The Military Justice System and Sexual Assault Offences in Canada

By Sukhcreet Kaur

A recent report, written by former Supreme Court of Canada Justice Louise Arbour, called for systematic change to address the issue of sexual harassment and misconduct against women in the Canadian Armed Forces (CAF).

In her report, Justice Arbour examined the institutional shortcomings, structural barriers, and avenues of reform that will be essential to effecting cultural change within the armed forces. Amongst the numerous recommendations offered in the report was one providing that the military justice system gives up its jurisdiction to determine sexual assault offences.

Women in the CAF

Women in Canada have been active members in the armed forces since 1885. They have served in the same units as men since 1968, although there have been many restrictions imposed on the positions made available to servicewomen. For example, the last formal gender-based restriction was lifted in 2001, when the submarine service was finally opened up to female applicants.

As of 2021 women made up 16.3% of CAF members and officers. The majority of these women work in lower-level positions as they face many barriers, such as the CAF not providing a safe workplace environment due to ongoing concerns of sexual harassment and violence.

Sexual Misconduct 

In her 2015 report entitled “External Review into Sexual Misconduct and Sexual Harassment in the Canadian Armed Forces”, former Supreme Court of Canada Justice Marie Deschamps identified that "there is an underlying sexualized culture in the CAF that is hostile to women and LGBTQ members, and conducive to more serious incidents of sexual harassment and assault.” These issues are often exasperated by a heavy alcohol drinking culture; Justice Deschamps stated that “the use and abuse of alcohol by CAF members appears to be one of the most significant contributors to sexual assault.”

 According to this report, sex is used in the military to “enforce power relationships and to punish and ostracize a member of a unit” and "members appear to become inured to this sexualized culture as they move up the ranks.”

 Justice Deschamps identified another barrier — a lack of trust in the chain of command, particularly when victims come forward. She stated that there is a “strong perception that senior NCOs [non-commissioned officers] are responsible for imposing a culture where no one speaks up and which functions to deter victims from reporting sexual misconduct. As a result of these attitudes, there is a broadly held perception in the lower ranks that those in the chain of command either condone inappropriate sexual conduct, or are willing to turn a blind-eye to such incidents.”

The key finding of Justice Deschamps’ 2015 report was that many members "continue to hold negative attitudes about the presence of women in the military…[and] the overall perception is that a 'boy's club' culture still prevails in the armed forces."

Military Justice System

The Canadian public holds CAF members to high expectations: to have a special responsibility, maintain a state of readiness and willingness to defend, and that military personnel “embody the same fundamental values and beliefs as those of the society it defends…limited only by military functional requirements.”

These military functional requirements are enforced through the military justice system. The CAF operates its own military justice system, which runs parallel to the Canadian court system, and is an essential component to military independence and efficiency. This separate system was created in order to accommodate the unique features of the armed forces.

The Supreme Court of Canada in R v Généreux stated that:

The purpose of a separate system of military tribunals is to allow the Armed Forces to deal with matters that pertain directly to the discipline, efficiency and morale of the military...Breaches of military discipline must be dealt with speedily and, frequently, punished more severely than would be the case if a civilian engaged in such conduct (at 293).

The military enforces its own Code of Service Discipline (CSD), which is a part of the National Defence Act (NDA). The CSD establishes a number of service offences which are unique to the military, such as misconduct in the presence of the enemy, disobedience of a lawful command, desertion, and negligent performance of duty.

It is clear due to these military-specific offences and the distinct nature of the job that an independent military justice system is necessary.

However, it is argued that the jurisdiction of these tribunals goes far beyond what is required for its military-specific needs. Section 130 of the NDA grants the military jurisdiction to include “an offence under the NDA, the Criminal Code, or any other act of Parliament committed by a person while subject to the CSD.” In other words, if a CAF member commits a Criminal Code offence, the military uses its internal system, under this section, to punish these offences.

Sexual Assault Offences

Prior to 1998, sexual assault offences committed by military officials in Canada were determined by the Canadian criminal justice system.

This was reformed in 1998 when Bill C-25 expanded the military tribunals’ jurisdiction to hear and determine sexual assault offences. Since then, both the civilian and military systems have shared concurrent jurisdiction over sexual assault offences.

As sexual assault continues to be highly prevalent and corrosive to morale and unit cohesion, the military justice system has not delivered on swift and tough penalties.

For this reason, in May 2022, Justice Arbour recommended that the civilian police and civil courts regain exclusive jurisdiction over all sexual assault offences. She found that the military’s handling of sexual assault offences did not meet its objectives cited in Bill C-25 and instead it has “eroded trust and morale among the organisation.” Justice Arbour shared concerns about the independence and competence of the military justice system at all stages of dealing with sexual assault offences.

A unique issue in the military is that, after a sexual assault has been reported, the claimant might be questioned by someone who may be superior to them in rank. In these circumstances "the rank difference may add to the level of intimidation and reluctance that victims may experience in an already difficult process."  Victims have also shared concerns with the investigative process, with complaints about “multiple re-traumatizing interviews with different people, [and] constant changes to the investigator roster, leading to delays and failure to move the investigation forward,” with some investigations taking more than five months to complete.

Additionally, crown prosecutors have been critical of the quality of investigations conducted by military officials compared to the civilian police force. Citing issues with a  "tendency to fall back on rape myths; including irrelevant material in their reports; often failing to follow up on relevant matters; general problems of evidence management; and inexplicable delays."

A degree of independence lacks between the parties of the military justice system. As the institution is entirely self-organised and administered, the CAF often “acts as [the] investigator, advisor, prosecutor, defender, and even judge.”

This can result in a system that provides special treatment to those in higher ranked positions or where colleagues further ostracize or victimize the complainant.
Furthermore, the military justice system has a lower conviction rate, 28%, for sexual offences compared to 55% in the civilian criminal justice system. Those who are found guilty are further able to evade true charges as the military may allow them to plead guilty to lesser, military-specific offences. For example, in the case of R v Bankasingh the accused admitted to sexually assaulting a 17-year old incapacitated private and was able to plead guilty to a lesser charge of ‘disgraceful conduct’, resulting in a mere 60 day imprisonment.

Conclusion

Reporting sexual assault and harassment is already a difficult task for women in general. This situation is further complicated when the individuals who investigate and prosecute a sexual complaint are members from within the military system and who may work alongside the complainant as co-workers or commanding officers. 

Although the civil and military justice systems share jurisdiction over sexual assault offences, in practice, the internal military system usually takes precedence. Justice Arbour sought to remedy this through her recommendation of moving military sexual offences back into the exclusive jurisdiction of the civilian criminal courts. This recommendation was approved by Defence Minister Anita Anand.