Section 5 – The Criminal Code and The Canadian Forces: Episode 8 of the Ideablawg Podcasts on the Criminal Code of Canada

The following is the text version of Episode Eight of the Ideablawg Podcasts. The podcast can be found at the end of the text.

In this episode, we are still in Part I, the General part of the Criminal Code. As the title of this Part suggests, many of the sections under this Part are broad statements applying to the Code as a whole – like the previous section 4, which included some general terms and procedures. Section 5 also makes a sweeping statement but about the military. Section 5 reads as follows:

Nothing in this Act affects any law relating to the government of the Canadian Forces.

Well, that sounds very straight forward – The Criminal Code does not affect martial or military law. Or, in other words military laws take precedent over the Criminal Code. Now, that is quite a statement – an exemption from the Criminal Code for the military? Is that what this section is really doing?

Well, not exactly. Certainly members of Canadian Forces are not exempt from the Criminal Code but they are exempt from the procedures found under the Criminal Code if the military decides to try a member for a Criminal Code offence before a military tribunal. Thus, in accordance with Section 130 of the National Defence Act any Criminal Code offence committed by a member of the Canadian Armed Forces or any person accompanying the Canadian Forces has also committed an offence under the National Defence Act (hereinafter NDA) and the Code of Service Discipline, found under Part III of the NDA applies.

These two sections – s. 5 in the Criminal Code and s. 130 in the NDA – create a separate judicial scheme for the armed forces. This concept is not new and has been a cornerstone of our military disciplinary regime from the conception of the armed forces. The Parliamentarian right to legislate on military matters was given under the Constitution Act, 1867 through s. 91(7). It has also been argued that the legitimacy of this federally created military judicial system is recognized by s. 11(f) the Charter of Rights and Freedoms, which exempts military offences, even if punishable by five years imprisonment or more, from the right to a jury trial.

The purpose of such a separate regime is ostensibly to enforce military discipline. However, the courts have interpreted that purpose generously. For instance, in the 1992 Supreme Court of Canada Genereux case, the court considered the application of s. 11 of the Charter to military trials involving Criminal Code offences. The majority of the court speaking through the decision of Chief Justice Lamer, reiterated that s. 11 of the Charter did apply to military courts or, as in the Genereux case, the proceedings of the General Courts Martial. The Chief Justice explained:

Although the Code of Service Discipline is primarily concerned with maintaining discipline and integrity in the Canadian Armed Forces, it does not serve merely to regulate conduct that undermines such discipline and integrity.  The Code serves a public function as well by punishing specific conduct which threatens public order and welfare. Many of the offences with which an accused may be charged under the Code of Service Discipline, which is comprised of Parts IV to IX of the National Defence Act, relate to matters which are of a public nature.  For example, any act or omission that is punishable under the Criminal Code or any other Act of Parliament is also an offence under the Code of Service Discipline.  Service tribunals thus serve the purpose of the ordinary criminal courts, that is, punishing wrongful conduct, in circumstances where the offence is committed by a member of the military or other person subject to the Code of Service Discipline.”

However, we must remember that it is the choice of the military or, in some cases, the federal government, whether or not to prosecute a member under the Code of Service Discipline. For example, the infamous case of Col. Russell Williams was heard in the civilian court. So too was the spying case of sub-lieutenant Jeffrey Delisle (I have written previous blogs and this case here and here), although apparently the military was not pleased with the government’s decision to try him in the civilian court.

This military judicial regime is actually a two-tiered system. Most discipline matters are dealt with under the summary trial procedure at the unit level where the maximum punishment is thirty days incarceration.  The more serious and formal process is a court martial with a “legally qualified military judge” presiding. In this procedure the accused are entitled to counsel and a member of the Judge Advocate General prosecutes the case. A court martial may be by way of a General Courts Martial, which consists of a judge and a panel of five members of the Armed Forces, or a Standing Courts Martial, which is a military judge sitting alone. Both Courts can impose a sentence of life imprisonment.

