List of Recommendations

Recommendation #1. Military judges should cease to be members of the Canadian Armed Forces, and therefore become civilian. Members of the Canadian Armed Forces appointed by the Governor in Council as military judges should, at the time of their appointment, be released from the Canadian Armed Forces and renounce their military rank.

The National Defence Act should be amended to provide that military judges are never subject to the Code of Service Discipline, and may never be charged, dealt with and tried under the Code of Service Discipline for service offences allegedly committed by them while formerly subject to the Code of Service Discipline, if applicable.

Military judges’ conditions of appointment should include a requirement to act anywhere in the world, including in a theatre of operations.

Unless the context indicates otherwise, references to military judges in this Report include civilianized military judges.

Recommendation #2. The National Defence Act should be amended to allow the Governor in Council to appoint to the position of military judge anyone who is a barrister or advocate of at least 10 years’ standing at the bar of a province and who has been an officer or a non-commissioned member of the Canadian Armed Forces, including the Reserve Force, for at least 10 years.

Recommendation #3. The age of retirement of military judges should be increased to 70 or 75 years. Consideration should be given to allowing military judges to become supernumerary judges after a number of years in judicial office or once they attain a certain age.

Recommendation #4. A permanent Military Court of Canada should be established as a superior court of record in accordance with section 101 of the Constitution Act, 1867. The Military Court of Canada should be enabled to sit at such times and at such places in Canada and abroad as it considers necessary or desirable for the proper conduct of its business. The Minister of Justice should have responsibility for the administrative and budgetary needs of the Military Court of Canada.

In this Report, unless the context indicates otherwise, references to military judges include the judges of the Military Court of Canada, and references to courts martial include the Military Court of Canada sitting as a court martial.

Recommendation #5. A working group should be established to identify the most effective framework for the creation of a permanent Military Court of Canada. The working group should include an independent authority, representatives from the Department of Justice Canada and representatives from the military justice system. The working group should report to the Minister of National Defence.

Recommendation #6. The rules of practice and procedure of the Chief Military Judge under section 165.3 of the National Defence Act should be enacted by the Governor in Council as soon as possible. The Canadian Armed Forces and the Department of National Defence should prioritize their enactment to meet this objective.

Pending the establishment of a permanent Military Court of Canada, the Court Martial Administrator and the Judge Advocate General should consider the reforms which may be desirable to mitigate the concerns raised by the ad hoc status of courts martial in so far as possible. They should recommend the implementation of these reforms to the appropriate authorities.

Recommendation #7. The Director of Military Prosecutions and Director of Defence Counsel Services should be appointed by the Governor in Council, on the recommendation of the Minister of National Defence.
The Director of Military Prosecutions and Director of Defence Counsel Services should hold office during good behaviour for a term of seven years, subject to removal by the Governor in Council at any time for cause with the support of a resolution of the House of Commons to that effect. They should not be eligible to be reappointed for a further term of office.

Recommendation #8. Subsections 165.17(3) to 165.17(6) of the National Defence Act should be repealed.

If a power to issue directives in respect of a particular prosecution is to remain, this power should, at a minimum, be granted to the Minister of National Defence personally and not the Judge Advocate General. Any directive issued to the Director of Military Prosecutions should be required to be in writing and to be published in the Canada Gazette. The Minister of National Defence or the Director of Military Prosecutions should be authorized to direct that the publication be delayed at the latest until the completion of the prosecution or any related prosecution if either considers this delay to be in the interests of the administration of military justice.

Recommendation #9. Specific provisions should be enacted in the Queen’s Regulations and Orders for the Canadian Forces in respect of military prosecutors and military defence counsel. These provisions should expressly state that:

  1. military prosecutors are local ministers of justice and have broader responsibilities to the military justice system and to the accused;
  2. military defence counsel are advocates to their clients and have a duty of loyalty which requires them to commit fully to their clients’ cause; and
  3. military prosecutors and defence counsel may need to exercise their duties in a manner that may sometimes not accord with the views of the chain of command or of the Judge Advocate General.

Recommendation #10. Section 9.2 of the National Defence Act should be amended to clarify the meaning of the Judge Advocate General’s “superintendence of the administration of military justice in the Canadian Forces”. At a minimum, the National Defence Act should expressly provide that the superintendence must respect the independence of military prosecutors, military defence counsel and other statutory actors within the military justice system.

Recommendation #11. The Queen’s Regulations and Orders for the Canadian Forces should expressly provide that:

  1. the Director of Military Prosecutions and Director of Defence Counsel Services must be informed of legal officers’ interest in being posted to their respective divisions, and consulted by the Judge Advocate General about postings;
  2. legal officers will normally be posted to the Canadian Military Prosecution Service or Directorate of Defence Counsel Services for a minimum term of five years;
  3. legal officers posted to the Canadian Military Prosecution Service or Directorate of Defence Counsel Services are under the exclusive command of the Director of Military Prosecutions or Director of Defence Counsel Services, as the case may be, for all purposes, including the determination of their duties, disciplinary matters against them and performance assessments.

