Military should give up control of sexual assault cases permanently: former Supreme Court justice

The time has come for the Canadian Armed Forces to permanently give up control of investigations of sexual offences by its members, says a major new report by a former Supreme Court justice.

Concluding more than a year of work, Louise Arbour today released her much-anticipated report on the military’s sexual misconduct crisis. It recommends, among other things, that civilian police and courts handle all sexual assault cases involving allegations against military members.

“As challenging as it is, this organization must demonstrate enough humility to accept external help and open itself to the outside world,” wrote Arbour in the roughly 400-page report.

“Meaningful change will rest on the political will and determination of the civilians who oversee the CAF.”

Military sexual trauma complainants have been demanding for decades that civilians take over sexual misconduct cases, arguing that the Canadian Armed Forces has failed to properly support victims and to thoroughly investigate and prosecute cases.

CBC News has documented cases of sexual assault survivors saying that their cases were dropped because the perpetrator wouldn’t be interviewed, that they were re-victimized by the reporting process and that they faced reprisals so severe they left the military altogether. 

In one of her first acts in the ministry, Defence Minister Anita Anand — acting on an interim recommendation from Arbour last year — moved to temporarily hand over in-progress investigations of sexual misconduct claims from military to civilian police forces.

Now, Arbour wants the move made permanent — something the military has long resisted. The military was granted jurisdiction to handle its own sexual assault cases in 1998.

The report by Louise Arbour, former Justice of the Supreme Court of Canada, is the second on sexual misconduct in the military in seven years. (Darren Calabrese/The Canadian Press)

Arbour said while the military is subject to civilian control, it has been “unwilling or unable” to fully implement outside recommendations. Instead, the military has chosen the “letter over the spirit, often the appearance of implementation over substance,” Arbour wrote.

If the military’s culture is ever going to change, she wrote, it needs to fully accept a “paradigm shift.”

‘Women should no longer feel like guests in the CAF’

“They now need to adapt to a new reality — the women warriors are here to stay,” wrote Arbour in her report. “And they will stay on their terms, seeking the substantive equality to which they are entitled.

“Women should no longer feel like guests in the CAF, as a former senior female officer told me many felt. We continue to see resistance, particularly in historically male-dominated organizations with ‘boys’ club’ mentalities, such as the CAF.”

The Canadian Forces’ public image has been pummeled in recent years by an unrelenting series of sexual misconduct scandals. Experts say they can’t think of another military anywhere else in the world that has seen so many senior leaders swept up in scandal at the same time.

Since early February 2021, 13 current and former senior Canadian military officers have been sidelined, investigated or forced into retirement from some of the most powerful and prestigious posts in the defence establishment.

The government tasked Arbour in April 2020 with conducting an external review to examine sexual misconduct in the military and military leaders’ response to it.

This report is the second of its kind in seven years. 

Arbour wrote that since former Supreme Court justice Marie Deschamps issued her own landmark report in 2015, not enough has changed in the military’s handling of sexual misconduct cases.

“Seven years later, I see no meaningful improvement in the investigation and prosecution of sexual crimes by the military justice system,” wrote Arbour.

A Department of National Defence survey of Canadian Armed Forces members in January 2022, cited by Arbour in her report, said that roughly 65 per cent of those surveyed did not agree that military justice actors took positive steps for the benefit of victims.

Deschamp’s report differs from that of former Supreme Court justice Morris Fish, who recommended last year that the military retain jurisdiction over sexual assault and misconduct cases as long as it set in place more rights for victims first.

Definition of sexual misconduct too broad: Arbour

Arbour wrote in her report that the Canadian Armed Forces’ definition of “sexual misconduct” is “too broad” and captures everything from acts of micro-aggression and unconscious bias to sexual assault and harassment.

“It is merely a convenient expression to refer to the whole range of issues when differentiation amongst them is not required,” she wrote.

Arbour now recommends that the military’s definition of sexual assault be limited to “intentional, non-consensual touching of a sexual nature.” The Criminal Code and civilian authorities should then handle these cases, she wrote. 

Arbour also calls on the military to adopt the Canada Labour Code’s definition of sexual harassment and recommends that it turn over all sexual harassment claims to the Canadian Human Rights Commission for investigation.

“The exposure of sexual misconduct in the CAF has shed light on a deeply deficient culture fostered by a rigid and outdated structure that did little to modernize it,” wrote Arbour.

‘Prevent the military from saying they didn’t know’

The Canadian Global Affairs Institute’s Charlotte Duval-Lantoine studies culture change in the Canadian Armed Forces. She took part in consultations with Arbour in the fall of 2021.

She said this report “was not needed per se” because past reports still need to be properly implemented. It still has value, she added.

“It’s going to provide us with additional information about what the problems are,” said Duval-Lantoine. “And it can prevent the military from saying they didn’t know.”

Lt.-Gen. Jennie Carignan, chief of professionalism and conduct, has also been tasked with changing the military’s culture and has said she’s planning a five-year campaign.

WATCH: Then-defence minister Harjit Sajjan is asked why a second review is needed:

Sajjan is asked why the military needs another report to help end sexual misconduct

1 year ago

Duration 1:31

Defence Minister Harjit Sajjan spoke with reporters Thursday about the plan to change how the military deals with sexual misconduct.

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