Question Period: Independent External Comprehensive Review (National Defence)

By: The Hon. Jane Cordy

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Hon. Jane Cordy: Senator Gold, on May 20, after nearly a year of study, former Supreme Court Justice Louise Arbour released her report on the external review into sexual harassment and misconduct in the Canadian military. Her report consisted of 48 recommendations.

As you mentioned in this chamber to a question from Senator Coyle, Minister Anand committed to implementing 17 of those recommendations immediately.

My question concerns recommendation number 5 — which is not one of those 17 — which states that Criminal Code sexual offences should be removed from the jurisdiction of the Canadian Armed Forces and they should be prosecuted exclusively in civilian criminal courts in all cases. Senator Gold, could you let us know what is the hesitation to committing to this recommendation?

A similar recommendation came out of a previous 2015 study of sexual harassment and misconduct in the Canadian military. I’m just wondering what are the barriers for the transfer of the cases to civilian investigation and prosecution?

Hon. Marc Gold (Government Representative in the Senate): Thank you for the question. As I may have answered on a previous occasion, senators may recall that the government, in fact, laid the foundation in this area, as in many others, by accepting an interim recommendation from former Supreme Court Justice Louise Arbour to begin referring the investigation and prosecution of Criminal Code sexual offences from the military justice system to the civilian one.

Since Minister Anand received and accepted the recommendation to refer sexual offences from the military justice system to the civilian system in the fall, the government has made substantial and substantive progress in such referrals.

As Ms. Arbour outlines in a report — and this is my understanding of the facts on the ground — there have been some challenges with certain jurisdictions. To this end, Minister Anand is writing, again, to provincial and territorial partners about the path forward and to start the process of establishing a formal, intergovernmental table to build a durable transfer process that will better serve the Canadian Armed Forces now and in the future, and, of course, serve the interests of justice for those who are victims of alleged assault.

Senator Cordy: Thank you very much for that. I’m really pleased to hear about the interim steps that are taking place. I have never met Minister Anand, but, based on the things she has done, I have tremendous respect for her and am quite certain she will try to get things done.

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The minister previously stated that she was acting on a recommendation from the previous External Review into Sexual Misconduct and Sexual Harassment in the Canadian Armed Forces report from 2015 to allow victims of sexual assault to request, with the support of what was then to be called the center for accountability for sexual assault and harassment — now the Sexual Misconduct Response Centre, SMRC — transfer of the complaint to civilian authorities. According to the Office of the Canadian Forces Provost Marshal last November, roughly 145 cases of sexual misconduct allegations involving Canadian Armed Forces members could be transferred to civilian police to investigate.

To date, do you know how many cases of these have been tried or brought to civilian court? Are civilian police obligated to investigate cases of sexual misconduct allegations if requested by the Canadian military, or are they able to refuse such cases?

Senator Gold: Thank you for the question, senator. It’s an important one. I don’t know the number of cases. I do know the investigation into serious allegations of crime sometimes takes time. That may or may not be a factor underlying the statistics of which, unfortunately, I’m ignorant, nor do I know specifically, but I will inquire, as to what discretion, if any, there may be in the hands of civilian police officers faced with an allegation.

Again, procedurally and within normal practices, there are certain thresholds that may need to be reached before next steps are taken, from allegations to gathering of evidence, to the determination that a charge would be justified in being laid. I’ll make those inquiries, senator, and hope to get back to you.

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