Senior military officials insist their investigators and prosecutors did nothing wrong and they won’t be making any changes in response to two military sexual assault cases that were stayed in civilian courts.
A civilian judge last month terminated the trial of now-retired Lt.-Gen. Trevor Cadieu and his co-accused after concluding there were unreasonable delays.
Another civilian judge in September said he “reluctantly” ended the criminal proceeding in the case of retired corporal Arianna Nolet, who alleges she was sexually assaulted at CFB Petawawa in 2020. The judge concluded the accused’s right to a trial within a reasonable time had been violated.
In both cases, the judges said the military contributed to some of the delays.
Deputy Canadian Forces Provost Marshal Col. Vanessa Hanrahan said she conducted a “thorough review” of how military police handled Cadieu’s case after it was stayed.
The judge in that case said the Crown withheld a key interview from the defence for nine months “pending redactions to the video that the Crown asked the military police to perform.” The judge wrote in his decision that “military police were not responsive to this request.”
“So all I can tell you is that I am confident in the review that I have done to indicate that we did not see any unnecessary delay in the provision of documentation between the military police and the Crown prosecutor’s office,” Hanrahan told CBC News.
“So no specific changes resulting as a result of this specific file. But I would argue we would always look to improve things.”
The military is under pressure to ensure that other sexual assault cases won’t be thrown out due to delays if they’re referred to the civilian system. The forces started transferring sexual misconduct files to civilian courts at the end of 2021, after the federal government agreed to an interim recommendation by retired Supreme Court justice Louise Arbour.
The government tasked Arbour with independently reviewing the military’s culture in response to a sexual misconduct crisis that saw a series of senior leaders sidelined from top military posts.
Cadieu was poised to take command of the Canadian Army in 2021 before he was charged in relation to a sexual assault that allegedly happened in 1994. He denied the allegation. The charge was stayed in October.
Cadieu and Nolet’s cases were among the first of those transferred out of the military system since late 2021 to reach conclusions in civilian court.
When asked to explain the delay in Cadieu’s case, Hanrahan said that when military police lay charges in the civilian system, they work to provide disclosure in a timely manner to the Crown. Military police assist the Crown with tasks like redactions, but it’s the Crown’s responsibility to disclose evidence to the defence, she added.
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Director of Military Prosecutions Col. Dylan Kerr said the military has no plans to change its policies and practices in response to Nolet’s case.
“There’s nothing for us to change in that regard, because there will not be any other cases like that,” Kerr told CBC News.
Nolet called that response “bold.”
“For them to claim that they had no accountability and any error in that process, it’s just a little bit arrogant and presumptuous because clearly the judge in my case found fault in the way the military handled my case,” she said.
An Ontario Court of Justice judge in Nolet’s case estimated the case experienced a nine-month delay in the military system before the file was transferred to civilian authorities. The accused pleaded not guilty in court.
In his decision, the judge said the case, “with the albatross of nine months of delay under the military justice system clasped stubbornly around its neck, was irretrievably locked up in the civilian system.”
The Crown and defence then put the case on “the back burner” and failed to take reasonable steps to address the delays, the judge wrote when he terminated the trial.
“While the result is unfortunate, it’s also not incredibly surprising,” Kerr said about the charge being stayed in Nolet’s case.
Kerr said the risk of transferring her file “was known and was communicated quite clearly.”
Nolet said she was warned but didn’t trust the military’s judicial system to independently or properly handle her case.
“Ultimately, the victim’s views about where she wanted her case to be heard, between the military justice system and the criminal justice system, ended up being the determining factor for us,” said Kerr. “But we always knew that there was a risk.”
Kerr said Nolet and one other person are the only ones who opted to transfer their cases to civilian authorities after military police had already laid charges.
Nolet said the decision shouldn’t have been left up to her.
“As a victim and in the state of mind you’re in, you don’t have the knowledge and education to make that decision,” she said.
In her final report last year, Arbour said the military imposes “an unrealistic burden on the victim” when it asks them to decide between civilian and military prosecution. Arbour said that requires victims “to make a decision about which system is likely to work better for them, with little understanding of the factors at play,” which isn’t in the public’s interest.
CBC News asked Defence Minister Bill Blair about the military’s role in the two cases that were stayed.
“I don’t really feel anybody has to defend themselves as to what they did, if they did their job,” said Blair. “But what we’ve heard very clearly, what Madame Justice Arbour recommended to us, is that it should not be left to the military police to conduct these investigations.”
Blair said he’ll be moving forward in the coming months with Arbour’s final recommendation from almost 18 months ago — to change the law to strip the military of its jurisdiction to investigate sexual misconduct.