Judge Advocate General Geneviève Bernatchez, who is a rear-admiral, said it would take 'several years' to fully implement Bill C-77, which includes provisions that would guarantee victims in the military justice system more of the basic rights that people in the civilian courts have had for years, because of the need for consultations and to develop policy.Tijana Martin/The Globe and Mail
More than two years, and two elections, after the Liberal government passed a bill guaranteeing the rights of victims with cases in the military justice system, the law has not been fully enacted – leaving people without basic guarantees and supports during a complex and traumatic process.
Although the law was passed in 2019, the Defence Department and the Canadian Armed Forces have not yet completed the regulations that will bring it into force.
Bill C-77 includes provisions that would guarantee victims in the military justice system more of the basic rights that people in the civilian courts have had for years – including the right to information about the case, participation in the process and restitution.
A woman who has reported that a senior officer sexually assaulted her several years ago when she was a civilian volunteer with the Canadian Forces and accompanied them on a trip abroad says that without the law, she has been unable to access mental health supports she needs to cope with the trauma and stress of coming forward.
She reported the allegations to military police in early 2021, just before a full-blown crisis erupted over an escalating number of sexual assault and misconduct cases involving senior officers. The Globe and Mail does not identify people who report sexual assault unless they consent to be publicly named.
Military sexual-assault cases will be moved to civilian justice system, Defence Minister says
As the investigation began winding its way through the system, she heard Prime Minister Justin Trudeau tell the public that people like her would be supported.
“Mr. Speaker, every step of the way, this government has always taken seriously the responsibility to support, provide resources to and follow up with anyone who comes forward with allegations of sexual misconduct or assault in the armed forces or otherwise,” Mr. Trudeau told the House of Commons on April 28.
The Prime Minister made similar statements in the subsequent months and in the federal election campaign as the number of senior officers under investigation for sexual misconduct grew and the questions about his government’s inaction piled on.
The disconnect was jarring, says the woman, whose experience going through the reporting and the investigation ran in parallel to the political and military crisis.
“I’m literally going through it, and I’m not being supported whatsoever,” she said. “You hear these things, but then you’re actually going through it and it’s not happening.”
The real experience, she said, is of being treated like a “hot potato that nobody wants to hold and take care of. … I’m not being supported or protected by the people that are supposed to protect me the most.”
The woman says that at the time of the alleged incident, she was a college student in her early 20s volunteering with the Forces and accompanied the military on a trip to the United States. She said she had hoped the experience would open up career opportunities. Instead, she said she was assaulted by the senior officer, who used his position to find out which hotel room she was in.
The alleged assault happened before the international reckoning brought on by the MeToo movement, and she didn’t think she would be believed, so she did not report it. But she learned years later that her assailant might have other victims. Wanting to prevent possible future assaults, and hoping that if there were multiple victims, her case had a greater chance of resulting in conviction, she reported it this year.
Almost a year later, she says she understands why some women choose not to report. “It’s not safe for victims to come forward with their stories yet.”
She said she was questioned by investigators in a place that reminded her of an interrogation room, an experience she called “completely retraumatizing.” After the questioning, she said no counselling was provided to her. The investigators offered her a brochure with some helpline phone numbers.
The lack of emotional support was compounded by the fact that no one was there to help her navigate the system. She said investigators told her that if she wanted to pursue the case, she would have to report it to authorities in the United States. She said she learned through her own research that this was incorrect, and the Canadian military had jurisdiction to investigate it. All of it amounted to a “full-time job to stand up for yourself,” she said.
She eventually got legal help months after she reported the incident, not through military channels, but pro bono counsel from lawyer Michel Drapeau’s firm in Ottawa. Mr. Drapeau is a retired colonel and adjunct professor of law at the University of Ottawa, and specializes in military law. He often represents victims of sexual assault. She said she was pointed in his direction by a lawyer involved in a class-action suit over sexual assault in the military.
On Nov. 4, the federal government said all military sexual assault cases will be moved to the civilian justice system. However, her legal team said this has not yet been offered in their client’s case.
Mr. Drapeau and his colleague Stéfanie Bédard have been trying to get the support that they say the woman would receive if the Declaration of Victims Rights in the bill was enacted, or if she had been a federal employee or member of the military, rather than a civilian volunteer.
Despite letters and e-mails to Deputy Minister of National Defence Jody Thomas, Justice Minister David Lametti, the federal ombudsman for victims of crime, the Forces ombudsman, and the Forces sexual misconduct response centre, the lawyers and their client say they have not been able to get her any help.
