Chapter 17 – Vulnerable Groups

17.1 Introduction

As discussed in Chapter 7, the court martial system’s effectiveness, efficiency, and legitimacy are challenged by how it responds to the needs of victims, aboriginal offenders, and young persons.

This chapter will outline several possible initiatives aimed at addressing the special needs of these three particular groups who may interact with the court martial system: victims, young persons, and aboriginal offenders. Unlike previous chapters, this chapter will discuss certain proposals affecting these groups that could be implemented across the court martial system, and could improve the effectiveness, efficiency, and legitimacy of the system.

17.2 Victims’ rights and services comparable to the civilian system

Limited victim-related provisions currently exist within the NDA. Many processes and procedures for the benefit and protection of victims that have existed in statutory form within the civilian criminal justice system for years do not currently exist in statutory form within the court martial system. For instance, the power to order a publication ban exists under the Criminal Code in relation to many situations and offences,¹ but is not expressly provided for under the NDA. In the absence of specific authority under the NDA, military judges have resorted to section 179(1)(d) of the NDA as authority to issue publication under the common law.²

Similarly, matters such as “rape shield” protections and disclosure of victim records held by third parties must be addressed by the application of common law as the NDA does not include provisions similar to those in the Criminal Code found at section 276 (and following). Furthermore, section 278.1 (and following) of the Criminal Code sets out a detailed process for the protection of third-party records (i.e.: records that are not in the possession of or under the control of the Crown) that are sought by an accused person, such as medical or psychiatric records relating to a complainant in a sexual assault case. This statutory scheme was enacted in response to the SCC’s decision in R v O’Connor,³ and provides for a two-step process that is somewhat different than the process that the SCC set out in O’Connor. No equivalent scheme exists under the NDA, which means that a military judge who applies the common law (as established by the SCC in O’Connor) at a court martial will follow a different process than the one that Parliament determined was more appropriate within the civilian criminal justice system when it enacted section 278.1 (and following) of the Criminal Code. The differences between these processes – that typically apply for the benefit and protection of victims and complainants – could create perceptions that the court martial system is less fair and less intelligible than the civilian criminal justice system.

A number of provisions in Bill C-15, when brought into force, will provide victims of service offences with specific procedural rights. Victim impact statements will permit individual victims of offences, particularly those who have experienced significant, financial and emotional harm, to have a voice in the sentencing process. Restitution orders will allow the court martial to impose a restitution order on an offender in situations involving damage or loss of property, or bodily or psychological harm. This provision will permit restitution to victims of service offences without the need to resort to actions in civil court.

In spite of the positive changes that the implementation Bill C-15 will make for the benefit and protection of victims, the court martial system would still not provide the same extent of victim-centred processes and procedures as exist within the civilian criminal justice system.

It is assessed that the effectiveness and legitimacy of the court martial system would increase if victims of military offences had rights at least equal to, and access to resources at least as favourable as, those available in the civilian criminal justice system in Canada.⁴

The CMCRT notes that victims’ rights in the court martial system would mirror those offered to victims in the civilian criminal justice system if a bill such as Bill C-71 (see Assumption #1, in Chapter 1) were to be enacted. A bill like this would create a “Declaration of Victims Rights” granting victims of service offences the rights to information, protection, participation, and to seek restitution in respect of service offences within the court martial system. The bill would also provide for military judges to make orders for the protection of victims, such as no-contact orders, publication bans, orders permitting a witness to have a support person present while testifying, and orders prohibiting an accused person from personally cross-examining a witness, that would mirror the substantive rights offered to victims of certain criminal offences in the civilian justice system. It is estimated that implementation of victims’ rights in the court martial system, in a fashion similar to what Bill C-71 would have achieved, would increase the perceived fairness of the court martial system.

Additionally, implementation of two other aspects of Bill C-71 (or a similar initiative) could increase the effectiveness and perceived fairness and transparency of the court martial system for victims. First, in order to help ensure that victims are properly informed of and positioned to access their rights, the bill would provide for a Victim Liaison Officer, at the request of the victim, who would assist the victim to understand how service offences are charged, tried, and dealt with under the Code of Service Discipline. The Victim Liaison Officer would also assist the victim to obtain information that the victim requests and to which the victim has a right. This would be a role unique to the court martial system and could have a positive impact on how fair and transparent victims perceive the system to be.

