Impact of Access to Justice on Sexual Misconduct Charges

When policy makers discuss transferring sexual assault cases from the military justice system to the civilian criminal justice system, why is no one talking about access to justice?

 In early November 2021, the (then) new Minister of National Defence (MND) announced that she would direct that “… sexual misconduct cases [arising in the Canadian Forces] will be handled by civilians …”.

That rather broad and imprecise statement required the new MND to further clarify her policy position.  (And, arguably, the imprecision may also have been a consequence of less-than-accurate reporting.)  As reporting was refined, the policy shift appeared to be that criminal offences of a sexual nature would be referred to civil authorities and prosecuted before civil courts of criminal jurisdiction.  Allegations of non-criminal sexual misconduct (or, again, more accurately, sexual misconduct not falling within the parameters of the Criminal Code) could continue to be investigated and prosecuted under the Code of Service Discipline, as would allegations of criminal misconduct not of a sexual nature.

This policy direction was driven, in part, by Recommendation #68 from the Report of the Third Independent Review Authority to the Minister of National Defence Pursuant to subsection 273.601(1) of the National Defence Act, RSC 1985, c N-5, completed by former Supreme Court of Canada Justice Morris Fish at the end of April 2021.

That policy position was also driven by an interim recommendation from Madame Arbour: Interim recommendations from the Independent External Comprehensive Review of the Department of National Defence (DND) and the Canadian Armed Forces (CAF).

These recommendations, and the MND’s policy direction, led, in turn, to policy statements like that from the Director of Military Prosecutions (DMP): Interim Direction Regarding the Implementation of Madame Arbour Interim Recommendation.

And it is noteworthy that not all such investigations or prosecutions have been referred to the civilian criminal justice system.

As recently as 31 May 2022, Professor Elaine Craig of Dalhousie University lamented in the Globe and Mail that civilian police chiefs were refusing to accept military sexual assault cases.  The merit of such ‘refusals’, and whether they truly are refusals, warrants examination.  However, this snag in the Minister’s direction is due, at least in part, to the fact that those police chiefs do not work for the MND, and it is doubtful whether the impact of the Minister’s direction in early November 2021 was fully ‘staff-checked’ before she made that significant announcement.

Also, as I mentioned back in November, it was unclear precisely how the MND issued her direction to DMP and the Canadian Forces Provost Marshal.  What is clear, under the NDA, is that such direction is expected to be issued through the Judge Advocate General and the Chief of the Defence Staff, respectively.  It is still not clear is that was the case.

I suggest that these recommendations, and policy direction, were prompted, at least in part, by conclusions that the ‘military justice system’ is somehow less capable than the civilian criminal justice system in obtaining convictions regarding alleged sexual misconduct.

Notwithstanding that I believe that improvements can be made to the military justice system, I contend that the assertions that the military justice system is deficient in this regard fail to acknowledge or examine a critical factor regarding the rate of acquittals in the military justice system.  And that factor is the impact of Defence Counsel Services, and more particularly, the access that CF personnel have to competent representation free of charge.

This is a fundamental factor in access to justice.

 The military justice system has been under heavy fire for how it handles sexual misconduct in recent years, with no end in sight. In 2015, the Report by former Supreme Court Justice Marie Deschamps highlighted various issues around how the military was responding to sexual misconduct in the ranks. In 2020, Professor Elaine Craig from the Schulich School of Law at Dalhousie University noted that the military justice system had a lower conviction rate for sexual offences than the civilian justice system. Professor Craig noted a roughly 28% conviction rate for sexual crimes compared to the civilian system’s 42-55%.  Her study seemed to suggest that the military was failing in its efforts to prosecute sexual crimes.  Certainly, that is how it has been characterized by various commentators and rent seekers.

Now, Madame Arbour has published her report: The Report of the Independent External Comprehensive Review of the Canadian Armed Forces and Department of National Defence (the ‘Arbour Report’), where she has echoed the same concerns as Professor Craig. The Arbour Report places the military justice system’s conviction rates a bit higher, closer to 40%, but still lower than its civilian counterpart. This appears, on its face, to signal some kind of problem in the military courts. But one factor that neither Professor Craig nor Madame Arbour appear to acknowledge directly is that military members have unparalleled access to justice compared to civilian accused. In simple terms, military members are entitled to competent criminal defence counsel to defend them in military courts free of charge.

One must then wonder: if every civilian had access to the same standard of criminal defence – free of charge – would the civilian system’s conviction rates be more similar to that of the military justice system?

