Retired corporal says she's lost faith in the justice system after sex assault charge stayed
Ashley Burke | CBC News | Posted: September 11, 2023 6:00 PM | Last Updated: September 12, 2023
'My fear is that these cases are not going to be prosecuted,' retired Cpl. Arianna Nolet says
Warning: This story contains sexually graphic details that may be disturbing to readers.
A retired Canadian Armed Forces corporal says she's lost faith in the justice system's ability to prosecute military sexual assault cases after a judge stayed the charge in her case because it took too long to get to trial.
And one expert says more military sexual misconduct cases transferred to civilian authorities could fall apart if the federal government doesn't swiftly change the law.
Arianna Nolet's case is one of the first military sexual assault cases transferred to a civilian court to reach a conclusion since late 2021. Almost 90 such cases have been accepted by civilian police for investigation over the past two years.
"To see how this case was handled and mishandled, mismanaged to the point that I didn't even get a day in court, is beyond disappointing," Nolet told CBC News.
"I have completely lost all inherent trust in the judicial system in Canada."
Nolet is now calling for a legislative fix to ensure sexual offence charges against military members aren't stayed due to delays.
"In my experience now with the civilian judicial system, my fear is that these cases are not going to be prosecuted, just as much as they weren't being prosecuted properly in the military," she said.
The office of Defence Minister Bill Blair said Canadian Armed Forces authorities stopped laying charges and adjudicating all new sexual offence cases as of late 2021.
The move came after the government accepted an interim recommendation from retired Supreme Court justice Louise Arbour to transfer all cases of sexual offences alleged to have been perpetrated by military members — including historical cases — to civilian authorities.
WATCH | Retired corporal Arianna Nolet calls delays to her criminal case 'devastating'
The government tasked Arbour with reviewing the Canadian military's culture in response to a sexual misconduct crisis that saw an unprecedented number of senior military leaders sidelined from prestigious posts.
In her final report, Arbour said the military was granted concurrent jurisdiction to investigate and prosecute sexual offences for the first time in 1998 to improve efficiency, discipline and morale. But Arbour called the Canadian military's handling of these cases over the past 20 years a systemic failure that has "eroded trust and morale."
Arbour recommended last year the government permanently strip the military of its power to handle sexual offences. The federal government has not yet changed the law to give civilian police and courts exclusive jurisdiction over such cases.
The military referred 128 of its 252 active sexual offence cases to civilian police between December 2021 and the end of August this year, according to the Canadian Forces Provost Marshal's office. Police agreed to investigate 87 of those cases and declined 41.
The office said those 124 remaining sexual offence cases were not referred to civilian police for various reasons. Some, for example, involved alleged offences that "occurred outside the country" and some involved complainants who opted for military police investigations, the office said.
WATCH |Arbour recommends military give up control of sexual misconduct cases:
Nolet's case was among the first to be transferred.
According to her witness statement, Nolet told the Canadian Forces National Investigation Service that in April 2020 she woke up after a gathering with co-workers in military housing at CFB Petawawa to find that her pants had been pulled down and another member of the military was trying to penetrate her from behind.
Nolet was later medically released from her role as a military dental technician in November 2021 after serving for seven years. CBC News saw a memo Nolet sent the forces in July 2020 in which she identified herself as a victim of military sexual assault and said she wanted to keep serving.
Nolet said she felt relieved when she was given the option in December 2021 of transferring her case to the civilian system because of her distrust of the military's judicial system.
The accused was charged by civilian police with one count of sexual assault in late December 2021 and pleaded not guilty in court in June of this year.
Judge troubled by how the case was handled
Justice Jeffery Richardson of the Ontario Court of Justice in Pembroke stayed the sexual assault charge on Aug. 18, 2023, citing how long it had taken for the case to go to trial.
When a charge is stayed, the trial is terminated but the accused isn't found guilty or not guilty.
"There's been a violation of [the accused's] right to trial within a reasonable time under s.11(b), and the only remedy that's available in the circumstance of this case is a stay," Richardson said, according to the court transcript.
Section 11 (b) of the Charter of Rights and Freedoms guarantees any person charged with an offence the right to a trial within a reasonable time. The Department of Justice says that delays in getting a case to court "can prejudice the ability of the defendant to lead evidence, cross-examine witnesses or otherwise raise a defence."
On Aug. 17, at a hearing to determine whether the accused's right to a trial within a reasonable time had been violated, Richardson expressed concerns to both the Crown and defence about how the case was handled before and after it came to a civilian court.
