Monday, July 11, 2022

Objections by some provinces to transfer of jurisdiction for sexual assaults from the military


The Canadian Press reports some instance of chicanery between the federal and provincial governments in the wake of the decision made by the new Defence Minister, the Honorable Anita Anand, to transfer jurisdiction for the investigation and prosecution of sexual assaults – including rape – to the provinces. 

This decision is in full accord with the recommendations made recently by retired Supreme Court Justice Louise Arbour who was commissioned last year by the Canadian government to lead a comprehensive review into sexual misconduct and sexual harassment in the Canadian Armed Forces.  

           In her report tabled on May 20, 2022, the Honorable Louise Arbour recommended, inter alia, that Criminal Code sexual offences be removed from the jurisdiction of the CAF and be prosecuted instead exclusively by civilian criminal court.

 RECOMMENDATION #5: Criminal Code sexual offences should be removed from the jurisdiction of the CAF. They should be prosecuted exclusively in civilian criminal courts in all cases. Where the offence takes place in Canada, it should be investigated by civilian police forces at the earliest opportunity. Where the offence takes place outside of Canada, the Military Police may act in the first instance to safeguard evidence and commence an investigation, but should liaise with civilian law enforcement at the earliest possible opportunity

In Canada, provinces prosecute both federal crimes and provincial offences

          As an aside, pursuant to sections 91(27) of the Constitution Act, 1867  in Canada, the federal government makes criminal laws that apply across the country and sets the procedure for criminal court. This helps ensure that criminal matters are treated fairly and consistently across the country. However, pursuant to 92(14) of the Constitution Act, 1867, provinces and territories [Yukon, North West Territories and Nunavut] administer justice within their own jurisdictions in that they enforce the law, prosecute most offences, and provide assistance to victims of crime. 

         Therefore the Provinces and the Territories not the federal government prosecute Criminal Code offences such as sexual assaults.

Rationale for objecting to the transfer of jurisdiction from the military for sexual assaults

          It appears that the objection to the transfer of jurisdictions comes from only two provinces: Ontario and British Columbia. It also appears to be related to an expectation of increased funding and additional resources. According to Justice Arbour given the relatively small number of such cases in an any given year, such an argument appears to be rather silly. 

ARBOUR:  “The number of [military] cases, spread across the country, with slightly higher volume around CAF bases and wings, and virtually none elsewhere, hardly justifies this refusal to enforce the law.”  


           One sure way to end this political tug-of-war between the two levels of government is to simply change the law by adding “sexual assaults” to section 70 of the National Defence Act .  Section 79 lists the offences which are not triable by a court martial. Such a legislative change would provide no escape to the recalcitrant provinces to accept responsibility to prosecute sexual assaults offences committed by military personnel within their boundaries.

          I for one have been arguing for such a transfer for at least the past decade. 

          Time to act  is now. 


  1. I suspect you mean "... Section 70 lists the offences which are not triable by a court martial." Section 79 establishes the offence of 'Mutiny with Violence'.

    And, I recall, a generation ago, people clambering to insist that section 70 needed to be amended to permit prosecution of sexual assault (when it arises domestically) under the Code of Service Discipline. La plus ça change ... I wonder if, in 2045, people will be insisting that section 70 should be amended yet again.

    Frankly, it is not surprising when a recommendation based upon questionable empiricism, and a lack of sufficiently robust analysis, and hastily implemented policy direction without adequate consultation with the provinces leads to such problems.

    Here is some further commentary on the issue:

  2. This was a typo which I have not corrected. Thank you.

  3. Funny stuff. My original text clearly indicates section 70. However, for some unknown reason the number 70 is being automatically to the number 79 by the Blog once published.


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