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= The Semrau Case =

The Semrau Case (Semrau R.A. (Captain), R. v., 2010 CM 4010 (CanLII) involved Captain. R. A. Semrau v. Her Majesty the Queen. The case centered around Semraus' actions on October 19 2008, while serving as the senior Canadian Forces member in charge of a Operational and Mentor and Liaison Team in the Helmand Province of Afghanistan.

At the time of the incident, Semrau and thirty other Canadian soldiers were acting as advisors to the Afghan National Army (ANA) while ANA forces preformed a tactical clearing of a valley. Hours into the operation, the point-team of the company came under fire. After a brief engagement, Semrau came upon a wounded insurgent at the side of the road he was advancing down After pushing past and consolidating, Semrau returned to the still wounded insurgent, had his fire team partner take photos for intelligence purposes. Once taken, Semrau used his rifle to fire on the wounded insurgent at point blank range as a mercy killing. The fallout of this action would total close to two years of legal battles, and would divide Canadian military and civilians' alike.

Semrau would be arrested on December 30th, 2008, following an investigation by the Canadian Forces National Investigation Service. On 17 September 2009, four charges were preferred by the Director of Military Prosecutions against Semrau: second degree murder, attempt to commit murder with a firearm, cruel or disgraceful conduct and negligent performance of duties. All violations of of the National Defence Act. As part of the proceedings, the Canadian Forces would spend two weeks in Afghanistan hearing testimony from a number of witnesses. This was due to the lack of evidence (body) for beginning a prosecution.

On July 19 2010, Semrau was convicted of disgraceful conduct, but acquitted of second degree murder attempted murder and negligent performance of duties. On 5 October 2010, he was sentenced to dismissal from Her Majesty’s service and a reduction in rank from Captain to Second Lieutenant.

Robert Semrau Early life and Adulthood
Robert A Semrau was born in 1982. He was raised in Moose Jaw, Saskatchewan by his devout christian parents, Don and Jean Semrau, having to share his space with an older brother, Bill. Semrau attended high school in Moose Jaw, before applying and attending the University of Saskatchewan where he earned a B.Sc. in Psychology.

Once completing university, Semrau would enlist and serve in the British Armed Forces, and Canadian Armed forces as both a paratrooper and infantry officer between 1999 and 2011.

After leaving the military in 2011, Semrau began working as a security advisor for a Canadian Oil firm in Iraq. During his time in Iraq, Semrau took to writing his own accounts of the events that took place while he was serving in Afghanistan. In his book, The Taliban Don't Wave, Semrau recounts the events leading up to, and circumstances surrounding his controversial actions.

Today, Semrau lives in Pembroke with his wife Amelie Lapierre-Semrau and their two daughters.

Military Service
Upon completing university, Semrau enlisted in the British Armed Forces as an infantry solider. Completing his basic training in Catterick, England during the mid 90's, his parachute course at the Royal Air Force base in Brize Norton in 1999, Semrau was assigned to the 2nd Battalion, Parachute Regiment of the British Armed Forces, retaining the rank of Private until his departure.

Between 2001 and 2002, Semrau would deploy on three separate occasions with his paratroop. His first deployment in Northern Ireland in 2001 earned him the General Service Medal. His second deployment in [http://news.bbc.co.uk/2/hi/uk_news/1504125.stm#:~:text=BBC%20News%20%7C%20UK%20%7C%20British%20troops%20land%20in%20Macedonia&text=The%20first%20contingent%20of%20British,part%20of%20a%20ceasefire%20agreement. Macedonia in 2001]earned him the NATO Medal for Macedonia Service. His third and final deployment with the British Armed Forces took place between 2001 and 2002, while serving in Afghanistan and earning the Operational Service Medal for Afghanistan with bar.

After releasing from the British Armed Forces shortly after 2002, Semrau returned to Canada. In 2005, he reenlisted with the Canadian Armed Forces, falling in favor with his new chain of command who recognized his outstanding leadership capabilities. Having already been a qualified British paratrooper, Semrau was rolled into the Royal Canadian Regiment as an Infantry Officer. His prior service having transformed him immediately into the favorite Jr. officer in battalion, Semrau make Captain in 4 years. By 2008, Semrau was ready to be deployed again. Being a battalion favorite, he picked up an unlikely position as a jr. Captain in charge of a Operational Mentor and Liaison Team that was to deploy to Afghanistan. Alongside 30 other Canadian Soldiers, Semrau would be embedded with the Afghan National Army. While 2 fire-teams of Canadians were embedded for every platoon and company sized ANA asset, the role of the Canadians was to instruct and teach ANA officers and regulars on how to conduct war for themselves. This included assisting and teaching the ANA during ongoing battles, often committing themselves to some of the fighting.

