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

Backgrounder

July 10, 2019 – Ottawa – National Defence / Canadian Armed Forces

Introduction

As stated by the Supreme Court of Canada in the 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 while remaining consistent with Canadian law, including the Canadian Charter of Rights and Freedoms. To remain both relevant and legitimate, the military justice system must evolve with the law while remaining responsive to its core mandate.

On May 10, 2018, the Government introduced Bill C-77, An Act to amend the National Defence Act and to make related and consequential amendments to other Acts (the Act). The Act, which received Royal Assent on June 21, 2019, strengthens the military justice system and aligns it with the civilian criminal justice system while respecting the unique requirements of the military justice system.

Most significantly, the Act introduces the Declaration of Victims Rights to the Code of Service Discipline, enshrining rights for victims of service offences within the military justice system.

The Act adds provisions that mirror the Criminal Code by setting out that evidence that a service offence or service infraction was motivated by bias, prejudice or hate based on gender identity or expression constitutes aggravating circumstances that must be taken into consideration when a sentence or sanction is imposed.

Moreover, the Act also requires that particular attention be afforded to the circumstances of Indigenous offenders when considering the appropriate punishments. The punishments must be reasonable in the circumstances and consistent with the harm done to victims or to the community.

Finally, the Act reforms the summary trial process into a non-penal, non-criminal summary hearing process designed to address minor breaches of military discipline at the unit level.

Declaration of Victims Rights

The Declaration of Victims Rights gives victims of service offences rights to information, protection, participation and restitution. These rights mirror those found in the Canadian Victims Bill of Rights, which received Royal Assent on April 23, 2015, and their introduction aligns the victims’ rights available in the military justice system with those available in the civilian criminal justice system.

The Act creates the following statutory rights for victims of service offences:

Right to information: Victims will have the right to general information about the military justice system and the role of the victim in it, the available victims services and programs, the right to file a complaint for an infringement or denial of any of their rights under the Declaration, as well as information about the status and outcome of the investigation, the location of proceedings, when they will take place and their progress and outcome and certain information about the offender.

Right to protection: Victims will have the right to have their security and privacy considered, to have reasonable and necessary measures taken to protect them from intimidation and retaliation, and to request testimonial aids and that their identity be protected.

Right to participation: Victims will have a right to convey their views about decisions to be made by military justice system authorities that affect their rights under the Declaration and have those views considered, and to present a victim impact statement.

Right to restitution: Victims will have the right to have the court martial consider making a restitution order against the offender and if they are not paid, to have the order entered as a civil court judgment that is enforceable against the offender.

Victim’s Liaison Officer

Because of the unique nature of the military justice system, some aspects of the Act, such as the Victim’s Liaison Officer provisions, extend beyond what is contained in the Canadian Victims Bill of Rights. Victims of service offences can be military members and their families and members of the broader public. The military justice system can be unfamiliar and possibly intimidating to some of these individuals. Therefore, to help ensure that victims are properly informed and positioned to access their rights, the Act provides for the appointment by a commanding officer of a Victim’s Liaison Officer. The Victim’s Liaison Officer will assist the victim by explaining how service offences are charged, dealt with and tried under the Code of Service Discipline, and by obtaining and transmitting to the victim information relating to a service offence that the victim has requested and to which the victim has a right under the Declaration.

Complaints Mechanism

In addition, the Act affords victims of service offences the right to file a complaint. In any case where a victim of a service offence is of the opinion that their rights under the Declaration of Victims Rights have been infringed or denied, the victim will have a right to file a complaint in accordance with regulations.

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 Act, such as the rights to protection and participation, the Act also includes complementary changes to many court martial processes.

Specifically, to protect vulnerable witnesses within the military justice system, the Act authorizes military judges to make certain orders such as non-disclosure of witness’ identity, publication bans, orders allowing testimony outside the courtroom and orders preventing an accused person from personally cross-examining a witness.

The Act 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 Act also allows for the filing of community impact statements describing the harm or loss suffered by the community as a result of the commission of a service offence and the impact of the offence on the community, and the filing of military impact statements describing the harm done to discipline, efficiency, or morale within the Canadian Armed Forces as a result of the commission of a service offence and the impact of the offence.

