Feature:   Part 2 - Sexual Harassment

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PERIODICAL  - Oct 2016

Issue No: 201674




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Part 2 - Sexual Harassment
Military justice review to consider leaving sex crimes with civilian court

OTTAWA — The Canadian Forces has launched the first internal review of the military justice system in generations and among the issues being looked at is whether all military sexual crimes should be handled by civilian courts.

The military justice system has been under the microscope over the last two years following complaints that many sexual crimes committed by service members have been glossed over or ignored.

Currently, such offences can be referred to either civilian court or the military court system for a court martial, depending on the circumstances. But Col. Robert Holman, the Canadian Forces' deputy judge advocate general for military justice, says that could change.

"One of the constant parts of discussion, particularly in the context of things like sexual offences, is why does the military have to have jurisdiction over sexual offences in courts martial?" Holman said in an interview. "Why can't it go downtown? We'll take a look at that."

Holman is leading the year-long review, which was ordered in the summer by the judge advocate general, Maj.-Gen. Blaise Cathcart.

While the military justice system has been regularly updated over the years, particularly in 1998 after the Somalia Inquiry, Holman said this is the first real top-to-bottom examination since the 1950s.

Holman acknowledged there are concerns about the system, particularly as it relates to sexual offences. And he said those complaints as well as defence chief Gen. Jonathan Vance's pledge to stamp out such misconduct "had some impact" on the decision to open the review.

But he also suggested such a study is long overdue. And while making the system more responsive is one consideration, "I would frankly say there's another issue, and that is resources."

The Canadian Forces has three full-time military judges whose sole job is to preside over courts martial. But while the Canadian Forces had 47 courts martial last year, only 11 were contested trials. Meanwhile, there are more than a dozen military prosecutors and several defence lawyers for the accused personnel.

"Meanwhile, we have lots of other legal business that needs to be done," Holman said. "So to me, it's a legitimate question as to whether or not we would use our scarce legal resources more efficiently by redirecting them somewhere else and looking at other options."

Holman was careful to say that any decisions are at least a year away and, depending on the changes, likely need government and parliamentary approval.

"But the fact of the matter is we intend to look at the full spectrum of options, from continuing to have military judges, military court reporters, military prosecutors, military defence counsel, all the way to potentially having civilians in many, if not all, of those roles."

The review will also look at other areas, such as how evidence is used in courts martial and whether the military has the right offences and punishments. And in the end, Holman said, it could find the current system is the best for the Canadian military.

"If we end up with the same scheme that we've got now, we will know darn well why we ended up with the same scheme."

Lawyer Michel Drapeau, a retired colonel who now represents many military clients, described Canada's military justice system as "so out of date it's not funny." He said there are many concerns, starting with a desperate need for stronger victims' rights.

But he said he had "no confidence" that the Office of the Judge Advocate General (JAG) could fix the system themselves. He noted that many changes approved by Parliament in 2013, some of which would help victims of military crimes, still haven't been implemented, which he blamed on the JAG.

The military's top prosecutor and the deputy commander of military police recently called for those changes to be implemented, saying they would help victims of military sexual offences. Holman would only say the JAG is working on implementing the changes.

Rather than having military officials conduct the review, Drapeau said parliamentarians should be in the lead. He said that is what happens in the U.S., where congressional committees are responsible.

- Follow @leeberthiaume on Twitter

Lee Berthiaume, The Canadian Press


I was interviewed for this by Bill Berthiaume, Canadian Press. My comments and reactions have not been printed. I said that this situation whereby military lawyers are drafting legislation is anti-democratic and RIDICULOUS. In a democracy you do not ask the "military" to draft legislation concerning the military justice system. It makes NO SENSE. Why? The current military justice system is the creation of the Office of the JAG in the first place. The last Bill engineered, drafted and piloted by the JAG with the blessing of very much compliant legislation who simply rubber-stamped the military wish-list took place in October 2011. That Bill (C-15) was passed into law in June 2013. It addressed issues such as victims' rights, new sentences, a lengthened limitations period, a whole bunch of new judges (???), right to grieve for judges etc. today 66% of these dispositions have yet to be brought into force by the JAG. This legislative initiative exercise which is led by the someone who is seen and perceived as the JAG -in-waiting ought to be forcefully challenged and repudiated as simply been totally inappropriate and offensive to the Rule of Law in a democracy.

Col (retd) Michel Drapeau



VVi Chief Editor Coment: Justice has to be blind, neutral and logical.  If any favouritism is shown, then it is not justice.

Perry Gray is a Regular Force veteran, serving as the Chief Editor of VVi. Perry has been with VVi for 14 years.

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