tag:blogger.com,1999:blog-4070126256373578912.post2494740555962779109..comments2024-03-20T17:53:33.153-04:00Comments on Global Military Justice Reform: Canadian military justice system has usurped the functions constitutionally assigned to the provincesEugene R. Fidellhttp://www.blogger.com/profile/14694139458443207131noreply@blogger.comBlogger2125tag:blogger.com,1999:blog-4070126256373578912.post-26215868701554513932015-05-05T14:15:01.088-04:002015-05-05T14:15:01.088-04:00On summary trials, I have few points:
Based on JAG...On summary trials, I have few points:<br />Based on JAG Annual Report 2013-2014, since 2009-2010, numbers of summary trials have reduced by about a half (from 1944 to 1128);<br />Commanding officers have some knowledge, although their training as presiding officers is rather short in comparison with judges;<br />The fact that accused service members are known by summary trials presiding officers is also a virtue; presiding officers could more appropriately tailor a sentence that would fit the offender should the person is found guilty;<br />Prior knowledge of the facts is due to the inquisitorial nature; presiding officer must ask questions. This form is not necessarily against human rights, particularly in disciplinary context;<br />Document "Military Rules of Evidence" does not apply to summary proceedings; it is designed for courts martial. Having said that, there are rules on the reception of evidence at that level (QR&O 108.21; and at c 13 of training document for presiding officers (Military Justice at Summary Trial Level, (MJSTL)). On hearsay (paras. 104-109), the document is particularly clear about the risk associated with it. As for spouses compelled to be witness against the accused, it is very unlikely to occur. First, spouses are most of the time 'civilians witnesses' who cannot be compelled. Service members cannot be compelled to testify against him or herself. An accused is asked whether he or she wishes to admit any of the particulars of any charge (QR&O 108.20 (3)(c)). This is consistent with ordinary law where judges would ask counsel first if they wish to make admissions to circumscribe the debate. Presiding officers are taught that if an accused remain silent, no adverse consequences can be inferred (MJSTL, c 13, para 62); <br />Nothing precludes raising the Charter during summary trial. But as presiding officers do not have the necessarily knowledge to deal with complex legal issues, those cases are generally referred up to court martial. Usually, those issues are spotted by unit’s legal adviser who makes a recommendation accordingly;<br />As for disclosure, the most problematic concern is its level but the fact that when an election between summary trial and court martial is offered, that disclosure must be securely communicated to a defence counsel for him or her to provide a complete legal advice and not legal information of a general nature (QR&O 101.11(1)(d));<br />Current review process is not an appeal, mainly due to lack of accurate transcript of the proceedings at summary trial. Besides, strictly speaking there is no constitutional right to an appeal (Kourtessis v MNR, [1993] 2 SCR 53; Charkaoui v Canada (Citizenship and Immigration), [2007] 1 SCR 350, 2007 SCC 9 (CanLII) at para 136). However, a meaningful appeal may be a component of the overall requirement of the right to a fair trial;<br />Once clause 75 of Bill C-15 would come into force the vast majority of convictions at summary trial would not create a criminal record entry. Personally, I would prefer a system where all cases dealt with by summary trials are like that. Besides, a summary trial conviction would not appear in the CPIC databank as there is no authority to take bio-metric measurements in the NDA for such convictions. Actually measurements that may have been taken prior a summary trial must be destroyed without delay after the trial (NDA, para 196.29(a));<br />Passion for justice, and in particular for men and women serving in the CAF, moves us all, jurists of good will. But in that pursuit of justice, careful and methodical consideration is of essence. We have to give the most accurate picture to those who have power to make changes to the system (like government officials and parliamentarians) but in general may not have either the time or the candor necessary to carefully and objectively study it. Otherwise, there is a risk that a potential reform may be based on inaccurate findings or moved by overreaction to them.<br />LCdr(ret’d) Pascal Lévesque, CD<br />Lawyer, PhD candidate, Queen’s University<br />Pascal Lévesquehttps://www.blogger.com/profile/15708349994971868363noreply@blogger.comtag:blogger.com,1999:blog-4070126256373578912.post-55869745462317657252015-05-04T13:26:18.938-04:002015-05-04T13:26:18.938-04:00I would suggest that rather than an 'unfair di...I would suggest that rather than an 'unfair disparity" it is a travesty of justice and beyond time to apply the principles of equity and fairness.Anonymoushttps://www.blogger.com/profile/06325228531119859732noreply@blogger.com