Divining the right role, capabilities, structure, and Regimental System for Canada's Army Reserves

[childs56]

Not sure what you are getting at with this.

33(2) is the paragraph that allows the chain of command to order obligatory parading/training sessions. QE&O 9.04(2) limits that to 60 days Class A and 14 days Class B.

33(3) is not relevant to anything. The only reserve component whose terms of service limited them to only perform duties on active service was the Supplementary reserve (See QR&O 2.034(b)). 33(3) has no application as far as the Primary Reserve who remains subject to 33(2) vis a vis training.

31(1) relates to the power of the governor in council (cabinet) to place any unit, component etc on Active Duty in the specified circumstances. That's a whole long story in and of itself but has nothing to do with what we would call the run of the mill ordinary primary reserve force training. 31(1) is what you could call being mobilized or called up for obligatory full time service.

There is absolutely no requirement to sign a contract for Class B or C service to be liable under 33(2). Once you have been enrolled in the reserve force you are automatically liable to perform whatever training is ordered pursuant to 33(2). The legal obligation and consequences are there if in fact the provision is used.

The reality is that the various units rarely make the training obligatory pursuant to 33(2). The fact is that the units allow the training to be voluntary which, as you say, may trigger some moral obligation and not a legal one. That's not to say that the law isn't there. It most certainly is and as I said before, if you were to fail to attend a mandatory training session ordered under 33(2) you would be liable to being charged and fined in a civilian court under NDA 294(1)

:cheers:

My point is a Reservist on Class A Service has no legal obligation to serve x amount of days and cannot be charged if they do not show up for regular training.
If the Reservist voluntarily signs a Class B or C contract and then fails to show up for their duty then they are liable to be charged. That would be the only time other then a Order of Council.

 

[childs56]

Some people are talking about job protection for Reservists as if it applies across the board. The only job protection in any province has to do with Public Service Employees on the Federal and Provincial list. No Civilian employer is obligated to provide job protection to any Reserve Soldier.

 

[FJAG]

My point is a Reservist on Class A Service has no legal obligation to serve x amount of days and cannot be charged if they do not show up for regular training.
If the Reservist voluntarily signs a Class B or C contract and then fails to show up for their duty then they are liable to be charged. That would be the only time other then a Order of Council.

Okay. That's what I thought and in that case you are wrong. A reservist on Class A service, who neglects or refuses to attend a particular training session is liable to be charged and brought for trial before a civilian court pursuant to s 294(1) of the NDA and, if found guilty, is liable to be fined a maximum of $25.00 (if an non commissioned member) and $50.00 (if an officer) for every day of training he fails or neglects to attend.

A reservist on Class B or C service would in a similar case most probably be liable to charges under the CSD because at the time they fail to attend they would most probably be subject to s 60(1)(c).

As I stated above, s 33(2)(a) of the NDA gives the chain of command the legal authority to order an individual to attend training (either Class A or B) within the limits laid down by QR&O 9.04(2).

The GiC has no application or role in the circumstances of training. s 31 has a completely different purpose.

:cheers:

 

[dapaterson]

CTD: Thanks for making FJAG's point.  The part in red in the QR&O describes the terms of service of the Supp Res, not the Primary Reserve.

 

[childs56]

CTD: Thanks for making FJAG's point.  The part in red in the QR&O describes the terms of service of the Supp Res, not the Primary Reserve.

If the part highlighted in Red was in reference to the Sup Reserves it would specifically state Sup Reserves. There is a different terms of service for them them

 

[FJAG]

CTD: Thanks for making FJAG's point.  The part in red in the QR&O describes the terms of service of the Supp Res, not the Primary Reserve.

Correct. The reference for that is in QR&O 2.034 which reads in part:

2.034 - RESERVE FORCE - SUB-COMPONENTS

The sub-components of the Reserve Force are:

a. the Primary Reserve, which consists of officers and non-commissioned members who have undertaken, by the terms of their enrolment, to perform such military duty and training as may be required of them and contains all formed Reserve Force units;

b. the Supplementary Reserve, which consists of officers and non-commissioned members who, except when on active service, are not required to perform military or any other form of duty or training;

... (emphasis added.)

:cheers:

 

[childs56]

Okay. That's what I thought and in that case you are wrong. A reservist on Class A service, who neglects or refuses to attend a particular training session is liable to be charged and brought for trial before a civilian court pursuant to s 294(1) of the NDA and, if found guilty, is liable to be fined a maximum of $25.00 (if an non commissioned member) and $50.00 (if an officer) for every day of training he fails or neglects to attend.