Although this military system has been in use for years and has seemingly been upheld by SCC decisions, there are significant pressures for reform. In a recent paper, presented by Professor Michel William Drapeau, a retired Colonel who once was the Director of the National Defence Headquarters Secretariat and is now a law professor at the University of Ottawa, for The Global Seminar for Military Reform held at the Yale Law School on October 18-19, 2013, Professor Drapeau argues strongly in favour of reform of the military judicial system based on the worldwide trend to reduce military jurisdiction and reintroduce civilian jurisdiction, particularly where criminal offences are involved.

In Drapeau’s view, reform is needed so our military conforms to accepted human rights practices and based upon previous calls for reform from within Canada through the 1998 Royal Commission into the repugnant actions of some members of the armed forces in Somalia and through the 2003 Lamer Report, written as a five year review of the NDA after legislative changes were implemented as a result of the 1998 Commission. In this excellent paper, Drapeau outlines a number of reform recommendations, which, if accepted by the government, would ensure that military justice is not only on par with our civilian criminal justice system but consistent with our global role as a model of a free and democratic society. I also recommend another paper presented at this seminar written by the Honourable Gilles Letourneau, a retired judge of the Court Martial Appeal Court of Canada and the Federal Court of Appeal but also the Commissioner for the 1998 Somalia Inquiry mentioned earlier, entitled Two Fundamental Shortcomings of the Canadian Military Justice System.

I leave this topic reluctantly as quite frankly it is so complex and interesting I would like to delve deeper into the issues I have briefly raised. I encourage everyone to go out and learn more on how the military judicial system operates. In particular, there are a number of recent Charter cases in which it has been argued that various sections of the NDA are unconstitutional. Although, the applications have been dismissed, they were decided at the court martial level and I believe we will be seeing more such challenges in the future and some on appeal.

Of course, this podcast will be published the day before November 11, Remembrance Day, and whatever criticisms there may be of the military judicial system, I think we can all agree that our veterans and current members of the Armed Forces should be lauded and remembered for their courage and bravery. On that note, I would like to conclude this podcast with a poetry reading. Every November 11, my family and I mark Remembrance Day with readings from war poets such as Wilfred Owen from WW I (I recommend Dulce Et Decorum Est) and Keith Douglas from World War II (I recommend How To Kill). I have written a previous blog on war poetry, which can be found here called “Lest We Forget,” which includes these poems and a poem by F. R. Scott, a civil liberties lawyer and a previous Dean of McGill Law School. I have written a blog posting called Poetic Justice wherein I discuss the role of poetry in law and discuss Scott’s poetic legacy. (As an aside, Norman Bethune was in love with Marian Scott, F.R. Scott’s wife.)

I could, of course, end this podcast with the most famous Canadian war poem, In Flanders Field, by John McCrae, but instead I will read another of McCrae’s poems, not as well known but just as meaningful, entitled Disarmament:

One spake amid the nations, "Let us cease

From darkening with strife the fair World's light,

We who are great in war be great in peace.

No longer let us plead the cause by might."

 

But from a million British graves took birth

A silent voice -- the million spake as one --

"If ye have righted all the wrongs of earth

Lay by the sword! Its work and ours is done."

 

 

Episode 8: Section 5 and Military Law Ideablawg Podcast

In Remembrance: The Legacy of Mr. Justice Henry Nolan

Today, we remember the wars fought, the men and women lost, and the personal sacrifices, which formed Canada. Today we send our appreciation to those presently in service for our country and we are thankful to live in a country that values democracy and liberty. Last Remembrance Day, my posting was entitled “Lest We Forget,” which offered some profound words from poet/soldiers of WWI and WWII, including a moving passage from F.R. Scott, a Canadian lawyer who was an important civil liberties advocate and past Dean of McGill Law School.

