DND sex assault conviction rate lower than civilian courts
Military prosecutor says offenders being held to account on lesser charges would send an important message
Over the last three years, slightly fewer than one quarter of sexual assault trials prosecuted by the Canadian military justice system have resulted in a guilty verdict, according to statistics compiled by CBC News.
More often than not, the alleged offenders have pleaded to, or been found guilty of, the lesser charge of disgraceful conduct.
That has raised concern among complainants and lawyers, particularly since the conviction rate is well below that of the civilian justice system.
But the director of military prosecutions said counting the number of guilty or not-guilty verdicts is not an accurate reflection of the effectiveness of the system.
"The rate of conviction isn't a measure of success in any prosecution service, whether it's a military prosecution service or a civilian criminal justice system across the country," said Col. Bruce MacGregor in an interview with CBC News.
His annual reports, tabled in Parliament, show that between April 1, 2014, and March 31, 2017, there were 17 courts martial where the accused faced one or more charges of sexual assault.
Those resulted in four guilty verdicts, eight not guilty findings, four cases in which charges were stayed and one case that was withdrawn.
That amounts to a conviction rate of slightly more than 23 per cent.
In civilian courts, the rate of conviction for sexual assault was 43 per cent in 2014-15, according to Statistics Canada.
The military justice system's handling of these cases was the subject of withering criticism by former Supreme Court justice Marie Deschamps, who catalogued instances of sexual assault in the military but also concluded there was an "underlying sexualized culture" that was hostile to women.
Her independent report in 2015 launched the Defence Department's war against sexual misconduct, which has resulted in a barrage of charges and military trials over the last two years.
The latest trial is scheduled to take place Monday in Shilo, Man., and involves retired warrant officer Jason Buenacruz. He faces a charge of sexual assault under the Criminal Code, as well as two counts of abuse of a subordinate and one count of conduct to the prejudice of good order and discipline under the National Defence Act.
The charges relate to an alleged sexual assault reported by a Canadian Forces member in May 2016 and have not been tested in court.
What rarely gets noticed in the bevy of press releases and statements is the result of the charges and trials.
MacGregor said there is never a certainty of conviction in any case and, in his estimation, it is "dangerous" to focus on conviction rates.
"It all depends on how the facts [of each case] come out," he said. "Judges make the ultimate decision as to guilt or acquittal."
But retired master corporal Stephanie Raymond, whose case prompted the Deschamps inquiry, said justice for victims should not be a game of Russian roulette.
"What's the goal of the criminal system if it is not to have a conviction?" she asked.
Raymond conceded sexual assault is one of the toughest crimes to prosecute. But, she said, the consequences of a not guilty verdict extend beyond statistics and beyond the courtroom, particularly in the closed society of the military.
There may be legal reasons why cases don't succeed, but the end result calls into question the credibility of the alleged victim and often they are labelled as having made "a false accusation."
MacGregor said his prosecutors are getting more training on how deal with victims and bringing them into the discussions on how cases unfold.
They've had seminars with victims and that has opened the eyes of military lawyers and made them more empathetic, he said.
MacGregor insisted, however, there are ways other than a criminal conviction for the military to hold an accused accountable, notably through the career-limiting military charges of disgraceful conduct.
"Whether it's sexual assault, or disgraceful conduct, it's still there. That's on the record," said MacGregor, who noted the lesser charge requires details of the crime be read into the public record. "There is no hiding of the action that took place."
But that is an administrative charge, laid under the National Defence Act, and does not carry the same kind of weight as a criminal conviction, said retired colonel Michel Drapeau, who is Raymond's lawyer.
"Those are code of service discipline offences that an employer in the civil service can level in an administrative setting," he said.
One of the biggest obstacles facing military prosecutors is the reluctance of victims to testify in open courts martial either because of fear of reprisal or being ostracized.
"If it's going to be burdensome, we lean more towards accepting a guilty plea on a lesser charge because [the offender] is still being held accountable and responsible," said MacGregor.
Drapeau noted victims under the military justice system do not enjoy the same legal rights and protections as those who use civilian courts.
The country's defence chief has given sexual assault victims the option of having their cases heard outside of the military.
University of Ottawa criminology professor Holly Johnson said the record of civilian courts "is a disaster for women."
She noted the definition of sexual misconduct in the context of the current debate is broad and the fact the military has a mechanism to deal with it is encouraging.
"I think it's important to look at accountability outside of courts martial," said Johnson.
"The Armed Forces seem to be taking things seriously and he seems to have the right attitude. The questions is: Can that filter down and can it become a change of culture?"
Cultural change won't be instigated primarily through courts and the military should realize that, she said.
"The civilian criminal justice system has not changed attitudes much towards sexual assault," Johnson said. "It requires leadership."
Raymond said the message that attitudes have to change needs to be repeated often and not just by those in uniform.
She said she is surprised Prime Minister Justin Trudeau has not spoken out more forcefully on the topic: "For a guy who said he is a feminist, what does he wait for?"
During a byelection campaign stop in Quebec last week, Trudeau was asked about recent accusations of sexual misconduct in the media and entertainment industries. He said he believed the climate to bring forward victims' stories about sexual harassment is changing.
"It doesn't matter how much power you have, how much influence you have, it's never alright, and I think people are beginning to act on it finally."