A reservist on Class B or C service would in a similar case most probably be liable to charges under the CSD because at the time they fail to attend they would most probably be subject to s 60(1)(c).

As I stated above, s 33(2)(a) of the NDA gives the chain of command the legal authority to order an individual to attend training (either Class A or B) within the limits laid down by QR&O 9.04(2).

The GiC has no application or role in the circumstances of training. s 31 has a completely different purpose.

:cheers:

Ha ha ha. your kidding me, you really do not understand what the CSD is used for. Civilian Court would not consider a charge for a Reservist who failed to show up for Class A service or being AWOL. That is why the Military has a CSD.

A Class B or C Reservist who failed to show up for work would be charged with AWOL under the CSD and would face a Military Tribunal aka Summary Trial or Courts Martial depending on the severity of their charge.

I will standby the fact that the GIC would have to mandate training in order for Reservists to have to abide by 294. It clearly states it in the sub paras.

 

[Eye In The Sky]

:  Did you even bother to look at his MOSID?

 

[childs56]

The following is taken from Volume 1 Chapter 9 QR&O Ref Reserve Service
9.04 - TRAINING AND DUTY

(1) Subsections 33(2), (3) and (4) of the National Defence Act provide:

"33.(2) The reserve force, all units and other elements thereof and all officers and non-commissioned members thereof

may be ordered to train for such periods as are prescribed in regulations made by the Governor in Council; and
may be called out on service to perform any lawful duty other than training at such times and in such manner as by regulations or otherwise are prescribed by the Governor in Council.
(3) Nothing in subsection (2) shall be deemed to impose liability to serve as prescribed therein, without his consent, on an officer or non-commissioned member of the reserve force who is, by virtue of the terms of his enrolment, liable to perform duty on active service only.

(4) In this section, "duty" means any duty that is military in nature and includes any duty involving public service authorized under section 273.6."

The highlighted in BLUE clearly states that the GIC would have to prescribe the training, KEY WORDS  "may be ordered as prescribed in regulations made by the GIC". This does not give the Command level any authority to order Primary Reservists to train while on Class A service, nor does it give them the Authority to order a Primary Reservist to Sign a Class B contract to conduct training.

As a Reservist you cannot charge them under the CSD unless the offence was conducted while on duty, and there are strict rules as to what is considered on Duty.

 

[childs56]

:  Did you even bother to look at his MOSID?

That's what makes it even worse.

 

[FJAG]

Ha ha ha. your kidding me, you really do not understand what the CSD is used for. Civilian Court would not consider a charge for a Reservist who failed to show up for Class A service or being AWOL. That is why the Military has a CSD.

A Class B or C Reservist who failed to show up for work would be charged with AWOL under the CSD and would face a Military Tribunal aka Summary Trial or Courts Martial depending on the severity of their charge.

I will standby the fact that the GIC would have to mandate training in order for Reservists to have to abide by 294. It clearly states it in the sub paras.

I've tried three times now to point out to you how the law works (and with twenty four years experience as a legal officer with the Office of the Judge Advocate General I think I have a pretty fair understanding of that)

Quite frankly you are either hopelessly muddled in your understanding of it or you are just trying to punk us here. Personally I won't waste any more time trying to explain it to you.

:cheers:

 

[dapaterson]

The following is taken from Volume 1 Chapter 9 QR&O Ref Reserve Service
9.04 - TRAINING AND DUTY

(1) Subsections 33(2), (3) and (4) of the National Defence Act provide:

"33.(2) The reserve force, all units and other elements thereof and all officers and non-commissioned members thereof

may be ordered to train for such periods as are prescribed in regulations made by the Governor in Council; and
may be called out on service to perform any lawful duty other than training at such times and in such manner as by regulations or otherwise are prescribed by the Governor in Council.
(3) Nothing in subsection (2) shall be deemed to impose liability to serve as prescribed therein, without his consent, on an officer or non-commissioned member of the reserve force who is, by virtue of the terms of his enrolment, liable to perform duty on active service only.

(4) In this section, "duty" means any duty that is military in nature and includes any duty involving public service authorized under section 273.6."

The highlighted in BLUE clearly states that the GIC would have to prescribe the training, KEY WORDS  "may be ordered as prescribed in regulations made by the GIC". This does not give the Command level any authority to order Primary Reservists to train while on Class A service, nor does it give them the Authority to order a Primary Reservist to Sign a Class B contract to conduct training.

As a Reservist you cannot charge them under the CSD unless the offence was conducted while on duty, and there are strict rules as to what is considered on Duty.

