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Sexual Misconduct Allegations in The CAF

CBH99

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There's a distinct difference between interfering, and asking for an update on progress. A distinction too many people don't recognize. Too often, once things are referred to the MP/NIS, they go into a black hole. It makes it very difficult to reassure alleged victims that their case is being taken seriously when everyone is on radio silence. A recent case I was stick handling took 18 months before the report was released to the unit. You know how many updates either the complainant or CO got along the way?
Absolutely. And I agree 100%.

This presentation was given by our senior guys (I was still a very very new junior guy at the time) - when the unit the presentation was intended for had their investigations somewhat botched or stick handled by other agencies.

The purpose was precisely that. They wanted the SOLGEN guys to be very clear on what their expectations were. Professionalism and keeping people informed of progress was encouraged - having senior guys from our agency or another agency interfering was not. (There had been some examples of blatant interference & negligence, and our seniors didn’t want us anywhere near what could have been an exploding ship.)
 

lenaitch

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I am, admittedly, completely unfamiliar with the military law enforcement structure, but wonder why it seems to be rather complicated. Is the NIS service separate from the MP service? If so, I wonder why it wasn't set up like a civilian deployed police service, where the expertise and focus can't be expected to reside in each location, so benchmark cases engage specialized 'crime' or 'detective' units to assist or take over (depending on local policy), but they are all the same team.

Also, I'm curious why, if MPs investigate an incident, why they can't 'prosecute' it themselves. I get, I think, the concept of command authority in the military, but it seems that there could be a division of matters that would remain under the purview of the command team and those that would be referred to the MPs (including those that the command team choose to 'send upstairs', for whatever reason). In civilian law enforcement, command/leadership retains authority to exercise discipline under the applicable code of discipline but most large departments have a dedicated 'professional standards' unit for investigating matters, laying of charge notices and case preparation. One significant difference is that the majority of discipline matters originate externally from the public.

My mind tried to draw some kind of parallel between US service law enforcement and their various investigative services but determined that my only real knowledge of them comes from entertainment TV.

If the reason is 'the NDA', that's fair. We're all stuck with the legislation that binds us.
 

QV

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I am, admittedly, completely unfamiliar with the military law enforcement structure, but wonder why it seems to be rather complicated. Is the NIS service separate from the MP service? If so, I wonder why it wasn't set up like a civilian deployed police service, where the expertise and focus can't be expected to reside in each location, so benchmark cases engage specialized 'crime' or 'detective' units to assist or take over (depending on local policy), but they are all the same team.

Also, I'm curious why, if MPs investigate an incident, why they can't 'prosecute' it themselves. I get, I think, the concept of command authority in the military, but it seems that there could be a division of matters that would remain under the purview of the command team and those that would be referred to the MPs (including those that the command team choose to 'send upstairs', for whatever reason). In civilian law enforcement, command/leadership retains authority to exercise discipline under the applicable code of discipline but most large departments have a dedicated 'professional standards' unit for investigating matters, laying of charge notices and case preparation. One significant difference is that the majority of discipline matters originate externally from the public.

My mind tried to draw some kind of parallel between US service law enforcement and their various investigative services but determined that my only real knowledge of them comes from entertainment TV.

If the reason is 'the NDA', that's fair. We're all stuck with the legislation that binds us.
The NIS are MPs. It's just an assignment. Detachment MPs used to swear charges in the CC with much more frequency, but then "primacy of military justice system" became more... mandatory (I think around 2011ish with a change to MP Gp Orders). The Gp Orders were much more realistic prior to that change IMHO. As a result, since 2011, most files stayed within the NDA.
 

dapaterson

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Under the current construct, charges can be addressed through a summary trial (unit commanding officer or their delegate) or via a court martial. NIS charges are refered (to my understanding) to the Director, Military Prosecutions who then proceeds with court martial. Unit level charges, o nthe other hand, have a limited shelf life (proceedings must begin within a year of the alleged incident).

