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Governance and Military Justice

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Appointment of External Monitor

  • It is our most basic responsibility and top priority to ensure that all Defence Team members serve in an institution free from harassment, discrimination, sexual misconduct and violence.
  • That is why we are immediately working to implement one third of former Supreme Court Justice Arbour's recommendations, including the establishment of an external monitor.
  • I recently appointed Madame Jocelyne Therrien as External Monitor to provide me with advice in the oversight of the implementation of Madame Arbour's recommendations.
  • In this role, Madame Therrien will monitor the Defence Team's efforts to implement Madame Arbour's various recommendations, and will provide regular reports to me on these efforts.
  • This appointment delivers on Recommendation 48 of Madame Arbour's report, and will help ensure that meaningful culture change within National Defence continues to occur.

Key Facts

  • Recommendation 48: The Minister should immediately appoint an external monitor, mandated to oversee the implementation of the recommendations in Madame Arbour's report, and other external recommendations that the Minister accepts.
  • The External Monitor has been appointed for an initial term of one year, with the possibility of renewal for terms of up to one year.
  • Recommendations from other external reviews may also be part of the External Monitor's work at the Minister's direction.

Details

  • Recommendation 48: The Minister should immediately appoint an external monitor, mandated to oversee the implementation of the recommendations in this Report and other external recommendations that she accepts.
  • The External Monitor should be assisted by a small team of their choosing that is external to the Defence Team. They should have access to all documents, information, individuals and entities they deem relevant, including the External Comprehensive Reviews Implementation Committee (ECRIC).
  • The External Monitor should produce a monthly “monitoring assessment and advice” report directly to the Minister and publish bi-annual public reports.

Mandate of the External Monitor:

  • The External Monitor's mandate is to provide advice to the Minister of National Defence in the oversight of the implementation of the recommendations of the Independent External Comprehensive Review by the Department of National Defence and the Canadian Armed Forces and, at the direction of the Minister, report the recommendations of any other external reviews that have been accepted by the Minister or the Government such as:
    • The Third Independent Review (IR3) of the Military Justice System (Fish Report);
    • The Minister's Advisory Panel on Systemic Racism and Discrimination Final Report; and
    • The External Review into Sexual Misconduct and Sexual Harassment in the Canadian Armed Forces (Deschamps Report).
  • In relation to the implementation of the recommendations by the Department of National Defence and the Canadian Armed Forces, the External Monitor will:
    • Observe and document the progress, and capability, to implement the recommendations;
    • Provide monthly reports to the Minister of National Defence relating to the implementation of the recommendations;
    • Provide to the Minister of National Defence, every six months from the date of appointment, a progress report, in both official languages, that is suitable for publication by the Minister;
    • To ensure effectiveness, the External Monitor will be provided with resources to establish a small team to support their work; and
    • Participate in public engagements related to the role and to the reports produced at the request of the Minister.

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Canadian Armed Forces Jurisdiction Over Criminal Sexual Offences

(IECR Interim Recommendation and Recommendation 5)

Interim Recommendation

  • In fall 2021, I accepted former Supreme Court Justice Arbour's interim recommendation to refer Criminal Code sexual offences to civilian authorities.
  • Since I accepted this interim recommendation, the Canadian Forces Provost Marshal and the Director of Military Prosecutions, as independent military justice actors, issued direction related to the implementation of the interim recommendation.
  • Shortly thereafter, the Canadian Forces Provost Marshal began referring certain Criminal Code sexual offence files to civilian authorities.
  • For example, both the RCMP and the Sûreté du Québec began to accept the referral of new files according to their capacity.
  • Numerous municipal and local police forces have also accepted referrals on a case by case basis.
  • As these referrals are made, the Military Police are working with civilian police agencies to ensure this is done in a deliberate and trauma-informed way.
  • For cases that are declined by the civilian police of concurrent jurisdiction and a criminal investigation is conducted by the Military Police, the Military Police will lay charges under the civilian justice system.

If pressed on police forces asking for resources to handle military sexual assault cases:

  • Some of Canada's largest police forces have accepted the referral of investigations into alleged sexual offences from the Military Police.
  • This includes the RCMP, Sûreté du Québec, and other police services.
  • The Military Police continue to offer support to civilian police when referring cases, such as facilitating access to members of the Defence Team, property, or information.
  • We will continue to ensure a collaborative working relationship with provinces and territories to ensure a smooth referral of cases.

