Sexual Assault & Sexual Misconduct in the CF

[FJAG]

Just a couple of points from the above.

1 There is no statute of limitations respecting criminal charges. There is a judicial time limitation for the time from when charges are laid to when the case is heard.

2 Military prosecutors are supervised by the Director of Military Prosecutions (DMP). Like any lawyer, unprofessional conduct is reviewable by the civilian law societies that each individual military prosecutor is licensed by.

3. Charges essentially originate out of the chain of command and/or police investigations and, when laying a charge legal advice from a legal officer is required. Once laid, a charge destined for a court martial is "referred" to the DMP where it is reviewed. The DMP then "prefers" the charge or "prefers" any other charge disclosed by the evidence. DMP may also decide not to "prefer" a charge and may subsequently withdraw a "preferred" charge. Accordingly the charges which appear before the court martial are those approved of, or drafted by, the DMP's office.

4. The test that any Canadian prosecutor must meet in bringing charges before a court is that "a prosecution should not be undertaken unless there is a reasonable prospect of conviction and the prosecution would best serve the public interest." Essentially this also means that if during the course of a prosecution the test can no longer be met, then the charge should be withdrawn.

 

[dapaterson]

Just a couple of points from the above.

1 There is no statute of limitations respecting criminal charges. There is a judicial time limitation for the time from when charges are laid to when the case is heard.

2 Military prosecutors are supervised by the Director of Military Prosecutions (DMP). Like any lawyer, unprofessional conduct is reviewable by the civilian law societies that each individual military prosecutor is licensed by.

3. Charges essentially originate out of the chain of command and/or police investigations and, when laying a charge legal advice from a legal officer is required. Once laid, a charge destined for a court martial is "referred" to the DMP where it is reviewed. The DMP then "prefers" the charge or "prefers" any other charge disclosed by the evidence. DMP may also decide not to "prefer" a charge and may subsequently withdraw a "preferred" charge. Accordingly the charges which appear before the court martial are those approved of, or drafted by, the DMP's office.

4. The test that any Canadian prosecutor must meet in bringing charges before a court is that "a prosecution should not be undertaken unless there is a reasonable prospect of conviction and the prosecution would best serve the public interest." Essentially this also means that if during the course of a prosecution the test can no longer be met, then the charge should be withdrawn.

For CAF occupations under provincial professional regulation (lawyers, doctors, dentists, nurses, and the occasional P Eng) how often does the CoC bring forward professional complaints?

Recently there was a court martial dismissed where the presiding judge suggested the matter was best suited for professional discipline; yet looking up the accused at the CPSO shows no pending action.

VI. Conclusion



[40] In conclusion, the prosecution’s position is that Major Ellison should be held criminally responsible because he wrote prescriptions for a patient, knowing or suspecting his patient might share the medications with his spouse. By itself, his knowledge of the sharing of the medication does not amount to an intent to defraud. He confessed to knowing that there were medical restrictions for his wife to be prescribed the medication and that he knew it was inappropriate for him as a physician, from a deontological standpoint, to write a prescription for a family member. Writing a prescription for one person knowing or suspecting that the medication may be shared with his spouse was morally wrong and raises issues of professional ethics. I find that on each charge however, that no evidence was adduced with respect to some of the essential elements showing that Major Ellison’s actions amounted to a criminal conduct as alleged in all four fraud-related offences he is facing.

Ellison J. (Major), R. v. - Chief Military Judge

Get quick, easy access to all Government of Canada services and information.

decisia.jmc-cmj.forces.gc.ca

Jason John Ellison - Physician Information

 

[FJAG]

For CAF occupations under provincial professional regulation (lawyers, doctors, dentists, nurses, and the occasional P Eng) how often does the CoC bring forward professional complaints?

Recently there was a court martial dismissed where the presiding judge suggested the matter was best suited for professional discipline; yet looking up the accused at the CPSO shows no pending action.

True enough. It doesn't need to be the CoC who deals with it, it can be anyone with knowledge of the facts so as to cause a professional body's investigation.

