An Examination of How the Canadian Military’s Legal System Responds to Sexual Assault

Forthcoming Dalhousie Law Journal 43:1 Spring 2020

49 Pages Posted: 20 Jun 2019

See all articles by Elaine Craig

Elaine Craig

Dalhousie University - Schulich School of Law

Date Written: May 29, 2019

Abstract

Although the Canadian military has been conducting sexual assault trials for over twenty years, there has been no academic study of them and no external review of them. This review of the military’s sexual assault cases (the first of its kind) yields several important findings. First, the conviction rate for the offence of sexual assault by courts martial is dramatically lower than the rate in Canada’s civilian criminal courts. The difference between acquittal rates in sexual assault cases in these two systems appears to be even larger. Since Operation Honour was launched in 2015 only 1 soldier has been convicted of sexually assaulting a female member of the Canadian Armed Forces by Canada’s military legal system. (One other conviction was overturned on appeal and is pending before the Supreme Court of Canada.) In addition, plea bargains in which accused individuals can avoid Criminal Code convictions by pleading guilty to military specific discipline offences like drunkenness and disgraceful conduct have been used in some cases involving aggressive sexual attacks. Sanctions for even these serious sexual attacks involved fines and reprimands. Last, the decisions of military judges in some cases suggest a critical failure to recognize the Canadian military’s culture of hostility to women documented in the Deschamps Report. Together these findings raise the following question: regardless of the outcome of the current constitutional challenge to courts martial proceedings in Canada (in R v Beaudry), should the military’s legal system continue to maintain jurisdiction over sexual assault cases?

Keywords: sexual assault, courts martial, military sexual trauma, operation honour, judge advocate general, Canadian military, Beaudry, plea bargain, court martial

Suggested Citation

Craig, Elaine, An Examination of How the Canadian Military’s Legal System Responds to Sexual Assault (May 29, 2019). Forthcoming Dalhousie Law Journal 43:1 Spring 2020. Available at SSRN: https://ssrn.com/abstract=3395850

Elaine Craig (Contact Author)

Dalhousie University - Schulich School of Law ( email )

6061 University Avenue
Halifax, Nova Scotia
Canada

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