Justice delayed is justice denied but for whom?

The Department of National Defence and the Canadian Armed Forces continue to chip away at a corrosive decades-old policy which obliged personnel to complain about assault, harassment or other misconduct through the chain of command.

It’s a process which too often backfired when complainants’ careers were stalled or even destroyed -- as a recent ruling by a civilian judge in Ontario has shown (see below). In that case, the judge stayed a charge of sexual assault at Garrison Petawawa because the case was taking too long. The ruling was This only 18 months after the charge was laid, in December 2021, which itself took after the alleged assault in April 2020.

DND’s stated goal for its latest initiative, repealing the Duty to Report policy, is sometime this winter. However, the officer overseeing the broader challenge of modernizing Canadian Armed Forces culture, Lieutenant-General Jennie Carignan, who would like to do it “tomorrow”, says a lot of outstanding “nitty gritty” means next “January or February” is more practicable.

The highest-ranking female in the CAF and Chief of Professional Conduct and Culture since April 2020, Carignan says the transition time is needed to ensure that all members, especially those deployed, get timely information about their rights.

“We’ve already done a lot of work on this,” she explained in French during a briefing. “We have to make sure that the information will be provided to our 65,000 members so that they can better navigate this space when they decide whether to report […] once the new regulations are in force.”

With a career as a combat engineer that including leading NATO Mission Iraq for a year after deployments to Bosnia-Herzegovina, the Golan Heights and Afghanistan, Carignan is likely all too aware of the challenges facing women in the historically male-dominated profession of arms.

Among other things, she acknowledged somewhat understatedly that the Duty to Report had turned out to be “not an effective tool for the rank and file” and that the overall policies were “not as flexible as they could be.”

It’s part of an Augean cleanup which has been the focus of three inquiries by retired Supreme Court of Canada (SCC) judges, the latest in May 2022 by Louise Arbour, who also is a former UN High Commissioner for Human Rights and a former chief prosecutor for the International Criminal Tribunals. She made history in the latter role with the indictment of a sitting head of state, Yugoslavian president Slobodan Milošević, as well as the first prosecution of sexual assault as a crime against humanity

In her report to then Defence Minister Anita Anand last year, Arbour made no fewer than 48 recommendations on how to “create an even and safe playing field for women in the profession of arms.”

The scope of the challenge was documented in a 2015 report by former SCC Justice Marie Deschamps, who found that women in uniform were frequently victims of sexual misconduct, including degrading comments, harassment, date rape and inappropriate relationships between people of different ranks. She went so far as to say that “one of the dangers” they faced “is the high likelihood that some […] are more at risk of harm, on a day-to-day basis, from their comrades than from the enemy.”

Six years later, amidst a flurry of disciplinary actions against senior commanders, including the Chief of the Defence Staff, General Jonathan Vance, former SCC Justice Morris Fish issued a second report. In it, he said that sexual misconduct in the military remained “persistent, preoccupying and widespread.”

The pace of change has been arguably glacial. It wasn’t until mid-August when Anand’s successor, former Public Safety Minister Bill Blair unveiled a “new path to justice.” It focused on two of Arbour’s 48 recommendations.

Effective immediately, they meant that any complaints about harassment, assault or about chain-of-command retaliation must be directed the Canadian Human Rights Commission at the complainant’s discretion. The second element effectively forbade CAF interference in that process.

The recommendation on Duty to Report underscores the importance of complainants having complete freedom to choose their path forward.

In announcing the latest development in what’s likely to be a lengthy and, in some cases, impracticable effort (when Arbour’s report was released, Anand admitted that implementing nearly half of the recommendations would be a challenge) her successor, Bill Blair, reiterated what has become a DND mantra about “fostering a safe and respectful workplace for all Canadian Armed Forces members.” General Wayne Ayre, the Chief of the Defence Staff, echoed Blair, adding that “we will continue to encourage our members to use other available tools to appropriately assess and report misconduct.”

