On Remembrance Day, let’s remember battlefield choices are not always black-and-white

Bob Tarantino
November 9, 2010
Toronto lawyer Bob Tarantino argues the recent verdict on Robert Semrau was both understanding of battlefield conditions—and just.

On Remembrance Day, let’s remember battlefield choices are not always black-and-white

Bob Tarantino
November 9, 2010
Toronto lawyer Bob Tarantino argues the recent verdict on Robert Semrau was both understanding of battlefield conditions—and just.
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The recent dismissal of Captain Robert Semrau from the Canadian Armed Forces following his conviction on charges of disgraceful conduct—and his acquittal on second-degree murder and attempted murder charges—has been both hailed and condemned. The facts of the case were not in dispute; he shot an unarmed and grievously wounded enemy combatant on the battlefield in Helmand province, Afghanistan.

Semrau’s acquittal on the more serious charges but conviction on the lesser charge was what stirred up the controversy. One criticism of Semrau’s treatment that should not be allowed to stand is that the verdict is “nonsensical” (in the words of the National Post’s editors, “patently illogical”) or an irresponsible fudging of the law – the verdict is not only comprehensible, but laudable. Legal decisions need not be logical, but they should be just. The Semrau verdict demonstrates that the common law is a mechanism capable of delivering a subtle and nuanced justice.

It is important to note the verdict was delivered not by a judge but by a military panel of five officers, the Canadian Forces equivalent of the colloquial “jury of one’s peers.” That echo of the common law jury is the most salient point for understanding the Semrau verdict: the Semrau case is a perfect example of a humane, if difficult, verdict. It was rendered to ameliorate a potential injustice caused by the inexorable application of abstract rules.

Legal conclusions are not like an algebraic equation: firing a shot with intent to kill does not always equal murder (or attempted murder). A jury (or military panel) is not required to provide oral or written reasons for its verdict, but some informed speculation is possible about how the military panel concluded that Robert Semrau did not deserve to be labelled a murderer, even though he admitted to shooting an unarmed enemy fighter.

A variety of defences are permitted by the common law; a defendant is not limited simply to arguing “it wasn’t me”. Entire categories of defences are premised on the express admission by the accused that he or she committed the acts in question. The form of defence referred to by the term “justification” challenges whether, taking account of all the circumstances, what was done was in fact wrongful. The accused admits he committed the acts he is accused of, and acknowledges that he understood what he was doing, but argues the acts in question were not “wrongful” in a sense relevant for the criminal law.

The classic examples are breaking the speed limit while rushing a gravely injured friend to the hospital or killing an armed assailant in self-defence. The defence is sometimes formulated as choosing the lesser of two evils. Confronted with that dilemma, the law should be reluctant to punish someone who better promotes society’s values by disobeying a law than by obeying it.

The circumstances in which Robert Semrau found himself in October 2008 offer another classic, if chilling, example of a justification excuse: confronted with a dying man who stood no reasonable prospect of receiving medical treatment, should he let the man “bleed out” and suffer a protracted and agonizing death, or should he “put him out of his misery”? As we know, Semrau elected to kill the man in order to relieve his suffering. Applying the formulation of justification-type defences, Robert Semrau’s argument would have been that he certainly pulled the trigger but, in light of the circumstances in which he found himself, he wasn’t wrong to do so.

In the mid-1980s the Supreme Court of Canada and the Law Reform Commission of Canada struggled to formulate rules which could adequately address justification defences. For the most part, they proved incredibly reluctant to do so, circumscribing the defence to relatively easy to describe situations such as “self-defence”. They failed to articulate a broader principle because formulating such a rule is an impossible task. Allowing a principles-based formal defence of justification is a function of equitable mercy, not legal sanction. The infinite possibilities of “justifying” circumstances with which a court could be confronted do not admit of reduction to binary tests. Our system of positive law is not well-suited to allowing an articulated defence of “justification.”

However, we are not limited solely to the law as it is set out in statutes. Juries are not constrained, as are judges, by the same need to create rules which must serve as guidelines for future cases. While juries are not infallible, we can often count on them to display a type of wisdom which tempers the excesses and occasional injustices which might be levied by prosecutors, judges and black-letter law. And the underlying motivation of recognizing the defence of “justification” is impossible to miss when one examines the Semrau decision. The jury and the flexibility of the common law act as bulwarks against dogmatism and excessive formality which may afflict professionals such as lawyers and judges. Indeed, lawyers in Canada are barred from serving on juries and courts martial military panels.

What Robert Semrau did on the battlefield may not be commendable. In the circumstances though, the jury passed judgment on him and concluded he certainly did not deserve to be labelled a “murderer,” nor even be found guilty of attempted murder. Measured against the strict duties imposed on members of our military, however, he failed to live up to such duties and so was found guilty of behaving in a disgraceful manner.

There no inconsistency between those two verdicts. Law and justice do not always coincide. But in the Semrau verdict, they did.

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