Recommendation #12. A working group should be established to consider further reforms aimed at enhancing the independence of military prosecutors and defence counsel. The working group should include an independent authority, as well as the Judge Advocate General, the Director of Military Prosecutions and the Director of Defence Counsel Services or their representatives. The reforms considered should, at a minimum, include:

  1. the full or partial civilianization of the positions of Director of Military Prosecutions and Director of Defence Counsel Services, or military prosecutors and defence counsel more generally;
  2. increased reliance by the Directorate of Defence Counsel Services on members of the Reserve Force who are legal practitioners;
  3. the establishment of an Office of the Director of Defence Counsel Services as an independent unit, separate from the Office of the Judge Advocate General and not subject to its general supervision; and
  4. the establishment of a distinct career path for military prosecutors and military defence counsel, potentially including special mechanisms for their promotion.

Recommendation #13. Section 18.3 of the National Defence Act should be amended to provide that the Canadian Forces Provost Marshal be appointed by the Governor in Council and hold office during pleasure. The Chief of the Defence Staff should accordingly have no authority to remove the Canadian Forces Provost Marshal.

The Canadian Forces Provost Marshal should be responsible to the Minister of National Defence in the performance of his duties and functions. References to the Vice Chief of the Defence Staff in section 18.5 of the National Defence Act should consequently be replaced by references to the Minister of National Defence. Moreover, section 18.6 of the National Defence Act should be amended to provide that the Canadian Forces Provost Marshal report annually to the Minister of National Defence on the activities of the Canadian Forces Provost Marshal and the military police during the year.

Recommendation #14. The National Defence Act should be amended to restyle the Canadian Forces Provost Marshal as the Provost Marshal General and to provide that the Canadian Forces Provost Marshal holds a rank that is not less than brigadier-general.

Recommendation #15. Subsections 18.5(3) to 18.5(5) of the National Defence Act should be repealed.

For greater clarity, section 18.5 of the National Defence Act should be amended to provide that the general supervision and authority of the Vice Chief of the Defence Staff (or of the Minister of National Defence if Recommendation #13 is implemented) to issue general instructions or guidelines do not include a power to give directions regarding specific law enforcement decisions in individual cases.

Recommendation #16. Subsection 250.19(1) of the National Defence Act should be amended to provide that “[a]ny person, including any officer or non-commissioned member, who believes on reasonable grounds that any officer or non-commissioned member or any senior official of the Department has improperly interfered with a policing duty or function” may make an interference complaint to the Military Police Complaints Commission.

Recommendation #17. The Canadian Forces Military Police Group and Canadian Military Prosecution Service should collect, retain and centralize data on the civil offences committed by persons subject to the Code of Service Discipline charged in either the military or civilian justice systems. The data should, at a minimum, include the number of civil offences allegedly committed by persons subject to the Code of Service Discipline which formed the basis of charges, the nature of such offences, the rationale for the determination of which system the charges were proceeded in, the time elapsed between the complaint and the completion of the trial and the outcomes of the charges, including the punishments imposed if any.

Recommendation #18. The Canadian Forces Provost Marshal and Director of Military Prosecutions should coordinate the approaches of military prosecutors and members of the military police to the exercise of military jurisdiction over civil offences committed by persons subject to the Code of Service Discipline. The Canadian Forces Provost Marshal should also make the portions of the Military Police Group Orders on the exercise of military or civilian jurisdiction over such offences easily accessible to the public.

Recommendation #19. The Director of Military Prosecutions and Canadian Forces Provost Marshal should commit the Canadian Military Prosecution Service and the Canadian Forces Military Police Group to clear principles and presumptions to determine whether civil offences committed by persons subject to the Code of Service Discipline will be investigated and prosecuted in the civilian justice system or in the military justice system. Preferably, appropriate criteria would emerge from a multilateral understanding reached between the Director of Military Prosecutions, the Director of Public Prosecutions and the provincial and territorial heads of prosecutions, in consultation with the Canadian Forces Military Police Group and civilian police forces. However, the failure to attempt or to reach a multilateral understanding should not prevent the Director of Military Prosecutions and the Canadian Forces Provost Marshal from unilaterally refining the current criteria.

Recommendation #20. In the unlikely event of a conflict between civilian authorities and military authorities over the exercise of jurisdiction over civil offences committed by persons subject to the Code of Service Discipline, the civilian jurisdiction and authorities should have precedence.

Recommendation #21. A working group should be established to conduct a review of the exercise of military jurisdiction over civil offences committed by young offenders and by civilians subject to the Code of Service Discipline and of the exercise of continuing military jurisdiction. The working group should consider the need for reform of the current jurisdictional rules and, if such need exists, make recommendations on the means of reform. The working group should include an independent authority, representatives from the Department of Justice Canada and representatives from the military justice system.

In the interim, clear principles and presumptions should be formulated for such exercises of military jurisdiction.

Recommendation #22. A working group should be established to conduct a review of the challenges created by the limited application of the Code of Service Discipline to members of the Reserve Force. The working group should consider the necessity for the Canadian Armed Forces of being able to hold the members of its Reserve Force to its key standards of conduct at all times, especially for sexual misconduct and hateful conduct. The working group should make recommendations on means of reform to achieve this objective.

