Author Topic: Chief military judge charged  (Read 14855 times)

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Offline FJAG

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Re: Chief military judge charged
« Reply #75 on: July 19, 2019, 16:14:55 »
That's a novel application of the doctrine of necessity.

A defence of necessity is limited but not uncommon. The use of the doctrine by a state or state representative, however, is highly unusual.

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Offline garb811

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Re: Chief military judge charged
« Reply #76 on: July 19, 2019, 20:32:47 »
That's a novel application of the doctrine of necessity.

A defence of necessity is limited but not uncommon. The use of the doctrine by a state or state representative, however, is highly unusual.

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Any insight on how that doctrine might actually be applicable in this instance? I get the requirements pertaining to the "defence of necessity" but what is at play here?

Offline FJAG

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Re: Chief military judge charged
« Reply #77 on: July 20, 2019, 00:47:42 »
Any insight on how that doctrine might actually be applicable in this instance? I get the requirements pertaining to the "defence of necessity" but what is at play here?

Nope. None. I don't think it applies. This thing can be fixed with a legislation that allows the appointment of an ad hoc judge from some other jurisdiction.

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Offline Cloud Cover

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Re: Chief military judge charged
« Reply #78 on: July 20, 2019, 13:53:19 »
Different facts, same doctrine:


“Although there is a general rule that a judge who is not impartial is disqualified from hearing a case, the doctrine of necessity ‑‑ an exception to the general rule of disqualification ‑‑ allows in certain circumstances a judge who would otherwise be disqualified to hear the case nonetheless, if there is no impartial judge who can take his place.  The law recognizes that in some situations a judge who is not impartial and independent is preferable to no judge at all. The doctrine of necessity acknowledges the importance of finality and continuity in the administration of justice and sanctions a limited degree of unfairness toward the individual accused.  Given this adverse effect, the exception should be applied rarely, and with great circumspection. “


Ref. re Remuneration of Judges of Prov. Court of PEI; Ref. re Independence & Impartiality of Judges of Prov. Court of PEI; R. v. Campbell; R. v. Ekmecic; R. v. Wickman; Manitoba Prov. Judges Assn. v. Manitoba (Min. of Justice), [1998] 1 SCR 3, 1998 CanLII 833 (SCC), <http://canlii.ca/t/1fqwk>, retrieved on 2019-07-20
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Offline garb811

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Re: Chief military judge charged
« Reply #79 on: July 20, 2019, 14:01:07 »
Excellent, thanks much!

Offline Cloud Cover

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Re: Chief military judge charged
« Reply #80 on: July 20, 2019, 14:12:06 »
NP.  I would observe that many jurists, legal scholars etc have stated that  the majority decision, and more recently the Nadon decision, were wrongly decided and were self serving by “abusing the doctrine” and using the Constitution to amp up the importance of the courts, at all levels. That rather hostile view would not be engaged or applicable in the CMJ case.
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Offline FJAG

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Re: Chief military judge charged
« Reply #81 on: July 20, 2019, 14:14:30 »
There is obviously no "defence of necessity" at play in this case. Necessity from a government action point of view is a different matter.

Perhaps the best case that I know of that relates to that is the Manitoba Language Rights Reference where the Supreme Court held that any Manitoba laws that had been passed in only the English language were invalid. In order to stop the resulting chaos that would arise out of this the Court declared the laws valid for a period of time to give the government the time needed to create and enact the required French translations.

See here for a good, comprehensive academic discussion on the issue as it relates to Canadian law:

https://digitalcommons.osgoode.yorku.ca/cgi/viewcontent.cgi?referer=https://www.google.com/&httpsredir=1&article=2131&context=scholarly_works

The crux of the necessity doctrine is in my mind as follows:

Quote
Despite the factual differences, there is a common element in all these cases: a constitutional breach has occurred (for whatever reason) that cannot be quickly repaired and that is so radical that, if not condoned, it would cause a breakdown in the legal order. The doctrine of necessity, or (according to the Canadian Court) the rule of law, provides relief against the breakdown of the legal order, at least until such time as the constitutional breach can be properly repaired.5

IMHO the current case does not meet the test of a "a constitutional breach ... that cannot be quickly repaired and that is so radical that, if condoned, it would cause a breakdown of the legal order."

Again IMHO, JAG shouldn't waste time on any further court based challenges and move swiftly to implement corrective legislation.

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Offline dapaterson

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Re: Chief military judge charged
« Reply #82 on: July 20, 2019, 16:04:20 »
All it would take is the appointment of a new military judge without a connection to the accused; no legislative barrier at play.
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Offline SeaKingTacco

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Re: Chief military judge charged
« Reply #83 on: July 20, 2019, 16:35:11 »
All it would take is the appointment of a new military judge without a connection to the accused; no legislative barrier at play.

That would be my suggestion. Simply comb the ranks of the Reserve Force for lawyers (not neccesarily only those who are military lawyers- I know several reserve force officers who have a day job as a lawyer). Create a short list of those able and and willing and then have one of the short list appointed as a military judge for the sole purpose of this trial.

Is it that easy?

Offline Blackadder1916

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Re: Chief military judge charged
« Reply #84 on: July 20, 2019, 16:48:59 »
That would be my suggestion. Simply comb the ranks of the Reserve Force for lawyers (not neccesarily only those who are military lawyers- I know several reserve force officers who have a day job as a lawyer). Create a short list of those able and and willing and then have one of the short list appointed as a military judge for the sole purpose of this trial.

Is it that easy?

Or perhaps look to see if there are still any applications on file.

https://www.fja-cmf.gc.ca/appointments-nominations/military-militaire/index-eng.html
Quote
The Commissioner for Federal Judicial Affairs is seeking applications from barristers or advocates who meet the eligibility requirements for appointment as a Regular Force or Reserve Force Military Judge to fill Military Judge vacancies that might open up at Court Martial in the next three year period. Interested candidates are invited to submit their candidacy for consideration by the Military Judges Selection Committee no later than 4:00 pm EST on Friday 21 September 2018.
https://www.fja-cmf.gc.ca/appointments-nominations/military-militaire/guideCandidates-eng.html
Quote
Each Application File will be kept on file for a period of three years from the date of receipt.
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Offline FJAG

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Re: Chief military judge charged
« Reply #85 on: July 20, 2019, 17:33:02 »
Blackadder1916 is bang on and has hit on the process for appointing a Reserve Force Military Judge.

My last experience in the branch was in 2009 and at that time there was a general reluctance to seek out and appoint Reserve Force Military Judges (RFMJ). You might recall that in the post Somalia environment there were hundreds of changes in the military justice system, including within the Office of the Chief Military Judge. As a result folks were moving forward cautiously and with a heavy veneer of risk aversion.

While there was a very heavy movement to incorporate Reserve Force Legal Officers into the prosecutor and defence counsel establishments, there was never the same hurry to appoint RFMJs. While I have no proof of where the source of that was my gut tells me that there was no great enthusiasm for RFMJs within the Office of the CMJ who already had four RegF judges (counting himself) to do the fifty or sixty odd trials a year that they do.

Remember too that bilingualism is not one of the Reserve Force's strong points and that in order to do this particular trial any RFMJ would need to be fluent in French. That cuts down the gene pool significantly.

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