Second, the bill would provide for the submission of a military impact statement at the time of sentencing of an offender, so that members of the CAF chain of command could describe the harm done to the discipline, efficiency, or morale of the CAF as a result of an offence. Military impact statements would be distinct from community impact statements, which would also be available but would focus on the harm or loss suffered by a community as a result of an offence, having a negligible impact on timeliness while providing significant effectiveness and legitimacy benefits.

It is possible that the inclusion of victim impact statements, military impact statements, community impact statements, and the various orders, could initially decrease timely outcomes. However, it is assessed that, in the long term, these statements and orders would become familiar and routine to the actors within the court martial system.

Additionally, it is assessed that the inclusion of these tools could increase the generation of accurate / correct outcomes and allow the court martial system to appropriately express community condemnation of misconduct by military personnel as a broader range of perspectives would be expressed to the presiding judge at the sentencing stage. Furthermore, the additional support provided to victims (through the Victim Liaison Officer) would prepare victims more effectively for the often-daunting task of testifying in a criminal trial, thereby helping the judge to make informed decisions.

Furthermore, the CMCRT notes that relevant changes were proposed by the CAF Strategic Response Team – Sexual Misconduct, the External Review Authority, and the CAF Sexual Misconduct Response Centre regarding the development of a Victim Liaison Assistance Program to ensure that victims have continued and consistent support of specifically trained personnel as their cases progress through civilian or military health care and police systems as well as judicial processes.⁵ Should a Victim Liaison Assistance Program be developed, it is possible that integrating the Victim Liaison Officer into this Program would be an efficient use of human resources and could facilitate victims’ understanding of the court martial system and provide a more streamlined interaction with the system, thereby improving the perceived transparency and intelligibility of the system. Further, it is possible that, by integrating the Victim Liaison Officer into the Program, this would facilitate the communication between prosecutors and victims which should result in greater perceptions of fairness on behalf of the victims and result in more accurate / correct outcomes.⁶

Additionally, the CMCRT notes that, although the reporting and investigation of complaints is outside of the scope of the current review, expanding the reporting options of victims to include concepts such as “restricted and unrestricted reporting,”⁷ could increase the intelligibility of the overall military justice system. This increase in intelligibility could result because “restricted and unrestricted reporting” would offer victims the opportunity to have evidence collected anonymously, without necessarily triggering a police investigation, while the victims reserve the right to file formal complaints. Finally, it is assessed that the establishment of a peer support network as proposed by the above-mentioned stakeholder groups, that specifically offers a safe environment for victims wherein they can seek support from others who have had similar experiences while in the CAF,⁸ would provide for services that are similar to those available in the civilian criminal justice system and would therefore make the court martial system more familiar and comprehensible.

It should be noted that under current regulations, members of the CAF have a duty to report any breaches of the law by persons who are subject to the CSD.⁹ This regulation is likely a barrier to implementing “restricted” and “unrestricted” reporting. To address this barrier and in order to respect victims’ confidentiality, a statutory rule of privilege for those who support victims could be created so that individuals involved in peer support could not be compelled to report, testify or provide any information regarding communications to these individuals by victims, unless there is an overriding public interest to do so.

Most of the above initiatives could also encourage reporting which would allow the court martial system the opportunity to address acts of violence and crime. As stated by the Federal Ombudsman for Victims of Crime,

If victims’ experiences in the military justice system are such that victims feel marginalized or less protected than even the average Canadian, they may be more reluctant to come forward. This reluctance may contribute to a culture of unreported crime and ongoing victimization. Providing a system that is fair and respectful of victims’ needs and concerns can help to encourage reporting and, therefore, assist the CAF in becoming aware of – and having the opportunity to address – acts of violence and crime within its organization.¹⁰

Most of the above initiatives could improve the transparency and intelligibility of the court martial system, as there would be clear rules to support victims, instead of ad hoc attempts by judges using implied powers. This could cause the court martial system to be perceived as more familiar, comprehensible, and defensible to the broader public and the CAF.

