Half of military sex offence cases never transferred to civilian police, despite government order

Canada's military police continued to investigate almost half of all military sexual offences cases over the past two years, despite the government directing the forces to hand over all cases to civilian police.

CBC News learned that military investigators held on to most of thoseuntransferred cases due to what it calls a "victim-centredapproach."

The Canadian Forces Provost Marshal, which commands all military police, has beengiving alleged victims the option ofreferring their casesto civilian police. Many are choosing to leave their cases with military investigators.

"In recent months, we're seeing a growing number of victims who are asking to remain with the military police," Deputy Canadian Forces Provost Marshal Col. Vanessa Hanrahan told CBC News in an exclusive interview.

"In certain circumstances we've actually had victims who were referred out to the civilian police come back and ask for the file to be transferred back to the military police."

The fact that military investigatorshave retained 120 sexual offence casessince late 2021 contradicts what retired Supreme Court justice Louise Arbour called for in her final report on sexual misconduct in the military.Arbour said all such cases should go to the civilian system, "regardless of any preference expressed by the victim."

Defence Minister Bill Blair was asked if the government meant for half of the files to remain with military investigators. He said it did not.

"But at the same time, I also know we've got work to do," he said.

"We want all of these cases to be investigatedby the police of jurisdiction and adjudicated within the civilian justice system. That's why we're changing the law."

After repeated calls to act, Blair has confirmed for the first time when he plans to change the National Defence Act. He said the changes can be expectedin the"coming months and hopefully before the end of this year."

The change to the law would strip the military of its power to investigate and prosecute military sexual offences entirely, in keeping with Arbour's recommendation almost 18 months ago.

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Canada's defence minister says changes to the law that governs military justice are coming within months, hopefully by the end of 2023. The changes will move all cases involving military sexual assault to civilian courts.

The government tasked Arbour in 2021 with independently reviewing the military's culture in response toa sexual misconduct crisis that saw anunprecedented number of senior military leaders removed from some of the most prestigious posts in the forces.

Blair's predecessor, Anita Anand, agreed in November2021 to an interim recommendation by Arbour to directthe military to transfer all sexual offence cases allegedly perpetrated by current or former military members, including historical allegations,to civilian authorities.

Since the military started referring cases to civilian authorities, military investigators continued to handle 124 sexual offence cases out of 252 outstandingfiles between December2021 and August 2023, saysthe Canadian Forces Provost Marshal's office.

In 77 of the cases, the files were not referred to civilian police because the Provost Marshal's office said it was "taking a victim centric approach and due consideration to the wishes of the victims."

In 53 of those 77 cases, the victim asked for the file to remain within the military police for investigation, the Provost Marshal's office said.

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Defence Minister Bill Blair says he hopes the recommendation from Justice Louise Arbour's external review of military sexual misconduct and harassment will be adopted in the new year.

The Provost Marshal's office saidthe "bulk" of the other files were not transferred to civilian police because the victim decided to drop the investigation.

Other sexual offence files were not transferredbecause the acts allegedlytook place outside Canada, where civilian police do not have jurisdiction, the office said.

"We do look to transfer files whenever possible," said Hanrahan. "But we do ensure still that we are keeping a victim-centred approach and that we're able to speak with the victim and ensure that the victim does want to go forward with their investigation by the civilian police."

Hanrahan said she wants to ensure victims are not "traumatized" by being put in a situation where they don't want to speak to civilian police or go forward with an investigation at all.

Military investigators have been speaking to victims and explaining potential complications involved intransferring their files to civilian police, Hanrahan said.For example, she said, if the allegations took place in multiple provinces, multiple civilian police forces would need to be involved, rather than one military police investigator.

'I do not believe this serves any public interest'

But Arbour wrote in her final report that requiring the victim's consent before deciding whether to transfer a file to the civilian system "merely puts an unrealistic burden on the victim."

"It puts victims in an untenable position, requiring them to make a decision about which system is likely to work better for them, with little understanding of the factors at play," Arbourwrote in her final report in June 2022.

"They may regret their decision down the road if the trial results in an acquittal and may be left forever wondering, 'What if I had chosen the other system?' In the end, I do not believe this serves any public interest."

Arbour saiduntil the government stripsthe military of its power to investigate sexual offences, "all new cases should go to the civilian system regardless of any preference expressed by the victim."

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In a new report, former Supreme Court justice Louise Arbour says the Canadian military should permanently move sexual offence investigations into civilian criminal courts, citing past mismanagement of sexual misconduct allegations and an overall resistance to change.

Retired major Sonia Rogersreported her sexual assault allegations in 2021. She said normally it's best to offer victims choices but not when it comes to deciding whethercivilian policeshould investigate.

"There's no way for someone having just experienced trauma to have all the information that they need to make the decision of whether to go with the military or the civilian side," she said.

Rogers said she would have wanted civilian authorities to handle her case, but was not given the option.

A branch of the military policeinvestigated her allegedhistorical assault in 2021. Shesaid military investigators recommended charges,but military prosecutors threw out her file the same day the government announcedthe military would have to transfer all files to civilian authorities.

"Any Criminal Code violations that are prosecuted in the military will always be looked at first through the lens of protecting the institution, and second through the lens of justice for the victim," said Rogers.

Two other people who said theyexperienced sexual trauma in the militarytold CBC Newsthey should have the right to decide for themselves if military or civilian authorities handle their case.

In two recent cases in Ontario, judges stayed sexual assault cases because the cases took too long to go to trial.

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Retired colonel Michel Drapeau, an expert in military law,said the government should have changed the law long ago to ensure the military transferred all sexual offence cases to civilian police. He said he's concerned the number of files the forces hold on to will continue to grow until that happens.

"It's open resistance, dragging their feet," said Drapeau. "I find that contrary to everything I believe in, civil control over the military in a democracy."

Director of Military Prosecutions Col. Dylan Kerr wrote his own interim directive to military prosecutorsin late 2021in response to Arbour's interim recommendation. He noted that Arbour said to actimmediately on retired Supreme Court Justice Morris Fish's recommendation.

If the victim consents, Fishrecommended that sexual assaults bereferred to civilian authoritiesto investigate and prosecute.Kerr wrote in his directive thatit's been a long-standing practice to consider the views of the victims through all stages of a case and that policy is still required by military prosecutors.

Kerr told CBC News thateven if military police investigate, it's no longer an option for the military's judicial system to prosecute any of thesesexual offence cases.He said that since late 2021, the Canadian Forces National Investigation Service hasbeenlaying all new sexual offence charges in the civilian justice system, asArbour recommended.

"It was a lot easier for us to implement the interim recommendation simply by saying ... we won't be accepting any new charges, Criminal Code sexual offences in the military justice system for prosecution by court martial," said Kerr.

CBC News requested an on-camera interview to discusshow the process of transferring cases was unfolding behind the scenes. The military allowed CBC News to record the more than 30-minute interview for note-taking purposes and written quotes, but was told it could notbroadcast the video interview on TV or radio.