The not-yet-in-force amendments to the NDA (bill C-77) besides introducing the Victim's Bill of Rights, also eliminated Summary Trials and replaces them with summary proceedings, removes potential penal consequences from the punishments available to a CO, and reduces the scope and nature of what can be brought before a summary proceeding, pushing more complex / more serious issues to court martial.

The role(s) of the military police, whether part of the NIS or not, have to be understood within the context of the larger CAF disciplinary system.
 

QV

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The role(s) of the military police, whether part of the NIS or not, have to be understood within the context of the larger CAF disciplinary system.
Which is where I think things are a problem, as I've bantered on about endlessly here in the past. Disciplinary matters and crimes need to be separately handled altogether. Police handle the crimes (and traffic, mental health act, and so on), military chain of command handles the military discipline. Presently they are blended.
 

TCM621

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Civilian cops can only recommend charges AFAIK so I don't see why the MP's would be any different. My understanding is that they would recommend charges be laid to the appropriate authority and then that authority makes the decision. If charges aren't laid as appropriate the responsibility lays with the authority.

Even in the civvy world decisions are made not charge people all the time for various reasons. Shouldn't a CO/base commander/etc not have the same ability that a prosecutor does? I would think it would be even more important that a commander have that flexibility because, at the end of the day, our system has to be able to function in a war scenario (not just a limited action like Afghanistan or Iraq).

Again, I don't think it is the system so much as the people who we put in charge of the system. In other words, it isn't the fact that they have discretion, it's that they misuse that discretion when it comes to certain people. The Tiger Williams situation is a good example. General Vance should have punished the VCDS and the CAF CWO, possibly via some forms of charges but instead he ignored it. Everyone who has spent any amount of time in the CAF has seen an analogous situation where someone skates for something another would have been raked over the coals for.
 

brihard

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Depends on the province, some have a process where the crown screens for charge approval. Some don't.
BC and Quebec have charges approved by crown. Anywhere else that I’m aware of, police can individually swear charges for most routine criminal matters, setting aside certain charges that require Attorney General consent, or offences that fall under the umbrella of the Security Offences Act that vests primacy in the RCMP.
 

TCM621

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Depends on the province, some have a process where the crown screens for charge approval. Some don't.
So if an officer lays charges does the Crown have to prosecute? Or is prosecution still at the discretion of the Crown? I'm just wondering if it is a case of terminology.
 

QV

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So if an officer lays charges does the Crown have to prosecute? Or is prosecution still at the discretion of the Crown? I'm just wondering if it is a case of terminology.
No, there are a number of reasons they may not prosecute. A low likelihood of conviction, they deem it not in the public interest... for example.
 

brihard

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So if an officer lays charges does the Crown have to prosecute? Or is prosecution still at the discretion of the Crown? I'm just wondering if it is a case of terminology.
Crown can always withdraw or stay a charge. Police can lay a charge but crown owns the prosecution.
 

lenaitch

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Thanks for the feedback folks. In Ontario, the roles are discrete; discretion to 'lay a charge' lies solely in the hands of the police (many provincial regulatory statutes vest that authority in a 'director' or something similar) and discretion of the prosecution rests with the Crown (reasonable prospect of conviction, public interest, etc.). In particularly serious or complex cases or processes, such as search warrants, it is not unusual for the police to seek advice from Crown Law, but that would be separate from eventually-assigned trial Crown. Even in cases where approval of the AG is required, in my experience, once said approval is received, we still initiated the Information.

I am aware of the situations in BC and Quebec. In Quebec, I believe it is inherent in their system; in BC I understand it was an effort to manage caseload (and therefore, cost).
 

