Monday, November 10, 2014

The time has come!

The time has come to provide soldiers
 and civilians tried by military tribunals
equality of treatment
  • WHEN WILL  the Canadian military justice system cease to distribute criminal records for purely disciplinary offences such as conduct prejudicial to good order and discipline, insubordination or absence without leave?
  • WHEN WILL  the Canadian military justice system cease to operate with prosecution and defence services which are not independent from the chain of command or from each other?
  • WHEN WILL  the Canadian military justice system cease to be allowed to try ordinary criminal law offences and, thereby deprive the accused – civilian or military – of the constitutional right to a trial by jury conferred upon every accused but those tried by military tribunals.

  •   WHEN WILL summary trials of ordinary criminal law offices ceased to be presided by commanders who have no legal training and have not impartiality or independence towards the accused who, in turn, is denied legal representation  as well as any appeal of the verdict or sentence?
  • WHEN WILL  the chain of command and Cabinet ceased to be granted unfettered authority to review a verdict or sentence rendered by a military tribunal.
  • WHEN WILL  it no longer be tolerated that, for example, aggravated sexual assaults , aggravated assaults causing severe bodily harm and conspiracy to commit such crimes be labelled as ‘disciplinary” offences so that  Canadian military tribunals can acquire jurisdiction to try the accused? 
      The answer is that this will remain until the courts first recognize Parliament’s failure to fundamentally revamp the Canadian military criminal justice system and, second, strike down the provisions of the National Defence Act granting military tribunals jurisdiction to try ordinary criminal offences and restore to members of the military (and accompanying civilians) their Charter's right, at least in peacetime, to equality of treatment and under the law. Until this happen these aberrations will continue to exist.

The Moriarity case which will be heard by the Supreme Court on February 12, 2015  provides the Supreme Court with a golden opportunity to do just that. 

In R. v. Moriarity  2014 CMAC 1) the Court Martial Appeal Court of Canada (CMAC) ruled that the jurisdiction of Canadian military tribunals to try ordinary criminal law and federal statutory offences is conditional on the existence of a military nexus. In other words, the offence committed has to be "a service connected offence". It is only at that condition that section 130 of the  National Defence Act R.S.C. 1985, c N-5 (Act), which imports into the Act all the Canadian Criminal Code and federal statutory offences, can be considered as not being constitutionally overbroad. 

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