Sexual Assault & Sexual Misconduct in the CF

[Jarnhamar]

To summarize my earlier point

There's going to be some sexual assault and other sexual offences that civilian police or the crown won't look at(bigger fish to fry); those would be looked at by MP.

The so what is some offenders will slip through the cracks and not face any consequences since there's no mechanism for civilian police to pass this on to the military.

The CAF will be worse for it.

 

[McG]

There are ways to get back in the forces after being kicked out too. Have a functioning professional disciplinary system is fair, and a CAF member ejected from the forces under such a system would not have been disproportionately treated as compared to a civilian professional who has a license to practice revoked.

I am having trouble rationalization that you want sexual assault victims to be able to jurisdiction shop but you don’t seem okay with the CAF being able to hold members accountable in parallel to & separately from the criminal system. There is precedent for the latter but not the former, and the latter is in fact substantially more fair and more likely to ensure justice.

 

[YZT580]

There are ways to get back in the forces after being kicked out too. Have a functioning professional disciplinary system is fair, and a CAF member ejected from the forces under such a system would not have been disproportionately treated as compared to a civilian professional who has a license to practice revoked.

I am having trouble rationalization that you want sexual assault victims to be able to jurisdiction shop but you don’t seem okay with the CAF being able to hold members accountable in parallel to & separately from the criminal system. There is precedent for the latter but not the former, and the latter is in fact substantially more fair and more likely to ensure justice.

Under which system is the victim the most likely to receive a just hearing and a fair outcome? Nothing else really matters, does it?

 

[McG]

Under which system is the victim the most likely to receive a just hearing and a fair outcome? Nothing else really matters, does it?

Which system (professional disciplinary or criminal) did more to ensure justice and a fair outcome in this case:

Jeffrey Sloka: Former neurologist acquitted on sexual assault charges can’t practice medicine

A former neurologist in Kitchener, Ont., will not be able to return to his practice after he was acquitted on 48 counts of sexual assault.

www.ctvnews.ca

 

[Jarnhamar]

There are ways to get back in the forces after being kicked out too. Have a functioning professional disciplinary system is fair, and a CAF member ejected from the forces under such a system would not have been disproportionately treated as compared to a civilian professional who has a license to practice revoked.

Completely agree. I 100% support functioning professional disciplinary system.

I am having trouble rationalization that you want sexual assault victims to be able to jurisdiction shop but you don’t seem okay with the CAF being able to hold members accountable in parallel to & separately from the criminal system.

I'm all for CAF members being held accountable, both disciplinary and administratively. I really like the idea of a professional disciplinary system like you guys are talking about. Just needs to be done with care.

I don’t think victims should be painted as “jurisdiction shopping” for wanting some say in which legitimate authority handles an allegation after an assault. Especially when one might be too busy to handle what they think isn't worth the effort.

 

[lenaitch]

I don't see the value in that proposal. It doesn't do anything to help a victim.

However, military discipline evolved to a pseudo-criminal process where pursuing criminal charges and pursuing disciplinary charges is seen to give rise to a double jeopardy. No other professional body has that nonsensical barrier. Doctors, lawyers, teachers, and engineers can all conduct discipline and hold their members specifically accountable to the profession even for things that were (or may be later) punished under criminal law.

If military discipline cannot be fixed to hold CAF members specifically accountable to the profession, then I would be happy to see a provision that allows criminal courts during sentencing to consider and assign stiffer punishments when:

• Where a serving member's criminal offences is inherently prejudicial of good order and discipline of the CAF,
• Where a serving member's criminal offence has the potential bring disgrace or to undermine the public confidence in the CAF,
• Where a serving member's criminal offences is inherently prejudicial to the defence and/or security of the nation, or
• Where a serving or former member leveraged expertise gained as a result of their service to commit a criminal offence.

