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Sexual Misconduct Allegations in The CAF

OldSolduer

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TacticalTea

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brihard

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This is wild- the victim of an alleged sexual assault that CAF prosecutors declined to prosecute has succesfully initiated a private prosecution for aggravated sexual assault and forcible confinement. The accused has been charged and an arrest warrant issued; I think he was arrested as a result.

Private prosecutions that get taken up by crown prosecutors are very rare. I’ve never heard of a case arising out of the military like this.

 

Eye In The Sky

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This private prosecution is a new thing to me.

I did note this part of the article:

“Her attempts to reopen the case through the Military Police Complaints Commission (MPCC), a quasi-judicial civilian oversight body, and the Federal Court failed.”

This part baffles me some. The federal court refused to delve into this, but now a provincial court is? Or am I getting this wrong.
 

PMedMoe

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I wonder who the prosecuter was.

"However, a military prosecutor rejected charges after concluding that Jaszberenyi "subjectively consented" during the incident."

Sounds like they also screwed up the investigation.
 

Oldgateboatdriver

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This private prosecution is a new thing to me.

I did note this part of the article:

“Her attempts to reopen the case through the Military Police Complaints Commission (MPCC), a quasi-judicial civilian oversight body, and the Federal Court failed.”

This part baffles me some. The federal court refused to delve into this, but now a provincial court is? Or am I getting this wrong.

That's because each court was dealing with different matters.

The Federal Court was carrying a judicial review of the MPCC decision. The "test" the court was applying was merely to decide if the MPCC's decision was reached without breaching any of the rules of procedural fairness and was a reasonable decision - not necessarily the correct decision.

The Provincial court was hearing a motion to bring a private prosecution. The "test" it administered was wether the petitioner brought sufficient evidence that a case existed that had a reasonable chance of success before a criminal court and therefore should be authorized to proceed to trial. The Federal court never looked into that, otherwise there would also have been an issue of judicial difference to deal with at the provincial level before authorizing the prosecution.
 

brihard

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This private prosecution is a new thing to me.

I did note this part of the article:

“Her attempts to reopen the case through the Military Police Complaints Commission (MPCC), a quasi-judicial civilian oversight body, and the Federal Court failed.”

This part baffles me some. The federal court refused to delve into this, but now a provincial court is? Or am I getting this wrong.
I’m drawing inferences here, but Federal Court would not have played any prosecutorial role in this. I suspect she complained to the MPCC, they didn’t grant her the remedy sought, and she then sought judicial review in federal court- but that proceeding would not have had the ability to order the commencement of a criminal prosecution.

EDIT: @Oldgateboatdriver beat me to it.

Private prosecutions are rare to see, but they happen. Normally, for someone to be criminally charged, a peace officer goes before a Justice of the Peace and swears an ‘information’ alleging that the named person committed a specified offense. If the JP signs it - which they usually do, it’s not a super high threshold - it gets assigned to a crown prosecutor. In some cases (especially in BC) crown will have already been involved in approving the charge up front.

In a private prosecution, any person can go to a courthouse, appear before a Justice of the Peace, and swear an information alleging an offence. There are a step or two added wherein the JP does an initial in camera hearing to determine if there’s any substance the the matter - usually the process is used by looks who read about it online and try to bring bullshit, so there needs to be some control measure. This hearing, the ‘pre-enquete’ happens without notifying the accused and is not open to the public, so it can’t be effectively weaponized for embarrassment or harassment.

If, at the pre-enquete, it appears that there are grounds to proceed, then the JP can charge the accused and issue a summons or warrant to bring them to court, to be prosecuted by crown.

At pretty much every stage of this, crown prosecution can say “we’re not moving forward with this” and shut the whole thing down.

It’s a mechanism that offers the ability to get a criminal allegation before the courts should police. In practice, you’re usually going to see… odd and interesting people attempting to utilize this process. And not usually succesfully. In this particular case, it appears that the process might be serving its intended purpose.
 

lenaitch

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That's because each court was dealing with different matters.

The Federal Court was carrying a judicial review of the MPCC decision. The "test" the court was applying was merely to decide if the MPCC's decision was reached without breaching any of the rules of procedural fairness and was a reasonable decision - not necessarily the correct decision.

The Provincial court was hearing a motion to bring a private prosecution. The "test" it administered was wether the petitioner brought sufficient evidence that a case existed that had a reasonable chance of success before a criminal court and therefore should be authorized to proceed to trial. The Federal court never looked into that, otherwise there would also have been an issue of judicial difference to deal with at the provincial level before authorizing the prosecution.
I disagree. The role of the JP would be to determine, based on the information placed before them, that a prima facie criminal offence is made out; that admissible and probative evidence exists to establish the elements of the offence. Anybody can sit down with a JP and present their argument. As mentioned, being successful is rare - having it progress to trial is even rarer. Whether there is a reasonable prospect of conviction is a decision for the Crown. Since prosecutors in Canada don't have their own investigators, I suspect this matter will be turned over to the police for re-investigation.
 
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