OTTAWA — The military’s police watchdog is lambasting the force for leaving it up to victims of sexual assault to decide whether to have their complaint transferred to civilian authorities, a policy that flies in the face of reforms called for by former justice Louise Arbour and fully adopted by the Liberal government.
In a scathing decision dated Feb. 6 and obtained via an access to information request, Military Police Complaint Commission chairperson Tammy Tremblay says the police force has put in place a “troubling policy” that puts an “unfair burden” on victims of sexual misconduct.
The military police are transferring criminal offences of a sexual nature to civilian police agencies in Ontario, but a ccording to Tremblay, officers are first asking the victim’s permission.
The policy defies a recommendation by Justice Louise Arbour, who published a damning report in 2022 on sexual misconduct in the military that called for a complete overhaul of the system.
Arbour recommended that all sex crime investigations and prosecutions be pulled out of the hands of military police, prosecutors and judges and sent to the civilian system without asking for the victim’s preference.
“In my view, requiring the victim’s consent before deciding whether to investigate or prosecute a crime in the military or civilian justice system merely puts an unrealistic burden on the victim,” she wrote, adding it put the victim in an “untenable position” that may leave them forever second-guessing their decision.
The new policy also contradicts Defence Minister Bill Blair’s own demands for his department and the Canadian Armed Forces.
When Arbour published her 2021 interim report and 2022 full report — which built on a separate review by Justice Maurice Fish in 2021 — the Liberal government committed to implement all of her recommendations.
In a statement Friday, Blair’s spokesperson, Diana Ebadi, said that “the current interim measures which place the burden on the victim to choose between systems are unrealistic and not in the public interest.”
“Madame Arbour therefore recommended that all Criminal Code sexual offences should be investigated and prosecuted exclusively in the civilian system, and Minister Blair agrees with this in full,” she added.
Michel Drapeau, a military law expert who frequently represents military victims of sexual crimes, says Tremblay’s letter shows that the military is walking back on its commitment to implement Arbour’s recommendations.
He said his feelings have evolved from “disappointed” and “frustrated” to “disillusioned” as he called on the minister to change the law so that military police and prosecutors no longer have the jurisdiction to investigate sex crimes in Canada.
That’s exactly what the government will do when it tables new legislation “in the coming weeks,” Blair’s spokesperson said Friday.
In her decision addressed to the Canadian Forces Provost Marshall, Tremblay laid out her incomprehension over the fact the updated military police policy commits to implement Arbour’s recommendations all the while implementing changes that go against them.
“It is puzzling that the CFPM references Madame Arbour’s recommendation in his policy, while implementing directions that contradict it,” she wrote.
“In my view, in its current iteration, this policy does not meet the victim-centric, trauma-informed threshold, and in fact, just as Madame Arbour cautioned, puts an unfair burden on victims,” she said.
In a statement, CFPM spokesperson Lt.-Cmdr. Jamie Bresolin said the office has transferred to the civilian system about one-third (103) of the 285 new sexual offence cases reported to military police since Arbour’s interim report in late 2021.
Bresolin also confirmed that CFPM asks victims whether they prefer their case to be investigated by the civilian or military police.
Of the cases that remained with the military justice system, 135 were never referred to civilian police, in most cases because “the victim’s views” were considered, Bresolin added.
Civilian police refused to take the remaining 46, which means they stayed with military police.
One transfer request is pending.
Tremblay’s decision says that her office was set to launch an investigation into a complaint that the military police was ignoring a directive by former defence minister Anita Anand and her successor, Blair, to transfer sexual misconduct cases to the civilian justice system.
But she had to pull the plug on the investigation when she received a letter from Blair’s office in late January that neither he nor Anand had ever issued such a directive.
“Neither I nor my predecessor have issued any such direction to the CFPM. Nor has either of us directed the Chief of the Defence Staff to issue such direction,” reads an excerpt of the response sent to Tremblay by Blair’s office in January and quoted in her decision.
The defence minister’s spokesperson confirmed that neither minister issued a directive. Rather, one was issued from the heads of the military police and military prosecution service to their own staff “following Madame Arbour’s October 2021 interim recommendation to transfer cases.”
Both Drapeau and Dalhousie University law professor Elaine Craig say they are “totally confounded” by Blair’s letter to the MPCC because the minister had clearly issued a directive to his department by fully accepting Arbour’s recommendation.
“Minister Anand was very clear, repeatedly, that she accepted all of Madame Arbour’s recommendations, including the recommendation that sexual offence cases involving CAF members should be investigated by civilian police forces,” she said by email.
“It is equally clear that the CAF has been directed to move these investigations to civilian police.”
“O ur primary concern remains the support to the victim, therefore Military Police coordination with the civilian police of concurrent jurisdiction is done in a deliberate manner, making every effort to minimize the impact on the victim,” she wrote in a statement.
Arbour and Fish declined to comment on Tremblay’s decision.
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