From the Chair
Message from the Chair
By Gilles LeVasseur
The Chair of the Canadian Bar Association's National Military Law Section shares his thoughts on the highlights of the Section's activities over the past year and invites members to attend the Section's professional development program taking place in June, 2011.
International Humanitarian Law / Law of Armed Conflict
2010 Sword & Scale Essay Competition Prize Winner: Tear Gas: A Humane Method of Warfare
By Andrew Weafer
The 2010 CBA National Military Law Section Law School Sword & Scale Essay Prize was awarded to Andrew Weafer for his essay examining the use of tear gas under international law.
International operations
Mario in the Congo: The adventures of a Canadian military lawyer in the DRC
By LCdr Mario Paillé
Lieutenant-Commander (LCdr.) Mario Denis Paillé was deployed to Africa from February to August 2010 as part of the United Nations Organization Mission in the Democratic Republic of the Congo.
Military justice
Separate Society: An Overview of American Jurisprudence and the Military Justice System
By Daniel Paul Sommers
This article provides an overview of the perspective that the military requires a system of justice separate from that of the pre-existing civilian justice system.
Summary Trials: Absolute liability?
By Col (ret’d) Michel Drapeau
The author explains the work of his office in representing a veteran in his attempt to correct a flagrant abuse of process at a summary trial in August 1944.
Difference of Opinion Not Enough to Justify Disobeying a Lawful Command
By LCdr Dorothy Liang
Imagine an armed force in which each member took their time debating the moral and philosophical implications of every command before deciding whether or not to comply.
The Court Martial of Second Lieutenant John Thomas Prenties, Grenadier Company, 1st Battalion, King’s Royal Regiment of New York, 1782
By Gavin K. Watt
An exerpt from the author's The Revolutionary War's Final Campaign as Waged from Canada in 1782 (Dundurn Press, 2010).
Military Administrative Law
The Law of (Heraldic) Arms: Military Law’s Long-Lost Cousin
By Christopher Mackie
One can see the modern descendants of each of the elements of the medieval jus militaire, or law of arms. But what about the law of heraldic arms: has this survived?
The Legal Branch
On the Importance of Legal Officers
By Daniel Paul Sommers
The purpose of this article is to argue that legal officers continue to have an important role to play in a democratic society.
National Military Law Section
Nova Scotia’s Law Week
By Heather Burchill
Last year, the Nova Scotia Military Law Section undertook a special effort to raise the profile of military law with the first ever mock Military Court Martial for Law Day 2010.
National Military Law Section’s Executive Committee
The following is a list of the Officers and Executive Members of the Canadian Bar Association's Military Law Section.
2011 Military Law Conference
Please join us for the CBA Military Law Section's National Conference on Tuesday, June 14, at the Royal Canadian Air Force Officers' Mess. This year's conference will feature critical discussions of current issues in military law. Please visit the CBA website for more information and to register online.
Finals Words
Message from the Editor
By Capt Patrick Crocco
With this year being the centenary of the appointment of Canada’s first Judge Advocate General, I am pleased to present to the readers a broad collection of interesting articles on a variety of topics within the realm of Military Law, including several with a historical flavour to them.
By Gilles LeVasseur
Dear members,
We are completing our year (the 2010-2011 term ends August 31st) and I cannot miss this opportunity to thank my colleagues who have served on the Executive Committee with diligence and professionalism. Some are leaving and others are continuing on the Executive of the National Military Law Section. This is the perfect opportunity to review some of the activities we have been involved with over the past year.
The National Military Law Section had a successful PD program in June 2010 in Ottawa. Following the panelists' presentations, there was animated discussion with participants. At the CBA Annual Meeting in Niagara Falls in August 2010, the Section hosted yet another great professional development session. Three guest speakers discussed “Securing the Canada/U.S. Border” and what is entailed to secure the border between the two sovereign countries. They were U.S. Colonel John Gereski Jr., Director of Operations Law for the North American Aerospace Defence Command (NORAD) and the United States Northern Command (NORTHCOM) at Peterson Air Force Base, Colorado; Mr. Jacques Duchesneau, an associate professor at Québec's École Nationale d'Administration Publique, President and Chief Executive Officer of the Canadian Air Transport Security Authority (CATSA) from its inception in 2002, in the aftermaths of the events of 9/11, until his retirement in 2008; and Superintendent Warren Coons, who was the Director of the Integrated Border Enforcement Team at the RCMP and has been involved, among other things, with Great Lakes' security. The event was very informative and a great success.
