The Long Road to Military Justice
Jul 15, 2022

Promises to keep and miles to go

The long and often frustrating march of the complex overhaul of Canada’s military justice system – a challenge many allies with similar issues are watching closely – continues. However, even with implementation of Bill C-77 late last month (a package of amendments to the National Defence Act and other federal statutes which are specifically intended to protect vulnerable witnesses within the military justice system), the road ahead is a long one.

The enormity of that mileage was essentially confirmed by senior officers, led by the Vice Chief of the Defence Staff, Lieutenant-General Frances Allen, in a technical briefing before the latest federal budget, as the Department of National Defence and the government writ large, continues the struggle to get a grip on the demonstrable need for military justice reform before the 21st century gets much older.

General Wayne Eyre and LGen Frances Allen

Despite the clear threat to morale and trust, commanders have long argued that only those who have worn a uniform can really understand the culture. But a valid argument can be made that this is part of a pattern that ultimately leaves service members at risk. Moreover, a series of government-commissioned reviews have repeatedly confirmed the problem but have never been the catalyst for any real change. Many hope that reform is finally in sight.

It has been seven years since retired Supreme Court of Canada (SCC) Justice Marie Deschamps released an unprecedented and damning review of sexual misconduct and harassment in the CAF, documenting a culture hostile to women, gays and others.

Many of the same concerns were echoed last year in another review by retired SCC Justice, Morris Fish. The report, released in April 2021, found that “rampant” and “destructive” misconduct continues to generate a debilitating environment with the potential for chain-of-command interference in investigations and courts martial. As expected, the Fish report provided inconvertible evidence that nothing had changed since before Deschamps began her inquiry.

With no plausible explanation other than a desperate attempt to find another outcome or delay potential action for change, then Defence Minister Harjit Sajjan announced in April 2021 that a third retired Supreme Court Justice, Louise Arbour, would lead an Independent External Comprehen­sive Review into harassment and sexual misconduct in the DND/CAF. Madame Arbour, a former UN Commis­sioner for Human Rights who is now in private practice in Montreal, was tasked with examining the policies, procedures, programs, practices, and culture within National Defence. Interim recommendations were released on 20 October 2021

A few days later, after almost seven years as Minister of National Defence (MND), Sajjan, whose handling of the situation had clearly been ineffectual, was replaced in a cabinet shuffle by the former Minister of Public Services and Procure­ment. In her role as the new MND, Anita Anand immediately assured Canadians that military justice reform is high on her to do list. She accepted Arbour’s preliminary recommendations “in full” shortly afterwards, and vowed that implementing them would be a priority.

A surprise to no one, the findings of Madame Arbour’s final report (released in May 2022) did not substantially differ from the previous Deschamps and Fish reports of 2015 and 2020. Among other things, she touted the value of outside advice, saying this would infuse much-needed “oxygen” into the insular CAF structure, and hopefully drive real change to restore trust and confidence in the military and its leadership.

Accordingly, the landmark 2015 Deschamps report, which documented sexual misconduct as “endemic” in its ranks, can no longer be ignored. Implementing Arbour’s 48 recommendations would fundamentally change the way military sexual misconduct allegations are reported and handled, and eventually restore confidence in the Canadian Armed Forces

Key to solving the hot-button issue of chain-of-command interference, Arbour recommends that “the Minister immediately appoint a person mandated to oversee the implementation of the recommendations,” Arbour wrote. “That person should be external to the Defence Team, have access to, and be supported by, both the Deputy Minister (DM) and the [Chief of the Defence Staff, and] produce monthly assessment reports for the Minister that are ultimately shared with the public.” To her credit, Minister Anand wasted no time in stating she would appoint an independent official to oversee implementation of the recommendations.

Arbour had noted that “the issues of sexual misconduct and leadership are inter-related”. On that premise, most of her recommendations were based on the assumption that most, if not all recommendations will be acted upon. Some are precise and can be implemented without further study, while others merely point out that there are different ways to bring about reform.

