Survivors of sexual violence in the CAF deserve justice

After two and a half decades of “reform”, why is Canada’s military justice system still so broken?

By Krystina Sorensen

This past September, one of the first cases of sexual misconduct was transferred from the military to civilian court system — and despite best intentions, the survivor still could not find justice.

Canada’s defence policy, Strong, Secure and Engaged, and Canada's National Action Plan on Women, Peace, and Security emphasizes enhancing women's participation in the Canadian Armed Forces (CAF) and ensuring a safe and supportive environment for all CAF members. The CAF acknowledges that sexual misconduct undermines trust, cohesion, confidence, and morale, posing a threat to CAF’s operational readiness and effectiveness. This violence also runs counter to the values and ethical principles in the Department of National Defense and CAF Code of Values and Ethics.

However, the Canadian Armed Forces (CAF) find themselves ensnared in a disheartening cycle, where recurrent reports of member misconduct or a culture of permissiveness continue to emerge. The military’s response often alternates between attempts to isolate the issue or begrudging acknowledgments of a problem, accompanied by promises of rectification through the military justice system. In each instance, both the CAF and the government commit to comprehensive remedies, with reports and recommendations for improvement.

In 2020, the Honourable Louise Arbour, a former justice at the Supreme Court of Canada, released a report with 48 recommendations, aimed at addressing military sexual misconduct and restoring confidence in the Canadian Forces. One of her key proposals is to enable exclusive jurisdiction over sexual misconduct cases in the military to civilian courts, which would reverse a change made in 1998 to the National Defence Act that gave the military shared jurisdiction in the first place. Justice Arbour argues that this shift from civilian to military courts has resulted in a systemic failure to hold perpetrators of sexual violence accountable, which has eroded trust and morale in the military over the past two decades. 

However, the implementation of the report’s recommendations faces several practical challenges. To begin with, civilian courts do not necessarily have the capacity or the will to take on the military’s sexual misconduct cases. While around 30 sexual misconduct cases remain within the military system, civilian courts handle 2,300 sexual offence cases annually. Since December 2021, approximately 93 military cases have been referred to civilian police, with 64 under investigation and 29 cases receiving no further action. Furthermore, 97 cases reported to military police were not forwarded to civilian authorities, raising concerns about the proposed system's effectiveness. Civilian police authorities are reluctant to take on these cases, despite having held  jurisdiction prior to 1998. 

Change takes time, but after two and a half decades of “reform”, why is Canada’s military justice system still so broken? Retired Corporal Arianna Nolet's case illustrates this issue. Even in the civilian justice system, she faced obstacles, including changes in crown attorneys and seemingly endless bureaucratic hurdles.

According to the Supreme Court of Canada, cases in the provincial court system must take no longer than 18 months to be tried, so as to uphold the accused’s rights under the Charter of Rights and Freedoms. For military cases, this deadline starts when the military first charges the accused, even if the case is later transferred to a civilian court in the provincial system. 

For Nolet, these limitations had disastrous consequences. Judge Richardson found that Nolet’s case took 21 months – nine months in the military system and another year in the civilian system – so the case had to be stayed to honour the accused’s rights under the Charter. The judge pointed to failures by both the Crown and defence in neglecting time constraints that led to the conclusion of the case. 

Months after Nolet's case was transferred, Justice Arbour amended her interim recommendation, suggesting that cases already in the military's judicial system should continue to be prosecuted there.

Nolet raised concerns about the delays and sought to appeal Richardson's decision. Unfortunately, the Crown opted not to pursue the appeal. Her story serves as a stark reminder of the potential consequences if the existing legal framework remains unchanged. The dual jurisdiction in which these cases are enmeshed often results in a tug-of-war between the military's insistence on retaining control and the civilian system's concerns about the potential case overload. This precarious situation underscores a systemic flaw in urgent need of rectification.

As a result, it is unsurprising that the CAF is struggling to recruit women.To meet the CAF's 2026 goal of 25% of its ranks made up of women, there is a clear need for significant change. This implies not only doubling the average representation rate among new enrolments, but also a necessary shift in the status quo.

The government’s current approach has been to invest in extended studies and more recommendations, which only exacerbates the growing frustration. Considering the urgency surrounding military sexual offences, the following policies, inspired from Arbour's Recommendations should be implemented to reform the  military justice system:

1. Establish a Specialized Military Sexual Offenses Unit in the Civilian System:

To tackle some of the jurisdictional and funding issues, a specialized unit can be created within the civilian legal system to handle military sexual offences. This unit would be made up of legal experts, supported by input from sexual assault survivors specific to the military to  address the unique challenges in the CAF. This unit could streamline legal proceedings, while ensuring a deep understanding of the military context as well as a higher level of efficiency. To legitimize its jurisdiction, it should be backed by legislative authority. 

The specialized unit would account for Arbour’s concerns by removing the military’s jurisdiction, which may lead to more just outcomes for survivors. For example, the conviction rate for sexual assault through court martial proceedings in Canada was approximately 14 per cent, compared to 42 to 55 per cent in Canada’s civilian criminal court system. Likewise, the acquittal rate for sexual assault cases in Canada’s civilian system was 8 to 10 per cent, while the rate in the military legal system was 31%. 

2. Mandatory Timelines for Case Resolution:

Setting strict and mandatory timelines for case resolution may be an effective policy option. The government can establish clear legal requirements that all military sexual offence cases must be resolved within a specified timeframe, while also respecting the accused’s rights to a fair trial. These timelines should align with the principles of justice and fairness but also ensure that cases do not fall through the cracks in the legal system.

3. Independent Oversight and Accountability:

Establishing an autonomous body charged with overseeing and evaluating the progress of military justice reforms is a crucial step. This body should be vested with the authority to assess the implementation of recommended changes, thereby ensuring transparency and accountability in the process. Independent oversight is essential to prevent any delays or inaction in the reform process, as well as to hold both the military and the government accountable for ensuring timely justice. In contrast to the current Sexual Misconduct Response Centre (SMRC) established in 2015, it is imperative that this new entity operates completely independently from the military's governing structure. 

Moreover, this independent office could facilitate "restorative engagement," a commitment made in a 2019 settlement agreement with survivors of military sexual misconduct who had initiated a class-action lawsuit. This provision would give survivors the option to seek accountability, address the harm they have endured, share their experiences with the perpetrator or senior military officials, and embark on a path towards potential reconciliation and healing, rather than being subjected to the conventional, punishment-focused military disciplinary system. 

No one who has experienced sexual violence should have to worry whether their case will reach a decision, or even see the light of day. It is time for the Canadian Armed Forces to re-prioritize the safety and well-being of its officers and be stripped of its power to handle sexual misconduct, because it has proven time and time again to be unable to meet its responsibilities. 

By implementing these reforms, the military can prioritize swift justice, streamline procedures, and enhance accountability, thereby ensuring perpetrators of sexual violence in military institutions are held accountable. Anything less compromises our commitment to a just and accountable armed force.

Krystina, an aspiring MPP candidate at the Max Bell School of Public Policy, also holds the esteemed role of Assistant Editor at The Bell. With a strong academic foundation in Criminology and Psychology, she brings over three years of diverse experience gained in both the non-profit sector and the esteemed Federal Public Service. Krystina is passionate about championing human rights causes, promoting gender equality, and advocating for meaningful law and legislative reforms.