Mr. Drapeau wrote to Ms. Thomas on May 31 that the failure to enact the law means “our client remains statutorily excluded from the protection provided to all other Canadian citizens who are victims of crime.”
He urged the government to correct the situation so the woman can access the mental health support she requires. He also asked Ottawa to grant a discretionary payment of $2,500 to cover the costs of about 10 counselling sessions.
Ms. Thomas did not respond to the request, Mr. Drapeau said. The correspondence provided to The Globe by the law firm shows the other offices either directed them to services for which their client doesn’t qualify, or punted their requests to other offices.
Daniel Le Bouthillier, a spokesperson for the Canadian Armed Forces and the Defence Department, acknowledged that no existing policies or interim measures exist to support such cases.
“Given the uniqueness of this specific case and out of concern for the victim’s well-being, DM Thomas has directed her team to explore all possible options to ensure the required support,” Mr. Le Bouthillier said. “As one of our most fervent agents of institutional change, DM Thomas will continue to pursue a victim-first approach.”
He said Ms. Thomas did not respond to the request in May because she referred it “to the appropriate team,” which “engaged accordingly.”
He said the Forces and the Defence Department have been drafting the regulations to bring the full bill into force, including consulting with advocacy groups and victims and survivors of offences.
Richard Séguin, a spokesperson for the military’s sexual misconduct response centre, said in a statement to The Globe that the centre’s counsellors “will never turn away anyone in need of support.” He did not explain why support was not offered in this case, citing confidentiality. In the correspondence provided by Mr. Drapeau to The Globe, e-mails show the centre directed the lawyers to civilian resources for which their client does not qualify because she is going through the military justice system, or pointed them to resources that are explicitly for Canadian Armed Forces members and their families.
In her 2019-20 annual report, Judge Advocate General Geneviève Bernatchez, who is a rear-admiral, said it would take “several years” to fully implement Bill C-77 because of the need for consultations and to develop policy. (The Judge Advocate General’s office oversees the administration of the military justice system.)
By early 2021, the delay in implementing the bill was noted by opposition MPs, and in an independent review of the National Defence Act conducted by former Supreme Court justice Morris Fish, who urged the “priority implementation of the Declaration of Victims Rights provided for in Bill C-77.”
“The prompt adoption of these recommendations will help spare victims of sexual misconduct the inevitable harm to their health and careers that delayed implementation would cause,” Mr. Fish wrote.
Mr. Fish noted the military was unable to tell him when Bill C-77 would be implemented, and wrote that even then it will not afford victims the same level of rights and protections available through the civilian system.
In a statement to The Globe, the spokesperson for Defence Minister Anita Anand said the government wants the Declaration of Victims’ Rights implemented as quickly as possible and it expects it will be done by spring, 2022.
“This is a priority for Minister Anand and our entire government, and we owe it to CAF members and all Canadians to get this right,” spokesperson Daniel Minden said.
The lengthy delay is “an affront to the Parliamentary process and the democratic process” and an “insult to these victims,” Mr. Drapeau said in an interview with The Globe. The Liberal government introduced the bill in the House of Commons in 2017. It replaced a bill that died on the order paper before the 2015 election. The 2017 bill contained little that was different from its predecessor to explain the long delay in implementing it, he said.
“If the law had been put into effect, I don’t think DND would have a place to hide, it would have a statutory capacity to respond to this particular demand, modest as it is,” Mr. Drapeau said of his client’s request for support.
The snail’s pace is emblematic of how the Canadian Armed Forces have dealt with other aspects of sexual misconduct, said Megan MacKenzie, a professor at Simon Fraser University who researches gender and the military. Prof. MacKenzie said in the case of Bill C-77 and a 2015 report on sexual misconduct and harassment in the military, there are “clear calls to action, and then just years go by where no one’s really sure if anything is happening.”
“I think it tells you how dire things are for victims, especially victims of sexual assault,” she said.
Prof. MacKenzie added that most civilians would likely assume the supports in Bill C-77 are already available.
“All of these rights are really to support victims during a process that is very well known to be hugely traumatic for victims who have already gone through a lot. So that’s why it’s really important and the fact that the CAF are dragging their heels on it, I think is significant and shows a lack of serious commitment on this issue,” she said.
“These are not just necessary, but they’re rights that all victims deserve.”
As victims across the military wait for the bill to be implemented, the civilian who reported her assault this year said she is just hoping that months after she asked for help, the military will respond with support.
“I would love to say that you totally should come forward. But I can’t say that yet,” she said.
For subscribers: Get exclusive political news and analysis by signing up for the Politics Briefing.