Following an incident on the October 8th, 2008, in which Semrau was an actor in the mercy-killing of a wounded enemy insurgent; Semrau would be investigated, and charged with 4 accounts of breaching of the NDA. Semrau would plead not guilty, which proceeded a very public, 2 year legal battle. Semrau would be convicted by a Panel of his peers on only 1 of the 4 charges raised against him in. Not serving any jail time, Semrau would be demoted to the rank of Second Lieutenant and discharged from Her Majesty's service.

Helmand River valley Incident
During the day of October 19 2008, Semrau was conducting routine advisement of ANA forces in the Helmand River valley, Afghanistan. ANA forces were patrolling and clearing the valley. Semrau was embedded with a rifle-company sized element of ANA forces. The other Canadians on the ground at the time were comprised of 2, 2-man fire-teams that were spread among the ANA. Cpl. Steven Fournier, another Canadian solider, was Capt. Semrau's fire-term partner. Alongside them was an Afghan interpreter and Captain Shaffigullah, the ANA company commander.

Several hours into the operation, the point group of the company came under enemy fire. Reacting to this fire, the company called in air support, as an Apache gunship began suppressing the area where the company was drawing fire. As the gunship left and the enemy fire died down, one enemy combatant was dead and another lay wounded with sever stomach and leg injuries. As the ANA push-passed, establishing a baseline and securing the area, Semrau and his fire team first became aware of the injured insurgent as he was laying on the side of the road. The advancing AVA forces had already stumbled on the wounded insurgent, and had covered his face with his headscarf, leaving him for what would likely be death from his injuries in a short period of time. Seeing the head-covered, seemingly mortally wounded insurgent, Semrau's team moved away from the wounded insurgent and further into a cornfield beside the road to inspect the second assailant who had been killed in the gunship attack. Upon visually confirming the state of the now officially deceased second insurgent, Semrau and his fire-team partner returned to the first body. The now still wounded insurgent was in a critical state, but not yet dead. Semrau's fire-team partner began taking photographs of the area and the wounded insurgent: the standard procedure of intelligence gathering upon the discovery of enemy bodies, positions, weapons, etc... Once all necessary intelligence had been gathered, Capt. Semrau approached the potentially dead, potentially alive insurgent and fired his rifle into the the body before returning to his fire-team position.

Cpl. Steven Fournier and the Afghan interpreter whom were closest by when the shooting occurred, would testify to the accuracy of this account. Shortly after having committed the action, Semrau would regroup with his team of Canadian soldiers and tell them that it was a mercy killing.

Arrest
Between October 19 and December 30, the CFNIS had conducted a preliminary investigation into the shooting, as rumors of the incident began to circle among the Canadian's stationed in Kandahar. 72 days after the incident in the Helmand River valley, on 30 December 2008, Semrau was arrested by Canadian Military Police while still in Afghanistan. He was held for 9 days in Kandahar Airfield while the JAG back in Canada prepared to lay charges. This began the nearly 2 year court martial process.

Due to the nature of the alleged crime that had been committed, and the fact that Semrau would enter a not guilty plea, the Judge Advocate General could not proceed with a summary trial (see Canada Footnote). In the two-step Canadian Military Judicial system, the case was automatically moved to Court Martial status (see Canada Footnote). Because of this, the charges presented to Semrau had to be Preferred(See footnote) by the Director of Military Prosecutions, ensuring the case was to be taken to the highest military court.

The Charges
The four charges that were decided upon were laid on 31 December 2008. They are as follows:


 * 1) Second Degree Murder – contrary to Section 130 of the National Defence Act, pursuant to Section 235(1) of the Criminal Code
 * 2) Attempt to Commit Murder (alternative to the Charge of Second Degree Murder) – contrary to Section 130 of the National Defence Act, pursuant to Section 239(1)(a.1) of the Criminal Code
 * 3) Behaving in a Disgraceful Manner – contrary to Section 93 of the National Defence Act
 * 4) Negligently Performing a Military Duty – contrary to Section 124 of the National Defence Act

The Court Martial Process
Following Semrau's arrest and presentation of charges, he was presented with legal council as provided by the Crown. Lieutenant-Colonel J.M. Dugas and Major S.E. Turner. These aids' act as the officials that guide an accused person through the Court Martial system. Between the laying of charged on the eve of 2009, and the convening of the 5-Person Panel, Semrau would have the opportunity to gather evidence to the contrary of his charges, letters of merit, prepared witness testimony, while his legal council would be directing his efforts, and filing pre-trial motions. In the case of Semrau, 5 major pre-trial motions were filed on behalf of the accused. Each motion (notice of application) looked to establish fault with portions of the Canadian Forces Legal process in hopes of lightening or removing charges, or to have the case thrown away all together. These motions are as follows below.

