Tuesday, December 20, 2016

Cheese, anyone?

L’acte d’accusation ressemble à un emmental.*

Defense counsel in a current Swiss court-martial, commenting on the charge sheet. Details here, courtesy of Le Matin

* Swiss cheese


  1. Elle est bien bonne! Now the question is: are there sufficient holes in the cheese to raise reasonable doubt? I am afraid that although catchy, the idiomatic expression is far from being a silver-bullet defense.:-)

    More seriously and interestingly, the Swiss Military Penal Code prohibits the abusive use of public property. (see Code Penal Militaire (CH), 1927, section 73). In comparison, the UCMJ article 108 and the Canadian National Defence Act, section 116 prohibit the loss, damage, destruction or improper disposal of public property but not necessarily the unauthorized use. On the other hand, the Swiss Code is more specific as to the type of property: weapons, ammunition,vehicles and...horses! (1927 remember). In the particular case of Canada, you have to go in the secondary legislation (Queen's Regulations and Orders) to find the following prohibition:


    Except with the permission of the Minister, no materiel may be issued to or used by a member for purposes unrelated to the performance of military duty, recreational activities or his status as a member of the Canadian Forces.

    Although not specified, it could reasonably infer that the "Recreational activities" are those authorized in military context. Otherwise the provision makes no sense.

    Normally, a Canadian military prosecutor would have used subsection 129(2) (a deemed provision) to charge someone of having breached QR&O 36.05. However, due to a recent court martial decision (R. v. Korolyk, 2016 CM 1002 (CanLII), , retrieved on 2016-12-21) the deemed provision has been declared unconstitutional. It is not impossible to prosecute but it is more difficult. The prosecutor would have to bring the evidence that the personal use of public property has caused 'prejudice to the good order and discipline' which "requires proof beyond a reasonable doubt of actual prejudice, even if such prejudice can be inferred from the inherent consequences of the act or conduct." (Korylyk, para. 17).

    1. Good to know about the horses. Swiss Army personnel take note!


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