Tuesday, March 13, 2007

CND Military Justice 101 ...

Military, civilian justice systems have sharp differences
JOHN WARD March 13, 2007

The case of a soldier charged in the shooting death of a comrade in Afghanistan is working its way through the military justice system, a process that parallels civilian court procedures but with some dramatic differences.

For instance, there's no 12-member jury chosen from the community. Instead, five officers selected at random sit as a panel, assisted by a judge advocate, or military judge.

The panel decides questions of fact, the judge advocate handles questions of law and questions of mixed fact and law.

They can also reach a verdict by majority, not by the unanimous vote required of a civilian jury.

Master Cpl. Robbie Fraser of the Princess Patricia's Canadian Light Infantry was charged Monday with manslaughter and negligent performance of duty in the death of Master Cpl. Jeffrey Walsh.

Walsh died of a gunshot wound while sitting in a military vehicle in Afghanistan last August.

A soldier charged in a death that occurs in Canada is normally tried in a civilian court, but offences that happen abroad are dealt with in the military courts.

The national investigative service of the military police laid the charges and the case now moves up through the military command structure.

Technically, the charges are reviewed by Fraser's commanding officer and the commander of the western military area, but the key decisions will be made by military lawyers, says Mel Hunt, a Victoria lawyer and retired officer who specializes in court martial cases.

"The actual convening authority is really the court martial administrator," he said. "The system is that the charges get laid and they go forward and up and then the director of military prosecutions decides whether or not there's sufficient evidence to what's called 'prefer the charges' - in other words, approve the charges to go forward.

"Once he does that, then the court martial administrator convenes a court martial."

Although the charges come under the National Defence Act, that statute includes the Criminal Code. As in the code, manslaughter carries a maximum penalty of life in prison.

A decade ago, the sentence as well as the verdict was decided by the panel of officers. Now, the military judge alone handles the sentencing.

There are four types of courts martial within the Canadian Forces: the general court martial, the disciplinary court martial, the standing court martial and the special general court martial.

The general court, which Fraser is likely to face, hears the most serious charges. It is the equivalent of a superior provincial court and can impose lengthy jail terms.

A disciplinary court deals with service offences - charges of breaking military rules - involving people at or below the rank of major and can impose relatively minor penalties, including dismissal with disgrace.

A standing court hears service cases with only a military judge.

A special general court martial tries civilians who fall under military jurisdiction.

Although the panel can reach a verdict by majority rule, Hunt said that could change soon to unanimity.

"There are amendments now prepared, which have not yet been approved, which would perhaps change the majority rule."

Hunt said he's heard people argue that the system is unfair, because of the officer panel and the lack of unanimity. However, he said the nature of the panel can be helpful.

"That can work for you to some degree, in my experience, because, in a significant sense, you have a fairly blue ribbon jury as it were. These officers are well educated, well travelled, sophisticated people and sometimes that can be a benefit to the defence.

He said the officers are also going to have greater understanding of the stresses and strains in a soldier's life, especially in a place like Afghanistan.

Fraser's case bears eerie similarities to a case that arose from the Canadian Airborne Regiment's ill-starred mission to Somalia in 1993.

Cpl. Mike Abel was shot and killed in an accident. Master Cpl. Anthony Smith was charged with criminal negligence causing death and negligent performance of duty.

The first, and most serious charge against Smith was eventually stayed and he pleaded guilty to negligent performance of duty.

He was sentenced to four months in military detention and reduced in rank to private.


mecheng said...

Good article. Non-partisan and informative. My brother works in the military justice system and I learned some things here.

When I read the title of the post on liblogs, I was mentally preparing myself for an attack on the military. Rarely do you see an article (on any subject) that doesn't have some leftward or rightward slant. The more I think about it, this was a fantastic article. Lots of facts, and it lets the reader decide for themselves if the military justice system is good, bad, or other. The opinions in the article were balanced and neither side was hyped up by the reporter. I wish more journalists would write like this.

Thanks for posting this.

audacious said...

the article caught my eye too, i never gave it much thought before the difference between the two systems.

from knowing someone with in the system, i would think over time you have heard various chatter about the military justice system ... so my question would be, in generalities what is the strongest pro('s) and con('s) ...

mecheng said...

Well, I really don't hear too much from my brother, other than the positions he fills. I think that he is subject to a lot of confidentiality requirements, as most lawyers would be.

He takes a lot of training courses with civilian lawyers, so I expect that the military judicial personnel are up to speed on both civilian and military procedures. He has also been posted in a number of different positions, giving him a broad knowledge of all aspects of the military judicial system. (Unlike a civilian lawyer who most likely will specialize in an area of law and then spend a large number of years performing the same function)

If this training of personnel is typical, I would expect that people who are being disciplined through the military justice system would benefit.

I think there is huge incentive in the military system for an offender to "shape up or ship out". I believe the number of repeat offenders who return to military prisons is very low. And even those whose punishment does not include prison time have huge incentives not to reoffend. Many people may not consider a demotion to be that serious of a penalty, but in reality, that could mean a huge pay cut. Reprimands can seriously hurt a person's chances for promotions and the associated raises that go with them.

Although I am not usually a proponent of any "zero tolerance" rules because they tend to get pushed to ridiculous extremes, I fully support the military's position regarding firearms accidents. That is, there will be none. If there is one, with your weapon, you WILL be charged. In an environment where almost everyone has access to a lethal weapon, these rules are important.

Another pro, I would think, is that "going to court" in the military should not bankrupt a person, all legal counsel is provided. That is a huge problem in the civilian sector.

At the same time, I can't go out and hire a team of hot shot lawyers at $1000/hour to spring me from a charge. So that could be considered both a pro and a con in the military system.

Well, you've really got me thinking now. I'll be having some long discussions with my brother the next time I talk to him to get his views on the subject.

audacious said...

i appreciate the response.

i'm rather a news junkie, so what i have noticed, is that this case hit the papers with more of a spotlit. other cases i'm sure have hit the media; i probably missed many of them or they were buried so far in the middle / back pages that they probably often go more unnoticed.

this recent case the publicity, i'm sure has a lot to do with the questions that surround the length of investigations and / or the length of time it takes family members to know exactly what happened.

so what i find, unless one goes to the web site: http://www.forces.gc.ca/jag/military_justice/cmartials_and_appeals/default_e.asp; there is a bit of information, but not in detail or specifics; or that i have seen. so many of these cases, don't hit the media or should i say, don't have the effect of the media circus and / or drama / sensationalizing etc. which in that sense is good. however, on the other hand, because of the lack of media attention with a lot of cases, we are not aware of the check and balances within the military courts.

i understand the consequences effects of demotions and the long term effects, so in essence the price one pays can be high in the long run. which i too think, i could be mean a harder sentence / price; than say an outcome in a civilian court.

but, now me too, i have been thinking ... is the military courts more black and white with the outcome? than say the civilian courts where (i know each case is different), but there seems to be so much variance with the outcome of sentencing? and cases within the military a civilian death than say a military death? one life more valued than another (i know there are cases where a civilian death during war can not be completely avoided)?

at any rate, it has me thinking ...