Indigenous Sentencing Considerations

The Act adds the Indigenous offender sentencing provision which mirrors the Criminal Code provision known as the Gladue principle. The new provision requires service tribunals to pay particular attention to the circumstances of Indigenous offenders when considering the appropriate punishments. The punishment must be reasonable in the circumstances and consistent with the harm done to victims or to the community.

Gender Identity and Expression

The Act adds provisions that mirror the Criminal Code by setting out that evidence that a service offence or service infraction was motivated by bias, prejudice or hate based on gender identity or expression constitutes an aggravating circumstance that must be taken into consideration when a sentence or sanction is imposed.

Summary Trial Reform

The Act simplifies and enhances military discipline at the unit level. The summary trial process will be replaced by a non-penal, non-criminal summary hearing process limited in jurisdiction to service infractions, to be created by regulations. Courts martial will retain sole jurisdiction over service offences.

Officers conducting summary hearings will have jurisdiction to conduct a hearing in respect of a charge alleging the commission of a service infraction if the person charged is an officer who is at least one rank below the rank of the officer conducting the hearing, or is a non-commissioned member.

Sanctions imposed for service infractions will include one or more of the following: reduction in rank, severe reprimand, reprimand, deprivation of pay and allowance, and minor sanctions prescribed in regulations.

Improving the chain of command’s ability to address minor breaches of military discipline fairly and more rapidly will enhance the responsiveness and efficiency of the military justice system, thereby contributing to the operational effectiveness of the Canadian Armed Forces.

Provisions Coming into Force upon Royal Assent

Upon receiving Royal Assent, certain sections of the Act came into force, such as those concerning sentencing principles related to gender identity and expression and Indigenous offenders considerations, and criminal records.

More specifically, the following amendments, applicable to both summary trials and courts martial, came into force upon Royal Assent of the Act:

  • evidence that a service offence was motivated by bias, prejudice or hate based on gender identity or expression constitutes aggravating circumstances that must be taken into consideration when a sentence is imposed;
  • particular attention is to be afforded to the circumstances of Indigenous offenders when considering the appropriate punishments. The punishment must be reasonable in the circumstances and consistent with the harm done to victims or to the community, including the Canadian Armed Forces; and
  • a person convicted of certain service offences will not have a criminal record when the person is sentenced to one or more of the following punishments: severe reprimand, reprimand, fine not exceeding basic pay one month or minor punishment.

The remaining provisions of the Act will come into force at a later date along with related provisions amending the Queen’s Regulations and Orders for the Canadian Forces.

Current Victims’ Rights and Initiatives in the Military Justice System

Although provisions related to victims rights will come into force at a later date, a number of policy initiatives have already been put into place 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, increase 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 2015, 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 included:

  • Information is proactively provided to victims on the choice of jurisdiction (military or civilian);
  • Victims are informed, respected and heard  throughout the court martial 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 through increased prosecutor training opportunities;
  • Assuring victim comfort and security is a key consideration;
  • Prosecutors shall ensure that submissions made at sentencing hearings include information regarding the impact of the offence on the victim;;
  • Maintaining the consistency of prosecutors throughout the court martial process is considered paramount; and
  • The prosecutions of sexual misconduct cases are expedited ahead of other trials.

Courts martial are currently mandated by the National Defence Act to consider the statement of any victim of the offence describing the harm done to, or loss suffered by, the victim arising from the commission of the offence. Courts martial may also, on application by the DMP or on its own motion, order that the offender make restitution.

Conclusion

The Declaration of Victims Rights is an important milestone in the evolution of the military justice system. It strengthens victim’s rights within the military justice system in the same way that the Canadian Victims Bill of Rights strengthened these rights within the civilian criminal justice system. The introduction of the Declaration, along with sentencing principles provisions related to Indigenous offenders and offences motivated by bias, prejudice or hate based on gender identity or expression, further align the military justice system with the civilian criminal justice system. The Act also improves the chain of command’s ability to address minor breaches of military discipline fairly and more rapidly. These 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 while respecting the unique requirements of the military justice system.

A military justice system reflective of Canadian values is one that will help the Canadian Armed Forces (CAF) 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. These changes will ensure that the military justice system remains an important tool in promoting discipline, efficiency and morale in the CAF.

Associated Links

Contacts

Media Relations
Department of National Defence
Phone: 613-996-2353
Email: mlo-blm@forces.gc.ca


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