Cpl Wilcox court martial - Sydney NS
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George Wallace
Army.ca Dinosaur
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"A court may stay a proceeding for a number of reasons. One common reason is that another action is under way that may affect the case or the rights of the parties in the case. For instance, assume that a defendant faces lawsuits from the same plaintiffs in two separate cases involving closely related facts. One case is filed in federal court, and the other case is filed in state court. In this situation one of the courts may issue a stay in deference to the other court. The stay enables the defendant to concentrate on one case at a time."
Thanks George.So would this mean that there is plans for the manslaughter charge to be held in Civilian courts?And that they charged him with negligent performance of duty, so the civilian court could charge him for the Manslaughter?
Thanks George.So would this mean that there is plans for the manslaughter charge to be held in Civilian courts?And that they charged him with negligent performance of duty, so the civilian court could charge him for the Manslaughter?
The jury was given a choice of what charge to find him guilty of, they chose negligent homicide and not manslaughter. They could not find him guilty of both manslaughter and negligent homicide, and Wilcox can never be tried for manslaughter, either in a military or civilian court, because it would be double jeopardy. The manslaughter charge was stayed because he was found neither guilty or innocent of it.
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40below said:
I take that back. The minimum sentence for causing death by criminal negligence with a firearm is 4 years. (CC 220a) The minimum sentence for manslaughter with a firearm is 4 years. (CC 236a) Same deal. Lacking the use of a firearm criminal negligence is a much less serious offence.
Having an occupational use of a firearm is irrelevant according to the Supreme Court:
http://ablawg.ca/2008/03/13/the-death-of-constitutional-exemptions-alberta-rcmp-officer-sentenced-to-mandatory-four-years-for-manslaughter-with-a-firearm/
I don't believe it is stated in the article but apparently it is against RCMP policy to enter a cell with a weapon to prevent what happened in this case.
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In this case, there were really two plus one charges laid. In essence, under the military justice system, two charges can be laid in alternate to each other - so you can be found guilty of only one of them, not both.
So, here, being found guilty of negligence causing death, the alternate charge to manslaughter, means the other charge is then stayed.
If, on appeal, it were found that there were fundamental errors made in the trial, it would be possible to proceed with a second trial on the same issues - look at the murderer of Reena Virk, for example - she stood trial three times for the same charge. So "double jeopardy" (a poor movie, might I add) may of may not attach - Canadian law is significantly different from the US in this respect.
So, here, being found guilty of negligence causing death, the alternate charge to manslaughter, means the other charge is then stayed.
If, on appeal, it were found that there were fundamental errors made in the trial, it would be possible to proceed with a second trial on the same issues - look at the murderer of Reena Virk, for example - she stood trial three times for the same charge. So "double jeopardy" (a poor movie, might I add) may of may not attach - Canadian law is significantly different from the US in this respect.
X-mo-1979 said:
Since the incident took place inside a tent at a NATO Base in Afghanistan, it would not result in Canadian civilian proceedings.
A stay of proceedings is simply a determination that the case will not proceed to a finding of guilty or not guilty.
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dapaterson said:
A jury acquittal in the US, regardless of errors is pretty much a guarantee against retrial. Jury acquittals are routinely overturned in Canada for errors. Henry Morgenthaler was found not guilty by a jury and the appeal court substituted a guilty verdict and he spent a year or two in jail. The law was then changed so that only a new trial could find a defendant guilty. Whether Wilcox could be retried for manslaughter would depend on the nature of any potential errors by the judge. If Wilcox appeals, it is likely that the crown will also.
In an attempt to stay on topic and not wander into the US or Civilian realm prematurely...
Correction to my earlier post on Jury selection: http://www.forces.gc.ca/jag/justice/structure-eng.asp#Types
Excerpt:
The General Court Martial comprises a military judge and a panel of CF members. The panel of CF members is roughly analogous to a jury in a civilian criminal court and is composed of five members. When the accused is an officer, the court martial panel consists entirely of officers. When the accused is a non-commissioned member, the panel must include two non-commissioned members at or above the rank of warrant officer or petty officer first class. The panel is responsible for the finding on the charges (i.e. guilty or not guilty) and the military judge makes all legal rulings and imposes the sentence.
Correction: Comment: If you review the history of the CM you will find that the Defence filed amotion/ Charter challenge resulting from the fact that none of the jury was an NCM a Class A Reservist and therefore, it could not be considered a jury of his peers. The motion/challenge was over-ruled application was dismissed.
And some new info: http://www.forces.gc.ca/jag/justice/structure-eng.asp#Appeal
Appeal of a Court Martial Decision
Generally speaking, decisions made at courts martial may be appealed to the Court Martial Appeal Court of Canada (CMAC), a civilian court composed of Federal Court and Provincial Superior Court judges. The CMAC may sit and hear appeals at any place.
Under the NDA, both an accused tried by court martial and the Minister of National Defence may appeal to the CMAC.
CMAC decisions may be appealed to the Supreme Court of Canada. Such appeals may be made on any question of law on which a judge of the CMAC dissents, or on any question of law if leave to appeal is granted by the Supreme Court of Canada.
When a person has delivered a Notice of Appeal under section 230 or 245 of the NDA, he or she may apply to the Appeal Committee to be provided legal counsel at public expense by the DDCS for the appeal. When the Appeal Committee determines that the applicant’s appeal has “professional merit”, the committee is required to approve the provision of legal counsel by the DDCS. As set out in QR&O article 101.21, the professional merit standard is met if there is a reasonable chance that one or more of the issues raised on the appeal could be successful and:
- result in the change of a court martial finding or sentence; or
- be of importance to the administration of military justice.
