Annex C – Persons Affected by a Service Infraction: Interactions with the Military Justice System

Context

This Annex serves to supplement and provide guidance on the Queen’s Regulations and Orders for the Canadian Forces (QR&O). This Annex is designed as a guide to assist appropriate authorities in the military justice system (MJ Authorities) throughout all stages of the Military Justice System (MJS) when a service infraction has been or is alleged to have been committed against a person or a person has or is alleged to have suffered physical or emotional harm, property damage or economic loss as a result of the alleged commission of a service infraction (Person Affected by a Service Infraction). This Annex applies from the time when MJ Authorities (including investigators, charge layers, and the Officer Conducting the Summary Hearing (OCSH)) decide to treat a matter as a service infraction, through to the conclusion of a review of the results of the Summary Hearing (SH). This Annex provides a general scope of who may be the MJ Authority throughout key stages of the MJS.

C.1 Interpretation

C.1.1   The rights set out in the Declaration of Victims Rights (DVR)^{Footnote 264} apply only to victims, as defined at subsection (subs) 2(1) of the National Defence Act (NDA). Critically, the NDA definition of victim includes a person against whom a service offence has been committed, or is alleged to have been committed; or a person 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. This Annex does not address DVR rights or the appointment of a Victim Liaison Officer. For further information on those matters, please see Annex B. This Annex, provides guidance when MJ Authorities decide to treat a matter as a service infraction, whereby the NDA definition of victim would not be satisfied and the DVR would not be available. An individual may however, define their own context and experience differently and may recognize themselves as a victim regardless of the confines of the NDA definition of victim.

C.1.2   MJ Authorities must employ a trauma-informed approach when interacting with Persons Affected by a Service Infraction. A trauma-informed approach includes recognizing that these persons 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 Persons Affected by a Service Infraction.

C.1.3   A Person Affected by a Service Infraction is entitled to receive certain information and protection and to participate in a SH in accordance with the QR&O and the Military Justice at the Unit Level Policy (the Policy), including this Annex. This Annex explains these different entitlements, including those that must be provided to a Person Affected by a Service Infraction and those that are available upon request. In order for a Person Affected by a Service Infraction to meaningfully access these entitlements, MJ Authorities must inform them about how to do so, which may include referring them to this Annex.

C.1.4   The purpose of this Annex is to serve as a resource guide for MJ Authorities to use in informing a Person Affected by a Service Infraction about their entitlements and in providing these entitlements. Aside from what MJ Authorities are required to provide, each Person Affected by a Service Infraction may choose a different level of involvement in the MJS, and this level of involvement may change over time. MJ Authorities must be sensitive to and respect the choices of a Person Affected by a Service Infraction. This Annex is to be understood and applied in a way that is reasonable and in a manner that is not likely to interfere with the proper administration of justice or endanger the life or safety of an individual.^{Footnote 265}

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Summary of entitlements

Information (on request)	General information about military justice at the unit level and their role in it Status and the outcome of the investigation Explanation of the charge referral process for that particular charge and how the charge is managed after it is referred; and the name, rank and contact information of the officer to whom the charge is referred A copy of the written reasons with respect to the finding(s) and sanction(s) if applicable A copy of the written reasons for the Review Authority’s determination
Protection	Security considered by MJ Authorities Privacy considered by MJ Authorities Appropriate action by MJ Authorities concerning reprisal or intimidation To request to attend the SH with a support person present To give evidence by telephone or other electronic means To be consulted when the person charged requests permission to question them at the SH
Participation	To share their views about any decisions made that could affect their entitlements To make a statement during sanctioning To make representations during a review under certain circumstances
Recourse for founded infringement or denial of entitlements	To have these remedied as soon as circumstances permit

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C.2 Information

Investigation

C.2.1   MJ Authorities shall, on request, provide to a Person Affected by a Service Infraction the name, rank and contact information of a person(s) who will be responsible for the provision of requested information about the investigation.

C.2.2   The following information must be provided on request to a person Affected by a Service Infraction:

1. General information about military justice at the unit level and the Person Affected by a Service Infraction’s role in it including information about:
   • (1) Investigating an alleged service infraction;
   • (2) Laying charges;
   • (3) Referring charges;
   • (4) Conducting a SH;
   • (5) Implementing a sanction; and
   • (6) SH reviews.
2. Information about the status and the outcome of the investigation; and
3. Information about relevant services and programs which may be useful to them, including:
   • (1) The Conflict Solutions and Services (CSS) program (formerly the Integrated Conflict and Complaint Management (ICCM) program);
   • (2) Chaplain services;
   • (3) Canadian Armed Forces Member Assistance Program (CFMAP);
   • (4) The Sexual Misconduct Support and Resource Centre (SMSRC), which can also, upon request, facilitate access to other CAF/DND and civilian resources; and
   • (5) Mental health support contact information.

