Military Plea Bargains and other things.

Plea bargains are nothing new in the criminal justice system. The Crown makes deals all of the time. Plea guilty for a lesser charge, avoid the possibility of a substantial prison sentence, and get a shorter sentence, if any.

Sometimes plea deals work really good in the case of a defendant. Take Karla Homolka and the Crown’s “deal with the devil” for example. Sure, it got Paul Bernardo put away for life, but as it turned out Karla wasn’t innocent either.

The following paragraphs are taken from the Final Report of the External Review Authority.

As with sexual harassment, there is very poor collection of data regarding incidents of sexual assault in the CAF. Since sexual assaults go widely unreported, the data does not in any way reflect the actual rate of occurrence. Even where complaints are laid, the fact of a sexual assault will often be buried in the court record. For example, if the accused pleads guilty to an alcohol related charge, or to conduct to the prejudice of good order and discipline, only a careful review of the sentence will, in some cases, indicate that the conduct or underlying issue involved acts of a sexual nature.

Tracking the occurrence and outcome of incidents of sexual assault is essential to determine if the CAF’s policies are functioning to improve the conduct of its members, both on an individual and systemic basis. Yet in the case of sexual assault in the CAF, the relevant data is missing. While it is true that data on sexual assault is difficult to gather, the CAF needs to understand how incidents are impacting its members, and victims are entitled to make an informed decision about whether or not to disclose a complaint. The ERA heard from participants that a number of data banks are in place in the CAF that could be used to improve data collection. For example, if appropriate coding systems were in place, the CFHIS, which is currently used to report injuries, could be refined to also reflect the causes of the injuries—including sexual assaults. Unfortunately, this is not taking place and the failure to keep data on complaints of sexual assault significantly weakens the accountability of the chain of command and impedes the CAF’s ability to prevent future sexual assaults from occurring.”

It’s no secret that the Canadian Armed Forces Military Police Group has problems tracking sexual assaults. My opinion is that this is not accidental. This lack of proper tracking actually serves the needs of the Canadian Forces Chain of Command. If there’s no data, then there’s obviously no problem, eh?

And if the Canadian Forces are having this much difficulty tracking adult sexual assaults, just imagine how much difficulty they are having tracking sexual assaults involving children living in the defence community.

The ex-JAG lawyer that I spoke with a few weeks ago was under the impression that ALL sexual assaults involving children were always prosecuted through the civilian courts. When I sent him a copy of CFSIU DS-120-10-80 it was apparent by his response to me that he was caught off guard.

Back on February 9th 2015 I had a brief telephone conversation with Lt. Col. David Antonyshyn of the Office of the Judge Advocate General. Mr. Antonyshyn was of the opinion that domestic matters within the PMQs were always handed off to the outside civilian justice system.

Even Lt. Gen. Christine Whitecross told the Standing Committee on National Defence that matters involving child sexual abuse are always handed off to the outside civilian authorities.

But, it would appear that this is not always the case.

And Captain Father Angus McRae wasn’t the only member of the Canadian Armed Forces to have been given a courts martial for sexual crimes against children. I have a couple of CMAC findings in which Canadian Forces personnel who were subject to a courts martial, later appealed their sentences.

The Canadian Forces military justice system was an absolute mess prior to 1998. Commanding officers had far too much sway. Base commanders ruled like kings. The military police and the CFSIU were only independent of the chain of command in fairy tale stories.

So, I have absolutely no doubt in my mind that there were a significant amount of child sexual abuse cases prosecuted “in-house” by way of courts martial. And I have absolutely no doubt in my mind that there were a significant amount of child sexual abuse cases plead down to “disgraceful conduct” or “conduct to the prejudice of good order and discipline”.

Disgraceful conduct covers Section 92 to Section 98 of the National Defence Act. Section 97 “Drunkenness” has often been used to “excuse” the bad behaviour of service personnel who obviously only committed their offence because they had one too many drinks due to “stress”.

“Conduct to the prejudice of good order and discipline” covers Sections 72 to 128 of the National Defence Act. Basically this allows for a person to be dismissed with disgrace from Her Majesty’s service for being drunk or insubordinate.

By allowing a member of the Canadian Forces to cop a plea to “disgraceful conduct” or “conduct to the prejudice of good order and discipline” the Canadian Forces get to sweep the matter under the rug, and sweep the offender out the door where the offender now becomes someone else’s problem.

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