Sexual Assault & Sexual Misconduct in the CF

[brihard]

... but the idea of innocent until proven guilty applies, does it not?

Absolutely. There will be a difference between legal result and stigma in this case, I suspect, and it will detrimentally impact his career.

 

[blacktriangle]

In cases like these, if allegations turn out to be complete BS, does law enforcement take automatic action against the accuser? Or are people basically able to throw around false accusations, ruin a person's life, waste taxpayer dollars, and face no consequences themselves?

 

[brihard]

In cases like these, if allegations turn out to be complete BS, does law enforcement take automatic action against the accuser? Or are people basically able to throw around false accusations, ruin a person's life, waste taxpayer dollars, and face no consequences themselves?

Again, it's important to point out that a charge not leading to conviction does not mean claims are B.S.

The criminal offense of 'public mischief' covers deliberately false police reports:

140 (1) Every one commits public mischief who, with intent to mislead, causes a peace officer to enter on or continue an investigation by
(a) making a false statement that accuses some other person of having committed an offence;
(b) doing anything intended to cause some other person to be suspected of having committed an offence that the other person has not committed, or to divert suspicion from himself;
(c) reporting that an offence has been committed when it has not been committed; or
(d) reporting or in any other way making it known or causing it to be made known that he or some other person has died when he or that other person has not died.

So there has to be an intent to mislead, there has to be concrete action (knowingly false statement or report, or fabricated evidence), and it must cause an investigation to begin or continue that otherwise would not have. And the same burden of 'beyond a reasonable doubt' applies. In practice I have rarely seen this charge laid and more rarely still succeed because proving a falsehood is very difficult. At the same time, the threshold for laying charges is quite high too (reasonable and probable grounds to believe), and in the vast majority of cases that I have seen where a charge has not resulted in a conviction, I can say in all honestly that I have almost invariably seen it as a gap of 'know' versus 'can prove', rather than a person actually being innocent in fact of the accusation. I'm not making comment on this or any other case in particular, but I woul dbet just about anyone working in the criminal justice field would probably agree it's an accurate generalization. Actually false charges are quite rare; what is more common is police/the crown ultimately failing to gather enough evidence and/or articulate it sufficiently to convince the trier of fact. So it would be very rare that something that is utterly, factually false enough to justify a public mischief charge would lead to charges being laid in the first place.

It does happen. But rarely.

 

[Jarnhamar]

Brihard thanks to you and other others who take the time to explain the law and how this stuff works it's really interesting.

It doesn't seem like false claims are followed up to often form what I can tell (PMQ  drama).  Someone would probably need a lawyer and thousands of dollars to throw at it.

 

[captloadie]

I'm not sure if I were the Comd CA I would just sweep this away and move on, especially as the charges were withdrawn. I would want to know the reasons why the prosecution decided not to go forward, and then make a determination (through the appropriate HR process) as to whether I had lost confidence in his ability to Lead, and have his troops follow.

 

[Pusser]

I'm not sure if I were the Comd CA I would just sweep this away and move on, especially as the charges were withdrawn. I would want to know the reasons why the prosecution decided not to go forward, and then make a determination (through the appropriate HR process) as to whether I had lost confidence in his ability to Lead, and have his troops follow.

I'm not sure whether a Commander's loss of confidence in a CO's ability to lead is relevant in cases like this.  As has already been pointed out, this officer was relieved and another was appointed to take his place,  Soon it will be time for yet another to step up.  History is full of examples of commanders who were relieved, but then later appointed to other commands once their names had been cleared.  Nowadays, however, a CO generally only gets one kick at the cat and even if something goes awry during his/her tenure (regardless of whether he/she is at fault), the steam roller keeps rolling and never looks back.

 

[dapaterson]

In fact, DMCA will be conducting an administrative review on this case, as they do in all cases where such charges have been laid, and may direct administrative action, depending on the circumstances.

 

[Jarnhamar]

Someone does not need to be found guilty in order for the court of public opinion to ruin their career and life.

 

[ballz]

In fact, DMCA will be conducting an administrative review on this case, as they do in all cases where such charges have been laid, and may direct administrative action, depending on the circumstances.

Indeed. I think people are failing to recognize that administrative action can still be taken up to and including booting him out.

I would be curious to know how much info is being shared (or allowed to be shared) between the Crown and the member's Chain of Command. While something simple like the loss of a key witness could have caused the charges to be dropped, it doesn't mean that someone viewing this from his Chain of Command, if they have all the info from the Crown, can't decide that on the balance of probabilities (the burden of proof for administrative action) he did something he ought not to have done...

