Attempt to exempt US authorities in Canadian waters from Canadian law

[Seafever]

Actually wasn't it a year or so ago that the DEA set up an office in Vancouver......and at the time they were pretty well given Carte Blanche to do whatever they want, including detaining Canadian citizens?

This with the blessing of our government......

 

[ziggy]

Not sure about the DEA but here is what I was talking about from the Visiting Forces Act.

Primary right of civil courts to exercise jurisdiction

5. (1) Except in respect of offences mentioned in subsection 6(2), the civil courts have the primary right to exercise jurisdiction in respect of any act or omission constituting an offence against any law in force in Canada alleged to have been committed by a member of a visiting force or a dependant.


Marginal noterevious trial by service courts

(2) Where a member of a visiting force or a dependant has been tried by a service court of that visiting force and has been convicted or acquitted, the member or dependant may not be tried again by a civil court for the same offence.


R.S., c. V-6, s. 5.

Marginal note:Jurisdiction of service courts

6. (1) Subject to this Act, the service authorities and service courts of a visiting force may exercise within Canada in relation to members of that force and dependants all the criminal and disciplinary jurisdiction that is conferred on them by the law of the designated state to which they belong.


Marginal noterimary right to exercise jurisdiction

(2) With respect to the alleged commission by a member of a visiting force of an offence respecting

(a) the property or security of the designated state,


(b) the person or property of another member of the visiting force or a dependant, or


(c) an act done or anything omitted in the performance of official duty,


the service courts of the visiting force have the primary right to exercise jurisdiction

Pretty clear in my mind that military personnel are still subject to Canadian Laws on Canadian soil, not to mention their own.

 

[Charlie]

Not sure about the DEA but here is what I was talking about from the Visiting Forces Act.

Primary right of civil courts to exercise jurisdiction

5. (1) Except in respect of offences mentioned in subsection 6(2), the civil courts have the primary right to exercise jurisdiction in respect of any act or omission constituting an offence against any law in force in Canada alleged to have been committed by a member of a visiting force or a dependant.


Marginal noterevious trial by service courts

(2) Where a member of a visiting force or a dependant has been tried by a service court of that visiting force and has been convicted or acquitted, the member or dependant may not be tried again by a civil court for the same offence.


R.S., c. V-6, s. 5.

Marginal note:Jurisdiction of service courts

6. (1) Subject to this Act, the service authorities and service courts of a visiting force may exercise within Canada in relation to members of that force and dependants all the criminal and disciplinary jurisdiction that is conferred on them by the law of the designated state to which they belong.


Marginal noterimary right to exercise jurisdiction

(2) With respect to the alleged commission by a member of a visiting force of an offence respecting

(a) the property or security of the designated state,


(b) the person or property of another member of the visiting force or a dependant, or


(c) an act done or anything omitted in the performance of official duty,


the service courts of the visiting force have the primary right to exercise jurisdiction

Pretty clear in my mind that military personnel are still subject to Canadian Laws on Canadian soil, not to mention their own.

Ziggy, it might not be all that clear!

It is actually up to the American military authorities to allow any Canadian Court to charge and prosecute American soldiers. That is actually under ARTICLE VII (2) (a):

"The military authorities of the sending State shall have the right to exercise exclusive jurisdiction over persons subject to the military law of that State with respect to offences, including offences relating to its security, punishable by the law of the sending State, but not by the law of the receiving State.

That would be right from National Defence and the Canadian Forces; QR&Os: Volume IV - Appendix 2.4 Agreement between the Parties to the North Atlantic Treaty regarding the Status of their Forces
http://www.admfincs.forces.gc.ca/qro-orf/vol-04/appendix-appendic-02-04-eng.asp

Now with that let may I remind you that works with both U.S. and Canadian Armed Forces. Now let me compound your thought process and tell you from personal experience, remembering this is dated information and subject to current political circumstances.

The U.S. military authorities will always immediately recall any service member violating foreign law on foreign soil, whether the host country even knows about it. They will be automatically banned from future duty in that receiving country and certainly will be tried under UCMJ law. Re-read your post... once tried under UCMJ the receiving county cannot re-try them in their civil court system. When it comes to our military and diplomatic personnel, that really is U.S. policy - period. The U.S. really does NOT like to make any exceptions to that policy and the ONLY exception would be a pretty horrific crime, performed off duty not on official business, the "political" relationship, and a whole lot of outside political pressure. Then the U.S. has been known to waive immunity, allowing the host country to prosecute.

