Annex B – Victims of Service Offences: Interactions with the Military Justice System

Context

This Annex serves to supplement and provide guidance on the National Defence Act (NDA) and the Queen’s Regulations and Orders for the Canadian Forces (QR&O). This Annex is designed as a guide for appropriate authorities in the military justice system (MJ Authorities)^{Footnote 217} to follow when interacting with victims^{Footnote 218} at all stages of the military justice system (MJS).^{Footnote 219} The rights set out in the Declaration of Victims Rights (DVR)^{Footnote 220} apply only to victims, as defined at subsection (subs) 2(1) of the NDA. Critically, the NDA definition of victim pertains only to misconduct constituting a service offence or a service offence allegation. The rights set out in the DVR are available to victims during their interactions with the MJS. While meeting this definition of victim is required to access rights under the DVR, an individual may define their own context and experience differently and may not recognize themselves as a victim.

MJ Authorities must employ a trauma-informed approach when interacting with victims. A trauma-informed approach includes recognizing that victims may be affected by trauma and may experience trauma differently based on their identity and past experience. Being trauma-informed means exhibiting empathy, patience, consistency, transparency and reliability towards victims.

MJ Authorities should refer victims to the Victims and Survivors of Service Offences webpage, which includes information and resources concerning DVR rights as well as programs and services available, and the Interim Victim’s Liaison Officer Policy.

B.1 Intent

When victims’ rights apply

B.1.1 MJ Authorities should be aware of when the DVR applies and be in a position to clearly communicate information about those rights to a victim when appropriate. DVR rights begin to apply when an investigation into an alleged service offence is initiated, and the investigation is deemed to begin at the time the service offence allegation was reported to a MJ Authority.^{Footnote 221} DVR rights continue to apply through all stages of the MJS including but not limited to the following:

While the service offence is being investigated;^{Footnote 222}
While the service offence is being referred;^{Footnote 223}
While the service offence is being prosecuted;^{Footnote 224}
While the offender is serving a punishment in relation to the service offence, unless the offender has been committed to a penitentiary or civil prison;^{Footnote 225} and
If the person alleged to have committed a service offence is found unfit to stand trial or not responsible on account of mental disorder in relation to the offence, while they are under the jurisdiction of a court martial or a Review Board.^{Footnote 226}

B.1.2 Victims’ rights under the DVR cease in circumstances including but not limited to the following:

When the case is transferred to a civilian jurisdiction;^{Footnote 227}
When there is a decision not to lay a charge, or to lay a charge only for a service infraction;
When a service offence charge is not preferred by the Director of Military Prosecutions;
When a finding of not guilty is made at court martial;
When the offender’s punishment in the MJS has been served; or
When the offender is committed to a civilian institution to serve punishment.

B.1.3 MJ Authorities play a crucial role in supporting victims in accessing programs and services. When interacting with victims, the MJ Authority should confirm whether access to support is available and should help identify and resolve barriers or other concerns preventing access to that available support.

B.2 The Victim’s Liaison Officer

B.2.1 The DVR provides for the appointment of a Victim’s Liaison Officer (VLO) at the victim’s request.^{Footnote 228} The VLO can assist the victim by explaining how service offences are charged, dealt with, and tried under the Code of Service Discipline. The VLO can also help obtain and transmit information relating to a service offence that the victim has requested and has a right to under the DVR.^{Footnote 229}

B.2.2 If the victim would prefer not to interact directly with MJ Authorities in navigating their available DVR rights, they may opt to make contact through the VLO. If authorized by the victim, the VLO can handle certain interactions for the victim, including but not limited to submitting documentation and receiving status updates.

B.2.3 A VLO is not an advocate on behalf of the victim. A VLO does not provide any form of personal, material, physical or mental health support to the victim, though they can provide the victim with information about support programs and services available.

