Saturday, August 23, 2014

Military penal justice in Canada

On October 15, 2009, Pte Robichaud enrolled into the Canadian Forces (CF). The following week he was sent to the Canadian Forces Leadership and Recruit School to attend a Basic Military Qualifying course. Sadly enough, between October 2009 and January 2010 he was the victim of several documented aggravated assaults by his CF Recruit instructor while undergoing his Basic Military Qualification.

By the end of 2010, due to the aggravated assaults, he required medical treatment to both feet, both ankles, both Achilles tendons, both calves, both knees and his left shoulder. Basically he was left crippled. In addition, as a result of the assaults, threats and abuses from his instructor, he was diagnosed by both a military and a civilian psychiatrist as suffering from Post Traumatic Stress Disorder. On April 2012 he was released from the CF because he could not meet the Universality of Service requirements.

The unjustifiable serious abuses, assaults and threats by way of an incident report were brought to the attention of the chain of command but no prosecution of the offender occurred. From what it appears, the unlawful conduct was not reported to the military police. In May-June 2012 a military police investigation began after Pte Robichaud's lawyer filed a complaint with the Military Police Commission. One year later, in June 2013, the military police concluded its investigation and recommended that charges be laid against against the CF Recruit instructor who is still in the CF.

After more than one year, the Prosecution Service is still "weighing the evidence" to determine whether or not charges should be laid against the instructor. We are nearly 5 years after the abuses and delayed justice does not seem to be much of a concern. Yet justice delayed is certainly justice denied for the victim, the members of the CF, who need to be protected against the kind of brutality suffered by the recruit, and the public. If charges are eventually laid, one should not be surprised if the accused raises a plea in bar of trial based on paragraph 11(b) of the Canadian Charter of Rights and Freedoms which gives an accused the constitutional right to be tried within a reasonable time. Whether the plea is successful or not, additional delay is bound to ensue.

This is another instance of perpetration of serious ordinary criminal law offences kept in house and left unsanctioned. Another good example occurred in the early nineties. Capt. Rainville who had a previous undisclosed record of physical abuses obtained the authorization from his superior to test the security at the Quebec Citadel.  He and some 15 members of his unit, dressed in civilian attire, with hoods over their heads and armed with weapons, simulated a terrorist attack on the Citadelle. They tortured the wardens and a military police officer to obtain the two keys of the ammunition depot. The incident was covered up. When it finally came to light the 3 year limitation period for prosecuting had run.

Many, many years later, under the strong pressure of the victims who had suffered serious physical and psychological abuses, the Attorney General of Quebec laid before a civilian criminal court six charges again Capt. Rainville: abduction, confinement, torture, extortion, assaults with weapons and death threats. The accused was found guilty on all six counts on March 2001. He was sentenced to 20 months' imprisonment to be served within the community with strict conditions, including the requirement of confinement to his residence between 9 p.m. and 6 a.m. for a year, performance of 160 hours of community service within a maximum of 8 months and payment of $4000. to the Center for Assistance to Crime Victims.

In addition he was placed on probation for 2 years, which period was to start to run upon expiry of his term of imprisonment. He was also prohibited from having in his possession a firearm, ammunition or any explosive substance for a period of 10 years. Finally justice was done.

In the public interest, ordinary criminal law offences should be investigated by civilian police and prosecuted before civilian courts. An obligation should be imposed on the military to diligently report crimes to the civilian authorities. Such obligation should be backed up with severe penalties in case of failure to report. Nothing justifies in peacetime that Canadian citizens, be they accompanying civilians or members of the CF, be deprived of the Charter, Criminal Code and procedural guarantees given to all Canadians facing trial before civil courts for the commission of ordinary criminal offences. It would still be open to the CF in appropriate cases to institute disciplinary proceedings before the military tribunal to enforce discipline or to resort to administrative sanctions, including release from the CF.

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