Canada’s military police have attempted to transfer 62 cases of sexual assault to civilian police since last fall, but about half of those files have been refused and returned.
The Canadian Forces have released new figures in response to requests from CBC News and the release of a blistering independent report on the military’s ongoing crisis of sexual misconduct.
Canadian Forces Provost Marshal Brig.-Gen. Simon Trudeau confirmed that since November 2021, the military has attempted to transfer 49 new cases of sex crimes to civilian police. The police accepted 22 files and rejected 27.
The military police also tried to transfer 13 pending cases to the civilian police; nine of those files are now under investigation and four cases have been dismissed.
“The transfer and referral of cases raises a wide range of complex issues,” Trudeau wrote in a statement on the figures, which were current on May 30.
“Some agencies were not ready to accept investigations for reasons that reflect the diversity of law enforcement contexts in Canada.”
The numbers show the challenges the military faces in trying to heed an interim recommendation by former Supreme Court justice Louise Arbor to turn military vice cases over to civilian investigators.
On Monday, Arbor released a comprehensive final report calling for the Canadian Armed Forces to be permanently stripped of their authority — granted in 1998 — to investigate and prosecute sex crimes committed against military members.
Arbor called on the military to hand over sex crime files to civilians as part of its interim recommendations last fall — recommendations that Defense Secretary Anita Anand accepted in November 2021.
Now Arbor wants to make that change permanent by giving civilian law enforcement exclusive jurisdiction over cases of military sexual misconduct. She said it would provide “more equality for victims”.
Some civil police forces resist accepting cases
Arbor has expressed serious concern that the military wants to “sharply enforce” its jurisdiction. She also pointed out at a news conference on Monday that the civilian police forces “surprisingly, in my opinion, have already expressed some reluctance in some cases to exercise any jurisdiction they currently have”.
“While some outside police forces were almost immediately open to receiving files, others refused to accept files involving CAF members,” the Arbour report said.
The Arbor report states that the BC Urban Mayors’ Caucus sent a letter to Prime Minister Justin Trudeau and Anand in January warning that “the civil justice system is currently no longer able to be on the front lines in fighting of the COVID-19 pandemic.”
The Ontario Association of Chiefs of Police warned the county attorney general that taking cases of military sexual misconduct could open the door to a host of historic sex crimes, the Arbour report said.
WATCH: Louise Arbor discusses handing over sex crime files to civilian police
The group also said investigators should be trained in the military context and expressed concerns about investigators’ access to military documents, the report said.
The Association des Directors de Police du Québec said it could not accept military files without approval from the province’s public security minister, Arbor wrote, while the British Columbia Association of Chiefs of Police advised police forces to refuse military files until legal and procedural problems are resolved.
RCMP has started accepting business in the new year
Not all police forces resist.
Anand said the RCMP began accepting the military’s business in January. Quebec’s Ministry of Public Security has been advising the province’s police forces to accept new files since February. Several local law enforcement agencies have also taken cases on an ad hoc basis, Anand said.
“We have made significant progress in referring investigations to civilian police forces,” Anand said in a statement to CBC News on Thursday.
“As Madame Arbor points out in her report, there have been problems with certain jurisdictions, so I’m writing again this week to provincial and territorial partners about the way forward.”
Anand said she plans to set up an intergovernmental body to handle the transfer of business. Arbor has said that shouldn’t be necessary.
WATCH: Defense Minister Anita Anand responds to Louise Arbour’s report
Arbor estimates in its report that taking military records would provide civilian police in most provinces and territories with only about 20 additional investigations of sexual assault each year, based on military statistics from 2016-2021. Ontario is the exception; According to the Arbor report, police forces in that province are expected to handle about 70 cases a year.
Arbor also said she estimates that only 30 cases of sexual misconduct are tried in the military justice system across the country each year. Civil courts handle more than 2,300 sex offense cases a year, she said.
“We’re talking about 30 cases a year across the country, seriously,” Arbor said at Monday’s news conference.
Arbor pointed to the example of traffic problems. She said that while the military and civilian authorities both have jurisdiction over these matters, the military is “happy to let the civilians” handle them.
Elaine Craig of Dalhousie University is an expert on sexual assault and researches the Canadian military justice system. She said she finds it “deeply disturbing” that the civilian police have rejected so many military files.
“I think it’s important to emphasize that the civil system has had full jurisdiction all along,” Craig said.
“It seems to me that the civilian police forces that accept these cases… are doing their job and those who refuse them, looking for more money or task forces or whatever, are failing to fulfill their responsibilities. And, frankly, in the absence of these survivors.”
Expert calls for amendment of the National Defense Act
Michel Drapeau, a longtime military law expert and retired colonel, argues that the only way real change will happen is if the government amends Section 70 of the National Defense Act to prohibit the military from prosecuting sex crimes.
Drapeau said that as long as the military retains jurisdiction, civilian authorities have the ability to say no and decline cases.
“The only way to make sure it’s done 100 percent is to amend Section 70 and bring back sexual assault as one of the offenses for which the military has no jurisdiction,” Drapeau said. “It’s that simple.”
Section 70 states that the military cannot try military members charged with murder, manslaughter and a variety of other crimes.
Anand called Arbor’s request to permanently transfer cases to citizens a “system-changing recommendation” that the government would “examine seriously” while the interim measure is in place.
“I am writing again this week to provincial and territorial partners about the way forward…I am determined to ensure that those who have experienced sexual misconduct receive the support they deserve,” Anand said.
The Canadian Forces Provost Marshal said the military police are currently transferring cases to civilians in a “deliberate and carefully planned manner” and that the “primary concern is victim assistance throughout the process.”
“Our goal is for civil law enforcement agencies to investigate all criminal sex crimes allegedly committed by a CAF member over which they have jurisdiction,” wrote Brig.-Gen. Trudeau in a statement.