The Pre-Trial Motions
On January 25, 2010, Lieutenant-Colonel J.M. Dugas and Major S.E. Turner (Counsel for Captain R.A. Semrau) filed an application suggesting that the 5-person panel could be innately leaning towards prima facie, based on the wearing of different levels of military uniform in court. With medals, without medals, with or without qualification badges, different elements having different colours and different ranks on display. The argument suggests the accused may be judged first on his courtly appearance, negating a proper and fair legal trial. It was determined to have no validity and was dismissed.

On January 27, 2010, Counsel for Captain R.A. Semrau filed a motion alleging that due to the arrest of Semrau at Kandahar Airfield, and the alleged actions having taken placed in Afghanistan, if the Crown had the legal ability to select a different location (in this case Canada) for the trial to take place. It was determined that the crown does have this authority, and the motion was dismissed.

On February 01, 2010, Counsel for Captain R.A. Semrau filed a motion alleging a violation of the Charter of Rights and Freedoms as the accused had a right to be tried within a reasonable amount of time. Due to the extreme nature of the accused crimes, necessary timelines for collection of evidence and materials, Semrau would wait 21 months from his arrest to be convicted. It was determined this was an appropriate period of time and did not violate the Charter, and was dismissed.

On February 05, 2010, Counsel for Captain R.A. Semrau filed a notice of application requesting a stay of proceedings or for the termination of proceedings. It was alleged that the accused rights as protected by the Charter, were violated by failure to include a scale of punishments in the National Defence Act, which were included in the Criminal Code. It was alleged that the courts inability for military tribunals to use these various sentencing measures prevents military accused from receiving fair and just sentences. It was determined that except in rare cases, substantive challenges (proposing constitutional change) should he heard at the end of the trial. As court martial play out, a member must be found guilty, and then an appropriate sentence will be issued. As punishments are not available to be addressed until after a guilty or not guilty verdict has been reached, they can not come into play (as was requested by the notice of application) until after a verdict is reached. This application was dismissed.

On February 10, 2010, Counsel for Captain R.A. Semrau filed an application alleging that accused charged with a military offence would not have a fair and public hearing by an independent and impartial tribunal guaranteed by the Charter of Rights and Freedoms. It alleged that selection of the 5-person military panel was in contest with being independent and impartial. Although the Crown noted the possible need for minor law reform and misalignment between the composition of courts martial panels and civilian juries, it was determined to not be in violation of the charter and the process of panel selection was in proper form to proceed. The application was dismissed.

5-Person Panel
As Semrau was being tried in a General Court Martial (as apposed to Standing Court Martial), a panel of 5 military members are selected to hold a Panel. These 5 persons are selected from an annually refilled list. Each of the persons on the list has been vetted to ensure their qualification to stand on a Panel, and meet the legal criteria. As well, to not be in violation of any Panel restrictions ie. being an ombudsman, member of the Military police, judge, etc... Each fills out a questionnaire and is then placed onto the pool list. When required, 5 persons on the list are selected at random to form the Panel. Thus fulfilling the right to fair trial through judgment of ones peers.

Once formed, the Panel acts similarly to a jury in a civilian court of law. Privy to all the evidence, witness statements and court proceedings, the Panel must reach a majority vote on each of the charges that have been laid. Once determined, the Panel will issue their findings as Guilty, or Not Guilty for each charge. Following a Panels decision, the sitting military judge will determine the sentencing if any charge is found to be guilty.

In the case of Semrau, the Panel found 3 of the 4 charges to be Not Guilty, and 1 of the charges to be Guilty.

Verdict
On October 05, 2010, Captain Semrau was found guilty of Behaving in a Disgraceful Manner – contrary to Section 93 of the National Defence Act, and was sentenced to a rank reduction from Captain to Second Lieutenant, and dismissal from Her Majesty's service.