Recommendation #23. Sections 72 and 128 of the National Defence Act should be amended to mirror, as appropriate, sections 21 to 24 and 463 to 465 of the Criminal Code. Subsection 129(3) and the reference to section 72 in subsection 129(2) of the National Defence Act should be repealed. The rules of the National Defence Act on the identification of parties to offences as well as attempts and conspiracies to commit offences should not apply to service offences under subsections 130(1) or 132(1) of the National Defence Act.

Recommendation #24. The National Defence Act should be amended to add distinct service offences for sexual misconduct and hateful conduct.
Paragraph 129(2)(a) of the National Defence Act should be amended by excluding provisions creating service offences from its operation. Subsection 129(2) of the National Defence Act should then be re-enacted as a distinct, self-standing service offence. The new service offence should not describe a prohibited contravention as “an act, conduct, disorder or neglect to the prejudice of good order and discipline”.

Recommendation #25. Subsection 129(5) of the National Defence Act should be amended to provide that “[n]o person may be charged under this section with any offence for which special provision is made in sections 73 to 128, 130 or 132”, without further caveat. Subsection 129(6) of the National Defence Act should accordingly be repealed.

A subsection should be added to section 137 of the National Defence Act. It should provide that a person charged with a service offence other than an offence under subsections 130(1) or 132(1) may, if neither the complete commission of the offence nor an attempt to commit the offence are proved, be found guilty of an offence under subsection 129(1) provided that the evidence establish an act, conduct, disorder or neglect to the prejudice of good order and discipline.

Recommendation #26. In the performance of her superintendence of the administration of military justice in the Canadian Armed Forces, the Judge Advocate General should collaborate with the Canadian Military Prosecution Service and the Directorate of Defence Counsel Services to conduct regular reviews of the service offences contained in the National Defence Act.

Such reviews should aim to (a) identify obsolete or duplicative service offences; (b) assess the desirability of enacting new service offences; and (c) consider the amendments which would be necessary or desirable. The results of these reviews should be used to request the enactment by Parliament of appropriate amendments to the National Defence Act.

Recommendation #27. In the performance of her superintendence of the administration of military justice in the Canadian Armed Forces, the Judge Advocate General should give consideration to making probation, conditional discharges and conditional sentences of imprisonment available options in the military justice system.

Recommendation #28. The Queen’s Regulations and Orders for the Canadian Forces should, prior to the entry into force of An Act to amend the National Defence Act and to make related and consequential amendments to other Acts, SC 2019, c 15, be amended to clarify and distinguish the practical effects of severe reprimands and reprimands.

If practical effects can be attached to the punishment of forfeiture of seniority, they should be clarified in the Queen’s Regulations and Orders for the Canadian Forces. If not, this punishment should be abolished.
Recommendation #29. The Canadian Forces Provost Marshal, in his annual reports, should provide data on the length of military police investigations. If this data indicates that problems of delays in investigations persist or re-emerge, the Canadian Forces Provost Marshal should re-assess the effectiveness of the measures implemented in 2018 and 2019 and consider the implementation of additional reforms.

Recommendation #30. The National Defence Act should be amended to allow military judges to issue search warrants in disciplinary investigations, and permit the issuance of commanding officer search warrants only where a warrant cannot be reasonably obtained in a timely manner either from a military judge or from a civilian justice of the peace.

Recommendation #31. In subsections 155(2.1) and 156(2) of the National Defence Act, the words “for an offence that is not a serious offence” should be replaced by the words “for an offence that is not a designated offence”.

Recommendation #32. Paragraph 156(1)(a) of the National Defence Act should be amended to clarify that members of the military police may, subject to their duty not to arrest without warrant in specified circumstances, arrest without warrant any person who is subject to the Code of Service Discipline, or any person who was subject to the Code of Service Discipline at the time of the alleged commission by that person of a service offence.

Recommendation #33. Subsection 155(3) of the National Defence Act should be replaced by a provision allowing officers or non-commissioned members of the Canadian Armed Forces, in the circumstances stated below, to arrest without warrant any person who is subject to the Code of Service Discipline, other than an officer or non-commissioned member, or any person who was subject to the Code of Service Discipline at the time of the alleged commission by that person of a service offence.

This power to arrest without warrant should only exist where someone (a) is found committing a serious offence; or (b) is believed on reasonable grounds to have committed a service offence, and is escaping from and freshly pursued by anyone who has lawful authority to make an arrest.

Recommendation #34. The National Defence Act should be amended to allow military judges to issue arrest warrants for persons triable under the Code of Service Discipline, and permit the issuance of commanding officer or delegated officer arrest warrants only where a warrant cannot be reasonably obtained in a timely manner from a military judge.

Recommendation #35. The Canadian Forces Provost Marshal and the Judge Advocate General should provide in their future annual reports data and assessments on arrests and pre-trial custody. The data should, at a minimum, include the number of arrests, the status of the persons making the arrest and the persons under arrest, the nature of the alleged service offences, the length of custody, and information pertaining to the particular communities with which the persons arrested or detained identified.

Recommendation #36. Members of the military police who arrest persons subject to the Code of Service Discipline, with or without a warrant, or in whose custody persons under arrest have been committed, should have the authority to release the persons arrested if they give an undertaking, unless the persons are charged with a designated offence. The permissible conditions of an undertaking should be developed in light of the current content of section 158.6 of the National Defence Act and section 501 of the Criminal Code.