This Remembrance Day, I recall Justice Henry Grattan Nolan, a Justice of the Supreme Court of Canada from March 1956 to July 1957, was born in Calgary, Alberta in 1895. His father, Patrick or Paddy Nolan, was one of the greatest criminal trial lawyers of his time. Paddy Nolan was a flamboyant character. A man of the new west, he was involved in all aspects of Calgary society, even appearing in the Gilbert and Sullivan comic opera “Trial By Jury.”

His son, Henry Nolan, was more serious by nature. A Rhodes Scholar, Henry served in the 49th Canadian Battalion (from Edmonton, Alberta) in France. There he was wounded fighting in the Battle of Cambrai in November 1917. He received the Military Cross in 1918. After completing his studies at Oxford, England, Henry joined R.B. Bennett’s law firm. Bennett had often been opposing counsel to his father, Paddy. It has been said when Bennett was opposing Nolan in the Supreme Court of Canada in 1908, Bennett entered into the courtroom with his junior, issuing orders: “Boy, give me Phipson on Evidence,” “Boy, give me Kenny on Crimes.” To this, Paddy replied “Boy, get me Bennett on Bologney.”  

Henry Nolan re-enlisted at the outbreak of World War II and served with the Canadian Army. Rising through the ranks, Nolan became a Brigadier as the Vice-Judge Advocate General. From the end of the war to 1948, Nolan served in Tokyo as a Prosecutor for Canada before the International Military Tribunal for the Far East (IMTFE). Since then, Canada has taken a strong role in the prosecution of war criminals, most notably with Louise Arbour, who acted as Chief Prosecutor before the Rwanda and Yugoslavia War Crime Tribunals.

Although, Justice Nolan died prematurely, at the age of 64 and only spent one year on the Supreme Court of Canada, he authored a number of the cases. Most notably however was his commitment to his country as a soldier in World War I and II and as a protector of civil liberties and human rights as a military lawyer and war crimes prosecutor. We remember Justice Nolan as we remember all who contributed to our country in this way.

 

Connecting Hitchens, Havel, And Kim With Human Rights

This past week three extraordinary people died: Christopher Hitchens, Vaclav Havel, and Kim Jong-il. All three impacted the world and human rights, but in very different ways.

When any famous or, shall we also say, infamous people die, there are many news articles, opinion pieces, and blogs about them and their legacies. Some postings were laudatory, as in the case of Vaclav Havel, the enduring symbol of the Czech "Velvet Revolution" or what the Czechs' prefer, "the November events." Havel was an artist, a celebrated poet and playwright. But he was also a dissident who was deeply passionate about his homeland and the concept of democracy. After the Revolution, Havel was appointed President and returned Prague to its magnificence as the "Paris of the East." 

Other articles were castigating: the demise of Kim Jong-il revealed the pathos of a country caught in the iron grip of oppressive dictatorship. A country where "the opium of the people" was the leader himself: worshipped and idolized. To observe the grief of the country over Kim's demise is like watching a slow-moving train wreck as people, young and old, collapse on the streets. A crumpled and lifeless country, devastated by the loss of a caricature of a leader. Truly, the antithesis of Havel - an AntiHavel - not embracing a nation but preserving it under glass as an ornament of the past.

Still other passages were quirky and colourful like the man whom they purported to describe: Christopher Hitchens, himself a demi-God (he would have hated that!) to the witty and smart set. But he was a scrappy fighter for the underdog and a true critic, or shall I say cynic, of the world. He was an observer, who also participated, and that made him the ultimate man of the post-modern era. 

With all three men, we are faced to re-evaluate our own consciousness of being, our own concept of freedom, and our own mortality. Shall we think big and be like Havel: become a social activist and speak out for issues we hold dear? Or shall we look at the individual or micro-rights and change the world, one individual at a time. We definitely will not be Kim and rigidly adhere to a false construction of reality.

Whichever way we decide to "celebrate" these lives and their legacies, what is clear is this: they force us to make choices and to decide what we believe in and on which side we stand. But better yet, I say we think as Hitchens would have liked us to do and ask ourselves "is there really a side at all?"

Chalk one up for humanity in this week of reflection.