But the better solution would be to remove the double jeopardy barrier against parallel criminal proceedings and military discipline. Sometimes the court decides that maybe something is okay, when the profession itself knows there is no way this was acceptable behaviour: Jeffrey Sloka: Former neurologist acquitted on sexual assault charges can’t practice medicine


Jurisdiction to investigate and jurisdiction to prosecute are different things. The legislation seems to be about the jurisdiction to prosecute

Those considerations sound ripe for Section 15 ('Equality Before the Law) challenges.

 

[lenaitch]

That seems like you're assuming the victim's choice replaces evidence based investigation, which it does not.

The proposal is about who conducts the investigation/prosecution. It's not whether facts and evidence determine the outcomes. Victims having a say in jurisdiction doesn’t change the standard of proof or the evidentiary threshold. It's only going to effect (affect?) which authority handles the case.

One of Arbour's reasons is a victim might be upset if their choice of investing authority doesn't land a conviction. Seems like a weak argument.

As far as recruiting and optics goes I doubt this is sending a great message.

Also, I was under the impression most police agencies didn't want to fully take over this mandate exclusively. Has that changed or are they just going to be told too bad.




Agree with most being said here (especially the distinction between criminal and professional/military accountability).

A few things come to mind:

-Victims could end up pulled through multiple processes, interviews, and standardss of proof.

-Civilian police may become reluctant to share information if it looks like the CAF is running a second quasi criminal process alongside theirs.

-Many NDA/service offences are built on the same factual allegations as the CC offence (basically would be using the same evidence and witnesses to prove the other offences).

-If we move too much into administrative discipline on a balance of probabilities it risks serious allegations being handled through a lower procedural standard than criminal court.

Setting aside the particular focus on sexual assault victims, where does it stop? Do the families of murder victims get to drive the prosecution? How about human trafficking, or the families of drug addiction victims if a family member fatally overdosed.

At it most foundational level, offending the criminal law is offending the State; that's why cases are identified as 'R v' or 'The Queen/King vs'. as opposed to two opposing named parties as seen in civil court, and it is the State that brings you to account.

 

[Jarnhamar]

Setting aside the particular focus on sexual assault victims,

That's the core of the discussion but okay..

where does it stop? Do the families of murder victims get to drive the prosecution? How about human trafficking, or the families of drug addiction victims if a family member fatally overdosed

No one is seriously arguing that, are they?
Are families currently driving the prosecution in court martials or civilian court?

At it most foundational level, offending the criminal law is offending the State; that's why cases are identified as 'R v' or 'The Queen/King vs'. as opposed to two opposing named parties as seen in civil court, and it is the State that brings you to account.

Okay. Is this not how criminal court and court martials are currently conducted?

 

[lenaitch]

That's the core of the discussion but okay..



No one is seriously arguing that, are they?
Are families currently driving the prosecution in court martials or civilian court?


Okay. Is this not how criminal court and court martials are currently conducted?

I was just expanding the scope of the argument. It currently only focuses on sexual assault because a retired judge wrote a report on it. It could have just as easily been triggered by any other group of offences.

No one is arguing that it could or should apply to other classes of offences, but the principle is similar. If someone is killed by an impaired CAF member, should the victim's family have a role?

Giving the victim a formal, procedural role in a criminal prosecution is not current practice. An accused's trial rights are laid out in the Criminal Code and Charter. A victim is procedurally involved in a civil action because they are a named party to the proceeds and (hopefully) has counsel.

 

[Jarnhamar]

I was just expanding the scope of the argument. It currently only focuses on sexual assault because a retired judge wrote a report on it. It could have just as easily been triggered by any other group of offences.

No one is arguing that it could or should apply to other classes of offences, but the principle is similar. If someone is killed by an impaired CAF member, should the victim's family have a role?

Giving the victim a formal, procedural role in a criminal prosecution is not current practice. An accused's trial rights are laid out in the Criminal Code and Charter. A victim is procedurally involved in a civil action because they are a named party to the proceeds and (hopefully) has counsel.

Seems like you’re conflating two different things. Allowing a sexual assault complainant to choose between civilian or military police is a jurisdictional decision about who investigates. It's not giving victims control over prosecutions, procedure, or Charter rights. The Crown still runs the case either way.


