Third Independent Review of the National Defence Act

Backgrounder

June 1, 2021 – Ottawa – National Defence / Canadian Armed Forces

On November 5, 2020, the Honourable Harjit S. Sajjan, Minister of National Defence, appointed the Honourable Morris J. Fish, former Justice of the Supreme Court of Canada, as the Independent Review Authority, to conduct an independent review of specified provisions of the National Defence Act (NDA) and their operation.

Under Section 273.601 of the NDA, the Minister of National Defence is required to initiate an Independent Review of specified provisions of the Act and their operation, and to table a report of the review in Parliament within a specified timeline. In this Independent Review, the specified provisions of the NDA that were reviewed include those relating to military justice, military policing and police oversight, military grievances, and external review of grievances.

About the Review Authority

The Honourable Morris J. Fish served on the Québec Court of Appeal and on the Supreme Court of Canada. Justice Fish practiced law in Montreal and was called to the bars of Quebec, Prince Edward Island and Alberta and appointed Queen’s Counsel. An adjunct professor in the Faculty of Law at McGill University, he also taught in the University of Ottawa and at the Université de Montréal. Justice Fish served as a consultant to the federal Department of Justice, to Revenue Canada and to the Law Reform Commission of Canada. He was special counsel to the Inquiry Commission into the Exercise of Trade-Union Freedom in Quebec’s Construction Industry (Cliche Commission), as well as to the Security Intelligence Review Committee. Justice Fish received honorary Doctorates of Law from McGill University in 2001 and from Yeshiva University in 2009. He has also received numerous awards and medals and was appointed Companion of the Order of Canada in 2017. Justice Fish is now jurist in residence with a Canadian law firm.

Previous Reviews

The First Independent Review was completed by the late Right Honourable Antonio Lamer, retired Chief Justice of Canada, in 2003. His report contained 88 recommendations. The departmental response to the recommendations from that review is reflected in Bills C-60, C-16 and C-15, which amended the NDA.

The Second Independent Review was completed and submitted to the Minister of National Defence in December 2011 by the Honourable Patrick LeSage, retired Chief Justice of the Ontario Superior Court of Justice. It was tabled in June 2012. His report contained 55 recommendations. The departmental response to the recommendations from the Second Independent Review is substantially reflected in Bill C-15 regulations.

Third Independent Review

As the Third Independent Review Authority, Justice Fish has provided Minister Sajjan with 107 wide-ranging recommendations, with a majority of them dealing with the military justice system, including how issues of sexual misconduct are addressed, military policing and police oversight. The remainder of the recommendations concern military grievances and the external review of grievances and the independent review process.

The Independent Review Authority’s recommendations mark a new era of reform for the military justice system. Justice Fish re-affirms in his report that there is a “demonstrably justified” need for a separate military justice system to “maintain discipline, efficiency and morale” and his recommendations point the way to ongoing evolution of the system to ensure that it continues to reflect the values of Canadians and respond to the needs of the CAF. Justice Fish proposes significant legislative and regulatory changes, as well as changes to common practices and processes that exist throughout the military justice system.

This is the most comprehensive independent review and far-reaching examination of the military justice system since the reviews led by the former Chief Justice of Canada, Brian Dickson, in the late 1990s. Driving the new era of reform implicit in these recommendations will demand continued and relentless efforts. The Department of National Defence and the Canadian Armed Forces accept in principle the 107 recommendations made and will implement as quickly and effectively as possible, noting however that some recommendations will require additional study, significant legislative and/or regulatory changes.

The Department of National Defence and the Canadian Armed Forces are committed to begin the implementation of recommendations 5, 12, 17, 18, 19, 20, 21, 22, 26, 27, 29, 35, 46, 47, 50, 70, 72, 73, 75, 78, 79, 84, 85, 86, 87, 92, 93, 94, 98, 99, 100, 101, 104, 105, 106 and 107 in the short term as additional analysis is done.

The reforms proposed by this report will assist in ushering the military justice system into a new era. They continue the larger trend of lessening the command-centric nature of the military justice system through enhancing the independence of military justice actors.