FJAG

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So if an officer lays charges does the Crown have to prosecute? Or is prosecution still at the discretion of the Crown? I'm just wondering if it is a case of terminology.
Very briefly, and very generally, in Manitoba:
1) the police investigate and if they believe an offence has been committed they lay an "information" outlining the charges and evidence that is delivered to the crown;
2) if the crown determines if the charge is to be proceeded with in which case the matter proceeds to a provincial court where bail may be determined (if not already by way of arrest);
3) if the charge is of a minor nature (a summary conviction one) the charge proceeds summarily on the information to a plea and trial before a Provincial Court judge (in many cases, the crown gets to choose as to whether to proceed summarily or by way of indictment);
4) if the charge is a serious one and not within the exclusive jurisdiction of the Provincial court, in most cases the accused may choose to be tried by a provincial court judge without a jury and without a preliminary inquiry (usually the case if the accused plans to plead guilty) or to be tried by a Queen's Bench judge either with or without a jury;
5) if the matter is to proceed for a trial by Queen's Bench, the crown redrafts the charge into an "indictment" and the matter proceeds to a preliminary inquiry before a provincial court judge to test the evidence (the test is a very low one and almost all cases are remanded for full trial). In rare cases the crown can skip the preliminary inquiry through a "direct indictment" (in even rarer cases, the crown can even proceed to a direct indictment where the charge is dismissed at the preliminary inquiry) in which case the matter goes to trial before a QB judge.

🍻
 

daftandbarmy

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It just gets curiouser and curiouser....


Defence minister's office trying to 'exert control' over investigations: military ombudsman​


The country's military ombudsman has fired broadside at the Liberal government, accusing the defence minister's office of trying to "exert control" over investigations and ignoring recommendations for change.

Gregory Lick's blistering criticism is contained in a position paper released Tuesday and was prompted by the ongoing investigations into sexual misconduct in the military.

He is calling for the ombudsman's office to be made entirely independent, reporting to Parliament, not the minister's office.

"When leaders turn a blind eye to our recommendations and concerns in order to advance political interests and their own self-preservation or career advancement, it is the members of the defence community that suffer the consequences," Lick said in a virtual media event on Tuesday.

"It is clear that inaction is rewarded far more than action."

His remarks and written presentation mirror the testimony of his predecessor Gary Walbourne, who told a parliamentary committee last winter that Defence Minister Harjit Sajjan refused to look at evidence of alleged inappropriate behaviour by former chief of the defence staff, retired general Jonathan Vance, which had been received by the ombudsman's office.

Walbourne had made similar complaints and recommendations about independence.

In Lick's position paper, he cites how the minister's office had placed reports "on hold" and has been "delaying their publication and availability to the public."

He writes that the ombudsman has been given "direction on the conduct of systemic investigations" only to have those orders revoked without justification.

The report cites an example from just last week where "the Department of National Defence attempted to exert control over the review and approval of questions" that were prepared for members of the military who are involved in the ongoing systematic investigation into employment equity.

"The office pushed back as the approval process put forth by the department would have undermined the independence of the investigation," the report said. Lick also said he's seen examples of case where the defence department sat on "sensitive information that could be unflattering" to the military.

"This cannot persist," Lick wrote in his report.

He also accused the department and the military of scuttling attempts at negotiating independence for the ombudsman's office.

"Reporting directly to Parliament would eliminate political influence and ensure that all pertinent information and recommendations regarding the Canadian Armed Forces and the Department reach all Members of Parliament in a timely manner," the report said.

Lick said the inability of the government and the military to deal with sexual misconduct can be directly related to a lack of accountability.

"The cycle of scandals followed by studies, recommendations for independent oversight, half-solutions, and resistance by the Department or the Canadian Armed Forces will only be broken when action is taken," the report said.

 

OldSolduer

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I really think deep down this is what the PM wants - a military that can’t be trusted, therefore we can reduce it to a token military that only exists to say we have one. JT is a fan of China…
 

MilEME09

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I really think deep down this is what the PM wants - a military that can’t be trusted, therefore we can reduce it to a token military that only exists to say we have one. JT is a fan of China…
You'd think being a fan of China he would want a stronger military
 
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