In the fall of 2010, LCol Randy Callan (NMLS Executive Member) was able to coordinate with the Public Sector Lawyers in BC to put on a joint presentation entitled Legal Aspects of Support to the 2010 Olympics. We look forward to further collaboration with CBA's many Sections.
The Second Annual Sword & Scale Essay Competition received several submissions and is now closed to applicants. Posters and circulars explaining the competition were sent to Deans of Canadian Law Schools requesting their assistance to promulgate notice of the competition amongst law students. The prize consists of $250 plus a complimentary registration at this year’s Spring PD conference and publication of the winning essay in an upcoming issue of the Sword & Scale.
The Section's annual PD program will be held in Ottawa on June 14th and will include opening remarks from The Judge Advocate General, followed by presentations on the Semrau case and the Royal prerogative, and a discussion on the most current CMAC cases. This will be a great time to renew with our colleagues in the military law field and get relevant legal information. At this time, I would like to thank the members of the program for their time and commitment to the success of this professional development program.
Thanks to the outreach efforts of Capt Patrick Crocco, this edition of the newsletter is again well presented with the usual professionalism. We’re always looking for new and interesting articles.
Our goals for 2011-2012 are:
- Continue our meetings with JAG and its deputies for better coordination of professional development events;
- Continue the annual military law essay competition for students;
- Continue to monitor legislation and law reform initiatives;
- Prepare regional events to celebrate the 100th anniversary of the creation of JAG;
- Continue initiatives with the Sword & Scale in which original articles on military law are published, and previously published articles with a relevant military law nexus are also published;
- Publish the winning article from the 2010-2011 Sword & Scale Essay Competition in an upcoming edition of the Sword & Scale; and
- Continue to provide useful information to members on the Section webpage.
Again, I thank all the members of the National Military Law Section for their participation and encourage everyone to get involved!
Gilles LeVasseur
Chair
Gilles LeVasseur is a lawyer in Ottawa.
2010 Sword & Scale Essay Competition Prize Winner: Tear Gas: A Humane Method of Warfare by Andrew Weafer
The 2010 CBA National Military Law Section (NMLS) Law School, Sword & Scale Essay Prize was awarded to Andrew Weafer for his essay examining the use of tear gas under international law.
Mario in the Congo: The adventures of a Canadian military lawyer in the DRC
By LCdr Mario Paillé
I am Lieutenant-Commander (LCdr.) Mario Denis Paillé, and I was deployed to Africa from February to August 2010 as part of the United Nations Organization Mission (MONUC) in the Democratic Republic of the Congo (DRC). I can assure you that I did not waste my time while I was there. In fact, I travelled more than 12,000 kilometres between the cities of Kinshasa, Kindu, Kasongo, Lubumbashi, Kalemie, Kisangani, Masisi, Rutshuru and Goma, helping train the Armed Forces of DRC (FARDC) with a view to improving the skills of their personnel. I acted primarily as program coordinator and as an instructor on the subject of military justice and international humanitarian law.
Aside from teaching, I collaborated with the Congolese military justice officials, such as judges, prosecutors, judicial police, bailiffs and court clerks, identified construction projects for buildings utilized by military justice personnel, and provided liaison, advice and support to the garrison court staff and the judges and military judicial police in DRC’s eastern provinces. I also advised the Congolese military prosecutors on investigations, the analysis of police reports, lawsuits, witness interviews, the drafting of charges and the collection and production of evidence in the military courts.
Read the full article 
LCdr Paillé is Acting Assistant Judge Advocate General (Eastern Region).
A Separate Society: An Overview of American Jurisprudence and the Military Justice System
By Daniel Paul Sommers
This article provides an overview of the perspective that the military requires a system of justice separate from that of the pre-existing civilian justice system. It does so through the lens of American jurisprudence.
Read the full article
Daniel Sommers is an articling student at Sommers & Roth.
Summary Trials: Absolute liability?
