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Soldier found guilty of rape wants to serve in Afghanistan

Dissident

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The way it was explained to me here from some collegues is: If someone is unaware of their environment and are not concious of it, they do not posses the ability to give consent. Mabe things are different in Quebec, they have a few quirks that I am most definitly not an expert on.

As always, it is hard to come to a conclusion in these situation, since we do not have all the details. We just have to trust the courts to do the right thing. If he is guilty, hes probaly better out of the military than in, for his own good.
 

FredDaHead

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Dissident said:
The way it was explained to me here from some collegues is: If someone is unaware of their environment and are not concious of it, they do not posses the ability to give consent. Mabe things are different in Quebec, they have a few quirks that I am most definitly not an expert on.

As always, it is hard to come to a conclusion in these situation, since we do not have all the details. We just have to trust the courts to do the right thing. If he is guilty, hes probaly better out of the military than in, for his own good.

From what I understand, if someone is impaired (there might be a specific definition, but I don't know what it is) they cannot give consent. That means that even if someone says they do want to have sex (in a case like this one), they technically did not give consent. It's basically a way for women to cry "rape" after giving every indication they did want to have sex with the man they accuse; it has never, to my knowledge, been used to accuse a female of rape.

TN2IC said:
But a 3 year wait period before action was taken? Would that sound right? Was there any police action right after the assault? If so, what?

I am not defending this guy, but it does make you think.

I don't think it's that atypical for sex crimes in general; those against children often only surface many years after. I guess if the woman is so hell-bent on him going to jail, she might have wanted to press charges earlier, though.
 

IN HOC SIGNO

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Freddy G said:
From what I understand, if someone is impaired (there might be a specific definition, but I don't know what it is) they cannot give consent. That means that even if someone says they do want to have sex (in a case like this one), they technically did not give consent. It's basically a way for women to cry "rape" after giving every indication they did want to have sex with the man they accuse; it has never, to my knowledge, been used to accuse a female of rape.

I don't think it's that atypical for sex crimes in general; those against children often only surface many years after. I guess if the woman is so hell-bent on him going to jail, she might have wanted to press charges earlier, though.

Quite true. Under law I am not allowed to perform a wedding ceremony for people who are under the influence of alcohol or drugs as one of the pre-requisites for a legal ceremony is consent and someone under the influence cannot give valid consent.
That's why it's always a good idea not to have your Stag the night before the ceremony.
 

KevinB

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Kevin's next queston -- WTF did we enroll him for - of this happened prior to him being sworn in?

My own personal opinion is that 1) a criminal record will not specifically exempt you from Afghan -- 2) BUT he rotting in a cell will.

  Without enough detail given on the facts its impossible to figure out the angles.



 

Journeyman

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Dissident said:
We just have to trust the courts to do the right thing.
:rofl: Oh......you were serious.  :-[


Freddy G said:
It's basically a way for women to cry "rape" after giving every indication they did want to have sex with the man they accuse
Yes, that's the rationale behind the law. ::)  Nice outlook.
 

mover1

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Anyone remember last month in Halifax. There was a guy who picked up a girl at the Palace or some such place. They talked a bit he walked her home and she gave him a BJ behind a dumpster.
She felt some pangs of guilt ran back to her hotel crying and charged the guy with rape. 

Story is she had a boyfriend and felt guilty for stooping so low as to give a random guy some noggin behind a dirty old dumpster. So natural conclusion to protect her virtue was to pull the assault card.

I think the dude got off in more ways than one. ;D

Not that it has any relevance, I just thought I would waste your time with this story.
 

Dissident

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Journeyman said:
:rofl: Oh......you were serious.  :-[

I was. re-reading it does make it sound pretty naive. I was trying to be more fatalist.
 

GUNS

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As to the results of this persons punishments,  for his  crime, we will have to wait. It will make for good read if this person's conviction for rape is with a conditional discharge and ends up in A'stan.

It would leave some Reg. Force and Res. Forces members scratching their heads as they cool the butts for 12 months of C&P for smoking a joint. ???

 

armyvern

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GUNS said:
As to the results of this persons punishments, if any,  for his alleged crime, we will have to wait. It will make for good read if this person is convicted of the alledged rape and then given a conditional discharge and ends up in A'stan.

It would leave some Reg. Force and Res. Forces members scratching their heads as they cool the butts for 12 months of C&P for smoking a joint. ???

