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Military must transfer sexual misconduct cases to civilians: Anand

Click to play video: 'Civilian justice system to handle military misconduct cases' Civilian justice system to handle military misconduct cases
WATCH ABOVE: Civilian justice system to handle military misconduct cases – Nov 4, 2021

Defence Minister Anita Anand says while the timeline for precisely when military sexual misconduct cases will be handed over to civilians isn’t yet settled, she wants to move quickly on the recommendation to do so — as well as on the to-do list she has for the new role.

Anand announced on Thursday  that she has “accepted in full” a recommendation from former Supreme Court of Canada justice Louise Arbour that civilians, and not military investigators, should handle military sexual misconduct cases. Arbour was appointed in the spring to lead an external review into how best to fix the issue, described by experts as an existential “crisis” for the military.

While the problem has existed for decades, it is under renewed and intense condemnation following exclusive reporting by Global News that began in February 2021.

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Military struggles to recruit more women amid misconduct crisis – Oct 25, 2021
“We have a long road to travel in terms of reforming the culture within the CAF [Canadian Armed Forces],” said Anand in an interview with Global News.
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“Today’s announcement is just the first step, but there are many recommendations to be acted upon from the Deschamps report and the Fish report and now Madam Justice Arbour’s interim recommendations, but my intention is to work steadily on them.”

“There is no overnight solution to this,” she added. “It’s going to take steady and determined work, and I am getting to work to make sure we get that done.”

READ MORE: Sajjan out as defence minister; Anita Anand takes helm of embattled military amid misconduct crisis

Arbour’s office had previously said she would not be issuing any interim reports on the problem and would focus on putting together a final report, due next spring. But on Thursday, Anand shared on Twitter a letter sent from Arbour to Anand’s predecessor, dated to Oct. 20.

In it, Arbour says that “recurrent allegations of historical sexual misconduct against senior CAF leaders and the related Canadian Forces National Investigation Service (CFNIS) investigations have led me to conclude that immediate remedial actions are necessary to start restoring trust in the CAF.”

Specifically, she urged all cases of a sexual nature against military members, past or present, be immediately transferred to civilian authorities for investigation and prosecution, even if the investigation is currently underway — unless it is “near completion.”

A similar but narrower version of that recommendation had been put forward in June by former Supreme Court of Canada justice Morris Fish during a review of the military justice system.

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READ MORE: Sexual misconduct in Canada’s military remains as ‘rampant’ in 2021 as in 2015: report

In his June report, Fish had described cases of sexual misconduct in the military “as debilitating, as rampant and as destructive in 2021 as they were in 2015.”

“I see no reason, for example, to delay removal of the present duty of victims to report their victimization to the chain of command, which impacts on their autonomy and, I have been told, risks their exposure to reprisals, ostracization and pressures to withdraw their complaint,” Fish wrote in that report.

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Trudeau says he accepts Fish recommendations, taking other steps to reform military culture – Aug 19, 2021

Anand replaced Harjit Sajjan as defence minister on Oct. 26.

Her appointment to the role came after months of heated criticism from military sexual misconduct survivors as well as defence experts over his handling of the problem and failure to implement the key recommendation from a landmark 2015 report outlining the scope of the problem.

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That report urged the creation of an independent sexual misconduct reporting system, something the federal Liberals did not do for six years but have now vowed to implement.

Her predecessor was censured by the House of Commons over a lack of action to address the crisis of military sexual misconduct, and the multiple allegations against senior military leaders.

Global News had reported on Sept. 26 that Anand was widely viewed among defence experts as a top contender to take over the role as defence minister, in particular due to her extensive experience in corporate governance and law.

Anand said the reports about her as a contender sparked her to prepare for the role.

“I actually had a to-do list of my own ready in case I was indeed sworn in as minister of national defence,” she told Global News.

“And when that occurred, I pulled out my to-do list and I reviewed it with the acting chief of staff as well as my deputy minister on Day One, and have been working steadily on it since that time.”

Anand added that the military provost marshal and the director of military prosecutions are working now with their provincial and territorial counterparts to put a plan in place to transfer cases.

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READ MORE: New military judges will be required to take sexual assault law training

Arbour noted in her interim recommendation that she has heard “significant skepticism” from survivors and others about both the “independence and competence” of military police and the CFNIS, which specifically handles investigations of a serious nature.

“This perception is pervasive in the CAF and the DND [Department of National Defence] and, I believe, a large segment of public opinion. It has created serious mistrust in the military justice system and, in particular, in the investigative phase,” she wrote.

Arbour said that if civilian authorities decline to proceed, the matter should be handed back to the military which can then explore whether to pursue consequences under the National Defence Act.

She said in a statement to Global News she welcomes Anand’s response.