Although it was suggested to the CMCRT that victims should be supported by counsel,¹¹ and although the CMCRT notes that such an initiative has been implemented within the American court martial system,¹² the CMCRT assesses that this initiative, which would be novel and unique in Canadian law and could, indeed, change the very nature of the criminal trial, would potentially inhibit the generation of timely outcomes, and could challenge the fairness and legitimacy of the adversarial trial process.¹³

17.3 Enact sentencing consideration for aboriginal offenders equivalent to that in the Criminal Code

Currently no provisions exist within the NDA regarding aboriginal offenders. Although Bill C-15 provides for the fundamental purposes of sentencing,¹⁴ and the principles and objectives of sentencing that parallel in many ways equivalent provisions of the Criminal Code, it does not incorporate the language of section 718.2(e) of the Criminal Code which provides that a court is required to take into account all reasonable alternatives to incarceration, with particular attention to Aboriginal offenders.¹⁵

It is assessed that implementing a sentencing consideration for aboriginal offenders in the court martial system that is at least equal to the consideration available in the civilian criminal justice system in Canada¹⁶ would increase the effectiveness and legitimacy of the court martial system.

The effect of section 718.2(e) is to alter the method of analysis which sentencing judges must use in determining a fit sentence for aboriginal offenders. Section 718.2(e) directs judges to consider the sentencing of such offenders individually, but also differently, because the circumstances of aboriginal people are unique. In sentencing an aboriginal offender, the judge must consider: (a) the unique systemic or background factors which may have played a part in bringing the particular aboriginal offender before the courts; and (b) the types of sentencing procedures and sanctions which may be appropriate in the circumstances for the offender because of his or her particular aboriginal heritage or connection.¹⁷

Through the application of section 179(1)(d) of the NDA, the underlying principles of section 718.2(e) have been relied upon at a court martial. In R v Levi-Gould, where the military judge order a pre-sentence Gladue report, it was held that “denying examination of aboriginal status would be denying what has been recognized by courts as an essential requirement for the imposition of just sanctions which do not operate in a discriminatory manner.”¹⁸

It is assessed that providing for a consideration similar to that which is found in section 718.2(e) of the Criminal Code in the court martial system would improve the generation of accurate / correct sentencing outcomes when sentencing aboriginal military personnel by mandating that a judge consider the circumstances specific to aboriginal offenders.

The Supreme Court noted the importance of section 718.2(e) of the Criminal Code in the sentencing process in its Gladue decision:

Sentencing must proceed with sensitivity to and understanding of the difficulties aboriginal people have faced with both the criminal justice system and society at large. […] the judge must strive to arrive at a sentence which is just and appropriate in the circumstances. By means of s. 718.2 (e), sentencing judges have been provided with a degree of flexibility and discretion to consider in appropriate circumstances alternative sentences to incarceration which are appropriate for the aboriginal offender and community and yet comply with the mandated principles and purpose of sentencing.¹⁹

Additionally, it is also estimated that implementing a consideration like that within section 718.2(e) would increase the potential for rehabilitation of aboriginal military personnel who engage in misconduct. As stated by the Supreme Court in Gladue, the provision is focused on “the restorative goals of repairing the harms suffered by individual victims and by the community as a whole, promoting a sense of responsibility and an acknowledgment of the harm caused on the part of the offender, and attempting to rehabilitate or heal the offender.”²⁰

Further, it is assessed that provision for such a consideration would bring the court martial system more in line with the civilian criminal justice system, thereby increasing the perceived fairness and intelligibility of the court martial system. As aboriginal military offenders would have consideration at least equal to that which is available in the civilian criminal justice system, this change would likely increase the perceived and actual fairness of the system. Further, by mirroring a familiar and comprehensible scheme in the civilian criminal justice system, the court martial system would also be more defensible, ultimately contributing to a likely increase in intelligibility.

Lastly, implementation of consideration like that within section 718.2(e) could improve the transparency of the system, as there would be clear rules in the court martial system, instead of ad hoc acknowledgements of the scheme, as was seen in the application of the Gladue principles in the Levi-Gould case.

