Minister of National Defence Announcement – Sexual Misconduct

 

So, the big news in ‘Military Justice’ yesterday was that the new Minister of National Defence, Anita Anand, has directed that “… sexual misconduct cases will be handled by civilians”.

Pardon my cynicism, but this announcement raises more questions than it answers.  And I have my doubts about whether this is the ‘solution’ that some people appear to believe it is.  Many of the criticisms (and some have more merit than others) revolve around alleged failures of leadership.  If that is one of the principal sources of disciplinary failure, then outsourcing a segment of disciplinary responsibility (while retaining other disciplinary responsibility) does not appear to address the problem.

My concerns start with the fact that the initial statement above – a statement made by most news media outlets – is not entirely correct.  It isn’t ‘sexual misconduct’ matters that the Minister appears to have directed will be investigated and prosecuted by civil authorities – it is allegations of criminal offences of a sexual nature that will be investigated and prosecuted by civil authorities.

Some instances of sexual misconduct might be prejudicial to good order and discipline but will not necessarily rise to the level of an actual Criminal Code offence.  Those, presumably, will be left to military authorities to investigate and address, along with criminal offences not of a sexual nature.

And, presumably, some incidents of misconduct would be best addressed under the CF Harassment Prevention and Resolution policy under Defence Administrative Order and Directive (DAOD) 5012-0 and the CF Harassment Prevention and Resolution Instructions.

It remains unclear who will make the determination that a matter will be forwarded to civil authorities and at what stage in the process.  And we should also bear in mind that, even before this announcement, nothing barred a complainant from reporting alleged criminal misconduct, involving a CF member, to civil authorities.

The decision was prompted by a recommendation from Justice Arbour (who is presently conducting (yet another) “Independent External Comprehensive Review of the Department of National Defence and the Canadian Armed Forces”).  Justice Arbour’s recommendation was predicated upon ‘Recommendation #68’ in 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 Justice Morris Fish at the end of April 2021.

Justice Fish’s ‘Recommendation #68’ stated:

Recommendation #68. The Declaration of Victims Rights should be brought into force as soon as possible, ensuring that victims investigated or prosecuted under the National Defence Act will be entitled to substantially the same protections as the Canadian Victims Bill of Rights affords. Until the Declaration of Victims Rights comes into force, and unless the victim consents:

(a) sexual assaults should not be investigated or prosecuted under the National Defence Act and should instead be referred to civilian authorities; and

(b) there should also be a strong presumption against investigating and prosecuting under the National Defence Act other offences committed against a victim.

Moreover, the National Defence Act should be amended to expressly incorporate, in substance, the rights and protections afforded by the Criminal Code to victims and to persons accused of sexual offences.

 

News reports state that Justice Arbour “… recommended all criminal cases of a sexual nature, including historical cases, be referred to civilian authorities. That includes cases currently under investigation, unless that investigation is nearly complete.”

The Minister of National Defence made public both Justice Arbour’s letter of 20 October 2021, and the Minister’s response dated 3 November 2021.

What the Minister’s letter does not specify – and what is not clear from any of the prior documents – is whether this policy shift will also include offences of a sexual nature that arise outside Canada – e.g., while CF personnel are deployed on operations.

The Minister’s letter does state that the Canadian Forces Provost Marshal (CFPM) and the Director of Military Prosecutions (DMP) “… are working quickly to develop the mechanisms and processes that will be required to implement …” these interim recommendations, including engaging “… federal, provincial and territorial (FPT) counterparts on implementation of …” these recommendations.

One of the principal justifications for Justice Arbour’s recommendation was a lack of confidence in the independence and competence of the Military Police led by the CFPM:

“On the other hand, I have heard, in the course of my review, significant skepticism on the part of stakeholders and most importantly survivors, with respect to the independence and competence of (military police)…”

 

There have been sustained assertions that the Code of Service Discipline (what is typically referred to as the Military Justice system) cannot handle sexual misconduct offences.  There have been sustained assertions that the Military Police are not sufficiently competent or independent to investigate such matters.  And there have been sustained assertions that the military hierarchy either has a chilling effect on complaints or that it adversely affects the prosecution of such complaints.

If those assertions have merit, then I have a lot of questions.

First, does that mean when there are allegations of sexual misconduct arising on deployed operations, civilian police are going to investigate?  Will civilian police do so even if some witnesses are in Canada and others are deployed?  If those investigations will be left to the Military Police, or aided by the Military Police, but we cannot trust the Military Police to conduct those types of investigations, then have we actually solved the problem?

Or was there an omission in the Minister’s direction, and this new policy direction will not apply to allegations arising on overseas deployments?  And if that is the case, why can we suddenly have confidence in the Military Police to conduct those investigations, but not investigations in Canada?  And why can we then have confidence in the Code of Service Discipline to prosecute such matters, but not when they arise in Canada?