 

[The Bread Guy]

Brihard thanks to you and other others who take the time to explain the law and how this stuff works it's really interesting.

What he said, to all who provided input.

 

[mariomike]

I think people are failing to recognize that administrative action can still be taken up to and including booting him out.

I know they let guys go if their judgment is called into question due to off-duty conduct where I used to work.
That includes Tweeting and social media. Or an off-duty FHRITP on-camera stunt etc...

No charges are necessary. 

 

[McG]

I know they let guys go if ...

Who is "they"?

 

[mariomike]

Who is "they"?

where I used to work.

From what Ballz says, the military may have the same "administrative action"?

 

[McG]

So, "they" is Hydro One?

Unlike that organization, the CAF follows a system with procedural fairness.  The individual is given the opportunity to see the case against them, and to make replies. 

 

[mariomike]

So, "they" is Hydro One?

No.

Unlike that organization, the CAF follows a system with procedural fairness.  The individual is given the opportunity to see the case against them, and to make replies.

Ours go to arbitration. The individual is given the opportunity to see the case against them, and to make replies. The union represents them at the hearing.
The Arbitrator makes the final decision.
Not the employer. Not the union.

 

[ballz]

From what Ballz says, the military may have the same "administrative action"?

Administrative action is just a blanket term for things like remedial measures, administrative reviews, etc. The important part in this is that its separate from legal/judicial/disciplinary action, and the burden of proof is on a "balance of probabilities" as opposed to "beyond a reasonable doubt."

So as DAP said, an administrative review (AR) will be conducted to determine how to deal with the member going forward. If that AR determines that, on the balance of probabilities, the member committed these sex-related offences, then there is a wide array of possibilities available to deal with it. One of those possibilities in this case is most definitely a release.

So, all that to say, this isn't even a matter of just being unofficially blackballed for the rest of his career... there are still official things that can take place..

 

[OldSolduer]

Administrative action is just a blanket term for things like remedial measures, administrative reviews, etc. The important part in this is that its separate from legal/judicial/disciplinary action, and the burden of proof is on a "balance of probabilities" as opposed to "beyond a reasonable doubt."

So as DAP said, an administrative review (AR) will be conducted to determine how to deal with the member going forward. If that AR determines that, on the balance of probabilities, the member committed these sex-related offences, then there is a wide array of possibilities available to deal with it. One of those possibilities in this case is most definitely a release.

So, all that to say, this isn't even a matter of just being unofficially blackballed for the rest of his career... there are still official things that can take place..

Correct. Well said.

 

[mariomike]

N.B. captain charged with sexual assault of fellow Armed Forces member
http://www.680news.com/2016/11/09/n-b-captain-charged-with-sexual-assault-of-fellow-armed-forces-member/

 

[The Bread Guy]

A reminder:  under the Charter, "Any person charged with an offence has the right ... to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal ..."

On November 9, 2016, the Canadian Forces National Investigation Service charged a military member of 5th Canadian Division Support Group with two counts under the National Defence Act in relation to accessing child pornography.

The charges relate to reported accessing of child pornography while the accused was on duty at 5th Canadian Division Support Base Gagetown between June 26, 2014 and September 22, 2014.

Sergeant Brent Douglas Hansen faces the following charges:

    one count of Accessing Child Pornography under section 163.1(4.1) of the Criminal Code of Canada, punishable under section 130 of the National Defence Act; and
    one count of Conduct to the Prejudice of Good Order and Discipline, punishable under section 129 of the National Defence Act.

Quotes

    “The Canadian Forces National Investigation Service thoroughly investigates any allegations of accessing, possession or distribution of child pornography in relation to Canadian Armed Forces members, Department of National Defence employees or defence establishments. These charges reflect our ongoing commitment to identify, investigate and bring to prosecution those persons engaged in harmful, inappropriate and criminal sexual behaviour.”
    Lieutenant-Colonel Francis Bolduc, Commanding Officer, Canadian Forces National Investigation Service

Quick Facts

    The Canadian Forces National Investigation Service is a unit within the independent Canadian Forces Military Police Group whose mandate is to investigate serious and sensitive matters in relation to Department of National Defence property, Department of National defence employees and Canadian Armed Forces personnel serving in Canada and around the world.
    The Canadian Armed Forces takes all reports of misconduct by its members very seriously and, in all cases, action is taken to determine facts, conduct applicable investigations, analyse available evidence and, if warranted, lay the appropriate charges.

- 30 -​

Source

 

[mba2011]

[size=14pt]A reminder:  under the Charter, "Any person charged with an offence has the right ... to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal ..."

Always good to remind people of this, particularly given what just happened with LCol Stalker.....