Follow Up Connections: Human Rights, Science, and Literature

As this blog is about connecting ideas, this follow up post will do just that: provide some interesting connections between human rights, science, and literature.

As discussed yesterday, International Human Rights Day, celebrated yearly on December 10, recognizes the anniversary of the most influential human rights document: the Universal Declaration of Human Rights. For more on this, read yesterday's posting here.

December 10, is also the day in which the Nobel Prize Laureates receive their Prize in a ceremony fraught with history and solemnity. This year, the Nobel Peace Prize recipients are three courageous women: Ellen Johnson Sirleaf, Leymah Gbowee, Tawakkol Karmen. According to the Nobel Committee, these three women won "for their non-violent struggle for the safety of women and for women’s rights to full participation in peace-building work". How apt these women received this prize on International Human Rights Day. Their inspiring lectures are a constant reminder that the struggle for human rights is ongoing, even though the Universal Decleration of Human Rights has been enacted for 63 years.

Yesterday was also exceptional for the lunar eclipse seen throughout many parts of the world. Historically, both solar and lunar eclipses, as an omen of fate, stopped wars, or, as in the case of the Peloponnesian War, changed the course of history. Thus, the lunar eclipse as a harbinger of peace, is a meaningful event on a day we celebrate human dignity.

Finally, December 10 was the birth date of a poet, who understood the power of words to express love and hate. Emily Dickinson was a shy and retiring poet, who wrote astoundingly simple yet breathtakingly beautiful poetry. In her 8 line poem from Part One: Life, Emily reminds us where our priorities lie:

HAD no time to hate, because
The grave would hinder me,
And life was not so ample I
Could finish enmity.
  
Nor had I time to love; but since         
Some industry must be,
The little toil of love, I thought,
Was large enough for me.

Judges As Poets?

The poet "judges not as the judge judges but as the sun falling around a helpless thing." Walt Whitman - Preface to the Leaves of Grass (1855)

WH Auden - Law, Like Love:

...Law, says the judge as he looks down his nose,

 Speaking clearly and most severely,

Law is as I've told you before,

Law is as you know I suppose,

Law is but let me explain it once more,

Law is The Law...

Law is the clothes men wear...

From the two excerpts above, you have probably already formulated the premise of this blog: comparing and contrasting the differing viewpoints of poets through verse as opposed to judges through the formality of the law. Although that is the correct assumption, the bigger question is how did you come to that conclusion? Well, simply by reading the verses and extrapolating through their meaning. Thus, we come to the point: poetry can and does express in a few words what prose expresses in many. Law, by its very nature, tends to the prose side for that very reason. In other words, in law, verbosity reigns.

And yet, poetry does have a place in legal reasoning. As discussed yesterday, the complete versification of a judgment is frowned upon, but the use of relevant and timely excerpts of poetry or sayings of a poet to emphasize or illuminate a legal point, has an accepted place in the legal arena. The Honourable Justice Randall Scott Echlin, sitting on the Ontario Superior Court of Justice before he passed away, is a case in point. Although his practice area was employment law, his broad use of the wisdom of the poets in his judgments makes one wonder what his undergraduate degree was in. In three of his judgments, I found references to Ralph Waldo Emerson, Goethe, and Henri Frederic Amiel. Each of these excerpts provided an "opener" to the judgment and provide support and meaning to the reasons. 

Alberta is not immune either as Provincial Court Judge Ann Brown used the same quote of the poet Ovid in three sentencing cases. But the laurel wreath goes to British Columbia Provincial Court Judge Doherty who, in sentencing the accused, in a tragic manslaughter case, quoted Lord Byron from canto the third in Don Juan "All tragedies are finish'd by a death."

Upon reading that seven word phrase, there is a clear understanding by all of the immense impact a moment in time can have on a person's life and another person's death. And it is the poets and their poetry that can help us see this.

 

Poetic Justice Revisited

In a previous blog entitled Poetic Justice, I discussed the use of poetry in the courtroom. I referred to a recent Ontario case in which the Assistant Crown Attorney gave his submissions in rhyming verse. Subsequently, the Crown apologized for taking such poetic license. This case illustrates the uncertain role poetry has in the legal arena.