Regulations issued by the Governor in Council.  You mean like... a QR&O that's indicated with a (G) at the end?  Sort of like, oh, QR&O 9.04, on Training and Duty, which specifies that "Subject to any limitations prescribed by the Chief of the Defence Staff, a member of the Primary Reserve may be ordered to train each year on Class "B" Reserve Service prescribed under subparagraph (1)(b) of article 9.07 (Class "B" Reserve Service) for a period not exceeding 15 days and on Class "A" Reserve Service (see article 9.06 - Class "A" Reserve Service), for a period not exceeding 60 days."

Sorry, bud, you're RTFO on this one.  You're a barracks lawyer of the worst type.

 

[childs56]

I am kind of curious if they cant perform a mandatory call out of Reservists to assist in natural disasters such as the BC, Alberta Fires Ab Floods, Ice storms what makes one think that they can force a Primary Reservist into mandatory training. The rules contradict themselves. Yet they all allow Commanders a tool box to try and have some semblance of order in trying to maintain an effective force.

As I use to say "Charge me and lets see what happens"  I am willing to admit if I am wrong, When reading the QR&Os about this matter it seems to say one thing then counter dict itself in another place.

 

[daftandbarmy]

I am kind of curious if they cant perform a mandatory call out of Reservists to assist in natural disasters such as the BC, Alberta Fires Ab Floods, Ice storms what makes one think that they can force a Primary Reservist into mandatory training. The rules contradict themselves. Yet they all allow Commanders a tool box to try and have some semblance of order in trying to maintain an effective force.

As I use to say "Charge me and lets see what happens"  I am willing to admit if I am wrong, When reading the QR&Os about this matter it seems to say one thing then counter dict itself in another place.

And that, ladies and gentlemen, is why we have lawyers

 

[Eye In The Sky]

As a Reservist you cannot charge them under the CSD unless the offence was conducted while on duty, and there are strict rules as to what is considered on Duty.

Actually, that is not correct.  What is does relate to 'when subject to the CSD'.  I know of 1 pers who was not 'on duty' but subj to the CSD as a Reserve mbr, and the incident and follow-on disciplinary and admin action resulted in the mbr's release.  Never signed a pay sheet that day and wasn't in uniform.

Attention to detail is important and you seem to lack in on this subj.  QR & O, Vol 2, Art 102.01 refers:

102.01 – PERSONS SUBJECT TO THE CODE OF SERVICE DISCIPLINE

Section 60 of the National Defence Act provides:

"60. (1) The following persons are subject to the Code of Service Discipline:
a.an officer or non-commissioned member of the regular force;
b.an officer or non-commissioned member of the special force;
c.an officer or non-commissioned member of the reserve force when the officer or non-commissioned member is i.undergoing drill or training, whether in uniform or not,
ii.in uniform,
iii.on duty,
iv.[Repealed, S.C. 1998, c. 35, s. 19],
v.called out under Part VI in aid of the civil power,
vi.called out on service,
vii.placed on active service,
viii.in or on any vessel, vehicle or aircraft of the Canadian Forces or in or on any defence establishment or work for defence,
ix.serving with any unit or other element of the regular force or the special force, or
x.present, whether in uniform or not, at any drill or training of a unit or other element of the Canadian Forces;

d.subject to such exceptions, adaptations and modifications as the Governor in Council may by regulations prescribe, a person who, pursuant to law or pursuant to an agreement between Canada and the state in whose armed forces the person is serving, is attached or seconded as an officer or non-commissioned member to the Canadian Forces;
e.a person, not otherwise subject to the Code of Service Discipline, who is serving in the position of an officer or non-commissioned member of any force raised and maintained outside Canada by Her Majesty in right of Canada and commanded by an officer of the Canadian Forces;
f.a person, not otherwise subject to the Code of Service Discipline, who accompanies any unit or other element of the Canadian Forces that is on service or active service in any place;
g.subject to such exceptions, adaptations and modifications as the Governor in Council may by regulations prescribe, a person attending an institution established under section 47;
h.an alleged spy for the enemy;
i.a person, not otherwise subject to the Code of Service Discipline, who, in respect of any service offence committed or alleged to have been committed by the person, is in civil custody or in service custody; and
j.a person, not otherwise subject to the Code of Service Discipline, while serving with the Canadian Forces under an engagement with the Minister whereby the person agreed to be subject to that Code.

 

[childs56]

I've tried three times now to point out to you how the law works (and with twenty four years experience as a legal officer with the Office of the Judge Advocate General I think I have a pretty fair understanding of that)

Quite frankly you are either hopelessly muddled in your understanding of it or you are just trying to punk us here. Personally I won't waste any more time trying to explain it to you.

