Former Supreme Court Justice Louise Arbour, second from right, releases the final report of the Independent External Comprehensive Review into Sexual Misconduct and Sexual Harassment in the Department of National Defence and the Canadian Armed Forces in Ottawa on May 30.Sean Kilpatrick/The Canadian Press
Elaine Craig is professor at the Schulich School of Law at Dalhousie University and the research director of the Canadian Centre for Legal Innovation in Sexual Assault Response.
Imagine that police forces across Canada got to pick and choose which criminal offences they would be willing to investigate. This would seem unconscionable. And yet, when it comes to alleged sexual assaults by members of the Canadian military, some police chiefs in Canada apparently believe they do have that choice.
Last November, Minister of Defence Anita Anand accepted the recommendation of former Supreme Court of Canada justice Louise Arbour to temporarily remove shared jurisdiction over sexual offences from Canada’s military justice system. This week, as part of her final report reviewing the problems of sexualized violence in the Canadian military, Ms. Arbour recommended that this removal of jurisdiction be permanent. Instead of improving efficiency, morale and discipline, the 20-plus years during which the military’s justice system has been handling some sexual offences on its own have only made things worse.
Canada’s military justice system is inefficient, expensive and slow. Military courts continue to grant sexual offenders inappropriate plea bargains and sanctions for serious sexual offences, such as fines and reprimands, that would shock many Canadians. As former Supreme Court justice Morris Fish found in his recent review of the military justice system, legal protections for sexual-assault complainants that are available in the civilian system take years to be incorporated into the military’s system.
Ms. Arbour also found that investigations into allegations of sexual violence conducted by military police are more likely to rely on rape myths, and include irrelevant information. Failings within the civilian system are also well-documented, of course, but the recommendation to have sexual offences investigated and prosecuted exclusively in the civilian system is not surprising.
What is surprising, as was also revealed in Ms. Arbour’s report, is the response to Ms. Anand’s decision to have our civilian justice system investigate and prosecute all sexual offences, including ones involving members of the military: Many police organizations across Canada simply refused. Police chiefs from British Columbia to Nova Scotia wrote to the government insisting that they simply could not cope with the tidal wave of cases that they said would arrive in their offices. The increased workload for these forces would be unmanageable with the resources they had, they said. It was suggested that the federal government could create a national independent investigative body, at arms-length from the military, to conduct these investigations.
How many cases are we talking about? According to the military, in most provinces, it would be fewer than 20 each year.
The Ontario police chiefs also told the Minister of Defence that, in addition to the resources they will need to respond to the increased number of cases they anticipate, they would not be able to start investigating these sexual assaults until numerous logistical challenges are resolved, including training and access to military documents. They have suggested that the government set up a national task force to address their concerns.
Yet, these same Ontario police forces already investigate intimate partner violence and impaired driving offences allegedly perpetrated on military bases in Canada. They already investigate sexual offences allegedly perpetrated by members of the Canadian military off base, and these same police forces have always had full jurisdiction to investigate sexual offences committed on Canadian military bases. Is a national task force really necessary?
This “refusal to enforce the law,” as Ms. Arbour rightly described it, can perhaps be explained in one of two ways: as an opportunistic cash grab by resource-strapped policing organizations or yet another example of widespread apathy toward this gender-based crime by many police forces across the country. Perhaps it is both.
Would the chief of the Victoria Police Department or the various chiefs of the Nova Scotia police organizations, for example, have taken this position if the offence over which the military had been temporarily granted shared jurisdiction was murder rather than sexual assault? Regardless, it is women members of our armed forces, a group that is subjected by their peers to alarmingly disproportionate rates of sexualized violence, who bear the burden of this refusal by some police forces.
The federal government is already receiving pressure to implement Ms. Arbour’s recommendation to permanently remove jurisdiction over sexual offences from the military. Without question, the military’s justice system has failed women, and the federal government must move on this recommendation.
But doing so will require a level of co-operation from provincial leaders such as public safety ministers, premiers and police officials that, to date, has apparently not been forthcoming. It will require our chiefs of police to accept that enforcing Canada’s sexual-assault laws on our military bases is not a request made for them to accept or reject at their convenience. It is their job.
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