give a damn about their rights until the opportunity arises when they will need to exercise those rights. Not that I'm using a blanket statement here, but I think a lot of the younger members who join tend to miss the importance of that information, until they've matured to the point where they realize how much a few lines in the CFAOs or NDA can affect their lives.

 

[P Kaye]

>> It's not really necessary for a Private or a junior Corporal to know how to arrest someone

True, but it might happen that they are arrested for some reason.  If they knew the NDA they would know what to expect, what their *legal* rights are exactly, what should happen immediately following the arrest, and even who is authorised to arrest them.  They would understand better that an arrest is not the same as a charge.

>> if you read the CANFORGENs

Unfortunately, this gets back to a common problem for Class A reservists... we usually don't have access to the DIN, except on parade nights, whe we're too busy to read things like CANFORGENs.

>>  a lot of the troops don't give a darn about their rights until the opportunity arises

Exactly... we can't trust that they're going to go off and read the NDA on their own (like I did), or read a thread like this on Army.ca.  We hvae to be sure it is part of their basic training, IMO.

 

[George Wallace]

True, but it might happen that they are arrested for some reason. If they knew the NDA they would know what to expect, what their *legal* rights are exactly, what should happen immediately following the arrest, and even who is authorised to arrest them. They would understand better that an arrest is not the same as a charge.

Get real.  We do not need any "Barrackroom Lawyers" resisting arrest because they think they know their rights.  An arrest and charge will not happen over a short period of time.  A soldier arrested or charged will be given an opportunity to seek council and will probably have an Assisting Officer assigned to them.  They will have access to QR & Os, CFAOs and whatever documentation they may require. 

Unfortunately, this gets back to a common problem for Class A reservists... we usually don't have access to the DIN, except on parade nights, whe we're too busy to read things like CANFORGENs.

>> a lot of the troops don't give a darn about their rights until the opportunity arises

Exactly... we can't trust that they're going to go off and read the NDA on their own (like I did), or read a thread like this on Army.ca. We hvae to be sure it is part of their basic training, IMO.

I think that your curiosity should be sufficiently sufficed by now.

GW

 

[garb811]

"So you're saying the School Cmdt, normally of the rank of Maj or LCol, has the authority to issue a Standing Order which will then override the NDA?  Next thing you'll be telling me is that Base Commanders can direct the MPs that they can process any Impaired Driver they want as long as it's not an Officer... "

 Really is that what it says or does it say that while attending a school you don't carry that rank with the instructors as superiors?

read my friend don't assume, they set the policy from the NDA and make it fit to the needs of that particular environment.

or how bout a base commander himself?

Obviously you've had much more exposure to the various school Standing Orders in your 5 years than I have in my 19 and since I have absolutely no idea which set of school SO's (CFLRS? CFMPA?) you're referring to I'll let you continue with your belief that an Officer can override an Act of Parliament.    

Now having said that, thinking about it a bit you may be referring to a SO which states something along the lines of "Directing Staff, no matter what the rank, carry out their instructional duties under my authority and as such, any direction which they give you may be considered to be direction from myself" (I'm just just winging the wording here but I think you get the point).  Something like this would definately set the tone that the instructors are to be heard and obeyed but it does not remove the students rank and authority provided by the NDA, nor does it make a lower ranked instructor a "superior" in any sense of the usage you would find in the NDA or QR&O's.  I know there are some folks posted to various schools on here and it would be interesting to see if their SO's have anything which covers this topic.  If you want Oz, feel free to PM me with an actual reference to support your claims and we'll carry on from there.

Also, please note that I originally said "Technically your friend could have arrested the instructor, however whether he should have is another matter entirely.".   I am in no way advocating having a course full of 2Lts running around trying to arrest their DS in any way, shape or form.

If you've studied any law at all, you'll know that MP00161 is correct.  A CO or base commander (or even a judge) can NOT override federal legislation like the NDA.

Taking this thing further off the rails... Actually a judge (at any level) can override federal legislation by ruling it to be Unconstitutional and it's up to the Crown to decide to appeal this or not.   If the Crown declines to appeal, <poof!>, law is overridden and no longer enforceable.   Doesn't happen every day but it can and does happen.   Pot possession and the Prohibition on Gay Marriage are two recent, high profile, examples of laws being declared Unconstitutional.

Get real. We do not need any "Barrackroom Lawyers" resisting arrest because they think they know their rights. An arrest and charge will not happen over a short period of time. A soldier arrested or charged will be given an opportunity to seek council and will probably have an Assisting Officer assigned to them. They will have access to QR & Os, CFAOs and whatever documentation they may require.

It should also probably be pointed out that the vast majority of persons charged pursuant to the NDA at the unit level are never arrested in relation to that charge.   You don't need to arrest someone to lay a charge against them.

 

[P Kaye]

>> Get real.   We do not need any "Barrackroom Lawyers" resisting arrest because they think they know their rights.

I am real.   If candiates have read the NDA, they will know that "resisting arrest" is actually a service offence (section 150-something).   They would know that resisting arrest will only add to their problems.   They would understand that a superior officer actually DOES have the authority to arrest them, and that he doesn't need an MP to do it for him.  

You seem to be suggesting that it would be better to keep soldiers in the dark about the law, so they don't cause problems.   I suggest that they SHOULD know the law, so that they don't cause problems.

>> I think that your curiosity should be sufficiently sufficed by now.

Thank you GW, but why don't you let me decide that for myself?   The current line of debate is whether the NDA should be taught at BMOQ.   You apparently think it should not.   Your opinion on this is noted.   I would like to continue to hear other opinions on this, if it's aright with you.

>> I am in no way advocating having a course full of 2Lts running around trying to arrest their DS in any way, shape or form

Agreed, absolutely.

>> Taking this thing further off the rails...

Not off the rails at all.   Thanks for this information... this is the kind of thing I was hoping to get out of this thread.   I was very glad to see an MP posting to it.

>> If the Crown declines to appeal, <poof!>, law is overridden and no longer enforceable.  

When this happens, is the relevant act always ammended?   Surely there must be some way for citizens to know what laws are still in force, without having to wade through years of precedent... How do we know whether a judge has overriden some aspect of the NDA in the past, rendering it obselete?

 

[Wizard of OZ]

Pot possession and the Prohibition on Gay Marriage are two recent, high profile, examples of laws being declared Unconstitutional.


Please post the case law that show pot possession to be constitutional.  That i would love to see. 

Gay marriage is a charter issue.

Taking this thing further off the rails... Actually a judge (at any level) can override federal legislation by ruling it to be Unconstitutional and it's up to the Crown to decide to appeal this or not.  If the Crown declines to appeal, <poof!>, law is overridden and no longer enforceable.  Doesn't happen every day but it can and does happen.l.

Really a judge at any level can override federal legislation?  By ruling it to be unconstitutional.  By this i am assuming you mean an act brought into effect. 
I thought only the supreme court could make those rulings(constitutional or not).  Other courts if not appealed make bidding case law to effect how police work and law exist. 

All that was meant by the other part was that the DS is the authority in the class room.  They do not outrank them in the real world.  And yes it would come from the CO of the school not to override any act of Parliament.