Often poetry is deemed incompatible with the legal precepts of the law and is frowned upon such as in the Pennsylvania Supreme Court decision in Porreco V. Porreco. In that decision, Justice Eakin's dissent was written entirely in rhymed verse. The majority, which included the Chief Justice, was not so moved by the poetry and, in a strongly worded decision, disapproved of the unconventional dissent.

On the other hand, poetry has been used effectively in many decisions to provide guidance on an issue or as a meaningful metaphor for the case. In these instances, the Judge uses an excerpt or line from a poem to emphasize the point. In tomorrow's blog, I will continue the search for the poetic in law with a survey of the Canadian cases, which although not fully versified, do use the power of poetry or words to it's fullest effect. On that note, I leave you with the poem entitled Power of Words by the 19th century British poet Letitia Elizabeth Landon:

'Tis a strange mystery, the power of words!

Life is in them, and death. A word can send

The crimson colour hurrying to the cheek

Hurrying with many meanings; or can turn

The current cold and deadly to the heart.

Anger and fear are in them; grief and joy

Are on their sound; yet slight, impalpable:-

A word is but a breath of passing air.

 

The Art and Science of Connections

While reviewing my posts, I began thinking of connections and how seemingly unconnected events can provide meaningful and sometimes surprising connections, which can then further enhance our understanding of the subject. Every Friday, I read Simon Fodden's Friday Fillip blog and yesterday he too was discussing connections in his Degrees Of Connections posting. As opposed to Steven Johnson's concept of mentally connecting ideas for innovation, Fodden offered a mechanical option through Wikipedia's Xefer site. This search engine, using Wikipedia articles, can connect any three words to come up with a search list of articles connecting those concepts through a visual "tree of knowledge."

I plugged in three concepts from my previous blogs, not obviously connected: inherit the wind, redemption, discrimination. The results are fascinating as Art and Science truly come together. 

Of course, this mechanical connecting encouraged a mental one and I started making connections between my blogs. Here is my first "six degrees of connections": October 12 Law, Literature, And Inherit The Wind to November 9 Freedom Of Expression In The Classroom to November 8 The Pridgen Case and Freedom Of Expression On Campus to October 18 Wristbands Are In Effect: The Keep A Breast Campaign to October 25 On The Road To The Supreme Court Of Canada to October 22 The Road Taken By The Supreme Court Of Canada which leads back to the October 12 blog. Whew.

How did they connect? I went from Inherit The Wind, the play involving the prosecution of Mr. Scopes, a teacher who taught evolution in the classroom which connects to freedom of speech in the classroom and the PEI case of Mr. Morin showing a controversial documentary in his grade 9 class which connects to freedom of expression by students on campus involving the Prigden case just heard before the Alberta Court of Appeal which connects to freedom of expression of students wearing breast cancer wristbands which connects to what cases have been heard before the Supreme Court of Canada and the Whatcott case involving freedom of expression issues intersecting with freedom of religion issues which connects to the case the SCC should hear on freedom to be free of religion in the classrooms as a result of Morinville, Alberta school and the Lord's Prayer which connects back to Inherit The Wind and the freedom to be free of religion.

How was that for a weekend brain twister? Try it and make either mechanical or mental connections. Who know where they might lead? 

Lest We Forget

Remembrance Day is a time of reflection. Every November 11 at 10:50 a.m., my family and I honour the day by sharing passages of poetry written by war poets. We then, at 11:00 a.m., observe a moment of silence. Last year we also went to Lunchbox Theatre in Calgary and watched the musical, In Flanders Field, based on the poet John McCrae's life. It was a moving production which left none of us with a dry eye. This year, we will repeat the observance and watch Lunchbox Theatre's play on World War II, entitled Jake's Gift

I have already decided which poems, I will present tomorrow and among them are three poems which exemplify the war poetry genre. The first poem is written by the World War One British poet, Wilfred Owen, entitled Dulce Et Decorum Est,  which refers to the words of Horace: dulce et decorum est pro patria mori. The phrase translates to "it is sweet to die for one's country." Wilfred Owen uses the phrase in a stunning description of death by gas where he warns against teaching young children "ardent for some desperate glory" the old lie as expressed in the phrase. Owen, a friend of another famous British poet Siegfried Sasson, died only 7 days before the Armistice was announced.

