Enhancing Victims Rights in the Military Justice System: An Act to amend the National Defence Act and to make related and consequential amendments to other Acts
May 10, 2018 – Ottawa – National Defence / Canadian Armed Forces
As stated by the Supreme Court of Canada in the recent decision of R. v. Moriarity, the purpose of Canada’s military justice system is “to maintain discipline, efficiency and morale in the military”. To achieve this purpose it must operate expeditiously and fairly, remaining consistent with Canadian law, including the Canadian Charter of Rights and Freedoms. If the military justice system is to remain both relevant and legitimate, it must evolve with the law while remaining responsive to its core mandate.
On May 10, 2018, the Government introduced new legislation, An Act to amend the National Defence Act and to make related and consequential amendments to other Acts, which creates clear statutory rights for victims of service offences within the military justice system. The new legislation also mandates military tribunals to take into account the circumstances of Indigenous offenders at sentencing when considering the possibility of incarceration, while reforming summary trials into a non-penal, non-criminal summary hearing process for dealing with minor service infractions.
Code of Service Discipline Declaration of Victims’ Rights
The proposed legislation enacts a Code of Service Discipline Declaration of Victims’ Rights that gives victims of service offences rights to information, protection, participation, and restitution. These rights mirror those that exist within the Canadian Victims Bill of Rights, which received Royal Assent on April 23, 2015.
The legislation creates the following statutory rights for victims of service offences:
Right to information: Victims have the right to general information about the military justice system and available victim services and programs, as well as specific information about the progress of the case, including information relating to the investigation, prosecution and sentencing of the person who harmed them.
Right to protection: Victims have the right to have their security and privacy considered at all stages of military justice processes involving service offences, to have reasonable and necessary measures to protect them from intimidation and retaliation, and to request their identity be protected from public disclosure.
Right to participation: Victims have a right to convey their views about decisions to be made by military justice professionals and have them considered at various stages of the proceedings, and to present a victim impact statement.
Right to restitution: Victims have the right to have the court martial consider making a restitution order for all offences where financial losses can be reasonably determined.
In addition, the new legislation affords victims of service offences the right to make a complaint should they feel that one of their rights under the Declaration have been infringed or denied.
Victim Liaison Officer
Because of the unique nature of the military justice system, some aspects of the proposed legislation, such as the Victim Liaison Officer provisions, go beyond what is contained in the Canadian Victims Bill of Rights. Service offences can have diverse victims, including military members and their families and members of the broader civilian community. To many of these individuals, the military justice system can be unfamiliar and potentially intimidating. Therefore, to help ensure that victims are properly informed and positioned to access their rights, the proposed legislation provides for the appointment of a Victim Liaison Officer when a victim requests this appointment. The Victim Liaison Officer would help 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.
In any case where a victim of a service offence believes that his or her rights under the Code of Service Discipline Declaration of Victims’ Rights have been breached, he or she would also have a right to file a complaint in accordance with regulations, in much the same way as is provided for victims in the Canadian Victims Bill of Rights.
Victims’ Rights at Courts Martial
To ensure that victims of service offences within the military justice system are able to exercise their rights as detailed in the proposed legislation, such as the rights to protection and participation, the legislation also proposes complementary changes to many court martial processes.
Specifically, to protect vulnerable participants within the military justice system, the proposed legislation authorizes military judges to make certain judicial orders such as non-disclosure orders, publication bans, and orders preventing an accused member from personally cross-examining a victim.
The proposed legislation also enhances a victim’s ability to participate in court martial proceedings by broadening the ways in which a victim impact statement could be presented to a court martial. The proposed legislation also allow for the submission of community impact statements describing the harm done to, or the loss suffered by, the community as a result of an offence, and the submission of military impact statements, describing the harm done to discipline, efficiency, or morale within the Canadian Armed Forces as a result of an offence.
Current Victims’ Rights initiatives in the Military Justice System
While the proposed legislation will enshrine in law victims’ rights in the military justice system, in the meantime, a number of policy initiatives have been put into place recently to ensure support for victims. For example, the Director of Military Prosecutions (DMP) has implemented a number of policy changes to improve the interface with victims and witnesses in courts martial. They include policy changes to improve interactions between military prosecutors and victims, increased victim engagement, ensure the comfort and safety of victims throughout the court martial process, and provide military prosecutors with increased training to support their efforts in prosecuting sexual misconduct cases.
Since 2016, the DMP has ordered a comprehensive overhaul of all military prosecution policies beginning with those affecting victims and the prosecution of sexual misconduct offences. Notable changes include:
- Information is proactively provided to victims on the choice of jurisdiction of a sexual misconduct matter
- Victims are kept informed throughout the investigation and trial process
- The views of the victim are considered in determining the public interest in moving forward with the prosecution of a sexual misconduct case
- Witness preparation has been improved
- Assuring victim comfort and security is a key consideration
- Prosecutors make efforts in all sexual misconduct cases to ensure victim impact is considered during sentencing
- Maintaining the consistency of prosecutors throughout the court martial process is considered paramount
- The prosecution of sexual misconduct cases are expedited ahead of other trials
Indigenous sentencing considerations
The proposed legislation mandates military tribunals to consider the circumstances of Indigenous offenders at sentencing when incarceration is being considered in line with the civilian criminal justice system.
Changes to the Summary Trial Process
The proposed legislation simplifies military discipline at the unit level. The summary trial process would be replaced by a non-penal, non-criminal summary hearing process limited in jurisdiction to a new class of service infractions, to be defined in regulations.
The proposed service infractions would not be criminal offences. These new service infractions would be punishable by one, or a combination of, sanctions. Minor sanctions would be further defined in regulations. These include reduction in rank, reprimands, deprivation of pay, and other minor sanctions.
Officers conducting summary hearings would have their jurisdiction expanded to allow them to try accused persons of all ranks, as long as the officer conducting the hearing is at least one rank higher than the accused person.
Improving the chain of command’s ability to address minor breaches of military discipline fairly and more rapidly enhances the responsiveness and efficiency of military discipline, thereby contributing to the operational effectiveness of the CAF.
The Code of Service Discipline Declaration of Victims’ Rights strengthens victims’ rights within the military justice system just as the Canadian Victims Bill of Rights strengthened these rights within the civilian criminal justice system. The legislation reinforces the disciplinary nature of the summary hearing process for dealing with minor service misconduct. The proposed changes demonstrate Canada’s continuing commitment to supporting victims of service offences, and to being a global leader in the development of a fair and effective military justice system — one that evolves in harmony with contemporary Canadian law.
A military justice system reflective of Canadian values is one that will help the Canadian Armed Forces promote a culture of leadership, respect, and honour – cornerstones of Canada’s Defence Policy, Strong, Secure, Engaged. The military justice system is an indispensable facet of the armed forces; its enhancement and modernization will enable the CAF to accomplish its many vital objectives, both at home and abroad.
Department of National Defence
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