Author Topic: Sexual Assault & Sexual Misconduct in the CF  (Read 375227 times)

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Offline Lightguns

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Re: Sexual Assault & Sexual Misconduct in the CF
« Reply #1150 on: July 13, 2017, 13:48:46 »
Jesus, Shilo again!!!  What is wrong with that base, the water, the air, what?  Including animals that the 7th or 8th sexual assault.
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Offline FJAG

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Re: Court Martial taking time - Sexual Assault
« Reply #1151 on: July 13, 2017, 14:31:27 »
That narrows it down.

Does the Supreme Court ruling about the accused' right to a trial within a reasonable time apply here? FJAG needs to weigh in here.

They definitely do apply.

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Offline Brihard

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Re: Court Martial taking time - Sexual Assault
« Reply #1152 on: July 13, 2017, 15:14:02 »
That narrows it down.

Does the Supreme Court ruling about the accused' right to a trial within a reasonable time apply here? FJAG needs to weigh in here.

I caught that too. He was charged 20 July, 2016 so they're coming on a year. The Jordan decision gives them 18 months to get this trial done, with delays form the defense not contributing to the time elapsed. Six months is not a lot of time in the criminal justice system.
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Re: Sexual Assault & Sexual Misconduct in the CF
« Reply #1153 on: July 13, 2017, 18:56:17 »
Jesus, Shilo again!!!  What is wrong with that base, the water, the air, what?  Including animals that the 7th or 8th sexual assault.

Remember this is an alleged sexual assault. All we have to go on is one side of the story through the media. The accused hasn't had his day in court to answer the charges.

Offline dapaterson

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Re: Sexual Assault & Sexual Misconduct in the CF
« Reply #1154 on: July 13, 2017, 21:35:07 »
Other than his summary trial before the superior commander...
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Offline FJAG

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Re: Sexual Assault & Sexual Misconduct in the CF
« Reply #1155 on: July 13, 2017, 22:37:18 »
Other than his summary trial before the superior commander...

I presume you mean the appearance before the superior commander to have a determination of jurisdiction made and an election for court martial made (if available).

Technically that's not a "summary trial" but a "pre-trial procedure" within a "summary proceeding". The "summary trial" would only start subsequently if the superior commander has jurisdiction and the case is one where the individual has elected not to proceed by court martial or is one of the offences where no election to CM is available.

Sorry. Sometimes I get a little anal about these things.  ;D

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Offline dapaterson

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Re: Sexual Assault & Sexual Misconduct in the CF
« Reply #1156 on: July 13, 2017, 22:44:18 »
News reports say he was fined 500 for a bail violation at summary trial.  As a Capt, that could only be done by his superior commander.

Please forgive me for out analling a lawyer ;)
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Offline FJAG

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Re: Sexual Assault & Sexual Misconduct in the CF
« Reply #1157 on: July 13, 2017, 23:33:15 »
News reports say he was fined 500 for a bail violation at summary trial.  As a Capt, that could only be done by his superior commander.

Please forgive me for out analling a lawyer ;)

I'm not that familiar with his case and didn't know about the bail issue; BUT, if he was fined for a bail violation, then that would be a separate matter than standing trial for the sexual assault and therefore PuckChasers admonition that "the accused hasn't had his day in court to answer the charges" was both correct and proper.

I therefore reject your "out analling" and stand by mine.  ;D

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Offline putz

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Re: Sexual Assault & Sexual Misconduct in the CF
« Reply #1158 on: July 16, 2017, 10:44:13 »
I'm not that familiar with his case and didn't know about the bail issue; BUT, if he was fined for a bail violation, then that would be a separate matter than standing trial for the sexual assault and therefore PuckChasers admonition that "the accused hasn't had his day in court to answer the charges" was both correct and proper.

I therefore reject your "out analling" and stand by mine.  ;D

 :cheers:

IMHO he got more at the summary level for the breech then he would have standing before a military judge for the breech.  I have seen it before where someone, facing similar charges, breeched multiple times (x5), appeared before a Military Judge (where it wasn't deemed that he should be held in custody turns--- out that breeches in the NDA are handled differently than civilian court surprise surprise) and then had all charges relating to the breechs dismissed at court martial.  To be fair though he did get 4 plus years in jail so there was that......   

Offline FJAG

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Re: Sexual Assault & Sexual Misconduct in the CF
« Reply #1159 on: July 16, 2017, 16:03:59 »
IMHO he got more at the summary level for the breech then he would have standing before a military judge for the breech.  I have seen it before where someone, facing similar charges, breeched multiple times (x5), appeared before a Military Judge (where it wasn't deemed that he should be held in custody turns--- out that breeches in the NDA are handled differently than civilian court surprise surprise) and then had all charges relating to the breechs dismissed at court martial.  To be fair though he did get 4 plus years in jail so there was that......   

