Supreme Court on constitutionality of NDA 130

[putz]

With the SCC decision looming what are the potential changes that could come out of this?  Both for the MP and JAG branches.

 

[McG]

I assume you reference this:  http://www.scc-csc.gc.ca/WebDocuments-DocumentsWeb/35873/FM010_Appellant_Private-Alexandra-Vezina.pdf

 

[putz]

Yes

 

[McG]

This one is going up with it:  http://www.scc-csc.gc.ca/WebDocuments-DocumentsWeb/35946/FM020_Respondent_Her-Majesty-the-Queen.pdf

 

[garb811]

Short answer?  If the appeal is upheld...  Apparent spike in charges being laid as MP will be able to lay non-NDA charges themselves instead of "recommending" them to Units, where all too often nothing happens.  Less work for Presiding Officers/RMP/Defence Counsel Services/AJAG.  Less demand for CROs as MP will be able to release with conditions themselves for non-NDA offences or remand pers into custody for a show cause downtown.  Even less demand for Detention Rooms and the Digger as those convicted downtown will serve their sentance, if any, in a civilian institution.  Less latitude for Unit Disciplinary Investigations... 

Just a few quick consequences off the top of my head.

 

[putz]

Short answer?  If the appeal is upheld...  Apparent spike in charges being laid as MP will be able to lay non-NDA charges themselves instead of "recommending" them to Units, where all too often nothing happens.  Less work for Presiding Officers/RMP/Defence Counsel Services/AJAG.  Less demand for CROs as MP will be able to release with conditions themselves for non-NDA offences or remand pers into custody for a show cause downtown.  Even less demand for Detention Rooms and the Digger as those convicted downtown will serve their sentance, if any, in a civilian institution.  Less latitude for Unit Disciplinary Investigations... 

Just a few quick consequences off the top of my head.

I'm aware of this and I know that myself and a majority of MP are optimistic things will head this way.  I was looking at getting some input from JAG and Snr MP.  Seems to me, from what I've heard, JAG are optimistic that 130 will stand.

 

[garb811]

They need to be, if non-NDA charges can't be laid pursuant to S 130, they are going to see their workload slashed...which is going to raise a whole host of issues, not the least of which being how RMP, Defence Cousel and Military Judges keep "current" when there is already barely enough work for the number of them we have.

I, for one, believe S 130 has been stretched too far for the wrong reasons (just like Commanding Officer's search warrants, which for some reason have made a come back in Canada at the Unit level) so fully expect the appeals are going to be upheld.  I just hope there is a clear line drawn in the sand, unlike the CMAC "military nexus" ruling without defining what that was, which just led the Legal Branch to announce it was business as usual.

 

[dapaterson]

Be careful what you ask for; there's something to be said for a broad  "military nexus" that's mostly undefined, as it places fewer limits on you.  "Clear lines inthe sand" can become unworkable restrictions rather quickly.  I think the Court was correct in not imposing a box on the military.

 

[FJAG]

There is a lot of benefit in having a charge like s 130 (and for that matter s 132) that incorporates other federal (foreign) legislation principally amongst which is that one does not have to provide for a plethora of relevant offences in the NDA (like murder, manslaughter, assaults, etc) which are already included in other federal legislation. By incorporating existing CCC, FDA, NCA provisions the NDA is always up to date and consistent with civilian criminal legislation and will be interpreted in the same way.

:cheers:

 

[dapaterson]

By incorporating existing CCC, FDA, NCA provisions the NDA is always up to date and consistent with civilian criminal legislation and will be interpreted in the same way.

Except there are significant procedural differences between a military and a non-military trial; in the extreme instance someone with minimal legal training (a CO or delegated officer) may be required to interpret those statutes.  That is a large part of the appeals, as I understand it.

 

[FJAG]

Except there are significant procedural differences between a military and a non-military trial; in the extreme instance someone with minimal legal training (a CO or delegated officer) may be required to interpret those statutes.  That is a large part of the appeals, as I understand it.

The cases under appeal do not reach down to the Summary Trial Process at all. Fundamentally the appellants are arguing that the NDA and military law should relate solely to "disciplinary" issues while "criminal" law should be in the exclusive jurisdiction of civilian prosecutors and courts.

(Just as an aside you can see how different countries do things differently by looking at the US's Uniform Code of Military Justice where, at 10 US Code sections 877 to 934, disciplinary offences (e.g. unlawful enlistment, desertion, contempt to a superior) are side by side with criminal ones (e.g. murder, rape, assault))

https://www.law.cornell.edu/uscode/text/10/subtitle-A/part-II/chapter-47/subchapter-X

Please remember that any charge under s 130 allows the individual to demand trial by court martial. There is no way that a serious offence laid under s 130 will ever be tried summarily because either a) the accused will elect court martial or b) the officer conducting the trial will direct a court martial because his/her powers of punishment are inadequate for a serious offence.

