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Sexual Misconduct Allegations in The CAF

SupersonicMax

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I think it's already what people are saying but there are differences between a criminal offence (judicial process), a disciplinary matter (the summary process), and an administrative issue (administrative measures). Of course, all are linked together but we lump disciplinary issues into the judicial process (just because of the way our system is set up), which makes it difficult to de-link the burden of proof beyond reasonable doubt and disciplinary issues. I agree that administrative actions should remain protected but disciplinary actions should be transparent once some criteria are met (rank or appointment - my take on it is any Col and above, and any Commanding Officers regardless of rank should be subjected to transparency of their disciplinary record while in those functions). As of now, a criminal matter cannot be dealt with through the judicial process and the disciplinary process but in my mind, they should be. Disciplinary matters should only apply as much it impacts military discipline. Yes, it may mean that some of the administrative processes would be dealt with on the discipline side but we're somewhat already doing this (tossing people out for conduct through the admin process).

Or perhaps a simpler solution is to make administrative measures available to the public for Col, GOFOs and COs (but I doubt GOFOs are subjected to admin measures very often, even when perhaps they should be).
 

ballz

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If we make one remedial measure public, we have to make them all public. To do otherwise is to treat people differently under the same process; instant winnable grievance.

I don't think that's the case at all. First of all, it'd have to be an amendment to the Privacy Act / written into the Privacy Act, so they'd have to challenge that as unconstitutional. Which Charter right/freedom would be violated by making remedial measures public for Generals and not Privates?

Further, by making remedial measures public, there is a risk of them becoming disciplinary. They're supposed to be a one and done means of correction, not a proverbial sword of Damocles held over a member's head in perpetuity.

That's all based around an individual's perception, and most people already view it as disciplinary anyway, so that is hardly any kind of change to the status quo.

Then there's that whole privacy and Protected B issue.

This has already been addressed and is a very very weak point.

Respectfully, I don’t think I’m over complicating it at all. CAF has administrative processes that can result in release for various reasons of unsuitability. Case in point, administrative releases for Op Honour violations. The mechanisms allowing this are not fundamentally disconnected from the administrative mechanisms for other reasons to release someone against their desires for various personal or professional shortcomings.

Proceedings for a release for sexual misconduct (a conduct issue) would be public. Proceedings for personal and professional shortcomings (conduct and/or performance issues) would be public.

How does this tie into your earlier points about universality of service? If there's an AR done for universality of service, that's a medical issue, not a conduct or performance issue. I'm not advocating medical issues be public.

In professional disciplinary processes, there is generally going to be a specific ‘offense’ or contravention alleged. CAF absolutely could adopt a disciplinary tribunal to be handled administratively rather than judicially, subject to grievance and judicial review mechanisms. It would just be a lot of shift from where CAF is now.

We technically already have this. We don't hold a formal hearing, but a member needs to notified on the intent to place them on remedial measures, disclosed the evidence against them, and given time to make representations. Then a decision gets rendered. This wouldn't necessarily need to change to at all particularly if it's only published if a remedial measure is issued (which would be a huge improvement). For practical purposes they might have to stop doing NOIs for IC/RWs "verbally" which quite frankly is stupid anyway, those should be done in writing the same as C&P, the fact they aren't is just more evidence that we can't do anything in human resource management right.

That said, I would welcome anything that codifies performance or conduct "offences" so to speak. Besides lacking transparency, we also lack clear guidance/direction which contributes to our inability to conduct proper human resource management. What is the "standard" for an IC for a Cpl or a LCol? There is none established by the CAF, which contributes to us sweeping issues under the rug.


I think it's already what people are saying but there are differences between a criminal offence (judicial process), a disciplinary matter (the summary process), and an administrative issue (administrative measures). Of course, all are linked together but we lump disciplinary issues into the judicial process (just because of the way our system is set up), which makes it difficult to de-link the burden of proof beyond reasonable doubt and disciplinary issues. I agree that administrative actions should remain protected but disciplinary actions should be transparent once some criteria are met (rank or appointment - my take on it is any Col and above, and any Commanding Officers regardless of rank should be subjected to transparency of their disciplinary record while in those functions). As of now, a criminal matter cannot be dealt with through the judicial process and the disciplinary process but in my mind, they should be. Disciplinary matters should only apply as much it impacts military discipline. Yes, it may mean that some of the administrative processes would be dealt with on the discipline side but we're somewhat already doing this (tossing people out for conduct through the admin process).

Or perhaps a simpler solution is to make administrative measures available to the public for Col, GOFOs and COs (but I doubt GOFOs are subjected to admin measures very often, even when perhaps they should be)

Max, I think we have a very different understanding of our own system.

