With Louise Arbour now appointed as Canada’s next Governor General, one of her most important recommendations on military sexual misconduct has returned to the centre of Canadian public life. Through Bill C-11, the Liberal government is moving to remove the Canadian Armed Forces’ authority to investigate and prosecute Criminal Code sexual offences committed in Canada, transferring that responsibility to the civilian justice system.
I am waiting to hear whether “Criminal Code sexual offences” will include historical child sexual offences that were never called sexual assault.
If you have followed my blog for any length of time you know the National Defence Act and the Criminal Code of Canada both contain language so vague that the snowbirds could fly wing-tip to wing-tip through the gaps.
This is not theoretical. On November 4, 2021, then-Minister of National Defence Anita Anand accepted Louise Arbour’s interim recommendation that sexual assaults and other Criminal Code offences of a sexual nature should be referred to civilian authorities. At the time, CFNIS had an active investigation into my complaint against retired Brigadier-General Roger Bazin. CFNIS refused to transfer the matter to civilian police on the basis that the possible 1980-era offences were not “sexual assault.” Their position was that sexual assault did not exist as a charge in 1980, while offences such as indecent assault and gross indecency did. Therefore, they treated the matter as outside Minister Anand’s transfer direction.
From 1950 until the 1985 Criminal Code transition, the National Defence Act excluded murder, manslaughter, and rape from trial by service tribunal when committed in Canada. And if you thought that “Rape” covered all sexual assaults against anyone, you’d be sadly mistaken.
Rape didn’t cover the following criminal code offences:
- s. 146(1) Sexual Intercourse with female under 14
- s. 146(2) Sexual Intercourse with female of previously chaste character age 14 to 16
- s. 147 Attempted Sexual Intercourse with female under 14
- s. 148 Sexual intercourse with “feeble-minded”
- s. 149 Indecent Assault on female
- s. 153 Sexual Intercourse with stepdaughter or female ward.
- s. 155 Buggery
- s. 156 Indecent Assault on male (often interpreted through a “homosexuality” lens by police, military, and social-work culture of the period)
- s. 157 Gross Indecency (often interpreted through a “homosexuality” lens by police, military, and social-work culture of the period)
In the legal culture of the 1970s and early 1980s, Criminal Code ss. 155, 156, and 157 were not formally the offence of “homosexuality,” but they were commonly associated with male homosexual conduct, male sexual deviance, and “morals” policing. In institutional practice, that meant allegations involving male victims or male-male sexual conduct could be misread through a homosexuality lens rather than a child-protection or sexual-assault lens.
From 1985 until 1998, the National Defence Act excluded s. 271 sexual assault from trial by service tribunal when committed in Canada.
s. 271 Sexual Assault didn’t cover the following criminal code offences:
- s. 151 Sexual interference under the age threshold
- s. 152 Invitation to Sexual Touching
- s. 153 Sexual Exploitation
- s. 155 Incest
- s. 160 Bestiality involving a child.
- s. 170 Parent or Guardian procuring sexual activity
- s. 171 Householder permitting prohibited sexual activity
- s. 172 Corrupting children
- s. 173(2) Exposure to person under age threshold
I asked ChatGPT what the key distinctions were between s. 271 and s. 151 – s. 173 were. This is what ChatGPT replied with.
The key distinction is this: sexual assault was the broad assault-based offence. Child-specific offences worked differently. Some required touching. Some required only invitation. Some targeted adults who procured, permitted, enabled, or exposed children to sexual activity. If the CAF only transfers files labelled “sexual assault,” then entire categories of child sexual offending can disappear into a jurisdictional crack.
Back on November 4th, 2021 then Minister of National Defence Anita Anand instructed all current sexual assault investigations and prosecutions to be handed over to the civilian justice system.
The CFNIS at the time had an active investigation into my complaint against retired Brigadier General Roger Bazin to ascertain if he was the man in the sauna that the babysitter took me to meet in order to pleasure the man in the sauna.
The CFNIS refused to hand this matter over to the civilian police citing that the offences that Bazin could potentially be charged with didn’t meet the definition of “Sexual Assault” as sexual assault didn’t exist in 1980, but that Indecent Assault and Gross Indecency were criminal code offences at the time of the alleged offence and therefore this matter was outside of Minister Anand’s instructions.
I asked ChatGPT the following question:
The Liberal Government of Canada just announced that they will formally remove ALL responsibility for investigating and prosecuting sexual assault from the Canadian Armed Forces and mandate that all sexual assault involving the Canadian Armed Forces be handled by civilian police.
As you know, the Canadian Armed Forces often investigated and prosecuted child sexual assault because rape typically wasn’t a crime that applied to children, nor did post 1983 sexual assault.
Do you believe that the Canadian Armed Forces will willingly hand over crimes involving children, especially pre-1998 crimes to the civilian system?
ChatGPT analyzed the question and came back with this response:
My honest read: not willingly, not cleanly, and not without pressure
Based on the current Bill C-11 material and the MPCC’s own concern about past transfer failures, I would not assume the CAF/CFNIS will naturally and generously hand over every file involving children — especially old, pre-1998 files — unless the statute, ministerial direction, civilian police demand, disclosure rules, and outside oversight make the transfer unavoidable.