I would have thought that with an original complaint which initiated the charge process and the judges finding that whoever initiated the complaint would have gone to the professional body as recommended. It wouldn't be the first time that an agency just gave up in frustration or feeling that they might as well deal with it in-house in some way.

 

[dapaterson]

True enough. It doesn't need to be the CoC who deals with it, it can be anyone with knowledge of the facts so as to cause a professional body's investigation.

I would have thought that with an original complaint which initiated the charge process and the judges finding that whoever initiated the complaint would have gone to the professional body as recommended. It wouldn't be the first time that an agency just gave up in frustration or feeling that they might as well deal with it in-house in some way.

That's a lot of words for "promoted and posted".

 

[Bruce Monkhouse]

That's a lot of words for "promoted and posted".

School boards enter the chat

 

[Eaglelord17]

I don’t know if you’ve read the article about the memeber who committed suicide and the reports of the MPs conduct; but I’d be hard pressed to describe the MPs as proficient. They simply don’t do a lot of investigating.

This is what I’m referring to Military police under investigation over handling of sexual assault case

Still doesn’t mean he was innocent, just as it doesn’t mean he was guilty. We are also never truly going to know because he died before a trial.

Considering civilian police drop the ball spectacularly on many Sexual Assault cases, I would still argue the MPs do a better job of it than your average cop.

Carrie Low is a excellent example of this.

https://www.cbc.ca/amp/1.6905695

 

[ballz]

When the prosecution withdrew the first charge, it was on the grounds that the emails were going to be used to show evidence of the inappropriate relationship, to which they would be open to interpretation and conjecture about what constituted an inappropriate work relationship. The judge and the Defence felt it was a weak piece of evidence for this charge, and thus the prosecution withdrew the first charge.

Where can that information be found?

I am eager to read anything the judge has said about the evidence / his decision to not allow it as admissible in either the first or second charge.

 

[rmc_wannabe]

Where can that information be found?

I am eager to read anything the judge has said about the evidence / his decision to not allow it as admissible in either the first or second charge.

I saw in a CBC article about the trial. I'll see if I can find it.

 

[Blackadder1916]

For CAF occupations under provincial professional regulation (lawyers, doctors, dentists, nurses, and the occasional P Eng) how often does the CoC bring forward professional complaints?

Recently there was a court martial dismissed where the presiding judge suggested the matter was best suited for professional discipline; yet looking up the accused at the CPSO shows no pending action.

Ellison J. (Major), R. v. - Chief Military Judge

Get quick, easy access to all Government of Canada services and information.

decisia.jmc-cmj.forces.gc.ca

Jason John Ellison - Physician Information

I can't speak to the circumstances of the CM that you referenced, but it does happen. How often? Can't say, but keep in mind that there are comparatively few physicians (or the other regulated professions) in the CAF and they could be licensed in any of the thirteen jurisdictions in Canada, so there isn't one, easily searchable database.

I did a quick search of CPSO hearing results for examples. Though not recent and since the hearing results don't identify the complainant, it's not a given that his former CoC referred the matter to his college,

His court martial (it doesn't identify him as a doctor but the court-martial is referenced in his CPSO registration history)

McInnis J.E.R. (Ex-Lieutenant(N)), R. v. - Chief Military Judge

Get quick, easy access to all Government of Canada services and information.

decisia.jmc-cmj.forces.gc.ca

CPSO registration (go way, way down to the bottom of the page)

James Edward Roland McInnis - Physician Information

 

[ballz]

I saw in a CBC article about the trial. I'll see if I can find it.

Would appreciate it because from what I am reading, that can't possibly be the case...

I am reading Pelletier specifically struggled with the fact that he essentially had to make a decision on them "blind." In order to rule on the emails, they would first have to be admitted as an exhibit which automatically makes them a matter of public record.