17.4 For ordinary civilian offences, young persons should be dealt with by civilian courts, under the Youth Criminal Justice Act²¹

Currently, no specific provisions exist within the NDA regarding young offenders. The Code of Service Discipline applies to young persons when they are subject to the CSD,²² meaning that they can be dealt with by courts martial like any other adult accused person or offender. This process is distinct from how young persons are dealt with in the civilian system, where the Youth Criminal Justice Act (YCJA) governs the treatment of offences committed, in Canada, by persons aged between 12 and 17 years old.

Specifically, the YCJA provides for a separate justice system for young offenders, on the understanding that “the criminal justice system for young persons must be separate from that of adults, [and] must be based on the principle of diminished moral blameworthiness or culpability.”²³

The YCJA recognizes that there are concerns particular to youth and the criminal justice system and that Canada is a party to the United Nations Convention on the Rights of the Child,²⁴ which provides for special guarantees for the rights and freedoms of children.²⁵ The YCJA’s provisions indicate that the legislation is intended to

1. Prevent crime by addressing the circumstances underlying a young person’s offending behavior;
2. Rehabilitate young persons who commit offenses and reintegrate them into society; and,
3. Ensure that a young person is subject to meaningful consequences for his or her offence in order to promote the long-term protection of the public.²⁶

In recognition of these particular needs, the YCJA provides for various measures that are not available in the court martial system. For instance, extrajudicial measures such as warnings and referrals allow for the diversion of certain types of misconduct out of the civilian justice system. Additionally, if a young offender is to be sentenced under the YCJA, then there are restrictions on when custody can be ordered²⁷ and alternatives to custody must be specifically considered.²⁸

It is assessed that, given the special considerations for young persons, the court martial system would be enhanced by provide that, for civilian offences committed, outside or inside of Canada, by young persons, the civilian criminal justice system will exercise jurisdiction unless urgent operational considerations require the use of the court martial system. This would permit the YCJA to apply to young offenders.

Providing for young offenders to be dealt with under the YCJA could increase the rehabilitation of military personnel who are young persons and who have engaged in misconduct, and appropriately allow for community condemnation of misconduct committed by military personnel who are young persons, since it would divert certain types of misconduct out of the court martial system, would allow for the imposition of other types of sentences currently not provided for in the CSD on young offenders, and would recognize the special considerations associated with young offenders and youth crime.

For the same reasons, permitting for the civilian criminal justice system to exercise jurisdiction would likely increase the generation of accurate / correct outcomes. Further, as the YCJA has resulted in the establishment of special youth courts that have developed an expertise in the application of the YCJA and the associated services and programs that are provided, providing for young persons who are subject to the CSD to access to this expertise would increase the generation of accurate / correct outcomes.

Lastly, providing for young persons subject to the CSD to be dealt under the YCJA framework would likely increase the perceived fairness, transparency, and intelligibility of the court martial system. First, this jurisdiction would provide for young persons subject to the CSD to have access to the same procedures and resources of all young persons under the YCJA. Additionally, explicitly providing for this jurisdiction could increase transparency, as there would be a clear, articulable rule instead of an assessment on a case-by-case basis as to which system should exercise jurisdiction over a young person as between the court martial system and the civilian criminal justice system. Lastly, providing for the existing YCJA framework to apply to young persons subject to the CSD would be more familiar, comprehensible, and defensible to the broader public and the CAF than the status quo in the court martial system.

Footnotes

¹ See, for instance, Criminal Code, RSC 1985, c C-46, ss 486.4 and 486.5, (sexual offences and proper administration of justice); s 517 (judicial interim release hearings); s 631(6) (jury selection); and ss 672.51 and 672.501 (Mental Disorder / Review Board hearings) [Criminal Code].

² See, for instance, R v Rivas, 2011 CM 2012; see also Canadian Broadcasting Corp v Boland, [1995] 1 FCR 323.

³ R v O’Connor, 4 SCR 411.

⁴ See above, Chapter 4 (Consultation), at section 4.3.1 (Summary of results):

Several contributors made submissions concerning the victims of service offences, and their rights within the military justice system. All those who submitted on this topic felt that in a court martial system, victims should have rights at least equal to, and access to resources at least as good as, those available in the civilian criminal justice system in Canada. Some contributors recommended that victims’ resources in the court martial system could be made even better than most civilian systems – for example, by providing victims with free legal representation in certain circumstances.