“I know that those who live with these issues on a day-to-day basis are eminently capable of determining how best to proceed, if they accept the general direction and changes [that] I am proposing,” she said. “On the other hand, I am equally convinced that if they do not, no amount of detailed recommendations will produce the desired result.”

But change is clearly afoot, courtesy not only of MND Anand but also of Finance Minister Chrystia Freeland, both of whom evidently have Prime Minister Justin Trudeau’s ear – particularly the latter, whose dual role as Deputy Prime Minister ostensibly gives her more clout at the cabinet table.

Freeland stated in her recent budget that “those who serve Canada with our flag on their shoulder contend with enough risks to their safety; their workplace should not be one of them.” She cited a formal apology in December by Anand, then Deputy Defence Minister Jody Thomas, and the Chief of the Defence Staff, General Wayne Ayre.

Hence the commitment to spend $100.5 million over six years, starting in the current fiscal year and including $1.7 million in unspent prior commitments, to be followed by $16.8 million ongoing to strengthen Canadian Armed Forces leadership. A key component would modernize the military justice system, and implement a Declaration of Victims Rights (DVR) as set out in Bill C-77.

The budget also proposes $144.3 million over five years, starting in 2022-2023, and $31.6 million ongoing, to expand CAF health services and fitness programs “to be more responsive to women and gender-diverse military personnel.” This builds on the previous budget’s $236.2 million over five years, starting in 2021-2022, and $33.5 million ongoing for both DND and Veterans Affairs Canada to support efforts to eliminate sexual misconduct of all sorts as well as gender-based violence.

Implementation

LGen Allen kicked off the technical briefing by saying the “work we’ve been doing is now culminating as we reach a new milestone in the modernization of military justice,” having been given a legislative green light to accelerate the “rollout of these critical Bill C-77 components” toward implementation of the DVR.

By any measure, while a long time coming, implementing the DVR is a critical step toward supporting and protecting victims at every step. This will be accompanied by a new “non-penal non-criminal” summary hearing process, designed to it easier to fairly and efficiently address minor breaches of conduct so the serious cases can be dealt with appropriately.

It’s particularly worth noting that Arbour’s review highlights the importance utilizing more specific terminology. She notes that the National Defence Act currently defines “sexual misconduct” in a broad way that covers any sexual misconduct – from Criminal Code offences to sexual harassment, to viewing or displaying sexually explicit material in the workplace, to making jokes or advances of a sexual nature, and so on.

Combining immature behaviour with criminal actions – naming them all “sexual misconduct” – has the potential effect of lessening the impact when a complaint that alleges sexual assault is buried under a stack of complaints related to unwanted advances or offensive verbal jokes

Allen, who has been VCDS since June 2021 (previously serving as Canada’s representative on the NATO Military Committee in Brussels), noted that the sundry reviews and reports DND had received had similar goals which, if realized, would result in “far-reaching and lasting institutional change.” But that “a systemic approach and systematic oversight” is crucial

“Perhaps one of the most important lessons we’ve learned […] is that you can’t just look at the individual reports and activities and recommendations in isolation. They need context […] and a holistic organizational and whole-of-government approach to building a healthy and resilient defence team,” she said.

Tasked with developing a plan to implement the Deschamps / Fish / Arbour recommendations, the external review implementation committee (ECRIC) held its first meeting in January to oversee what Allen acknowledges will be a challenging mission affecting all commands.

“It touches on many different areas of responsibility within DND/CAF and requires meticulous coordination with external bodies, including the Department of Justice as well as provinces and territories,” Allen points out. “As we develop the plan for the implementation of the Fish report and prepare to receive Mme Arbour’s final report, we are being careful to consider all of these many aspects, and respect the roles, responsibilities and independence of all of the various actors in the military justice system.”