Emails at centre of court martial for Lt.-Gen. Whelan deemed inadmissible

OTTAWA — The military judge presiding over a court martial for Lt.-Gen. Steve Whelan has decided the emails at the centre of the case are not admissible as evidence. Cmdr.

www.timescolonist.com

Pelletier said the court was in "a little bit of a Catch-22," because he needed to read the emails in order to determine whether they were relevant to the prosecution's case, and in order for him to do that, they would need to be entered into evidence.

"Making these emails public by admitting them as an exhibit ... will arguably allow the prosecution to show sexual misconduct was committed even in the absence of a decision," he said.

Pelletier ruled there is a risk that a reasonable observer may think the courts and media are being used to allow the now-withdrawn charge of sexual misconduct to be tried in the court of public opinion.

But, out of context, I honestly can't really understand what he is opining about... isn't the whole point of evidence to show "xyz" act was committed?

I am big proponent of open justice, but I don't understand how the judge could be forced to decide if something he can't read is relevant or not...

Anyway, I have not seen anything about why the first charge was dropped. I assumed the most likely reason for it be dropped so late in the game - given that I couldn't find anything speaking to why - was it was because there was an agreement between the Prosecutor and the Defence was that the "inappropriate relationship" was consensual and not during the time frame in question and so "sexual misconduct" was simply no longer a question / disputable.

 

[Navy_Pete]

For CAF occupations under provincial professional regulation (lawyers, doctors, dentists, nurses, and the occasional P Eng) how often does the CoC bring forward professional complaints?

Pedantic point, but P.Eng is a provincial qual so doesn't have any jurisdiction to what we do in the CAF at the federal level, which is why the CAF won't pay for us to get the certification.

Which is good because I would never sign off on most of what I do with a P. Eng stamp anyway, but try and apply the intent behind the ethical engineering practice. If they wanted to apply that standard there would be some whistle blowing on the go.

 

[ballz]

Pedantic point, but P.Eng is a provincial qual so doesn't have any jurisdiction to what we do in the CAF at the federal level, which is why the CAF won't pay for us to get the certification.

All of the professions DAP listed, and I'll add CPAs, are provincially reguated. That wouldn't stop the Federal government, as an employer, from being able to submit a complaint against a CPA it employs for professional misconduct/negligence nor stop it from being enforceable.

My experience so far tells me that only the legal profession writ large actually truly understand the depths to which professional liability reaches which is why they are so damn cautious about everything.

Which is good because I would never sign off on most of what I do with a P. Eng stamp anyway, but try and apply the intent behind the ethical engineering practice. If they wanted to apply that standard there would be some whistle blowing on the go.

You might want to talk to your professional body about that...

 

[Navy_Pete]

All of the professions DAP listed, and I'll add CPAs, are provincially regulated. That wouldn't stop the Federal government, as an employer, from being able to submit a complaint against a CPA it employs for professional misconduct/negligence nor stop it from being enforceable.

My experience so far tells me that only the legal profession writ large actually truly understand the depths to which professional liability reaches which is why they are so damn cautious about everything.

Sure, but there are things carved out from where P.Eng would have jurisdiction, and why CAF doesn't pay for anyone in the CAF to get the P.Eng, where they will pay for doctors, nurses and lawyers to maintain their provincial regulations as they don't have an exemption.

For the RCN, the military is specifically excluded from the Canada Shipping Act, so all the technical standards that flow down from that aren't mandatory. Our compliance to all of that is mandatory, and there is a whole big process to figure out functional equivalencies for meeting the intent of that regulation (with an internal caveat that we may ignore it due to operational requirements, which frankly the RCN pushes to absurd limits).

Some very specific things aren't actually exempt, like the Federal Halocarbon regulations, and some other environmental things. And some of the major examples on the ethical side come from federal procurement RFPs, so pretty easy to meet by just following our existing procurement guidelines for procurements.

I avoid all of that for explicitly not signing anything as a P.Eng anyway, but we don't actually need to anyway for what I do. When we do it is it's generally on the civ eng side anyway (because of the overlap onto provincial things to do with buildings), which isn't my area, so get a civi with the relevant provincial P.Eng to do the review.

