Culture Change Won’t Work Without the Military Justice System Supporting It

by Wendi Winter and Charlotte Duval-Lantoine 

On December 7, 2019, It’s Just 700 shared an article on its Facebook page: “An Examination of How the Canadian Military’s Legal System Responds to Sexual Assault.” The article was written by Dr. Elaine Craig of the Schulich School of Law at Dalhousie University and is a  draft for the forthcoming Dalhousie Law Journal, vol 43(1). In it, Dr. Craig observes a lack of scholarship on how the military legal system works, and she pushes back against the Canadian Armed Forces (CAF) leadership claims that military justice is stricter than civilian courts when it comes to prosecuting and convicting those accused of sexual assault. 

To support her argument, Craig reviews cases of sexual assault that occurred between 2015 and 2018 (from the release of the Dechamps Report to the suspension of the prosecution of sexual assault cases due to the incoming R v Beaudry ruling from the Supreme Court). In three years, only 14 sexual assault cases went to court martials, 12 of which had a servicewoman as a complainant (Dr. Craig focuses on cases involving women victims, due to women’s higher likelihood to be victims of sexual assault in the military and the Deschamps report’s finding that the CAF’s culture is hostile to servicewomen and LGBTQ2+ members). 

Out of those 12 cases, 2 have resulted in a conviction –but that includes R v Beaudry, a case overturned on appeal and currently being examined by the Supreme Court of Canada; 9 have resulted in the defendant’s acquittal, and in the 10th case the defendant was convicted of non-sexual assault. 

In the article, Dr. Craig explore cases that have gone to trial and those in which the defendant has pleaded guilty. Too many times, the defendants, often accused of repeated attacks on a subordinate or peer that had clearly expressed her lack of consent, are convicted of non-Criminal Code offences of “conduct to the prejudice of good order of discipline” (section 129, National Defence Act)  or “disgraceful conduct” (section 93, National Defence Act). 

The range of punishment for non-Criminal Code offences in the military range from reprimand to a reduction in rank. In the cases Dr. Craig explores, R v Brunelle, R v Chapman, R v Buenacruz, R v Obele Ngoudni, the convicted defendants majoritarily received a fine (up to $3,000, payable through monthly $300 installments) and a reprimand. The worst punishment in this case was for Buenacruz, who was demoted one rank. The consistency in sentencing is due to the principle of “like punishment for like offence;” and these cases were very similar. 

For sexual assaults that involved repeated attacks, the complainants expressed their trauma, their fear to get involved in the social moments of military life, their loss of trust in their chain of command. But an interesting section in Dr. Craig’s piece is when she explores the rationale of the seating judge, Judge Pelletier, when making the sentencing. He expressed several times that the plea deal to which some of the defendants have agreed are signs that they feel contrition for their act. In cases involving court martial trials, he interprets the defendants’ allowing the complainant to speak out about their trauma during the proceedings as a recognition of the harm they have done to their victims. What Pelletier ignores is the real risk of reprisals when submitting a complaint or even saying “no”, which the 2014 articles from l’Actualité and MacLean’s had revealed. 

While the topic of women victims of sexual assault is important to explore, we would like to take a moment to explain that they are not the only service members who endure sexual misconduct. Just like women victims, men victims face similar outcomes when they press charges for sexual assault, mainly that the damage to the perpetrator’s career is more important than the damage to the victim and their testimony is often found lacking. 

R v Gobin saw the same verdicts as R v Brunelle, R v Chapman, R v Buenacruz, R v Obele Ngoudni: the defendant was acquitted of sexual assault (he was accused of analy penetrating his coworker with his hand) and was found guilty of the lesser charge of assault and sentenced to a reprimand and fine of $1500.

Corporal Gobin was aged 25 at the time of the trial, and one of the most important mitigating factors in his case was that he had “a promising career ahead of him within the CAF” as he had received two “above average PERs [Personal Evaluation Reviews].” His involvement in the court martial and the publicity that it brought to his actions was considered a strong deterrent for both himself and others in the future. 