By Colonel (ret’d) Michel Drapeau
For some time, my office has represented a veteran, let's call him Eddy, in his attempt to correct a flagrant abuse of process at a summary trial in August 1944 when exculpatory evidence clearing him of guilt was rejected out-of-hand by his then commanding officer. It has over 25 months since our application for the complete quashing of an illegal finding of a guilty verdict has been submitted to no less an authority and a genuine supporter of veterans' rights than General Walt Natynczyk, the Chief of Defence Staff. This has not yet produced any results, however. Meanwhile, Eddy is not getting any younger and he continues to be victimized by this gross injustice.
We believe that the time has come to tell Eddy's tale. Perhaps this will provide the required impetus to the bureaucracy at National Defence Headquarters to get moving on Eddy's file.
Marching to war in 1942
Similar to many young men reaching the age of 18 in Canada during the Second World War, Eddy joined the Canadian military, specifically the RCAE, as a wireless operator ground (WOG) on June 22, 1942. In 1944, he re-mustered to aircrew and in June 1944, he found himself on the staff of No. 2 Air Navigation School (2ANS) situated near Charlottetown, PEL No. 2ANS was a component part of the British Commonwealth Air Training Plan (BCATP) and, as such, was commanded by Group Captain (G/C) H.N. Hampton of the Royal Air Force.
On July 15, 1944, Eddy received a four-day pass, then reserved for aircrew, which was periodically awarded for rest and recreation. His leave was to commence on July 21, 1944. He decided to use this as an opportunity to visit his fiancée, a member of the Women's Auxiliary Air Force (WAAF) and stationed in St. John's, Newfoundland, with No. 1 Air Group Headquarters. His intention was to assist her in planning their wedding, which was scheduled to occur in Montreal the following month. At that time, the RCAF conducted regular passenger and freight air flights throughout Atlantic Canada, moving personnel and equipment from base to base. One of these transport units was No. 164 Squadron stationed at Moncton, New Brunswick, which, weather permitting, made these service flights to Goose Bay, Gander and Torbay (now St. John's), Newfoundland.
Eddy flew by commercial aircraft from Charlottetown on July 21st to Moncton, where he caught a service flight to Torbay. He and his bride-to-be were able to finalize their plans within one day. Thus, he was free to catch his arranged service flight to arrive back to the base on the expiration of his leave.
However, the typical Newfoundland weather intervened. The fog rolled in and grounded most if not all flying, even the operational Atlantic patrols. For a number of days though, it would sporadically lift enough to permit operational flying by patrol aircraft but not enough to permit safe operation of transport aircraft on a long over-water journey.
What to do? Fortuitously, or so he thought, his fiancée worked on the staff of the officer commanding No. 1 Group Headquarters, Air Vice Marshal F.V. Heakes. The AVM dictated a message to 2ANS stating that Eddy had reported to him, that he would be employed by No. 1 Group Headquarters and that he would be returned on the next available aircraft.
Effectively, Eddy was temporarily employed in the headquarters' radio communications section and was thus aware that there had been neither a response nor an acknowledgment from 2ANS to this message. Consequently, on July 26, 1944, he had another meeting with the AVM to voice his mounting concern about being absent without leave. AVM Heakes released another message to the commanding officer of 2ANS, Group Captain Hampton, reiterating that Eddy was on the duty roster in the radio section and that he would be returned on the first available aircraft. Because of his temporary employ, Eddy, himself, was able to personally transmit this message to 2ANS.
Whilst on duty on July 31, 1944, Eddy was informed that priority space aboard a service transport fight had been approved by AVM Heakes for that day and that transportation for Torbay was leaving in 30 minutes.
Eddy arrived back at 2ANS on August 1, 1944 having travelled from Torbay to Moncton by service aircraft; Moncton to Charlottetown by bus and ferry; and from Charlottetown to 2ANS by taxi where upon he was placed under open arrest. A few days later, he was charged with being absent without leave (AWOL).
Summary trial
On August 4, 1944, Eddy appeared before G/C H.N. Hampton, who conducted a summary trial. In his words, Eddy describes what occurred:
"[Hampton] demanded an explanation from me. I described what had happened, mentioning the two messages he had on his desk. He was furious, slamming his fist on his desk and threatening dire consequences if he heard another word from me. He picked up the messages, tore them up, saying, 'That's what I think of your air force. I am going to make an example of you colonists--14 days detention!"