See also, above, Chapter 4 (Consultation) at section 4.4.1 (Federal Ombudsman for Victims of Crime). The Federal Ombudsman for Victims of Crime’s first recommendation was as follows: “Bring victims’ rights under the National Defence Act in line with those under the Canadian Victims Bill of Rights.” See also, above, Chapter 4 (Consultation) at section 4.5.4.2.2 (RHFC) : “[v]ulnerable victims should be afforded the protections envisioned in the Criminal Code, including publication bans, and the potential for the use of testimonial aides, including [closed circuit television] and support persons.”. See above, Chapter 4 (Consultation) at section 4.3.1 (Summary of results): “Finally, whenever the needs of specific groups in the court martial system were discussed, the CMCRT was not surprised that contributors unanimously indicated that the court martial system ought to grant victims at least the same rights and services as are available in the civilian criminal justice system.”

⁵ See Canada, Department of National Defence, Canadian Armed Forces Third Progress Report on Addressing Inappropriate Sexual Behaviour (Ottawa: Department of National Defence, 2017), at 6, online [SMRC]:

The assignment of subject matter experts at all stages of victim support, including the responsibility for advocacy on behalf of victims in the complaint and investigation processes was one of the recommendations from the External Review Authority (ERA). The development of a Victim Liaison Assistance Program would ensure that victims of sexual misconduct have the option of being supported by specifically trained personnel as their case progresses through civilian or military health care and police systems as well as judicial processes. Victims of sexual assault in the CAF are currently required to primarily self-navigate through complex medical and justice systems whilst also processing the trauma they experienced as there is no single, comprehensive, system wide CAF victim advocacy and assistance programs to assist with or throughout the processes that follow reporting. A CAF enabled Victim Liaison Assistance Program would build upon the current range of support services for victims of sexual assault through the CFNIS and Director Military Prosecutions as well as IC2M. This type of program has been shown to provide significant positive impact on outcomes for those impacted by HISB, thus further enhancing victim support and assistance and meeting one of the recommendations of the External Review Authority.

See also above, Chapter 4 (Consultation), at section 4.4.3 (SMRC):

The SMRC provided a detailed submission concerning victims’ advocacy in the court martial system. It noted that recommendation nine in the External Review Authority’s Report included assigning “the responsibility for advocating on behalf of victims in the complaint and investigation processes” to an agency external to the CAF. In the SMRC’s view, in the court martial system, victims of sexual offences are disadvantaged compared to the majority of Canadian society, “where most victims have access to advocacy services in the form of sexual assault crisis centres.” The Centre pointed out recent reforms that have taken place in the Australian and the American military justice systems, and described for the CMCRT the potential roles and functions of victims’ advocates, as well as the potential benefits of such services:

Advocacy services can assist in reducing barriers in several ways; navigating complex medical and criminal justice systems, avoiding re-traumatization and re-victimization, providing comfort, reassurance and information. Advocates also provide an important role in reducing the stigma and barriers to disclosure such as shame, guilt and self-blame.

Research […] indicates that advocacy can lead to increased levels of satisfaction with both the medical and criminal justice system. It has also been shown to reduce levels of re-traumatization and thus reduce the likelihood of the long term use of medical and mental health services.

Advocacy offers a wide range of support services available for victims of sexual assault. By enhancing victim support, it could have significant impact on the CAF by helping increase trust in the Chain of Command and Military Justice System, reducing re-traumatization resulting in better retention of CAF victims as well as restoring operational effectiveness more quickly.

⁶ See above, Chapter 5 (Comparative) at section 5.2.2 (Australia). In Australia, SeMPRO works closely with the Australian Defence Force Investigative Service and DMP to ensure that victims are provided seamless support as their case moves through the system.

⁷ See SMRC, supra note 5. See also Canada, Department of National Defence, External Review into Sexual Misconduct and Sexual Harassment in the Canadian Armed Forces, by Marie Deschamps C.C., Ad.E (Ottawa: Department of National Defence, 2015) recommendation 4, at 36: “Allow members to report incidents of sexual harassment and sexual assault to the center for accountability for sexual assault and harassment, or simply to request support services without the obligation to trigger a formal complaint process.”

⁸ See SMRC, supra note 5 at 5-6.

⁹ See Queen’s Regulations and Orders for the Canadian Forces, art 4.02 and 5.01.