"... What really bothers me in this case is that the case came into the Ontario court from the military court, for whatever reason," said Richardson, according to the court transcript.
"There is a ton of literature. A ton of it. About how the military court is unfit to hear cases of sexual assault. And here we are."
Richardson said there was a 29-month delay in getting the case to trial. The Crown prosecutor said the defence did not cause any significant part of that delay and, according to the court transcript, cited "exceptional circumstances" — the backlog of cases caused by the pandemic.
"I don't see anyone giving more than 90 days credit for COVID-19," Richardson replied.
Nolet said the Crown "grossly mishandled" her case over the past year and a half by failing to "prioritize the timeline of the case" and allowing it to "slip through the cracks."
"I didn't get the justice that I deserve," she said. "I deserve that day in court. As a victim, you deserve to be heard."
Nolet said her case was also undermined by high turnover on the Crown side. In a complaint filed with the Crown in May, 2023, Nolet said the first prosecutor was replaced after declaring a conflict of interest and the replacement left the office in the spring.
An email to Nolet from Ontario's Ministry of the Attorney General said it was looking into why the prosecutor who departed hadn't filed a response to her case in time.
Julie Scott, director of Crown operations east region, responded to Nolet's complaint in a letter on May 29 of this year. She said she shared Nolet's "concerns about how long this matter has taken to come to trial" and said two factors made "particularly significant" contributions to the delay: the pandemic's effects on "an already overburdened" system and the transfer of sexual misconduct files from the military to the civilian system.
More cases could be stayed, expert warns
Retired Col. Michel Drapeau, a lawyer practising military law in Ottawa and an adjunct professor at the University of Ottawa, said Nolet's case is the tip of the pyramid. He said other cases could be stayed if the federal government doesn't act swiftly.
"We've got a problem and it needs to be fixed," said Drapeau. "It needs to be fixed now."
Drapeau said the government must implement Arbour's recommendation to change the law so that the military no longer has concurrent jurisdiction over sexual offences.
Concurrent jurisdiction, Drapeau said, leads to a "tug of war" where the military wants to hold on to cases and civilian prosecution services "are not particularly enthused about adding to their workload."
WATCH | Government must change the law immediately, says military law expert:
He said it would be faster for allegations to go directly to civilian police. After a military member reports allegations, the military investigates if it's a sexual offence under the Criminal Code and then has to find out if civilian police will take over the case, he said.
"All that take time," he said.
"All that take time," he said.
Arbour herself raised concerns last year that civilian police forces "have already surprisingly, in my view, expressed in some cases some reluctance to exercise a jurisdiction that they currently have."
Arbour estimated that the military justice system processes only about 30 sexual misconduct cases across the country each year. Civilian courts process more than 2,300 sexual offence cases per year, she said.
Drapeau said the government should have acted months ago by changing the National Defence Act to add the word "sexual assault" to the list of crimes the military cannot handle — a list that includes murder and manslaughter.
"That's it," Drapeau said, adding the change could be pushed through by Blair in a matter of months. "It's not even a page, not even a paragraph."
Arbour said in her report that experience shows amending the law to take sexual assault cases away from the military entirely "will take several years."
A spokesperson for Blair said the work of an ad hoc committee of federal, provincial and territorial deputy ministers to address Arbour's recommendations is "ongoing."
"The committee is discussing a number of important issues, including the need to ensure that cases are heard within a reasonable time," said Blair's spokesperson Daniel Minden.
The defence department said it has not conducted an administrative review in Nolet's case to decide if there will be career consequences for the accused because the legal process hasn't concluded.
Nolet said the Crown has until next week to decide if it will appeal the decision to stay the charge.
Nolet also filed a lawsuit against the accused and the federal government last year. In her statement of claim, she said she sustained serious injuries from the alleged incident, including PTSD.
In a statement of defence filed in June this year, the Attorney General of Canada denies any negligence and all of the allegations in the lawsuit.
WATCH | 'She should get her day in court'':
Nolet's personal injury lawyer Brian Goldfinger calls his client's case a "travesty."
"When bad things happen involving the workplace or co-workers, we want our employer, in this case the Canadian military, and for the court system to handle such matters fairly and efficiently," said Goldfinger.
"Nobody should have to endure what Ms. Nolet has gone through."
CBC News sent three requests for comment to the accused and his lawyer but did not receive a comment.