That does not mean every individual investigator will act in bad faith. It means the institutional incentive structure still favours control. 🧱
What the new reform appears to do
Bill C-11 is aimed at removing CAF investigative and prosecutorial jurisdiction over Criminal Code sexual offences committed in Canada and giving civilian authorities exclusive jurisdiction for those offences. DND’s own Bill C-11 material says this implements part of Arbour’s recommendation that Criminal Code sexual offences should be removed from CAF jurisdiction and prosecuted exclusively in civilian criminal courts, with civilian police investigating in Canada “at the earliest opportunity.”
DND’s Arbour-response report is even broader in wording. It says all sexual assaults and other criminal offences of a sexual nature under the Criminal Code, including historical sexual offences, alleged to have been perpetrated by a current or former CAF member, should be referred to civilian authorities. It also says civilian authorities should exercise investigative and prosecutorial jurisdiction over all sexual offences by CAF members.
That wording matters because it does not just say “modern sexual assault under s. 271.” It says:
sexual assaults and other criminal offences of a sexual nature under the Criminal Code, including historical sexual offences
That should include child-specific sexual offences, at least in principle.
But here’s the trap: “sexual assault” is too narrow
You are right to flag the category problem.
Historically, especially before and around the 1983 reforms, many child sexual offences were not labelled “sexual assault.” They could be framed as:
| Era | Possible legal label |
|---|---|
| Pre-1983 / 1970 Code | indecent assault on female, indecent assault on male, buggery, gross indecency, sexual intercourse with female under 14, sexual intercourse with stepdaughter/ward, parent/guardian procuring defilement, householder permitting defilement |
| Post-1983 / 1985 Code | sexual interference, invitation to sexual touching, sexual exploitation, incest, parent/guardian procuring sexual activity, householder permitting prohibited sexual activity, corrupting children, exposure |
So if the transfer rule is interpreted as only “sexual assault”, then old child sexual abuse files can fall into a crack.
But if it is interpreted as “Criminal Code sexual offences” or “criminal offences of a sexual nature”, then the net is much wider. Bill C-11/DND materials use the wider language in key places.
Why I would not trust voluntary handover
The MPCC has already identified the exact kind of institutional problem you are worried about.
In a 2023 public-interest-investigation decision, the MPCC described a complaint alleging that a ministerial direction to transfer sexual misconduct investigations from military police to civilian police was not implemented by the CFPM. The MPCC noted a disparity between Minister Anand’s 2021 direction, Minister Blair’s later statement that it was not intended that half of sexual assault files remain with military investigators, and the CFPM approach of involving victims in transfer decisions. The MPCC said this raised questions about civilian control of military policing.
That is the smoke coming out of the second-storey window.
It shows the problem is not theoretical. There has already been a fight over whether the military police actually implemented the transfer direction fully.
The especially difficult category: historic pre-1998 child cases
Pre-1998 matters are the most vulnerable to institutional slipperiness because they can be argued into several boxes:
| Possible CAF/CFNIS argument | Why it matters |
|---|---|
| “This is historical and evidentiary.” | Civilian police may be reluctant unless records are complete. |
| “This was handled under military justice at the time.” | CAF may try to treat old records as military justice history, not fresh civilian criminal evidence. |
| “The suspect was subject to the Code of Service Discipline.” | They may frame it as a service-tribunal legacy issue. |
| “The offence label was not sexual assault.” | Child-specific or old sexual offences could be miscategorized. |
| “Civilian police declined / lack jurisdiction / lack records.” | CAF can keep practical control if the handoff is incomplete. |
| “Records are archived, classified, privileged, or subject to privacy limits.” | Disclosure becomes the bottleneck. |
That last point is the big one. Jurisdiction on paper is one thing. Possession of records is another.
If CFNIS/DND still controls the old investigative files, notebooks, witness lists, Crown briefs, command correspondence, charge-screening records, and court martial material, then civilian jurisdiction can be starved at the source.
So would they hand over child files willingly?
My answer: only the files they are forced to define as transferable
I would expect easier handover where the case is:
- recent,
- clearly labelled sexual assault,
- committed in Canada,
- involving a CAF member,
- already known to civilian authorities,
- not embarrassing to historical command structures,
- not tied to old military justice decisions.
I would expect more resistance, confusion, or narrowing where the case is:
- pre-1998,
- child-specific,
- labelled under old offences,
- tied to military dependants,
- tied to PMQs/base institutions,
- tied to chaplains, social workers, MPs, or command decisions,
- connected to previous CFNIS/MPCC failures,
- dependent on old CFSIU/CFNIS files.
That is not me being dramatic. That is how bureaucracies defend themselves: not usually by saying “no” loudly, but by defining the problem narrowly enough that the awkward parts fall outside the box.
The key phrase to watch
The reform must not be allowed to mean only:
“sexual assault.”
The phrase that matters is:
“all Criminal Code offences of a sexual nature, including historical child sexual offences, regardless of whether the historical charge label was rape, indecent assault, gross indecency, buggery, sexual interference, sexual exploitation, procuring, permitting, or another child-specific sexual offence.”
That is the language that closes the loophole.
Bottom line
Do I believe the CAF will willingly hand over historic child sexual offence files, especially pre-1998 ones?
No. Not as a matter of institutional instinct.
I believe they will hand over what the law, civilian police, courts, ministers, journalists, survivors, and oversight bodies make impossible to keep.
The reform is important. But without explicit language covering historical child sexual offences and mandatory disclosure of related military records, the CAF can still hide behind classification, offence labels, jurisdictional history, and “that was not technically sexual assault” nonsense.
That is the loophole. And that is where I would keep hammering.