Monday, June 10, 2019

About that high acquittal rate in Canada

Gloria Galloway, writing in The Globe & Mail, reports here on the jaw-dropping acquittal rate in Canadian court-martial sexual assault cases. She refers to a forthcoming Dalhousie Law Journal article by Prof. Elaine Craig, an advance version of which can be found here. Her abstract:
Although the Canadian military has been conducting sexual assault trials for over twenty years, there has been no academic study of them and no external review of them. This review of the military’s sexual assault cases (the first of its kind) yields several important findings. First, the conviction rate for the offence of sexual assault by courts martial is dramatically lower than the rate in Canada’s civilian criminal courts. The difference between acquittal rates in sexual assault cases in these two systems appears to be even larger. Since Operation Honour was launched in 2015 only 1 soldier has been convicted of sexually assaulting a female member of the Canadian Armed Forces by Canada’s military legal system. (One other conviction was overturned on appeal and is pending before the Supreme Court of Canada.) In addition, plea bargains in which accused individuals can avoid Criminal Code convictions by pleading guilty to military specific discipline offences like drunkenness and disgraceful conduct have been used in some cases involving aggressive sexual attacks. Sanctions for even these serious sexual attacks involved fines and reprimands. Last, the decisions of military judges in some cases suggest a critical failure to recognize the Canadian military’s culture of hostility to women documented in the Deschamps Report. Together these findings raise the following question: regardless of the outcome of the current constitutional challenge to courts martial proceedings in Canada (in R v Beaudry), should the military’s legal system continue to maintain jurisdiction over sexual assault cases?

1 comment:

  1. Alas, inspite of the improvements to the UK MJS, with recent legislation (The Armed Forces Act 2006 (Amendment of Schedule 2) Order 2018) essentially moving sexual assault into Schedule 2 (triable by CM only), there remains the same problem as related above, of COs being able to fly sexual offences under the radar by disposing of them as drunkenness or Conduct prejudicial to good order and discipline.

    Until such time as there is a HR compliant summary justice system, there will be huge scope for injustice and abuse. Unfortunately, the UK is being distracted by argument over majority decisions at trial,when the evidence shows that conviction rates are similar in UK military and civilian systems, in addition to the real problem of finding sufficient personnel to constitute CM boards at a time when there is a manning crisis. Moreover, that argument also refuses to acknowledge Appeal Court decisions, such as Twaite, and ECHR jurisprudence on majority verdicts. All of this is being done while ignoring an absolutely unassailable fact that, since Findlay (and the flurry of cases that were challenged in the ECtHR in the wake of that decision) there has been no human rights challenge, let alone a successful one, to the British court martial system.

    Instead, focus should be on the unfair summary system, where the CO is prosecutor and judge and jury, where the right to counsel is denied, where informed advice on whether to elect trial by court martial is absent, where inadmissible and hearsay evidence is given more or less free reign, where evidence cannot be tested by effective cross-examination, and where there is peer pressure to "take it on the chin" rather than challenge the CO's authority. In the UK, that is where in my view, after 25 years as a military prosecutor, I believe the need for change is greatest. We call upon our men and women to do their duty in extraordinary and dangerous places and circumstances. The least we can do is ensure that their basic human rights are respected.


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