Civilian system should investigate military misconduct claims for now, ex-judge says

A landmark review of Canada’s military justice system says the military can keep its jurisdiction over investigating and prosecuting complaints of sexual assault and misconduct within the military itself — as long as it embraces reforms first.

Morris Fish says military justice system must embrace victims' rights before taking on sexual misconduct cases

A Canadian flag patch is shown on a soldier's shoulder in Trenton, Ont., on Thursday, Oct. 16, 2014. (Lars Hagberg/The Canadian Press)

A landmark review of Canada's military justice system says the military can keep its jurisdiction over investigating and prosecuting complaints of sexual assault and misconduct within the military itself — as long as it embraces reforms first.

Until it does, said former Supreme Court justice Morris Fish, the civilian criminal justice system should step in where it can to handle criminal cases in the military.

"Sexual misconduct in the Canadian Armed Forces (CAF) remains persistent, preoccupying and widespread – despite the CAF's repeated attempts to address the problem and to curb its prevalence," Fish wrote in his highly-anticipated report on reforming the military justice system, which was tabled in the House of Commons today.

"It has had a traumatic impact on the lives and careers of victims, a corrosive effect on discipline and morale and a marked tendency to undermine public confidence in the CAF's institutional capacity to solve the problem internally."

Making the military justice system more independent

Fish's report was delivered to MPs this morning against the backdrop of an ongoing crisis of confidence in the armed forces brought on by a cascade of misconduct allegations involving senior leaders.

At 400 pages, the report is sweeping in scope. It proposes making the military's top cop, the provost marshal, an independent appointment similar to the RCMP commissioner.

Fish also said that military judges should be civilians, not members of the Armed Forces.

His report appears to be trying to stake out a middle ground between a military that's reluctant to give up authority over its own members and critics who, throughout the misconduct crisis, have been calling for complete civilian oversight of military justice.

At a time when critics and sexual assault survivors have suggested that civilian courts are better placed to deliver justice in the military, Fish reaffirmed the need for a military justice system separate from the civilian one.

"Canada's military justice system is, above all, a justice system. Its separate existence is justified by the military's need to maintain discipline, efficiency and morale," he wrote.

One of the major questions facing Fish in the course of his review was whether the military should continue to investigate allegations of sexual assault. Some system critics and assault survivors have called for a truly independent agency that can deal with victim's complaints and protect them from retribution within the chain of command.

While Fish's review said the military justice system needs to change, he said he doesn't believe the solution is to take the responsibility for criminal cases away from the military entirely.

"I am not persuaded that Parliament should withdraw military jurisdiction over sexual assaults at this time," the retired judge wrote.

Military not ready to handle sex assault cases: Fish

Fish also suggested the military isn't ready to handle sexual assault cases at this time. 

"It would, in my view, be inappropriate for the military justice system to continue to investigate or prosecute alleged sexual assaults until it extends to all victims the protections afforded by the [Declaration of Victim's Rights]," the report said.

"The civilian authorities should, in the intervening period, exercise their own investigative and prosecutorial jurisdiction over alleged sexual assaults."

Fish said the military must implement of the Declaration of Victims Rights as soon as possible.

The declaration was incorporated into the latest overhaul of the military justice system two years ago but was never put into force.

The Department of National Defence has said it is still drawing up the regulations to support Bill C-77 — two years after the legislation was passed.

A senior defence official, speaking on background at a technical briefing after the report was tabled in Parliament, defended the amount of time it has taken to address such a key flaw in the military justice system.

The official said the Fish report has "lit a fire" underneath the department and the regulations could be drafted and in force by next spring.

The absence of such a legal framework for victims has been felt by survivors of sexual assault in the military, who greeted the report with cautious optimism.

'I did not have rights'

"It's a step in the right direction," said Colten Skibinsky, a former military member who was raped.

"I did not have rights as a victim when I went through this process. The victim support coordinator was actually let go during the middle of my investigation. So I was I was really left on my own."

Skibinsky said he did not "have any support as a victim. They [military justice officials] gave me a pamphlet."

Right now, an allegation of sexual misconduct can be dealt with by an individual military unit on an internal basis. Fish said that has to change.

"Except in the most minor cases and absent exceptional circumstances, allegations of sexual misconduct should be investigated by the military police and not by the units," his report said.

The Liberal government accepts "in principle" the report's 107 recommendations. It said in a media statement that implementation will begin on 36 of Fish's recommendations in the near term.

WATCH: Military misconduct should be investigated by civilian system, report urges:

Report urges changes for military justice system

8 months ago
Duration 1:55
A new report from retired Supreme Court Justice Maurice Fish laid out 107 recommendations to reform the military justice system, including turning sexual assault cases over to civilian courts until the military justice system is fixed. 1:55

Defence Minister Harjit Sajjan promised to act swiftly.

"This report comes at a critical time," Sajjan said. "Over the past few months we've heard far too many heartbreaking experiences of CAF members and DND who have been impacted by hateful, hurtful and harmful behaviours in our ranks."

There have been too many "accounts of appalling abuses of power" and more needs to be done to deliver meaningful change, he said.

Both Sajjan and Justice Minister David Lametti hesitated today when asked whether the government will implement Fish's recommendation that civilian police agencies and prosecutors handle military sexual assault cases for the time being.

Lametti said the government is still studying the wider notion of establishing an independent centre for the reporting of sexual misconduct cases.

Justice Minister David Lametti: 'It is complex [and] we need to do it right.' (Adrian Wyld/The Canadian Press)

"This is a course of action that has a great deal of merit, but it is complex [and] we need to do it right," he said.

"We obviously have to protect the victim and make sure the victim's rights are protected and vindicated. But we also need to create an environment where victims are coming forward and a set of procedures where they're comfortable moving forward [with complaints]."

Responding to a reporter's question, the military's judge advocate general, Rear Admiral Geneviève Bernatchez, appeared to acknowledge that the armed forces are at a crossroads and will need to fully embrace change.

"In the past, military justice actors have been very reluctant to change — this is true," she said. 

"This [report] goes to the very heart of the outgoing credibility and legitimacy of the military justice system and its ability to meet the needs of those who use it and those who are impacted by it."

Sajjan said he is committed to putting an implementation plan for the report before the House of Commons defence committee by the fall.

But if recent political speculation holds true, the country could be in the middle of an an election at that time.


Murray Brewster

Defence and security

Murray Brewster is senior defence writer for CBC News, based in Ottawa. He has covered the Canadian military and foreign policy from Parliament Hill for over a decade. Among other assignments, he spent a total of 15 months on the ground covering the Afghan war for The Canadian Press. Prior to that, he covered defence issues and politics for CP in Nova Scotia for 11 years and was bureau chief for Standard Broadcast News in Ottawa.