In the context of the CAF...
Disciplinary system = Criminal/NDA offences, and includes court martials and summary trials. Both are public.
Administrative system = Performance management system and deals with performance/conduct issues from an administrative law perspective. This is privacy-protected under the Privacy Act, and I contend it shouldn't be.

In blue... that's all I was/am advocating for orginally, we've gone down some other tangents that muddies that (somewhat my own fault). I would argue different ranks, but that's a tangent.
In orange... agreed, and that's part of my point. It it were transparent (public), the CAF would no longer be able to sweep this stuff under the rug.

The amount of members of all ranks that don't understand our Administrative Orders and the differences between them and the CSD, NDA and QR&Os is staggering. Perhaps the CAF needs to embark on an education program for its serving members?

We need divine intervention when it comes to our human resource management practices. They're not written particularly well, and then we appoint some random Infantry Officer and random HRA NCM as "experts" on the matter, and simply defer to their "expertise." It's really no wonder we're where we are.
 

McG

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Respectfully, I don’t think I’m over complicating it at all. CAF has administrative processes that can result in release for various reasons of unsuitability. Case in point, administrative releases for Op Honour violations. The mechanisms allowing this are not fundamentally disconnected from the administrative mechanisms for other reasons to release someone against their desires for various personal or professional shortcomings.
Still over complicating but, instead of meshing things that are separate processes, you are now separating out things that are not unique. Release for Op Honour violations is release for conduct. It flows from the remedial measures process which covers conduct and performance.

CAF absolutely could adopt a disciplinary tribunal to be handled administratively rather than judicially, subject to grievance and judicial review mechanisms. It would just be a lot of shift from where CAF is now.
We are now in the process of change, so why not aim for what a profession needs? Our summary trial system was burdened by the need for proof beyond reasonable doubt while empowering COs to levy punishments with criminal record implications. We are going to a system of summary hearings. Much of that plan is (hopefully) already written, so instead of an end point the initial summary hearing system could be a waypoint toward what right looks like. That future system does not need to include powers with criminal record implications, it should reach conclusions based on a balance of probabilities, and it should become the profession’s primary mechanism of levying remedial measures for conduct.

If we make one remedial measure public, we have to make them all public. To do otherwise is to treat people differently under the same process; instant winnable grievance.
Some professional organizations have a mechanism where disciplinary results are public and published by default, but individuals can petition (during their hearing) to have their name redacted from the published results. That is an option for us to explore. Or, if summary hearings could become the primary mechanism to levy remedial measures, then the existence and severity of RM would be public knowledge by virtue of the public hearing but the documentation and conduct of the RM could still be completed under the shroud of privacy legislation.
 

ModlrMike

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Some professional organizations have a mechanism where disciplinary results are public and published by default, but individuals can petition (during their hearing) to have their name redacted from the published results. That is an option for us to explore. Or, if summary hearings could become the primary mechanism to levy remedial measures, then the existence and severity of RM would be public knowledge by virtue of the public hearing but the documentation and conduct of the RM could still be completed under the shroud of privacy legislation.
Yes, but remedial measures are not disciplinary, they're administrative, and I don't think we want to bring RM under the umbrella of the disciplinary process. Chiefly because it would deprive us of non-judicial means of managing conduct or performance defects. In order for RM to be assessed at a summary hearing, the member would have to have been charged with a CSD offence. Do we really want to hold hearings for petty lateness or for being a bag of hammers in uniform?
 

ballz

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Yes, but remedial measures are not disciplinary, they're administrative, and I don't think we want to bring RM under the umbrella of the disciplinary process. Chiefly because it would deprive us of non-judicial means of managing conduct or performance defects. In order for RM to be assessed at a summary hearing, the member would have to have been charged with a CSD offence. Do we really want to hold hearings for petty lateness or for being a bag of hammers in uniform?

You are not addressing what's being proposed at all, you are addressing the idea from current legislation/policy and some of it's not even true. You need to step outside that box and actually criticize the idea.

If the Privacy Act is amended as I have suggested, none of what you used as a counter is true.

We're talking about addressing systemic issues here, i.e. changing the system. Not working within the current system. That gets us nowhere.

Yes, but remedial measures are not disciplinary, they're administrative, and I don't think we want to bring RM under the umbrella of the disciplinary process.

No one is suggesting that remedial measures be moved under the umbrella of the disciplinary system.

In order for RM to be assessed at a summary hearing, the member would have to have been charged with a CSD offence.

Remedial measures already have a "summary hearing" mechanism, it's just done in writing instead of in person.

Please cite which policy requires someone to be charged with a CSD before any kind of summary hearing / administrative proceedings can occur. Someone should tell the CDS that we're all breaking it.

