Government moves to end military authority to investigate, prosecute sex crimes

OTTAWA — The federal government is formally removing the military’s ability to investigate and prosecute crimes of a sexual nature.

Defence Minister Bill Blair introduced proposed changes to the National Defence Act on Thursday that would remove the military’s jurisdiction over sexual offences under the Criminal Code so long as they happened in Canada. 

But Canadian police do not have jurisdiction to investigate crimes that happen outside the country, including on deployments.

“It would remain the responsibility of the military police to collect the evidence because they would be able to exercise jurisdiction in those out-of-Canada situations,” Blair said. 

The changes were recommended in two independent reports in 2021. 

Former Supreme Court justice Louise Arbour made an interim recommendation in October of that year while working on her independent review of military culture. 

At the time, she said she had heard “significant skepticism on the part of stakeholders and most importantly survivors with respect to the independence and competence” of the military police. 

Arbour called on the government to implement a change first recommended by another former top court justice, Morris Fish, whose June 2021 review of the military justice system found serious issues with its ability to handle sexual offences. 

Then-defence minister Anita Anand accepted the measure and issued a directive to that effect, but formal implementation of the change required amendments to federal law. 

Donna Riguidel, an Armed Forces veteran whose career was cut short by a sexual assault, said she worries the civilian justice system is already overburdened and ill-equipped to handle such cases. 

“I don’t think this is necessarily going to be improvement,” she said in an interview. 

“I just think it’s going to be bad in a different way.”

The government is not providing more resources for civilian police or prosecutors, Blair added: “We’re not talking about tens of thousands of cases, we’re talking about hundreds.”

Riguidel, who is also the founder of a consulting group called Survivor Perspectives that has trained more than 3,000 Armed Forces members in how to support survivors of sexual trauma, said she hopes the military will focus its attention on the kind of “lower-problem behaviours” that have gone unchecked for decades. 

“You can’t discipline or punish this problem away. I wish we could, but we can’t. We have to get to the point that people are empowered and understand how to intervene.”

The military started referring cases to the civilian justice system in December 2021. 

As of January, 150 of the 285 cases reported to military police had been referred to civilian police agencies. Of those referrals, 103 were accepted and 46 declined. 

Another 135 cases were not referred to civilian police. A Defence Department spokesperson said in 64 cases, the victim wanted the military police to investigate, and in another 26 instances the victim chose not to go ahead with any investigation. 

Blair said it was important to “consult widely” before amending the law.

“Justice Arbour herself in her report acknowledged that these changes that she was recommending could take several years to implement,” Blair said. 

“This has been a priority for us and our team.”

Last December, Blair said he had hoped to bring in the proposed law in the fall, pointing the finger at the opposition for slowing the passage of bills. 

Thursday’s legislation makes a number of changes aimed at increasing impartiality and transparency as recommended in the Fish report. 

That includes changing the appointment process for the provost marshal, the director of military prosecutions and the director of defence counsel services — making all three appointees of the federal cabinet and not the chain of command.

Blair said the changes will remove “the potential conflict or perception that those individuals are not truly independent.”

The legislation will also allow non-commissioned military members to become military judges. 

It does not go as far as Fish recommended in “civilianizing” military judges. Senior military officials said consultations on that recommendation are still happening.

Those officials also said Thursday they expect to have implemented 206 recommendations from various independent reports by the end of 2025.

This report by The Canadian Press was first published March 21, 2024.

Sarah Ritchie, The Canadian Press