Recommendation #37. A person committed to service custody should be brought before a military judge without unreasonable delay, and in any event within a period of 24 hours after arrest, if a military judge is available. Persons in custody should not be asked to make representations on their release from custody if they can be brought before a military judge within this period.

If no military judge is available within 24 hours after the arrest, the current pre-trial custody process should continue, but persons retained in custody should be specifically instructed that any statements they make while in custody, including representations for their release, can be introduced in evidence against them at their trial, and brought before a military judge as soon as practicable.

Recommendation #38. Subsection 161(2) of the National Defence Act should be amended to require that a charge be laid as expeditiously as the circumstances permit against any person, whether retained in custody or released from custody with or without conditions.

Section 107.031 of the Queen’s Regulations and Orders for the Canadian Forces should be amended to require any such person to be notified in writing, as soon as possible, of a decision not to lay charges against him or her.

Recommendation #39. The words “assigned to investigative duties with the Canadian Forces National Investigation Service” in section 107.02 of the Queen’s Regulations and Orders for the Canadian Forces should be repealed to allow all members of the military police to lay charges. This recommendation should come into force once the Canadian Forces Provost Marshal has put in place the necessary resources, training, policy and procedures to allow all members of the military police to carry out this new function.

Recommendation #40. Legal advice for charges laid by members of the military police, other than those assigned to investigative duties with the Canadian Forces National Investigation Service, should be provided by legal advisors embedded in the Canadian Forces Military Police Group (in consultation with military prosecutors, as appropriate).

Recommendation #41. Charges laid by members of the military police assigned to investigative duties with the Canadian Forces National Investigation Service should be referred directly to the Director of Military Prosecutions, without the intervention of the accused’s chain of command.

Recommendation #42. Charges laid by members of the military police, other than those assigned to investigative duties with the Canadian Forces National Investigation Service, should continue to be referred first to the units’ chains of command. The units’ chains of command should, however, refer to the Director of Military Prosecutions all such charges for which they do not proceed by summary trial, except those which relate to service offences for which no right to elect trial by court martial exists.

Once An Act to amend the National Defence Act and to make related and consequential amendments to other Acts, SC 2019, c 15 comes into force, all charges for service offences laid by members of the military police should be referred directly to the Director of Military Prosecutions, without the intervention of the accused’s chain of command.

Recommendation #43. All charges which are currently referred to a referral authority should be referred directly to the Director of Military Prosecutions, without the intermediation of a referral authority. The charges referred to the Director of Military Prosecutions should be accompanied by any recommendation regarding their disposal that the units’ chains of command consider appropriate, if any.

Recommendation #44. The information prescribed by subsection 108.15(1) of the Queen’s Regulations and Orders for the Canadian Forces should be provided in electronic format in all but exceptional cases, having regard to the nature of the information and to the exigencies of the service.

If the accused decides to consult military defence counsel, the Directorate of Defence Counsel Services should also be provided with a copy of, or given access to, this information.

Subsection 108.17(2) of the Queen’s Regulations and Orders for the Canadian Forces should be amended to provide that the reasonable period of time given to the accused to make an election should in no case be less than 48 hours from the time the accused, the assisting officer and military defence counsel, if applicable, have been provided with a copy of, or given access to, this information.

Recommendation #45. Amendments to the National Defence Act and the Queen’s Regulations and Orders for the Canadian Forces, as necessary, should be made to provide a greater measure of confidentiality between an assisting officer and an accused person. These amendments should address the issue of the compellability of the assisting officers in other proceedings under the National Defence Act, and should impose a duty of non-disclosure on the assisting officer in respect of communications with the accused, except in the limited circumstances required by public policy.

Recommendation #46. Practical exercises, such as moot summary trials, should be included in the curriculum of the Presiding Officer Certification Training.

In the performance of her superintendence over the administration of military justice in the Canadian Forces, the Judge Advocate General should consider the desirability of including practical exercises in the curriculum of the Presiding Officer Re-Certification Training.

Recommendation #47. A formal Assisting Officer Certification Training should be developed and lead to a renewable certification, in much the same way as the Presiding Officer Certification Training. The course should include practical exercises, such as moot summary trials.

Each unit of the Canadian Armed Forces should establish a roster of assisting officers who have successfully completed the Assisting Officer Certification Training. The accused should be invited to select their assisting officers from this roster. They should however maintain the right to request the appointment of other persons after having been informed of their lack of training and certification. Efforts should nonetheless be made to offer the Assisting Officer Certification Training to non-roster appointees in all circumstances where doing so would not be inconsistent with the prompt restoration of discipline at the unit level.

The Canadian Armed Forces should ensure that assisting officers are provided with sufficient time, in light of their other duties, to adequately prepare the defence of the accused at summary trials.

Recommendation #48. Presiding officers should be required to provide written reasons for their findings that a member of the Canadian Armed Forces has committed a service offence and for the punishments imposed at summary trials.

Presiding officers should, as a general rule, be required to videotape or, at a minimum, to record the audio of summary trials. The recordings should be accessible to members of the Canadian Armed Forces who may request the review of summary trial proceedings and need to rely on the recordings or have them transcribed for this purpose.

