Friday, February 24, 2017

Public comments: Canadian comprehensive review

The Canadian Armed Forces Judge Advocate General's Court Martial Comprehensive Review Team has posted this summary of comments received from the public in response to the team's invitation:
In submissions from the public, some were skeptical whether “ordinary criminal offences” – or offences under civilian law – ought to be triable at all within the court martial system, where others suggested that these offences should only be triable when the facts of the offence have some kind of connection to military service. 
Some people felt that the court martial system should not have jurisdiction to deal with offences of a sexual nature, especially when those offences concern the families of CAF members or young persons, including ‘cadets’. Others noted that, where inappropriate sexual behaviour, assault, or harassment does occur, the system must take the matter seriously and the perpetrator must be dealt with sufficiently harshly. 
Still on the topic of jurisdiction, some people insisted that the military must have at least some way to discipline its members, given how important discipline is in the CAF and considering the unique kinds of tasks the CAF is trusted to carry out. Some suggested that, in light of this trust, military members ought to be held to a higher standard than ordinary citizens, and that this higher standard should be formalized in law. Since military service in Canada is completely voluntary, some saw military members as having agreed to be held to this higher standard when they enrolled.
On the other hand, some people observed that the current court martial system is not capable of promoting or reinforcing military discipline, partly because court martial proceedings take too long, and partly because the results are often out of touch with the perspectives of the chain of command. Some suggested the current system is actually harming discipline, and asserted that there is a perception, widely held among junior CAF members, that accused persons who elect trial by court martial are much more likely: 1) to have their charges dropped by the military prosecutor; 2) to receive a finding of not guilty due to some ‘technicality’; or, 3) when found guilty, to receive a punishment much more lenient than those common at summary trials for similar conduct in similar circumstances. Some also suggested that courts martial require an inordinate resource commitment from units (in terms of persons, time, and expense) given their net impact on unit discipline, and that the combination of these negative factors may actually end up incentivizing those responsible for discipline to deal with misconduct in other ways, such as through informal or administrative measures, or by ‘undercharging’ in order to keep matters at summary trials and out of the court martial system. 
On the specific topic of court martial tribunals, some people felt that ‘military’ judges would be better positioned to judge in a military system. They were skeptical whether a civilian judge could be able to understand the unique circumstances of a military accused. Others felt that civilian judges would inspire more objective public confidence, by being seen to be more independent and transparent. It was suggested that in rare, highly technical cases, civilian judges could rely on expert military witnesses to fill in any knowledge gaps. 
Some people commented that it was absolutely necessary that courts martial be capable of deploying forward with CAF operations, in order to ensure that discipline could be seen being carried out both by the deployed members and the local population. Others suggested that attempts to keep an accused in theatre awaiting trial could result in a dangerous distraction from the mission and could be harmful to discipline. They suggested that it would be better to send any accused back to Canada and to hold the trial there.
There were public comments that suggested the head of any military prosecution service should be a civilian, as this might inspire more public confidence in the prosecution service’s objectivity and transparency. Others felt that military prosecutors could be used as trial counsel, but that they ought to have specialized careers paths. 
Some contributors suggested that the sentencing options at court martial should be expanded to include options currently available in the civilian criminal justice system – for example, discharges or restitution orders. Others felt that if the principles and purposes of sentencing at courts martial are to be different from those in the civilian criminal justice system, then they should be codified in legislation. 
It was further suggested that, if the military panel was to be kept as finders of fact at courts martial, then the panel could be permitted to make recommendations to the judge on sentencing. It was also suggested that ‘military’ and ‘community’ impact statements should be admissible during sentencing processes at courts martial. 
It was suggested by some that the Military Rules of Evidence are too far out of date, and no longer serve their original purpose. This led to a suggestion that the Rules could be discontinued, and the law of evidence at courts martial could be the Canada Evidence Act and the common law. 
Several contributors made submissions concerning the victims of service offences, and their rights within the military justice system. All those who submitted on this topic felt that in a court martial system, victims should have rights at least equal to, and access to resources at least as good as, those available in the civilian criminal justice system in Canada. Some contributors recommended that victims’ resources in the court martial system could be made even better than most civilian systems – for example, by providing victims with free legal representation in certain circumstances. 
Lastly, some suggested that the court martial system could benefit from a comprehensive performance measurement system, which would assist future assessments of how effective the system is at contributing to the discipline, efficiency, and morale of the CAF, as well as future evaluations of whether aspects of the system should be rationalized, taking into account that level of effectiveness.
The underlying comments can be found here. It is an unfortunate fact that even when opportunities are afforded for interested parties to comment on issues of public moment, few do. Nonetheless, sometimes even a few comments can have a salutary effect on official decision making.

Global Military Justice Reform will continue to monitor developments. Thanks to the Review Team for keeping us current.

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