A retired corporal says the federal government is failing military victims of sexual assault by dragging its feet in stripping the Canadian Armed Forces of its power to investigate and prosecute sexual crimes.
Arianna Nolet received a copy of an Ontario judge’s written decision on Friday, which found that a nine-month delay due to the military’s handling of her case contributed to the sexual assault charge in her case being stayed.
“If they don’t act immediately, there will be more victims who will suffer the same fate as my case,” Nolet told Breaking:.
In his decision, Justice Jeffery Richardson of the Ontario Court of Justice explained why he “reluctantly” concluded that the only option was to stay the charge because the accused’s right to a trial within a reasonable time had been violated, guaranteed by the Charter of Rights and Freedoms. been raped.
In 2016, the Supreme Court of Canada set maximum limits on the delays allowed in bringing cases to trial. Cases that reach provincial courts are supposed to be tried and completed within 18 months. Richardson said case law shows that the clock starts ticking once the military files charges, even if the case is later transferred to the civilian court system.
Richardson concluded that Nolet’s case had been delayed 21 months: nine months in the military court system and another year in the civilian system.
“Ultimately, while I am very sympathetic to the basic argument that it was untenable for the case to remain in the military justice system… this cannot justify the carte blanche cudgel of the accused’s right to be tried within a reasonable time. “time,” he wrote.
Richardson also found that the Crown and defense put the case on the “back burner” for months. The Crown has decided not to appeal the judge’s decision in Nolet’s case.
Nolet’s case is one of the first military sexual assault allegations to reach a conclusion in civilian court since the Army began transferring dozens of sex crimes cases to the civilian system in late 2021.
In October 2021, retired Supreme Court Justice Louise Arbor asked the military to turn over sexual offense records to the civilian system as part of her interim recommendations on military sexual misconduct. The then Defense Minister Anita Anand followed that recommendation two weeks later.
Arbor called for the files to be transferred to restore confidence in the military after a series of historic allegations against senior military leaders were reported.
Arbor said last year that “surprisingly” many police forces were refusing to take cases. He wrote that “prolonging concurrent jurisdiction” would “only lead to endless discussions” and “complicated intergovernmental protocols.”
In its 2022 final report, commissioned by the federal government, Arbor recommended that Ottawa change the National Defense Act to eliminate the military’s jurisdiction to investigate and prosecute sexual crimes under the criminal code. The measure would eliminate the military’s power to handle such cases, granted in 1998, and give exclusive jurisdiction to civilian authorities.
The law remains unchanged.
Anand presented a report in Parliament last year ordering the military to follow all of Arbor’s recommendations. Nine months later, the government still has not changed the law.
Defense Minister Bill Blair said there is “work to be done to institutionalize the changes that have already been implemented.” All new military sexual assault charges will be filed in civilian court, his office said. Of about 250 active military sex crime cases, about half were transferred to the civilian system between the end of 2021 and the end of August of this year, the Army said.
Blair told Breaking: the government is working to address through legislation all 48 of Arbor’s recommendations and the recommendations of other reports at the same time.
“We are absolutely committed to doing it as quickly as possible, but we will also do it right,” he said, adding that it is his “first priority.”
Megan MacKenzie, who led an international study on sexual misconduct in the military, said the government must prioritize stripping the military of its jurisdiction if it does not want to see further delays that could harm victims. She said this change could be made relatively quickly.
“Until this recommendation is fully implemented, until we have cases of sexual violence completely outside of military jurisdiction, we are going to have some of these complicated cases where cases are delayed, where there are unanswered questions about transfers, in which you have a kind of hybrid”. system that doesn’t seem to work for victims,” said MacKenzie, professor and Simons Chair of International Law and Human Security at Simon Fraser University.
Nolet said the decision in his case shows what can happen under the law as it stands. The judge ended his trial last month and found the defendant neither guilty nor innocent.
Judge Richardson wrote that it “seems incredible” that it took nearly a year for military police to bring a sexual assault charge against the defendant in Nolet’s case.
He noted that the results of a sexual assault examination kit were “apparently available” in October 2020. The test showed that the DNA sample taken from Nolet’s underwear “cannot be excluded as belonging to the group [accused],” he wrote.
According to his witness statement, Nolet told the Canadian Forces National Investigation Service (CFNIS) that in April 2020 he woke up after a meeting with co-workers in military housing at CFB Petawawa and found that his eyes had been lowered. pants and that another member of the military was trying to penetrate her from behind.
The accused pleaded not guilty in court.
Richardson said the clock started ticking on the case when the charge was filed in March 2021.
Nolet told Breaking: that the military gave him the option in December 2021 to transfer his case to civilian police. He also warned her about the risks of referring the case.
Nolet’s lawyer confirmed that she opted for the civilian route, citing distrust in the military system.
Richardson said the Army’s director of prosecution issued a directive in November 2021 which warned “military prosecutors to consider a defendant’s right to trial within a reasonable time” before transferring cases to the civilian system.
An ‘albatross of… delay’
Richardson wrote that the case, “with the burden of nine months of delay under the military justice system clinging stubbornly around its neck, became hopelessly locked in the civilian system.”
Richardson said Arbor later amended his interim recommendation to state that where charges have already been filed in a military court, they should proceed in that forum, a change that came too late for Nolet’s case.
Richardson said that after the nine-month delay in the military system, the Crown and defense also did nothing after June 2022 “to try to mitigate” the delays in the civilian system.
The Crown argued that delays in the military justice system and the pandemic were to blame for the overall delay.
Richardson rejected the Crown’s arguments that exceptional circumstances existed.
“The Crown cannot simply say: ‘Well, it has to be the COVID-19 delay’ and declare itself immunized from the delay…” he wrote.
Retired Col. Michel Drapeau, a lawyer who practices military law, reviewed the judge’s decision.
“Clearly shared jurisdiction has led to a devastating result,” he said.
“There is an urgent need to implement Ms. Arbor’s recommendations now without further fuss. Until this is done, we will continue to have a unique hybrid criminal justice system in place to the detriment of victims of sexual assault.”
The Prime Minister’s Office said the Defense Minister’s office would be the best response to CBC’s request for comment.
Breaking: asked Blair what he thinks about a case being stayed in part because of the time he spent in the military system. Blair, a former police chief, said he knows how challenging court cases can be for victims of sexual assault.
“It’s not acceptable,” he said. “And that’s why we’re making these changes.”