The civilian and military courts do handle them very differently.

In both cases an application for revocation of bail is very different from a charge for an offence based on whatever the act that breached the bail condition was.

Back many years ago, just after we pulled our troops out of Germany but before the base was fully shut down I was assigned to prosecute DND's first bail revocation application for an individual who was found guilty of a sexual offence on a minor and who was released on bail pending appeal and who, while on bail, was found in possession of drugs on two occasions.

In civilian courts the revocation application is a pretty straight forward summary proceeding that rarely takes more than fifteen minutes but under section 4 to QR&O 118 of the QR&Os, the crown's application to "cancel the direction for release for a breach of undertaking" shall be conducted as a court martial with all the applicable procedures etc available.

In my particular case we had set aside five days for the hearing in Germany but had to first contend with four days of pleas in bar of trial by the defence to find the whole process unconstitutional. They lost but we wasted time and I was barely able to get in as witnesses the two German customs officers who caught our boy at the border with hash coming back from Switzerland. We ended up having to finish off the hearing in Ottawa for four days (because by them most of my witnesses [except the US Army's drug analyst] and the accused had returned to Canada)

The one major difference between this hearing and a court martial was/is that the accused need only be found to have breached his undertaking on a preponderance of evidence (rather than beyond a reasonable doubt). When our guy's bail was revoked, he pulled his appeal and served out his time.

Again, I'm not familiar with the Shilo case. QR&O 118 applies to bail after a conviction by a court martial which I would think is obviously not the case here. There are provisions relating to pre-trial release from custody with or without conditions (QR&O 105) but again, those are procedural steps which are quite different from a new charge being laid for whatever the event that was considered the breach of condition was. Since there appeared to be a fine, there had to be a whole new charge.

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Offline putz

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Re: Sexual Assault & Sexual Misconduct in the CF
« Reply #1160 on: July 16, 2017, 21:43:15 »
I'm just hoping that the review of the Military law/NDA that's being conducted can help correct situations like this and move more towards how civilian courts operate. 

Offline FJAG

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Re: Sexual Assault & Sexual Misconduct in the CF
« Reply #1161 on: July 16, 2017, 22:32:20 »
I'm just hoping that the review of the Military law/NDA that's being conducted can help correct situations like this and move more towards how civilian courts operate.

That's actually harder to do then it sounds.

Civilian courts - specifically the Superior Courts/Courts of Queen's Bench are what are called courts of inherent jurisdiction which means that they have the jurisdiction to deal with any matter brought before them unless the matter is specifically excluded by legislation. They basically inherit the common law jurisdictions of the British courts from before confederation.

Courts Martial, on the other hand, are inferior courts or courts of limited jurisdiction. These courts have no inherent powers and can only do what is specifically allowed for them to do by legislation. In fact the court does not exist from day to day the way that the superior courts do (although the judges and staff are there full time). A court only comes into existence when it is "convened" which you might remember used to be when a general officer who was a convening authority gave an order convening it. This reaches back to the day when serving officers headed by a president of the court (sometimes assisted by a judge advocate) made all the rulings on both law and fact. There are some powers where a military judge has powers without there being a convening order such as an NDA s 159 custody review show cause hearing.

Things have changed significantly but still, every time that we want to work more like civilian courts, we need legislation to make that possible. Legislative changes come very slowly both because the military is a very conservative type of organization which doesn't rush into change and also because parliament is very slow to allocate time for NDA related matters; we're a low priority unless we're embarrassing the government when suddenly things speed up. The Somalia affair allowed DND to ram through much legislation which had been in limbo for a decade or more.

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Online Hamish Seggie

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Re: Sexual Assault & Sexual Misconduct in the CF
« Reply #1162 on: July 16, 2017, 23:30:40 »
FJAG I enjoy your posts. Keep it up!

And I said this to a lawyer????

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Offline FJAG

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Re: Sexual Assault & Sexual Misconduct in the CF
« Reply #1163 on: July 17, 2017, 00:22:50 »
FJAG I enjoy your posts. Keep it up!

And I said this to a lawyer????

Cheers!

There's a saying in legal circles: everybody hates lawyers in general but likes their own lawyer.  ;D

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Offline mariomike

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Re: Sexual Assault & Sexual Misconduct in the CF
« Reply #1164 on: October 06, 2017, 13:14:07 »
Oct 06, 2017

2 military members charged with sexually assaulting other personnel
http://www.cbc.ca/news/canada/nova-scotia/two-armed-forces-members-charged-with-sexual-assault-1.4343319

Separate incidents allegedly happened in New Brunswick this summer and in Halifax in 2014
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