An independent review from former Supreme Court justice Morris Fish will be released in days, examining the military justice system including how it handles offences of a sexual nature.
A spokesperson for Defence Minister Harjit Sajjan confirmed that the Fish report is expected to tabled on or before June 1.
Mr. Sajjan said in a statement to The Globe and Mail that institutions and mechanisms are not living up to the needs of those who have experienced misconduct, including the military justice system. He said he looks forward to Mr. Fish’s independent review of the entire military justice system.
“Everything is on the table for consideration, as we owe it to our members and all Canadians to get this right,” Mr. Sajjan said.
The minister’s press secretary, Daniel Minden, said Ottawa cannot comment on the contents of the report before it is tabled in Parliament.
Canada’s military justice system is considered to be self-contained and operates parallel to the civilian criminal justice system. The military system is created within the Code of Service Discipline, which is part of the National Defence Act.
The Canadian Armed Forces (CAF) says the military justice system is designed to maintain discipline, efficiency and morale in the military. Sexual misconduct in the Forces did not fall under this system until 1998. Some argue that the civilian system is better suited to deal with these offences.
The contents of Mr. Fish’s report on the military justice system is occurring amid increased scrutiny on how the military confronts sexual misconduct and assault in the CAF. The military has been rocked by sexual-misconduct allegations that have tarnished its public reputation. The controversy has forced a number of major commanders to step aside and led to the appointment of another former Supreme Court justice, Louise Arbour.
She will provide recommendations on how the CAF and the Department of National Defence can set up an independent reporting system to meet the needs of those who have experienced sexual misconduct.
Mr. Sajjan said that Ms. Arbour’s report will also offer insights on building better processes, including recruitment, training, performance evaluation, promotion systems in the CAF and the military justice system’s policies, procedures and practices when responding to allegations of misconduct. He called the terms for Ms. Arbour’s report broader than any previous review, noting this will empower her to make interim and final recommendations.
The Liberal government has faced pressure from advocates and opposition parties to bring in change in the military over the issue of sexual misconduct.
Multiple military police investigations are known to be under way including on the conduct of former chief of the defence staff Jonathan Vance, Admiral Art McDonald, who succeeded Mr. Vance, and Vice-Admiral Haydn Edmundson. Major-General Peter Dawe, commander of special forces, also left his post after it was revealed that he wrote a letter of support for a soldier convicted of sexual assault of a female member.
Last Wednesday, the Armed Forces Provost Marshal said military police conducted a probe into an allegation of sexual misconduct against Major-General Dany Fortin and it was sent to the director of criminal and penal prosecutions in Quebec to determine whether criminal charges should be laid against the former head of Canada’s vaccine rollout. Maj.-Gen. Fortin’s lawyer has said that his client “vigorously and categorically denies this allegation.”
Elaine Craig, with Dalhousie University Schulich School of Law, said in an interview that the justifications for maintaining a parallel military justice system as it pertains to addressing sexual assault are not being achieved.
Prof. Craig pointed to her research that showed a notable trend where individuals in the CAF have been charged with sexual assault and military specific offences and then often plead guilty to the military specific offence, such as drunkenness or behaving disgracefully, and the sexual-assault charge is withdrawn. The military justice system has convicted “almost no one of sexual assault,” Prof. Craig added.
The director of military prosecutions has previously issued a statement to say that guilty pleas to a lesser charge should not be seen to suggest that the CAF does not take sexual misconduct seriously. Colonel Bruce MacGregor said that when an allegation is brought forward, it is raised to the proper authorities and an investigation takes place to determine the facts and, if warranted, lay appropriate charges.
He also said the Code of Service Discipline contains a wide range of service offences that can be applied to the full spectrum of sexual misconduct, including sexual assault.
The issue of sexual misconduct in the military has been a long-standing concern. In 2016, nearly 1,000 members of the military told Statistics Canada that they had been sexually assaulted within the previous year.
The survey followed a 2015 report from Supreme Court justice Marie Deschamps that documented an underlying sexualized culture in the CAF that is “hostile to women and LGTBQ members, and conducive to more serious incidents of sexual harassment and assault.”
Ms. Deschamps’s report highlighted how female members of the Canadian Armed Forces don’t believe that the military takes this harmful sexual behaviour seriously, Prof. Craig said. She said her research demonstrates in the context of the military’s legal system that this is a well-founded perception.
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