Ottawa moves to strip military of power to investigate sexual offences

The federal government has introduced long-awaited legislation to strip military police and the military justice system of the power to investigate and prosecute sexual offences on Canadian soil.

The bill, tabled in the House of Commons on Thursday, also proposes changes to the way military judges, the Canadian Forces provost marshal, the director of military prosecutions and the director of defence counsel services are appointed.

Defence Minister Bill Blair said Thursday that, since he was appointed to the portfolio last summer, he’s worked to modernize the military in line with recommendations made in two landmark reviews.

In his remarks at a press conference, he spoke directly to members of the Armed Forces who are survivors of sexual assault and sexual misconduct.

“I want you to know that we have heard you,” Blair said. “We have heard that you want to serve Canada in a respectful, supportive and safe environment.  And I want to assure all who serve, or may wish to serve, [that] we will do what is required to keep you safe.”

Handing jurisdiction over investigating and prosecuting sexual offences to the civilian justice system has been the subject of intense negotiations between the federal government and the provinces, senior defence officials said on background after the legislation was tabled.

Civilian control of those cases was the core recommendation of an independent, external review conducted by former Supreme Court justice Louise Arbour, who was tasked by the federal government with studying the sexual misconduct scandal that has rocked the military.

For a number of months and on an interim basis, the military has been handing sexual assault cases over to civilian authorities.

The Department of National Defence says that 285 Criminal Code sexual offence files were reported to military police between December 2021 and Jan. 29, 2024. Of those,150 have been referred to federal, provincial, territorial and municipal police agencies — civilian police have accepted 103 of them and have declined 46.

Those that were not accepted were handled by the military police. 

The new legislation says that sexual misconduct cases arising where troops are deployed outside of Canada can still be investigated by military police. Arbour’s report did not object to allowing military police to conduct investigations abroad, but said those investigations should be handed off quickly to civilian justice systems where appropriate.

Senior defence officials said they’re still working on rules for sexual misconduct investigations outside Canada. And other aspects of the jurisdictional change are also still being thrashed out.

For example, the rules governing civilian police access to military bases — to interview victims and examine crime scenes — have not been fully drafted. Defence officials said those rules could be negotiated at a local level, or could be written into agreements being negotiated with individual provinces.

Blair said he’s confident civilian authorities won’t face hassles getting access to military personnel and property.

“If police have responsibility, and they clearly do, then they also have the authority to do what is required to fulfil those responsibilities,” Blair told reporters. “They will be able to, of course, have access to whatever place in Canada they require to conduct their investigations,”

‘Mission accomplished,’ says military law expert

Retired colonel Michel Drapeau, a military law expert who has campaigned for years to see the legislation changed, said victims will finally be able to receive justice going forward.

“To me, it’s mission accomplished,” said Drapeau. “Not my mission, but mission accomplished on behalf of the victims.

“So now they can sleep better tonight knowing that the Canadian society will look after them fully to the same extent as their sisters or brothers [in the civilian world] if they were ever to become victims of sexual assault or sexual misconduct.”

The changes to the appointment process for senior military justice officials stem from recommendations made by former Supreme Court justice Morris J. Fish in his 2021 review of the military justice system.

Making the military’s top police officer, top prosecutor and defence counsel direct government appointments will ensure they are insulated from real or perceived influence from the chain of command, Blair said.

This legislation also would expand the eligibility criteria for military judges to include non-commissioned members. Defence officials said that measure would help diversify the pool of potential candidates.

Retired lieutenant-colonel Rory Fowler, a former military lawyer now in private practice, said he has a number of questions about the changes to the administration of military justice — but is most concerned about whether victims will get justice from an already overwhelmed civilian system.

“Ultimately, this isn’t a solution,” said Fowler. “There is little evidence to support the proposition that this will improve the timeliness, efficiency, effectiveness, or fairness of prosecution of such [sexual] offences.”

Some survivors, such as former master corporal Stephanie Raymond, are taking a cautious, wait-and-see approach to the new legislation.

Prior to 2020, her case was one of the highest-profile sexual assault cases involving the Canadian military. 

Former warrant officer André Gagnon was charged with assaulting Raymond, who alleged she was raped by him following a party in 2011 near Quebec City. He was tried by court martial under the military system and found not guilty. The case was appealed and eventually handed over to the civilian system, where Gagnon pleaded guilty.

Raymond said she’s “skeptical” about the legislation’s prospects for delivering justice to victims.

“I wait to see if it will really happen,” she said,