Thursday, February 15, 2018

Part 3 of my email with Gloria Galloway of the Globe and Mail "The Jurisdiction of the Military Police"

This is the final part of my discussion of the email between myself and Gloria Galloway of the Globe and Mail.

As was done previously, my points are underlined and her responses to my points are in italics.



5) The military justice system operates within some very big grey areas and can often overstep implied boundaries because there is no firm language in the National Defence Act telling it not to.

This is also something that is probably true but we have not proved. We have lots of conjecture about why the CNFIS investigation went the way it did, and why they did the investigation as opposed to another force. But that is just conjecture. We can’t write about conjecture.

 For the benefit of Ms. Galloway, here is what "conjecture" means.

con·jec·ture
kənˈjekCHər
noun
1.
an opinion or conclusion formed on the basis of incomplete information.
"conjectures about the newcomer were many and varied"
synonyms: speculation, guesswork, surmise, fancy, presumption, assumption, theory, postulation, supposition;



Madame Marie Deschamps was very clear when she released her report in May of 2015. In her report she said this:

" While the ERA met with a number of dedicated and knowledgeable members of the MP*, it also found that others were confused about the process, insensitive to the problem of sexual assault,  lacking training on the basic elements of the offence, and unaware of the available resources. One of the problems appears to be that, although policies and protocols are in place, the number of incidents the military system handles is far fewer than those in the civilian justice system. The various parties in the system are therefore caught in a deteriorating cycle: the way victims feel about their treatment by the military justice system feeds underreporting, and underreporting leaves the military police unable to develop and maintain appropriate skills to manage these sensitive and important cases."
*=(Military Police including the CFNIS)

Madame Marie Deschamps further said:

"The ERA is further concerned that less serious incidents of sexual assault are given inadequate attention and consideration. Participants in the Review commented that when victims have reported less severe assaults, including unwelcome touching of breasts, buttocks, etc., they have been told by MPs that these incidents would not be prosecuted in the civilian justice system."


So far as jurisdiction goes, Madame Marie Deshamps stated this:

"Under the shared jurisdiction, approximately half of the cases investigated by CFNIS are referred to the civilian justice system for a number of reasons, such as they involve cadets who are not subject to the CSD*, civilian victims, or incidents of family violence, etc. As a consequence, even if, as a matter of military police policy, the military justice system takes priority over the civilian system, the sharing of jurisdiction is a reality."
*=(Code of Service Discipline)

To re-iterate, the person that I initially accused of molesting me for 1-1/2 years was a military dependant, just as I was. Military dependants are considered civilians, we are not part of the Canadian Armed Forces.



Here is what the current version of the National Defence Act has to say about the jurisdiction of the Military Justice system including that of the Military Police.



"
DIVISION 1
Disciplinary Jurisdiction of the Canadian Forces
Application
55 to 59 [Repealed, 1998, c. 35, s. 17]

Persons subject to Code of Service Discipline
60 (1) The following persons are subject to the Code of Service Discipline:

(a) an officer or non-commissioned member of the regular force;

(b) an officer or non-commissioned member of the special force;

(c) an officer or non-commissioned member of the reserve force when the officer or non-commissioned member is

(i) undergoing drill or training, whether in uniform or not,

(ii) in uniform,

(iii) on duty,

(iv) [Repealed, 1998, c. 35, s. 19]

(v) called out under Part VI in aid of the civil power,

(vi) called out on service,

(vii) placed on active service,

(viii) in or on any vessel, vehicle or aircraft of the Canadian Forces or in or on any defence establishment or work for defence,

(ix) serving with any unit or other element of the regular force or the special force, or

(x) present, whether in uniform or not, at any drill or training of a unit or other element of the Canadian Forces;

(d) subject to such exceptions, adaptations and modifications as the Governor in Council may by regulations prescribe, a person who, pursuant to law or pursuant to an agreement between Canada and the state in whose armed forces the person is serving, is attached or seconded as an officer or non-commissioned member to the Canadian Forces;

(e) a person, not otherwise subject to the Code of Service Discipline, who is serving in the position of an officer or non-commissioned member of any force raised and maintained outside Canada by Her Majesty in right of Canada and commanded by an officer of the Canadian Forces;

(f) a person, not otherwise subject to the Code of Service Discipline, who accompanies any unit or other element of the Canadian Forces that is on service or active service in any place;

(g) subject to such exceptions, adaptations and modifications as the Governor in Council may by regulations prescribe, a person attending an institution established under section 47;

(h) an alleged spy for the enemy;

(i) a person, not otherwise subject to the Code of Service Discipline, who, in respect of any service offence committed or alleged to have been committed by the person, is in civil custody or in service custody; and

(j) a person, not otherwise subject to the Code of Service Discipline, while serving with the Canadian Forces under an engagement with the Minister whereby the person agreed to be subject to that Code.
"


Further, this is the arrest power of the Canadian Forces Military Police:

"
Authority to Arrest
General authority
154 (1) Every person who has committed, is found committing or is believed on reasonable grounds to have committed a service offence, or who is charged with having committed a service offence, may be placed under arrest.