Colonel Rob Holman, currently Acting Judge Advocate General while Rear-Admiral Geneviève Bernatchez (the first woman to hold the position) is on leave, says the DVR will exceed the protections afforded by the Canadian Bill of Rights

Victims of offences in the service will have the right to request the assistance of a trained liaison officer who will explain how offences are dealt with and tried within the military justice system, and help them obtain the information to which the victim is legally entitled.

“It's important to note the regulations and policies developed for the implementation and operationalization of the declaration were not created in a vacuum,” said Holman, an RCAF officer and usually the Deputy JAG for Operational and International Law. Consultations with “a wide variety of stakeholders” have provided critical information to the regulatory and policy development process.

Colonel Holman also cited the crea­tion of a permanent military court, the “civilianiz­ation” of the judiciary, more independence from the chain of command, and other improve­­ments. Coupled with ongoing independent reviews, it would “ensure that the military justice system remains relevant in accomplishing its purpose, and one in which CAF members as well as Canadians at large can have trust and confidence.”

Moreover, he said, “having readily accessible case-specific information will enable the efficient operation of the military justice system by allowing leaders and their legal advisors to follow cases from start to finish to ensure that matters are progressing appropriately.”

All of it will be monitored by the JAG, whose official motto is Fiat Justitia or “let justice be done”. It’s one of those things that looks good in principle – but how it’s translated into policy and practice is what’s really important.

A Long Winding Road

Overall, it has been a highly embarrassing and psychologically painful journey for the Canadian Armed Forces, as an organization, as well as its victims. To selectively quote Canada’s iconic poet Robert Frost, the government and DND have “promises to keep and miles to go” before this particular journey ends. The Arbour recommendations will serve to at least straighten out some of those curves to speed progress.

But keeping those promises may be somewhat complicated. Federal plans to transfer some military police investigations and prosecutions of alleged sexual assault to civilian jurisdictions, as per the recommendations, are facing pushback in at least two provinces

DND’s Provost Marshal, Brigadier-General Simon Trudeau, reported in June 2022 that 11 new investigations and nine existing cases had been accepted by civilian police, including the RCMP which provides policing services to eight provinces. However, the Canadian Press has pointed out that Trudeau did not explain why an additional 23 cases had been rejected by civilian authorities.

Anand cited those numbers in a letter in June to then Ontario Solicitor General Sylvia Jones (currently in charge of the Health portfolio), urging Jones to promote the transfers to police and the courts. “Our aim is that civilian police services investigate, and civilian courts adjudicate, all Criminal Code sexual offences alleged to have been committed by a CAF member,” Anand wrote. “The civilian justice system and civilian law enforcement already have jurisdiction over these Criminal Code offences, and I urge you to work to ensure they exercise their jurisdiction and enforce the law.”

However, Anand did not acknowledge Ontario’s stated concern about funding or the fact that court calendars across the country are crowded. An aide to Ontario’s new Solicitor General, Michael Kerzner, has reiterated the need for more resources to handle the increased caseload

In British Columbia, where RCMP provide services in many regions, the Ministry of Public Safety and Solicitor General has echoed that call for “adequate resources and consistent protocols, procedures and standards to support both the survivors and civilian police.”

The provincial pushback should not have surprised the federal government. Justice Arbour noted in her final report that some police forces and associations representing chiefs of police had publicly and privately opposed the notion of transferring military cases to the civilian courts.

That said, just because the CAF had been handling those cases in the past, doesn’t absolve the provinces from responsibility to protect those citizens in the future.

Ontario could expect to see some 70 transfers per year, however, she said other provinces were likely looking at fewer than 25 cases. “The number of cases, spread across the country, with slightly higher volume around CAF bases and wings, and virtually none elsewhere, hardly justifies this refusal to enforce the law,” she said. “The targeted need for additional resources, if any, can be easily identified and accommodated.”

Without the transfers, she cautioned, the two levels would engage in “interminable discussions” – meaning nothing would change.

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Hudson on the Hill

The role of Hudson is being filled by contributing editor Ken Pole.

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