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Charge laying and referral

C.2.3   If a service infraction charge is laid, the charge layer must provide a copy of the charge report to a Person Affected by a Service Infraction.^{Footnote 266} A Person Affected by a Service Infraction is entitled to request the following information from the charge layer:

1. An explanation of the charge referral process for that particular charge;
2. An explanation of how the charge is managed after it is referred;^{Footnote 267} and
3. The name, rank and contact information of the officer to whom the charge is referred.

C.2.4   If the charge layer decides not to lay a charge, they must, as soon as circumstances permit, inform a Person Affected by a Service Infraction of the decision not to the lay a charge.^{Footnote 268} It is best practice to send this notification in writing. The charge layer is not required to provide reasons for this decision, but may, in certain circumstances, exercise their discretion to do so.

C.2.5   If an officer to whom a charge was referred decides to subsequently refer that charge to another officer, they must inform a Person Affected by a Service Infraction of this decision. A Person Affected by a Service Infraction is entitled to request the following information from the officer making the subsequent referral:

1. the reason for the referral; and
2. the name, rank and contact information of the officer to whom the charge is referred.

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Summary hearing

C.2.6   If the officer to whom the charge has been referred decides to conduct a SH, they must provide notice of the decision to conduct a SH to a Person Affected by a Service Infraction in writing.^{Footnote 269} The notice must include the date, time and information with respect to the hearing procedures that will be followed.^{Footnote 270}  The hearing procedure information to be provided to the Person Affected by a Service Infraction should include, without being limited to, the following:

1. Their role as a witness, should they be called (see paragraphs (paras) 3.4.7-3.4.8);
2. How their questioning at the hearing will be managed (see paras 3.4.5-3.4.6 and C.3.6); and
3. That they will be permitted, but are not required, to provide a statement should the hearing proceed to the sanction phase (see paras 3.6.16 and C.4.3).

C.2.7   A Person Affected by a Service Infraction is entitled to request a copy of the written reasons with respect to the finding(s) and sanction(s) if applicable, and the completed charge report. Necessary redactions in accordance with the Privacy ActFootnote 271 must be made to these documents prior to their disclosure to a Person Affected by a Service Infraction. For more information concerning disclosure and redactions see paragraph (para) 3.7.2.

C.2.8   If the officer to whom the charge has been referred decides that a charge should not be proceeded with, they must as soon as circumstances permit inform a Person Affected by a Service Infraction and provide them with the written reasons for that decision.^{Footnote 272} If the officer to whom the charge has been referred decides the matter should be treated as a service offence allegation and refers the matter for further investigation, the rights set out in the DVR would apply as the definition of victim as set out at NDA subs 2(1) will have been met. In such cases, that officer must ensure the person is notified that they meet the definition of victim and have access to the rights set out in the DVR. That officer should also consult Annex B for information on the DVR, including when the DVR applies and who may be the appropriate MJ Authority to interact with a victim at any given stage of the MJS.^{Footnote 273}

C.2.9   If a service infraction charge cannot be proceeded with by reason of a missed limitation period, the relevant officer must communicate this to a Person Affected by a Service Infraction.^{Footnote 274} If the relevant officer loses jurisdiction for any other reason and a SH is not to be held as a result, they must inform a Person Affected by a Service Infraction and provide them with reasons for why the SH is not to be held.

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Review

C.2.10   If a review of the finding or sanction imposed at a SH is to be conducted, the Review Authority (RA) must ensure a Person Affected by a Service Infraction is informed that a review is to be conducted. A Person Affected by a Service Infraction is entitled to request the RA provide them with a copy of the written reasons for the RA’s determination. Necessary redactions in accordance with the Privacy ActFootnote 275  must be made to the written reasons prior to their disclosure to a Person Affected by a Service Infraction. For more information concerning disclosure and redactions see para 4.4.15.

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C.3 Protection

C.3.1   A Person Affected by a Service Infraction is entitled to have their security and privacy considered by MJ Authorities on an ongoing basis. Throughout any stage in the proceedings, a Person Affected by a Service Infraction is entitled to have MJ Authorities take appropriate action, including initiating an investigation, upon receipt of any complaint or report of reprisal or other intimidating behavior being carried out against a Person Affected by a Service Infraction or any other person, in response to an allegation under investigation.^{Footnote 276}

Investigation

C.3.2   A Person Affected by a Service Infraction is entitled to have their security considered by MJ Authorities throughout the investigation. The consideration of the security of a Person Affected by a Service Infraction during the investigation should include investigators inquiring with them at the outset of an investigation as to whether they have security concerns or needs. This consideration should also include MJ Authorities, namely, investigators, charge layers and members of the relevant Chain of Command (CoC), putting a stop to any ongoing behaviour that formed the substance of the complaint.

