Huffington Post (Canada) indicates.
Even though he's been a civilian for more than two years, former warrant officer Wade Pear faces a court martial for allegedly mouthing a schoolyard taunt to a junior officer at an official dinner.
The fact the military justice system is going after Pear, despite his honourable discharge in September 2013, relates to a Supreme Court decision that gives uniformed prosecutors unlimited discretion on when to go ahead with a case.
A court martial was scheduled for April 2013, while he was still in uniform, but was postponed. Pear took his retirement a few months later[.]Our own,
Michel Drapeau, a retired colonel and an expert in military law, said the Nov. 19 Supreme Court ruling effectively quashed the notion that in order to proceed with an old case in the military justice system, there needs to be something to be gained for discipline, conduct or morale.The practice under the UCMJ has been to reserve such prosecutions for very serious offenses that were not discovered until after the person retired. The case of United States v. Allen comes to mind, a case in which serious issues about prosecutorial misconduct arose. More recently is the case of United States v. Hennis. (The link also discusses United States v. Witt, another pending military death penalty case for those interested in UCMJ DP issues.) Hennis was brought back from retirement to be prosecuted for murder, was convicted and sentenced to the death penalty, and his case is now on appeal.
What the Pear case does is raise serious questions for Parliament and the new Liberal government "about the very, very broad jurisdiction given to military tribunals, vis-a-vis civilians and vis-a-vis military," Drapeau said.
"Should the military have the reach to be able to lay and charge, prosecute and eventually try someone who is a civilian? The question is a political one."
While there is a statue of limitations on how long it takes to charge someone under military law, the high court ruling effectively gives prosecutors a blank cheque on when to try to those charges, said Drapeau.Question, would any such trial still have to be held within the statute of limitations applicable at the time?
As with other cases we have posted about, the Pear case seems to illustrate a need within the government (the politicians) to revisit the concept of military jurisdiction over civilians and for that matter personnel who commit offenses in the civilian community. Rather than a broadening of jurisdiction, is it not more proper to limit jurisdiction to the person in uniform while the person is still on active duty. If there is to be an expansion to retirees, should there not be more of a service connection than merely that they served. This is a question that has been visited many times in UCMJ practice, and remains a valid question. The Chief Justice of the United States not too long ago reminded us of the comparison between courts-martial and rough justice.
“Traditionally, military justice has been a rough form of justice emphasizing summary procedures, speedy convictions and stern penalties with a view to maintaining obedience and fighting fitness in the ranks.”Denedo v. United States, 556 U.S. 904 (2009), citing to Reid v. Covert, 354 U. S. 1, 35–36 (1957) (plurality opinion).