The second poet, Keith Douglas, served for Britain in World War II in the Middle East and in North Africa. He was shipped back to England in time to participate in the Normandy invasion of D-Day where he died. There are two of his poems I will read: Vergissmeinnicht (Forget-me-not) and How To Kill. His poetry holds deadly visceral energy yet lands softly as he declaims that "A shadow is a man when the mosquito death approaches."

Finally, I will read a poem written by the Canadian poet, rights advocate, and previous Dean of McGill Law School - F. R. Scott. I have discussed Scott in my previous posting, which can be read here. His poem, entitled Lest We Forget  was written in contemplation of World War II, with the death of his brother during World War One in mind. It has a more cynical tone as he suggests:

And many a brave Canadian youth

Will shed his blood on foreign shores,

And die for Democracy, Freedom, and Truth,

With his body full of Canadian ores,

Canadian nickel, lead and scrap,

Sold to the German, sold to the Jap,

With Capital watching the tickers.

 We shall not forget this Remembrance Day.

The Road Taken by the Supreme Court of Canada

The Supreme Court of Canada, this Fall has already released a number of important judgments. The PHS Community Services Society decision on Ministerial discretion, or lack thereof, under s.56 of the CDSA for an exemption of a safe injection site in Vancouver is one such case. Another, is the Crookes v. Newton case in which the Court described a hyperlink in a website article as a reference and not a defamatory publication. 

The Court has also heard and reserved on some controversial cases such as the Whatcott case involving the constitutionality of the hate speech provisions in the Saskatchewan Human Rights Code. Whatcott is a good example of the difficult issues found in a Charter case involving conflicting fundamental freedoms as the freedom to express competes with freedom of religion. Not unusually with these conflicts, there is rarely a clear winner. As Ronald Dworkin, an American constitutional scholar, would say, one right does not "trump" another. For our rights in Canada, although guaranteed, are limited within the Charter itself. Ever reasonable, we Canadians prefer the balanced route, the road taken so to speak.

For tomorrow's blog we will be "taking rights seriously" as I speculate on the case the SCC has not yet heard, but should, and possibly, will. 

 

Poetic Justice?

Does poetry have a place in the courtroom? An Ottawa Crown thinks so. In an attempt to convince a judge to convict an accused of an impaired driving charge, the Crown set his submissions to rhyme. Although the judge convicted the accused, she did not mention the use of the unusual literary device. My advice to the Crown: don’t quit your day job.

Poetry and the law are no strangers. Many eminent poets have also been trained in the law such as the American, Wallace Stevens and the Spanish poet, Frederico Garcia Lorca. In Canada, F. R. Scott was a legal scholar who also waxed poetic. He held the position of the McGill Dean of Law in 1961 and was a well-respected constitutional/human rights litigator. Indeed, he was a vocal proponent against the Quebec anti-communist statutes known as the “Padlock Laws.” His poems are beautiful. They are insightful reflections of a proud Canadian and are well worth reading.

But does poetry, for it’s own sake, have a place in the legal arena? It depends on the use. In the Emkeit case, the Crown read an inadmissible and inflammatory poem to the jury on a murder trial. Although the majority of the SCC did not overturn the conviction, the strongly worded dissent by Hall, Spence, and Laskin JJ. suggest they were not amused by the “so-called poem.”

On the other hand, in light of the contextual approach used by the SCC in Charter cases, poetry and other literary material may have a place in elucidating and interpreting Charter rights and values.

For those interested in further reading, there are suggestions at the Law and Literature blog from April.