The Canadian Armed forces have now ordered that all military personnel will be allowed to wear their uniforms to civilian criminal court only if they are testifying on behalf of the forces or the Crown in a military capacity.
The move comes in the wake of the case proceedings of Major General Dany Fortin, the former head of Canada’s vaccine task force, who was charged with one count of sexual assault in connection with an alleged incident in 1988. Since Fortin’s trial began in September, he has defended himself in court while wearing his uniform and ten medals across his chest.
The order came after complaints by some sexual trauma survivors that they were offended by a highly decorated military commander’s decision to wear his uniform and medals to his ongoing sexual assault trial. They described Fortin’s decision to wear his uniform with medals as an act of intimidation that would have a silencing effect on survivors as well as on the judge.
Let us turn the clock back to 1985. As a young Lieutenant then, I had to escort a Major, a Vir Chakra winner of the 1971 Indo-Pak War, to Additional Sessions Court at Delhi. The Major was standing trial for the murder of his wife’s paramour.
The Major’s wife was residing with her paramour with whom she had apparently decided to get married to. It was claimed by the Central Bureau of Investigations (CBI) who investigated the case that the Major devised a booby trap bomb which he put into a package and left it at the foot of the staircase leading to the home of the paramour. The paramour is said to have opened the parcel and the resultant explosion killed him instantly.
The Major wore his Army uniform with full medals without the belt to the court. On entering the court, he took his position in the dock. As the Judge entered the court, the Major saluted the Judge. Three soldiers with weapons as guard and I as the escort sat behind him.
The Additional Sessions Court found the Major guilty of murdering her wife’s paramour and he was sentenced to life. The judgement was later overturned by the Delhi High Court and the Supreme Court of India, who acquitted the Major of the crime. The higher courts observed that ‘it appeared that the case was totally dependent on circumstantial evidence and held that the CBI has failed to bring home the guilt of the accused.’
It is pertinent to note that in most countries the civilian judicial system prosecutes offences involving Armed Forces members for murder, manslaughter, culpable homicide, rape, and sexual assault. Such cases are generally not tried by Court martial
Was there anything wrong in that the Major, an accused in a murder trial, while attending the court, was wearing his uniform with all his medals?
At that time, I thought it was more of a dishonour to the Indian Army. The uniform is a powerful symbol of the institution and wearing it could make a witness deposing against him feel a bit intimidated as though he/she was deposing against the Indian Army as an organisation. The Judge could also be swayed by the sight of a soldier in uniform as sentiments other than that of a judge and an accused may come into the equation. More than anything else the accused being in uniform somehow seems to suggest that he has organisational support irrespective of his purported criminal offence. Also, there is no doubt that the sight of the accused in uniform reflects poorly on the organisation.
Undoubtedly all these aspects must have been considered in totality in the case of the Canadian General accused in a sexual assault case. The Canadian Armed forces have indeed brought about a very sensible change of rule.
I believe that all other Armed Forces across the globe need to follow suit and not allow the Armed Forces Members to attend court in uniform when indicted as an accused, especially in a murder or a sexual assault case. In some cases, the offence in question such as culpable homicide not amounting to murder may have happened during performance of duty and the individual may have organisational support. It’s a debatable issue whether the uniform should be permitted in such cases, especially if the organisation feels a moral obligation to defend the individual.
The word dock has a bit of history. Beginning in the late 1500s, English courts had separate enclosures for defendants in criminal cases. Since defendants were not allowed to pass through the bar in that era, these boxes called docks were introduced to distinguish the defendant from the other people in the gallery. In those days, dock was a slang for a cage for animals and in the English courts, the defendants were kept caged.