Clair "WHYTIE" Whyte
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From drunkenness and quarrels to desertion and insubordination, military misdeeds are dealt with in-house by a system some see as much tougher than the civilian process
PART ONE: Military justice
Kathleen Harris
Sun Media National Bureau
January 26, 2008
They have been convicted of sex assault, drug trafficking and manslaughter to drunkenness, insubordination and going AWOL.
Most Canadian Forces members are do-gooders who devote their lives to helping others, but a fraction slip through the cracks, breaking strict military rules or committing serious criminal acts. And when they do, they are usually probed, prosecuted and penalized through a separate military system now judged by some as much tougher than the civilian process.
Ten years ago, the Somalia inquiry into the torture death of a civilian teen and the subsequent cover-up recommended sweeping changes to rebuild battered public trust in Canada's military justice system.
Ten years later, experts say the once problem-plagued system is stronger and more accountable, but still in need of some fine-tuning.
"If we have not reached equilibrium, we're reaching it," said retired Col. Michel Drapeau, a military law expert who teaches at the University of Ottawa. "I think DND has painfully absorbed the lesson of Somalia. It has taken a long while, much longer than I thought, but through time and through changes and through a new generation of people, change has occurred."
Drapeau believes the much maligned system emerged from the Somalia affair more open and with greater independence between military police, prosecutors and chain of command.
In fact, he said the pendulum may have even swung a bit too far to the extreme.
He believes authorities are going right by the book with disciplinary action in a system that allows for a wider range of charges and stiffer penalties than for offenders not in uniform.
"Some of the sentences may seem and are, in fact, harsh by civilian standards,"
Drapeau said. "Someone for the possession of marijuana, if he goes to civilian court, more than likely he will get a sentence of suspended sentence, in the Canadian military he may very well do a detention and may even be kicked out of the Forces."
A landmark 1992 Supreme Court decision upheld the need for a separate military justice system that can deliver tougher penalties. Often cited in court martial hearings, the R.V. Genereux ruling said:
"The purpose of a separate system of military tribunals is to allow the Armed Forces to deal with matters that pertain directly to the discipline, efficiency and morale of the military. The safety and wellbeing of Canadians depends considerably on the willingness and readiness of a force of men and women to defend against threats to the nation's security. To maintain the Armed Forces in a state of readiness, the military must be in a position to enforce internal discipline effectively and efficiently. Breaches of military discipline must be dealt with speedily and, frequently, punished more severely than would be the case if a civilian engaged in such conduct."
Modelled after the British, Canada's military justice system has jurisdiction over regular forces and the reserves, as well as civilians working on military bases abroad such as canteen workers or journalists.
Lt.-Col. Jill Wry, director of military justice policy and research in the Office of the Judge Advocate General, said the "portable" system can attach to personnel even when they're off-duty or serving in foreign countries that may have different laws. Members of the army, navy and air force are also subject to a number of charges that don't even exist in the Criminal Code, such as absence without leave, striking a superior, insubordination or disobeying lawful command.
"If you work for a civilian employer and you don't show up for work one day, you may get in a bit of trouble. If we don't, we can be charged and given a punishment like any other criminal offence for not showing up for work," Wry said. "Because of the need to maintain a different, more strict level of discipline for members, it's necessary to maintain some of these additional offences."
Sentences imposed under the National Defence Act are parallel to those prescribed under the Criminal Code, but soldiers can also receive penalties like extra drill, severe reprimand, loss of seniority or dishonourable release.
In the military system, an accused does not have the right to trial by jury. Court martials are heard by military judges, and summary trials for less serious offences - which account for about 95% of all disciplinary cases - are presided over by someone in the accused's chain of command.
"The idea is to keep discipline at the lowest level possible to allow to enable the system to respond quickly and appropriately to address breaches in discipline, but at the same time to allow the person to get back t o work and their duties," Wry said.
Legislative changes that stemmed from the Somalia inquiry underwent a mandatory review five years later by the late former Supreme Court chief justice Antonio Lamer. While his assessment was mostly positive, he made a number of recommendations to tune up the system.
Years later, MPs are still studying the legislative package that was subsequently proposed.
New Democrat MP and defence critic Dawn Black said she has fielded many calls from CF members convicted of offences who say the system doesn't have enough recourse options for appealing their cases. She believes that's because a disciplinary system run largely by the chain of command has inherent problems.
"There's a culture within the services, and a necessary chain of command, where you must obey the instructions you're given," she said. "But it also creates a much more difficult atmosphere for justifiable complaints and issues."
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SOME RECENT COURT MARTIAL DECISIONS
Jan. 15,2008: A petty officer is found guilty of conduct to the prejudice of good order and discipline and of being absent without leave in Halifax.He was reprimanded and fined $2,200.
Dec. 21, 2007: A petty officer is found guilty of sexual assault in Petawawa, Ont., and sentenced to 12 months of imprisonment.
Dec. 6, 2007: A corporal is found guilty of fraud in Cold Lake, Alta., and sentenced to a severe reprimand and a $1,500 fine.
Nov. 21, 2007: A corporal is found guilty of accessing child pornography in Petawawa, Ont., and sentenced to 14 days of detention.
Nov. 21, 2007: A corporal is found guilty of assault in Bagotville, Que., and fined $500.
Nov. 20, 2007: A corporal is found guilty of conduct to the prejudice of good order and discipline in Victoria.A charge of accessing child pornography was withdrawn.The sentence was a severe reprimand and a fine in the amount of $2,000.
Nov. 9, 2007: A corporal is found guilty of drunkenness in Gagetown, N.B., and fined $500.
Nov. 6, 2007: A captain is found guilty of forgery and an act to the prejudice of good order and discipline in Victoria, and was sentenced to a severe reprimand and fine of $2,000.
Nov. 2, 2007: A corporal is found guilty in Gatineau, Que., of making a false entry in a document that was required for official use and acting in a fraudulent nature and sentenced to a reprimand and fine of $1,500.
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SOME CHARGES, COURT MARTIAL
2006-2007
9 Disobeying a lawful command
1 Striking or offering violence to a superior officer
1 Insubordinate behaviour
4 Quarrels and disturbances
1 Brokeout of barracks
1 Desertion
16 Absent without leave
1 Cruel or disgraceful conduct
7 Abuse of subordinates
11 Drunkenness
1 Causing fires
3 Stealing
1 Receiving
16 Act of a fraudulent nature
1 Negligent performance of a military duty
16 Possession, trafficking or production of substances
2 Careless use of a firearm
2 Pointing a firearm
3 Unauthorized use of prohibited weapon
1 Sexual exploitation
4 Possession of child pornography
1 Committed an indecent act
8 Criminal harassment
10 Assault
4 Assault causing bodily harm
2 Aggravated assault
1 Unlawfully causing bodily harm
10 Sexual assault
1 Extortion
4 Forgery
5 Uttering forged document
1 Fraud
195 TOTAL
From London Free Press - Saturday Jan. 26, 2008
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