Reasons for Sentence
To convict a member of the Canadian Armed Forces of an National Defence Act violation, the prosecution has to prove each of the essential particulars in order for prove beyond a reasonable doubt that the accused did in fact commit the crime they are on trial for. Similar to requiring mens rea and actus reus in civilian courts, in a Military Court Martial, the prosecution must prove beyond a reasonable doubt, each particular of each charge. And then the 5-Person Panel must agree or disagree with the findings. The particular elements of the Semrau case that had to be addressed by the sitting judge Lieutenant-Colonel J-G Perron, M.J are as follows:

a.      your identity as the alleged offender;

b.      the date and place of the commission of the offence;

c.      that you had shot an unarmed and wounded unnamed male person while acting as the Commander of call sign 72A Operational Mentoring Liaison Team;

d.      that such act constitutes disgraceful behaviour; and

e.      your blameworthy state of mind at the time of the commission of the offence.

As Lieutenant-Colonel J-G Perron, M.J. confirms the former points as he recounts Semrau's actions from the incident: '' [7]               Your identity as the offender and the time and place of the offence were never in contention during this trial. It was evident the insurgent was unarmed and that you were the commander call sign 72A at the time of the offence. The nature and extent of the insurgent's wounds were described by numerous witnesses during the trial. Four witnesses testified he was alive when they observed him. I instructed the panel they had to be satisfied beyond a reasonable doubt that the unnamed male person was alive when you shot him, because the particulars of the charge allege that the unnamed male person was wounded. As I instructed the panel, a "wound" is defined as an injury to living tissue caused by a cut, blow, or other impact; thus one must be alive to be described as "wounded." Therefore, I conclude the panel was satisfied beyond a reasonable doubt that the insurgent was still alive at the time you shot him. ''

'' [8]               When addressing your state of mind, I instructed the panel that the prosecution had to prove beyond a reasonable doubt that you intended to shoot the unarmed and wounded unnamed person. I take from the panel's verdict that they believed you intentionally shot the first insurgent. It does not really matter whether you shot the insurgent twice in quick succession—a "double-tap," as we are taught in our infantry training—or whether you only shot him once. ''

'' [9]               As I explained to the panel, to behave in a disgraceful manner requires that the behaviour is shockingly unacceptable in the circumstances. "Shocking" is defined as causing indignation or disgust. Having considered all of the evidence on the roles and duties of the OMLT members, the conduct expected of CF members involved in operations in Afghanistan and the evidence pertaining to the circumstances surrounding the shooting of the insurgent, the panel decided that this behaviour was shockingly unacceptable in the circumstances. ''

'' [10]           Why is shooting an unarmed and wounded person considered disgraceful? The code of conduct for CF personnel clearly states that we must offer assistance to wounded enemies that do not pose a threat to us. The code of conduct was taught to every OMLT member and was part of the soldier's card issued to every OMLT member. It was clear from the testimony of every witness that one cannot shoot an unarmed and wounded enemy. I conclude that shooting a wounded and unarmed person in the circumstances of the present case is considered disgraceful because it is so fundamentally contrary to our values, doctrine, and training that it is shockingly unacceptable. '' Follow these links to the Canadian Legal Information Institute for the complete PRE-TRIAL MOTIONS and REASONS FOR SENTENCE dockets.

Understanding the Verdict
''The following assessment was reached through careful analysis of still-withstanding interviews, publicly available court documents, as well as first hand testimony from those who attended the Semrau trial. Key is viewing the entirety of the affair through the lenses of the Law of Armed Conflict (LOAC), International Humanitarian Law (IHL), and Human Rights Law (HRL). Foremost to LOAC, IHL and HRL, is an understanding of the Canadian Military Judicial system. More specifically, the key areas wherein Military Law and Civilian Law diverge, and the higher level of accountability is demonstrated through what may seem as a prosecution that is aiming towards what looks to be the wrong target. With these differences in mind, the Semrau case can stand as a cornerstone in the Canadian Military Judicial system, forcing all who look into it to dig a little deeper.''

Why was the verdict: Guilty for Behaving in a Disgraceful Manner?

The focus of Lieutenant-Colonel J-G Perron, M.J. when sentencing Semrau was not based on superficial reactionary evidence of Semrau's clear and pointed actions, but the fundamental aim of military discipline. He states that discipline is at the very heart of every efficient and effect military force. Discipline is that quality that each CF member must have which allows him or her to put the interests of Canada and the interests of the Canadian Forces before personal interests. This is necessary because Canadian Forces members must willingly and promptly obey lawful orders that may have very devastating personal consequences such as injury and death.