Reasonably necessary force
(2) Every person authorized to effect arrest under this Division may use such force as is reasonably necessary for that purpose.

Powers of officers
155 (1) An officer may, without a warrant, in the circumstances described in section 154, arrest or order the arrest of

(a) any non-commissioned member;

(b) any officer of equal or lower rank; and

(c) any officer of higher rank who is engaged in a quarrel, fray or disorder.

Powers of non-commissioned members
(2) A non-commissioned member may, without a warrant, in the circumstances described in section 154, arrest or order the arrest of

(a) any non-commissioned member of lower rank; and

(b) any non-commissioned member of equal or higher rank who is engaged in a quarrel, fray or disorder.

Arrest of persons other than officers or non-commissioned members
(3) Every person who is not an officer or non-commissioned member but who was subject to the Code of Service Discipline at the time of the alleged commission by that person of a service offence may, without a warrant, be arrested or ordered to be arrested by such person as any commanding officer may designate for that purpose.

Powers of military police
156 Officers and non-commissioned members who are appointed as military police under regulations for the purposes of this section may

(a) detain or arrest without a warrant any person who is subject to the Code of Service Discipline, regardless of the person’s rank or status, who has committed, is found committing, is believed on reasonable grounds to be about to commit or to have committed a service offence or who is charged with having committed a service offence; and

(b) exercise such other powers for carrying out the Code of Service Discipline as are prescribed in regulations made by the Governor in Council.

"


Neither of these sections of the National Defence Act grant the Military Police or the Canadian Forces National Investigation Service the power to arrest civilians on defence establishments.

The National Defence Act is very clear in that the Military Police and the Canadian Forces National Investigation Service have jurisdiction over persons subject to the Code of Service Discipline. The Military Police and the CFNIS also have jurisdiction over civilians when they are enforcing very specific regulations such as the Defence Establishment Trespass Regulations and the Government Property Traffic Regulations. Neither of these regulations deal with child sexual assault.

The Supreme Court of Canada was very clear in its decision in Nolan vs. Regina from 1987 that "Peace Officer" under the Criminal Code of Canada is not a grant of power and does not make the military police a "secondary civilian police force". The Supreme Court was very clear that all the grant of "Peace Officer" status does is grant legal protection to those carrying out their duties as Military Police officers.

The Supreme Court ruling was also very clear that the Military Police could only assume jurisdiction within a reasonable distance of the base and within a reasonable amount of time after the alleged crime occurred. 30 years and 3,000 kilometres is probably pushing those limits to an extreme.

I even provided Gloria with a video of Lt.-Gen. Christine Whitecross answering a question posed to her by Randall Garrison during a Standing Committee on National Defence hearing. Randall Garrison is the Vice Co-Chair of the Standing Committee on National Defence. Randall asked Christine who had jurisdiction over matters of sexual assault of the children living on Canadian Forces bases. Lt.-Gen Whitecross said cases like this are always pushed over to the civilian authorities. Gloria Galloway questioned who this "Lt.-Gen. Whitecross" was and why she'd say that. Here's the thing Gloria, why ask me? Why not pick up the phone and give Lt.-Gen Whitecross a quick call and ask her?

Better yet, why not just do some research first?
Maybe call up a lawyer with military law experience.

So, to this day, no one has come up with an answer as to why the CFNIS has assumed jurisdiction over a case in which both the victim and the perpetrator are both civilians with no direct connection to the Canadian Armed Forces.

Your thoughts on this Ms. Galloway?
I think that it's more than just "conjecture" to say that the CFNIS involved themselves in something they had absolutely no business to do so. And the only reason why they did so is that there is nothing specifically prohibiting them from doing so.

And then people like Gloria wonder why nobody is buying newspapers subscriptions any longer. We, the consumers of the print media, want INVESTIGATIVE JOURNALISM. Which sadly seems to be very sorely lacking in this country at the moment. We want our journalists to ask the hard questions that need asking. We don't want our journalists to say that something is "conjecture" just because they're too comfy in their current salary range and don't want to rock the boat.

Who knows, one day we might have investigative journalism again one day in this country.

But that day isn't now.