Military Justice

[dapaterson]

Interesting Court Martial appeal judgement on deviation from a joint sentencing submission.

Court Martial Appeal Court of Canada

Court Martial Appeal Court of Canada

decisions.cmac-cacm.ca

 

[OldSolduer]

Indeed

 

[MJP]

Interesting Court Martial appeal judgement on deviation from a joint sentencing submission.

Court Martial Appeal Court of Canada

Court Martial Appeal Court of Canada

decisions.cmac-cacm.ca

The detention vs imprisonment debate was interesting and I agree that for rehabilitation purposes for folks that will stay in the CAF detention is the better option.

I am hopeful though that the CAF does an admin review and administratively releases Corporal El-Zein as that is someone who should no longer continue to wear the uniform.

 

[SeaKingTacco]

The detention vs imprisonment debate was interesting and I agree that for rehabilitation purposes for folks that will stay in the CAF detention is the better option.

I am hopeful though that the CAF does an admin review and administratively releases Corporal El-Zein as that is someone who should no longer continue to wear the uniform.

Why do you say that? That was not the conclusion of his chain of command or the trial judge.

Do you have better information than they do? Has this person ever been your subordinate?

I get it- the guy was found guilty of sexual assault and I am not defending him, but you seem to be arguing facts not in evidence.

 

[MJP]

Why do you say that? That was not the conclusion of his chain of command or the trial judge.

Do you have better information than they do? Has this person ever been your subordinate?

I get it- the guy was found guilty of sexual assault and I am not defending him, but you seem to be arguing facts not in evidence.

Because any job where one is found guilty of sexual assault would fire the focker. That we choose to keep ppl like this on speaks volumes to our values. This isn't new we continually keep ppl that would in any other industry (other than our own public service) would have fired years ago.

I don't need to have more info or have this person as a subordinate to know I would recommend their release regardless of how great they are.

 

[SeaKingTacco]

Because any job where one is found guilty of sexual assault would fire the focker. That we choose to keep ppl like this on speaks volumes to our values. This isn't new we continually keep ppl that would in any other industry (other than our own public service) would have fired years ago.

I don't need to have more info or have this person as a subordinate to know I would recommend their release regardless of how great they are.

Ok. Got it.

The expert witness said he had good prospects for rehabilitation. Which the judge accepted. But you know better? Having never met the man?

I actually don’t know that “any other industry” would have fired him years ago.

Again, I am not defending his actions or his crime. He could be Satan incarnate or he could a good dude who had an uncharacteristic lapse in judgement that he will carry for the rest of his life. I don’t know. And (this is the key point) neither do you. I am kind of reacting to an internet tendency to judge people and events from a distance and pass categoric judgement, even with no direct knowledge of the events and with no skin in the game.

It may be a moot point anyway- for all we know, Admin action is being taken against him, in the background.

 

[MJP]

Ok. Got it.

The expert witness said he had good prospects for rehabilitation. Which the judge accepted. But you know better? Having never met the man?

I actually don’t know that “any other industry” would have fired him years ago.

Again, I am not defending his actions or his crime. He could be Satan incarnate or he could a good dude who had an uncharacteristic lapse in judgement that he will carry for the rest of his life. I don’t know. And (this is the key point) neither do you.

It may be a moot point anyway- for all we know, Admin action is being taken against him, in the background.

You know no industry/workplace that would fire a person convicted of sexually assaulting another employee? Most wouldn't even wait for the trial.

I don't care a whit about his continued ability to serve after rehabilitation, they may be the best thing since sliced bread but IMHO we should not continue to employ them. Just so it is clear, this person forced themselves upon another CAF member sexually, we are not talking about some shitty sexualized comment or other minor momentary lapse in judgement. If that was the case and with better context/background I can buy the argument to have the member continue their service.

Again

(this is the key point)

I don't need to know them or met them to know that they don't deserve to continue to serve. They sexually assaulted one of their peers, we the CAF should not continue to employ folks that conduct such activities. I would recommend their removal from CAF service all day every day and in every way.

If this person was posted to your unit and sexually assaulted someone in your family you would be ok interacting with them and serving with them day in and day out?

It may be a moot point anyway- for all we know, Admin action is being taken against him, in the background.

That is hopefully the case and given that admin reviews are protected we may never know unless the media picks up the story and the CAF confirms what has happened.

The RAF apparently has similar issues. And a defense of "I'm not flexible enough to put my balls on the bar" was unsuccessful.