If pressed on the number of military sexual assault cases that have been transferred:

  • The number of cases referred by the Military Police changes regularly.
  • To date, more than half of the cases the Military Police have sought to refer to federal, provincial, and municipal police services have been accepted.

IECR Recommendation 5

  • Turning to Recommendation 5, this is a bold and system-changing recommendation that raises multi-jurisdictional and multi-departmental issues that require thorough analysis of a number of complex policy, operational, and legal considerations.
  • This recommendation goes beyond anything we have seen before, recommending the removal of not only the prosecutorial jurisdiction of the Canadian Armed Forces over a number of criminal sexual offences but also the removal of the Military Police investigative jurisdiction into those offences.
  • Because of its complexity, we need to take a deliberate approach, learn lessons from the implementation of the interim recommendations, and consult various stakeholders.
  • In that regard, an ad-hoc committee of Federal, Provincial, and Territorial Deputy Ministers will meet to discuss and make recommendations to inform the development of options to implement Recommendation 5.
  • In the meantime, the Military Police continue to implement the Canadian Forces Provost Marshal's direction regarding Madame Arbour's interim recommendation to refer criminal offences of a sexual nature to the civilian justice system.
  • As we advance this important work, we remain focused on ensuring the necessary support to victims.

Key Facts

Interim Recommendation:

  • October 2021: Madame Arbour submits interim recommendation to immediately refer sexual assaults and other criminal offences of a sexual nature under the Criminal Code to civilian authorities.
  • November 3, 2021: Minister Anand accepts Madame Arbour's interim recommendation.
  • November & December 2021: The Canadian Forces Provost Marshal and the Director of Military Prosecutions, as independent military justice actors, issue their respective directions related to the implementation of the interim recommendations.
  • June 3, 2022: The Canadian Forces Provost Marshal issues a statement regarding the transfer/referral of cases alleged to have been committed by a CAF member from the Military Police to federal, provincial, and municipal police services.
  • In his statement, the Provost Marshal notes that some agencies were not ready to accept investigations for reasons that reflect the diversity of law enforcement contexts in Canada.
  • August 2022: The Canadian Forces Provost Marshal amplifies the original direction from December 2021 to state that all Military Police investigations into allegations of criminal offences of a sexual nature are to be processed through the civilian courts.
  • In other words, the Military Police are to lay criminal sexual offence charges under the Criminal Code of Canada rather than under the National Defence Act.
  • Cooperation with provinces and territories: Continued discussions with respect to the interim recommendations have been ongoing with all jurisdictions at the officials' level.

IECR Recommendation 5:

  • May 20, 2022: Madame Arbour provides her report to the Minister of National Defence which includes Recommendation 5.
  • Recommendation 5 states that Criminal Code sexual offences should be removed from the jurisdiction of the Canadian Armed Forces, and these cases should be prosecuted exclusively in civilian courts.
    • Where the offence takes place in Canada, it should be investigated by civilian police forces at the earliest opportunity.
    • Where the offence takes place outside of Canada, the MP may act in the first instance to safeguard evidence and commence an investigation, but should liaise with civilian law enforcement at the earliest possible opportunity.
  • Cooperation with provinces and territories: A Deputy Minister meeting led to the agreement that an ad hoc committee should be established to discuss, among other things, lessons learned from the implementation of Madame Arbour's interim recommendation with a view to making recommendations to inform the development of options pertaining to Recommendation 5.
    • July 2021: New military justice division created within the office of the Judge Advocate General (JAG) to support the implementation of recommendations from external reviews related to military justice.
    • All members of Military Police mandated to take trauma informed training to ensure those who come forward feel safe, heard, protected.
    • Budget 2022: $100.5M over six years allocated to modernize the military justice system, among other initiatives. This includes:
      • $15M invested to bolster the Justice Administration and Information Management System (JAIMS). By strengthening the case management system we will improve the efficiency of the military justice system.
  • Other initiatives to modernize the military justice system:
    • June 2022: Remaining provisions of an Act to Amend the National Defence Act (Bill C-77) came into force, thereby:
      • strengthening rights afforded to victims of service offences;
      • bringing military justice system into closer alignment with civilian criminal justice system.
      • Creation of Victims Liaison Officers to assist victims in accessing their rights and understanding processes within the Military Justice System.
        • Explain to the victim the manner in which services offences are charged, dealt with and tried under the Code of Service Discipline;
        • Obtain and transmit to the victim information relating to a service offence that the victim has requested and to which the victim has a right under the DVR.