And for that matter, why can we have confidence in the Military Police investigating non-sexual criminal misconduct, or non-criminal sexual misconduct, if we cannot have confidence in Military Police investigating criminal sexual misconduct?

And the same goes for prosecutions under the Code of Service Discipline.  Why can we be confident in the prosecution of non-sexual criminal offences and non-criminal sexual offences before courts martial, if we cannot have confidence in courts martial presiding over allegations of sexual assault?

And if the military hierarchy does have a chilling effect on complaints insofar as complainants fear reprisal by the hierarchy in the administration of the affairs of the CF, then how has this policy direction altered that circumstance?  The military hierarchy will remain.  And, even if a complainant reports the alleged misconduct to civil police directly (something that could have been done in many cases even without the Minister’s direction), the subject of the investigation will eventually become aware of the investigation.  Asking that civil authorities investigate and prosecute allegations of criminal offences of a sexual nature does not alter the hierarchical nature of the Crown-soldier relationship.

And a ‘chilling effect’ caused by the actions of the military hierarchy, if true, is a leadership issue.  How does this policy change correct that leadership issue?

The short answer is: it doesn’t.  The policy announcement certainly grabbed headlines.  But it may well be a great deal of sound and fury signifying nothing.

And I do not mean to over-simplify these issues.  Despite sharing many elements with the offence of assault, the offence of sexual assault is a different offence, and is viewed as markedly different by members of the public.  There are specific issues that arise in the investigation and prosecution of sexual assault that do not tend to arise with the offence of assault, or other non-sexual offences.  But we have not seen much compelling evidence that the Code of Service Discipline has dealt with sexual assault more poorly than other offences.

There has been repeated reliance on a paper published by Professor Elaine Craig[1], from Dalhousie University, which was critical of both Director of Military Prosecutions (DMP) and military judges regarding the prosecution of sexual assault under the Code of Service Discipline.  Two of the principal criticisms offered by Professor Craig were: (1) that DMP agreed to an inordinate number of ‘guilty plea resolutions’ whereby an accused could ‘escape’ conviction for sexual assault by pleading guilty to an offence under section 93 (‘Disgraceful Conduct’) of the National Defence Act (NDA), or other ‘unique’ military offences; and, (2) that the conviction rate at court martial was statistically lower than the rate of conviction in civil courts.

Part of the problem with this analysis is that it examined prosecutions over a fairly limited scope of time (principally 2015 to 2018) and the sample size of the number of prosecutions was markedly smaller than the civilian criminal justice system.  And I should be cautious about using the term ‘sample size’; while the paper presented argument that might appear to some to be predicated upon quantitative empirical analysis, it did not, strictly speaking, present quantitative empirical analysis.

Even putting aside the marked differences in sample size, while Professor Craig reported a lower conviction rate for the Military Justice system, there was no means to evaluate whether this lower rate was due to the Canadian Forces National Investigation Service (CFNIS) laying charges, or DMP prosecuting charges, where there was not a reasonable prospect of conviction, or where the prospect of conviction was low.  We know that there was a lower conviction rate; however, despite Professor Craig subsequently taking issue with the judgments of certain military judges, we are left with some doubt as to the cause of the lower conviction rate.

Professor Craig also took issue with the lack of severity in some sentences.  Specifically, she examined the sentences imposed in R v Brunelle, 2017 CM 4001 and R v Chapman, 2016 CM 4019.  Both of these matters were tried before military judge Commander M. Pelletier.  However, what Professor Craig does not expressly acknowledge when criticizing these sentences, is that they were the product of joint submissions and that, consequently, Commander Pelletier (like any civilian judge) was obliged to accept the joint submission “… unless the proposed sentence would bring the administration of justice into disrepute or would otherwise be contrary to the public interest.” (R v Anthony‑Cook, 2016 SCC 43).

Professor Craig criticized decisions by military prosecutors to resolve courts martial through guilty pleas to ‘lesser offences’ (such as Disgraceful Conduct contrary to section 93 of the NDA).  What Professor Craig appeared to minimize was the possibility that DMP agreed to such resolution because of factors that might reduce the probability of conviction for sexual assault.  The sample size was so small that Professor Craig could actually list most of the specific prosecutions.  But we do not, and cannot, know how strong or weak the evidence was in each case that was resolved by guilty plea.

When discussing the ‘alternative charges’ Professor Craig mentions offences under sections 129 (Conduct to the Prejudice of Good Order and Discipline), 97 (Drunkenness), and 93 (Disgraceful Conduct) of the NDA.  And while a conviction under section 129 of the NDA will not always carry a ‘criminal record’, what Professor Craig failed to specify was how many of the guilty plea resolutions were limited to a plea to an offence under section 129 and a sufficiently light sentence that no criminal record would follow.  In reality, many (if not most) of these guilty plea resolutions during the period she examined included a plea to ‘disgraceful conduct’ under section 93 of the NDA, which always results in a criminal record.

