Retired corporal says she's lost faith in the justice system after sex assault charge stayed

Warning: This story contains sexually graphic details that may be disturbing to readers.

A retired Canadian Armed Forcescorporalsays she's lost faith in the justice system'sability to prosecute military sexual assault cases after a judge stayed the charge in her case because it took too longto get to trial.

And one expert says more military sexual misconduct cases transferred to civilian authorities could fallapart if the federal government doesn't swiftly change the law.

Arianna Nolet'scase is one of the first military sexual assault cases transferred to acivilian court to reach a conclusion since late 2021.Almost 90 such cases have beenacceptedbycivilian police forinvestigationover 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."

Noletis nowcalling 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 saidCanadian Armed Forces authorities stopped laying charges and adjudicating all new sexual offence cases as of late 2021.

The move came after the governmentaccepted an interim recommendation fromretired Supreme Court justice Louise Arbour to transfer all cases of sexual offencesalleged to have been perpetrated by military members including historicalcases to civilian authorities.

WATCH |Retired corporal Arianna Nolet calls delays to her criminal case 'devastating'

Military sex assault cases languishing without needed legal reforms, expert says

1 year ago

Duration 0:01

A woman who says she was sexually assaulted while in the military found hope when her case was moved to civilian court. But a judge stayed the charges because of lengthy delays. As dozens of other cases follow, experts say the government needs to speed up a proposed legal reform that would give civilian courts jurisdiction over military sexual assault cases.

The government tasked Arbour with reviewing the Canadian military's culture in response toa sexual misconduct crisis that saw an unprecedented number of senior military leaders sidelined from prestigious posts.

In her final report, Arbour saidthe military wasgranted concurrentjurisdiction to investigate and prosecute sexual offences for the first timein 1998 to improve efficiency, discipline and morale. But Arbourcalled the Canadian military's handling of these cases over the past 20 years a systemic failurethathas "eroded trust and morale."

Arbour recommended last year the government permanently strip the militaryof its powerto handle sexual offences. Thefederal government has not yet changed the lawto givecivilian 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 recommendsmilitary give up control of sexual misconduct cases:

Arbour discusses recommendation for civilian police control of military sexual misconduct cases

2 years ago

Duration 4:09

Former Supreme Court justice Louise Arbour explains her reasons for recommending that civilian police be given permanent oversight of military 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 Servicethat in April 2020shewoke up after a gathering with co-workers in military housing at CFBPetawawa to find that her pants had been pulled down and another member of the militarywas trying to penetrate her from behind.

Nolet was later medicallyreleased from her role as a military dental technicianin 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 transferringher 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 assaultin late December 2021 andpleaded 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 terminatedbut 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 offencethe 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, Richardsonexpressed 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 thatdelay and,according to the court transcript, cited "exceptional circumstances" the backlogof casescaused by the pandemic.

"I don't see anyone giving more than 90 days credit for COVID-19," Richardson replied.

Nolet saidthe 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."

Noletsaid her case was also undermined by high turnover onthe Crown side.In a complaint filed with the Crownin May, 2023, Noletsaid 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'sMinistry of the Attorney General said it was looking into why theprosecutor who departed hadn'tfiled 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'seffects 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 changethe 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:

Government must change the law immediately, says military law expert

1 year ago

Duration 0:43

Retired colonel Michel Drapeau, an expert in military law, says Ottawa must act swiftly to change the law defining the sorts of offences that can be investigated by the military.

He said it would be faster for allegations to go directly to civilian police. After a military memberreports allegations,the militaryinvestigates 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.

Arbour herself raised concernslast 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 theNational Defence Actto add the word "sexual assault" to the list of crimes the military cannot handle a list that includesmurderand 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 showsamending 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 saidit has not conducted an administrative reviewin Nolet's case to decide if there will be career consequences for the accused because the legal process hasn't concluded.

Noletsaid theCrown has until next week to decide if it will appeal the decision to stay the charge.

Noletalso filed a lawsuit against the accused and the federal government last year. In her statement of claim, she said shesustained 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 andall of the allegations in the lawsuit.

WATCH |'She should get her day in court'':

'She should get her day in court,' says personal injury lawyer

1 year ago

Duration 0:31

Personal injury lawyer Brian Goldfinger is representing retired corporal Arianna Nolet in a civil lawsuit involving her sexual assault allegation.

Nolet'spersonal injury lawyer Brian Goldfingercalls his client's case a "travesty."

"When bad things happen involving the workplace or co-workers, we want our employer, in this casethe 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.