OCdt LK appeared in uniform at what could be characterized as an 'anti-lockdown' and 'anti-vaccination' rally in Toronto. [F]ollowing his appearance at the rally - a video of which went 'viral' on social media - an investigation was initiated and LK was apparently relieved from performance of military duty, or was constructively barred from performing any military duties.  It was also reported that his uniforms were seized.

Ironically, had he not appeared in uniform, he would not have fallen within the jurisdiction of the Code of Service Discipline (CSD). By virtue of wearing his uniform, he triggered the jurisdictional provision at  sub-para 60(1)(c)(ii) of the NDA.  Otherwise, none of the other jurisdictional criteria likely would have applied. [Query, would that be the same here?]

Your loyal servant is unaware of any charge of 'offences related to mutiny' that have been successfully prosecuted under the CSD since the 'modern' NDA was enacted in 1950 [about the same time as the UCMJ]. I have certainly not found any reported case from the past 30 years.  Similarly, 'scandalous conduct by an officer' is rarely charged, and some of the more recent examples resulted in findings of 'not guilty'.  (However, in R v Lieutenant (Navy) Edwards, 2008 CM 2017, the accused was acquitted of the charge of "scandalous behaviour unbecoming an officer," but was found guilty of the charge of "behaving in a disgraceful manner" which had been charged in the alternative.)

There are some noteworthy aspects of these charges beyond their rarity.  Neither charge may be tried by summary trial [nor may that happen under the UCMJ], which will necessitate convening a court martial.  In light of the rarity of the charges, the potential complexity of some of the issues, and the potential for one or more applications under the  Charter, a court martial is the appropriate military tribunal.

Although these circumstances will likely evoke comments or memes relating to the 'Mutiny on the Bounty' [eh, done], a charge under the NDA should not be confused with the related charge of 'mutiny with violence' or even the charge of 'mutiny without violence'.  The offence is established where a person, subject to the CSD:

(a) causes or conspires with any other person to cause a mutiny,

(b) endeavours to persuade any person to join in a mutiny,

(c) being present, does not use his utmost endeavours to suppress a mutiny, or

(d) being aware of an actual or intended mutiny, does not without delay inform his superior officer thereof.  It appears that OCdt LK has been charged based upon the second criterion.

Although the maximum punishment for such an offence is 'life imprisonment' (which is the maximum sentence permitted under the CSD and under the Criminal Code in Canada), in light of the circumstances of the alleged misconduct, and the other charge that has been laid, there is a reduced likelihood that OCdt LK would face a punishment involving imprisonment, if he is found guilty of the alleged offence.

Interestingly, the offence of 'scandalous conduct by an officer'  (or, 'behaving in a scandalous manner unbecoming an officer') has a limited range of potential sentences.  An officer found guilty of these offences can be sentenced to Dismissal from Her Majesty's Service or Dismissal with Disgrace from Her Majesty's Service. [Seems that the Canadians have an officer form of a BCD and DD?]  In light of the nature of the offence, this limited range of sentences is not illogical.
Certainly, in light of the rarity for which these offences are charged, this matter has the potential to define elements of the offences as well as parameters for sentencing.

1975

Although many questions in this area have now come to be settled, there has been much controversy throughout our history as to which provisions of the Constitution relate to the military and which are concerned only with civilian trials.
. . . 
​​With regard to those provisions of the Fifth Amendment other than trial by jury, however, the same unanimity of agreement is not found. Judge Frank, speaking for the second circuit, said simply: “The Fifth and Sixth Amendments are, of course, inapplicable to a courtmartial.” Other courts have been equally certain that the provisions of both the Fifth and Sixth Amendments are applicable to military trials. Regardless of language to the contrary in some cases, it seems clear that at least some provisions of these two Amendments are generally deemed applicable to court-martial trials. Certainly the reasoning of such a position is more tenable than that of the cases which deprive a person of the protection of the Constitution at a timewhen he has taken up arms to defend it.

Such statements as that of Judge Frank above quoted may be taken to mean only that there is no blanket application of the Amendments to court-martial proceedings. If this is their meaning, the positiontaken is tenable but not well-stated. Such categorical statements should not be used unless they are intended to mean what they say[.]

2020ish

“[T]here has been substantial scholarly debate on applicability of the Bill of Rights to the American servicemember.”  United States v. Graf, 35 M.J. 450, 460 (C.M.A. 1992), cert. denied, 510 U.S. 1085 (1994); see, e.g., Gordon D. Henderson, Courts-Martial and the Constitution: The Original Understanding, 71 Harv. L. Rev. 293 (1957); Frederick B. Wiener, Courts-Martial and the Constitution: The Original Practice pts. 1 & 2, 72 Harv. L. Rev. 1, 266 (1958).  The Bill of Rights itself includes one exception for military justice cases:  the Fifth Amendment’s grand jury provision does not apply to “cases arising in the land or naval forces, or in the Militia, when in actual service, in time of War, or public danger.”  The Supreme Court has held that the Sixth Amendment’s right to trial by jury is similarly inapplicable to courts-martial.  The Supreme Court has recognized the applicability of some other portions of the Bill of Rights to the military justice system, though that application is often different than that in a civilian context.  It has reserved judgment on the applicability of some other Bill of Rights provisions.
 
