Military has tried to transfer 62 sexual offence files to civilian police — but half were rejected

·6 min read
Former Supreme Court justice Louise Arbour and Minister of National Defence  Anita Anand (middle) release 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 Monday, May 30, 2022. Also in attendance is Chief of the Defence Staff Gen. Wayne Eyre. (Sean Kilpatrick/The Canadian Press - image credit)
Former Supreme Court justice Louise Arbour and Minister of National Defence Anita Anand (middle) release 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 Monday, May 30, 2022. Also in attendance is Chief of the Defence Staff Gen. Wayne Eyre. (Sean Kilpatrick/The Canadian Press - image credit)

Military police in Canada have tried to transfer 62 sexual assault cases to civilian police forces since last fall — but about half of those files have been declined and sent back.

The Canadian Armed Forces released new figures in response to requests from CBC News and the release of a blistering independent report on the military's ongoing sexual misconduct crisis.

Canadian Armed Forces Provost Marshal Brig.-Gen. Simon Trudeau confirmed the military has attempted to transfer 49 new sexual offence cases to civilian police since November 2021. Police forces accepted 22 of the files and rejected 27.

Military police also attempted to transfer 13 in-progress cases to civilian police; nine of those files are now being investigated and four cases were declined.

"The transfer and referral of cases raises a wide range of complex issues," wrote Trudeau in a statement about the figures, which were current as of May 30.

"Some agencies were not ready to accept investigations for reasons that reflect the diversity of law enforcement contexts in Canada."

The figures show the challenges the military faces in trying to act on an interim recommendation by former Supreme Court justice Louise Arbour to transfer military sexual offence cases to civilian investigators.

On Monday, Arbour released a wide-ranging final report calling for the Canadian Forces to be stripped permanently of its power — granted in 1998 — to investigate and prosecute sexual offences among military members.

Arbour called for the military to hand over sexual offence files to civilians as part of her interim recommendations last fall — recommendations that Defence Minister Anita Anand accepted in November 2021.

Now, Arbour wants a permanent change that would involve revoking the military's jurisdiction so that civilian police services and courts exclusively handle military sexual misconduct cases. She said it would offer "more equity for victims."

Some civilian police forces resisting accepting cases

Arbour has raised serious concerns about the military being "keen to maintain" its jurisdiction. She also pointed out during a press conference on Monday that civilian police forces "have already surprisingly, in my view, expressed in some cases some reluctance to exercise a jurisdiction that they currently have."

"Civilian police forces and prosecution authorities already have full jurisdiction to investigate sexual offences involving CAF members, including those occurring on defence property," said Arbour's report.

"While some external police forces were open to receiving files almost immediately, others refused to accept any files involving CAF members."

Arbour's report said that at the provincial level, some police chiefs associations and the OPP commission "joined the list of refusals."

The B.C. Urban Mayors' Caucus sent a letter to Prime Minister Justin Trudeau and Anand in January warning that "the civilian justice system is currently stretched beyond capacity from being on the front lines of combating the COVID-19 pandemic."

The Ontario Association of Chiefs of Police warned the province's solicitor general that taking on military sexual misconduct cases could open the door to a great many historical sexual offence claims, Arbour's report said.

WATCH: Louise Arbour discusses handing sexual offence files over to civilian police

The group also said investigators would need to be trained in the military context and raised concerns about investigators' access to military documents, the report added.

The Association des directeurs de police du Québec said it would be unable to accept any military files without approval from the province's minister of public security, Arbour wrote, while the British Columbia Association of Chiefs of Police recommended that police services refuse to accept military files until legal and procedural issues are sorted out.

RCMP started accepting cases in new year

Not all police forces resisted.

Anand said the RCMP started accepting the military's cases in January. Quebec's ministry of public safety has been advising the province's police forces to accept new files since February. Several local police forces have also accepted cases on an ad hoc basis, said Anand. Winnipeg and Thunder Bay police services, along with the Nottawasaga OPP, are three examples named in Arbour's report.

"We have made substantive progress in the referral of investigations to civilian police services," Anand said in a statement to CBC News Thursday.

"As Madame Arbour outlines in her report, there have been challenges with certain jurisdictions. To this end, I am writing again to provincial and territorial partners this week about the path forward."

Anand said she plans to set up an intergovernmental body to handle the transfer of cases. Arbour has said that shouldn't be necessary.

WATCH: Defence Minister Anita Anand reacts to Louise Arbour's report

Arbour estimates in her report that taking on military files would leave civilian police forces in most provinces and territories with only about 20 additional sexual assault investigations per year, based on military statistics from 2016-2021. Ontario is the exception; Arbour's report said police services in that province could have to take on about 70 cases per year.

Arbour also said she estimates roughly only 30 sexual misconduct cases are tried in the military judicial system across the country each year. Civilian courts process more than 2,300 sexual offence cases per year, she said.

"We're talking 30 cases a year across the country, seriously," Arbour said at Monday's press conference.

Arbour pointed to the example of impaired driving cases. She said that while the military and civilian authorities both have jurisdiction over these cases, the military is "happy to let the civilians" handle them.

Dalhousie University's Elaine Craig is an expert in sexual assault law and conducts research on the Canadian military judicial system. She said she finds it "very troubling" that civilian police forces have rejected so many military files.

"I think it is important to emphasize that the civilian system has had full jurisdiction all along," said Craig.

"It seems to me that the civilian police forces who are accepting these cases ... are doing their job and those that are refusing them, angling for more money or task forces or whatnot, are failing to meet their responsibilities. And, frankly, failing these survivors."

Expert calls for changes to National Defence Act

Longtime military law expert and retired colonel Michel Drapeau argues the only way real change will happen is if the government amends Section 70 of the National Defence Act to ban the military from prosecuting sexual offences.

Drapeau said that as long as the military retains jurisdiction in law, civilian authorities have the option of saying no and refusing cases.

"The only way to ensure it's done 100 per cent is to amend Section 70 and return sexual assault as one of the offences for which the military doesn't have jurisdiction," Drapeau said. "It's as simple as that."

Section 70 states the military cannot try military members charged with murder, manslaughter and a series of other offences.

Anand called Arbour's request to permanently transfer cases to civilians a "system-changing recommendation" that the government would examine "in earnest" while the interim measure is in place.

"I am writing again to provincial and territorial partners this week about the path forward…. I am resolutely committed to ensuring that those who have experienced sexual misconduct receive the support that they deserve," said Anand.

The Canadian Forces Provost Marshal said that military police are currently transferring cases to civilians in a "deliberate and carefully planned manner" and that the "primary concern is victim support throughout the process."

"Our aim is that civilian police services investigate all criminal sexual offences alleged to have been committed by a CAF member on which they have jurisdiction," wrote Brig.-Gen. Trudeau in a statement.

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