This raises the huuuum factor

11/5/2021

CBC News reports in this article that the newly appointed Canadian Minister of National Defense, Anita Anand, is directing that the investigation of allegations and prosecution of sexual criminal offenses or misconduct within the Canadian Armed Forces (CAF) move into the civilian justice system.

(Update) Rory Fowler on the above.

Rory Fowler link

11/5/2021 12:07:12 pm

Well, as your resident, occasional Canadian commentator, here are my thoughts on this announcement, starting with 'this is not the solution people might think it is' ...:

http://roryfowlerlaw.com/minister-of-national-defence-announcement-sexual-misconduct/

Brian L. Cox link

11/6/2021 12:02:01 am

This policy announcement most certainly should raise the huuuuum factor - for the MJ communities on both sides of the Can-US border and for others who are engaged in similar debates involving the relationship between MJ reform and sexual assault in the military. Rory's linked blog post does a phenomenal job of articulating the huuuuuum factor for our CAF compatriots (the link in the "update" didn't work when I clicked it but it did open when I copied the link from Rory's comment - maybe something for the CAAFlog team to check on?).

On the US side of the border, reading the policy announcement and Rory's commentary together definitely raises the huuuuuum factor, as in, "Huuuuuum, is this what we want for the US MJ system?" For those who have been engaged in the debate about divesting court-martial authority from commanders, the nature of the debate playing out north of the border should serve as a cautionary tale.

That is, the CAF has long since created an independent Canadian Military Prosecution Service, which is led by the Director of Military Prosecution. In fact, it appears similar in structure and composition to the independent prosecution department currently being contemplated in the States for the Military Justice "Improvement" and Increasing Prevention Act of 2021 (and related proposed legislative "reforms"). For the CAF, the CMPS was established in 1999, implementing a recommendation from the Report of the Special Advisory Group on Military Justice and Military Police Investigative Services to enhance prosecutor independence.

Here we are, more than two decades later, not satisfied that the CAF MJ system is not competent or independent enough to adjudicate sexual assault offenses. Here's an excerpt from a joint statement released today from the DMP and the Provost Marshall: "We acknowledge the current crisis of public confidence in the military justice system, particularly as it relates to allegations of sexual misconduct....We are committed to playing our part in restoring public confidence in the military justice system...Canadians can be assured that the military justice system stands ready to act where the civilian criminal justice system is unable or declines to exercise its jurisdiction in these matters." (available here: https://www.canada.ca/en/department-national-defence/news/2021/11/joint-statement-of-the-canadian-forces-provost-marshal-and-the-director-of-military-prosecutions.html)

This should serve as a cautionary tale for us on the US side of the border because we find ourselves at the beginning of the path our CAF compatriots began walking more than 20 years ago. The result? See today's policy announcement and the excerpt of the joint statement above. And they're not done - far from it.

It should be a cautionary tale for us in large part because reform movements are essentially using the same playbook on both sides of the border. Public perceptions fueled by sensationalist though ill-informed media reporting. Recurring cycles of turning to non-military experts to illuminate the path to "modernizing" or "professionalizng" (read: civilianizing) military justice. Civilian leadership that finds it more expedient to cave to political pressure for "reform" rather than doing the hard work of ensuring the challenges are well understood and solutions are properly scoped to address those challenges. Centering policy changes on restoring public trust in MJ rather than on solutions that are supported by actual evidence. But above all else, erroneously conflating military justice reform with changing the culture of the military.

Hopefully our CAF compatriots find some sort of equilibrium soon. For those in the States, we should be studying these developments north of the border carefully. Unless we chart a different path - and contrary to popular belief, it is not too late to do so - this is what we can expect for our future, too.

I'm going to close these reflections by copying some passages from Rory's post. I commend his entire article, and for that matter, his blog, to the US MJ community. It would be a challenge to find much that Rory has written with which I substantially disagree, but these passages seem particularly relevant while reflecting on our current path in the States. Rory is not only a close friend, but he also presents what I think is one of the very few consistent and balanced expert perspectives on MJ in public discourse north of the border. From Rory's post, providing commentary on a military justice system that vested court-martial disposition authority in an independent DMP more than two decades ago:

"Many people reiterate the broad, conclusory statements that the ‘Military Justice system is broken’, but do not provide particularly compelling examples of how it is broken.

[...]

Some people are suggesting that this policy decision will improve morale, efficiency, and administration of the Canadian Forces. I have my doubts. It has all the hallmarks of d

Brian L. Cox link

11/6/2021 12:07:08 am

It has all the hallmarks of doing something in order to appear to be doing something to fix a problem, without actually addressing the real problem(s).

If we cannot trust the senior leaders in the CF to administer the Military Justice system regarding sexual offences, why can we trust them with other disciplinary offences? If they cannot be trusted to ensure that justice is done in these matters, how can they be trusted to lead subordinates into harm’s way?"

Concerned Citizen

11/6/2021 08:42:30 am

Seems unlikely to happen here. Congress would lose their political issue and couldn't beat up on the military anymore. DoJ seems like a much less appealing target.

Philip D. Cave link

11/7/2021 07:47:51 am

caaflog@nimj.org.

Folks, feel free to send a note about broken links, missing links, glaring errors to us, and we'll see what can be done.

RSS feed? We have tried to put that on the site but can't seem to get it done. I use feedly.com and understand the value of RSS.

If you didn't know already, NMCCA's is apparently "unreachable," CAAF's is only for opinions, ACCA doesn't seem to have one, but putting the library link in seems to work.

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This raises the huuuum factor

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