J-G Perron, M.J. recounts, Semrau has had an exemplary career up until this point. Multiple combat tours serving in two separate armies, in Infantry-based battalions all for the Commonwealth, pointed out by leadership as the model solider. With no rap-sheet, no prior issues or negative assessments, the verdict can not reflect the lack of impulse control or one-off mistake by what would otherwise be the shining example of a well-rounded solider and officer. Rather, the verdict must reflect the root of the problem, which does not lie in the well rounded nature of Semrau's solder skills, ability or judgement. What we see is the opposite being painted as the root of the problem. It is not the overt action of mercy killing an enemy combatant that Semrau derives a guilty verdict. It is the covert action he is oblivious to recognize that is the real failure of gross magnitude. As Lieutenant-Colonel J-G Perron, M.J puts it:"'Thus you put your subordinates in one of the most precarious situations imaginable:  that of knowing their leader had committed a serious breach of discipline. Now, what were they supposed to do?  Report you, as it was their duty, or support their leader, knowing that what he did was unlawful and that their silence was also wrong?  Each member of your team has had to make decisions since that incident and has had to live with the consequences that flowed from these decisions.  You might have been torn between your personal moral values and your duties as a Canadian soldier when you made your choice; but did you consider the dilemma you were inflicting upon your subordinates?'"The Commission scroll. 263 words that spell out the duty and high office entrusted to Officers of the Commonwealth. The words speak for themselves.:  "'... well discipline both the Inferior Officers and Non-Commissioned Members serving under you and use your best endeavour to keep them in good Order and Discipline, and We do hereby Command them to Obey you as their Superior Officer, and you to observe and follow such Orders and Directions...'"Unconscious abuse of this authority falls on the highest levels of disgrace someone may be partial to. The verdict in this case points at the failure to take one's immediate subordinates into account; forcing those who would otherwise not have to stop and question the legal, moral, or personal intentions of their leader. Erosion of such trust can stop in its tracks, what would otherwise be a highly trained military force.

Why was there no conviction for charge (1) Second Degree Murder, and (2) Attempt to Commit Murder?

As stated by Lieutenant-Colonel J-G Perron, M.J., the 5-Person Panel found Semrau "...not guilty of second degree murder, of attempt to commit murder using a firearm, and of negligent performance of a military duty." As the Panel has the only word on what charges will be found to be Guilty or Not Guilty, the presiding judge rightly does not dwell on the charges that could have been. Perron has to look deeper then what may seem on the service as someone who is getting away with murder.

In terms of the justification behind behind the decisions made by the 5-Person Panel, there can be large debates as the notes from the Panel are never released to the public. However, by examining reported testimony and court documents, the Semrau case may be painted in the same light as which it was seen by the Panel.

The first charge of Second Degree Murder came up as Not Guilty. But Why? First, the particulars of the charge do not allege Semrau killed the insurgent; they allege Semrau shot the insurgent. This distinction is necessary as the Crown could not prove without a reasonable doubt that it was, in fact, Captian Semrau's shots that allegedly killed the insurgent, or if the insurgent had succumbed to his wounds and was not legally alive at the point of incident. Captain Shaffigullah, witness to the event, swore to the court that the insurgent was 98% dead. Adding onto this, he claimed not to know if he was dead before or dead after (the shooting), There was no possibility for him to stay alive that day. He could die in five minutes, 10 minutes or a half-hour.

The very general assessment for a Not Guilty ruling in this case, must come from the Panel's determination that during the incident, Semrau's own actions did not meet all the particulars of the charge. Breaking the charge down into laymen's terms, the essence is that it has to be a act or a lack of action that would lead to the deliberate killing that occurred without planning and does not fall under any of the categories of first degree murder. From this, several possibilities arise. Most apparent is that the prosecution could not prove beyond a reasonable doubt, that it was Semrau's actions that potentially killed the insurgent, or if it was the wounds he had sustained from the recent engagement. Additionally, lack of a body that could be declared dead by a medical professional lends to the belief that the prosecution could not prove that murder of the second degree had taken place.

Why was there no conviction for charge (4) Negligently Performing a Military Duty?

As stated by Lieutenant-Colonel J-G Perron, M.J., the panel of 5 found Semrau "...not guilty of second degree murder, of attempt to commit murder using a firearm, and of negligent performance of a military duty."

Being charged under Sec 124 of the NDA requires a fairly specific action to have occurred. As listed in sub-para's a. through c., Sec 124 violations are persons who willfully or negligently makes a false statement or entry in a document made or signed by that person, when signing documentation; leaves blank sections, with intent to injure any person or with intent to deceive, suppresses, defaces, alters or makes away with any document or file kept, made or issued for any military or departmental purpose.

Public and Media Reactions
Following the incident from the first public notice of the charges, to the conviction and following justice, the Semrau case split the opinions of Canadian citizens, news media outlets and military professionals alike.

Honours and decorations
Semrau has received the following decorations during his military career, worn in order of presentation, from left to right.