Front Burner - Sexual misconduct crisis rages on in Canada’s military

Episode Date: September 28, 2023

One of Canada’s first military sexual assault cases to be transferred to a civilian court since late 2021 will never go to trial because it took too long to get there. Is this a foreshadowing of what’s to come, in addressing the Canadian Armed Forces’ decades-long sexual misconduct crisis?CBC senior reporter Ashley Burke explains. 

In the Dragon's Den, a simple pitch can lead to a life-changing connection. Watch new episodes of Dragon's Den free on CBC Gem. Brought to you in part by National Angel Capital Organization, empowering Canada's entrepreneurs through angel investment and industry connections. This is a CBC Podcast. Hi, I'm Tamara Kandaker. For decades, a sexual misconduct crisis has cast a dark shadow over the Canadian Armed Forces. In recent years, we've seen an unprecedented number of senior military leaders face allegations, an unprecedented number of senior military leaders face allegations, had not one but two parliamentary probes, and reports from former Supreme Court judges in 2015, 2021, and 2022, which called for a complete overhaul to address sexual violence, misogyny, and harassment in the

ranks, and to strip the military of its jurisdiction over sexual offenses entirely, something that hasn't happened yet. And now, one of the very first military sexual assault cases to be transferred to a civilian court since late 2021 has been stayed because it took too long to get to trial. Is this a foreshadowing of what's to come? How much hope is there for alleged victims seeking justice? For more on that, I'm joined by Ashley Burke. She's a senior reporter at CBC's Parliamentary Bureau

who's been covering this story for years. Hi, Ashley. Hi, thanks for having me, Tamara. Thanks so much for being here. So let's begin with the allegation at the center of the story. What does retired Corporal Ariana Nolet say happened to her? Well, this all dates back to April 2020. Ariana Nolet was a dental technician at the time at CFB Petawawa. And according to her witness statement, she wrote that she went to a gathering with co-workers on the base and that

later that night she went to sleep in the accused's bed, which was in military housing. And Nolet wrote that she woke up to her pants pulled down and that that military member was trying to penetrate her from behind. She went to the hospital and had a sexual assault exam done and went to military police, and they laid a charge almost a year later. Okay, so this was being dealt with by the military, and then her case was eventually transferred from the military to the civilian judicial system. And why did that happen? So after the sexual assault charges laid in March 2021, there's a significant change.

Retired Supreme Court Justice Louise Arbour came out with an interim recommendation. She asked the government to make the military hand over all of its active sexual offense cases to civilian police. So the military's investigators went back to the alleged victims, laid out to them the risks of transferring cases, and then gave them the choice. Do you want to transfer your case to the civilian police, or do you want us to prosecute it here within the military system? And for Nolet,

she said it was a no-brainer. She didn't trust the military, and she said she wanted her case out of its hands. Yeah. So these recommendations that you mentioned, they came as part of a review of Canadian military culture that was triggered by a sexual misconduct crisis involving an unprecedented number of senior military leaders facing allegations. Former Chief of the Defence Staff General Jonathan Vance pled guilty to one count of obstructing justice in an Ottawa court today. The former top general appeared and admitted to having pressured Major Kelly Brennan

to lie to police about their past affair and relationship. Admiral R. Macdonald held the military's top job for just a month. It is indeed an extraordinary privilege. Then stepped aside amid a sexual misconduct investigation. And we'll talk more about that in a moment. But first, talk to me a bit more about how Arianna Nolet felt when her case was transferred to the civilian judicial system. She called it a rejoicing day for a lot of military women.

I think it was a sense of relief. And she described to me that she was relieved that she was given the option to transfer her case to civilian police. And that happened in December 2021, which makes her file one of the first out of dozens to be handed over. And at that time, Nolette said that she felt really hopeful, but that that feeling, it quickly faded. Her crown attorney was replaced twice, there were all sorts of delays, and then more than a year and a half after her case was in the civilian judicial system, she got the news that her trial was not going to be moving forward. And she said that was devastating. To see how this case was handled and mishandled, mismanaged,

to the point that I didn't even get a day in court is beyond disappointing. So now we know that the retired corporal's case has been stayed, which means it's never going to go to trial and the accused isn't found guilty or not guilty. And I should mention that the accused in Nolet's case pleaded not guilty. So why is it that this trial couldn't go on? Well, the judge, Jeffrey Richardson, stayed the sexual assault charge in Pembroke last month. And when he later came out with his written decision, he explained why he said he reluctantly decided that the only option was to stay this charge. He said there was a violation of the accused's right to trial within a reasonable time. And in Canada, the Charter of Rights and Freedom says that anyone charged with an offense is supposed to have their case tried within a certain time frame.