Recommendation #49. Members of the Canadian Armed Forces tried by summary trials and convicted of a service offence should be entitled to appeal their conviction and/or any punishment imposed to a military judge, with leave.

The punishments imposed at summary trial should be enforced notwithstanding the appeal, unless suspended by a military judge on the application of the appellant.

The appellant should be offered legal counsel from the Directorate of Defence Counsel Services for the purposes of (a) the applications for leave and suspension of the punishments imposed at summary trial; and (b) the appeal, if leave is granted.

The working group established to identify the most effective framework for the creation of a permanent Military Court of Canada or a similarly constituted working group should identify the most effective framework for the creation of appeals from summary trials. The working group should report to the Minister of National Defence.

Recommendation #50. The Justice Administration and Information Management System and Military Justice System Performance Monitoring Framework should be developed and start operating in all elements of the Canadian Armed Forces as soon as possible. The Canadian Armed Forces and the Department of National Defence should prioritize their development to meet this objective.

Recommendation #51. Sections 189.1 and/or 191.1 of the National Defence Act should be amended to provide that an accused person’s plea of guilty may be received by any military judge, at any time after a charge has been preferred but before the commencement of the trial.

Subsection 112.64(2) of the Queen’s Regulations and Orders for the Canadian Forces should be repealed.

As a general rule, a pre-trial hearing should be convened within 28 days of the preferral of charges by the Director of Military Prosecutions. The accused should be called on to plead at that pre-trial hearing. The military judge and the parties should subsequently discuss case management.

Recommendation #52. The National Defence Act or the Queen’s Regulations and Orders for the Canadian Forces, as appropriate, should be amended to allow increased use of technology to facilitate remote attendance by any person in court martial proceedings, and to repeal provisions which unduly restrict its use, including subsections 112.64(1) and 112.65(1) of the Queen’s Regulations and Orders for the Canadian Forces.

In the performance of her superintendence of the administration of military justice in the Canadian Forces, the Judge Advocate General should collaborate with the Office of the Chief Military Judge, the Canadian Military Prosecution Service and the Directorate of Defence Counsel Services to identify the desirable amendments.

Recommendation #53. The words “or, if the court martial has been convened, the military judge assigned to preside at the court martial” should be repealed from section 187 of the National Defence Act to allow any military judge to hear and decide preliminary issues, even after the court martial has been convened.

Recommendation #54. The National Defence Act and the Queen’s Regulations and Orders for the Canadian Forces should be amended to allow evidence in preliminary proceedings to be given by statutory declaration regardless of the opposing party’s consent. The opposing party should have the right to cross-examine the person making the statutory declaration.

Recommendation #55. The Military Rules of Evidence should be repealed and replaced in the court martial system by the statutory and common law rules of evidence.

Recommendation #56. Subsection 165.193(4) of the National Defence Act should be amended to replace the words “30 days” by the words “60 days”.

Recommendation #57. Subsections 167(4) and 167(5) of the National Defence Act should be amended to provide that, as a general rule, if the accused is of or above the rank of colonel, the members of the panel must be officers of or above the rank of the accused person.

If there is an insufficient number of eligible active officers, or if objections are allowed in respect of those who exist, the panel should be completed by retired officers of the Canadian Armed Forces having held the requisite ranks at the time of their retirement.

If there is also an insufficient number of eligible retired officers, or if objections are allowed in respect of those who exist, the panel should exceptionally be completed by active officers of the Canadian Armed Forces as little subordinate in rank to the accused as possible.

Recommendation #58. Section 167 of the National Defence Act should be amended to provide for the composition of the general court martial where joint accused are of different ranks.

The Judge Advocate General should identify the panel composition rules which will allow joint trials and assure due regard for the rights of each accused.

Recommendation #59. Section 112.14 of the Queen’s Regulations and Orders for the Canadian Forces should be amended to provide that an objection with respect to a member of the general court martial panel must be heard and determined by the military judge.

Recommendation #60. Section 112.413 of the Queen’s Regulations and Orders for the Canadian Forces should be amended to provide that the members of a general court martial panel vote by anonymous ballot.

Recommendation #61. The National Defence Act should be amended to allow military judges to require that pre-sentence reports relating to the accused be prepared for the purpose of assisting the court martial in imposing a sentence or in determining whether the accused should be discharged. The Canadian Armed Forces should identify the most effective framework for the implementation of a pre-sentence report regime.

Recommendation #62. In addition to their current rights of appeal, accused persons in court martial proceedings should have the right to appeal, with leave of the Court Martial Appeal Court of Canada or a judge thereof, any finding of guilty on (a) any ground of appeal that involves a question of fact; or (b) any ground of appeal that appears to the Court Martial Appeal Court of Canada to be a sufficient ground of appeal. The National Defence Act should be amended accordingly.

Recommendation #63. The National Defence Act should be amended to provide that the Minister, or counsel instructed by him for that purpose, has the right to appeal to the Court Martial Appeal Court of Canada in respect of any finding of not guilty at a court martial (a) on any ground of appeal that involves a question of law alone; or (b) on any ground of appeal that involves a question of mixed law and fact, with leave of the Court Martial Appeal Court of Canada or a judge thereof.

