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Snag in buggery case: military police had no jurisdiction in 1972

Questions about the legality of charges against retired military chaplain Roger Bazin go beyond the application of Canada's now-defunct buggery law.

That's because, at the time of the offence in 1972, Canada's military police were not able to arrest or prosecute in cases of sexual assault, as officials with the Canadian Forces now admit.

"At the time of the offence allegedly committed by retired Brigadier-General Bazin, the military justice system did not have jurisdiction over this type of offence," a spokesperson told Xtra.

In other words, military police swear that they are pressing ahead with a charge of buggery because it's consistent with the laws of 1972, but if they were playing by the 1972 rulebook, they would not have the authority to charge Bazin at all.

The military didn't have the power to deal with charges of sexual assault until 1998, according to Andrew McKelvey of the Department of National Defence.

From McKelvey:

In the case against Mr Bazin, he was charged under the Criminal Code of Canada and is being prosecuted under the civilian justice system.

Following changes to section 70 of the National Defence Act in 1998, the military was given jurisdiction to charge and deal with charges of sexual assault against persons who were subject to the Code of Service Discipline. Prior to that, charges of sexual assault had to be proceeded within the civilian criminal justice system.

The fact that he will be prosecuted in a civilian court is potentially important here. So why were the military police involved? Did the military police have the power to investigate and lay charges retroactively, considering that they couldn't, until 1998, do so?

McKelvey's response:

The case is now in hands of civilian lawyers. To get further answers to any jurisdictional questions will have to be through them. They will be able to guide you through how the case went into their ballpark and how it got there. You'll need to go through Mr Bazin's lawyer in Barrie.

The civilian lawyers were not immediately available, but Xtra's Neil McKinnon will continue to follow the story.

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