Although I'd agree with you sentiments on this one; in all fairness those boys on C&P for smoking a joint obviously did so after they joined and signed the line saying they wouldn't.

Sadly, this guy seems to have 'grown up' after the assault for which he was convicted (very belatedly I might add) as it seems to be his only brush with the Justice System. 

How many serving members do we have who have been granted pardons etc prior to their enrolment? Sadly, if the chick in this scenario had pressed for charges 'sexual assault' (which is not rape) way back when this incident occur ed and prior to his enrolment in the CF...it wouldn't even be newsworthy. 
 

Edward Campbell

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It will be (should be) very hard for a convicted felon to get/keep a security clearance ... I hope.  Without knowing what jobs require what clearances I'm guessing that may make it hard to retain and employ him.
 

Teflon

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She had gone to bed alone after drinking a lot

My french sucks as well but the above statement if correct leads me to believe that no indications of consent where given but the article doesn't give much detail.

In the end it's sound like buddy is a dirt bag to me and I don't think I want that kind of person beside me over there - then again without more detail and a better translation who am I to judge?
 

niner domestic

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I can't make a direct comment on the actual proposed sentencing as that has to be decided by the parties involved.  However, there are some myths being perpetuated in the thread and those need to be addressed.

In Canada, we do not have felonies (that is an American term to draw the difference between a misdemeanor and serious crime).  We have offences that are either indictable or summarily decided.  We do not have felons, we have at the time of investigation, a suspect, at the time of the information for the charge being laid, an accused and during a trial, a defendant/accused and upon conviction, an offender.  Soldier boy is now an offender, he has been found guilty by a court of competent jurisdiction and is awaiting sentencing. 

In Canada, we do not have an offence of rape.  We have three types of offences that involve sexual assault.  We do not have the information as to which one of the three levels soldier boy was convicted of committing. 

In Canada, sexual assault offences of the first level is known as a hybrid offence and can be tried either as a summary offence or an indictable offence.  We do not know which way the Crown proceeded with the offence.  Because it was tried by judge alone, I am assuming it was summarily tried as a conviction of sexual assault can impose a sentence of greater than 5 years and that expressly sets out a trial by judge and jury.  Again, we do not know what section of the Criminal Code he was convicted under.  Depending on which way the offence was tried, will depend on the latitude of sentencing the Court has.  There will be a pre-sentence report done by all parties and in this case, the CF will be involved as to their opinion.  *Try to recall that NY judge that attempted to sentence pedophile to serving his time in Canada, it was appealed and overturned. 

In Canada, we do not require sexual assault victims to come forward immediately after an alleged assault.  We have no statute of limitation for crimes against the person although a court of competent jurisdiction will determine if the accused in an historic offence is capable and fit to stand trial (seen in the staying of charges in historic sexual assault incidents of young children who have now reached adulthood and the perpetrator is aged).  The SCC of was clear in civil suits that the clock really only starts ticking when the victim/plaintiff is fully apprised of the damage that the incidents have caused them.  The complainant may very well have provided the information to the police but the police/Crown felt that laying the information for a charge was not going to result in a likelihood of a conviction -  as long as the offender has not been charged under the same particulars for the same offence, the police/crown/complainant can sit on it for as long as they feel necessary.  (I've had to do that with child witnesses who have been sexually assaulted, proceeding to charging the suspect and the ensuing trial would not have yielded the likelihood of a conviction as the child was either too young, was shaky as a witness or it was not in the best interests of the child) Again , we don't know the details of this charge. 

In Canada, consent or lack thereof, is a necessary element in a sexual assault.  If this particular case got as far as a trial and a conviction, the issue of consent would have been long since dealt with to a standard beyond reasonable doubt.  If the offender argued that he honestly and reasonably believed there was consent, and he was still found guilty, then he was not able to establish that ground beyond a reasonable doubt.  However, if soldier boy feels he was unjustly convicted because of an error in law, or fact, he can use the same process any other Canadian who has been found guilty of an offence has, and file for an appeal.  The laws on what constitutes consent are pretty much settled here in Canada.  (Pappajohn, Seaboyer, Darrach, Ewanchuk, O'Connor, Mills to name a few)

In Canada, the offender's record of behavior since the time of the offence will only go to mitigate the extent of the severity of the sentence.  I doubt there is a Crown out there that hasn't seen the virtues extoiled of an offender at the pre-sentencing report.  In this case, it appears the defence is vying for a conditional discharge or even an absolute discharge and is using A'stan as the time period for which the sentence will run to in length.  Again, since we don't know which way the charge was preferred, it's difficult to say what the rationale is. 



