Portion of Section 129 Declared Void

[MJP]

http://decisia.jmc-cmj.forces.gc.ca/jmc-cmj/cm/en/item/120532/index.do

From a recent Court Martial decision the following decision was reached.  Interested to hear from our legal beagles on their interpretation.


[27]            FINDS that subsection 129(2) of the National Defence Act violates the presumption of innocence protected by section 11(d) and is not saved under section 1 of Charter.

[28]            DECLARES, under section 52 of the Constitution Act, 1982, that subsection 129(2) of the National Defence Act is void insofar as it makes an accused liable to be convicted despite the existence of a reasonable doubt on the essential element of prejudice to good order and discipline and because the presumption created in subsection 129(2) of the National Defence Act requires the trier of fact to convict in spite of a reasonable doubt.

 

[dapaterson]

Text of the NDA s 129 below, with the impugned part in bold.

This could get very interesting...

129. (1)  Any act, conduct, disorder or neglect to the prejudice of good order and discipline is an offence and every person convicted thereof is liable to dismissal with disgrace from Her Majesty’s service or to less punishment.

(2)          An act or omission constituting an offence under section 72 or a contravention by any person of

(a) any of the provisions of this Act,

(b) any regulations, orders or instructions published for the general information and guidance of the Canadian Forces or any part thereof, or

(c) any general, garrison, unit, station, standing, local or other orders,

is an act, conduct, disorder or neglect to the prejudice of good order and discipline.

 

[Fishbone Jones]

I wonder if that would give everyone convicted under the section a position of appeal to have the conviction withdrawn?

 

[Cloud Cover]

This was quite the dig at the tradition of 129: "The real and only prejudice to good order and discipline would then flow from a wrongful conviction and its effect on the discipline, morale and cohesion of the unit. This type of prejudice to good order and discipline has serious consequences, including the discredit of the administration of military justice."  He didn't say Kangaroo court, but that's what he meant.

The Judge keeps coming back to the fact he was practically begging the prosecution to bring forward some evidence, which they did not: "However, it must be clearly stated that nothing precluded the prosecution to call the same witness as an ordinary witness to provide relevant and admissible evidence or any other witness (including expert witnesses), file documentary evidence or ask the court to take judicial notice of facts or matters under section 16 of the Military Rules of Evidence. Despite being reminded of this opportunity, counsel for the prosecution expressly declined to do so."



   

 

[dapaterson]

Sounds like the prosecution at another court martial where the accused was a Reservist.  During a preliminary motion where the defence challenged the court's jurisdiction, the prosecution declined to provide any evidence that the individual was subject to the CSD at the time of the offence, stating that it would come out at trial.  The judge then tossed the case, as there was nothing properly before the court to indicate that the court had jurisdiction.

 

[PuckChaser]

Maybe this removes the catchall nature of 129. If someone doesn't follow a garrison/unit standing order, and its sufficiently serious enough to warrant a charge, should we not be using the far more applicable NDA 83: Disobedience of a lawful command?

 

[Danjanou]

I wonder if that would give everyone convicted under the section a position of appeal to have the conviction withdrawn?

I thought you already had your CD? 8)

 

[the 48th regulator]

I thought you already had your CD? 8)

Uhoh, bunker down.  Hehehehe

:stirpot:

 

[Cloud Cover]

I am assuming 129(2) forms a good percentage of charges in CF, it always seemed like a legalized way to permit or condone idiotic threats and create workplace harassment to me anyway. Hopefully this will de-fang all the dinosaurs that go around threatening charges like this one, although Im sure they will find something else soon enough. On the other hand, it may have been a handy lesser offence that accused could plead to as an alternative exchange for dropping a more serious charge?

 

[PuckChaser]

Much easier to administer C&P anyways, can just release everyone that does something wrong, instead of wasting time on idiotic charges, right?

 

[Cloud Cover]

No, I think it is correct that there has to be an actual offence that gives rise to a charge, otherwise it's a performance evaluation issue or an instructional opportunity

 

[Fishbone Jones]

I thought you already had your CD? 8)

Notwithstanding, yes, with two bars. It would have been three. A severe rep, back when COs could give them at Summary, stopped that. [Xp

 

[RADOPSIGOPACCISOP]

I am assuming 129(2) forms a good percentage of charges in CF, it always seemed like a legalized way to permit or condone idiotic threats and create workplace harassment to me anyway. Hopefully this will de-fang all the dinosaurs that go around threatening charges like this one, although Im sure they will find something else soon enough. On the other hand, it may have been a handy lesser offence that accused could plead to as an alternative exchange for dropping a more serious charge?

When you consider the range of punishment 129 is a fairly serious charge, though I think the issue in this case is that it's often used in more trivial circumstances.

 

[RedcapCrusader]

Another court case today as well... Judge finds NDA s. 157 unconstitutional.

About damn time too. CO's warrants are a gross violation of true, fundamental justice.

 

[Gunner98]

Maybe this removes the catchall nature of 129. If someone doesn't follow a garrison/unit standing order, and its sufficiently serious enough to warrant a charge, should we not be using the far more applicable NDA 83: Disobedience of a lawful command?

Finding someone guilty of Section 83 is much more difficult due to the elements required to prove the command/order was "lawful" and therefore, it was been shied away from in the past at non-court martial proceedings as it takes two lawyers and a judge to understand them.

 

[CountDC]

Another court case today as well... Judge finds NDA s. 157 unconstitutional.

About damn time too. CO's warrants are a gross violation of true, fundamental justice.

Reading it and I don' see that.  If they are going to charge you with something where is the harm in arresting you?  That is what it appears to boil down to - here is the warrant for your arrest and these are the charges.

158 would be my concern -

158.6 

Review

(2) A direction to release a person with or without conditions may, on application, be reviewed by

(a) if the custody review officer is an officer designated by a commanding officer, that commanding officer;

could be reading it wrong but I get the CO issues the warrant to say the RSMto arrest Bloggins and then assigns the Adjt as the Custody Review Officer.  If the Adjt decides to release the mbr the RSM applies for a review of the decision which is then conducted by the CO.