Defence Minister says military sexual misconduct cases to be investigated by civilians

Defence Minister Anita Anand says the investigation and prosecution of alleged sexual misconduct cases in the military will now be moved to the civilian system.

The move follows recommendations from retired Supreme Court justice Louise Arbour who called for the immediate transfer of all criminal cases involving allegations of sexual misconduct in the military to civilian authorities in a note sent to then-defence minister Harjit Sajjan on Oct. 20.

In a letter dated November 3, Anand says the Canadian Forces are working with federal, provincial and territorial partners to implement the interim measures

“I share your concerns and agree that it is necessary to establish a process that will facilitate the handling of allegations of sexual offences in an independent and transparent way outside of the CAF and the military justice system,” wrote Anand in response to Arbour’s recommendations.

“All sexual assaults and other criminal offences of a sexual nature under the Criminal Code, including historical sexual offences, alleged to have been perpetrated by a CAF member past or present, will be referred to civilian authorities.”

“The unprecedented scrutiny that the institution is undergoing represents an equally unprecedented opportunity for meaningful change to build confidence in the CAF and the military justice system,” she writes.

The @CanadianForces are working with federal, provincial & territorial partners to implement these interim recommendations. pic.twitter.com/MV4vvpVqXZ

— Anita Anand (@AnitaAnandMP) November 4, 2021

The Liberal government tapped Arbour to come up with ways to address sexual misconduct in the Canadian Armed Forces, which has been battered with allegations against numerous top officers.

Arbour wrote that she has heard widespread doubts about the independence and competence of military police, which has spawned serious mistrust in the military justice system, especially when it comes to investigations.

While Arbour does not identify who made those comments, they do echo past statements from military officials.

“On the other hand, I have heard, in the course of my review, significant skepticism on the part of stakeholders and most importantly survivors, with respect to the independence and competence of the CFNIS (and military police),” Arbour writes.

The Canadian Forces National Investigation Service is responsible for investigating serious crimes in the military.

Arbour is the second retired Supreme Court justice to have called for the military to transfer criminal cases involving sexual misconduct to civilian authorities since June, when Morris Fish made a similar recommendation following a comprehensive review of the military justice system.

At that time the government said it agreed with Fish’s suggestion in principle, but has yet to take any action.

Anand’s announcement sparked a firestorm of reaction from opposition parties, legal and defence experts as well as It’s Not Just 700, an advocacy and support group for victims of military sexual misconduct, which in a statement said it was “cautiously optimistic.”

“Words may soothe, but action matters, so only once we see this rollout can we feel the voices of those harmed are heard,” it said.

Opposition parties were more forceful, with Conservative defence critic James Bezan demanding a timeline while NDP counterpart Lindsay Mathyssen asked why it took the Liberal government so long to act.

Mathyssen noted two other retired Supreme Court justices had made similar recommendations in the past.

Retired colonel Michel Drapeau, who has long advocated for the government to strip the military of its jurisdiction over sexual assault and other criminal cases, which was only granted in 1998, welcomed Anand’s announcement.

He added that he did not have any concerns about the military continuing to deal with non-criminal incidents, saying in an email that military police and the military justice system are both “quite capable to investigate and prosecute disciplinary or ethical offences.”

Several experts on military sexual misconduct noted the civilian justice system has also faced difficulties in dealing with sexual offences, while it wasn’t immediately clear who would ultimately decide whether an allegation was of a criminal nature or not.

“Plus to what extent will the CAF accept other authorities investigating in their midst?” said Charlotte Duval-Lantoine of the Canadian Global Affairs Institute. “It might make the ranks tighter.

“It looks like a quick fix, and in some ways it is, but if we want to have this work, there are a lot of questions that have to be addressed.”