Details

Former Justice Fish's Recommendations:

  • June 1, 2022: Minister Sajjan tables in Parliament the report on the Third Independent Review of the National Defence Act (Fish Report).
  • The Department of National Defence and the Canadian Armed Forces accept in principle the 107 recommendations made. In the short term, implementation was to begin on 36 of Former Justice Fish's recommendations.
  • Recommendation #68: Former Justice Fish recommends, amongst other things, that
  • The Declaration of Victims Rights come into force as soon as possible and that
    • until the Declaration of Victims Rights comes into force, and unless the victim consents, sexual assaults should not be investigated or prosecuted under the National Defence Act and should instead be referred to civilian authorities.
    • there should be a strong presumption against investigating and prosecuting under the National Defence Act other offences committed against a victim.
  • Following the tabling of the Fish Report in June 2021, the Declaration of Victims Rights came into force on 20 June, 2022.
  • The External Comprehensive Review Implementation Committee is synchronizing the prioritization, direction, and coordination of the implementation of all recommendations from former Justices Fish and Arbour

Former Justice Arbour Interim Recommendations:

  • November 2021: National Defence accepts Madame Arbour's interim recommendations, which includes the recommendation to refer sexual assaults and other criminal offences of a sexual nature from the military justice system to civilian authorities.
  • The referral of certain criminal offences of a sexual nature to civilian authorities on an interim policy basis is an ongoing process that partially achieves the desired effect of Recommendation 5.
  • The Military Police have and will continue to work with Federal, Provincial, and Territorial counterparts to implement a deliberate, victim-centred, and trauma-informed approach to the referral of allegations of criminal offences of a sexual nature reported to the Military Police.
  • August 2022: The Canadian Forces Provost Marshal reiterates the original direction from December 2021 to state that all Military Police investigations into allegations of criminal offences of a sexual nature are to be processed through the civilian justice system. As such, Military Police continue to work with Federal-Provincial-Territorial (FPT) partners to ensure that files are referred in a victim-centric, trauma informed approach.
  • The referral of cases raise a wide range of complex issues. Some agencies had indicated that they were not ready to accept investigations for reasons that reflect the diversity of law enforcement contexts in Canada.
  • In relation to the interim recommendation, National Defence's aim is that civilian police services investigate, and civilian courts adjudicate, all criminal sexual offences alleged to have been committed by a CAF member on which they have jurisdiction.

IECR Recommendation 5:

  • Recommendation 5: Criminal Code sexual offences should be removed from the jurisdiction of the CAF. They should be prosecuted exclusively in civilian criminal courts in all cases.
    • Where the offence takes place in Canada, it should be investigated by civilian police forces at the earliest opportunity.
    • Where the offence takes place outside of Canada, the Military Police may act in the first instance to safeguard evidence and commence an investigation, but should liaise with civilian law enforcement at the earliest possible opportunity. This should include:
      • Sexual offences found in Part V of the Criminal Code;
      • Sexual offences found in Part VII of the Criminal Code, including but not limited to sexual assaults; and
      • Any "designated offence" as defined in subsections 490.011(1)(a), (c), (c.1), (d), (d.1) or (e) of the Criminal Code, to the extent not already captured above.
    • Approach to implementation of Recommendation 5: National Defence is presently considering implementation options.

Cooperation with provinces and territories:

  • At the end of January 2022, the Minister wrote to all provinces and territories to seek assistance and collaboration in implementing the interim recommendations.
  • The Minister further wrote to all provinces and territories in June 2022 to outline the aim that civilian police services investigate, and civilian courts adjudicate, all Criminal Code sexual offences alleged to have been committed by a CAF member. She further proposed the standing up of an intergovernmental table made up of officials, including representatives from National Defence, Public Safety, Justice, and all provinces and territories.
  • Federal-Provincial-Territorial (FPT) Deputy Ministers of Justice and Public Safety met with the Deputy Minister of National Defence in October 2022 and agreed to establish an ad hoc committee that would provide the MND with a forum to discuss issues related to the implementation of the interim recommendation and share perspectives from FPT partners as it relates to the potential implementation of Recommendation 5.
  • The Military Police will continue to offer support to civilian police when referring cases (or who have accepted cases) such as facilitating access to members of the Defence Team, property, or information. Additionally, if requested by a civilian police agency with concurrent jurisdiction, the military police conduct investigative activities such as interviews on their behalf.

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