Edit: Just realized this was completely off topic for this thread, and thought it was on a different one. Will drop this one to avoid derailing it.

 

[dapaterson]

All of the professions DAP listed, and I'll add CPAs, are provincially reguated. That wouldn't stop the Federal government, as an employer, from being able to submit a complaint against a CPA it employs for professional misconduct/negligence nor stop it from being enforceable.

The number of CPAs in Defence (both mil and Civ) is small. Somehow the PS union fought mandatory licensure for FI-3 / FI-4, and the outcome is pretty much what one would expect.

The number of Comptrollers, in the sense of being a key part of the business, adding value, is even smaller (and the Venn diagram is interestingly divergent).

 

[FJAG]

Would appreciate it because from what I am reading, that can't possibly be the case...

I am reading Pelletier specifically struggled with the fact that he essentially had to make a decision on them "blind." In order to rule on the emails, they would first have to be admitted as an exhibit which automatically makes them a matter of public record.

Emails at centre of court martial for Lt.-Gen. Whelan deemed inadmissible

OTTAWA — The military judge presiding over a court martial for Lt.-Gen. Steve Whelan has decided the emails at the centre of the case are not admissible as evidence. Cmdr.

www.timescolonist.com

Pelletier said the court was in "a little bit of a Catch-22," because he needed to read the emails in order to determine whether they were relevant to the prosecution's case, and in order for him to do that, they would need to be entered into evidence.

"Making these emails public by admitting them as an exhibit ... will arguably allow the prosecution to show sexual misconduct was committed even in the absence of a decision," he said.

Pelletier ruled there is a risk that a reasonable observer may think the courts and media are being used to allow the now-withdrawn charge of sexual misconduct to be tried in the court of public opinion.

But, out of context, I honestly can't really understand what he is opining about... isn't the whole point of evidence to show "xyz" act was committed?

I am big proponent of open justice, but I don't understand how the judge could be forced to decide if something he can't read is relevant or not...

Anyway, I have not seen anything about why the first charge was dropped. I assumed the most likely reason for it be dropped so late in the game - given that I couldn't find anything speaking to why - was it was because there was an agreement between the Prosecutor and the Defence was that the "inappropriate relationship" was consensual and not during the time frame in question and so "sexual misconduct" was simply no longer a question / disputable.

I'd need much more information about the case and the ruling in order to be definitive but I'll take a stab at it with what we have.

The admissibility of evidence is determined by a proceeding within the trial called a voire dire. (which is different from the American voire dire which deals with jury selection)

Effectively a voire dire is held in the absence of a jury (if there is one) so that they can't hear what is involved so that if the evidence is excluded then they won't be tainted by what they heard. Even if there isn't a jury the process is still called a voire dire and if evidence is excluded it is treated like it doesn't exist. (in fact in a jury trial, if evidence is considered admissible then it needs to be produced a second time, this time in front of the jury)

The press is barred on reporting on what evidence is held during a voire dire UNTIL the jury is sequestered - after that the press is free to report on whatever was said or presented during the voire dire, even if the evidence was considered inadmissible by the court.

The problem in this case is that the material in the emails is considered highly prejudicial and will in all likelihood be detrimental to the accused's career/life. Judges, in all cases, need to determine if evidence is probative as to the charge before the court and, even if probative, whether it should be excluded for some other reason.

Apart altogether from fixed rules of exclusion, judges have the discretion to exclude relevant and material evidence where its probative value is outweighed by its "prejudice." In considering the exclusionary discretion, a judge must determine the value of the evidence, based on both its believability and the strength of the inferences it leads to, against the costs presented by such evidence, including things as diverse as the practicalities of its presentation, the fairness to the parties and to witnesses, and the potentially distorting effect the evidence can have on the outcome of the case. Because of full answer and defence considerations, defence evidence
should be excluded solely where the risks of prejudice substantially outweigh its probative value.

I think that's what's at play here. The judge was of the view, based on the nature of what he was told about what the emails contained, that it would be more appropriate to not here it at all and thus keep it out of the proceedings altogether. This is particulalry so as there is no charge of misconduct against him vis a vis the emails.