 
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the soldier does not have to prove anything, he does not have to prove that he was given consent, the woman has to prove without any reason of a doubt, that she did not give consent to the man. And if she did give consent, it was not valid if she was intoxicated. Therefore it's he said, she said... and we all know that ends up.
 

scoutfinch

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Jesse Christie said:
Therefore it's he said, she said... and we all know that ends up.

Why don't you enlighten us on how these things 'end up'. 

I am sure you are the font of all knowledge... ::)
 

Bruce Monkhouse

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Jesse Christie said:
Therefore it's he said, she said... and we all know that ends up.

Yea, he walks.........................so is this experience or lack of knowledge speaking?
 

armyvern

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Jesse Christie said:
the soldier does not have to prove anything, he does not have to prove that he was given consent, the woman has to prove without any reason of a doubt, that she did not give consent to the man. And if she did give consent, it was not valid if she was intoxicated. Therefore it's he said, she said... and we all know that ends up.

Uhmm, did you miss the part where it said he was "convicted?" That conviction implies he did not have consent, and that is where it is now...and career-wise, it isn't over for him yet.
 

niner domestic

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Jesse, I can't quite allow you to continue to believe that your statement is entirely correct.  Yes, in Canada under the Charter, an accused does not have to make their case at trial - it is entirely up to the prosecution to prove beyond a reasonable doubt that the accused committed (or in some offences - omitted) an offence to which is set out on the particulars.  The accused for all intent purposes can sit quietly in the court room and nary utter a word or instruct their lawyer to raise a defence. We are, by virtue of the Charter, guaranteed the right to be tried and guilt proven beyond reasonable doubt by the state.  However, if a defence is raised such as  the defence of consent in a sexual assault then the onus shifts to the accused to prove that consent was in fact, gained.  Same goes if any accused raises issues or evidence that goes to their credibility, character or identity.  Once raised, then the proverbial gloves come off and the prosecution will do what they can to prove beyond a reasonable doubt that the accused did not/could/not or had not done what they are claiming to have done.  Shifts in the burden of proof occur all the time in law and it's been challenged to death in the courts.  Some have been held not to be constitutional while others were deemed demonstrably justified in a free and democratic society.  The consent defence has been upheld to be constitutional in the shift in the onus.  Now here's where it gets sticky for a defence counsel, should they introduce the defence of consent, then they are as much admitting that a sexual act has occurred.  If the said defence is not accepted by the court, then the accused will be found guilty as they have admitted committing the act in which they now find themselves before the court with.  So a simple case of he said/she said hardly ever plays out in the courts as you suggest.  Again, in Canada under the decision of R v. Stinchcomb, the Crown is required to disclose to the accused all evidence that will be brought before the court in the matter.  The defence will plan their trial strategy from those disclosures.   

As for the complainant, same rules apply, if the Crown raises issues or evidence of a prior sexual behaviour/conduct/history, then the defence has every right to challenge everything in cross examination.  R. v. O'connor was the SCC decision that set out that the defence can subpoena medical records of the complainant as well as records from any sexual assault centre/agency.  They were clear however that it is not a fishing trip for the defence and they must know that these records exist and not hope that something turns up. 

As a convicted offender of a sexual assault, soldier boy will now be on the sexual offender registry and if the current legislation goes through, he will be required to file his DNA sample.  He will of course, be eligible for a pardon in either 3 or 5 years (depending on whether it was a summary or indictable conviction). 





 
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i'm not defending what happened at all in fact, I hope that if this guy did take advantage of a girl that he pays the price, the point I was making is, even if he can prove that he was given consent, it isn't valid consent she was not legally able to give consent given the state she was in. So no I'm not saying he walks, I'm saying it doesn't matter what he says, cause it's he said she said, and I'm not insisting he walks, or that everytime a girl cries rape the man is innocent, just it's he said she said, and as for the comment about a past experience, yes a very close friend of mine was date-raped by someone she trusted, and I was the person who walked in on it happening and had to use force to stop it....
 

GAP

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he will be required to file his DNA sample.  He will of course, be eligible for a pardon in either 3 or 5 years (depending on whether it was a summary or indictable conviction). 

If this is the case, if he is granted a pardon, does his DNA remain in the registry past that point?
 
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