B.2.4 For a person to become a VLO, they must meet a number of conditions, including receiving required training.^{Footnote 230} A victim may request that a Commanding Officer (CO) appoint a specific VLO. The CO may appoint that requested VLO if the VLO falls within their command.^{Footnote 231}

B.2.5 The Chain of Command (CoC) may nominate individuals to receive VLO training, who are then appointed to a standing list maintained by the Chief Professional Conduct and Culture (CPCC). If a victim requests a VLO who is not available, the victim can be referred to CPCC for selection of a different VLO from the standing list. For more information on the VLO, consult the Interim Victim’s Liaison Officer Policy.

B.3 Overview of the DVR

Summary of the DVR

Right to Information (on request)	Information about the MJS and the role of victims in it - programs and services available to victims - the right to file a complaint Investigations and proceedings About the offender or accused
Right to Protection	Security considered by MJ Authorities Protection from intimidation and retaliation Privacy considered by MJ Authorities Identity protection on request Testimonial aids on request
Right to Participation	Have their views considered regarding certain decisions made Present a Victim Impact Statement
Right to Restitution	Restitution order Enforcement of restitution order (i.e. entered as a civil court judgement) if not paid
Victim’s Liaison Officer (VLO)	A victim can request the appointment by a CO of a VLO. A CO needs to appoint one except for operational reasons - to the extent possible, the VLO appointed will be the one requested by the victim VLO must satisfy the conditions set out at QR&O article 108.02 (Conditions for Victim Liaison Officer Appointment) Role: assist victim by explaining how service offences are charged, dealt with, and tried under the Code of Service Discipline; obtaining and transmitting information relating to a service offence that the victim has requested and to which they have a right
Complaints Mechanism	Victims have the right to file a complaint when they are of the opinion that their DVR rights have been infringed or denied Complaint submission process is set out in regulations^{Footnote 232}

Right to information

B.3.1 Under the DVR, victims have the right, on request, to certain types of information, including:

Information about the MJS and the role of victims in it;^{Footnote 233}
Information about programs and services available to them;^{Footnote 234}
Information about their right to file a complaint for an infringement or denial of their DVR rights;^{Footnote 235}
Information about the status and outcome of the investigation;^{Footnote 236}
Information about proceedings in the MJS relating to the service offence of which they are a victim;^{Footnote 237} and
Information about the offender while they are in a service prison or detention barrack, including the offender’s release from such custody.^{Footnote 238}

B.3.2 Various MJ Authorities may be implicated in providing information on request to victims. The context will dictate who is best positioned to provide the information requested. For example: the CoC, when a complaint is being investigated at the unit level; the Military Police when they are investigating a complaint; and military prosecutors when a service offence charge is laid and referred to the Director of Military Prosecutions. The types of information various MJ Authorities may be implicated in providing include, but are not limited to:

The CoC, when dealing with a complaint at the unit level, provides, when requested, information about:
- (1) The MJS,
- (2) The status and outcome of a unit investigation, and/or
- (3) Services and programs available to victims.
Military Police, when dealing with a complaint, offers their own Victim Services Program (VSP) that can help victims request most of the information under this category of DVR rights.^{Footnote 239}
Military prosecutors, when a service offence charge is laid and referred to the Director of Military Prosecutions, inform victims on request about:
- (1) The MJS proceedings in relation to the service offence; and
- (2) Programs and services available to them.^{Footnote 240}

Programs and services available to victims of service offences

B.3.3 MJ Authorities may refer victims to relevant programs and services which may be useful to them, including but not limited to:

The Conflict Solutions and Services program (formerly the Integrated Conflict and Complaint Management program);
The Sexual Misconduct Support and Resource Centre, which can also, upon request, facilitate access to other CAF/DND and civilian resources; and/or
Outside the Department of National Defence and the Canadian Armed Forces, the Victim Services Directory can help victims locate services across Canada.

B.3.4 Mental health supports should be made available throughout all stages of MJS. MJ Authorities should make it known that if the victim wishes to seek out mental health supports, such supports are available, and provide relevant contact information.