Eddy was docked a total of 26 days of pay--14 days of detention plus a 12-day forfeiture for the period he was deemed absent without leave (11 days, 13 hours 30 minutes). However, on the positive side, upon his release from detention, Eddy was afforded more than sufficient leave to make it to his wedding in Montreal on the planned date and for a, albeit short, honeymoon.
The insidious effects haunt him to this day
In 1945, Eddy was honourably discharged from the RCAF and, like so many other young men who had placed their lives on hold during the Second World War, finished his education while holding a civilian job.
He re-entered the RCAE in 1948 and spent the next 10 years serving on several RCAF bases, many of them in isolated, DEW-line locations. In 1956, he was recommended for commissioning in the Air Services (Flying Control Branch). But that was not to be. By then, Eddy had a growing family for whom he felt the need to assure a good education. Accordingly, he requested that a posting to RCAF Station Whitehorse in the winter of 1958 be cancelled. In spite of the support of his immediate superiors, his request was turned down. The result was that Eddy decided not to re-engage and he retired from the RCAP in June 1958.
But, there was more to come. Now a civilian, Eddy continued to toil hard. Along the way, he obtained a master of arts. He retired in 1987 as the Department Head of the electrical engineering division of a post-secondary educational institution.
Now for the shocker: Although he had paid back his wartime service to his superannuation account, the 14-day period of detention imposed by G/C Hampton in 1944 meant that he forfeited one full year of qualifying service, thereby making him ineligible for a reduced annuity. Instead, he received a return of contributions--amounting to $2,184.99--and, shockingly, was denied the Canadian Forces Decoration (CD).
An undeserved lifelong burden of guilt
As can be imagined, the unfairness of this miscarriage of military justice has rankled Eddy throughout the years. He sought a pardon from various authorities including the Federal Parole Board. The conclusion was always the same. Since, under the RCAF regulations of the period, his 'offence' was not under the criminal code, which it would be today, the authorities concluded that no such thing as a pardon could be granted and his pleas were termed "of no interest." No one was prepared to take full cognizance of the far-reaching consequences of an RAP base commander's ruling against what he considered to be a member of a "colonist air force" and his imposition of a harsh punishment of 14 days of detention for being AWOL.
We decided to tackle the challenge though we knew obtaining 65-year-old records would be challenging. With the assistance of the Directorate of History at National Defence Headquarters, we were able to construct a picture, mainly from the daily diaries of RCAF units, including 2ANS, which proved that the weather conditions during this period severely hampered aircraft operations and, in particular, grounded transport service flights. Unfortunately, message logs of both No. 1 RCAF Air Group Headquarters and of 2ANS are no longer available. Neither are transport aircraft manifests for the period.
Existing records have been produced indicating that the various weather observations and the impact on ail flying throughout Atlantic Canada (including a then-independent Newfoundland) created a very high probability that Eddy was telling the truth about the reasons for overstaying his leave. Moreover, as a base commander of a component part of the British Commonwealth Air Training Plan, G/C Hampton ought to have been acutely aware of the impact of weather conditions.
What is probably withholding this measure of justice is undoubtedly a concern by a parsimonious government or overzealous bureaucrats at National Defence Headquarters that to do so would open the requirement to recalculate his pension gratuity. If this is true, then the reader has another measure of the current controversy surrounding all veterans of their treatment by this government.
Unless common sense prevails and reliance is made on the accepted standard of "reasonable doubt" when reviewing the summary trial proceedings, Eddy will spend his last years with the unwelcomed company of a long-ago conviction for a crime he did not commit. A stain on his otherwise irreproachable record of service in Her Majesty's armed forces and his lifelong commitment and loyalty to Canada. To his last breath he will continue to pay an unfair price for having received such unjust treatment from an ally.
This year marks the 25th anniversary of the landmark Supreme Court decision Re B.C. Motor Vehicles Act where it was held that an absolute liability office that attracts a term of imprisonment is in violation of an accused’s Charter protected Constitutional rights. Though Eddy’s experiences pre-date the Canadian Charter of Rights and Freedoms, the equitable principles underpinning the majority decision of Lamer J (as he then was) should find strong resonance here.
