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).
Subsection 69 (1) of the National Defence Act provides that: "A person who is subject to the Code of Service Discipline at the time of the alleged commission of a service offence may be charged, dealt with and tried at any time under the Code." That provides sufficient authority for military prosecutions to press charges against Pear. However, the lack of predictability raises concerns. How is it determined that a case would be prosecuted by military authorities or left to civilian prosecution? Currently in Canadian military law, it is only left to the public interest criteria in a prosecution's policy directive. It may not be in the 'public interest' where it can be determined that 'it would be more appropriate for the matter to be dealt with by another authority having jurisdiction to so act'. (DMP Policy Directive 002/99 "Pre-Charge Screening", para 19(1)). This seems rather vague. There are no publicly-known criterias in determining such appropriateness, such as the "Relford Factors". I understand that since Moriarity, the Supreme Court of Canada seems to have abandoned 'military nexus' to give jurisdiction based on status only. But how could Pear be prosecuted by military authorities while Olivier Cote-Vachon, a CF member serving as an avionic technician, has been charged and is prosecuted for criminal negligence causing bodily harm and drug trafficking (ironically given in Moriarity at para 53 as an example of a civilian offence having an impact on discipline, even committed outside military context) by civilian prosecuting authorities and not military ones? First arrived, first served? Granted as per section 71 of the National Defence Act, civilian jurisdiction is never ousted by military jurisdiction; both systems have concurrent jurisdiction. But as there are substantial disparities between the two systems, in particular as to the right to trial by jury and available punishments, a set of more precise criteria would seem to be needed, at least in a policy directive. Otherwise, there is a risk that military prosecutorial discretion might be perceived as not being sufficiently circumscribed and therefore arbitrary.
ReplyDeleteThe existence of concurrent jurisdiction to prosecute and try a crime always raises the thorny issue of who should do it and on the basis of what criteria. Contrary to Australia, Canada has failed to address the issue, an issue which is of crucial importance for justice, the public and the accused who loses fundamental rights when tried by military tribunals.
ReplyDeleteIn Australia, the law and a Memorandum of Understanding between the Director of Public Prosecutions and the Director of Military Prosecutions establish the conditions under which one or the other prosecutor will proceed in case of ordinary criminal law offences. It is also understood that the Director of Public Prosecutions has the last say when the public interest is at stake, in which case he or she may decide that the trial will be held before a civilian tribunal.
In Canada we are governed by a void, one of many existing voids in the field of military justice which are detrimental as much to the public and the victim as it can be and unfortunately is to the accused. I agree with Me Lévesque "that military prosecutorial discretion might be perceived as not being sufficiently circumscribed and therefore arbitrary".
Indeed with the actors currently in place, it is more than a risk and a probability. If only the elected members of Parliament could assume their responsibilities. Is it too much to ask in a society which claims to be a free and democratic society? To put the question is to answer it.
This comment is on behalf of Peter Lamont:
ReplyDeleteFrom the web-site of the Canadian Chief Military Judge we learn that Pears is charged under the Code of Service Discipline contained in the National Defence Act with the purely military offences of drunkenness and using insulting language to a superior officer, or what the Huffington Post calls "mouthing a schoolyard taunt to a junior officer". Thus there is no issue of concurrent jurisdiction between military and civilian courts over these alleged offences - no civil court has jurisdiction.
The issue raised by the post is really whether a member of the military should be able to avoid prosecution for a disciplinary offence committed while in uniform by retiring? Or, perhaps more neutrally, is there no longer any public interest in a prosecution once the alleged offender has retired?
Arguably, the public interest in maintaining military discipline and morale survives the separation of the alleged offender from the service in order to deter similar conduct among the other remaining members. Admiral Byng was court-martialed and executed by firing squad on his own quarterdeck for "failing to do his utmost" in the relief of Minorca contrary to the Articles of War. Of this incident Voltaire, in the novel Candide, famously wrote that "in England they think it wise to execute an admiral from time to time pour encourager les autres". If military punishment does indeed have that effect, it is doubtful that the effect would have been substantially attenuated by the pre-trial retirement of the admiral.
This comment is on behalf of Peter Lamont:
ReplyDeleteFrom the web-site of the Canadian Chief Military Judge we learn that Pears is charged under the Code of Service Discipline contained in the National Defence Act with the purely military offences of drunkenness and using insulting language to a superior officer, or what the Huffington Post calls "mouthing a schoolyard taunt to a junior officer". Thus there is no issue of concurrent jurisdiction between military and civilian courts over these alleged offences - no civil court has jurisdiction.
The issue raised by the post is really whether a member of the military should be able to avoid prosecution for a disciplinary offence committed while in uniform by retiring? Or, perhaps more neutrally, is there no longer any public interest in a prosecution once the alleged offender has retired?
Arguably, the public interest in maintaining military discipline and morale survives the separation of the alleged offender from the service in order to deter similar conduct among the other remaining members. Admiral Byng was court-martialed and executed by firing squad on his own quarterdeck for "failing to do his utmost" in the relief of Minorca contrary to the Articles of War. Of this incident Voltaire, in the novel Candide, famously wrote that "in England they think it wise to execute an admiral from time to time pour encourager les autres". If military punishment does indeed have that effect, it is doubtful that the effect would have been substantially attenuated by the pre-trial retirement of the admiral.
That's true. Although nothing says in the NDA that military tribunal have exclusive jurisdiction over those offences, they would not end up in a civilian court. Concurrent jurisdiction is less of a concern in Pear.
ReplyDeleteHowever on public interest, it is indeed open to debate. Military jurisdiction over a retired service member comes from subsections 60(2) and 69(1) of the National Defence Act. Note to QR&O 102.01 reads as follows:
"Judicial interpretation of subsection 60(2) of the National Defence Act, taken with subsection 69(1), restricts the exercise of jurisdiction of service tribunals over a person who was subject to the Code of Service Discipline at the time of the alleged commission of a service offence to cases where it can be demonstrated that:
trial by a service tribunal is dictated by disciplinary considerations essential to the maintenance of the morale and readiness of those remaining in the Service; and
not to exercise jurisdiction will adversely affect the general standard of discipline and efficiency of the service."
Notes to QR&Os are not as binding as QR&Os themselves (QR&O 1.095 - Effects of Notes). In addition, whatever that "judicial interpretation" may has been, it must be revisited in light of Supreme Court of Canada decision in Moriarity which has abandoned the military nexus doctrine as it pertain to jurisdiction over ordinary offences.
Courts are very reluctant to review prosecutorial discretion on public interest, unless in rare exceptions. Military prosecutors consider various factors in determining the public interest (DMP Policy Directive 003/00 "Post-Charge Review", para 17 [www.forces.gc.ca/en/about-policies-standards-legal/post-charge-review.page]). Which factors are relevant or more important would vary from case to case. In the case of Pear, from what the press has reported so far, hard to see how the defence could legally oppose prosecutorial discretion on that basis.
Having said that, some might question the decision here to prosecute from an administration of justice perspective. They could find the circumstances rather trivial in comparison with the resources involved. On that point, according to DMP's Post-Charge Review policy:
"16. The resources available for prosecution should not be used to pursue inappropriate cases, however the costs associated with the conduct of a Court Martial will never be the determining factor in deciding whether or not to proceed in a case."
The circumstances in Pear have some ressemblance with the case of Matthews S.B. (Ex-Corporal), R. v., 2007 CM 1007 (CanLII), retrieved on 2016-01-09. In that case, the accused pleaded guilty and, on a joint submission by counsel, received a $200 fine.