Right to protection

B.3.5 Under the DVR, victims have the right to protection, including the right to:

Have their security and privacy considered by MJ Authorities;^{Footnote 241}
Be protected from intimidation and retaliation;^{Footnote 242} and
Ask the court martial that their identity be protected.^{Footnote 243}

B.3.6 Various MJ Authorities may be implicated in the right to protection, including but not limited to:

The CoC:
- (1) The CoC must consider the role they can play in ensuring awareness of the right to protection and in facilitating and supporting victims in accessing this right;
- (2) The CoC must investigate any report of reprisal or other intimidating behaviour taken in response to a report of sexual misconduct, and consider how to immediately address it to the extent possible including but not limited to administrative or disciplinary action; and
- (3) The CoC, when acting as custody review officer, must state they considered the safety and security of every victim of the alleged offence when directing the release, with or without conditions, of a person alleged to have committed a service offence.^{Footnote 244}
Military Police:
- (1) Military Police will consider a victim’s safety throughout an investigation and legal proceeding, and will facilitate or provide reasonable and necessary measures to protect them from intimidation and retaliation;^{Footnote 245} and
- (2) The Military Police VSP assists victims by providing victim services coordinators, who will inform the victim of available resources and can arrange for victim safety measures.
Military Prosecutors:
- (1) Military prosecutors consult victims about any concerns they may have regarding the accused’s compliance with any conditions of release imposed pending the start or completion of relevant court martial proceedings;
- (2) Military prosecutors consider, in consultation with victims, appropriate measures to enhance the security and comfort of victims who are testifying in a court martial;^{Footnote 246} and
- (3) Military prosecutors ask military judges to make orders to protect vulnerable witnesses.^{Footnote 247}

Right to participation

B.3.7 Victims have the right to convey their views about decisions to be made by MJ Authorities that affect their rights under the DVR and to have those views considered at various stages in the MJS.^{Footnote 248}

B.3.8 Various MJ Authorities may be implicated in the right to participation, including but not limited to:

The CoC:
- (1) The CoC must consider the role they can play in ensuring awareness of the right to participation and in facilitating and supporting victims in accessing this right, and to ensure the victim is provided an opportunity to offer their views when a decision is made that will have an impact on their DVR rights; and
- (2) The CoC, in determining whether alleged misconduct is most appropriately considered and dealt with as a service offence or service infraction, should provide the person the opportunity to communicate their views of the impact the alleged misconduct has had on them. This person may share their views if they so desire, and they are entitled to communicate in a way that is most appropriate for them.^{Footnote 249}
Military Police:
- (1) Victims may wish to share their views with a Military Police investigator in relation to decisions to be made that affect them.^{Footnote 250}
Military Prosecutors:
- (1) Military prosecutors consider a victim’s views when a decision is to be made at any stage of a case in which the victim is involved, including decisions about which jurisdiction, military or civilian, is better suited to deal with it;^{Footnote 251} and
- (2) Military prosecutors assist victims of service offences in presenting their views on the impacts of the offence on them, which will then be considered in determining the offender’s sentence. Usually this is done through the use of a Victim Impact Statement.

The Victim Impact Statement

B.3.9 A victim impact statement is a statement from a victim that describes the physical or emotional harm, property damage, or economic loss that the victim has suffered.^{Footnote 252} The statement of any victim must be considered when determining the sentence to be imposed on an offender,^{Footnote 253} or when making certain dispositions concerning an accused person found unfit to stand trial or not responsible on account of mental disorder.^{Footnote 254}

The right to restitution

B.3.10 Under the DVR, victims have the right to request that a military judge consider making a restitution order.^{Footnote 255} A military judge can make a restitution order when imposing a sentence on an offender for the victim’s readily ascertainable losses or damages suffered due to the commission of the service offence.^{Footnote 256}

B.3.11 Various MJ Authorities may be implicated in the right to restitution, including but not limited to:

The CoC:
- (1) The CoC is encouraged to consider the role they can play in ensuring awareness of the right to restitution and in facilitating and supporting victims in accessing this right; and
- (2) The CoC can specifically encourage the victim to start documenting their financial losses as soon as possible, to help ensure they are ready to present these if the offender is to be sentenced.
Military Police:
- (1) Military police can make the victim aware of this right, and can encourage them to start documenting their financial losses as soon as possible, to help ensure they are ready to present these if the offender is to be sentenced; and
- (2) Military police are encouraged to consider the role they can play in ensuring awareness of the right to restitution and in facilitating and supporting victims in accessing this right.
Military Prosecutors:
- (1) Military prosecutors take reasonable steps to provide victims with an opportunity to indicate whether they are seeking restitution.

