Canadian Forces Officer guilty of wearing unearned medals.

[OldTanker]

The motto of The Royal Canadian Regiment, of which I am not a member but have profound respect, is "Never pass a fault". Hard to implement sometimes but if military life was easy we wouldn't need leaders to lead. I suspect her faults were passed often.

 

[Monsoon]

If there was one thing in the decision that caught my attention it was the fact that the judge was not provided any "cases similar on their facts to the present case". Instead the prosecution and defence merely pointed out that the fine element of the punishment had increased from $3,000.00 in the first trial to $5,000.00 in the second and that this was sufficient, in their minds, for a second offence - the judge quite rightly points out that "some doubt attends this". I would have thought, like the judge, that the prosecution and defence should have seen the optics of the recommended sentence and done a more thorough job in giving the judge appropriate caselaw (if not from the military side, then from civilian cases) showing him that the recommended sentence was within the ball park.

Am I right in thinking that the judge's emphasis on "not looking behind the face of the submissions" is a bit of a signal that in fact he felt that there was something quite flawed with the joint submission? On the face of it, it looks to me like the prosecutor copped a plea deal with the defendant's counsel that allowed her to retain her rank in exchange for a guilty plea and a speedy release. Given that the facts of the case were so clearly established, that strikes me as an unnecessary mitigation of prosecutorial risk. It's almost as though what they were really interested in was saving themselves the trouble of having to mount a prosecution...

 

[Towards_the_gap]

The motto of The Royal Canadian Regiment, of which I am not a member but have profound respect, is "Never pass a fault". Hard to implement sometimes but if military life was easy we wouldn't need leaders to lead. I suspect her faults were passed often.

Seems lately that the motto for the CF as a whole has been instead 'f**k it, I'm posted/retiring/releasing next year, he/she can be someone elses problem''

 

[Scoobie Newbie]

Post out the problem, if a promotion needs to happen to make it happen then oh well

 

[Haggis]

I find that in this case, the law may have been well served, but our ethos was not.  Protection and application of the Law is the purview of the courts, whereas the development and sustainment of our ethos is the purview of Commanders.  Where was their voice in all of this?

Even though her immediate supervisor stood up for her, the judges decision shows that the separation between the military justice system and the chain of command has been maintained.  Notwithstanding her sentence before the courts, the chain of command can proceed with all manner of administrative actions, up to and including release.  My guess is that we have not yet seen the end of this story.

 

[Scoobie Newbie]

What action?  She has the full support of her supervisors. Lame duck organization

 

[The Bread Guy]

I find that in this case, the law may have been well served, but our ethos was not.  Protection and application of the Law is the purview of the courts, whereas the development and sustainment of our ethos is the purview of Commanders.  Where was their voice in all of this?

In the case of the most immediate ones, adding to the "sheaf" of mitigating letters.

 

[TCM621]

Seems lately that the motto for the CF as a whole has been instead 'f**k it, I'm posted/retiring/releasing next year, he/she can be someone elses problem''

This isn't a lately thing. The old days were not any better. The difference was[ the off books stuff that was done. Many a soldier was sorted our after spending a few days polishing brass, peeling potatoes or washing dishes in a field kitchen. Worked for me.

Now that stuff is verboten but we still have the mentality of not keeping a paper trail and ruining a career. As a young soldier, I prefer a beasting over getting something on my file. As long as I smartened up, only my supervisor knew a screwed up and I knew I could make up for it. Unfortunately, those days are gone and you have to do the paperwork or there is nothing you can do.

 

[Scoobie Newbie]

So why did things change if they worked.

 

[FJAG]

Am I right in thinking that the judge's emphasis on "not looking behind the face of the submissions" is a bit of a signal that in fact he felt that there was something quite flawed with the joint submission? On the face of it, it looks to me like the prosecutor copped a plea deal with the defendant's counsel that allowed her to retain her rank in exchange for a guilty plea and a speedy release. Given that the facts of the case were so clearly established, that strikes me as an unnecessary mitigation of prosecutorial risk. It's almost as though what they were really interested in was saving themselves the trouble of having to mount a prosecution...

I didn't mean to suggest that the judge "didn't look behind the face of the submissions". What I meant to convey that considering the optics of the recommended sentence, the submissions should have been more developed and robust.

I think that the judge, in fact, did look behind the face of the submissions and found them wanting; his statement that he would have probably reduced her in rank based on the facts of the case points in that direction. He just considered that the recommended sentence, while too light, was not so far out of line that he could go beyond the bounds of the case law respecting agreed sentencing.

There is no indication that the prosecutor copped a plea that allowed her to keep her rank and get a speedy release. It certainly allowed her to keep her rank but the release issue is just speculation. I can't see a prosecutor agreeing to a condition (her release) which he can't enforce if she reneges on it.

On the other hand the deal was a package which included the guilty pleas on three of the five charges (ignoring the alternates) and as such the prosecution was definitely saving itself from having to mount a prosecution and a sentencing hearing. The unanswered question in my mind is whether that was, as you say, "an unnecessary mitigation of prosecutorial risk".  Admittedly, it appears that the defence seems to have gotten the better of the deal but lawyering is a bit like playing poker and I tend to take the view that without having seen the entire hand that the prosecutor was dealt it would be a bit presumptuous of me to second guess whether or not he played it right.

:cheers:

 

[dapaterson]

Well stated.  I'm aware of one court martial in the late '90s where the offender received a reduced sentence because he agreed to release; a few months ago I saw him wandering around NDHQ, still serving.

 

[Good2Golf]

So is case law so inviolate that the judge truly was as constrained in his passing sentence as he believed himself to be?  I don't recall there being an identical case of a senior officer not once, but twice acting in such an ethically-deficient manner, for which case law was so compelling, that the judge was professionally and morally constrained to accept the jointly recommended sentence.  This was most surely a case where the judge had the moral and professional grounds to give cause to evolve the existing case law, no?

