A retired corporal says the federal government is failing military victims of sexual assault by dragging its heels on stripping the Canadian Armed Forces of its power to investigate and prosecute sexual offences.
Arianna Nolet received a copy of an Ontario judge’s written decision on Friday, which found that a nine-month delay due to the military’s handling of her case contributed to the sexual assault charge in her case being stayed.
“If they do not act on this immediately, there will be more victims suffering the same fate as my case,” Nolet told CBC News.
In his decision, Justice Jeffery Richardson of the Ontario Court of Justice explained why he “reluctantly” concluded the only option was to stay the charge because the accused’s right to a trial within a reasonable time, guaranteed by the Charter of Rights and Freedoms, had been violated.
In 2016, the Supreme Court of Canada set ceilings for permissible delays in bringing cases to trial. Cases coming through provincial court are supposed to be tried and completed within 18 months. Richardson said the case law shows the clock starts ticking once the military lays a charge, even if the case is later transferred to the civilian judicial system.
Richardson concluded Nolet’s case had been delayed 21 months — nine months in the military’s judicial system and another year in the civilian system.
“At the end of the day, although I am very sympathetic to the basic argument that it was untenable for the case to remain in the military justice system … this cannot justify the carte blanche garotte of the accused’s right to trial within a reasonable time,” he wrote.
Richardson also found the Crown and defence put the case on the “back burner” for months and failed to take reasonable steps to try and address delays. The Crown has decided not to appeal the judge’s decision in Nolet’s case.
Nolet’s case is one of the first military sexual assault allegations to reach a conclusion in civilian court since the military started transferring dozens of sexual offence cases to the civilian system in late 2021.
The Defence Department said Nolet’s file is unique.
There are no other cases that are in a situation comparable to her file, a department spokesman said in a statement Thursday morning, adding that it’s the responsibility of the civilian justice system to ensure the case was heard in a reasonable time and the judge said that did not happen.
In October 2021, retired Supreme Court justice Louise Arbour called on the military to hand over sexual offence files to the civilian system as part of her interim recommendations on military sexual misconduct. Then-defence minister Anita Anand acted on that recommendation two weeks later.
Arbour called for the files to be transferred to restore trust in the military after a series of historical allegations were reported against senior military leaders.
Arbour said last year that “surprisingly” many police forces were refusing to take the cases. She wrote that “prolonging concurrent jurisdiction” would “only lead to interminable discussions” and “complicated intergovernmental protocols.”
In her final report in 2022, commissioned by the federal government, Arbour recommended that Ottawa change the National Defence Act to remove the military’s jurisdiction to investigate and prosecute sexual offences under the criminal code. The move would remove the military’s power to handle these cases, granted in 1998, and give exclusive jurisdiction to civilian authorities.
Law remains unchanged
Anand tabled a report in Parliament last year directing the military to undertake all of Arbour’s recommendations. Nine months later, the government has yet to change the law.
The Defence Department said Thursday morning that since Arbour’s recommendation, all new sexual offence charges “are being laid directly in the civilian system.” The department added there is “no way that the military justice system could cause delays leading to a stay” in the civilian system in these cases.
“This case is the only one where charges were laid in the military system, withdrawn at the request of the complainant, and then re-laid in the civilian system,” Defence Department spokesperson Daniel Le Bouthillier said in the statement Thursday morning after this story was published.
Out of roughly 250 active military sexual offence cases, about half were transferred to the civilian system between late 2021 and the end of August of this year, the military said.
Le Bouthillier said in all other cases where the military had laid charges when Arbour’s interim recommendation came out, the complainants said they preferred the military justice system prosecute their case and that’s what the military did.
Defence Minister Bill Blair said there is “work to do to institutionalize the changes that have already been put in place.”
Blair told CBC News the government is working to address through legislation all 48 of Arbour’s recommendations, and recommendations from other reports, at one time.
“We’re absolutely committed to getting it done as quickly as possible, but we’re also going to do it right,” he said, adding it’s his “first priority.”
Megan MacKenzie, who led an international study into sexual misconduct in militaries, said the government needs to prioritize stripping the military of its jurisdiction if it doesn’t want to see further delays that could harm victims. She said this change could be done relatively quickly.
“Until this recommendation is fully implemented, until we have sexual violence cases completely out of military jurisdiction, we’re going to have some of these messy instances where cases are delayed, where there’s unanswered questions around transfers, where you have sort of a hybrid system that doesn’t seem to be working for victims,” said MacKenzie, a professor and Simons chair in international law and human security at Simon Fraser University.
Nolet said the decision in her case shows what can happen under the law as it stands. The judge terminated her trial last month and did not find the accused guilty or not guilty.
Richardson wrote it “would seem to be beyond belief” that it took military police almost a year to lay a sexual assault charge against the accused in Nolet’s case.
He pointed out that the results of a sexual assault examination kit were “apparently available” as of October 2020. The test showed the DNA sample taken from Nolet’s underwear “cannot be excluded as belonging to the [accused],” he wrote.
According to her witness statement, Nolet told the Canadian Forces National Investigation Service (CFNIS) that in April 2020 she woke up after a gathering with co-workers in military housing at CFB Petawawa to find that her pants had been pulled down and another member of the military was trying to penetrate her from behind.
The accused pleaded not guilty in court.
Richardson said the clock started ticking on the case when the charge was laid in March 2021.
Nolet told CBC News the military gave her the option in December 2021 to transfer her case to civilian police. It also warned her about the risks of referring the case.
Nolet’s lawyer confirmed she opted to go the civilian route, citing a distrust of the military system.
Richardson said the military’s director of prosecutions issued a directive in November 2021 that warned “military prosecutors to consider the accused’s right to trial within a reasonable time” before transferring cases to the civilian system.
An ‘albatross of … delay’
Richardson wrote that the case, “with the albatross of nine months of delay under the military justice system clasped stubbornly around its neck, was irretrievably locked up in the civilian system.”
Richardson said Arbour later tweaked her interim recommendation to state that when charges already have been laid in a military court, they should proceed in that forum — a change that came too late for Nolet’s case.
Richardson said after the nine-month delay in the military system, the Crown and defence also did nothing after June 2022 “to try to mitigate” delays in the civilian system.
The Crown argued the delay in the military’s judicial system and the pandemic were to blame for the overall delay.
Richardson rejected the Crown’s arguments that there were exceptional circumstances.
“The Crown cannot simply say, ‘Oh well, it has to be COVID-19 delay’ and pronounce itself immunized from the delay …” he wrote.
Richardson said the Crown must show that it took reasonable steps to address problems before the case was delayed too long. In this case, that didn’t happen.
Retired colonel Michel Drapeau, a lawyer practising military law, reviewed the judge’s decision.
“Clearly the shared jurisdiction has led to a devastating result,” he said.
“There is an urgent need to now implement Ms. Arbour’s recommendations without any more running around. Until this is done, we will continue to have a unique hybrid criminal system at work to the detriment of sexual assault victims.”
The Prime Minister’s Office said the defence minister’s office would best respond to CBC’s request for comment.
CBC News asked Blair what he thinks of a case being stayed in part because of the time it spent in the military system. Blair, a former police chief, said he knows how challenging court cases can be for victims of sexual assault.
“It’s not acceptable,” he said. “And that is why we’re making these changes.”