B.4 DVR Complaints Mechanism

B.4.1 Victims have the right to file a complaint if they believe their DVR rights have been infringed or denied.^{Footnote 257} MJ Authorities are encouraged to consider the role they can play in ensuring awareness of the complaints mechanism and in facilitating victim access to it.

B.4.2 A complaint must be filed in writing with the Director External Review (DER).^{Footnote 258} For information on how to submit a complaint, including access to a Victim Complaint Form, consult the Victims’ Rights Complaint Review Mechanism. The DER must review the complaint or forward it for review by the Deputy Commander of the Canadian Forces Military Police Group, the Assistant Director of Military Prosecutions, or the Deputy DER.^{Footnote 259} The DER’s decision to review or forward the complaint must consider, among others, the factors set out at QR&O paragraph 108.03(3) (Complaints - Declaration of Victims Rights), which include the nature and severity of the alleged infringement or denial and the victim’s preference.^{Footnote 260}

B.4.3 The complaint review will include the determination as to whether any of the victim’s rights under the DVR were infringed or denied and may include recommendations to remedy any such infringements or denials.^{Footnote 261} The reviewing authority will forward the completed review to the DER, who will notify the victim of the result and any recommendations.^{Footnote 262}

B.4.4 If a victim is of the opinion that the result of the review or any recommendations do not address the complaint, they may file a request for a second review with the DER within 30 days of the notification of the result of the first review.^{Footnote 263}

Footnotes

Footnote 217

MJ Authorities include, but are not limited to, members of the Military Police, an officer, or another member of the Chain of Command (CoC) who ordinarily deals with matters of discipline. Certain rights under the Declaration of Victims Rights (DVR) are accorded or administered by authorities other than these.

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Footnote 218

Victim means, as defined at subsection (subs) 2(1) of the NDA: a person against whom a service offence has been committed, or is alleged to have been committed, who has suffered, or is alleged to have suffered, physical or emotional harm, property damage or economic loss as a result of the commission or alleged commission of the offence and includes, for the purposes of Division 1.1 of Part III and sections 202.201, 203.6 and 203.7 (of the NDA), a person who has suffered physical or emotional harm, property damage or economic loss as a result of the commission of a service offence against any other person.

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Footnote 219

See NDA section (s) 71.01 for the definition of Military Justice System.

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Footnote 220

The DVR was enacted by the coming into force of An Act to amend the National Defence Act and to make related and consequential amendments to other Acts (Bill C-77), SC 2019, c 15. For more information, see the Backgrounder: Enhancing Victims’ Rights in the Military Justice System, and CANFORGEN 089/22, Victim Rights and Summary Hearing Implementation (only accessible on the Defence Wide Area Network).

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Footnote 221

NDA paragraph (para) 71.14(1)(a) and subs 71.14(2).

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Footnote 222

NDA para 71.14(1)(a).

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Footnote 223

NDA para 71.14(1)(a).

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Footnote 224

NDA para 71.14(1)(a).

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Footnote 225

NDA para 71.14(1)(b). See NDA subs 2(1) for the definitions of civil prison and penitentiary.

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Footnote 226

NDA para 71.14(1)(c).

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Footnote 227

In such a case, the civilian Canadian Victims’ Bill of Rights, SC 2015, c 13, s 2 will then apply instead of the DVR.

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Footnote 228

NDA subs 71.16(1). The Interim Victim's Liaison Officer Policy provides the following recommendations to the CoC: be familiar with the DVR, including that a victim may request a VLO; where the CoC is the first point of contact for a victim, ensure the victim is informed of the DVR, including the opportunity to request a VLO; support a victim who is undecided about requesting a VLO; inform the victim that they may request a support person as needed; and respect the confidentiality of a victim. Where the victim does not name a specific individual, the Commanding Officer (CO) may contact the Chief Professional Conduct and Culture (CPCC) for assistance in identifying a suitable VLO, either in their own command or from another command.