The CDs as the reviewing authority
The time is short and getting shorter by the day to bring justice to this veteran who last year turned 87. The 1944 finding of guilty against Eddy must be quashed as it was blatantly biased, unmerited and therefore illegal. In his twilight years, this veteran is most deserving of his long-sought CD and this was our recommendation over 25 months ago to the CDS, from whom we still have yet to receive a reply. It is now time to quash a very wrongful sentence, summarily given and to bring Eddy to Ottawa so that his service to his country can be finally recognized by the presentation of his long-denied mark of honour for his service.
Col (ret'd) Drapeau is a lawyer with Michel Drapeau Law Office in Ottawa.
Difference of opinion not enough to justify disobeying a lawful command
By LCdr Dorothy Liang, Legal Officer
Imagine an armed force in which each member carried out blatantly illegal commands in total obedience. Human history makes it all too easy to imagine the atrocities that would result. Now imagine an armed force in which each member took their time debating the moral and philosophical implications of every command before deciding whether or not to comply. This would be crippling; operations would come to a grinding halt.
In order for the Canadian Forces (“CF”) to be an operationally effective yet law-abiding force, we must maintain an appropriate balance between disciplined obedience to the chain of command, and individualized assessments of lawfulness.
Our starting point is in the Queen’s Regulations and Orders for the Canadian Forces (“QR&O”). QR&O article 19.015 provides that every CF member “shall obey lawful commands and orders” given by another CF member who is authorized by virtue of the NDA or the QR&O or custom of the service to give them a lawful command. This is a legally-binding requirement that ensures that the CF can rely on subordinates carrying out orders. It is, in effect, an operational requirement.
The flip side of this requirement is that a person can be charged under section 83 of the National Defence Act (“NDA”) for disobedience of a lawful command.
But how should a CF member respond to a command that does not sit right with his or her conscience? The Court Martial Appeal Court of Canada (“CMAC”) recently considered the limits of individualism in R. v. Liwyj, 2010 CMAC 6. A court martial had found the accused guilty of three counts of disobedience of a lawful command. The accused, a vehicle technician, had been ordered to perform a brake adjustment on a trailer using a specific technique. He disobeyed due to safety concerns. He spoke with an unidentified person at the CF School of Electrical Mechanical Engineers (“CFSEME”) who agreed that an alternative method was potentially better. However, the accused’s superiors considered that their technique – which was the technique set out in the CF Technical Orders – was safe.
The CMAC reviewed the law established by the Supreme Court of Canada – our country’s highest court – and determined that the only exception to a CF member’s duty of obedience is where a superior’s command is “manifestly unlawful.” This is consistent with Note B to QR&O article 19.015, which states in part: “where the subordinate does not know the law or is uncertain of it he shall, even though he doubts the lawfulness of the command, obey unless the command is manifestly unlawful.”
The question becomes: How does a CF member determine whether a command is manifestly unlawful and disobedience is justified? The CMAC identified the following legal principles. First, a command that has no clear military purpose will be considered unlawful. Note F to QR&O article 103.17 echoes the same principle: “A command, in order to be lawful must be one relating to military duty, i.e., the disobedience of which must tend to impede, delay or prevent a military proceeding.”
Second, an order “that offends the conscience of every reasonable right-thinking person,” or that is “patently and obviously” wrong, amounts to a manifestly unlawful order. Note C to QR&O article 19.015 provides the following examples: “a command by an officer or non-commissioned member to shoot a member for only having used disrespectful words,” or “a command to shoot an unarmed child.”
In Liwyj, the CMAC stressed that CF members have no lawful excuse for disobeying an order that is “merely questionable.” A difference of opinion or a “disagreement between fair-minded persons” is not enough to justify disobedience. Furthermore, CF members cannot rely on their own personal opinions. Disobedience is only justified when the objective, reasonable person would find that the command was manifestly unlawful.
The CMAC upheld the convictions against Liwyj. Despite the accused’s personal concerns, there was evidence that both brake adjustment techniques could be used safely and successfully. His superiors, who were both vehicle technicians, did not perceive any risks in using the method set out in the CF Technical Orders. The commands did not meet the high threshold of being manifestly unlawful.
An individualistic standard would compromise the CF’s ability to conduct its work. The duty to obey lawful commands, and the corresponding offence of disobedience of a lawful command, are operational requirements that enable us to carry out the missions that the people of Canada and Parliament entrusts to us.
