Operation HONOUR discussion

[RCDtpr]

The reality when it comes to sexual assault type investigations is, sadly, the investigator is put in a bad spot and usually wears it quietly after the fact when things go south.

The MP branch right now is plagued with trying to police an organization in which it comes from the top levels that sexual related misconduct be dealt with.  Far too often, myself or my peers (the low-mid rank peasants) would investigate a matter and report up that there was not enough grounds to proceed.  In my current police service, when an investigator says that, that’s it and the matter is done.

The MP on the other hand, is plagued by micromanagement, incompetence, and yes men at the top and, as such, investigators are often ordered by Capt/Maj/MWO Bloggins to go lay the charge (likely because they don’t want to risk PER points if someone has uncomfortable questions as to why a matter was deemed concluded.)  Peoples lives are in turn ruined and turned upside down (see LCol Stalker) and the investigator is labelled as incompetent even though he/she recommended not to move forwarded but was ordered to anyways.  Of course, Capt/Maj/MWO Bloggins doesn’t take responsibility for it and throws the investigator under the bus.

I’m sure I come off as bitter in this post, and that couldn’t be further from the truth.  I enjoyed my time in the branch and left for no reason other than some geographic stability.  Having said that, I’m not afraid to call a spade a spade and I’m concerned the direction the Military Police is heading when it comes to how it’s run and how this sexual misconduct epidemic is being handled.

 

[garb811]

So, if I buy into the idea that we shouldn't be making the names of those who have been charged with sexual assault public, what's the solution? Just not publish names of people who are charged until the court martial is published (which is a requirement)? What about the problem caused when the person is subsequently found not guilty, isn't the damage to their reputation just as bad because they are still simply accused at that point? That likely wouldn't work anyway because one of the usual defence reporters would just put in a standing monthly ATIP for any sexual assault charges and the names would still come out.

For what it is worth, this is what the courts have had to say about publishing the names of those who have been simply charged and I'm inclined to agree with the reasoning, particularly since we in the CAF seem to like to pride ourselves on our logical reasoning skills (emphasis is mine):

R v Sauve
...
[27]          It is well-established that a statement that a person has been charged with an offence, as opposed to a statement that a person is guilty of an offence, is deemed not to lower that person in the estimation of a reasonable person, because a reasonable person “would be mindful that an accused is presumed innocent until proven guilty” (Miguna v. Toronto (City) Police Services Board, [2004] O.J. No. 2455 at par. 6 (On. Sup. Ct. J.), aff’d Miguna v. Toronto (City) Police Services Board  [2005] O.J. No. 107 (On. C.A.); see also Hakim v. Laidlaw Transit Ltd., 156 A.C.W.S. (3d) 585, [2007] O.J. No. 1318 at par. 16 (On. Sup. Ct. J.)).

[28]          The Zoominfo article states that Mr Sauvé has been charged, and that a bail hearing has been held. It does not say that he has been found guilty of anything; indeed a well-informed reader would know that a bail hearing precedes a trial and could only conclude that no finding of guilt can have been made. Thus, as a matter of law, I am of the opinion that the article is not a defamatory statement.
...

Charges being laid and then withdrawn is not a uniquely CAF problem. It can even happen with an "all star" investigation and prosecution team. IIRC, the entire case imploded rather spectacularly on this one...:

Two sexual assault charges withdrawn in Ghomeshi case
Two sexual assault charges are being withdrawn in the case against disgraced former broadcaster Jian Ghomeshi.

In an appearance Tuesday at a Toronto court, a Crown lawyer said the charges were being withdrawn because there was no reasonable prospect of conviction on them.

...
The MP on the other hand, is plagued by micromanagement, incompetence, and yes men at the top and, as such, investigators are often ordered by Capt/Maj/MWO Bloggins to go lay the charge (likely because they don’t want to risk PER points if someone has uncomfortable questions as to why a matter was deemed concluded.)  Peoples lives are in turn ruined and turned upside down (see LCol Stalker) and the investigator is labelled as incompetent even though he/she recommended not to move forwarded but was ordered to anyways.  Of course, Capt/Maj/MWO Bloggins doesn’t take responsibility for it and throws the investigator under the bus.
...

LCol Stalker is a particularly bad example to try to make this point with, unless you are insinuating you have some kind of insider knowledge on the case. The investigation and arrest pre-date Op HONOUR, the prosecutor was not military, his charges were laid downtown and he was ordered to stand trial after the prelim... He has also since been promoted and posted to a NATO as the deputy chief of major operations.

