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Sexual Misconduct Allegations in The CAF

FJAG

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FJAG if he is around can probably give us the answer.
I'm around but keeping my head down on much of this topic as I try not to comment about things where I do not have enough details to be able to form a worthwhile opinion. Since you've asked, however, I'll give you my $0.02 worth.

The facts as I understand them is that the alleged incident took place between two CF personnel on a CF ship within the US territorial limits which leaves me no doubt that the CF has jurisdiction to investigate and prosecute.

The offence of sexual assault is one common to the laws of both Canada and the Hawaii and by being on a Canadian ship in US territory would result in concurrent jurisdiction under paras 1a and b of Article VII of the NATO SOFA BUT, since the offence was against a CF member, Canada would have the primary right to exercise jurisdiction under para 3a of Article VII.

Note that para 3c of Article VII requires that if Canada chooses not to exercise its primary right to take jurisdiction then there is an obligation to advise the US of it's decision as soon as practical. This would have been of significance if the incident had been reported at the time of the incident as at that time the Hawaiian authorities could have taken up jurisdiction.

Note that there is a statute of limitations with respect to rape in Hawaii of three years from the date of the offence in the case of an 18 year and older adult and I'm not aware of any circumstances at play that would result in an extension of that limitation.

I'm not one hundred percent certain but I do not think that NCIS would have any jurisdiction in this matter as this case would not involve any US Navy personnel subject to the UCMJ or other Navy assets over which NCIS would have criminal investigative authority. The fact that it may have happened within the confines of a US Navy shipyard would not, in my opinion, by itself be sufficient and I would think that state authorities would have had primary jurisdiction under US law.

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McG

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I though Sovereign Immunity applied to a nation’s warships when in another nation’s waters. That would preclude any US jurisdiction.
 

FJAG

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I though Sovereign Immunity applied to a nation’s warships when in another nation’s waters. That would preclude any US jurisdiction.
I'm by no means an expert in maritime law, but my understanding that the principle of sovereign immunity under maritime law applies to the vessels and not the crews which are subjects to the provisions of SOFAs as visiting forces.

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McG

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SOFA applies to crew members if & when they leave the ship, but while on ship they are subject to home nation jurisdiction.
 

brihard

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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.
I’m not aware of any provision of the Criminal Code that would allow for civilian police to lay charges for a ‘common’ sexual assault outside of Canada. There are limited offences that can be committed extraterritorially and prosecuted domestically, but in this case I think only the MPs would have legal authority to, as provided by the NDA.
 

FJAG

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SOFA applies to crew members if & when they leave the ship, but while on ship they are subject to home nation jurisdiction.

The jurisdiction is territorially based and not reliant on stepping foot on the land. Let's look at an example. Paras 1b and 2b of Article VII state:

1 b the authorities of the receiving State shall have jurisdiction over the members of a force or civilian component and their dependents with respect to offences committed within the territory of the receiving State and punishable by the law of that State.
2 b The authorities of the receiving State shall have the right to exercise exclusive jurisdiction over members of a force or civilian component and their dependents with respect to offences, including offences relating to the security of that State, punishable by its law but not by the law of the sending state.

So let's assume that it is an offence in Hawaii to kill a humuhumunukunukuāpuaʻa, the State Fish of Hawaii (I actually think it isn't but for the sake of this example let's say it is). Sailor 2nd Class (Able Seaman for DAP) Bloggins is standing on the fantail of his ship and using a speargun shoots and kills one. A US Navy sailor on the ship tied up alongside the Canadian one who happens to be a Hawaiian sees this and is deeply offended over this act and reports it to the appropriate civilian authorities.

Since Bloggins is a member of a visiting force within the territorial jurisdiction of the US and Hawaii who has committed an offence under US/Hawaiian law and which is not an offence in Canada the receiving State, (ie the US/Hawaii) has exclusive jurisdiction over this case.

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captloadie

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There are times to stand our ground as an organization, and there are times to adapt to the changing social environment, even if it means setting precedence. I for one do not understand why the CAF continues to deal with sexual assault cases within our disciplinary system. Just because we can doesn't mean we should. And given the Fish report, it looks like we shouldn't. I don't believe we have the investigative expertise in this area to be effective. I don't think we have the prosecutorial, nor defense council, expertise to see this cases successfully prosecuted/defended within our system. Call in the RCMP to conduct the investigations, and hand over the results to the civilian court system to administer. If a defense wants to argue the jurisdiction issue at trial, let them.

I have read through many Court Martial transcripts that have seen the original sexual assault charges withdrawn and the member found guilty/pleading guilty to a s.129. Is this because the investigations were lacking, thus leaving little chance of success on these charges? Is it because it is easy to plea bargain out to the s.129 and still feel we are bringing the guilty party to account? Is it because the victims don't want to go through the pain of reliving the assault in a court setting?