The first 64 recommendations pertain directly to the military justice system. The proposed changes include reforms to the military justice actors, to service offences, and to the military justice process.
The recommendations pertaining to the military justice actors (1 through 16) are the most significant in the report in terms of institutional transformation. The Independent Review Authority (IRA) recommends strengthening the independence of military justice actors including the judiciary, the prosecutors, defence counsel and the military police. For example, the IRA recommends the civilianization of the military judges (recommendation 1) and the creation of a Permanent Military Court (recommendation 4).
Twelve recommendations concern service offences, punishments and jurisdiction (recommendations 17 through 28). They address the concepts and the mechanics of the scope of the Code of Service Discipline, the operation of the exercise of the day-to-day jurisdiction in the military justice system and the content of specific service offences and their punishments. This includes the creation of new specific service offences for sexual misconduct and hateful conduct (recommendation 24).
A total of 36 recommendations consider the military justice process from investigation of alleged service offences to their disposition before a Service Tribunal. They propose measures to ensure a more timely process, and to enhance procedural fairness for the accused. The IRA’s recommendations aim to strengthen the process, find efficiencies, and lead to the collection of better data that would identify causes of delays and help to address these (recommendations 29 through 64).
The majority of the 10 recommendations in the sexual misconduct chapter relate to aspects of the military justice and they are thoughtful and practically minded. They take a victim-centered approach, while remaining focused on ensuring that the military justice system remains fair, efficient, and aligned with Canada’s civilian criminal justice system. They also align with the objectives of Bill C-77, whose full implementation will significantly enhance the victim-centered approach of the military justice system through the adoption of the Declaration of Victims Rights. This will strengthen victims’ rights within the military justice system and enhance the fairness of the system.
The final chapter of the report is on the Independent Review Process and Policy Development, which surveys the institutional capacity and approach to working with, and supporting, external examinations of the military justice system and with general policy themes. These recommendations are practical, and are focused on operational and planning matters. They touch upon the need for centralized and readily available information on prior independent reviews, the military justice system, data collection and training and oversight and redress mechanisms (recommendations 98 through 103). The IRA also recommends reviews of sufficiency of resources for military justice policy development (105) and strengthened relationships with the Department of Justice (106 and 107).

These recommendations are complex. The Department of National Defence and the Canadian Armed Forces and its senior leadership, particularly those with responsibility in the areas of the military justice system consider interim measures where possible as we work to final implementation of Justice Fish’s recommendations.

Justice Fish’s report is very consequential for the Canadian Forces Provost Marshal (CFPM), with about 40 of the 107 recommendations impacting the Military Police. Examining the recommendations to progress institutional policing standards and consulting with key stakeholders will be important first steps to implementation. Specifically:

The recommendations that would require legislation (13/14/15/16/32/36/39) recognize the level of professionalism of the Military Police and the requirement for a legal framework bolstering the institutional independence to the head of the Military Police. The CFPM will continue to work independently within the current framework and welcomes an enhanced legislative recognition of his independence.
The recommendations relating to the CFPM and Director of Military Prosecutions (17/18/19/20/40/41/42/43) will see the CFPM work with the Director of Military Prosecutions for implementation, and a preliminary assessment will be convened in order to establish the implementation framework.
Recommendations related to data collection (29/35) will see the CFPM continue to increase its data analytics capability and work to implement these recommendations into current procedures to analyze data, learn from it and report it transparently through the CFPM’s annual report.
The CFPM will work with the Sexual Misconduct Response Centre for the recommendation related to specialized training (66) to design the appropriate training.
The CFPM will examine carefully how the Military Police could best address concerns raised by the recommendation related to sexual assault investigations (68) for the victims and take action to this end until the Declaration of Victims Rights is in force.
Recommendations relating to the creation of working groups (21/22/70/85/106/107) will require coordinated efforts in order to address complex challenges. CFPM will meaningfully and constructively contribute to every working group and discussion suggested by Justice Fish.