And the Supreme Court in 2016 came up with limits. So in a case like Nolet's that was going through a provincial court, it was supposed to be tried within 18 months. And Richardson wrote that he looked through all sorts of case law, and he found that the clock starts ticking when the military first lays the charge. And in Ouellette's case, that meant there was this nine-month delay caused by the military's judicial system before the file was moved to the civilian judicial system. And the judge said there was another year delay attributed to the crown. So that totaled 21 months, which Richardson ruled was too long. And so Richardson really took issue with how the military court handled this. He described this

nine-month delay before it got to civilian court as an albatross clasped stubbornly around the case's neck. What does he think could have been done to make this all go faster? So Richardson said that months after Nolet's case was transferred that Arbour tweaked her interim recommendation. And she said that if charges were already laid in the military's judicial system, that they should continue to be prosecuted there. But Justice Richardson said that at that point, it was too late for Nolet's case. It was already in the civilian system. They couldn't send it back. And the judge said it was really up to the Crown at that point to make sure that they took reasonable steps to at least

try and mitigate any further delays. And he said that didn't happen. And he pointed the finger at both the Crown and the defense for putting the case on what he called the back burner, even after the court warned both sides that time was running out and that they needed an earlier trial date to avoid what ended up happening. Right. I understand he also took issue with how long it took to even lay the charge in the first place, right? He said that it was beyond belief that it took the military almost a year to lay this charge. And he said that because he said that there was the results of the sexual assault exam that were available within, he believes, the first six months of the investigation by military police.

And he said that that DNA sample taken from Nolet's underwear cannot be excluded as belonging to the accused. So he felt that a charge should have been laid much earlier. So this judge was critical of both the Crown and the military on how all of this was handled. And what have they said in response? The Defense Department says that Nolet's case is unique and that after Arbour's interim recommendation, that the director of military prosecutions told prosecutors to go back to all the complainants involved in active cases

where charges had already been laid by the military and asked the alleged victims what they wanted to do. And the Defense Department said that Nolet is the only one out of that group that opted to move her case over to the civilian system. So the Defense Department said it believes that if there are any other military sexual offense cases that are stayed in the civilian system in the future, that it won't be because of a delay caused by the military. in the future, that it won't be because of a delay caused by the military. And the department said that that's because all new charges are being laid directly in the civilian system. These are sexual offense charges under the criminal code. And the Defense Department also pointed to the judge's ruling that said it was up to

the Crown to mitigate delays. And the Crown, what's the Crown's response been about the delay once it got to the civilian judicial system? Well, before Nolet's decision came out, she complained in writing to the Crown's office about delays. And she got a response back from Julie Scott, who's the director of Crown operations in the East Region. And in that letter, Scott said that she shared Nolet's concerns about how long it was taking for this case to go to trial, and she blamed two things on the delay, the effect of the pandemic on what she called an already overburdened system, and the transfer of these military sexual assault files to civilian Crown prosecutors. But the judge in his decision concluded that those two things are not exceptional

circumstances, and that the Crown can't, quote, say, oh, well, it's a delay caused by COVID-19 and be immunized from it. And when it came to the transfer of these military cases, he says that case law does show that regardless, the clock starts ticking when the military lays charges. The Crown's office has now also decided not to appeal this decision, which Nolet says is yet another upsetting discovery. Yeah, so you spoke with Arianna Nolet since this happened, since the case was stayed, and how is she feeling about what happened here? Well, she felt so strongly about it that she had the publication ban lifted on her case

so that she could go public on CBC with her story. I didn't get the justice that I deserve. I think I have completely lost all inherent trust in the judicial system in Canada. And that this decision in her case, she says, shows what can happen if the law stays as it is right now. And her biggest concern, she said, is that other military sexual offense cases could be stayed too. And that's a concern that other experts I spoke to share, including retired Colonel Michel Drapeau, who's a longtime

lawyer practicing military law. He said that while there's this dual jurisdiction going on, there will always be this tug of war between the military wanting to hold on to cases and the civilian system not particularly enthusiastic about adding to their workload. In the Dragon's Den, a simple pitch can lead to a life-changing connection. Watch new episodes of Dragon's Den free on CBC Gem. Brought to you in part by National Angel Capital Organization. Empowering Canada's entrepreneurs through angel investment and industry connections.

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In my new book and podcast, Money for Couples, I help you and your partner create a financial vision together. To listen to this podcast, just search for Money for Couples. Ariana Nolet says that she wants the Canadian Armed Forces legally stripped of its power to investigate and prosecute sexual offenses, period. And this is something that retired Supreme Court Justice Louise Arbour actually recommended happen back in 22. The handling of sexual offenses by military court in the past 20 years has done very little to improve efficiency, discipline, and morale. If anything, it has served to erode it. So what is the holdup there? So that was one of the key recommendations

in our Boer's final report. And after she came out with her interim recommendation, she said that she found challenges. And she said, surprisingly, civilian police forces were reluctant to take on these cases, even though they had jurisdiction and always did. So her solution was for the government to change the law and strip the military of its power to investigate and prosecute sexual offenses, essentially revert it back to what it was like before 1998. And that's when the military was given this power to handle cases, which she says over the past 20 years has been a systemic failure that has eroded trust and morale. And Arbour recognized in a

report that, based on the military's handling of in the past, that this change to the law could take years to implement. But Drapeau says the solution is simple. He said all it would take is the defense minister standing in the House of Commons tomorrow saying that he wants to amend the National Defense Act and adding one line that says sexual offense to the list of crimes that military cannot handle, including murder and manslaughter. Right. And how has the defense minister responded to calls for the law to be changed? Well, the last defense minister, Anita Anand, tabled a report in parliament last year, and she directed the military to undertake all of Arbour's recommendations.

