Liberals to study plan to move military prosecutors and defence lawyers to civilian justice system

The Liberal government is setting up an internal working group to study whether the civilian justice system should take over all the duties of military prosecutors and defence lawyers in cases beyond sexual misconduct within the Canadian Armed Forces, CBC News has learned.

The review, being conducted in coordination with the federal Department of Justice, is the latest step towards addressing the sexual misconduct crisis that has gripped the Department of National Defence for the better part of this year.

Reference to the review is contained in documents obtained by CBC News and Defence Minister Anita Anand acknowledged, in an interview, that it is one of several initiatives being considered ahead of the findings of the misconduct external review panel headed by former supreme court justice Louise Arbour.

"It is profound," Anand said on the margins of the Halifax International Security Forum over the weekend. "I am preparing the ground for us to be able to act quickly on the recommendations in their final form from Madam Arbour."

The latest statutory review of the military justice system, released earlier this year, and penned by another retired supreme court justice, Morris Fish, recommended a series of measures to improve the independence of military prosecutors and defence lawyers, including a look at them becoming civilians.

WATCH | Liberals to study plan to move military prosecution and defence to civilian system:

Canada could move all military sexual misconduct cases to civilian justice system

3 years ago

Duration 1:58

CBC News has obtained documents that show a working group will study whether the civilian justice system should take over all the duties of military prosecutors and defence lawyers in sexual misconduct cases within the Canadian Armed Forces.

The Oct. 25, 2021 internal "implementation directive" meant to put the wheels of government in motion to address the Fish report puts the "civilianization" initiative, along with the establishment of a permanent military court, at the top of the action list.

Civilian judges on back burner

A separate recommendationto move military judges to a civilian system doesn't make it onto the "immediate" implementation list.

Anand, a law professor and expert in corporate governance, said she wants to see the Arbour report expected next year before making any firm decisions.

"I will definitely consider all of those recommendations with a view to implementing them, but let me just say at the heart of all of this is the protection of victims' rights, and that is something that I am squarely focused on," she said.

Turning military prosecutors, defence lawyers and even judges into civilians would have an enormous impact on the military and potentially restrict the power of the chain of command to manage their troops.

It is one of the legal remedies which retired colonel and military lawyer expert Michel Drapeau has recommended for years, publicly and in appearances before countless parliamentary committees.

Drapeau's arguments and those of other critics that the military, with a self-interested chain of command, cannot be trusted to police itself has gained extraordinary currency in the wake of the sexual misconduct crisis, where several senior leaders have faced harassment allegations and suspensions.

During his review, Justice Fish said he found the independence of military judges, prosecutors and defence lawyers was being threatened. He cited how he was told by the directory prosecutions that the way military judges were appointed made them "vulnerable to political pressures."

It is precisely those fears which led Fish to recommend the "civilianization" initiative and studies.

Canadian approach 'very, very different.'

The approach, however, contrasts with what other western allies including the United States are doing. Those countries have, for the most part, kept the reforms focused on the handling of sexual misconduct cases.

"What the Canadians are doing is very, very different by moving it into the civilian sector," said U.S. Republican Sen.Joni Ernst, a former member of the American military from Iowa who said she was sexually harassed while still serving.

She is among a bipartisan group, including Democratic Sen.Kirsten Gillibrand of New York, that's behind a U.S. Senate bill The Military Justice Improvement and Increasing Prevention Act which seeks to professionalize how the military prosecutes serious crimes.

It proposes moving the decision to prosecute from the chain of command to independent, trained, professional military prosecutors.

Ernst is among those upset with the Pentagon's foot dragging on the implementation of reforms.

"We are struggling with the department of defence right now just to get out of the chain of command," she said, answering questions from journalists over the weekend.

Dutch experience

The Netherlands has taken a similar approach to what is being proposed in the United States.

The country's top military commander, in an interview with CBC News, said they have already removed the sexual misconduct complaints process from the chain of command.

"You absolutely have to have the complaints outside of the command system," said Gen. Onno Eichelsheim, the Dutch chief of the defence staff. "There has to be availability for our personnel to do that, outside of the command system. And we have that system in place."

Eichelsheim said he has spoken to Canada's acting top military commander, Gen. Wayne Eyre, and given him that direct advice.

He said it's important for western allies to share their experiences and insight on such an important social issue because Canada is not the only one facing a sexual misconduct reckoning.