:cheers:

At What  point would a Civilian Court run a trial on a CSD charge that was minor and only applicable to the Military.  Why would the Military not run a Summary trial for such. In your 24 years of service as JAG you should be able to clarify this for me and others.

This makes me wonder why a JAG would not be able to clarify and differentiate between the different sub sections. of QR&Os 9.04 along with the NDA 33 (3)
(3) Nothing in subsection (2) shall be deemed to impose liability to serve as prescribed therein, without his consent, on an officer or non-commissioned member of the reserve force who is, by virtue of the terms of his enrolment, liable to perform duty on active service only.

 

[daftandbarmy]

Actually, that is not correct.  What is does relate to 'when subject to the CSD'.  I know of 1 pers who was not 'on duty' but subj to the CSD as a Reserve mbr, and the incident and follow-on disciplinary and admin action resulted in the mbr's release.  Never signed a pay sheet that day and wasn't in uniform.

Attention to detail is important and you seem to lack in on this subj.  QR & O, Vol 2, Art 102.01 refers:

102.01 – PERSONS SUBJECT TO THE CODE OF SERVICE DISCIPLINE

Section 60 of the National Defence Act provides:

"60. (1) The following persons are subject to the Code of Service Discipline:
a.an officer or non-commissioned member of the regular force;
b.an officer or non-commissioned member of the special force;
c.an officer or non-commissioned member of the reserve force when the officer or non-commissioned member is i.undergoing drill or training, whether in uniform or not,
ii.in uniform,
iii.on duty,
iv.[Repealed, S.C. 1998, c. 35, s. 19],
v.called out under Part VI in aid of the civil power,
vi.called out on service,
vii.placed on active service,
viii.in or on any vessel, vehicle or aircraft of the Canadian Forces or in or on any defence establishment or work for defence,
ix.serving with any unit or other element of the regular force or the special force, or
x.present, whether in uniform or not, at any drill or training of a unit or other element of the Canadian Forces;

d.subject to such exceptions, adaptations and modifications as the Governor in Council may by regulations prescribe, a person who, pursuant to law or pursuant to an agreement between Canada and the state in whose armed forces the person is serving, is attached or seconded as an officer or non-commissioned member to the Canadian Forces;
e.a person, not otherwise subject to the Code of Service Discipline, who is serving in the position of an officer or non-commissioned member of any force raised and maintained outside Canada by Her Majesty in right of Canada and commanded by an officer of the Canadian Forces;
f.a person, not otherwise subject to the Code of Service Discipline, who accompanies any unit or other element of the Canadian Forces that is on service or active service in any place;
g.subject to such exceptions, adaptations and modifications as the Governor in Council may by regulations prescribe, a person attending an institution established under section 47;
h.an alleged spy for the enemy;
i.a person, not otherwise subject to the Code of Service Discipline, who, in respect of any service offence committed or alleged to have been committed by the person, is in civil custody or in service custody; and
j.a person, not otherwise subject to the Code of Service Discipline, while serving with the Canadian Forces under an engagement with the Minister whereby the person agreed to be subject to that Code.

Yup.

I know a (former) Class A CWO who was court martialed and released 5 f for sexual assault. He was not in uniform and not on duty.

It's pretty much ruined his whole life, civilian and military, of course.

 

[childs56]

charged and brought for trial before a civilian court 0(1)(c).

.

:cheers:

I am not trying be be a confrontational, or troll. I am am very curious about this whole situation.  My understanding is the CSD is used to enforce discipline within the Military for such things not covered under normal Civilian law. At what time would a Civilain court be tasked with, carry forth with these or similar charges?

 

[Eye In The Sky]

Ha ha ha. your kidding me, you really do not understand what the CSD is used for. Civilian Court would not consider a charge for a Reservist who failed to show up for Class A service or being AWOL. That is why the Military has a CSD.

Certainly comes across as confrontational,  even more so when you demonstrate you don't even know when a Reservist is subj to the CSD.  I doubt there is a more knowledgeable Mil Law SME than FJAG on the forum. :2c:

 

[childs56]

Yup.

I know a (former) Class A CWO who was court martialed and released 5 f for sexual assault. He was not in uniform and not on duty.

It's pretty much ruined his whole life, civilian and military, of course.

Was the other member of the assault a Military member also? 

In the CSD there are things that you can be charged for through the civilian courts that no matter what will effect you up to and including  release from the military.