It's a tough call with little guidance in case law.

 

[ballz]

Sure, but there are things carved out from where P.Eng would have jurisdiction, and why CAF doesn't pay for anyone in the CAF to get the P.Eng, where they will pay for doctors, nurses and lawyers to maintain their provincial regulations as they don't have an exemption.

For the RCN, the military is specifically excluded from the Canada Shipping Act, so all the technical standards that flow down from that aren't mandatory. Our compliance to all of that is mandatory, and there is a whole big process to figure out functional equivalencies for meeting the intent of that regulation (with an internal caveat that we may ignore it due to operational requirements, which frankly the RCN pushes to absurd limits).

Some very specific things aren't actually exempt, like the Federal Halocarbon regulations, and some other environmental things. And some of the major examples on the ethical side come from federal procurement RFPs, so pretty easy to meet by just following our existing procurement guidelines for procurements.

I avoid all of that for explicitly not signing anything as a P.Eng anyway, but we don't actually need to anyway for what I do. When we do it is it's generally on the civ eng side anyway (because of the overlap onto provincial things to do with buildings), which isn't my area, so get a civi with the relevant provincial P.Eng to do the review.

Edit: Just realized this was completely off topic for this thread, and thought it was on a different one. Will drop this one to avoid derailing it.

I'm not sure specifically about P.Eng stuff or what exactly their professional body regulates or doesn't regulate, but I can tell you that some of the items you talk about are no different for CPAs and have zero influence on whether or not the CPA professional body would subject me to professional discipline. I would also still be likely professionally liable (legally speaking).

The CAF can hire me and non-CPA into a Comptroller job and both of us could make the exact same mistake. The CPA body can sanction me, it can't sanction a non-CPA. The CAF could potentially file a lawsuit for damages caused by my professional negligence and be successful, it couldn't do that against a non-CPA. The fact that they didn't pay my dues is not relevant.

The number of CPAs in Defence (both mil and Civ) is small. Somehow the PS union fought mandatory licensure for FI-3 / FI-4, and the outcome is pretty much what one would expect.

The number of Comptrollers, in the sense of being a key part of the business, adding value, is even smaller (and the Venn diagram is interestingly divergent).

As you know, I am more than happy to rag on the DND/CAF financial competence, but I'm not really sure how any of that disputes my point.

Your employer doesn't need to make "being part of 'x' professional body" one of the criteria of your job description for you, happening to have one, to be subject to professional discipline / legal processional liability for the advice that you give.

 

[Navy_Pete]

I'm not sure specifically about P.Eng stuff or what exactly their professional body regulates or doesn't regulate, but I can tell you that some of the items you talk about are no different for CPAs and have zero influence on whether or not the CPA professional body would subject me to professional discipline. I would also still be likely professionally liable (legally speaking).

The CAF can hire me and non-CPA into a Comptroller job and both of us could make the exact same mistake. The CPA body can sanction me, it can't sanction a non-CPA. The CAF could potentially file a lawsuit for damages caused by my professional negligence and be successful, it couldn't do that against a non-CPA. The fact that they didn't pay my dues is not relevant.



As you know, I am more than happy to rag on the DND/CAF financial competence, but I'm not really sure how any of that disputes my point.

Your employer doesn't need to make "being part of 'x' professional body" one of the criteria of your job description for you, happening to have one, to be subject to professional discipline / legal processional liability for the advice that you give.

Engineering in the CAF is a bit different, as we self regulate, so the technical standard is basically what we say it is (when you are talking about military equipment), and similarly the professional competencies is also internal. They don' need to go to an external body; it would instead get dealt with administratively by the CAF. Even federally, the military is exempt from things that apply to other federal departments, and in the RCN's case, that includes the Canada Shipping Act.

If it's something that needs a P.Eng to sign off on, pretty easy, get a DND civilian with a P. Eng to do it, or hire a contractor, but in my personal experience that's only ever needed in an area where there is provincial jurisdiction. That's a very small portion of our actual job and for a lot of it it's outside of the jurisdiction of any provincial body.

