Ex-corporal says government putting sexual assault cases in peril by failing to change the law

A retired corporal says the federal government is failing military victims of sexual assault by dragging its heels on stripping the Canadian Armed Forces of its power to investigate and prosecute sexual offences.

Arianna Nolet received a copy of an Ontario judge's written decision on Friday, which found that a nine-month delay due to the military's handling of her case contributed to the sexual assault charge in her case being stayed.

"If they do not act on this immediately, there will be more victims suffering the same fate as my case," Nolet told CBC News.

In his decision, Justice Jeffery Richardson of the Ontario Court of Justice explained why he "reluctantly" concluded the only option was to stay the charge because the accused's right to a trial within a reasonable time, guaranteed by the Charter of Rights and Freedoms, had been violated.

In 2016, the Supreme Court of Canada set ceilings for permissible delays in bringing cases to trial. Cases coming through provincial court are supposed to be tried and completed within 18 months. Richardson said the case law shows the clock starts ticking once the military lays a charge, even if the case is later transferred to the civilian judicial system.

Richardson concluded Nolet's case had been delayed 21 months — nine months in the military's judicial system and another year in the civilian system.

"At the end of the day, although I am very sympathetic to the basic argument that it was untenable for the case to remain in the military justice system ... this cannot justify the carte blanche garotte of the accused's right to trial within a reasonable time," he wrote.

Richardson also found the Crown and defence put the case on the "back burner" for months. The Crown has decided not to appeal the judge's decision in Nolet's case.

Nolet's case is one of the first military sexual assault allegations to reach a conclusion in civilian court since the military started transferring dozens of sexual offence cases to the civilian system in late 2021.

In October 2021, retired Supreme Court justice Louise Arbour called on the military to hand over sexual offence files to the civilian system as part of her interim recommendations on military sexual misconduct. Then-defence minister Anita Anand acted on that recommendation two weeks later.

Arbour called for the files to be transferred to restore trust in the military after a series of historical allegations were reported against senior military leaders.

Arbour said last year that "surprisingly" many police forces were refusing to take the cases. She wrote that "prolonging concurrent jurisdiction" would "only lead to interminable discussions" and "complicated intergovernmental protocols."

In her final report in 2022, commissioned by the federal government, Arbour recommended that Ottawa change the National Defence Act to remove the military's jurisdiction to investigate and prosecute sexual offences under the criminal code. The move would remove the military's power to handle these cases, granted in 1998, and give exclusive jurisdiction to civilian authorities.

Anand tabled a report in Parliament last year directing the military to undertake all of Arbour's recommendations. Nine months later, the government has yet to change the law.