Tuesday, November 21, 2023

Soon sexual criminal offences will no longer be triable by Canadian service tribunals. A good move!

1998. Sexual Criminal Offences triable by service tribunals  

Section 70 of the National Defence Act [NDA], R.S.C. 1985, c. N-5 identifies three categories of criminal offences that, if committed in Canada, are not within the jurisdiction rationae materiae of military tribunals; namely: a) murder; b) manslaughter;  and c) the abduction of children. 

Section 70 also included sexual assault, aggravated sexual assault and sexual assault committed with a weapon or with threats or causing bodily harm. In 1998, this category was suddenly dropped from the list of offences reserved to civilian courts when committed in Canada. From thereon, these sexual offences were investigated and prosecuted under the NDA whether committed in Canada or abroad. 

Surprisingly, the only justification for such significant change to the jurisdiction of Canadian military tribunals was provided in an article written in 2002 by the then Canadian JAG – then Brigadier General Jerry Pitzul – and published in Volume 52 of The Air Force Review.

"To the extent that sexual assault offences have the potential to undermine morale and unit discipline, lessen mutual trust and respect, and ultimately impair military efficiency, the Canadian Forces' inability to deal promptly with such offences was considered problematic."

With this 1998 legislative change, overnight the CAF Military Police and Service Tribunals assumed full jurisdiction for the investigation and prosecution of sexual assaults taking place in Canada and abroad. Over the years, an impressive and growing chorus of voices (including that of this author) called for the repealing of this legislative change.

May 2022. Retired Justice Louise Arbour's Report recommends that sexual criminal offences be removed  entirety from the jurisdiction of  military tribunals

 In  her Independent External Comprehensive Review tabled in May 2022, retired Supreme Court Justice Louise Arbour recommended the removal of sexual criminal offences from the jurisdiction of military tribunals

  •  "Recommendation Number 5. Criminal Code sexual offences should be entirely removed from the jurisdiction of the military justice system, and that they should be prosecuted in civilian criminal courts. 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 MP 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.  Victims will be told to contact civilian police authorities directly, and such contact to be facilitated by the MP and the CAF so far as possible."
      November 2023. Ministerial announcement giving full effect to Justice Arbour's recommendation to remove sexual criminal offences from the jurisdiction of military tribunals

      On November 20, 2023, the  Defence Minister, the Honorable Bill Blair, announced on the CBC National News evening program  that the National Defence Act, in particular section 70, will soon be amended  – "hopefully by the end of 2003", he added -- to transfer jurisdiction back the investigation and prosecution of  “sexual assaults” [rape] to civilian courts. 

      Sincere congratulations to the Honorable Bill Blair for taking the lead to institute critical reforms to the military justice system. We hope to be shortly able to read the draft legislation to amend section 70 of the NDA.

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