It's not complicated though, if there is a reasonable commercial standard that is fit for purpose, use that. We use a lot of them, frequently just with stricter pass/fail criteria or additional requirements on top of it (ie commercial with some shock/noise/vibration). Where there isn't, usually some good military standards. And where you don't have that, just use best judgement (and write it down so whoever comes behind you can at least follow your logic when the context changes).

It is pretty grey though, so I keep it simple by just not using a P. Eng at all for the CAF (ie saying we're doing professional engineering), and when I decide to pony up the fees, will be so that I'm set up for a job outside the CAF. I regularly sign things off as a technical authority, certification guy or some other things but explicitly never as an engineer.

It would be an interesting test case I guess, but I doubt it would go anywhere.

 

[FormerHorseGuard]

If DND had go and license every person doing a trade from doctors to nurses, to accountants, to mechanics to engineers according to every provincial standards posting a person would be a nightmare. Lawyers need to members of the bar ( only guessing here) due to the fact they might to have represent the military in a civil action, like traffic accident or property damage ( just examples )

Hurricane in the US , late 80s early 90s the CF medical team sent to help out was denied US permission to work because of non US medical license because they were treating US citizens.

CAF heavy truck drivers cannot drive a tractor on weekends unless they have personal A class license

This is one of many arguments the Provinces and Ottawa has about military rules vs civilian rules. When I lived in Iqaluut if I had Imy 404s I could of gotten my NWT drivers without a road test because they accepted that as a drivers licence but not in Ontario.

One here that everyone would understand
Drinking age varies by Province the Federal government does not have one. Messes have a Provincial liquor licence out of courtesy but under the rules of messes the CO or his or her appointed person can extend Mess bar hours. No one in a Province can do that at will. Or the CO can close a mess because they feel it is the right thing to do. Beer machines in barracks , no guide lines when they could be used or not used ( thus really dates me CFB Toronto Jr rank barracks building 132 had a beer machine in the common room cost 1.50 or 2 bucks i cannot remember but it was accessible 24 hours 7 days a week . No bar in Ontario would be allowed that service or apartment building or student residential building.


Military has rules and regulations because it suits the military not the soldier or the province that hosts the base .

A soldier beat a ticket at one of the Ontario bases under the Highway traffic act because Ontario laws did not apply on Base, The MND had all the traffic control signage changed to include a sticker on the back state as ordered by MND so it would fall under the province's traffic laws. I do not recall all the details but remember MP friends talking about putting the stickers on the signs on during a shift, complaining about it over lunch in the mess.


Can you imagine an army exercise in Western Canada and it hosted soldiers from all over Canada and before they could do any part of the exercise every soldier had to go write the hosting bases Provinces trade exams and then be licenced by that Province. The added time for the soldiers to study, write the exams, pass any practical or hands on testing and the added costs of such training? The exercise might be over before the cooks could do the Province's safe food handling course, or before the V techs could pass or they might be in need of enrolling in the Provinces apprentice program to get to the testing stage .


I read and retain a lot of useless facts, but sometimes it helps to make a point.

Sorry for any typos , 330 am and using my touch screen tablet

 

[brihard]

A soldier beat a ticket at one of the Ontario bases under the Highway traffic act because Ontario laws did not apply on Base, The MND had all the traffic control signage changed to include a sticker on the back state as ordered by MND so it would fall under the province's traffic laws. I do not recall all the details but remember MP friends talking about putting the stickers on the signs on during a shift, complaining about it over lunch in the mess.

Traffic enforcement on a CAF base, to the best of my understanding, is charged under the Government Property Traffic Regulations, not provincial law directly- even though GPTR is basically a mechanism to say “provincial traffic law offences are federal regulatory offences on government property”. Still, a charge has to be under the federal reg. This isn’t unique to CAF bases.

 

[RangerRay]

MP friends

Wait…what? Isn’t that an oxymoron?