Prosecution of Sexual Misconduct
Message on the prosecution of sexual misconduct from Colonel Bruce MacGregor, Director of Military Prosecutions:
Recently, the Globe and Mail published an article regarding sexual assault conviction rates in the military justice system. This is a very important issue on which I welcome public debate. However, I believe that it is also vital to discuss it in a way that fully educates and informs readers on the military justice system and those efforts that have been undertaken by the Canadian Military Prosecution Service relating to the broader mission to eliminate sexual misconduct from the Canadian Armed Forces.
Sexual misconduct has no place in the Canadian Armed Forces. When an allegation is brought forward, it is raised to the proper authorities and an investigation takes place to determine the facts and, if warranted, lay appropriate charges. Unlike the Criminal Code, the Code of Service Discipline contains a wide range of service offences which can be applied to the full spectrum of sexual misconduct, including sexual assault. Where appropriate, charges of sexual assault will be laid and pursued by military prosecutors at court martial. However, military prosecutors also have a number of other options with respect to pursuing charges against perpetrators for those behaviours which fall short of sexual assault. As a result, many of those behaviours which would not be pursued by prosecutors within the civilian criminal justice system are prosecuted within the military justice system. This provides the military justice system with additional flexibility to ensure that individuals accused of sexual misconduct offences, including sexual assault, are dealt with fairly through the military justice system.
Conviction rates, without context, are not a measure of success in any criminal justice system. Criminal trials are very dynamic and the number of factors as to why some individuals are convicted and some are not are almost impossible to account for through statistics alone. It is important to note that steps are being taken to ensure that those accused of an offence are held to account through a fair and transparent process.
Similarly, guilty pleas to a lesser charge should not be seen to suggest that the Canadian Armed Forces does not take sexual misconduct seriously. As noted by the Supreme Court of Canada, guilty pleas, including to a lesser included offence, are “commonplace” and are “vitally important to the well-being” of the criminal justice system. In every case, independent military prosecutors carefully consider the circumstances, including the requirement for the offender to be registered under the Sex Offender Information Registration Act, and review various options that exist in an effort to ensure that justice is carried out. Beforehand, military prosecutors are required to proactively seek and weigh the views of the victim, the chain of command and investigators before entering into settlement discussions, especially where the alleged offence involves the violation of the victim’s personal integrity. Only once military prosecutors have considered all the relevant factors will he or she agree to proceed with a guilty plea in those cases where it is in the public interest to do so.
Indeed, any guilty finding or acquittal – in both the civilian and military justice systems – is dependent upon the facts of each individual case, and what is important to highlight is that the complaints of victims are being dealt with before an open and fair system of justice that is compliant with the Charter and is respectful of the needs of victims.
Since the release of Madame Justice Deschamps’ Report in 2015 and the implementation of Operation HONOUR, the Canadian Military Prosecution Service has taken a number of steps to address sexual misconduct and to ensure that victims remain informed, respected and heard. For example, I immediately ordered a review of all military prosecution policies, with emphasis on those affecting victims and the prosecution of sexual misconduct offences. This resulted in significant improvements in the way we prosecute these types of offences, and now ensures that victims are consulted and informed throughout the process.
In addition, in 2017, I created the Sexual Misconduct Action Response Team, which is led by a reserve military prosecutor who is also a senior prosecutor with the Ontario Ministry of the Attorney General. I have been able to rely on her significant experience in sexual assault prosecutions to assist and mentor military prosecutors on all cases of serious sexual assault. I have also made arrangements to have a number of military prosecutors work alongside civilian prosecutors across Canada in order to allow them to gain valuable experience prosecuting sexual assault cases in civilian courts, bringing best practices on sexual violence from civilian prosecution services into the military prosecution service.
As the Director of Military Prosecutions, I put a high priority on the prosecution of sexual misconduct offences. All forms of sexual misconduct must be taken seriously as this type of behaviour can quickly erode discipline and morale within the Canadian Armed Forces. Left unchecked it can significantly impair the ability of military commanders to achieve mission success and irreparably damage public confidence in this national institution, in many cases because of the actions of one individual. To that end, victims remain my highest priority and they will continue to be supported and consulted in all cases. It is these vital considerations that are continuing to guide all of my actions and decisions as Canada’s senior military prosecutor and the entire Canadian Military Prosecution Service in its critical role in supporting the Canadian Armed Forces in eliminating sexual misconduct from its ranks.
Colonel Bruce MacGregor, CD, QC
Director of Military Prosecutions
Commanding Officer of the Canadian Military Prosecution Service
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