Prosecutor expects 29 sex misconduct cases to stay in military justice system

OTTAWA — While military police are working to transfer sexual misconduct investigations to civilian authorities, the Canadian Armed Forces’ top prosecutor says he expects nearly 30 cases in which charges have already been laid will proceed to court martial.

Retired Supreme Court justice Louise Arbour called in October for the Canadian Forces National Investigation Service to transfer criminal investigations involving allegations of sexual misconduct to civilian authorities unless they were close to completion.

Arbour said the recommendation, which Defence Minister Anita Anand accepted last month, was based on victims’ concerns about a lack of independence on the part of military police when investigating complaints against senior Armed Forces commanders.

In an exclusive interview with The Canadian Press, Col. Dylan Kerr, the director of military prosecutions, said military police are now in discussions with civilian counterparts about handing over investigations.

As a result, he said: “We are not anticipating any new charges of sexual assault of Criminal Code offences of a sexual nature that fall into (Arbour’s) recommendation to be laid in the military justice system. So there’s kind of a stop valve there.”

Yet Arbour’s recommendation did not mention cases where charges have already been laid, and Kerr said there are 29 such files that he expects will continue to be handled by the military justice system.

That expectation is based on consultations with victims in each of those cases, Kerr said, with all of those contacted having so far agreed to press ahead to a court martial.

“We have still 29 active cases where charges had already been laid in our system that we fully anticipate will proceed through the military justice system to completion,” he said.

Kerr added he is not surprised the victims have opted to stick with the military system as they already had several opportunities to have their cases handled by the civilian system even before Arbour’s recommendation.

After a separate review by retired Supreme Court justice Marie Deschamps in 2015, Kerr said, military police and prosecutors adopted new procedures giving victims more control over whether their complaints went to military or civilian authorities.

“We meet with victims all through the process,” he said. “Victims who had from the get-go had a lack of confidence in our system, their case realistically would never have even gotten to the stage it’s at now.”

At the same time, Kerr said his prosecutors were clear in their recent discussions with victims about the risks of moving cases from one system to the other after charges have been laid.

Those include potential delays as civilian courts in Ontario and elsewhere deal with backlogs, and the chance civilian prosecutors could opt against taking a less serious case to trial because of those backlogs.

“When you look at where our cases fall on that wide range of conduct, we tend to be at the lower end of the sphere,” Kerr said.

“I could foresee that there are some cases in which we would have been ready to proceed to a trial where a civilian jurisdiction just may not because of a whole host of factors that apply to them that just don’t apply to us.”

Yet even as Kerr suggested the decision by victims to proceed to a court martial reflected their confidence in the military’s justice system, he acknowledged the system is facing challenges.

Top among them is faltering public confidence exacerbated by what Kerr acknowledged is a serious “gap” in the military’s ability to hold senior officers to account.

The gap was highlighted when a fraud case involving then-chief military judge Mario Dutil fell apart in early 2020, and military police sent former chief of the defence staff Jonathan Vance’s obstruction of justice case to the civilian courts.

Retired Supreme Court justice Morris Fish also noted in a landmark review of the military justice system published in June that it is legally impossible to court martial the chief of defence staff, and extremely difficult for other top officers.

“I’m keenly aware of the impact that it has on the perception of the institution when we have this gap, particularly when you have a gap for the top, because it definitely feeds into the perception of two tiers of justice,” Kerr said.

“And that certainly creates a risk in undermining the confidence in our system, for sure. It’s a very real problem.”

Yet Kerr said work is underway to address the gap and that he remains confident in the military’s system, noting several Supreme Court decisions have confirmed its constitutionality in recent years and that the majority of cases are properly investigated and prosecuted.

“In my view, there is quite a wide divide between the perception of a number of things about our system and the reality of it.”

This report by The Canadian Press was first published Dec. 20, 2021.

Lee Berthiaume, The Canadian Press