In one transcript I read, where the description of the sexual assault in my mind constituted rape, the judge had to find the accused not guilty of the charge because the prosecutor missed proving one of the elements of the charge. The judge, in his response, stated that he had no doubt that the events occurred as described by the victim, and that her testimony was credible, and the accused testimony was not much more than convoluted statements to downplay the event. He was found guilty of the s.129 charge however. Yes, this can happen in civilian court as well, but is our judicial system less effective because we have the s.129 to fall back on?
 

McG

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Since Bloggins is a member of a visiting force within the territorial jurisdiction of the US and Hawaii who has committed an offence under US/Hawaiian law and which is not an offence in Canada the receiving State, (ie the US/Hawaii) has exclusive jurisdiction over this case.
It would be punishable under s 130 of the NDA, so would that not mean there is no US jurisdiction granted by your second quote? And where the ship is considered sovereign to Canada, an act committed on the ship would would have been in a space excluded from US territory, which means no US jurisdiction granted by your first quote. Maybe?

But I am working with secondary references: Chapter 5: Sovereign Immunity – Law of the Sea
 

SeaKingTacco

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There are times to stand our ground as an organization, and there are times to adapt to the changing social environment, even if it means setting precedence. I for one do not understand why the CAF continues to deal with sexual assault cases within our disciplinary system. Just because we can doesn't mean we should. And given the Fish report, it looks like we shouldn't. I don't believe we have the investigative expertise in this area to be effective. I don't think we have the prosecutorial, nor defense council, expertise to see this cases successfully prosecuted/defended within our system. Call in the RCMP to conduct the investigations, and hand over the results to the civilian court system to administer. If a defense wants to argue the jurisdiction issue at trial, let them.

I have read through many Court Martial transcripts that have seen the original sexual assault charges withdrawn and the member found guilty/pleading guilty to a s.129. Is this because the investigations were lacking, thus leaving little chance of success on these charges? Is it because it is easy to plea bargain out to the s.129 and still feel we are bringing the guilty party to account? Is it because the victims don't want to go through the pain of reliving the assault in a court setting?

In one transcript I read, where the description of the sexual assault in my mind constituted rape, the judge had to find the accused not guilty of the charge because the prosecutor missed proving one of the elements of the charge. The judge, in his response, stated that he had no doubt that the events occurred as described by the victim, and that her testimony was credible, and the accused testimony was not much more than convoluted statements to downplay the event. He was found guilty of the s.129 charge however. Yes, this can happen in civilian court as well, but is our judicial system less effective because we have the s.129 to fall back on?
With respect, which civilian court in Canada has jurisdiction over an alleged offence in Hawaii? You cannot just wave your hand and say “oh that doesn’t matter”. It matters.
 

Good2Golf

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With respect, which civilian court in Canada has jurisdiction over an alleged offence in Hawaii? You cannot just wave your hand and say “oh that doesn’t matter”. It matters.
The flip side of that perspective is, or should be easier than many are making it to be.

Remember that part of the LOAC that says all CAF members are bound not only by the NDA but also Canadian law (which includes the CCC)? Does that not imply that any CAF member serving internationally, whether for a specific operation or as a standing force (that may be mobile by air, sea or land), is also bound by Canadian law? And aren’t we also told that where CAF members are posted outside of a Canada, that for the purposes of federal statutes, the CAF members are administratively considered to reside in the NCR/Ontario

So, I believe it follows reasonably that the C.C.C. should also apply to all CAF members, even if not on Canadian soil/in Territorial Waters, and that as with applicability in other regards (taxation, etc.) Ontario be used as the effective jurisdiction where provincial implication to federal statues apply.


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SeaKingTacco

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The flip side of that perspective is, or should be easier than many are making it to be.

Remember that part of the LOAC that says all CAF members are bound not only by the NDA but also Canadian law (which includes the CCC)? Does that not imply that any CAF member serving internationally, whether for a specific operation or as a standing force (that may be mobile by air, sea or land), is also bound by Canadian law? And aren’t we also told that where CAF members are posted outside of a Canada, that for the purposes of federal statutes, the CAF members are administratively considered to reside in the NCR/Ontario

So, I believe it follows reasonably that the C.C.C. should also apply to all CAF members, even if not on Canadian soil/in Territorial Waters, and that as with applicability in other regards (taxation, etc.) Ontario be used as the effective jurisdiction where provincial implication to federal statues apply.


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G2G
I am not sure that has ever been tested under the CCC.

I am not sure that the Supreme Court (where this would all eventually end up on appeal) would be amused with an administrative wave of the hand saying that “oh, Ontario, you are now responsible for trying all crimes committed outside of Canada by CAF members”.

Think of the implications: a CAF member posted to Halifax is accused of a crime while onboard HMCS Montreal, but on a port visit to Malta.