Access to justice (or in other words, the ability to have meaningful representation by a lawyer) is a massive problem outside of the Canadian military. In her remarks to the Empire Club in 2007, the Right Honourable Beverley McLachlin, P.C., the then Chief Justice of Canada (and the current Honorary Captain (Navy) of the CF’s Legal Branch) provided that: “The most advanced justice system in the world is a failure if it does not provide justice to the people it is meant to serve. Access to justice is therefore critical. Unfortunately, many Canadian men and women find themselves unable, mainly for financial reasons, to access the Canadian justice system.”

More recently, at the end of March 2022, the current Chief Justice of Canada, the Right Honourable Richard Wagner, told students at his old Montreal high school that the country’s judicial system remains far too inaccessible to many Canadians. He said:

“There is now better access to justice, but it remains an urgent issue.”

He noted the number of unrepresented applications to the Supreme Court, which is about 100 out of 500-600 litigants, demonstrates there is a problem with which he is “enormously preoccupied.”

In the civilian criminal justice system, legal aid is only available to citizens if they fall below a certain income range.  Although it varies from province to province, this threshold is generally around the poverty line. If you have an annual income above $18 795 in Ontario, then you have to fund your own lawyer – and, yes, I acknowledge that there are exceptions to this general rule.  Never mind that decent defence lawyers cost anywhere from $200 to $800 an hour (the better the lawyer, the more they cost) and people who make over the legal aid limit per year still have to pay their mortgages, debts, groceries, child-care costs, and generally fund their existence. Very few people, even at the comfortable upper-middle class range, can easily afford a lawyer. More importantly, serious cases and complicated defences require civilians to pay their lawyer more. If you choose to plead guilty and your lawyer is only involved in a few hours of negotiating a plea resolution and a quick appearance in court, you might only pay a total of $1500 for your legal fees. But if your Charter rights have been violated or there are complicated evidence issues that must be addressed, and you need a full trial with multiple witnesses, then your legal fees could rival the cost of your car, or even your house.

The level of justice someone receives – outside of the military – is unfortunately linked to their financial means. I will use an illustrative example from a recent case heard at court martial: R v Private Waugh, 2021 CM 5021.

Private Waugh was charged with sexual assault, contrary to s 271 of the Criminal Code, and tried under the military justice system by virtue of para 130(1)(a) of the NDA.  Private Waugh was found ‘not criminally responsible by reason of ‘mental disorder’, due to his affliction of somnambulism, more commonly called sleepwalking.  And I will go so far as to suggest that this outcome was the result of a highly competent and dedicated representation by a bright and talented lawyer from Defence Counsel Services.  And I would suggest that Private Waugh likely would not have been able to afford such representation if he had been obliged to fund it himself.

Some people inflict harm on others while in a sleepwalking state.  It is rare, and when such afflictions result in a finding on ‘not criminally responsible’, there will inevitably be some who will gnash their teeth over assertions that a person ‘got away’ with criminal misconduct.  But such ill-informed and closed-minded views do not diminish the requirement for the Crown to prove the mens rea of an offence.

To be found guilty of an offence when you aren’t awake (and therefore didn’t act voluntarily) would be a serious miscarriage of justice. However, a so-called ‘sleepwalking defence’ requires expert witnesses, extensive evidence, and capable legal counsel who must spend many hours in preparing such a defence. A ‘sleepwalking defence’ would easily cost someone between $50 000 and $150 000 in legal fees depending on the quality of their lawyer and the expert witness(es). So, if someone can barely afford more than a few thousand dollars for a lawyer, there is an increased risk that they might plead guilty even though they may not be guilty of a crime. And if you don’t think this is a problem, then you do not understand the nature and function of the criminal (or military) justice system.

The military justice system stands in stark contrast to the civilian system in many ways, but perhaps most profoundly in terms of access to justice. Every CF member prosecuted before a court martial has the option to choose representation by counsel from Defence Counsel Services (DCS), which is funded by the Crown.  As an aside, when CF personnel contact me seeking to retain me to represent them at Court Martial, I will typically ask them from the outset if there is a compelling reason why they do not wish to be represented by the capable counsel at DCS.  I will point out to them that it could easily cost them $25,000, $50,000, or more, plus disbursements like travel costs, to retain me, whereas representation by counsel from DCS is free of charge.

