A new era?

Twice decorated by the Governor General of Canada, Commander in Chief of the Canadian Armed Forces (CAF), for his work in Afghanistan and a rising star in the CAF, Lieutenant-Colonel (LCol) Mason Stalker is now facing 10 charges of sexual assaults and sexual exploitation. The assaults were committed over a span of 9 years (1998-2007) on a male Army cadet of whom he was the mentor.

Charges were laid under the Criminal Code of Canada rather than the National Defence Act and the prosecution will take place before civilian tribunals where the accused, if he so wishes, will be entitled to a trial by jury rather than a trial before a panel of five members of the military. Prior to the somewhat surreptitious legislative change in 1998, military tribunals had no jurisdiction over sexual crimes committed in Canada. Sexual offences were investigated by the civilian police, prosecuted by the Attorney General and tried by civilian tribunals.

This prosecution before a civilian tribunal is certainly good news for the victims  of such heinous crimes who do not trust the military police and the military justice system as a whole.  Moreover, a recently enacted Bill of Rights for Victims of Crimes, C.C. 2015, c. 13 provides clear statutory rights to information, protection, participation and restitution at the federal level for victims of crimes (and their families).  However, subsection 18(3) of this Bill excludes victims of crimes that are investigated or proceeded under the Code of Service Discipline which is another powerful reason why such sexual offences should be investigated and prosecuted before civilian authorities.

Is this the beginning  of a new era, at least a return to the situation which prevailed before the 1998 legislative change? Actually the issue is one broader than simply the return of the investigation and prosecution of sexual crimes to the civilian justice system. Indeed, as noted earlier,  all ordinary criminal law offences should  be tried by civilian courts. This is an issue which is before the Supreme Court of Canada in the Moriarity case heard in May and taken under reserve.

The  Criminal Code of Canada was enacted to ensure protection of the public. Under the Canadian Constitution the responsibility for the enforcement of the criminal law has been conferred upon the provinces and the civilian justice system. It is fair to say that, for various reasons some of which totally unacceptable, the military justice system in the case of LCol Stalker and of sexual crimes in general has failed to ensure protection of the victims and the public.

Persons prosecuted before military tribunals are deprived of a number of rights they would enjoy if they were prosecuted before civilian tribunals, especially the right to a jury trial. Over the years the concept of discipline has been used to justify prosecutions before military tribunals for crimes which were a serious threat to the public and which should have been prosecuted before and tried by civilian tribunals. Too often, as it appears clearly in relation to sexual crimes, it has favoured in practice a policy ranging from laxity to cover-up and immunity from prosecution.

General Jon Vance, the new Chief of the Defense Staff, clearly stated publicly that zero tolerance in matters of sexual crimes is now the norm. He has to be applauded for taking this stance. However this will be effective only if the investigation and prosecution of such crimes are returned to the civilian justice system. Now what about other Criminal Code offences? These crimes are a threat to the general public and the general public is entitled to the legal protection and guarantees offered by the civilian justice system. Should they not be prosecuted before the civilian justice system? It will be interesting to see what the Supreme Court of Canada will do in this respect and in view of every citizen’s constitutional right to equality of protection and benefit of the law.