The court case would be held in- North Bay? Barrie? Thunder Bay?

I’m sorry, but that makes no sense.

For all of the criticism of the Court Martial system (much of it by people who have axes to grind or other agendas to serve), it actually works pretty well, in my experience.
 

CBH99

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I had posted a reply essentially saying the same as what FJAG had posted, but without the actual quotes. As usual, FJAG said it much more elegantly than I - and with the experience for his post to have a lot more credibility.

Before deploying to Afghanistan, and again before our HTLA, and again before I participated in my only RIMPAC - that’s how it was explained to us.

Screw up on ship, against a fellow Canadian? The CO/XO would handle it harshly, and be prepared to deal with it legally upon return. Get arrested in Honolulu for breaking the law? It’ll be dealt with legally according to local laws & processes. (Which makes sense.)


As for the CAF dealing with sexual assault matters internally, via military police and the court martial system… I don’t have any experience dealing with the MP’s or military judicial system. So I have no idea.

The Fish report does leave me thinking perhaps a civilian police agency would, at the very least, be more objective and not have to worry about the CoC muddling in things. But I have also seen policing agencies be useless and, frankly, similar in their approach when a complaint has been made. (Or attempted to be made.) Looking at you Lethbridge

1. Would deferring these matters to the RCMP be a big deal? Would the odd sexual assault file overburden them?

What investigative assets do they have that MPs do not have access to? (Since a majority of the time, forensic evidence is lacking.)
 

Scott

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Jesus. Is this the same DM who is a respondent in a harassment case brought by Roleau?
 

Scott

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Well, if that DM wants to keep providing easily sourced proof that she doesn't respect professional boundaries and processes developed to handle these things - great. I hope that the investigator uses this. I hope someone, after reading the report, mines it to ensure there are no other potential notices of occurrence against the DM, or their staff, or anyone other arsehole involved in corrupting this process.

Amy MacPherson @MsAmyMacPherson seemed to be on to something a month ago - barely a peep since, and the "reporting" had some holes. But perhaps enough smoke generated to make wheels turn toward a deeper look.
 

Good2Golf

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I am not sure that has ever been tested under the CCC.

I am not sure that the Supreme Court (where this would all eventually end up on appeal) would be amused with an administrative wave of the hand saying that “oh, Ontario, you are now responsible for trying all crimes committed outside of Canada by CAF members”.

Think of the implications: a CAF member posted to Halifax is accused of a crime while onboard HMCS Montreal, but on a port visit to Malta.

The court case would be held in- North Bay? Barrie? Thunder Bay?

I’m sorry, but that makes no sense.

For all of the criticism of the Court Martial system (much of it by people who have axes to grind or other agendas to serve), it actually works pretty well, in my experience.
For an incident as serious as rape, yeah, put them all on a plane back to Ottawa…if an op vessel on a SNMG for example, repatriate when it doesn’t endanger the mission.

A significant issue with military justice would seem less so the validity/performance of Courts Martial, but getting that far…solve that first, and then the question - is NDA130 more suitable than CCC 271/273?


Screw up on ship, against a fellow Canadian? The CO/XO would handle it harshly, and be prepared to deal with it legally upon return. Get arrested in Honolulu for breaking the law? It’ll be dealt with legally according to local laws & processes. (Which makes sense.)
…and what if it is the XO, for example, who sexually assaults a female of the Ship’s company, and the CO gives the XO a ‘mulligan’ since he’s a swell guy and the CO didn’t want to harm the XO’s career? Where is the justice then for the assaulted member? (more a rhetorical question CBH, not a personal jab Q to you)


Regard
G2G
 

CBH99

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For an incident as serious as rape, yeah, put them all on a plane back to Ottawa…if an op vessel on a SNMG for example, repatriate when it doesn’t endanger the mission.

A significant issue with military justice would seem less so the validity/performance of Courts Martial, but getting that far…solve that first, and then the question - is NDA130 more suitable than CCC 271/273?



…and what if it is the XO, for example, who sexually assaults a female of the Ship’s company, and the CO gives the XO a ‘mulligan’ since he’s a swell guy and the CO didn’t want to harm the XO’s career? Where is the justice then for the assaulted member? (more a rhetorical question CBH, not a personal jab Q to you)


Regard
G2G
No no, I understand it wasn’t a personal jab. It was an excellent point, and it’s because of situations like that, that we ended up here in the first place.

Very good point, and unfortunately it’s well supported given what’s come out recently.
 

Blackadder1916

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The offence of sexual assault is one common to the laws of both Canada and the Hawaii and by being on a Canadian ship in US territory would result in concurrent jurisdiction under paras 1a and b of Article VII of the NATO SOFA BUT, since the offence was against a CF member, Canada would have the primary right to exercise jurisdiction under para 3a of Article VII.