That includes the option of civil court rather that the chain-of-command and ultimately courts martial. Arbour said in her report that there had been unintended consequences for victims who effectively lost control of their complaints within the system. “Experience has shown that duty to report has not achieved its intended purpose and, worse, has served only to terrorize and re-victimize those it was meant to protect.”

In essence, the repeal is designed to help DND and its uniformed personnel skirt the one-size-fits-all approach in favour of what’s described as “a more focused, responsive, and evidence-informed approach to the reporting of misconduct to support consistency, optimize outcomes, and rebuild trust.”

In the meantime, DND and the CAF are undertaking “a holistic and in-depth review” of its entire procedural machinery in an attempt to patch any deficiencies as the process evolves. “This process will also include targeted consultations with persons with lived experiences and relevant subject matter experts both internal and external to DND/CAF.”

Which brings us to the aforementioned Garrison Petawawa case. In her witness statement to the Canadian Forces National Investigation Service, Arianna Nolet, a retired corporal who was released from service after seven years as a dental technician at the sprawling base northwest of Ottawa, said she awoke after a gathering with co-workers to find that she was being assaulted.

That was in April 2020. Her accused attacker, who wasn’t charged until December 2021, pled not guilty when he appeared in court in June 2023. Nolet said she had felt relief when given the option of a civil trial because she no longer trusted the military judicial system.

However, there’s the fact that nearly three-and-a-half years elapsed between the alleged attack and Ontario Superior Court Justice Jeffery Richardson’s decision a month ago (Case No. 3711-998-21-1628-00) to stay the charge because the case had taken took long to come to trial.

Richardson said in his oral decision that the accused’s rights to trial within a reasonable time under Section 11.b of the Canadian Charter of Rights & Freedoms meant that “that the only remedy that’s available in the circumstances of this case is a stay.”

The judge also expressed concerns about how the case was handled before and after it came to a civilian court. “What really bothers me […] is that the case came int the Ontario court from the military court” and there was “a ton of evidence […] about how the military court is unfit to hear cases of sexual assault. And here we are.”

Assigning responsibility for the delay is a challenge. When the Crown prosecutor cited “exceptional circumstances”, meaning a case backlog caused by the pandemic, Richardson said he could not “see anyone giving more than 90 days credit for COVID-19.”

It’s arguably a legitimate ruling, bearing in mind the historic view that “justice delayed is justice denied.” That’s for the accused. But what about the victim? Nolet told CBC News that “to see how this case was […] mismanaged to the point that I didn't even get a day in court, is beyond disappointing.” Calling for legislation to address the issue, she said her fear now is that in the civilian system, “these cases are not going to be prosecuted, just as much as they weren’t being prosecuted properly in the military.”

Nolet, who also is suing the accused and the government, claiming serious injury from the alleged attack, including post-traumatic stress disorder, said her case also was undermined by high turnover on the Crown side. In a formal complaint last May, she said the first prosecutor was replaced after declaring a conflict of interest. The replacement left a short while later and the Ontario Attorney General’s office has been looking into that.

Julie Scott, director of Crown operations east region, said in a letter to Nolet that she shared her “concerns about how long this matter has taken to come to trial” and she faulted, among other things, the length of time it was taking to transfer sexual misconduct cases to civilian courts from the military system.

Arbour had noted in her report last year that civilian police forces had “surprisingly […] expressed in some cases some reluctance to exercise a jurisdiction that they currently have.” She also estimated that the military system processed only about 30 sexual misconduct cases annually compared with more than 2,300 in the civil system.

Colonel (Retired) Michael Drapeau, who served in the Regular and Reserves for 34 years until his retirement in 1993, has been an outspoken critic of the military justice system for years. Now a University of Ottawa adjunct professor with a boutique law practice specializing in military and veterans issues, he told CBC that the government should have already amended the National Defence Act to add “sexual assault” to the list of crimes outside its remit.

Drapeau said Nolet's case is the tip of the pyramid in that other cases could be stayed if the government doesn't act swiftly. “We've got a problem and it needs to be fixed," he told CBC. “It needs to be fixed now.”