Recommendation #64. The Court Martial Appeal Court of Canada should be composed of 10 to 20 judges with significant criminal law experience. A majority should be judges of a superior court of criminal jurisdiction or a provincial or territorial court of appeal. Section 234 of the National Defence Act should be amended accordingly.

Recommendation #65. Except in the most minor cases and absent exceptional circumstances, allegations of sexual misconduct should be investigated by the military police and not by the units.

Recommendation #66. The military police should receive appropriate training on the application of the Declaration of Victims Rights to investigations of sexual misconduct, even before its entry into force. The Sexual Misconduct Response Centre, with the help of the Canadian Forces Provost Marshal, should design this training module.

Recommendation #67. In the performance of her superintendence of the administration of military justice in the Canadian Armed Forces, the Judge Advocate General should consider the desirability of extending the rights afforded to victims of service offences by the Declaration of Victims Rights to victims of service infractions, particularly victims of sexual misconduct.

Recommendation #68. The Declaration of Victims Rights should be brought into force as soon as possible, ensuring that victims investigated or prosecuted under the National Defence Act will be entitled to substantially the same protections as the Canadian Victims Bill of Rights affords. Until the Declaration of Victims Rights comes into force, and unless the victim consents:

  1. sexual assaults should not be investigated or prosecuted under the National Defence Act and should instead be referred to civilian authorities; and
  2. there should also be a strong presumption against investigating and prosecuting under the National Defence Act other offences committed against a victim.

Moreover, the National Defence Act should be amended to expressly incorporate, in substance, the rights and protections afforded by the Criminal Code to victims and to persons accused of sexual offences.

Recommendation #69. The regulations implementing the Declarations of Victims Rights, or their associated policies, should:

  1. specify that victims are to be provided clear information about their rights under the Declaration of Victims Rights, including what information they are entitled to receive, who is responsible for providing it and when it should be provided;
  2. develop a complaint mechanism that is simple, accessible, robust, and results in meaningful enforcement and accountability; and
  3. include a requirement for role specific mandatory training for military justice actors on victims’ issues (including the impact of trauma and how best to interact with victims), victims’ rights and the actors’ obligations under the Declaration of Victims Rights.

Recommendation #70. An exception to the duty to report incidents of sexual misconduct should be established for victims, their confidants and the health and support professionals consulted by them.

Their duty to report should be retained, however, where a failure to report would pose a clear and serious risk to an overriding interest, which may include ongoing or imminent harm, harm to children and national security concerns. A working group should be established to properly identify these exceptional cases. The working group should include an independent authority and representatives of the Sexual Misconduct Response Centre, military victims’ organizations and the military justice system.

The working group should also consider (a) the removal of the duty of witnesses to report incidents of sexual misconduct; and (b) requiring witnesses to report incidents of sexual misconduct to the Sexual Misconduct Response Centre only.

Recommendation #71. The relationship between the Sexual Misconduct Response Centre, on one hand, and the Canadian Armed Forces and the Department of National Defence on the other, should be reviewed to ensure that the Sexual Misconduct Response Centre is afforded an appropriate level of independence from both. The review should be conducted by an independent authority.

Recommendation #72. The Sexual Misconduct Response Centre should be tasked with implementing a program that provides free independent legal advice to victims of sexual misconduct, including advice on whether, how and where to report, and guidance throughout judicial processes. The civilian lawyers who will provide these services should receive adequate training in military law and the military justice system, in order to be capable of properly advising victims on all their options.

Recommendation #73. The Sexual Misconduct Response Centre should be given the mandate to monitor the adherence of the Canadian Armed Forces to sexual misconduct policies and to investigate systemic issues that have a negative impact on victims of sexual misconduct, including the Canadian Armed Forces’ accountability.

In fulfilling this mandate, the Sexual Misconduct Response Centre should have broad access to all the information it needs, including direct access to relevant databases such as the Operation HONOUR Tracking and Analysis System.

The Sexual Misconduct Response Centre should report on impediments to this access in its annual report.

If the Sexual Misconduct Response Centre continues to encounter difficulty accessing relevant information and data, Parliament should consider granting it the power to compel the production of evidence.

Recommendation #74. The Judge Advocate General and the Sexual Misconduct Response Centre should cooperate to make a joint proposal to the Minister of National Defence in respect of amendments to the National Defence Act which would allow for restorative justice approaches in the military justice system. They should also collaborate to develop a formalized restorative justice model that is adapted to the needs of victims and perpetrators and suited to the reality of the Canadian Armed Forces and its justice system.

Recommendation #75. There should be regular consultation between the Military Police Complaints Commission and key actors within the Department of National Defence and the Canadian Armed Forces prior to the tabling of legislation or the promulgation of regulations or policy changes affecting the Military Police Complaints Commission or Part IV of the National Defence Act.

Recommendation #76. The National Defence Act should be amended to require the Canadian Forces Provost Marshal, the Canadian Armed Forces and the Department of National Defence to disclose to the Military Police Complaints Commission any information under their control or in their possession which the Military Police Complaints Commission considers relevant to the performance of its mandate.

With respect to information which involves a claim of solicitor-client privilege, this recommendation is subject to the outcome of the discussions referred to in Recommendation #79.

