Two sexual assault complainants say they were denied a chance at justice when their cases against senior military officers were closed without charges laid — because the men accused of raping them declined to be interviewed.
In one of the cases, the complainant — a now-retired member of the Canadian Armed Forces (CAF) — said she was told that while investigators wanted to lay sexual assault charges, military prosecutors who reviewed the case recommended no charges because the complainant's testimony was the only evidence.
The second complainant — a still-serving CAF member — recently reported the closure of her case to the Military Police Complaints Commission (MPCC), a civilian oversight body.
"The [sergeant] stated that the case 'hinged on hearing from him that something happened,' indicating that because they did not compel the perpetrator to an interview that the case was not viable," her complaint reads.
"This does not make any sense to me whatsoever. I was sexually assaulted and now I am being told they can't lay charges because they haven't spoken to the perpetrator?"
Fearing career reprisals, the two complainants asked CBC News to keep their identities confidential; one complainant said she did not want to jeopardize any administrative action that could be taken against the accused. CBC has reviewed a series of documents and spoken to others whom the complainants informed about the allegations.
WATCH | Retired Canadian Armed Forces member disappointed with military justice system:
Both women said they were stunned to learn that their cases were closed on the very same day — Nov. 4 — that Defence Minister Anita Anand announced that all ongoing military sexual misconduct cases would be transferred to civilian police to investigate.
The provost marshal told CBC News that nothing prevents military members from filing new complaints with civilian police services if military investigators decline to lay charges. The complainants say that amounts to military police passing the buck and forcing them to start from square one.
"That is putting a responsibility on me, the victim of a crime, to do exactly what the CAF has been instructed to do by the minister of national defence," said one of the complainants.
The military is in the midst of an unprecedented sexual misconduct crisis. Since early February 2021, multiple current and former senior Canadian military leaders have been sidelined, investigated or forced into retirement from some of the most powerful and prestigious posts in the defence establishment.
Former Supreme Court justice Louise Arbour recommended at the end of October that the provost marshal "transfer to civilian police forces all allegations of sexual offences, including allegations currently under investigation by the CFNIS [Canadian Forces National Investigation Service], unless such investigation is near completion."
Provost marshal will not release number of cases closed
One of the complainants who spoke to CBC News said that she believes her case was closed that day to keep it from being transferred to civilian authorities "in an attempt to conceal the incompetent nature of the investigation."
She said she wonders how many other sexual misconduct cases in the military were closed around the same time.
The Canadian Forces Provost Marshal's office has said it's reviewing "each ongoing investigation to determine which cases are suitable for a transfer to a civilian police service."
"Each case is assessed separately to ensure interests of justice are best met in the context of the recommendation we are implementing, which indicates that in certain cases, it would be preferable that CFNIS completes the investigation," the office said in a media statement.
The provost marshal has declined to tell CBC News how many sexual misconduct cases it closed in the days leading up to Anand's announcement and the weeks that followed. CBC News has been asking for that number since Nov. 9.
The provost marshal's office said collecting the statistics requires time and "proper analysis and context in order to be interpreted correctly."
Anand's office also said it couldn't provide the number because the information "does not rest" with it, adding the minister "strongly believes that Canada's system of justice must meet the needs of victims and survivors of sexual misconduct and that justice must be served."
The MPCC said that since Anand's announcement on Nov. 4, it has received two complaints about the closure of sexual assault files. It said it is not able to confirm the specific nature of the allegations because it doesn't release information about ongoing complaints.
The complainant who is still serving in the military reported to the CFNIS in May that she was sexually assaulted by a senior officer in February 2020. The alleged perpetrator was her superior and was supervising her while they were in another province for temporary duty.
In her complaint to the MPCC, she wrote that during her initial interview, the CFNIS investigator asked her what she was wearing on the night of the sexual assault and how much she'd had to drink. She called it victim-blaming.
In the second, unrelated case, the retired military member reported a rape from early in her career — almost two decades previous. She said she was in her early 20s when her direct supervisor walked her back to her room after a mess hall event at a training base, when she was visibly distraught, crying and intoxicated.
She said her supervisor brought with him another military officer who was even higher in the chain of command. She said both men had sex with her when she was too inebriated to consent.
The retired military member said a CFNIS investigator told her that because the only evidence was her testimony — and because she made her report so long after the event — she would not be seen as credible during a trial.
The accused in both the civilian and military police system do not have to give an interview to police. It's the alleged perpetrators' right under the Canadian Charter of Rights and Freedoms to decline to comment.
'They just don't want to even try'
After learning that her case had been closed, the retired military member emailed CFNIS asking that her case be transferred to civilian police. She said she still has not received an answer.
She said the man she accuses of rape is still serving in the CAF. She said that if charges were laid, making the case public, others might come forward with evidence or report other incidents.
"I feel misled," she said. "I feel let down. I feel robbed of the justice that should happen as a result of this investigation.
"Why are you asking people to come forward with historical cases if you're not going to do the work to really get to the bottom of it? It baffles me ... I feel like they just don't want to even try."
She said that when her case closed, she received an email from CFNIS acknowledging that the lack of charges doesn't mean that what she reported didn't happen.
"The criteria for criminal prosecutions is quite stringent and sometimes, despite a full and truthful disclosure like yours, the required evidence may not meet the standard set forth by the courts and your complaint may not result in charges," said the email from CFNIS.
Rank has privileges, says former military lawyer
Retired major Kashmeel McKöena is a former lawyer with the Judge Advocate General, which oversees the administration of military justice. He said senior officers are often given the benefit of the doubt in investigations when they're higher in rank than the victim.
"It feels like the usual people who get that sort of treatment of, 'They don't want to talk to us so we don't proceed,' tend to be people within higher authority relative to the victim," said McKöena, now in private practice and representing several military sexual misconduct complainants.
"If a victim comes forward and said, 'This happened to me,' and the response [is] the alleged accused ... doesn't want to talk to us so the matter's closed, I mean, the system would be paralyzed. Nobody is going to report."
Sunny Marriner is the project lead for the Philadelphia Model of Violence Against Women Advocate Case Review, which reviews sexual assault cases and trains police across Canada to improve investigations and accountability.
She said she's only heard once before in her career of a civilian sexual misconduct investigation being shut down because the accused refused to be interviewed.
"From police service to the police service, from jurisdiction to jurisdiction, similar problems are standing in the way of sexual assault investigations," she said. "And often those begin with an inherent lack of belief that the survivors word is enough to believe that that sexual assault occurred."
Retired colonel Michael Drapeau, a military law expert, said he's working on a case involving an allegation of drugging and rape. He said that, despite the presence of photographic evidence, the case was closed at one point by military investigators because the perpetrators refused to be interviewed and there wasn't enough evidence.
'It's a denial of justice'
He said he's fighting to get the case reopened through a complaint to the MPCC.
"They certainly need to have justice," he said. "In [this] case in particular, it's a denial of justice and will be seen and perceived as such for the rest of their lives."
Since opening its doors in 1999, the MPCC oversight body has dealt with 96 complaints involving allegations of sexual misconduct.
In its letters in reply to the complainants, the CFNIS said the accused in both cases will undergo administrative reviews to determine if they should stay in the CAF.
The CFNIS told the complainants they could file an access-to-information request and pay $5 each to obtain their case files — a notoriously slow process — and hire a personal injury lawyer to pursue a civil suit.