At the same time, the reliability of complainants has been called into question. In R v Cooper, where Master Seaman Cooper sexually assaulted a subordinate while serving aboard HMCS Athabaskan, Commander Sukstorf explained: 

Generally, the outcome of a sexual assault trial will depend on the reliability and credibility of the evidence given by the complainant. The appropriate approach to assessing the standard of proof is to weigh all the evidence and not assess individual items of evidence separately.

In this case the victim’s testimony was corroborated by another member and thus was not found lacking. Master Seaman Cooper pleaded guilty to his charges, and, at 30 years of age and with no prior record, he was sentenced to 22 months imprisonment, dismissal from the CAF, and a reduction in rank to Ordinary Seaman. 

The court martial documents involving women defendants also reveal Judge Pelletier has a misguided interpretation of the power dynamics at play in military life – he seems to believe that the chain of command does not create a subordinate/superior relationship in which a subordinate might feel forced to engage in sexual acts with their superior – even when the superior has made the demand for a sexual favour a clear order (see R v Buenacruz).  More so, he has argued that, if the complainant had filed for harassment complaints prior to a sexual assault, then the claim that they felt they had no choice but to submit to the pressure is not credible. 

Through all of these cases, one can see the inconsistent response of the CAF to instances of sexual misconduct and how the military focuses on the impact that a guilty verdict has on the career of CAF members. It also can affect the victim’s perceived reliability. While the event itself is traumatic, the aftermath, especially if the perpetrator is found not guilty, has a huge influence on the future of the victim. By finding the perpetrator not guilty, the court is essentially saying that the victim is untrustworthy and they are not reliable. 

This can label a victim and follow them, even if they transfer units. On page 25, citing the Canadian Armed Forces Class Action lawsuit, Dr. Craig explains this feeling among servicewomen: “Women who have been sexually assaulted by fellow members of the CAF frequently identify these experiences of sexualized violence, and the inadequate response of the CAF to them, as the catalyst that stunted, if not ended, their military careers.” 

In light of Operation Honour and the fight against harmful and inappropriate sexual misconduct in the Canadian military, and beyond the question of whether the military should have jurisdiction over sexual assault cases, why does exploring the prosecution of sexual assault in the CAF matter?

Dr. Craig says it very clearly on p. 28: “By repeatedly indicating that the sanction of a fine and a reprimand or reduction in rank is commensurate with the gravity of the offence in cases [of repeated sexual attacks], the military’s legal system sends the wrong message” to CAF members. It sends the message to victims that their trauma is not worth serious punishment. 

In fact, in R v Brunelle, Judge Pelletier, while recognizing that the victim will face irreversible consequences, determined that the defendant’s “strong potential for success and advancement in military service” did not warrant a severe punishment.

Additionally, the conviction rate of sexual assaults (14%) in the military stands in contrast with statements from former Judge Advocate General (JAG) Blaise Cathcart and Chief of Defence Staff Jonathan Vance that the military carries justice to victims better than the civilian justice system. In fact, with 55% conviction rate, the civilian courts are more strict when it comes to sexual assault cases. 

Additionally. Operation Honour has not changed much about how victims are perceived before, during, and after their trials.

The discrepancies between the statements on the part of the leadership and the realities of the military justice system are problematic. It shows that leaders are fully disconnected from the realities on the ground, that they are not monitoring closely all aspects of the implementation of Operation Honour, and in the end, that they do not care as much about the victims as much as they claim. This is another instance of a leadership that does not monitor their institution and fully hold them to account. 

The blind trust in the JAG, CDS, and the Judge’s perception of military life and their remaining assumption of sexual misconduct as the act of a servicemember lacking moral fiber, rather than the consequence of a toxic culture, is the largest barrier that the CAF has to overcome if it wants Operation HONOUR to finally show results.