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Sunday, December 05, 2021

Canada turns over military sexual assault cases to civilian courts

Since February, 11 of its leaders in positions up to the highest rank have come under investigation, been pushed out of their roles or been forced to retire. Other senior military officers have been put on leave over their mishandling of sexual misconduct investigations.

By: New York Times |
November 5, 2021 1:11:33 pm
Minister of National Defence Anita Anand speaks during a news conference after the swearing-in of a new Cabinet in Ottawa. (Reuters)

Written by Ian Austen and Jennifer Steinhauer

The Canadian military will turn over investigations and prosecutions of sexual misconduct cases to the civilian police and courts, the country’s new defense minister announced Thursday.

The announcement came from Anita Anand, a former law professor whose appointment as defense minister last week was widely seen as part of an attempt by the government to get a handle on the sexual assault problem in the military. It grew out of a recommendation from a retired Supreme Court of Canada justice who was asked in April to review the military’s handling of sexual assault and sexual misconduct cases.

The move came in the midst of a crisis for Canada’s armed forces.

Since February, 11 of its leaders in positions up to the highest rank have come under investigation, been pushed out of their roles or been forced to retire. Other senior military officers have been put on leave over their mishandling of sexual misconduct investigations.

Current and former servicewomen have spoken out about what they describe as a military culture that both enables and covers up inappropriate sexual behavior by senior officers.

Gen. Jonathan Vance, the former chief of the Canadian Forces defense staff who retired in January, was charged by the military police in July with one count of obstruction of justice after an investigation into allegations of sexual misconduct.

His successor, Adm. Art McDonald, was removed after he, too, became the subject of a sexual misconduct investigation. Although an investigation by the military police ultimately concluded there was not evidence to pursue a court-martial, the government has not returned him to the top post.

“They simply still don’t get it,” Prime Minister Justin Trudeau said last month about how the military deals with sexual assault and misconduct.

In an interim assessment delivered last month to the previous defense minister, Louise Arbour, a retired Supreme Court justice, said she had already found “significant skepticism among stakeholders, and most importantly survivors, about the independence and competence” of the military police and its special investigation service that looks into serious crimes.

She called this perception “pervasive” within the military and with much of the general public, and said it had “created serious mistrust in the military justice system and, in particular, in the investigative phase.”

Arbour recommended temporarily turning over investigations and prosecutions to civilian police forces, prosecutors and courts while she completes her review.

Anand, the defense minister, said on Twitter that she had “accepted in full Madame Arbour’s recommendations.” She also posted a letter she wrote to Arbour. “The unprecedented scrutiny that the institution is undergoing,” Anand wrote, “represents an equally unprecedented opportunity for meaningful change to build confidence.”

The policy directive is the first substantive change to deal with sexual assaults since the military committed in 2019 to improve its complaints process and the government put aside nearly 1 billion Canadian dollars to settle claims of sexual misconduct.

Stéfanie von Hlatky, director of the Center for International and Defense Policy at Queen’s University in Kingston, Ontario, said Anand’s decision would be welcomed by many current and former members of the armed forces, even if it is unclear what the ultimate solution will be to the ever-escalating problem.

“There was this pressure certainly on her to take some quick action and set the tone for decisive change in the short term,” said van Hlatky, who studies gender issues related to the military. “Since February, a lot of observers, including survivor groups, were growing a little bit impatient with the pace of change.”

Carrying out the switch, however, will require considerable negotiation between the federal government and the provinces.

Although all criminal laws, including those concerning sexual misconduct, fall under the federal government, the administration of justice is a provincial responsibility. Many provinces also contract much of their policing out to the Royal Canadian Mounted Police, a federal force that has come under widespread criticism in the past for its handling of sexual assault and murder cases involving Indigenous women.

Van Hlatky said civilian police forces might also lack sufficient “military literacy” to deal effectively with investigations involving the armed forces.

Anand’s swift action comes in contrast to attempts in the United States to reform how the U.S. military handles sexual misconduct cases.

This past summer, President Joe Biden said he wanted the military to remove the investigation and prosecution of sexual assault cases from the control of commanders, the first American president to do so. A panel appointed by Defense Secretary Lloyd Austin has made a similar recommendation, saying independent judge advocates should take over the role that commanders currently play.

But such a move would require congressional authorization, and the House and Senate are at odds over some aspects of the needed legislation.

U.S. Sen. Kirsten Gillibrand, D-N.Y., who has championed such a change for nearly a decade, has been frustrated by both the speed at which the Pentagon wants to move — the panel recommended years of easing into new policies — and the House version of the legislation, which is much more limited in scope from what her bill seeks to reform.

She and scores of other senators are co-sponsoring bipartisan legislation to remove commanders from prosecutorial decisions of all serious crimes, beyond sexual assault, and hand that authority to independent military prosecutors.

It may take until the end of the year to resolve the matter legislatively, and many commanders, especially those in the Marines, remain resistant to change.

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