Recommendation #77. The National Defence Act should be amended to give the Military Police Complaints Commission the power to summon and enforce the attendance of witnesses before it and compel them to give oral or written evidence on oath. The Military Police Complaints Commission should also have the authority to require any person, regardless of whether that person is called to testify, to produce any documents or things that the Military Police Complaints Commission considers relevant for the full investigation, hearing and consideration of a complaint.

With respect to information which involves a claim of solicitor-client privilege, this recommendation is subject to the outcome of the discussions referred to in Recommendation #79.

Recommendation #78. Discussions should be undertaken between the Military Police Complaints Commission, the Department of National Defence, the Canadian Armed Forces, the Privy Council Office and the Department of Justice Canada to examine the merits of adding the Military Police Complaints Commission to the schedule of the Canada Evidence Act as well as the legislative requirements for doing so.

Recommendation #79. There should be discussions between the Military Police Complaints Commission, the Canadian Forces Provost Marshal, the Judge Advocate General and the Director of Military Prosecutions with a view to reaching agreement on the circumstances when the Military Police Complaints Commission should be given access to solicitor-client privileged information, with appropriate limits and safeguards to avoid waiver of the privilege. The discussions should examine options for consequential amendments to the National Defence Act. Due consideration should be given to other regimes that compel the disclosure of solicitor-client privileged information and to the safeguards they contain. Outside experts should be engaged in the discussions.

Recommendation #80. The Military Police Complaints Commission should be added to the list of designated investigative bodies in Schedule II of the Privacy Regulations.

Recommendation #81. The National Defence Act should be amended to establish a 90-day time limit for requesting a review of a conduct complaint after it has been investigated by the Canadian Forces Provost Marshal.

Recommendation #82. The National Defence Act should be amended to establish a 90-day time limit for the production of the notice of action, subject to extension by the Chairperson of the Military Police Complaints Commission. In the absence of a notice of action or application to extend within this time frame, the Military Police Complaints Commission should be authorized to proceed to issue its final report.

If Recommendation #13 is implemented and the Canadian Forces Provost Marshal becomes responsible to the Minister of National Defence in the performance of his duties and functions, the Minister and not the Chief of the Defence Staff should issue the notice of action where the Canadian Forces Provost Marshal is the subject of a complaint.

Recommendation #83. The National Defence Act should be amended to make express provision for conduct complaints initiated by the Chairperson of the Military Police Complaints Commission. In the case of such complaints, the provisions of subsections 250.27(1) (informal resolution of complaints) and 250.28(2) (screening out of complaints that are frivolous or vexatious) of the National Defence Act should not apply.

Recommendation #84. There should be an early opportunity for discussion between the Military Police Complaints Commission and the Canadian Forces Provost Marshal to agree on problem definition and on solutions regarding the Military Police Complaints Commission’s contention that it is regularly obliged to carry out its own investigation to fill in gaps in the Canadian Forces Provost Marshal investigation. The option of providing authority to the Military Police Complaints Commission to remit a matter back to the Canadian Forces Provost Marshal for further investigation should be considered.

Recommendation #85. A working group should be established with representatives from the Military Police Complaints Commission, the Office of the Judge Advocate General and the Canadian Forces Provost Marshal to develop a process for the classification of complaints.

Recommendation #86. Members of the Canadian Armed Forces who intend to file a grievance should be required to submit a notice of intent to grieve. The notice of intent to grieve should be sent directly to the members’ commanding officers, with a copy to the local Conflict and Complaint Management Services centre. The submission of a notice of intent to grieve should suspend the time limit within which a grievance must be submitted. The modalities of the suspension and resumption of delays should be determined by the Canadian Armed Forces, in consultation with the Integrated Conflict and Complaint Management. The Queen’s Regulations and Orders for the Canadian Forces and DAOD 2017-1, Military Grievance Process should be amended accordingly.

Recommendation #87. The Initial Authority should be allowed to request an extension of its time limit from the grievor. The requests should state that the grievor is not obliged to consent and may not be the subject of reprisals of any kind for refusing to do so. They should be made in writing and sent directly to the grievor, with a copy to the local Conflict and Complaints Management Services centre.

If an Initial Authority has not adjudicated a grievance or requested an extension from the grievor within the time limit to consider and determine the grievance, the grievance should be deemed to have been dismissed by the Initial Authority.

Recommendation #88. If the Initial Authorities fail to meet the objective and timeline determined at paragraph 13(a) of the CDS Directive for CAF Grievance System Enhancement regarding their compliance rate with the time limits prescribed by subsection 7.15(2) of the Queen’s Regulations and Orders for the Canadian Forces and section 9.8 of DAOD 2017-1, Military Grievance Process, these provisions should be amended to prescribe that an Initial Authority must consider and determine a grievance within 90 days of its receipt.

Recommendation #89. The National Defence Act, the Queen’s Regulations and Orders for the Canadian Forces and DAOD 2017-1, Military Grievance Process should be amended to prescribe that a Final Authority must consider and determine a grievance within 90 days of the receipt of the findings and recommendations of the Military Grievances External Review Committee.