But is Hawaii (not being in North America) in the "North Atlantic Treaty area" as per the NATO SOFA and the North Atlantic Treaty?

Article I​

  1. In this Agreement the expression
    1. 'force' means the personnel belonging to the land, sea or air armed services of one Contracting Party when in the territory of another Contracting Party in the North Atlantic Treaty area in connexion with their official duties, provided that the two Contracting Parties concerned may agree that certain individuals, units or formations shall not be regarded as constituting or included in a 'force' for the purpose of the present Agreement;

Article 6​

For the purpose of Article 5, an armed attack on one or more of the Parties is deemed to include an armed attack:

  • on the territory of any of the Parties in Europe or North America, on the Algerian Departments of France 2, on the territory of Turkey or on the Islands under the jurisdiction of any of the Parties in the North Atlantic area north of the Tropic of Cancer;
  • on the forces, vessels, or aircraft of any of the Parties, when in or over these territories or any other area in Europe in which occupation forces of any of the Parties were stationed on the date when the Treaty entered into force or the Mediterranean Sea or the North Atlantic area north of the Tropic of Cancer.

That's one of those trivial questions that arise from persons who have more time on their hands than sense, but it has been asked before and even to the NATO Sec Gen, whose reply was a "political" opinion rather than "legal" one.

Question: The United States was one of the original founding members of NATO in 1949, when there was only 48 states, and Hawaii didn’t become a state of America until 1959 and Hawaii has never been a signatory to NATO and today is separate. Therefore, if there was an attack on Hawaii, even though America is a signatory and a member of NATO, NATO couldn’t do anything… it's my understanding that NATO couldn’t do anything.

Moderator: Alright, that’s a very technical question. Thank you, sir.

Jens Stoltenberg [NATO Secretary General]: Now, if one Ally is attacked, and Hawaii is part of the United States which is part of NATO, then Article 5 of the North Atlantic Treaty states clearly that that should be regarded as an attack on us all and we can trigger Article 5. So, that’s in a way the answer to that.

Having said that, I think that we have to understand that, at the end of the day, this is a political issue, meaning that, at the end of the day, this is about a political commitment that we are standing up for each other and just to have the idea that one Ally should be attacked and then we not reacting will undermine the credibility of the whole of NATO. And therefore I think it's also quite interesting to think about or reflect about the fact that those who wrote the Washington Treaty back in 1949, I think when they wrote the Article 5 the idea was to protect European NATO Allies against an attack from the Soviet Union. We never invoked Article 5 addressing the Soviet Union, because the Soviet Union never attacked us, because we had credible deterrence. They knew that if they attacked one Ally, it would trigger a response from the whole Alliance, and that prevented a conflict. So, it is a paradox that the first time we invoked Article 5 was after an attack on the United States, by a terrorist organisation, by Al Qaeda. And again, it's not easy to ask those who wrote the article back in 49, but I guess none of them have thought about the idea that the first and only time we invoke that article was after an attack by a terrorist organisation on the United States.

(edited to add)
Criminal jurisdiction when the US is the receiving state is discussed in the US Army JAG Operational Law Handbook

https://www.loc.gov/rr/frd/Military_Law/pdf/operational-law-handbook_2018.pdf (go to page 130 of pdf)
e. The United States as a Receiving State.
(1) Traditionally, the SOFA issues JAs face involve U.S. service members deployed to other countries. In the post-Cold War era, foreign forces began routinely coming to the U.S. for training. Some NATO countries have units permanently stationed in the United States.486 The status of these foreign forces in the United States depends on agreements with the sending state. Almost all U.S. SOFAs are non-reciprocal in nature. For example, the Korean SOFA only applies to U.S. armed forces in the Republic of Korea (ROK). Therefore, if ROK soldiers are present in the United States, exclusive jurisdiction would rest with the United States. On the other hand, the United States may have entered into a SOFA that is reciprocal, such as the NATO SOFA and the Partnership for Peace (PFP) SOFA.

(2) There are complicated issues with jurisdiction over foreign forces in the United States. Based on our federal system, if the international agreement under which foreign forces are seeking protection is a treaty, the provisions of the agreement are the supreme law of the land and are binding on both Federal and State jurisdictions. Conversely, international agreements that are not treaties (executive agreements) are binding on the Federal government, but not generally on the states. Absent additional legislation, a state prosecutor is free to charge a visiting service member for a crime under state law, regardless of the provisions of the executive agreement. State prosecutors are typically willing to defer a prosecution as a matter of national interest, but it can be a delicate diplomatic situation. Judge advocates must also become familiar with the option of a foreign force to impose discipline on members of their force within the United States. Just as the United States conducts courtsmartial in host nation countries, reciprocal countries may wish to do the same in the United States.487
 
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