Who should investigate sex offenses in the Canadian Armed Forces?

Should the victim of a sex offense have to decide whether a case should be tried in the civilian courts rather than a court-martial? Following is an excerpt from the Feb. 6, 2024 decision of Tammy Tremblay, chair of the Military Police Complaints Commission of Canada, in In the Matter of a Complaint to the Military Police Complaints Commission (MPCC) into Allegations that the Canadian Forces Provost Marshal did not Implement a Ministerial Direction to Transfer the Investigation of Criminal Offences of a Sexual Nature to the Civilian Police:

18. I will highlight, however, that, Madame [Louise] Arbour, in her Report of the Independent External Comprehensive Review, explained at great length why, in her expert opinion, leaving to the victim the burden of deciding where a sexual assault would be investigated was not in the public interest. At page 93 of her report, she concluded as follows:

In my view, requiring the victim’s consent before deciding whether to investigate or prosecute a crime in the military or civilian justice system merely puts an unrealistic burden on the victim. It puts victims in an untenable position, requiring them to make a decision about which system is likely to work better for them, with little understanding of the factors at play. They may regret their decision down the road if the trial results in an acquittal and may be left forever wondering, “what if I had chosen the other system” In the end, I do not believe this serves any public interest.

19. It is difficult to reconcile the recommendations that Madame Arbour expertly stitched together following an in-depth and informed analysis of sexual misconduct in the Canadian Armed Forces, which she laid out in her comprehensive report, with the decision of the CFPM to not transfer every file regarding criminal offences of a sexual nature to civilian police. The wording of the CFPM’s policy is particularly concerning given the clear and public support of those recommendations by the Ministers of National Defence. It is puzzling that the CFPM references Madame Arbour’s recommendation in his policy, while implementing directions that contradict it.

20. Equally troubling is that the policy outlines what it calls a victim-centric, trauma-informed approach, without the corollary articulation of what this means in this context, or what considerations must be taken into account while applying that victim-centric, trauma-informed approach. Indeed, it is insufficient to simply state that such an approach must be taken. It must be accompanied by written considerations that outline why and how this approach is victim-centred and trauma-informed and paired with appropriate training on those approaches. In my view, in its current iteration, this policy does not meet the victim-centric, trauma-informed threshold, and in fact, just as Madame Arbour cautioned, puts an unfair burden on victims.

21. In the best interest of those victims of criminal offences of a sexual nature, I recommend that the CFPM review his policy with the view of implementing the full transfer of investigations regarding criminal offences of a sexual nature to civilian police, in the true spirit of a meaningful victim-centric, trauma-informed approach. This would go a long way towards enhancing trust in the military police.

The National Post has this news report.