Do we really want to hold hearings for petty lateness or for being a bag of hammers in uniform?

No, as has already been addressed. The current process for addressing remedial measures doesn't even necessarily need to change, it just needs to be public. The only barrier to it being public is the Privacy Act, none of the things you've brought up are factual.

While there could be scope to add hearings (as opposed to ARs done by DMCA), that's somewhat separate from the core issue: transparency.
 

McG

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remedial measures are not disciplinary, they're administrative
True in our current system because it was designed that way. But what does the profession gain from maintaining parallel systems to address misconduct? Currently it creates a problem where it appears the profession does not hold members accountable for misconduct and/or negligence.

Do we really want to hold hearings for petty lateness or for being a bag of hammers in uniform?
In fact, the summary trial process is a far more appropriate response than the hammer of remedial measures for such things. So I hope we are already doing things that way.

I don't think we want to bring RM under the umbrella of the disciplinary process. Chiefly because it would deprive us of non-judicial means of …
What does “judicial means” mean to you? What aspect of “judicial means” do you feel are inappropriate to misconduct?
 

OldSolduer

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I've read elsewhere that the GoC has been advised not to reinstate the Admiral as CDS. Can anyone here confirm that?
 

Navy_Pete

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Good2Golf

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CBC provides an update: The CFNIS will not call in the to investigate sexual assault claim involving senior commander. Most puzzling is the chaser to the story - why would DND's Deputy Minister insert herself into the investigation, and attempt to contact the woman who filed the complaint?

Excellent article by Ashley Burke. I’m normally not overly impressed with the CBC, but Burke has done solid work on the CAF sexual misconduct/assault file, digging deep into the activities and developing many valid framework elements to question what is going on at the higher levels of government (DM-Ministerial-PCO/PMO-PM).

As are you, DAP, I can’t imagine why DM Thomas could remotely consider a DM-DM>Viau communication as appropriate…what was she thinking? Talk about totally inappropriate.
Thomas later apologized, said Champ. The defence department said the intention was never to make Viau uncomfortable, but rather to ensure her workplace was providing her with support.
🧐 That sounds very questionable…I don’t buy it. It sounds like Thomas was trying to influence Viau, although I can’t imagine her (Thomas’) motivation to do so. Why would she not be confident in Viau’s own Department’s supervisory chain to provide the necessary support?

Something doesn’t add up here…although I’m sure that Ashley Burke has more to come in this branch of unfolding events.

As well, is there anything keeping Viau from going directly to the RCMP herself and lodging a complaint? If she were to get pushback about the extra-Canada jurisdiction issue, then you’d know for sure that something untoward is happening beneath the veneer that the Canadian public is privy to.

And finally, aside from criminal pursuit of Edmundson’s alleged rape of Viau in 1991, could she not take civil action against Edmundson?

G2G
 

SeaKingTacco

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Excellent article by Ashley Burke. I’m normally not overly impressed with the CBC, but Burke has done solid work on the CAF sexual misconduct/assault file, digging deep into the activities and developing many valid framework elements to question what is going on at the higher levels of government (DM-Ministerial-PCO/PMO-PM).

As are you, DAP, I can’t imagine why DM Thomas could remotely consider a DM-DM>Viau communication as appropriate…what was she thinking? Talk about totally inappropriate.

🧐 That sounds very questionable…I don’t buy it. It sounds like Thomas was trying to influence Viau, although I can’t imagine her (Thomas’) motivation to do so. Why would she not be confident in Viau’s own Department’s supervisory chain to provide the necessary support?

Something doesn’t add up here…although I’m sure that Ashley Burke has more to come in this branch of unfolding events.

As well, is there anything keeping Viau from going directly to the RCMP herself and lodging a complaint? If she were to get pushback about the extra-Canada jurisdiction issue, then you’d know for sure that something untoward is happening beneath the veneer that the Canadian public is privy to.

And finally, aside from criminal pursuit of Edmundson’s alleged rape of Viau in 1991, could she not take civil action against Edmundson?

G2G
Or she could report the matter to NCIS in Pearl Harbor…
 

dapaterson

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Would NCIS have jurisdiction, or would a status of forces agreement preempt that, particularly since both parties were foreign nationals of the same nation on board a foreign warship?
 

SeaKingTacco

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Would NCIS have jurisdiction, or would a status of forces agreement preempt that, particularly since both parties were foreign nationals of the same nation on board a foreign warship?
I don’t know. Honestly.

But, they would be an outside agency that would certainly settle the issue of who has jurisdiction, wouldn’t they?
 

Good2Golf

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Was PRO alongside when the alleged rape occurred?
 
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