RAF officers ‘must stop exposing themselves to women’ says military judge

Jane England dismisses Richard Aldridge over incident at military party near Amesbury, Wiltshire

www.theguardian.com

While they are working on a different set of laws the RAF court martial system, recognizes that conduct well below the bar set by Corporal El-Zein merits dismissal. Not sure of their admin processes so it may have been moot for the Capt anyway but IMHO that is the correct way to deal with folks who have committed sexualized crimes. I realize that our courts are working off of precedence so I am not arguing about the sentence given though, rather I just happen to think the RAF has the right level of sentence for offences of that nature. Lots at play though in the legal realm and it definitely isn't my forte hence my focus on my opinion on how the CAF should deal with Corporal El-Zein administratively.

 

[Blackadder1916]

The RAF apparently has similar issues. And a defense of "I'm not flexible enough to put my balls on the bar" was unsuccessful.

RAF officers ‘must stop exposing themselves to women’ says military judge

Jane England dismisses Richard Aldridge over incident at military party near Amesbury, Wiltshire

www.theguardian.com

While they are working on a different set of laws the RAF court martial system, recognizes that conduct well below the bar set by Corporal El-Zein merits dismissal. Not sure of their admin processes so it may have been moot for the Capt anyway but IMHO that is the correct way to deal with folks who have committed sexualized crimes. I realize that our courts are working off of precedence so I am not arguing about the sentence given though, rather I just happen to think the RAF has the right level of sentence for offences of that nature. Lots at play though in the legal realm and it definitely isn't my forte hence my focus on my opinion on how the CAF should deal with Corporal El-Zein administratively.

Some info about the UK's Judge Advocate General (who is a civilian judge) is found here

Judge Advocate General - Courts and Tribunals Judiciary

Find out more about this independent judicial role

www.judiciary.uk

Among the links to Practice Memoranda to be found on the JAG's page is GUIDANCE ON SENTENCING IN THE SERVICE COURTS

https://www.judiciary.uk/wp-content/uploads/2023/07/Guidance-on-sentencing-in-the-Court-Martial--Version-6.pdf

This excerpt discusses the sentence of Dismissal

4.9 Dismissal / Dismissal with Disgrace
4.9.1 Availability of the sentence of dismissal or dismissal with disgrace Any Service person who is currently serving may be sentenced to dismissal or dismissal with disgrace. A commissioned officer who has left the Service by the time of sentence (for example on retirement) may be dismissed or dismissed with disgrace, which will mean they forfeit their commission. An offender who is a member of the reserve forces may be dismissed or dismissed with disgrace. There is no power to dismiss a noncommissioned officer who has already left the Service by the time of sentence. The Summary Appeal Court, the Service Civilian Court and the Commanding Officer at a Summary Hearing cannot impose a sentence of dismissal. A suggested approach to considering a sentence of dismissal is at Annex A.

4.9.2 Requirement to dismiss if passing a Service Community Order A Service Community Order can only be imposed if the person being sentenced is on the same occasion sentenced to dismissal or dismissal with disgrace.102

4.9.3 The test that must be satisfied A Service Court may not pass a sentence of dismissal or dismissal with disgrace in respect of an offence unless it is of the opinion that the offence, or the combination of the offence and one or more offences associated with it, was serious enough to warrant such a sentence.103 In forming any such opinion, a court must take into account all such information as is available to it about the circumstances of the offence and any associated offence, including any aggravating or mitigating factors.104 The Court Martial must not pass a sentence of dismissal or dismissal with disgrace on an offender who is not legally represented in that court unless having been informed of their right to apply for legal representation and having had the opportunity to do so, they have refused or failed to apply.105

And in the aforementioned Annex A, it expands on dismissal as a sentence particularly for sexual assault offences.

b. The defendant’s offending is such that it has incurably severed the bond of mutual trust that must exist between them and their Service colleagues. Theft or fraud committed against fellow Service personnel is likely to forever break that bond.140 Historically, dismissal has been inevitable in cases of serious sexual assault in all but the most exceptional cases141 and, given the prevalence of such offending142, its effect on operational effectiveness and the need for deterrent sentences, must be considered in every case, no matter how minor. More recently, policy issued by the Ministry of Defence143 makes it clear that those found guilty of sexual offences are to be administratively discharged from service. A sexual assault, even an otherwise minor one, committed against another Serviceperson in their accommodation is an example of such an offence which forever severs that bond, such that the defendant’s continued service is untenable. Current detailed guidance on sentencing for sexual offences can be found in Part 2 to this Guide.

 

[QV]

Some people want to take the "burn the witch at the stake" approach. Some people have more faith in humanity. There are degrees to bad behavior. This was a sexual assault but it wasn't rape.