Some people might be inclined to suggest that this representation by DCS is, in effect, a gift to CF personnel in return for their ‘unlimited liability’.  However, a more pertinent reason is that this is the cost of maintaining a separate, parallel system of military justice.  And, as we have learned from SCC judgments like R v Généreux, [1992] 1 SCR 259 and R v Stillman, 2019 SCC 40, the cost of maintaining a separate system of military justice is part of maintaining the “… discipline, efficiency, and morale of the armed forces …”, and is, therefore, part of the cost of maintaining an armed forces.  In his 2021 independent external review of the military justice system, former SCC Justice Morris Fish was asked to review the mechanism to control the expenditures of military defence counsel. Justice Fish found that “Access to free legal counsel, regardless of income, is a benefit extended to the members of the Canadian Armed Forces as a counterpart to the extraordinary duties that are imposed on them.” (p 31, para 130)

Access to justice is significant for military members who (in the case of personnel in the Regular Force and some Reserve Force personnel) are subject to military law, including the Code of Service Discipline, on a 24/7 basis, all over the world. Consequently, the location where offences are alleged to have occurred is not always the location where the complainant, the accused, or the witnesses live.  It may not even be where the court martial is conducted. This means that if CF members are charged before a civil court of criminal jurisdiction and has to pay for their own legal services, they would bear the costs of having their lawyer (and some witnesses) travel to different parts of the country in support of their defence. This process can be far more crippling when charges are laid against a member deployed on international operations.

In the civilian criminal justice system, an accused facing sexual assault allegations will obtain access to a lawyer in three circumstances: if he or she qualifies for legal aid based on a markedly low level of income; if he or she pays for whatever legal help they can afford; or, if the court appoints counsel for the limited role of cross-examination of the complainant.

This last route is a double-edged sword – if an accused is self-represented in a sexual assault trial, the court may appoint a lawyer to cross-examine the complainant under s. 486.3(2) of the Criminal Code. This is intended to protect the complainant, not the accused, as a self-represented accused may cause further injury to a complainant through a cross-examination that doesn’t follow the relevant legal rules (principally those that protect complainants from prejudicial or myth-based questioning). This may sound like a benefit for the accused; however, cross-examination is a small (albeit profound) part of the overall proceeding, and the choice does not lie with the accused.  That decision is made by the judge on a motion from the prosecutor or the complainant. Then, the accused is still left alone to make major decisions about whether or not to plead guilty to go to trial, whether or not to testify, or how to advocate for an appropriate sentence.

The presence of defence counsel in a courtroom permits a judge (or a jury) to hear a perspective that otherwise might not be conveyed.  The law is a language of its own, in which unrepresented or self-represented litigants are generally not even conversational let alone fluent.  Ineffective assistance of counsel can be grounds, on appeal, to quash a conviction where it leads to a miscarriage of justice.  But how many miscarriages of justice arise because an accused pleads guilty because she or he cannot afford counsel or cannot afford a robust defence in the face of the might of the Crown?  I am reminded of the adage: “the only thing worse than a defence lawyer in the courtroom, is not having a defence lawyer in the courtroom.” Even the judge and the prosecutor encounter greater difficulty when the accused is not represented by counsel. Asking someone to go to court without a lawyer is arguably akin to asking someone who is not a doctor to diagnose and treat their own illness.

On 30 May 2022, the Arbour Report was made public, and included the recommendation that all sexual offences arising within the Canadian Forces should be investigated and prosecuted in the civilian justice system. If implemented, all CF members would have to pay out of pocket for legal representation in such matters, just like all other persons brought before Canadian civil courts of criminal jurisdiction. Senior officers, who are generally paid more than junior non-commissioned members, will inevitably be better able to afford robust defence.  The same can be said for personnel who benefit from the receipt of significant allowances.  Income will play a role on decision-making. Whether this is a fair trade is yet to be seen, but we should be talking about what is being surrendered in order to seek higher conviction rates and also whether a ‘higher conviction rate’ is a valid goal). If all criminal sexual misconduct cases are transferred from military jurisdiction to the civilian justice system, there’s a baby in that bathwater.

Although Madame Arbour did note the possibility of military members still having their defence funded in the civilian criminal justice system, she stopped short of making it a recommendation. But the access to justice enjoyed by military members is just one facet of the overall issue. There’s more to this conversation, including how conviction statistics in the two systems are influenced by the presence of defence lawyers in the process, and the fact that access to justice for civilians outside of the military is still a pressing problem for our society.

So, let’s turn the discussion on its head. What if, when people have greater access to justice, conviction rates are naturally lower? And, more importantly, what if that’s ok? What if that is valid objective?  What if our focus ought to be on ensuring that all Canadians have access to justice and, thereby, ensure that justice is done?  What if the heavens don’t fall if we do so? What if the civilian system’s higher conviction rate is the real problem? I do not yet know the full answer to these questions, but I know we should be talking about them.

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