¹⁰ See above, Chapter 4 (Consultation), at section 4.4.1 (Federal Ombudsman for Victims of Crime).

¹¹ See above, Chapter 4 (Consultation), at section 4.4.4 (IJ700).

¹² See above, Chapter 5 (Comparative) at section 5.2.1 (United States).

¹³ See, for instance, the assessment by then-Minister of Justice, the Honourable Peter MacKay, during a live interview on 14 August 2013 (from 3:55 to 4:55), indicating that provision of victims’ counsel could cause delay that leads to cases being stayed.

¹⁴ National Defence Act, RSC, 1985, c N-5, s 203.1 [NDA]: discipline, efficiency, morale, and just, peaceful, safe society.

¹⁵ NDA, ibid, s 203.3:

A service tribunal that imposes a sentence shall also take into consideration the following principles:

1. a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender, and aggravating circumstances include, but are not restricted to, evidence establishing that
   1. the offender, in committing the offence, abused their rank or other position of trust or authority,
   2. the offence was motivated by bias, prejudice or hate based on race, national or ethnic origin, language, colour, religion, sex, age, mental or physical disability or sexual orientation, or any other similar factor,
   3. the offender, in committing the offence, abused their spouse or common-law partner,
   4. the offender, in committing the offence, abused a person under the age of 18 years,
   5. the commission of the offence resulted in substantial harm to the conduct of a military operation,
   6. the offence was committed in a theatre of hostilities,
   7. the offence was committed for the benefit of, at the direction of or in association with a criminal organization, or
   8. the offence was a terrorism offence;
2. a sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances;
3. an offender should not be deprived of liberty by imprisonment or detention if less restrictive sanctions may be appropriate in the circumstances;
4. a sentence should be the least severe sentence required to maintain discipline, efficiency and morale; and
5. any indirect consequences of the finding of guilty or the sentence should be taken into consideration.

See also Criminal Code, supra note 1, s 718.3:

A court that imposes a sentence shall also take into consideration the following principle: … (e) all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victims or to the community should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders.

¹⁶ See above, Chapter 4 (Consultation), at section 4.3.1 (Summary of results):

Several contributors made submissions concerning the victims of service offences, and their rights within the military justice system. All those who submitted on this topic felt that in a court martial system, victims should have rights at least equal to, and access to resources at least as good as, those available in the civilian criminal justice system in Canada. Some contributors recommended that victims’ resources in the court martial system could be made even better than most civilian systems – for example, by providing victims with free legal representation in certain circumstances.

See also, Chapter 4 (Consultation), at section 4.4.1 (Federal Ombudsman for Victims of Crime): “The first recommendation was: “Bring victims’ rights under the National Defence Act in line with those under the Canadian Victims Bill of Rights.” See also, above, Chapter 4 (Consultation), at section 4.5.4.2.2 (RHFC): “[v]ulnerable victims should be afforded the protections envisioned in the Criminal Code, including publication bans, and the potential for the use of testimonial aides, including [closed circuit television] and support persons.”. See also above, Chapter 4 (Consultation), at section 4.3.1 (Summary of results): “Finally, whenever the needs of specific groups in the court martial system were discussed, the CMCRT was not surprised that contributors unanimously indicated that the court martial system ought to grant victims at least the same rights and services as are available in the civilian criminal justice system.”

¹⁷ R v Gladue, [1999] 1 SCR 688, paras 75; 93 [Gladue].

¹⁸ R v Levi-Gould, 2016 CM 4003, paras 12-14.

¹⁹ Gladue, supra note 17 at para 81.

²⁰ Ibid at para 43.

²¹ SC 2002, c 1 [YCJA].

²² For example, reservists who are not yet 18 would be subject to the CSD or Officer Cadets at the Royal Military College of Canada would also be subject to the CSD.

²³ YCJA, supra note 21, s 3(1)(b).

²⁴ UN Convention on the Rights of the Child, 20 November 1989, 1577 UNTS 3 (entered into force 2 September 1990).

²⁵ YCJA, supra note 21, Preamble.

²⁶ Ibid, s 3(1)(a).

²⁷ Ibid, s 38.

²⁸ Ibid, s 39.