tag:blogger.com,1999:blog-4070126256373578912.post4798355515774305763..comments2024-03-20T17:53:33.153-04:00Comments on Global Military Justice Reform: Out of kilter? The investigation, prosecution and trial of ordinary criminal law offences in the Canadian militaryEugene R. Fidellhttp://www.blogger.com/profile/14694139458443207131noreply@blogger.comBlogger2125tag:blogger.com,1999:blog-4070126256373578912.post-9976343095985129592015-05-09T13:43:17.930-04:002015-05-09T13:43:17.930-04:00No need to apologize. No offence taken. A useful a...No need to apologize. No offence taken. A useful and healthy contribution to the issue of summary trials as well as to the issue of the fundamental difference between enforcement of discipline and enforcement of criminal law. The objectives are different and need to be because if violations of the criminal law were matters of discipline, then, as an Australian judge once pointed out, all offenders should or could be prosecuted before military tribunals. Criminal prosecutions should not preempt discipline as it now does under Canadian military law nor should military disciplinary convictions or acquittals prevent criminal prosecutions. As the French writer Alphonse Daudet said: " À chacun son métier et la chèvre de M.Séguin sera bien gardée ".Anonymoushttps://www.blogger.com/profile/17573706906171075404noreply@blogger.comtag:blogger.com,1999:blog-4070126256373578912.post-64503314100497239792015-05-09T02:13:09.088-04:002015-05-09T02:13:09.088-04:00I think I have been misunderstood in my previous c...I think I have been misunderstood in my previous comments, in particular as it pertains to my intent. I am far from supporting the summary trials system as it is. After my initial analysis, there is actually a strong argument that it would not pass in its current form a judicial review pertaining on a constitutional challenge before a court of superior jurisdiction. Summary trials most likely breach sections 7, 11d) and probably 15 of the Charter. And it would appear they cannot be justified under section 1, as there would not be a rational connection between the maintenance of discipline and reducing service members' legal rights. Even if such a link exists, summary trials would most probably not pass the 'minimum impairment' threshold of the Oakes test as there are other reasonable alternatives in Canada and in similar foreign military jurisdictions. If my views are correct, I suggest Canada would have two majors options: either to depenalize the summary trial (making it purely disciplinary) or increasing judicial oversight by having the current review process either replaced or followed by a meaningful appeal before a judge or magistrate. In either case, it should not have jurisdiction over ordinary criminal offences. My research, study and analysis would have to be further fleshed out, reviewed, discussed and could change but this is where I am at the moment. This will be further expanded in my PhD dissertation.<br /><br />By my previous comments, I just wanted make what I perceive to be appropriate nuances, in an academic fashion, sometimes putting for consideration views that are not necessary mine but I know are argued by proponents of the status quo. This is what I have been doing for the past year or so in developing ideas and writing my dissertation on a topic that is near and dear to my heart. If I have antagonized anyone by my comments, please accept my sincere apologies. And be reassured that I am not here on a mission for anyone; I am speaking in my own capacity, as a now civilian lawyer and researcher.Pascal Lévesquehttps://www.blogger.com/profile/15708349994971868363noreply@blogger.com