When the Final Authority fails to meet this time limit, the findings and recommendations of the Military Grievances External Review Committee should be deemed to constitute the decision of the Final Authority.
Recommendation #90. The National Defence Act and the Queen’s Regulations and Orders for the Canadian Forces should be amended to provide that all grievances referred to the Final Authority should be reviewed by the Military Grievances External Review Committee before the Final Authority considers and determines the grievance.

Recommendation #91. The military grievance process should be fully digitized. Members of the Canadian Armed Forces should only submit their notice of intent to grieve and grievances electronically, directly to their commanding officer, with a copy to the local Conflict and Complaint Management Services centre.

All documents shared between a grievor, the Initial Authority and the Final Authority should be recorded in an electronic file to which the grievor, the commanding officer, the Initial Authority, the Final Authority and the local Conflict and Complaint Management Services centre should have access.

Recommendation #92. The Canadian Armed Forces should examine the respective roles of assisting members and Conflict and Complaint Management Services agents to determine whether the former still serve a useful purpose in the military grievance process.

If they do, a formal Assisting Member Certification Training should be developed and lead to a renewable certification. The course should include practical exercises.

Each unit of the Canadian Armed Forces should establish a roster of assisting members who have successfully completed the Assisting Member Certification Training. Grievors should be invited to select their assisting members from this roster. They should, however, maintain the right to request the appointment of other persons after having been informed of their lack of training and certification. Efforts should nonetheless be made to offer the Assisting Member Certification Training to non-roster appointees where the circumstances allow it.

The Canadian Armed Forces should ensure that assisting members are provided with sufficient time, in light of their other duties, to adequately assist grievors in the preparation of their grievance and throughout the process.

Recommendation #93. A section on the military grievance process should be included in the training curriculum for Canadian Armed Forces recruits. It should include information on the matters which are grievable, the limits of the remedial powers of the Initial Authority and Final Authority, the procedure and timelines applicable to a grievance, and the rights of the grievor, both within and beyond the military grievance process (including judicial review).

Recommendation #94. The Conflict and Complaint Management Services centres should organize outreach activities each posting season to inform the members of the Canadian Armed Forces assigned to local units of their existence and functions.

Recommendation #95. Section 12 of the Strengthening Military Justice in the Defence of Canada Act, SC 2013, c 24should come into force without further delay.

Recommendation #96. Section 29.21 of the National Defence Act should be amended to allow the Military Grievances External Review Committee to compel the production of documents or things without the requirement to hold a hearing.

Recommendation #97. A working group should be established to evaluate the appropriateness of providing grievors with recourse to an independent tribunal. The working group should consider whether all grievances, or only certain categories, should be subject to the jurisdiction of that tribunal. It should also consider the integration of this route in the current grievance process and the remedies available pursuant to that recourse. The working group should include an independent authority, representatives from the Military Grievances External Review Committee and representatives from the Canadian Armed Forces. The working group should report to the Minister of National Defence.

Recommendation #98. The independent review process under section 273.601 of the National Defence Act should provide at least nine months to conduct the review and draft the report. This period should run from the completion of all preliminary steps to the submission of the report to the Minister of National Defence.

Recommendation #99. The Department of National Defence should provide future independent review authorities, at the beginning of their reviews, with a report on the implementation status of recommendations from previous independent reviews under section 273.601 of the National Defence Act and other external or internal review exercises relevant to their mandate. Officials responsible for supporting future independent review authorities should work with the Assistant Deputy Minister (Review Services) to accomplish this.

Recommendation #100. The Department of National Defence and the Canadian Armed Forces should carry out a series of evaluations on each of the training modules: their design, the type of participation included, and the frequency and application of acquired skills and knowledge. The results of these evaluations should be made available to future independent review authorities.

Recommendation #101. Future independent review authorities should, prior to the start of the review period, be briefed on all relevant data on the performance and operation of the military justice system, the military grievance process and the regime for complaints about or by military police.

Recommendation #102. Subsection 273.601(1) of the National Defence Act should be amended to expressly include an examination of sections 9 to 9.4 of the National Defence Act concerning the roles and responsibilities of the Judge Advocate General.

Recommendation #103. There should be an independent review of oversight and redress mechanisms for the Canadian Armed Forces.

The review should examine the operation of the Office of the Ombudsman for the Department of National Defence and the Canadian Forces, and whether additional measures are needed to reinforce its independence and effectiveness. The review should examine the experience of other democracies and best practices elsewhere in government. It should consider the roles and responsibilities of a general oversight organization in relation to subject-specific oversight organizations within the Defence portfolio.

Recommendation #104. The Minister of National Defence and the Judge Advocate General should ensure that the role of the military justice system in combatting hateful conduct is examined. They should consider whether this is best accomplished through the Advisory Panel established in December 2020, through an independent review that would include in its mandate the role of the military justice system in combatting hateful conduct or in some other way.

Recommendation #105. There should be a review of the adequacy of resources for military justice policy development.

Recommendation #106. Senior officials of the Office of the Judge Advocate General should undertake discussions with senior officials of the Department of Justice Canada to improve information sharing and collaboration on policy initiatives.

Recommendation #107. The Office of the Judge Advocate General should, in cooperation with the Department of Justice Canada and the Department of Public Safety and Emergency Preparedness, review its participation in federal-provincial-territorial working groups on the justice system.

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