The Court of Appeals for the Armed Forces’ case law recognizes the general applicability of the Bill of Rights to the military justice system[.] See generally, United States v. Easton, 71 M.J. 168 (C.A.A.F. 2012).

Colorado Supreme Court

​In this opinion, the supreme court reviews a decision of a divided panel of the court of appeals holding that the trial court reversibly erred by forcing the defendant to choose between excluding unconstitutionally seized evidence and fully pursuing an alternate suspect theory at trial, thereby violating the defendant's right to present a complete defense. The supreme court holds that the impeachment exception to the exclusionary rule does not extend to a defendant's truthful, yet incomplete, presentation of evidence: A defendant may offer such evidence, under the particular circumstances here, without opening the door to previously suppressed evidence.

[C]oncludes that a defendant may offer truthful, albeit potentially incomplete, evidence without opening the door to previously suppressed evidence.  This is because the important truth-seeking rationale that prohibits a defendant from turning the exclusion of illegally obtained evidence into a shield for perjury does not apply with equal force to truthful but potentially misleading testimony.  Accordingly, we affirm the judgment of the court of appeals.

Supreme Court

The Court was notably unanimous in Caniglia v. Strom, No. 20–157 (S. Ct. May 17, 2021).bThe start and close of the short opinion for the Court by Justice Thomas serves as a useful summary:

Decades ago, this Court held that a warrantless search of an impounded vehicle for an unsecured firearm did not violate the Fourth Amendment.  Cady v. Dombrowski, 413 U.S. 433 (1973).  In reaching this conclusion, the Court observed that police officers who patrol the “public highways” are often called to discharge noncriminal “community caretaking functions,” such as responding to disabled vehicles or investigating accidents.  Id., at 441.  The question today is whether Cady’s acknowledgment of these “caretaking” duties creates a standalone doctrine that justifies warrantless searches and seizures in the home.  It does not....

What is reasonable for vehicles is different from what is reasonable for homes.  Cady acknowledged as much, and this Court has repeatedly “declined to expand the scope of . . . exceptions to the warrant requirement to permit warrantless entry into the home.”  Collins, 584 U.S., at ___ (slip op., at 8).  We thus vacate the judgment below and remand for further proceedings consistent with this opinion.

Intriguingly, Justices Alito and Kavanaugh write distinct concurring opinions, both longer than the opinion of the Court, in order to set out questions unresolved and examples of what Justice Kavanaugh views as "warrantless entries that are perfectly constitutional under the exigent circumstances doctrine."  Here is a notable passage from Justice Alito's concurrence that brings to mind a famous commercial (footnotes removed):
​
Today, more than ever, many people, including many elderly persons, live alone.  Many elderly men and women fall in their homes, or become incapacitated for other reasons, and unfortunately, there are many cases in which such persons cannot call for assistance.  In those cases, the chances for a good recovery may fade with each passing hour.  So in THE CHIEF JUSTICE’s imaginary case, if the elderly woman was seriously hurt or sick and the police heeded petitioner’s suggestion about what the Fourth Amendment demands, there is a fair chance she would not be found alive.  This imaginary woman may have regarded her house as her castle, but it is doubtful that she would have wanted it to be the place where she died alone and in agony.

Army Court of Criminal Appeals

​Schlueter and Schenck’s defense of the status quo boils down to their assertion that sexual assaults and rape are worse in civilian society, military members are more likely to be prosecuted than civilians and that commanders make reasonable decisions when determining who should be prosecuted.
​

​This case was docketed with this court on 4 November 2020, without an appellate defense counsel assigned. On 14 January 2021, this court sent a certified letter to Appellant advising him that his case was docketed with this court and informing him that he had 60 days to file a brief assigning any error pursuant to Rule 18(d) of the Joint Rules of Procedure for Courts of Criminal Appeals. JT. CT. CRIM. APP. R. 18(d). Appellant submitted no response. No appellate attorney has entered an appearance before this court on behalf of either Appellant or the Government.

NIMJ recommends transferring prosecutorial discretion not only for all sex offenses, but also for all serious offenses – those for which the authorized maximum punishment exceeds one year’s
confinement. This dividing line is a familiar feature of American criminal justice. Additionally, commanders should play no role in selecting court-martial members.