Click to play video: 'Global National: Nov 4' Global National: Nov 4
Global National: Nov 4 – Nov 4, 2021

“As outlined in my interim report, the issue of sexual misconduct in the CAF has opened the institution to unprecedented scrutiny and an equally unprecedented opportunity for change,” said Arbour.

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“I will continue as part of my Review to identify these opportunities in all the areas that fall within my mandate.”

It’s not clear whether the change will be permanent or temporary — Fish’s recommendation urged transferring authority for sexual assault cases only on a temporary basis, until the military justice system could be reformed enough to handle them credibly.

NDP defence critic Lindsay Mathyssen said the change must be permanent.

“It should not have taken this long to make this change” she said in a statement. “New Democrats will fight to make sure that all sexual assaults and criminal offences of a sexual nature under the Criminal Code will be referred to civilian authorities permanently.”

Conservative defence critic James Bezan said the details on implementation should be made clear.

“The Prime Minister must immediately tell our brave men and women in uniform and all Canadians when and how today’s policy will be implemented,” he said in a statement.

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Military struggles to recruit more women amid misconduct crisis – Oct 25, 2021

Charlotte Duval-Lantoine is a fellow with the Canadian Global Affairs Institute and researches toxic leadership within the military, particularly during the period when women were being integrated into the Canadian Forces from 1989 onwards.

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She said there will be crucial details to work out on how the military transfers authority for those cases to civilians, and how those cases are handled once in civilian hands.

While those details will be essential, she said it’s clear there have been “countless” calls for the government to act in response to the loss of trust in how the military justice system handles sexual misconduct.

“Seeing actions being taken right now shows that Anand is ready to take on a proactive leadership and this is what has been lacking over the past 10 months,” said Duval-Lantoine. “So it is very encouraging to see that things are being pursued and that the Minister of National Defense is taking action now, rather than waiting for more studies to be done.”

The move being announced now represents “a major development,” added Megan MacKenzie, an expert on military culture who holds the Simons Chair in International Law and Human Security at Simon Fraser University.

“I’m so pleased to see it,” MacKenzie said.

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Sajjan out as defence minister, appointed minister of international development and Pacific development – Oct 26, 2021

“It’s probably helpful for the public to know that sexual assault cases used to be handled by civilian authorities prior to 1998, so this isn’t completely unprecedented,” she continued.

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“It’s not that civilian authorities have never had experience handling cases of misconduct or crimes. So right now, major crimes committed by Canadian defence force members are handled by civilian authorities, including murder, for example.”

MacKenzie noted that there are also serious concerns about how civilians handle sexual offences, particularly around the high thresholds in place for sexual assault cases as well as reports from many civilian survivors who have said they were not believed by police.

“I still have some concerns,” she said. “But I do think what happens with this change is that you remove the serious conflict of interest that is in place in the military, where you have service members that maybe went to the academy together or served on deployments together investigating each other.

“That’s a major difference.”

Click to play video: 'Few military police investigators are women' Few military police investigators are women
Few military police investigators are women – May 8, 2021

A Global News investigation in May revealed less than one-quarter of military police investigators on sexual misconduct cases are female — far less than the number in three major Canadian civilian police forces.

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The data mirrors larger trends in the makeup of both military police writ large as well as the broader membership of the Canadian Forces as a whole — despite efforts to increase the number of women in the military over recent years, the figures remain low.

READ MORE: Less than one quarter of military police investigators on sexual misconduct are female

One in seven members of the Canadian military as a whole identified as women in 2019.

In 2020, women made up just 15.8 per cent of regular force members and 16.6 per cent of reservists, for a total representation of just 16 per cent.

Similar numbers appear in the military police overall as well. In 2015-2016 female members made up 14 per cent of total military police, a number that has risen in the years since to 16.9 per cent in 2016-2017, 24 per cent in 2017-2018, 24 per cent in 2018-2019, and 25 per cent in 2019-2020.

Victims and survivors of sexual misconduct in the military testified repeatedly in the spring at parliamentary committee studies launched in the wake of the reporting by Global News.

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Calls for change as more military officers on leave over alleged misconduct – Oct 17, 2021

They described being left shaken by recent experiences of trying to report allegations of sexual misconduct to male military police investigators.

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Fish said the continued extent of the problem of military sexual misconduct has a “traumatic” impact on the lives and careers of military members who try to come forward.

He also noted that throughout the military’s continued struggle to address sexual misconduct, efforts to do so have been sparked by journalists investigating different facets of the matter.

“They all begin with disclosures by investigative journalists,” he wrote, flagging key reporting from Maclean’s in 1998 as well as from L’actualité and Maclean’s in 2014, and from Global News this year.

“The first two ended with important reforms to the military justice system; the third has just begun and its outcome remains promising but uncertain.”

With files from Global News’ Abigail Bimman and Marc-Andre Cossette.

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