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Footnote 229

See NDA subs 71.16(3) and QR&O art 108.02.

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Footnote 230

See QR&O art 108.02.

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Footnote 231

If the requested member falls outside of their command, COs may request support from CPCC in facilitating the request and appointment.

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Footnote 232

See QR&O article (art) 108.03.

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Footnote 233

NDA subs 71.02(a).

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Footnote 234

NDA subs 71.02(b).

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Footnote 235

NDA subs 71.02(c).

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Footnote 236

NDA subs 71.03(a).

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Footnote 237

NDA subs 71.03(b).

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Footnote 238

NDA paras 71.04(1)(a)-(b) and QR&O art 108.01.

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Footnote 239

Victim Services Program actors maintain contact throughout the investigative process and during any hearing that results from the investigation. Military Police will, as required, provide the victim with appropriate referrals to local and independent legal services, if available, that provide information to victims about legal proceedings.

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Footnote 240

With respect to transfers to civilian police forces of all allegations of sexual offences, including allegations currently under investigation, prosecutors will explain to victims what changing jurisdiction would entail; and the risks associated with changing jurisdiction (See DMP Directive 0160-8-06520-00).

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Footnote 241

NDA sections (ss) 71.05 and 71.07.

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Footnote 242

NDA s 71.06.

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Footnote 243

NDA s 71.08.

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Footnote 244

NDA subs 158.6(1.1).

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Footnote 245

Safety measures by the Military Police can include but are not limited to: protection orders made by civilian criminal courts, and referrals to women-only shelters or to private military quarters. Measures to protect from intimidation or retaliation include access to shelters or homes available to victims of crime, imposing conditions of release or other measures to ensure a safe workplace for the victim, and/or arrests made and further charges pursued.

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Footnote 246

Measures can include informing victims of court dates, and taking reasonable steps to ensure the victim is aware of the offender’s release pending start or conclusion of proceedings. See also NDA ss 71.08 and 71.09 and subs 180(2).

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Footnote 247

Protections can include an order banning any publication that might identify the victim; and/or a prohibition against producing the victim’s personal records to the accused.

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Footnote 248

NDA s 71.1.

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Footnote 249

See sub-subparagraph 1.3.7(a)(1). The CoC should also discuss the possibility that a charge for a service offence may not be laid or the investigation may result in a service infraction charge, and in those instances the DVR would no longer apply. However, it should be explained that if the investigation results in a service infraction charge and the DVR no longer applies as a result, the person is entitled through QR&O and this policy to receive certain information and protection as well as the opportunity to participate in the summary hearing (see para 1.2.10 and Annex C).

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Footnote 250

Such decisions may include whether it is in the victim’s interests that a charge be laid; or that a charge be dealt with in the MJS or in the civilian justice system; and that a charge be laid as service offence or service infraction. However, the decision to proceed with a charge rests with the person who has the authority to lay charges and the determination as to whether a service offence or a service infraction has been committed rests with the charge layer.

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Footnote 251

See for example DMP Policy Directive 007/00, para 10.

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Footnote 252

NDA s 71.11; see also NDA subs 203.6(1). A victim can present a victim impact statement with the help of a support person and outside the court room or behind a screen if certain conditions are met (see NDA subs 203.6(3)).

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Footnote 253

NDA s 71.11 and subs 203.6(1).

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Footnote 254

NDA subs 202.201(16). See also NDA s 197 for the meaning of disposition.

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Footnote 255

NDA s 71.12.

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Footnote 256

See NDA subs 203.81(2), s 203.9 and Victims of Service Offences: The Right to Restitution.

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Footnote 257

NDA subs 71.22(1). See also QR&O art 108.03, as well as the Victims' Rights Complaint Review Mechanism policy webpage. Before filing a complaint, victims are strongly encouraged to first bring any concerns or issues to the attention of the MJ Authority.

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Footnote 258