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Sexual Misconduct Allegations in The CAF

FJAG

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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
S 130 does exactly that as far as Federal legislation goes. CF members are subject to the CCC by virtue of s 130 of the NDA regardless of where they are.

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?

You're thinking of s 132 which makes it a service offence to break a local law in a local jurisdiction and that does raise an interesting conflict of law question as to whether s 132 meets the definition of the SOFA. If you go a bit further into the SOFA, para 3 to Article VII sorts out the priority with respect to cases where there is concurrent jurisdiction. Canada would have primary jurisdiction under para 3a if the offence is against another Canadian member or against Canadian property or out of the performance or failure to perform an official duty. Where para 3a doesn't apply (and in the fish example it doesn't) then the receiving state, i.e. the US has primary jurisdiction unless it chooses to waive that right.


Just a brief point on sexual assault and the military's jurisdiction. Prior to the Somalia Inquiry, DND had significant problems in getting legislation passed in Parliament. Basically our priorities weren't the DOJ's priorities. Somalia changed all that and for several years much of the office of the JAG's primary effort was to develop a massive legislative change to the NDA and its various regulations. The first major change was Bill-C25 which implemented hundreds of changes to the laws and was enacted in 1998.

Amongst the many changes was a provision amending s 70 of the NDA (which provided for offences not triable by a military tribunal) so that it was now possible to try a service member for a sexual assault committed in Canada. Prior to this amendment only civilian courts had the jurisdiction to try someone for a sexual offence committed in Canada. Note that prior to 1998 the military did have the jurisdiction to try a member for a sexual assault offence committed outside Canada and that after 1998 the jurisdiction is a shared jurisdiction as between military and civilian tribunals. With respect to the reason for the change please note the following:

Like the external review conducted by Deschamps, the impetus for expanding the jurisdiction of the military’s legal system to include charges of sexual assault was a response, at least in part, to mainstream media coverage documenting the prolific problem of rape in the Canadian military.(11) In 1998 Maclean’s magazine published three cover stories— “Rape in the Military,”(12) “Speaking Out on Sexual Assault in the Military,”(13) and “Of Rape and Justice”(14)—examining the horrific experiences of sexual trauma endured by women in the Canadian military.

I don't want to sound flippant about a serious issue, but it seems that every time that we face a problem we seem to think that the way to fix it is to change the system radically by taking the responsibility to deal with it away from the military. I generally tend to oppose fine tuning a system that is patently broken, but I'm far from convinced that our military judicial system is broken beyond repair in this particular case. The issue of sexual assault is a widespread one in our society that goes well beyond the military community. Universities have far greater problems than the military but at the present time we are the "focus de jour". I feel quite confident that the military investigation service and military prosecutors, if properly empowered, can do as good a job in these circumstances as their civilian counterparts and in all probability a better job because they have significantly lower case loads.

🍻
 

Good2Golf

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I feel quite confident that the military investigation service and military prosecutors, if properly empowered, can do as good a job in these circumstances as their civilian counterparts and in all probability a better job because they have significantly lower case loads.

So what is required to be empowered thusly?

How does that square with NIS’ recent finding, for example, of a lack of prosecutable charges in the incident of (then) Cdr MacDonald allegedly assaulting (then) Lt(N) McDonald? Was the NIS not properly empowered, or just that with the information they collected during their investigation, that subsequent referral to DMP resulted in the recommendation not to proceed with charges against Adm MacDonald?

One can imagine that if there is a similar result in the ongoing investigation of (then) LCdr Edmundson’s alleged rape of AS Viau, with the result that no charges could be laid against VAdm Edmundson, that people would be quite justified to question whether the CAF truly was a professional, responsible and capable organization to adequately deal internally with sexual assault.

Folks keep saying that the CAF’s justice system works well on the whole, which it may, if one wants to look at things numerically/statistically, but the justice for those who were (allegedly) impacted by sexual misconduct or violence isn’t a statistically excusable issue. Heck, the CAF can’t even get it right with a cook (allegedly) cooking marijuana into cupcakes right… 🤦🏻

No wonder there is little trust of the CAF system where sexual misconduct and violence is concerned.
 

YZT580

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In the meantime, the admiral wants his job back. This could get very interesting
 

Jarnhamar

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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.

Mostly I'd say we just don't take sexual assault (along with harassment, inappropriate behavior etc) seriously.

But I'd also say it's so the boys club can protect their buddies.
 

QV

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Mostly I'd say we just don't take sexual assault (along with harassment, inappropriate behavior etc) seriously.

But I'd also say it's so the boys club can protect their buddies.
It's probably in an effort to protect the institution. Having CAF personnel parade themselves in civil courts is much more visible than in CMs.
 

QV

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OldSolduer

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Mostly I'd say we just don't take sexual assault (along with harassment, inappropriate behavior etc) seriously.

But I'd also say it's so the boys club can protect their buddies.
This is a societal issue, not just a CAF one. Look at the ridiculously low sentences rapists receive even after multiple offences.
 

MilEME09

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This will be good, but since he serves at the pleasure of the PM, would he even have any kind of legal recourse if the PM said no?
 

Jarnhamar

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Not reinstating Admiral MacDonald will give the impression that he's guilty but the justice system failed.

We better put him back at the helm.


If we don't then maybe put Admiral Macdonald in charge of a committee to study the Third Independent Review former Justice Fish reported on.

Or just do a fourth review.
 

McG

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This will be good, but since he serves at the pleasure of the PM, would he even have any kind of legal recourse if the PM said no?
He is forcing the government to take a position. Either come out and explicitly remove him, or do nothing and passively show acceptance.
 

MilEME09

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He is forcing the government to take a position. Either come out and explicitly remove him, or do nothing and passively show acceptance.
Or option 3 is to public accept it and come out in support of the investigation, or they could also drag it out and tell NIS to send all evidence to the RCMP for review.
 

Navy_Pete

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This will be good, but since he serves at the pleasure of the PM, would he even have any kind of legal recourse if the PM said no?
Is this the same PM that's been found guilty of 3 ethic breaches, had sexual assault allegation of his own, and also the blackface incident? Hardly a position of strength to find someone fell short on expectations of what proper behaviour is.

Unless there is some kind of follow on administrative review, they need to either reinstate him or settle something for him to retire. If the investigation doesn't support charges, but an AR merits some kind of conduct release, by all means go that route.

The entire disciplinary and administrative system is underpinned by the presumption that it's fair; if the same standard applies up the chain (which it needs to), that should include reinstatement of duties if an investigation results in no charges or administrative measures, IMHO.

No really good outcome here, but the GoC can't just stay neutral and hope it sorts itself out.
 
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