Captain Robert Semrau during a bail hearing at the Canadian Forces Base Petawawa on Tuesday. Semrau is charged with second-degree murder in the death of an unarmed man in the southern Afghan province of Helmand last October. Photograph by: Christopher Pike, Reuters
GATINEAU, Que. — Capt. Robert Semrau, the first Canadian soldier ever charged with murder for an alleged battlefield killing, wants his court martial moved to Afghanistan if it is not halted in Canada.
The change of venue is among several motions that Semrau's defence counsel began arguing before judge Col. Mario Dutil when his trial opened Monday.
Defence lawyer Maj. Steve Turner argued that Semrau's right to a fair trial and other basic liberties under the Charter of Rights and Freedoms are violated by several military justice practices.
He cited the wearing of military uniforms in court, the absence of sentencing alternatives and probation in military law, and restrictions against lower ranks of officers and others from eligibility for military juries, known as panels.
Turner's first motion, asking the judge to bar all but the accused and witnesses from wearing military uniforms in court, was dismissed late in the afternoon.
Turner argued unsuccessfully that uniforms provide "powerful visual symbols" of rank and authority that could influence junior officers on the jury panel, jeopardizing Semrau's constitutional right to a fair trial.
It is alleged Semrau fired two shots into a "severely wounded" disarmed Taliban insurgent on Oct. 19, 2008, after a battle in Afghanistan's Helmand province.
He is alleged to have violated the military code of conduct by failing to collect a wounded person from the battlefield.
Semrau is charged with second-degree murder, as well as attempted murder, behaving in a disgraceful manner, and negligently performing a military duty. The penalty for second-degree murder is life imprisonment.
Turner was set to argue Tuesday that the court martial for the 36-year-old captain in the 3rd Battalion of the Royal Canadian Regiment, CFB Petawawa, should be moved to Kandahar Air Field, the Canadian base in Afghanistan.
"The common law and the interests of justice require the trial to take place where the offences are alleged to have occurred," says his application to relocate the trial.
In seeking an instruction that civilian clothes be worn by all but the accused and witnesses in the courtroom, Turner cited section 7 of the Charter, guaranteeing principles of fundamental justice, and section 11.d which guarantees a fair hearing by an independent, impartial tribunal.
Prosecution lawyer Lt. Col. Mario Leveillee accused Turner of "trivializing the Charter" and characterized his arguments as "unfounded and at times incoherent."
He cited the fact that Turner said if the court martial were moved to Kandahar airfield all military participants would have to wear uniforms "for operational reasons" in case the base was attacked.
The five-member jury panel has yet to be picked for the Semrau court martial.
Turner is challenging the panel selection process, partly on grounds that civilians, officers below the rank of captain and non-commissioned members below the rank of warrant officers are not included in the jury pool.
There is no compelling military rationale for the procedure, he argues. He also says military personal deployed outside Canada should not be automatically excluded because they might be back in Canada in time for a trial.
© Copyright (c) Canwest News Service
A court martial got underway today accusing a Canadian soldier of murder for shooting a member of the Taliban on an Afghan battlefield. Captain Robert Semrau's case is believed to be a military and legal first.

Semrau, 38, is facing four charges for the 2008 death. He is accused of second-degree murder, attempted murder, behaving in a disgraceful manner, and negligently performing a military duty. It is alleged that he shot the man twice despite him being an unarmed and "seriously wounded" prisoner.

Court documents set a scene in which 36-year-old Semrau was in charge of a small group of soldiers caught in an ambush on October 19 last year. The Canadians were mentoring some new Afghan recruits, who were under British command. A United States Apache assault helicopter provided assistance to the group, who were in Lashkar Gah, Helmand, strafing the area.

After beating back their attackers the soldiers discovered a fighter with injuries deemed to be so severe that medical aid would be ineffective, along with a dead man. He was disarmed, his assault rifle having been captured. Shortly afterwards, with only Semrau near the man, two gunshots were heard. At least one eyewitness claims to have watched Semrau shooting the militant with his field rifle. Troops then moved on and the man's body was never recovered.

Captain Semrau was not investigated for two months, when his superiors heard of the alleged killing. He was ultimately arrested by the Canadian Forces National Investigation Service a month later and charged. He is now set to go on trial before Colonel Mario Duti, a military judge, and a five-member panel.

''The Canadian Press'' contacted Michel Drapeau, a retired lawyer and colonel. He says he believes it to be the first time Canada has launched a court martial for the death of a prisoner on the battlefield. "It's unprecedented in many, many respects. I can't remember any such incidents in the past 50 years and in the Second World War, I don't believe there was such a court martial."

There are a few recorded instances of alleged extra-judicial killing by Canadian soldiers, but no court martials for murder. Two Canadian soldiers faced a murder charge for the death of a teenager in Somalia in 1993 but the case was dropped; some evidence emerged during the inquiry that suggested another man may also have been killed illegally. More anecdotally, Canadians have been accused of similar murders in Korea and of shooting German prisoners for revenge during the second world war.