Correction to my earlier post on Jury selection: http://www.forces.gc.ca/jag/justice/structure-eng.asp#Types
Excerpt:
The General Court Martial comprises a military judge and a panel of CF members. The panel of CF members is roughly analogous to a jury in a civilian criminal court and is composed of five members. When the accused is an officer, the court martial panel consists entirely of officers. When the accused is a non-commissioned member, the panel must include two non-commissioned members at or above the rank of warrant officer or petty officer first class. The panel is responsible for the finding on the charges (i.e. guilty or not guilty) and the military judge makes all legal rulings and imposes the sentence.
Correction: Comment: If you review the history of the CM you will find that the Defence filed a
And some new info: http://www.forces.gc.ca/jag/justice/structure-eng.asp#Appeal
Appeal of a Court Martial Decision
Generally speaking, decisions made at courts martial may be appealed to the Court Martial Appeal Court of Canada (CMAC), a civilian court composed of Federal Court and Provincial Superior Court judges. The CMAC may sit and hear appeals at any place.
Under the NDA, both an accused tried by court martial and the Minister of National Defence may appeal to the CMAC.
CMAC decisions may be appealed to the Supreme Court of Canada. Such appeals may be made on any question of law on which a judge of the CMAC dissents, or on any question of law if leave to appeal is granted by the Supreme Court of Canada.
When a person has delivered a Notice of Appeal under section 230 or 245 of the NDA, he or she may apply to the Appeal Committee to be provided legal counsel at public expense by the DDCS for the appeal. When the Appeal Committee determines that the applicant’s appeal has “professional merit”, the committee is required to approve the provision of legal counsel by the DDCS. As set out in QR&O article 101.21, the professional merit standard is met if there is a reasonable chance that one or more of the issues raised on the appeal could be successful and:
- result in the change of a court martial finding or sentence; or
- be of importance to the administration of military justice.
Mountie
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I don't believe it is stated in the article but apparently it is against RCMP policy to enter a cell with a weapon to prevent what happened in this case.
[/quote]
Not true at all! Depends on the size of the detachment you are in. Very big detachments or any correctional facility yes. Small detachments where you are often alone, NOT A CHANCE.
[/quote]
Not true at all! Depends on the size of the detachment you are in. Very big detachments or any correctional facility yes. Small detachments where you are often alone, NOT A CHANCE.
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Mountie said:
Thank you.
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I'm just thankful that justice has been done in this case...
Im not suprised the Manslaughter charge didnt go through, but as far as the Crim Neg Cause Death it was pretty cut and dry...
Wilcox didnt have a leg to stand on with that charge... he screwed up, pulled the trigger, and as far as Im concerned did a great dishonour to Kevin by trying to backpedal with that pathetic defence.....
Ive kept quiet on the matter as it was before the courts, but having talked to members of the NS Highlanders who were with the BG when I was out with them in Gorak they said that during training he was more likely to kill one of his own before he killed any taliban.... Tragically, they were right....
if Wilcox had any sense of Duty and honour he would have manned up and taken his licks... it was his negligence that caused the death of a fellow soldier. No ifs ands or buts....
I just hope that the families can move on now.
Im not suprised the Manslaughter charge didnt go through, but as far as the Crim Neg Cause Death it was pretty cut and dry...
Wilcox didnt have a leg to stand on with that charge... he screwed up, pulled the trigger, and as far as Im concerned did a great dishonour to Kevin by trying to backpedal with that pathetic defence.....
Ive kept quiet on the matter as it was before the courts, but having talked to members of the NS Highlanders who were with the BG when I was out with them in Gorak they said that during training he was more likely to kill one of his own before he killed any taliban.... Tragically, they were right....
if Wilcox had any sense of Duty and honour he would have manned up and taken his licks... it was his negligence that caused the death of a fellow soldier. No ifs ands or buts....
I just hope that the families can move on now.
Mountie
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Mountie said:
Re-reading my post I don't know if I was too clear. I meant that in correctional centres where there are several guards/police officers present pistols are left outside, but in small detachments where members are alone they have to keep their pistols with them for safety.
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Mountie said:
Understood. At the time it was widely reported that it was against RCMP policy but in detachments with only a few officers it is unworkable. See link:
http://torontostreetnews.com/article.asp?id=9
No intention to get off topic. I was just showing the the when the legislation says 4 year minimum, the courts will enforce a 4 year minimum.
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I watched the CTV news last night (no, I don't have the link , I'm not that savvy...savvy?) Accord to thier report, Wilcox was instructing weapons lectures in Aldershot to Reserves after he was formally charged yet waiting court martial.
Is this normal procedure??
Is this normal procedure??
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Still, I wonder if it was ethically responsible to do so?
Going out on a limb to make an exaggerated example: If it were someone who was charged but awaiting trial for child molestation or the like, would you allow that person to be around children?
Even his platoon mates said he was dangerous.
:2c:
Going out on a limb to make an exaggerated example: If it were someone who was charged but awaiting trial for child molestation or the like, would you allow that person to be around children?
Even his platoon mates said he was dangerous.
:2c:
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BYT Driver said:
Nobody can say the Canadian Forces doesn't have a sense of humour or at least a sense of irony. I suspect there might be some explaining to be done. The same report said Wilcox was expected to spend about 7 months in prison. I believe that if he is suitably contrite he will spend 16 months. If not suitably contrite it could be 48 months.
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