LCdr Liang is a legal officer with the Directorate of Law/ Military Justice Policy.
The Court Martial of Second Lieutenant John Thomas Prenties, Grenadier Company, 1st Battalion, King’s Royal Regiment of New York, 1782
By Gavin K. Watt
On April 25… [Major Commandant James] Gray apprised [Major/Adjutant General Richard] Lernoult of the fact that 1 KRR Ensign Thomas Smyth would be sent with the forty Yorkers marching to St. John’s to do duty as marines aboard the shipping and, when there, he was to be examined by his father, Dr. George, for some sort of ailment. The Major cryptically referred to another incident between his men and the Canadiens, noting that Captain Duncan said the account was “not half as Bade as the Inhabitants Represents it.” A day later, Gray went to Rivière du Chêne to investigate the details concerning his Grenadier Second Lieutenant, John Thomas Prenties, son of the Quebec Provost, who was under arrest for several indiscretions.
(…)
On June 4, a regimental court martial sat at Montreal to review a number of charges laid against Second Lieutenant John Thomas Prenties of the Grenadier Company, 1 KRR. In part, these read:
His “constant practice of fighting and abusing inhabitants, which brought much censure upon the Regiment.” Perhaps John Thomas’ upbringing in Quebec City, where his father held a position of prestige and influence, had given him a false sense of superiority over the so-called “conquered people.”
[His] conduct at the Rivière du Chêne where he stabbed a Canadian in his own house which was like to bring on a Rupture between the Regiment and the Inhabitants when a number of the Canadians assembled to defend the wounded man, till Captain Duncan then Commanding Officer interfered by getting his men under arms, sent a Guard to the house of the wounded man and was obliged to apply to the Priest, to assure the Inhabitants who were then ready with Arms and Bludgeons to begin the Fray; that he would secure Mr Prenties and give the injur’d man all the Justice that could be expected at the same time order’d Mr Prenties to deliver his Sword and go immediately to his room Both which Mr Prenties refus’d to do.
This charge told a part of the story and only from the viewpoint of keeping the peace between the inhabitants and the soldiery. The event had unfolded as follows – Lieutenant Prenties, Ensign James McAllpin, and Adjutant John Valentine (later reported to be Ensign Jacob Glen) had been on the town one night. They arrived late at the door of Valentine’s (Glen’s) billet “disguised in liquor” and pounded on the door to rouse the owner. Said owner, one M. Lavallée, was the local captain of militia, a man of means and influence who was not happy to be pulled from his bed in such a fashion, and he went to the door and told them to “sod off.” When the pounding and shouting continued, Lavallée discharged his firelock through the door and slightly wounded Valentine (Glen), whereupon an enraged Prenties broke down the door and took his sword to the man, but whether he employed the blade or the hilt went unstated. The rest was as written in the charge. While one might have sympathy with Prenties’ reaction to the shooting, his refusal to submit to Captain Duncan understandably roused the ire of the regiment’s officers.
- “Braking his Arrest at Several times” and “Disobedience of Orders.” Obviously, John Thomas was a proverbial “loose cannon.”
- “His drinking and keeping Company with the soldiers, going to their Quarters at unseasonable hours in the night, Challenging them to fight,” and “Boxing with his Servant in his own Quarters.” The officer corps viewed this type of behaviour as most inappropriate, as it was believed essential to maintain a social distance from the rankers in order to foster respect and obedience. Brawling with the men was utterly beyond the pale. To challenge Grenadiers, the regiment’s tallest, most muscular and athletic young men, required considerable nerve and showed Prenties to be one tough fellow.
Clearly, John Thomas was quite the lad. It would be many months before these problems played out.
The Prenties disgrace continued down its sordid path in Montreal. Captain Duncan reported to Gray from Rivière du Chêne on July 12:
The affair between Mr Lavalla and Messrs Prentice, McAlpin, & Glen [note, Glen not Valentine], I have done every thing in my power to settle it, but to no purpose – I offer’d Mr Lavalla Twenty pounds on condition that he wou’d give a Receipt in full for all damages done, & to withdraw any Suit in Law commenc’d against the aforesaid Parties – he said his accepting any Sum of Money wou’d appear mercenary in the Eyes of the General [Haldimand], but that whatever sum His Excellency wou’d name, he should cheerfully abide by and accept.
Three weeks later, Gray informed headquarters that he had instructed Duncan “to acquaint Mr Lavallu to make up his Damages done him by Prentice, McAlpin, and Glen, his Expenses going & coming to Montreal will be the most, as I have seen what he Complen’d.” Seven days later, Gray wrote to Major Lernoult:
I was Presented by Mr Lavala from the River Duchine, with an Acct of £50, for his Damages, I Refused payment, as the sume was Extravegant, but offered him an Reasonable sume, for his Expenses, he would have the whole or non[e] – I suppose thyle send it to the Commander in Chief, - I sent Capt Saml Anderson to Isle Jesue to get Mr Prentice to sign the Certificate Agreeable to the form you sent me, which he has Refused to do.
In Montreal, the John Prenties affair reached its climax. Major Gray sent a sheaf of documentation to headquarters, including a pleading letter from the culprit addressed to his fellow officers:
I have committed great errors and indiscretions, and am free to confess that [the] great part of my conduct warrants but too justly your selection from my society, and disinclinations to share the duties of our profession with me…. Convinc’d and repenting of my imprudencies, [I] ask pardon, of the whole Regiment for the discredit and trouble, I may have brought on them by my irregular sallies, dictated merely by the folly of youth and inexperience of the world, and not, I trust I may be believed, proceeding from a bad Heart.
This remorseful confession had elicited a memorial from his fellow officers that Gray also forwarded:
At the same time in consideration of his long confinement[,] his youth, his contrition, his earnest desire to make every reparation and his promise to behave better in future, we request you please to signify to His Excellency that we would wish to shew him lenity and not bring him to trial.
These appeals were sufficient and Prenties was returned to duty, which he must have performed to everyone’s satisfaction, as he held a first lieutenancy when the battalion was reduced in December 1783.
*Excerpted with permission from: Gavin K. Watt, I am heartily ashamed, Volume II: The Revolutionary War's Final Campaign as Waged from Canada in 1782 (Toronto: Dundurn Press, 2010) pp. 176; 199-200; 245-46; and 343-44.
Gavin Watt is a historian and writer of Canadian military history.
The Law of (Heraldic) Arms: Military Law’s Long-Lost Cousin
By Christopher S. T. Mackie
With its origins in the Middle Ages, at its genesis military law included the law of heraldry. And although this ‘heraldic law’ has been received into Canadian law, the Canadian Forces does not formally recognize this unique and underappreciated branch of law.
Canadian military law began with the medieval law of arms of Europe, the jus militare. This law regulated conduct between the soldiers of the time, i. e. between knights and men-at-arms bound by the code of chivalry. Initially, the law of arms comprised the conduct of fighting men in war; claims to ransom, spoils, or the restitution of property taken unlawfully; the enforcement of military discipline; and matters of honour governed by the code of chivalry.
One can see the modern descendants of each of these elements in contemporary military law. But what about the fourth element: has this survived? If it has, in what form?
Read the full article
Christopher S. T. Mackie practices in Victoria.
On the Importance of Legal Officers
By Daniel Paul Sommers
The purpose of this article is to argue that legal officers have an important role to play in a democratic society. First, it examines the role politics plays in armed conflict. Secondly, it argues that a standing professional military force must be controlled by civil authority in order for politics to play that important role, and that such a force requires discipline to be effective. Finally, it explains the role legal officers play in ensuring civil control of the military and maintaining good order and discipline.
Read the full article
Daniel Sommers is an articling student at Sommers & Roth.
Nova Scotia’s Law Week 2010 - Bringing Military Law to the Community
By Heather Burchill
Last year, the Nova Scotia Military Law Section undertook a special effort to raise the profile of military law in our community. With the support and encouragement of the CBA(NS), the section conducted the first ever mock Military Court Martial for Law Day 2010. Held in the beautiful and historic Spring Garden Provincial Courthouse, the trial provided an abbreviated look at military justice. Young Canadians from several Royal Canadian Sea Cadet Corps and a few Scouts worked with members of the Military Law Section to conduct the Court Martial of Leading Seaman "Tardy". The trial arose from allegations that LS Tardy was Absent from her Place of Duty.
LCdr Darin Reeves, a legal officer with AJAG (Atlantic), prosecuted Leading Seaman Tardy. Heather Burchill, former Chair of the Military law Section and retired Reserve Officer, acted as civilian defence counsel. LCol Louis MacKay, Asst AJAG (Atlantic) presided. Despite LS Tardy's sympathetic explanation, she could offer no valid defence at law. In rendering his verdict of guilty, Justice MacKay described the central role discipline lays in maintaining the effectiveness of our Canadian Forces. Following the trial, the gallery engaged in an enthusiastic question and answer session.
Thanks to support from Land Forces Atlantic Area, we were pleased to have a military police field unit join the static display. Between the many requests to fire up the lights and siren, the military police answered questions about the Canadian Forces and camouflaged the occasional grinning face. Everyone appreciated the modular tent which provided much needed shelter to the children while they enjoyed refreshments provided by CBA(NS).
Members of the Military Law Section also worked with the Committee to assist Canadian Forces and their families. Led by Bianca Krueger, a Law Day Committee member and the proud wife of a Canadian Sailor, CBA lawyers presented a free evening seminar entitled, "Wills and Estates: What Military Personnel Need to Know" at the Shearwater site of the Military Family Resource Center.
LCdr Hugh Williamson, a retired Naval Reserve Officer, and active Cub leader, also worked hard to bring Law Week to local cub packs. Hugh Williamson designed and delivered a mock trial of "R. v. The Big Bad Wolf", along with a number of educational games designed to assist the cubs in achieving their law awareness badge. Lawyers from across Halifax spent an evening with cub packs, sharing their knowledge about the law. Hugh Williamson is a past Chair of the Nova Scotia Military Law Section.
The Military Law Section extends its thanks to the CBA(NS) and to all the participants. Plans are already underway to build on these successes in 2011.
Heather Burchill practices in Halifax. She is the former Chair of the Military law Section and a retired Reserve Officer.
National Military Law Section’s Executive Committee
For the year 1 September 2010 to 31 August 2011, the Executive Committee Members of the National Military Law Section are as follows:
Officers:
Chair: Gilles LeVasseur (Ottawa, ON)
Vice-Chair: Steven Richards (Ottawa, ON)
Treasurer: Heather Burchill (Dartmouth, NS)
Secretary: Lucie Levesque (Ottawa, ON)
Past Chair: Andrew Appolloni (Germany)
Branch Chair:
Nova Scotia: Darin Reeves (Halifax, NS)
Executive Members:
Randall Callan (Victoria, BC)
Sara Collins (Ottawa, ON)
Patrick Crocco (Ottawa, ON)
Pascal Lévesque (Ottawa, ON)
Andrew Weafer
Message from the Editor
By Capt Patrick Crocco
With this year being the centenary of the appointment of Canada’s first Judge Advocate General, I am pleased to present to the readers a broad collection of interesting articles on a variety of topics within the realm of military law, including several with a historical flavour to them.
Leading the charge is Andrew Weafer, the winner of the 2010 National Military Law Section essay contest, arguing the merits of the use of tear gas in combat. LCdr Paillé presents a fascinating reflection of his experience in the Congo. Daniel Sommers discusses the military justice system in the U.S. and LCdr Liang sets out why lawful commands are ignored at one’s peril.
Reflecting the historical flavour of the Legal Branch’s centennial year, Col (ret’d) Drapeau discusses a Second World War summary trial conviction he is working to overturn, and Gavan Watt describes the facts surrounding an even earlier example of military justice dating back to 1782. Christopher Mackie explains why the law of heraldic arms and the historic practice of heraldry should be placed in its proper military context. And finally, a second article from Daniel Sommers sets out his view of the importance of the officers of the Legal Branch in a democratic society (and who would disagree with him?)
The variety of the topics of these and other articles in this issue confirms the broad scope of subjects which fall within the realm of military law. I feel this to be an area of law with much more depth to be explored and invite any reader who feels inclined to set their thoughts down on paper regarding any aspect of military law, and who wishes to see these in print, to drop me a quick note to see about including an article in the next Sword and Scale.
Capt Patrick T. Crocco
Editor
patrickcrocco@hotmail.com
Capt Crocco is a Deputy Judge Advocate (Central Region).
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