R v J.L., 2024 CMAC 10 - Young Persons & the Code of Service Discipline

The Court Martial Appeal Court of Canada (CMAC) has been busy.  In the course of the six weeks, the CMAC has handed down three separate judgments relating to matters ranging from delay and trial within a reasonable period of time, to applications to introduce new evidence on appeal and the appeal of a sentence in light of concurrent non-disciplinary statutory decision-making, as well as horizontal stare decisis at the CMAC.  My colleague, Dr. Pascal Levesque will summarize two earlier judgments of the CMAC handed down in November, and which address this array of subjects.

The present post will address the judgment of R v J.L., 2024 CMAC 10, handed down at the start of this week, and which concerned the prosecution of a "Young Person" under the Code of Service Discipline.

In Canadian criminal law, the term "Young Person" refers to a person charged with a criminal offence or offences and who was at least 12 years of age, but who is under the age of 18, at the time of the alleged offence(s) (see Youth Criminal Justice Act (YCJA), SC 2002, c1, s 2, definition, "young person"). The term replaced the earlier terminology "Young Offender", which was problematic, not least because the term appeared to presume guilt.

At trial, R v J.L., 2021 CM 2004, the Military Judge rejected an application of Plea in Bar of Trial that argued that the court martial lacked jurisdiction over a young person pursuant to the YCJA and the National Defence Act (NDA), and sought a termination of proceedings.  In the alternative, the accused sought, pursuant to section 52(1) of the Constitution Act, 1982, a declaration that Part III of the NDA (Code of Service Discipline) is of no force or effect with regards to young persons charged with Criminal Code offences as it infringes their right to life, liberty and security of the person protected by section 7 of the Canadian Charter of Rights and Freedoms (Charter). As a result of that declaration, the applicant sought an order staying the proceedings.

J.L. did not challenge the so-called "Military Justice at the Unit Level" (MJUL) regarding the prosecution of "service infractions" before "summary hearings".

Right to counsel in Indonesia

➢ Examination of suspects

The suspect has the right to be questioned by the military police. This examination is carried out by observing the procedures regulated in law including fulfilling the suspect's rights such as the right to be accompanied by a legal representative or defense attorney, however, in cases of desertion the suspect cannot choose his own legal representative from outside.military, for example, perpetrator A appoints a well-known lawyer who is well-known and has high popularity and high winnings with large fees from outside the military to accompany him in military justice. This cannot be fulfilled because within the military scope it upholds military ethics and discipline regarding respect for the provisions of the agency, where the Power of Attorney The law must originate from the military sphere. [Emphasis added.]

From Juridical Review of the Military Police's Authority in Investigating the Crime of Desertion.

Another day of dilly-dallying

Yes, Virginia, in the Supreme Court of Pakistan. Details here from The Express Tribune. Excerpt:

Justice Jamal Mandokhel [at left] explained that a person in the Army will be subject to military discipline, a person in the Agriculture Department will follow its discipline, and if a person is not in any department, how can military discipline be applied to them? Is it not a violation of Article 8 to subject an unrelated person to military discipline and strip them of their fundamental rights?

Seems like the right question, no? The hearing resumes on Friday the Thirteenth.

Slow, slow justice in Pakistan

The Supreme Court of Pakistan's Constitutional Bench heard argument yesterday in the military courts case. Dawn has a detailed account here. It is baffling that the court seems to have so little sense of urgency. Why can't it bite the bullet and decide the intra-court appeals? It's not a hard case. Whether or not the Anti-Terrorism Court gave reasons when sending civilian defendants into the military court system is a distraction and would only kick the can down the road fror another year.

The Good Officer

Global Military Justice Reform contributor Prof. John C. Dehn's important and timely article has been published in the latest issue of the Brooklyn Law Review: The Good Officer: President Trump, General Milley and the "Necessity” of Constitutional Fidelity, 90 Brook. L. Rev. 1 (2024). Here is the abstract:

Actions taken by General Mark Milley, the former Chairman of the Joint Chiefs of Staff, to prevent an abuse of presidential power during the waning days of the Trump administration prompted a range of reactions and concerns. This Article leverages these events to explore the circumstances under which a member of the armed forces or senior executive branch official may have a moral or legal right or duty to disobey presidential orders or authorizations that entail a clear violation of the Constitution or federal laws, or that abuse lawful authorities in ways that would subvert the Constitution’s text or vital principles. Further, this Article proposes a theory of necessity grounded in one’s oath to support and defend the Constitution—a necessity of constitutional fidelity—to guide officials faced with the constitutional dilemma of an elected Chief Executive and Commander-in-Chief contemplating a clear and obvious abuse of power. Although there is a growing literature addressing intra-executive branch bureaucratic resistance to questionable presidential policies, this Article seeks to stimulate a more robust conversation regarding the circumstances under which such resistance should become outright disobedience or defiance.

Comments are welcome -- real names only, please.