 

[FJAG]

So, if I buy into the idea that we shouldn't be making the names of those who have been charged with sexual assault public, what's the solution? ...

Not that this is THE solution but I note that in news articles in Germany there is a greater balance in protecting an individual (even an accused's) privacy which stems from guideline 8.1 of the Press code. See here: https://www.presserat.de/fileadmin/user_upload/Downloads_Dateien/Pressekodex13english_web.pdf

More often than not individuals are identified as "a 38 year old man" or "Heinz B."

Interestingly enough, however, since the massive influx of migrants, several states, in their police reports, are now identifying the accused's national status whether relevant to the case or not. See here for example:

https://www.dw.com/en/police-in-western-german-state-to-reveal-nationality-in-all-crimes/a-50177056

:cheers:

 

[ballz]

So, if I buy into the idea that we shouldn't be making the names of those who have been charged with sexual assault public, what's the solution?

I can't speak for anybody else but I didn't suggest the names of the accused shouldn't be made public (I also didn't bring this into an MP-related thing, because it's not). As I said, the bar for laying a charge is low. It should be at least balance of probabilities, or even reasonable prospect for conviction.

At the end of the day, if there's a reasonable prospect of conviction, I can at least guess that whether you are guilty or not, you're in that court room for a reason that are a result of your own actions, and I don't think the public should protect your from your own actions even if they aren't determined to be criminal.

But at "reasonable grounds to believe," a couple of corroborating witness statements which really haven't been tested at all for credibility and you've got sexual assault charges that were not a result of anything in the accused's control. I'm sure all the LEOs are going to come tell me that's not true, and all I can say is I know the exact case I can refer you to where that is exactly what happened. If the burden of proof for charges was "reasonable prospect of conviction" this particular incident would not result in the accused having to get his name legally changed after having 4 sexual assault charges against 3 different women plastered all over the national news.

 

[garb811]

FJAG:

That used to be the way it was done but it was changed at some point in the 2000s I believe:

Charges laid - assault, uttering threats, using provoking speech and conduct to the prejudice of good order and discipline

On May 3, the Canadian Forces National Investigation Service (CFNIS) laid charges of assault, uttering threats, using provoking speech and conduct to the prejudice of good order and discipline against a former petty-officer second class of HMCS MONTCALM, a naval reserve unit located in Quebec City. The charge results from an incident, which allegedly occurred in Halifax in June 1998 during the Nova Scotia International Tattoo.
...
When the CFNIS lays charges, names can be released only if these charges are laid in civilian courts. This is done by way of an information sworn before a judicial official and filed as a court document. In the case of charges laid in the military system, charges are not laid under oath before a judicial official, nor are charge reports filed as public court records. As such, names of individuals charged under the National Defence Act is information covered by the Privacy Act, and can not be released to the public unless the Privacy Commission Office gives specific authorization.

 

[Brad Sallows]

>because a reasonable person “would be mindful that an accused is presumed innocent until proven guilty”

That only works if most people are reasonable, or if "an accused is presumed innocent until proven guilty" is hammered home loudly and repeatedly and the people who act otherwise are ridiculed, shunned, and argued into insensibility.  My impression is that there are a lot of loud, unreasonable people dominating the issue.

 

[ballz]

Regardless of innocent until proven guilty, I would say an employer who googles the names of applicants and finds one has been charged with sexual assault in the past is going to be pretty "reasonable" in throwing out that application, even if the charges were dropped the following day because Crown prosecutor looked at the evidence and decided there was no chance of conviction.

 

[Jarnhamar]

https://www.canada.ca/en/department-national-defence/news/2019/09/sexual-assault-charge-withdrawn-against-military-member-in-winnipeg-mb.html

Sexual assault charge withdrawn against military member in Winnipeg, MB.

 

[OldSolduer]

https://www.canada.ca/en/department-national-defence/news/2019/09/sexual-assault-charge-withdrawn-against-military-member-in-winnipeg-mb.html

Sexual assault charge withdrawn against military member in Winnipeg, MB.

Interesting.

 

[mariomike]

In the news,

CTV News

September 30, 2019

VICTORIA -- A former Canadian Armed Forces corporal has been found guilty of multiple charges, including sexual assault and voyeurism, after investigators say they found several videos in his possession, including video of a sex assault that occurred at CFB Esquimalt in 2011.
https://vancouverisland.ctvnews.ca/former-military-corporal-found-guilty-in-esquimalt-sex-assault-1.4617346#_gus&_gucid=&_gup=twitter&_gsc=2LisF1K