In his examination of the Canadian Forces Grievance Authority (CFGA) and system, Justice Fish identified delays as the major impediment to achieving grievance system goals. A number of recommendations speak to enhancing or enforcing accountabilities (88/89/90/91), and require further analysis on mechanisms to achieve proposed amendments. While a much needed change in grievance culture and mindset is already underway, Justice Fish’s report provides a strong foundation for this very important work. Specifically:

Recommendation 86 nuances and strengthens the existing grievance process to the benefit of the grievor by not only ensuring awareness of grievances by the Conflict and Complaint Management Services (CCMS) office whereby CCMS guidance and/or information about resolution mechanisms are leveraged, but also by suspending submission time limits whereby CCMS support is sought.
Recommendation 87 nuances and strengthens the existing grievance process to the benefit of the grievor by ensuring Conflict and Complaint Management Services (CCMS) office awareness of Initial Authority (IA) requests for adjudication extension from the grievor. This permits the CCMS office to track and properly inform the parties involved on the extension as well as its potential impacts.
Recommendation 91 states that the military grievance process should be fully digitized and the grievance authority agrees that submissions by grievors should occur digitally. This is an excellent initiative that will further protect the grievor’s right to grieve and documentation. Additional analysis is required to ensure privacy, confidentiality and solicitor-client privilege challenges are adequately addressed prior to implementation.
Recommendations 93 and 94 are already in place, save regulatory updates to formalize current practice.
To move forward on recommendation 95, the amendments to the Strengthening Military Justice in the Defence of Canada Act should be brought into force quickly for procedural fairness. The amendments are still not in force affording the CDS authority to reinstate members who have been improperly released administratively, and this is unfair to CAF members.

With respect to the recommendations relating directly to the Sexual Misconduct Response Centre (71/72/73), action will be taken immediately. With funding provided under Budget 2021, the Sexual Misconduct Response Centre (SMRC) will be implementing a program that provides free independent legal advice to victims of sexual misconduct, including advice on whether, how and where to report, and guidance throughout judicial processes. The responsibility for sexual misconduct data collection, analysis and reporting is already part of SMRC’s mandate and work is underway for SMRC to access relevant data and to receive aggregate reports from the Canadian Armed Forces. The independence of SMRC from both the Department of National Defence and the Canadian Armed Forces will be examined by Justice Arbour as part of the External Independent Comprehensive Review.

Independent External Comprehensive Review

On April 29, 2021, the Honourable Harjit S. Sajjan, Minister of National Defence, appointed the former Supreme Court Justice Louise Arbour as the independent external comprehensive review Authority of current policies, procedures, programs, practices, and culture within the Canadian Armed Forces and the Department of National Defence. The aim of this review is to shed light on the causes for the continued presence of harassment and sexual misconduct despite efforts to eradicate it, identify barriers to reporting inappropriate behaviour and to assess the adequacy of the response when reports are made, and to make recommendations on preventing and eradicating harassment and sexual misconduct. The Independent External Comprehensive Review will be complementary to the work of Justice Fish.

Justice Louise Arbour’s review will build on the report prepared by former Supreme Court Justice Marie Deschamps in 2015. The Deschamps report was instrumental in identifying the problem; this new review will take a broader look at how and why our existing workplace dynamics enable harmful behaviours, and will make recommendations on preventing and eradicating harassment and sexual misconduct.

Sexual Misconduct and Hateful Conduct

There is no room in the Canadian Armed Forces for sexism, misogyny, racism, discrimination, harassment or any other conduct that prevents the institution from being a truly welcoming and inclusive organization. National Defence understands that a culture change within the Canadian Armed Forces is required, to remove a toxic culture and to create an environment where everyone is respected, valued, and can feel safe to contribute to the best of their ability.

Ensuring that the military justice system remains fair, efficient, and aligned with Canada’s civilian criminal justice system — one that takes a victim-centred approach to justice and gives victims a voice—is essential to our efforts to address sexual misconduct. The upcoming implementation of provisions of Bill C-77 will strengthen victims’ rights within the military justice system and enhance the fairness of the system

The Supreme Court of Canada observed that independent reviews facilitate the “continuing evolution” of the military justice system and that just as “the civilian criminal justice system grows and evolves in response to developments in law and society, so too does the military justice system”. The recommendations provided by Justice Fish as the Independent Review Authority related to sexual misconduct will be acted upon, along with those that are expected from Justice Arbour. Together, these two reviews will provide essential analysis and guidance to assist with the ongoing development of the military justice system, and to prevent and address harassment, hateful conduct and sexual misconduct.

Associated links

Contacts

Daniel Minden
Press Secretary
Office of the Minister of National Defence
Phone: 613-996-3100
Email: Daniel.Minden@forces.gc.ca

Media Relations
Department of National Defence
Phone: 613-904-3333
Email: mlo-blm@forces.gc.ca

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Date modified:: 2021-06-01