 

[MJP]

Some info about the UK's Judge Advocate General (who is a civilian judge) is found here

Judge Advocate General - Courts and Tribunals Judiciary

Find out more about this independent judicial role

www.judiciary.uk

Among the links to Practice Memoranda to be found on the JAG's page is GUIDANCE ON SENTENCING IN THE SERVICE COURTS

https://www.judiciary.uk/wp-content/uploads/2023/07/Guidance-on-sentencing-in-the-Court-Martial--Version-6.pdf

This excerpt discusses the sentence of Dismissal


And in the aforementioned Annex A, it expands on dismissal as a sentence particularly for sexual assault offences.

Sounds like they have the right idea both legally and administratively

The defendant’s offending is such that it has incurably severed the bond of mutual trust that must exist between them and their Service colleagues. Historically, dismissal has been inevitable in cases of serious sexual assault in all but the most exceptional cases141 and, given the prevalence of such offending142, its effect on operational effectiveness and the need for deterrent sentences, must be considered in every case, no matter how minor. More recently, policy issued by the Ministry of Defence143 makes it clear that those found guilty of sexual offences are to be administratively discharged from service. A sexual assault, even an otherwise minor one, committed against another Serviceperson in their accommodation is an example of such an offence which forever severs that bond, such that the defendant’s continued service is untenable

 

[Happy Guy]

Some people want to take the "burn the witch at the stake" approach. Some people have more faith in humanity. There are degrees to bad behavior. This was a sexual assault but it wasn't rape.

Full disclosure. When I was serving I was qualified sexual harassment advisor and investigator.

I would suggest that all of you place yourself in the position of the respondent with respect to any sexual assault or rape case. Both are physical, in which the complainant (victim) was physically assaulted. The degree of violence in terms of aggressiveness, where the victim was touched and how often should not be minimized - lets say the victim was groped in the breasts and genitals vice when the victim suffered bruises and cuts in these areas. Both cases can be extremely traumatic to the victim. For those of you who are fathers of daughters, imagine if your daughter was violated this way? How would you feel? What if it was your young son who was touched inappropriately? What if it was your spouse/girlfriend/boyfriend?

Most man and women would not welcome unwanted sexual advances.

We need to change the culture. Sexual assault is violence and control over another.

The same goes with harassment - bad behaviour. What you may consider a bit harmless fun could be damaging to the victim (complainant).

 

[dapaterson]

Nah. Ignore the behavior, promote the assailant repeatedly despite knowledge of the incident, make them CDS.

 

[ballz]

I'm trying to imagine a scenario where someone at our firm goes for a walk at lunch with a female, pulls her into the trees at the park and grabs her by the p*ssy, and doesn't get fired when she complains.

Also trying to think of a scenario where they don't get actual jail time.

Also trying to think of a scenario where we keep the guy and the females don't all quit overnight. For the firm, that's the only thing they need to hear to fire one person who made a bad decision, they're not going to lose 40% of their employees all because "this guy deserves a second chance." He can go somewhere else for a fresh start.

People in the CAF are so far removed from civil society they have a completely different sense of normalcy and don't even realize it.

His personal problems are not important. The CAF needs to look out for its own best interests, like businesses look out for their own interests. Being a bleeding heart for everyone who fails to meet the standard is not doing the CAF any favours. The CAF shows very little loyalty to the 90-95% of the people who do good work for it, and then an insane amount of loyalty to the 5-10% who cause 90-95% of the problems... and then no one can figure out why there is a retention issue.

 

[QV]

Full disclosure. When I was serving I was qualified sexual harassment advisor and investigator.

I would suggest that all of you place yourself in the position of the respondent with respect to any sexual assault or rape case. Both are physical, in which the complainant (victim) was physically assaulted. The degree of violence in terms of aggressiveness, where the victim was touched and how often should not be minimized - lets say the victim was groped in the breasts and genitals vice when the victim suffered bruises and cuts in these areas. Both cases can be extremely traumatic to the victim. For those of you who are fathers of daughters, imagine if your daughter was violated this way? How would you feel? What if it was your young son who was touched inappropriately? What if it was your spouse/girlfriend/boyfriend?

Most man and women would not welcome unwanted sexual advances.

We need to change the culture. Sexual assault is violence and control over another.

The same goes with harassment - bad behaviour. What you may consider a bit harmless fun could be damaging to the victim (complainant).

Fair. I should have done more than quickly skim the article before commenting. I'm overly sensitive to the "march the guilty bastard in" aspect of the CAF.

 

[Halifax Tar]

I'm trying to imagine a scenario where someone at our firm goes for a walk at lunch with a female, pulls her into the trees at the park and grabs her by the p*ssy, and doesn't get fired when she complains.

Also trying to think of a scenario where they don't get actual jail time.