Assuming that the prosecutors in DMP are not craven individuals who would abandon a prosecution that has a reasonable prospect of conviction, the decisions to agree to such resolution were likely driven by factors that the military prosecutor perceived would weaken the prosecution.  So, the prosecutor opted for a lesser offence that would still result in both punishment of the offender, and subsequent administrative action that would be predicated upon the conviction.  Granted, that is speculative on my part; but it is also speculative to suggest that military prosecutors improperly or imprudently agreed to pleas to ‘lesser offences’.

In comparison, in the civilian criminal justice system, prosecutors and defence counsel often face an ‘all or nothing’ dynamic in the prosecution of sexual assault – particularly in the context of a ‘zero tolerance’ approach to prosecuting such offences.  There is often little scope for the prosecutor to present or agree to a plea to a ‘lesser offence’.  Therefore, an accused faces not only a conviction for a Criminal Code offence, but mandatory SOIRA orders.  So, in all but the most compelling cases, an accused will often contest charges.  And that is a significant consideration when one considers that the vast majority of criminal prosecutions are resolved by guilty plea.

Many people reiterate the broad, conclusory statements that the ‘Military Justice system is broken’, but do not provide particularly compelling examples of how it is broken.  They point to jurisdictional challenges like Beaudry v R, 2018 CMAC 4, while ignoring the eventual outcomes to those jurisdictional challenges: R v Stillman, 2019 SCC 40.  While Beaudry represented a temporary disruption to the military justice system, it would be naïve to believe that similar disruptions do not arise in the civilian criminal justice system (e.g. R v Jordan, 2016 SCC 27).  Indeed, one of the principal sources of disruption arising from Beaudry was the initial reluctance of DMP to transfer matters to the civilian criminal justice system.  But the end result of that temporary disruption – which lasted less than a year – was the certainty that the ‘military nexus’ requirement was no longer an issue.  And, make no mistake, the Minister’s policy announcement yesterday will precipitate further disruption.

Others point to acquittals at court martial, suggesting that this is somehow evidence that the system is broken, as opposed to the possibility that the trier of fact was not convinced beyond a reasonable doubt that the offence occurred.  And many courts martial are Standing Courts Martial, in which the military judge, sitting alone, is the trier of fact.  In those circumstances, the military judge must provide reasons for her or his findings, lending greater transparency to the ‘finding of fact’.  And these findings are subject to appeal if they demonstrate a palpable and over-riding error. (Housen v Nikolaisen, 2002 SCC 33).

And before people rush to assume that investigation and prosecution under the civilian criminal justice system will be a universal cure for sexual misconduct in the CF, there are a few factors we should likely consider.

Take the example of R v MacPherson, 2021 CM 2014.  DMP attempted to prosecute an allegation of sexual assault that was alleged to have occurred prior to the coming in force of amendments to section 70 of the NDA, introduced by Bill C-25, enacted in 1998.  These amendments removed the proscription for prosecuting sexual assault under the Code of Service Discipline where it is alleged to have occurred in Canada.

Counsel for MWO MacPherson successfully challenged the jurisdiction of the Court Martial.  DMP announced that they would appeal the judgment (CMAC-619).  As of 1 November 2021, there is no indication that DMP intends to abandon this appeal.  Indeed, the Appeal Book for that matter was prepared on that date.

But why would DMP pursue a prosecution where jurisdiction was, at the very least, in doubt?  Why wouldn’t DMP simply refer the prosecution to a civil court of criminal jurisdiction?  Could it be that they did, and the civil prosecutor declined to pursue the prosecution?

What will happen now, if a civil prosecutor declines to pursue a prosecution of a CF member accused of sexually assaulting another CF member, and the complainant (or a member of the complainant’s family) writes to the Minister of National Defence, or gives and interview to the news media, demanding justice?  Will the Minister then direct that it should be prosecuted under the Code of Service Discipline?  Or do we believe that Ministers of the Crown are not susceptible to influence by public opinion and ‘political calculus’?

And do we actually think that the civilian criminal justice system will deal with these matters more efficiently than the Military Justice system?  Frankly, during the present pandemic, courts martial have been convened and conducted in a timelier manner than many trials conducted before civilian courts of criminal jurisdiction.  Delay in civil courts of criminal jurisdiction is becoming an increasing concern under the pandemic.

And how responsive will civil prosecutors be to the chain of command where the chain of command perceives that the prosecution is vitally important to maintain discipline?  How responsive will civilian law enforcement agencies be when the chain of command inquires after information in order to support complainants?

And if one of the reasons that these prosecutions are being transferred to the civilian criminal justice system is because complainants do not have any faith in their chain of command, how will this improve that purportedly ‘broken trust’?

