dapaterson said:
I fear you are putting concepts into Letourneau's mouth that are not there. Nowhere does he deny the need for a system of military justice.
I never said that he did.
Genereux validated the constitutionality of a separate military justice system and Letourneau accepted that (He has little choice).
dapaterson said:
In the quote he speaks exclusively of "a serious ordinary criminal law offence, committed entirely in civilian-like circumstances". Section 11(f) of the charter provides cover for a military tribunal, dealing with a military charge, but as has been reiterated in Moriarty there must be a military nexus for a s130 charge. Hardly a reactionary idea that, when acting outside their capacity as soldiers, soldiers are in fact citizens, and deserve to be treated as such.
It's obvious that he was talking about a "serious criminal law offence" because the issue of a jury trial really only applies to serious offences.
Where the problem comes in is the issue of "in civilian-like circumstances". I think in his article, Letourneau was overreacting to the
Reddick decision.
Moriarity does a good job of explaining its limitation. But I'm not here to argue military nexus one way or the other.
My problem is that Letourneau (in the article that you cite and which I recall I threw into another thread as a backgrounder on nexus) is fast and loose with his language.
Take a look at the opening paragraph where he says "Contrary to France, for example, where the jurisdiction of military tribunals is limited to times of war and offences committed abroad by French soldiers, military courts in Canada, even in peacetime, have concurrent jurisdiction with civilian courts over ordinary criminal law offences."
In Part 4 starting at page 13 he points to the "rights" which soldiers lose within the military justice system: the "constitutional right to a trial by jury . . ."; the right to a preliminary inquiry; differing rules of evidence; different arrest and detention provisions; differing sentencing provisions.
What Letourneau has done is to take a paper on "The Status of Military Nexus" and gone off on a tangent about how the system denies rights to soldiers. If the paper had been one wherein which he discussed the pros and cons of the two systems and the rationale behind the differences then one could have respected it. But he didn't do that - he just threw them into a discussion about nexus with the intention that the reader just presume that these differences are bad in and of themselves. In my mind that is both lazy and dishonest legal argument and shows his bias against the existing scope of the military justice system.
The only point I was making before is that you cannot honestly say that a soldier is "deprived of the constitutional right to a trial by jury" when the constitution itself (by way of s 11(f) of the Charter) provides for a differing military justice system. To this point in time, The Supreme Court has reviewed the system several times and, while it has found issues (some major ones) that required fine tuning, overall it has accepted the military justice system using courts martial instead of juries as fully constitutional. Soldiers are being treated constitutionally differently but they have not been "deprived" of a constitutional right.
:cheers:
