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Clarification from the jag.

I would like to correct an inaccurate statement made by Michel W. Drapeau, in the "From the Mailbag" section of your publication's August 2011 edition (Volume 18 issue 7), wherein the author asserted that "a [Canadian Forces] member serving abroad has no right to legal counsel, and the perception that such a right does exist is misleading."

Under the Canadian Charter of Rights and Freedoms, Canadian Forces members serving abroad have exactly the same rights to legal counsel as any other Canadian citizen. In order to ensure that these rights are protected, the Directorate of Defence Counsel Services has 24/7 duty counsel accessible by telephone from anywhere in the world. Duty counsel regularly provides advice to CF members in Afghanistan and in other operational theatres on matters relating to the Code of Service Discipline. While CF members are free to retain civilian counsel at their own expense, it should be noted that the legal services provided by the Directorate of Defence Counsel Services are given free of charge.

Queen's Regulations & Orders for the Canadian Forces article 101.20 very clearly sets out the circumstances where legal services will be provided to persons who are liable to be charged, dealt with and tried under the Code of Service Discipline. These services include: provision of immediate legal advice to a person arrested or detained in respect of a service offence; provision of legal advice of a general nature to an assisting officer or accused person on matters relating to summary trials; provision of legal advice to a person who is the subject of an investigation under the Code of Service Discipline, a summary investigation or a board of inquiry; and, the provision of legal counsel to accused persons for representation at a court martial.

Should CF members require legal advice on arrest or detention, or prior to being interviewed by the military police, the following number is available to them on a 24/7 basis: 1-613-292-2137. For legal advice on summary trials and elections, they can call 1-888-715-9636, or 613-997-8985 if they are in the National Capital Region.

For more information on the services provided by the Directorate of Defence Counsel Services, I invite your readers to visit their web page on the Office of the Judge Advocate General website:

Col. Michel Drapeau responds: It is encouraging to have confirmation, in writing, from the Office of the Judge Advocate General, that "[under the Canadian Charter of Rights and Freedoms, Canadian Forces members serving abroad have exactly the same rights to legal counsel as any other Canadian citizen." On this point we should all be extremely delighted, as it appears changes must be on the horizon within the Forces. That said, even the Deputy Judge Advocate General would have to agree that the ability of a Canadian member abroad to exercise these rights is certainly not the same as that of a Canadian citizen, far from it.

In a civilian context, and under the Charter, a right to counsel extends to a having a right to representation. Can a member at summary trial deployed abroad demand that the procedure be suspended until counsel is retained or instructed, even though such counsel may not appear on their behalf? No. This is particularly surprising considering that the maximum penalty at summary trial is thirty (30) days detention; a situation where proper legal advice and representation is warranted.

If one cannot exercise their rights, these rights constructively do not exist.

Currently, Canadian Forces members must rely on four (4) legal officers employed at Defence Counsel Services to provide so-called 24/7 support. Considering the number of time zones in which Canadian Forces members are deployed, this is unrealistic. Firstly on its face, having only four (4) defence counsel is inadequate for a Force of approximately 80,000 strong. Secondly, a member wishing for legal advice abroad may only communicate via telephone. Any experienced lawyer will tell you that the proper way to receive instruction is face to face.

The solution that I have proposed is simple: The Canadian Forces should provide Duty Counsel to be present on site in all active theatres abroad. This is not unreasonable. Currently, civilian and reserve doctors, social workers and padres are employed in these same theatres. A member has the right to health, right to spiritual advice, why not the right to legal advice as well?

We firmly stand by our initial comments. Members may have rights, but they are inhibited from exercising these rights. It is analogous sentiment expressed in the recent Iraq elections: 'You may vote, but you'd better not, or you'll be in bigger trouble.' When our client, serving abroad, asked for a lawyer, he was given a photocopy from the Ottawa phone book, and told, "Go ahead." This is not good enough.

Colonel Michael Gibson Deputy Judge Advocate, General Military Justice Ottawa
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Author:Gibson, Michael Colonel
Publication:Esprit de Corps
Article Type:Letter to the editor
Date:Sep 1, 2011
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