Nearly as disappointing as the fact that there is such institutional (read CoC) support for such a non-representative individual. 

Perhaps the CDA could demonstrate professional/institutional remorse by including this case in future studies related to ethics and ethical conduct within the CAF?

G2G

 

[OldSolduer]

So why did things change if they worked.

IMO for a few reasons:

1. The advent of the Charter of Rights and Freedoms. Not only must we obey the law we have to be seen as obeying the law, despite the fact that a few Shytepumps will use the Charter against us;

2. Better educated troops that won't put up with shenanigans - trust me there were lots of shenanigans in the "olden" days;

3. People that use adminstrative measures too freely ie an IC for being late, where a charge SHOULD have been used to correct behaviour. As far as I know, an IC is much simpler to issue than actually charging someone and going through a Summary Trial.

 

[Scoobie Newbie]

You know what kept my nose clean?  A room overlooking the parade square at Kapyong Barracks.

 

[dapaterson]

G2G: There was a case at the CMAC, where a learned military judge rejected a joint submission for a repeat offender, based (among other things) that the offender hadn't paid the fine from the first court martial by the time the second one came around.

On appeal, the CMAC tossed the judge's sentence and substituted the joint submission.  There was a dissent in the case; one of the CMAC judges agreed with the military judge.

Unfortunately, in a case like that there is no one to appeal to the next level; the prosecutor and defenders have just "won" over the judge, so the very bad precedent is allowed to stand, and future judges feel even more constrained in what they do when presented with what appears to be a very, very bad joint recommendation.

 

[OldSolduer]

You know what kept my nose clean?  A room overlooking the parade square at Kapyong Barracks.

That was entertainment for those not on defaulters parade.....and a warning to others.

It was no fun being the BOS unless you were inspecting the defaulters.

 

[George Wallace]

Well stated.  I'm aware of one court martial in the late '90s where the offender received a reduced sentence because he agreed to release; a few months ago I saw him wandering around NDHQ, still serving.

Saw the same thing in the early 80's.  Cpl was drummed out of the Regiment in Petawawa, never supposedly to be able to re-enlist in the CAF.  Two years later shows up in Germany as a Reservist.  Two years later he had CT'ed back to the Regular Force. 

 

[Scoobie Newbie]

That was entertainment for those not on defaulters parade.....and a warning to others.

It was no fun being the BOS unless you were inspecting the defaulters.

Every time I told myself, "no that's not for me"

 

[The Bread Guy]

Admittedly, it appears that the defence seems to have gotten the better of the deal but lawyering is a bit like playing poker and I tend to take the view that without having seen the entire hand that the prosecutor was dealt it would be a bit presumptuous of me to second guess whether or not he played it right.

This brings to mind another question for me:  how did the prosecutor from her previous CM end up as her defence this time, and vice versa?  WTF?  Outside the military, would a Crown have to be switched if, in a previous life, s/he'd been counsel for someone they're prosecuting?  Not quite conflict of interest, but perceived "insider trading"?

 

[pbi]

I have also learned the hard way, although as a very junior officer and while I am still a Pl Comd. A tough lesson to learn, but looking back I would have done things differently.

The "book" gives us all the tools to accomplish what we need to, but I what I have found is a reluctance to use it. IMO, it is largely out of pure cowardice that we do not, and often resort to your third option. No one wants to look a man in the face and say "you're just not performing at the standard that you're required to." In the end, that's why you're getting paid the big bucks, to do exactly that when it is required. It's the easy way out to "make do" so that you can avoid holding someone to account....But at least I've learned, even if it had to be the hard way. That mistake has redefined my approach.

Ballz: Ack. There is an old (but very true) saying that "there is none so zealous as the reformed sinner". I , like you, am without any doubt a reformed sinner. (About this particular sin, if maybe not others...

There were surely times that I didn't act when I should have. Early on, I gave PER scores that I would now say were clearly unmerited, or failed to question scores that were handed down by company or battalion merit boards. I submitted to the culture that said "everybody gets a "Met Standard".

On occasion, I gave breaks to people who later proved quite clearly that they didn't deserve them, and that I definitely should have seen it coming. And, yes-I "hid and ignored" people, and ironically later ended up having to "take out the trash" myself.

But, I think I did eventually learn about all this. It took me a long time, perhaps because like many of us by nature I wanted to see the best in the people I served with, and I (naively) thought that everybody saw their service the way I did.

Wrong.

I was the subject of three PER grievances because I insisted on assigning the scores that people's performance really deserved, not giving them a "Superior" because they show up for work on time. I was overruled in all three cases. Fine.

I did end up, finally, learning to tell people the truth. I was once assigned an MWO from another organization, only to receive a rather lame "apology" from the losing unit CO saying "sorry for the guy I sent you". I called the guy in, and said: "If you work hard and do your job as well as you possibly can, I am in your corner and I will do all I can for you. If you don't, and you carry on the way you did in "X" unit, I will do everything I can to get rid of you. Got it?"

He didn't turn into a super star, but he did OK.  That, I think, is how we need to be with people. But, like you, I fear that the CAF culture doesn't encourage that. Whether it is because we ("you") are cowards or not, I'm not so sure. Maybe it's just pressure from the culture. Remember that one of the very present dangers in the military profession is that discipline and loyalty may descend into mindless obedience and groupthink. I'm sure we've all seen it.

I hope that you and all serving leaders think about the Miller case, and about all the complex things it represents for the profession. Never forget that you have men and women who follow you, and want very much to be treated fairly and to be proud of their service. The Canadian soldier is the hardest person on earth to fool, and if he catches you doing it, he is unforgiving.