The government opened this door without consulting civilian police and now they're closing it despite opposition from police, police chiefs, and victims. Carney gets to own the results.

 

[lenaitch]

Seems like you’re conflating two different things. Allowing a sexual assault complainant to choose between civilian or military police is a jurisdictional decision about who investigates. It's not giving victims control over prosecutions, procedure, or Charter rights. The Crown still runs the case either way.


The government opened this door without consulting civilian police and now they're closing it despite opposition from police, police chiefs, and victims. Carney gets to own the results.

That's not the way I read the link you posted. The proposed amendment was to allow choice between which judicial system, not investigating service.

 

[The Bread Guy]

FYI, brought over all the detailed, technical discussion on proposed changes to how the CAF handles sexual misconduct here to keep the "government of the day" thread looking at a broader scope of stuff.

And now, back to your regularly scheduled discussion ...

Army.ca Staff

 

[The Bread Guy]

For the record, here's the "where the bill's at" page ....

C-11 (45-1) - LEGISinfo - Parliament of Canada

C-11 (45-1) - LEGISinfo - Parliament of Canada

www.parl.ca

... as well as the latest version of the bill attached.

An old fart's aside here: I'm learning a lot from the detailed technical and philosophical discussion of this one - thanks all for sharing - but at an optical/political level, I can't read hearts/minds, but this was proposed because people didn't believe the CAF was treating sexual assault victims fairly.

There's a case to be made that the best optical/political arguments against these changes might be proving that accusers/victims will generally get a fair shake even if the system doesn't change.

That, and $2, will only get you a coffee in the oldest-school diners these days

 

[brihard]

Those considerations sound ripe for Section 15 ('Equality Before the Law) challenges.

And how about section 11(f), right to trial by jury? If there begins to be a victim’s discretion as to whether a prosecution goes military of civil, now they’re also deciding if the accused has the right to trial by jury or not. I’m not sure if that would stand up to challenge, as we’re now talking an offence that could just as easily have gone civilian… So is there still a unique military disciplinary imperative that justifies denial of a jury trial?

Just another thought to chew on… Preserving the unique military nature of certain offences or their circumstances helps to protect the ability of CAF to defend some aspects of its system.

Another consideration I’ve not seen come up but that occurred to me: A victim who chooses the system is also choosing whether the CAF member will have access to representation by CAF Defence Counsel Services within the military justice system, or if they’re on the hook for their own lawyer in the civilian system. That’s a decision worth tens of thousands of dollars minimum, and the impact it causes on the accused could be a perverse incentive that could influence the victim’s choice for reasons other than strictly their perception about access to justice.

 

[Jarnhamar]

There are a few other offences that are straight to civilian court which doesn't appear to have caused any major issues.

Any domestic violence charges, impaired driving, crimes against children (I think), and maybe one more.

I recall during a Victim Services brief the presenter said the Civilian Justice system actually provides victims better protections what what's offered under the military system, so there's that.

And how about section 11(f), right to trial by jury?

Would Section 11(f) be considered not absolute in the military context? The SCC in R v Stillman upheld the constitutionality of military trials without juries because of Parliament’s recognized military justice system and disciplinary objectives.

Another consideration I’ve not seen come up but that occurred to me: A victim who chooses the system is also choosing whether the CAF member will have access to representation by CAF Defence Counsel Services within the military justice system, or if they’re on the hook for their own lawyer in the civilian system.

That's a great point I completely overlooked.

 

[brihard]

Would Section 11(f) be considered not absolute in the military context? The SCC in R v Stillman upheld the constitutionality of military trials without juries because of Parliament’s recognized military justice system and disciplinary objectives.

Yup, but what I’m suggesting is that the military may lose that protection of its distinct system if it becomes discretionary based solely on victim preference. If the militarily unique disciplinary imperative becomes optional, I’d be concerned the courts may see that as changing the calculus on justifying a unique military system being available to cases that could go either way. Conceivably this could risk S.130 NDA prosecutions more broadly.