What this will likely do is further delay any administrative action that might be taken.  From my perspective, that’s not necessarily a ‘bad thing’.  After all, one of the issues that I have raised consistently in this Blog is that the chain of command is increasingly using administrative measures in a punitive fashion in lieu of using the Code of Service Discipline.  Allegations of misconduct have been reported and investigated by the Military Police (including the CFNIS).  But charges are not laid – presumably due to insufficiency of evidence.  But the chain of command will then take punitive administrative action.

I have posited that the chain of command is increasingly using administrative measures to punish alleged wrong-doing because an ‘accused’ cannot then elect to have the matter tried before a constitutionally independent military judge at court martial.  They need not worry about scrutiny of the evidence by said independent judge.  The chain of command also has far greater control over the process.  No lawyers or judges will ‘interfere’ with their desired outcome.  And if the ‘accused’ objects, well, he (or she) must first exhaust the CF grievance process as an adequate alternative remedy.

Where there are allegations of criminal wrong-doing that will be investigated and prosecuted by civil authorities, such administrative action will have to wait, lest the administrative process (in which a respondent has a right to make informed representations to an unbiased decision-maker) interfere with the accused’s right to silence under the criminal justice process.

Nor is it likely that a civil prosecutor will be as malleable to political pressure as appears to have been the case in prosecutions like R v Stacey, 2019 CM 3017.  Again, that’s not necessarily a ‘bad thing’.

Adding to the imprecision of the public discussion is the conflation of the current ‘GOFO Crisis’ [General Officer/Flag Officer] with assertions that the Military Justice system in insufficient.  We must remember that many of the allegations that have been made against the GOFO, who are the subjects of CFNIS investigations, are dated.  Most do not allege misconduct when the officers were GOFO.  Many describe alleged misconduct that pre-dates the amendments introduced in Bill C-25 in 1998.  It is problematic to suggest, baldly, that reluctance of complainants to come forward in 1989 reflects issues of inadequacies of the Military Justice system in 2021.

But I believe people are deluding themselves if they think this policy decision will bring improvements, either to the Military Justice system specifically, or the administration of the affairs of the CF generally.  I think people are setting themselves up for disappointment when the civilian criminal justice system does not deliver the expected increase in convictions.

And is ‘increasing convictions’ a legitimate policy objective?  After all, it has been a long-held principle of criminal justice that the objective of a prosecutor – whether civilian or military – is not to obtain convictions, but to ensure that justice is done. (Boucher v The Queen, [1955] SCR 16, per Rand J).  We would do well to keep that in mind, along with other key principles such as the ‘presumption of innocence’ which obliges a prosecutor to prove guilt beyond a reasonable doubt.

Improving efficiency, creating safeguards for victims and witnesses, and ensuring fairness in decision-making are all meritorious objectives.  And each of those issues describes procedural improvements.  Ensuring specific outcomes, where the ‘correct’ outcome is necessarily indeterminate at the start of a process, is problematic.

If the purpose is to restore (or instil) trust in the Military Police, confidence in the Military Justice system, and reliability in CF leadership, how, exactly, does outsourcing a specific segment of disciplinary/criminal justice accomplish those objectives?

There is little to suggest that this policy decision will improve the ‘broken trust’ between complainants and the chain of command.

There is a disconnect in logic in the suggestion that the Military Justice system can be trusted to prosecute some criminal offences, and not others, or that it can be trusted to address non-criminal sexual misconduct, but not criminal sexual misconduct.

And, if the Military Police are not competent to investigate sexual criminal offences, why would they be competent to investigate non-criminal sexual offences?  Or non-sexual criminal offences?  A 9-month long investigation is too long for any relatively uncomplicated allegation, regardless of whether it relates to sexual misconduct.

Some people are suggesting that this policy decision will improve morale, efficiency, and administration of the Canadian Forces.  I have my doubts.  It has all the hallmarks of doing something in order to appear to be doing something to fix a problem, without actually addressing the real problem(s).

If we cannot trust the senior leaders in the CF to administer the Military Justice system regarding sexual offences, why can we trust them with other disciplinary offences?  If they cannot be trusted to ensure that justice is done in these matters, how can they be trusted to lead subordinates into harm’s way?

Have we actually identified the real problem, and is this an adequate solution?  Or is this just posturing by a new Minister who wishes to be perceived as a ‘new broom, sweeping clean’?

Remember, we’ve been here before.  A generation ago, legislators, CF personnel, and the Canadian public were lamenting the lack of ability to prosecute all forms of sexual misconduct arising in the CF in Canada.  Now we’re lamenting the opposite.

And did I ever tell you the story about the Zen Master and the little boy …?

 

[1] Elaine Craig, “An Examination of How the Canadian Military’s Legal System Responds to Sexual Assault”, (2020) 43:1 Dal L J 63.