Also trying to think of a scenario where we keep the guy and the females don't all quit overnight. For the firm, that's the only thing they need to hear to fire one person who made a bad decision, they're not going to lose 40% of their employees all because "this guy deserves a second chance." He can go somewhere else for a fresh start.

People in the CAF are so far removed from civil society they have a completely different sense of normalcy and don't even realize it.

His personal problems are not important. The CAF needs to look out for its own best interests, like businesses look out for their own interests. Being a bleeding heart for everyone who fails to meet the standard is not doing the CAF any favours. The CAF shows very little loyalty to the 90-95% of the people who do good work for it, and then an insane amount of loyalty to the 5-10% who cause 90-95% of the problems... and then no one can figure out why there is a retention issue.

@ballz well said.

 

[KevinB]

Ok. Got it.

The expert witness said he had good prospects for rehabilitation. Which the judge accepted. But you know better? Having never met the man?

Quote from the transcript: Appellant was rated by the actuarial instrument known as “Static-99R” as an average risk to reoffend, although Dr. Vaillancourt personally assessed the Appellant’s risk as rather low.
Which to me seems rather at odds with themselves. Furthermore average risk to reoffend is significantly high in sexual offenses, compared to most other crimes recidivism rates.

I actually don’t know that “any other industry” would have fired him years ago.

Seriously? That would be legitimately any large corporation with a functioning HR...

Again, I am not defending his actions or his crime. He could be Satan incarnate or he could a good dude who had an uncharacteristic lapse in judgement that he will carry for the rest of his life. I don’t know. And (this is the key point) neither do you. I am kind of reacting to an internet tendency to judge people and events from a distance and pass categoric judgement, even with no direct knowledge of the events and with no skin in the game.

It may be a moot point anyway- for all we know, Admin action is being taken against him, in the background.

I don't get how the CM Appeals Court ruled this way -- as part of their justification contradicts what they use as justification to reverse the sentencing.
In this case, the Crown’s submission on sentence, although jointly made with the Appellant, sought detention rather than imprisonment. The Military Judge did not advise the parties that he was considering exceeding the Crown’s recommendation by imposing imprisonment rather than detention, nor did he give them a second opportunity to argue their joint submission on sentence. The Military Judge said that there would be no point in doing so because the parties had already been provided with an opportunity to discuss the difference between their joint submission (detention) and the sentence he was considering imposing (imprisonment).

It seems like the Trial Judge had (correctly IMHO) rejected the CFSPDB option and opted for Imprisonment - and the Crown and Defence hadn't taken that on board as a result the Judge didn't see the need to go into deeper (and there is SCC case law on that already), but the CMA ruled he didn't discuss it enough with them.
So the only reason he's now going to Club Ed, and not Civilian Jail, is because the Judge in the case initially didn't say, "hey Fucko's no, that's not going to fly", a second time to them...

 

[FJAG]

So the only reason he's now going to Club Ed, and not Civilian Jail, is because the Judge in the case initially didn't say, "hey Fucko's no, that's not going to fly", a second time to them...

Essentially that's correct because that's where the precedents steered them. That said, I can't see why they simply didn't send it back to the sentencing judge to do a do over and get it right. That's a possibility in cases like this albeit that appeal courts do have the ability to substitute the "proper" sentence when they find error in the court below.

On the "what would industry do" standard I tend to agree that in most organizations this guy would be gone. That said there's the university crowd who have their own way of dealing with these types of situations which often turn to a "don't ruin a life" consideration. I sometimes think that universities with all their blooming hormones and hierarchical professor structure are more analogous to the CAF than industry in general.

 

[WestIsle]

Quote from the transcript: Appellant was rated by the actuarial instrument known as “Static-99R” as an average risk to reoffend, although Dr. Vaillancourt personally assessed the Appellant’s risk as rather low.
Which to me seems rather at odds with themselves. Furthermore average risk to reoffend is significantly high in sexual offenses, compared to most other crimes recidivism rates.

I mean the "average risk to offend" rating isn't surprising for this guy considering how he as a new troop just asks his more senior coworker on a domestic operation if they want to have sex for which they give them the old "no thanks I don't really know you that well, only for them to grab them and molest them in a crop of trees.

I know that I wouldn't want him anywhere near anyone in the CAF unsupervised. Shuttering to think that this guy could end up a MCpl and teaching on a course at some point.

 

[OldSolduer]

Serious question here:

If one is sentenced to "detention" is that The DB in Edmonton?

If one is sentenced to "imprisonment" is that a civilian facility?

 

[KevinB]

Serious question here:

If one is sentenced to "detention" is that The DB in Edmonton?

If one is sentenced to "imprisonment" is that a civilian facility?

Correct.