While there are procedural differences (most of which, IMHO, are justified due to the nature of military conditions) the substantive law is identical as military judges apply the law as determined by higher courts being the appeal courts in Canada, all of which (including the Court Martial Appeal Court) are staffed solely by civilian judges.

For me the issue is not one of whether the legislature has added criminal offences to the military law, expressly (as per the UCMJ) or by incorporation by reference (as per s 130 of the NDA). The bottom line is whether or not the civilian legislature which drafted the law wanted the military courts to try criminal offences as well as disciplinary ones. Barring any constitutional prohibition on having the military try criminal offences the legislative mode used is irrelevant. IMHO the SCC has on numerous occasions found that the military justice system constitutional. I don't think they're about to change for these cases. (I've been wrong before, though  ;D)

:cheers:

 

[McG]

Regardless of the SCC decision, I suspect this will all be moot if the Victims Rights in the Military Justice System Act makes it back in the next Parlaiment.  The NDA may look more like the UCMJ with significantly fewer charges that can be heard by a presiding officer.

http://news.gc.ca/web/article-en.do?mthd=tp&crtr.page=1&nid=987929

 

[McG]

... It is also here: https://army.ca/forums/threads/119666.0

 

[putz]

IMO the main reason that NDA 130 should not be used in Canada is, unless your with CFNIS, MP cannot lay the charge.  I have had cases where I recommend NDA 130 and the unit CO has taken it upon themselves to not proceed, without consulting local JAG/AJAG for opinion.  This has happened on more then one occasion and I have heard similar stories across Canada.  Additionally why proceed with NDA 130 when you already have a fully functional Criminal Court system to try a case.  I'm not saying the NDA is broken.  It has it uses, in my mind it is best used to enforce discipline at the unit level (drunkenness, AWOL, Conduct etc). 

I feel NDA 130 has a place.  Deployed CF Operations, domestically Criminal Code.

Side note I find it interesting that MPCC themselves have been advocating for Guardhouse MP to have charge authority.

 

[McG]

So, your complaint is not with sect 130.  Your complaint is that you want all MP to have authority to lay charges.

 

[putz]

No, only part

 

[McG]

I don't think your want to lay charges is relevant to the legitimacy of Sect 130 in Canada.  But, if we are going down that rabbit hole, then I wonder ... if the military justice system cannot be trusted to deal with criminal offenses, then why can the military police be trusted to deal with the same?  Why not civilian courts and civilian police for it all?

 

[Lumber]

Can someone tell me what the hell a "military nexus" is?

 

[putz]

I don't think your want to lay charges is relevant to the legitimacy of Sect 130 in Canada.  But, if we are going down that rabbit hole, then I wonder ... if the military justice system cannot be trusted to deal with criminal offenses, then why can the military police be trusted to deal with the same?  Why not civilian courts and civilian police for it all?

Really?  Your going to turn this into a let the civilian police handle it argument... I'm talking about the judicial side and your going down the policing side.  My "want to lay charges" is not only mine it's  a common thought and obviously thought by more then myself. 

What is the need to have NDA 130 used in Canada?

- Do CM have the ability to sentence people as they would be sentenced in civilian system? No

-Is the conviction the same? not really; convicted of NDA 130 pursuant to ..... is not the same.  Last spring I was watching the SCC arguments and the JAG had to admit that in theory a person could be convicted of NDA 130 (as that is what has been broken) and then re-tried and convicted of the actual criminal offence.  Up until a few years ago 130 wasn't even logged onto criminal records in some cases

-Do the victims have the right to a matter before a civilian court via a CM? No

 

[McG]

Really?  Your going to turn this into a let the civilian police handle it argument...

Why not?  We were already going down the path of Commanding Officers cannot be trusted with the discipline of their units, and Sect 130 is the barrier to MPs babysitting the unruly CAF.

You were not complaining about sentences being different different or reflecting on the absence of Victims Rights in the Military Justice System.  You were the one pining (and suggesting the primary argument against 130 would be) for your ability to directly lay a charge.  You were the one who asked "why" when there are "fully functional" civilian systems.  Should you be surprised when the question is extended to the next logical step?  Remember this warning:

Be careful what you ask for; there's something to be said for a broad  "military nexus" that's mostly undefined, as it places fewer limits on you.  "Clear lines inthe sand" can become unworkable restrictions rather quickly.  I think the Court was correct in not imposing a box on the military.