How am I so sure of this? I was actually stationed overseas for over 10 years to major U.S. military installations, in many different foreign countries and I was never required to get so much as a drivers or fishing license. During that time a U.S. Passport was not even required – nota, nothing, as there was no host nation SOFA or SOMA agreements in force to worry about. I didn't even have to renew my expired driver’s license here in the U.S., until I left military service. Not having a current drivers license, along with many other U.S. laws are individual State's civilian law and the military was exempt from a lot of them, at least back then.

Then comes the transfer to the good ole State of Washington and I start getting assignments requiring flying individual aircraft to foreign countries; including, both Canada and Mexico. Suddenly the U.S. State Department notifies anyone traveling to Canada and Mexico on official business is required to get and carry a U.S. Diplomatic Passport. I get my required passport, along with my diplomatic immunity while traveling through Canada and Mexico, again on official business. This was granted under the ‘Vienna Convention on Diplomatic Relations.’ Which BTW… has been agreed upon by 187 countries, including both the United States and Canada. At the very most Canada as the receiving State would only request their names for approval beforehand and I was briefed on what the host country could and could not do, including Customs searches.
http://untreaty.un.org/ilc/texts/instruments/english/conventions/9_1_1961.pdf

Trust me, if a USCG or any other service member on official U.S. orders commits any crime in Canada, Canada will NEVER have an opportunity to prosecute them! Again, UNLESS there is a whole lot of politically pressure put on the U.S. State Department. I am quite sure the first thing you will find with any small individual USCG unit performing official U.S. business assigned duty in Canada and where there may be a question concerning jurisdiction at a minimum those service members will be required carry on their person at all times their:

1) Diplomatic Passport;
2) Military ID;
3) copy of orders;

And, they will be registered with the Canadian and U.S. Governments having Diplomatic Immunity - wanna bet?

Now with all that said - There is no doubt in my mind the USCG is NOT asking for anything, they don't need to and that only leaves some idiotic state and/or federal authorities scarred to death they are going to shoot some Canadian and be tried under Canadian law doing the asking. To them I will simply say - SO BE IT, you chose to work in Canada and again state NO U.S. "civilian" authority who chooses to work in Canada has any reason to be "exempt" from Canada Civil Law - END OF SUBJECT! That would leave a very big bag of worms for the U.S. Department of State trying to prosecute them in Federal Court - as in jurisdiction issues. And, I have no doubt some of those idiots might be individually requesting; however, it is seriously doubted you will ever see any such request coming from the U.S. Department of State?

 

[ziggy]

Charlie, your highlighted, bolded text simply confirms that visiting military personnel in Canada are still subject to their home countries "military law" as is stated in the Visiting Forces Act I already posted. I don't see anywhere where it says you are not subject to the host countries civil laws, in fact the opposite is true.
You may well have carried a special passport . Military personnel here did as well when deployed on UN mission. It did not however grant immunity but simply identified them as an official of the government of Canada. That is significantly different than a diplomatic passport on this side of the border at least. If in fact you were given an actual diplomatic passport you would have immunity but, I doubt all US servicemen carry one.
By the way read the proceeding para of your reference you quote. Seems clear in there as well. Art vii. (1)(b).

 

[reelfast]

not sure about the legal end of this but I can relate that my son-in-law who is currently deployed with the 7th fleet in Japan has related a couple of unfortunate instances of sailors gone wild. I do believe they were picked up by local authorities but quickly handed over to the Navy for punishment via court marshal. I don't think military or special forces folks are exempt from obeying local laws but there may be a line in the sand as to who takes over for the prosecution. still sort of murky to me.

 

[ziggy]

It comes down to primary authority. Often civilian governments simply opt to let the military take care of their own out of courtesy and because it lessens their work load. It's because the military takes a harsher stand on what would be deemed minor civil offenses, that often would never go to trial. It also is a matter of who cares as long as the offender is appropriately punished and it didn't cost them time or money. The same is true of civilian police who often turn over an offender back to the military for minor offences. If the offences are major, the civilian authorities always execute their right to primary prosecution.
Wasn't there just recently a case of an American serviceman turned over to the South Korean Government?