Now, nine months later, the government has yet to change the law to strip the military of its jurisdiction to handle sexual offences. And last week, I pressed the new Defence Minister, Bill Blair, on this. You know, what is the hold-up? Blair said there is work underway. Well, and we are doing that work, but there were 48 recommendations within the upper recommendation. We also have the benefit of the fish report, and we are working very closely with the external monitor

and in consultation with Ms. Arbett to make sure that we bring about all the legislative changes in a comprehensive way. He said it's his top priority, he wants it done quickly. But he did not give a timeline when that could happen. And he's facing calls to take a different approach to prioritize some of these key recommendations like this one and move forward with them rather than waiting. The government has been accused in the past of continuing to study things rather than act right away. And Nolet's concerned that, you know, there could be a change of government before this happens. We've been talking about Ariana Nolet today, but her case is just one part of a much larger issue. And the crisis of sexual misconduct in the military involves over 250 active sexual offense cases between the end of 2021 to the end of August. We're starting to see more and more of these cases go through the military and civilian judicial systems. And a lot of these involve people in pretty high up positions in the military, right? Yeah. one expert, Megan

McKenzie, who led an international study on sexual misconduct in militaries in multiple countries, said that she has never seen so many senior leaders anywhere in the world all sidelined at once from some of the most prestigious posts in the defense establishment. Since 2021, roughly a dozen high-ranking officials were removed, stepped aside, or they retired from their jobs amid historical allegations or how they handled sexual misconduct files. And we're talking about some of the most senior military leaders, people like Major General Danny Fortin, the former head of Canada's vaccine rollout. A civilian judge in Quebec found him not guilty last year of a historical sexual assault.

This is one important step in an ongoing process to prove my innocence and recover my reputation. Vice Admiral Hayden Emerson, one of the military's former heads of HR, his case right now is awaiting trial. He pleaded not guilty to two charges dating back to 1991, including an alleged rape on board a military ship. And his trial was supposed to be heard this summer, but was delayed. And the person who replaced Eminson as the commander of military

personnel, Lieutenant General Stephen Whelan, is also at the center of a case that this week is being heard at a court-martial in Quebec. I was in the room on Monday when he pleaded not guilty, and Whelan's facing a military service offense called prejudice of good order and discipline. And the allegation centers around if he changed a female subordinate's performance evaluation in 2011 after allegedly having an inappropriate email exchange with her over a series of months. So we're at this point in time where we're in this next phase of the sexual misconduct crisis, and we're waiting to see how these cases play out in court. So, Ashley, you've been covering this crisis for years at this point. And just to recap everything that's happened, there have been two parliamentary probes from the Defense Committee and the Status of Women Committee, three separate reports by retired Supreme Court justices.

court justices. We've heard from many victims and had a national conversation about the culture of the Canadian forces and how the military treats women and handles sexual misconduct. But after all of that, is it clear at all how much progress has actually been made? It's not clear. And that's the answer that everybody wants to know. Arbour made it clear that she didn't want her report to sink into a policy graveyard with all the other past fundings that weren't acted on. And she said the government needed to hire an external monitor that gave updates on if progress was being made. And the government did that.

And that monitor came out with her first annual report in May. And she found that while there's been palpable change in the military's attitude towards sexual misconduct, that Ottawa lacks a comprehensive overall strategy to make that happen. And she said that doesn't mean that there's been no progress. Not at all, she said. She said there are a lot of people that are individually working away at recommendations, but that there's overall no plan that would ensure that resources are being assigned to priorities. And the monitor also said that it was incumbent on the government to at least have a plan that lays out all of the legislative changes that it would be proposing to Parliament each year. And that monitor said that

the proof that if there's been change is going to be if the number of incidents drops, but it's too soon to tell if that's happening, she said. And her next steps, she wrote, were trying to understand if there's real change happening on the ground. And if you could sum it up, what has this protracted crisis meant for military members who've brought forward allegations? Over the past three years, I've spoken to a lot of military members who've reported allegations, and many of them have told me that they wish they never came forward. It would have been easier to simply continue to endure the sexual misconduct and the sexual harassment rather than to report and go through that. go through that. That despite the sexual misconduct crisis, you know, casting a light on this issue, that they say their files were still allegedly mishandled, that they faced reprisals, that there are alleged cover-ups, and some of them ended up leaving the military and ending their careers

because of it. And several of these military members have told me that the military's treatment and handling of these files, in some cases, was far worse than the alleged sexual misconduct itself. Ashley, thanks so much. You're welcome. All right, that's all for today. I'm Tamara Kendacker. Thank you so much for listening, and I will talk to you tomorrow.