Independent Legal Assistance Program

Government Institution

Department of National Defence

Government official responsible for the PIA

Linda Rizzo Michelin
Chief Operating Officer
Sexual Misconduct Support and Resource Centre (SMSRC)

Head of the government institution or Delegate for section 10 of the Privacy Act

Anne Bank, Executive Director
Directorate Access to Information and Privacy

Description of Program or Activity (from Departmental Results Framework):

Core Responsibility: Defence Team
Description: Recruit, develop and support an agile and diverse Defence Team, within a healthy workplace free from harmful behaviour; support military families; and meet the needs of all retiring military personnel, including the ill and injured. Strengthen Canadian communities by investing in youth.

Standard or institution specific class of record:

DND SMR 102 (Independent Legal Assistance Records) – Pending TBS Approval

Standard or institution specific personal information bank:

DND PPU 883 (Independent Legal Assistance Program) – Pending TBS Approval

Legislated authority for activity:

Personal information is used to determine an individual’s eligibility for reimbursement of costs related to their legal representation regarding sexual misconduct.  Personal information is collected under the authority of s. 4 of National Defence Act which authorizes the services of the Sexual Misconduct Support and Resource Centre. For those individuals found to be eligible, personal information is used to make payment for the approved reimbursement amounts.

Summary of the project / initiative/ change:

This PIA assesses the Sexual Misconduct Support and Resource Centre’s (SMSRC’s) deployment of the Independent Legal Assistance Program (ILAP) which provides free legal assistance to victims of military sexual misconduct.  The ILAP is planned to be deployed across three phases and, once fully deployed, will provide eligible individuals with the following:

1. Legal Information: legal information about the military justice system and criminal justice system, including reporting, investigations, administrative and judicial proceedings, victims’ rights, criminal trial processes, etc.
2. Legal Advice: up to four hours of confidential legal advice from a lawyer pertaining to issues of military sexual misconduct in the context of the military justice system or criminal justice system.
3. Legal Representation:  Legal representation from a lawyer for criminal court proceedings pertaining to the disclosure of a victim’s/survivor’s private records and the admissibility of evidence concerning prior sexual activity and/or records of the victim/survivor – Criminal Code sections 276 and 278.92.

The three phases of the ILAP are described as follows:

Phase 1: Interim Reimbursement Mechanism – the Scope of this PIA

During this first phase, eligible individuals will have access to:

• Up to four hours of legal information or legal advice pertaining to issues of military sexual misconduct in the military or criminal justice systems. If additional hours are required, it will be considered on a case-by-case basis.
• Legal representation in a criminal sexual offence trial where the lawyer is representing the victim in:
  • proceedings pertaining to the admissibility of evidence concerning prior sexual activity of a victim.
  • proceedings pertaining to the admissibility of records relating to the victim that are in the accused’s possession.

There is no maximum reimbursement amount for a legal representation claim.

In Phase 1, all legal services are provided by private sector counsel. The program participant must pay the legal fees up front and submit a claim to the ILAP for reimbursement of up to four hours of legal advice/services. In circumstances wherein legal representation was related to sections 276 and/or 278.92 of the Criminal Code, there is no limits on the reimbursement amount.

The SMSRC’s ILA Team receives (from the victim of sexual misconduct) appropriate claim form information, the lawyer’s invoice, and confirmation of payment (likely the invoice will show a balance of legal fees owed). The applicant is not required to provide proof of being a victim of sexual misconduct nor will the ILA Team perform any inquiries or system searches to validate the applicant’s claim of being a victim.

Once all appropriate information is collected, the ILA Team will confirm eligible legal expenses to be reimbursed and forward claim information to a contracted trustee for payment of the approved amounts.

Phase 2 and 3 of the ILAP fall outside of the scope of this PIA.

In the completion of this PIA, privacy risks were identified as were corresponding and effective risk mitigation recommendations. Once a draft of the PIA was reviewed by the ILAP (and SMSRC leadership) a fulsome Action Plan was created to reduce or eliminate the privacy risk exposure. Each Action Plan item was assigned to a person or group responsibility for its timely completion. All risk mitigation activity will be completed within an acceptable timeframe.

Summary Results

In its Directive on Privacy Impact Assessment, Treasury Board has expressed that the PIA must include a completed risk identification and categorization section and make public those risk ratings. A risk rating must be assigned to each risk areas named and described in Appendix C of the Directive on Privacy Impact Assessment. The numbered risk scale is presented in an ascending order: the first level (1) represents the lowest level of potential risk for the risk area; the fourth level (4) represents the highest level of potential risk for the given risk area. For this PIA the risk areas and associated risk levels are as follows:

Risk Area Identification and Categorization

Type of Program or Activity	Risk Level
Administration of Programs/ Activity and Services Personal information is used to make decisions that directly affect the individual (i.e. determining eligibility for programs including authentication for accessing programs/services, administering program payments, overpayments, or support to clients, issuing or denial of permits/licenses, processing appeals, etc.)	2
Type of Personal Involved	Risk Level
Sensitive personal information, including detailed profiles, allegations or suspicions, bodily samples and/or the context surrounding the personal information is particularly sensitive. For example: personal information that reveals intimate details on the health, financial situation, religious or lifestyle choices of the individual and which, by association, reveals similar details about other individuals such as relatives.	4
Program or Activity Partners and Privacy Sector Involvement	Risk Level
Within the department (amongst one or more programs within the department) Private sector organizations or international organizations or foreign governments	4
Duration of the Program	Risk Level
Long–term program Existing program that has been modified or is established with no clear “sunset”.	3
Program Population	Risk Level
The program affects certain individuals for external administrative purposes.	3
Technology and Privacy
The ILAP stores and controls information through SharePoint, a dedicated case management system (CMS). Moreover, information is transmitted to clients and the trustee through a Protected B correspondence solution. In the future, the SMSRC anticipates a dedicated ILA module will be developed in the dedicated CMS. However, at the writing of this PIA formal approval and plans for such a new module has not yet been approved.
Information Transmission	Risk Level
The personal information is transmitted using wireless technologies.	4
In the Event of a Privacy Breach Impacting the Individual
In the event of a privacy breach, there is a potentially significant and lasting negative impact on the reputation and career of ILAP claimants. While no records of the sexual misconduct incidents and the perpetrator are collected by the ILAP, by the very nature of being deemed eligible for legal costs reimbursement, a program participant is confirmed as being a victim of sexual misconduct who has received legal assistance specific to their victimization.  Moreover, in some cases the records of the program will confirm that a program participant’s perpetrator has been charged with a criminal offense and that the victim’s sexual activity is being considered as admissible evidence at the trial, pursuant to s. 276 of the Criminal Code; or records of the victim are in the possession of the defendant are being considered for admissibility at the trial, pursuant to s. 278.92 of the Criminal Code. Therefore, the breach of ILA records could cause significant reputational and career implications.