Military Sexual Offences Should Be Under Full Jurisdiction of Civilian Criminal Courts: Former Supreme Court Justice

Former Supreme Court Justice Louise Arbour (R) and Minister of National Defence Anita Anand (C) release the final report of the Independent External Comprehensive Review into Sexual Misconduct and Sexual Harassment in the Department of National Defence and the Canadian Armed Forces in Ottawa on May 30, 2022. On the left is Chief of the Defence Staff General Wayne Eyre. (Sean Kilpatrick/The Canadian Press)

In announcing the release of a final report on Canadian military sexual misconduct, former Supreme Court Justice Louise Arbour says the military should abolish the structures and performance-based promotion systems that nurture sexualized culture.

During a press conference on May 30, Arbour announced the results of over a year’s work with 48 recommendations to change military culture and approach to sexual misconduct. Among her recommendations is the need to place military sexual offences under exclusive jurisdiction of civilian criminal courts, as was the case before the military was given jurisdiction to investigate its own sexual assault cases in 1998.

“Military justice rests on the need to ... enhance efficiency, discipline, and morale in the armed forces,” Arbour said.

“The handling of sexual offences by military court in the past 20 years has done very little to improve efficiency, discipline, and morale—if anything, it has served to erode it. Therefore, I see no basis for the Canadian Armed Forces (CAF) to retain any jurisdiction over sexual offences. And that jurisdiction should be vested exclusively with civilian authorities as long as concurrent jurisdiction remains.”

On April 29, 2021, Arbour was tasked with leading an independent external review into sexual misconduct and harassment in the CAF and the Department of National Defence. While the final report has been delivered, it won’t be publicly released until mid-June this year.

Arbour said due to the long-standing issue of underreporting, she also recommends the scrapping of CAF members’ duty to report sexual assaults—a duty that rests on victims and bystanders—which she said had only served to “impose additional hardship on victims while posing moral dilemmas on those wanting to respect their wishes.”

She also recommends that victims of sexual misconduct should have facilitated access to external resources such as the Canadian Human Rights Commission tribunal and those made available to the Sexual Misconduct Resource Centre.

In addition, Arbour recommends the modification of the military’s performance-based evaluation and promotions, which she said is “not conducive to speeding up the accession of women to senior leadership position.”

“I have made detailed recommendations about the caste system of performance evaluation and promotions, which I think places too much emphasis on performance and not enough on conduct and character,” she said.

At the May 30 press conference, Defence Minister Anita Anand said she has begun to implement 17 recommendations made by Arbour, and she is to inform Parliament by the end of the year if any of the recommendations will not be implemented.

The Canadian Press contributed to this report.