C.3.3   A Person Affected by a Service Infraction is entitled to have their privacy considered by investigators throughout the investigation. The consideration of the privacy of a Person Affected by a Service Infraction during the investigation may include investigators inquiring with them at the outset of an investigation where and when they may prefer to interact, including over the telephone, by email or by other means of communication. Investigators should encourage a Person Affected by a Service Infraction to contact them should they require assistance.

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Summary hearing

C.3.4   A Person Affected by a Service Infraction is entitled to have their security and privacy considered by MJ Authorities throughout the SH process. The OCSH should maintain communication with a Person Affected by a Service Infraction to allow them to share any security and privacy concerns or needs they may have. A Person Affected by a Service Infraction may submit a request to the OCSH should they wish to attend the SH with a support person present. The OCSH may grant such a request taking into consideration, among other matters, whether it would facilitate the giving of evidence or would otherwise be in the interest of the proper administration of military justice. Witnesses, including a Person Affected by a Service Infraction, may also give evidence at a SH by telephone or other electronic means so long as their identity can reasonably be confirmed and they may be properly heard and questioned.^{Footnote 277}

C.3.5   A SH is usually open to the public. However, an OCSH has the discretion, in certain circumstances, to order all or part of a SH closed. One of those circumstances is when it is likely there will be information disclosed at the SH affecting a person’s privacy or security interest, including a Person Affected by a Service Infraction, and that interest outweighs the public’s interest in that information.^{Footnote 278}

C.3.6   During the SH, if a person charged with a service infraction wishes to question a Person Affected by a Service Infraction, the person charged must request permission to do so from the OCSH. The person charged must provide the OCSH with a general description of each intended line of questioning. The OCSH must, after consultation with the Person Affected by a Service Infraction, decide what lines of questioning may be asked and whether the person charged may question that person directly themselves, or indirectly (such as through their Assisting Member or the OCSH). The determination as to what lines of questioning may be asked should be based solely on whether each line of questioning is relevant to the matters to be determined in the SH.^{Footnote 279}

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C.4 Participation

C.4.1   Throughout any stage in the proceedings, a Person Affected by a Service Infraction is entitled to share their views about decisions made that could affect their information, protection and participation entitlements pursuant to the QR&O and this Policy including this Annex. Should such views be shared, MJ Authorities must consider those views.

Charge laying

C.4.2   In some instances, at the close of an investigation, a charge could be laid for either a service infraction or a service offence on the same set of facts. In those cases, the charge layer must make a determination as to whether the alleged misconduct is most appropriately dealt with as a service infraction or a service offence. In making this determination, the charge layer should seek out and consider the views of the person alleged to have had a service offence or service infraction committed against them or alleged to have suffered physical or emotional harm, property damage or economic loss as a result, with respect to the impact the alleged misconduct has had on them. This person may share their views if they so desire, and they may communicate with the charge layer in a way that is most appropriate for them.^{Footnote 280} While these views will be considered by the charge layer, the charge layer holds the ultimate discretion to determine if and what charge should be laid.

Summary hearing

C.4.3   When a service infraction is found to have been committed against a Person Affected by a Service Infraction, they will be permitted, but not required, to make a statement during the sanctioning phase. The statement may provide information on the physical or emotional harm or any property damage or economic loss suffered by the Person Affected by a Service Infraction as a result of the commission of the service infraction. The statement must not include any irrelevant information or any opinion or recommendation on the sanction, and the OCSH may disregard any such inclusions. The person found to have committed the service infraction may not ask the Person Affected by a Service Infraction any questions during this phase of the SH.

Review

C.4.4   When a RA is conducting a review and new admissible information is brought to their attention, and this information is determined by the RA to be relevant to a Person Affected by a Service Infraction’s interests, this information must be disclosed to them. The Person Affected by a Service Infraction may, but is not required, within 7 days, to make any representations they may have with respect to the new information and to provide those representations to the RA, who will then pass them on to the person found to have committed a service infraction. The person found to have committed a service infraction will then have 7 days to provide to the RA any response to the representations provided and/or any further representations.^{Footnote 281}

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C.5 Infringement or denial of entitlements

C.5.1   Every Person Affected by a Service Infraction who is of the opinion that any of their entitlements to receive information, protection and to participate in a SH in accordance with the QR&O and this Policy, including this Annex, have been infringed or denied has the right to make a report to their CoC. Any founded infringements or denials must be remedied as soon as circumstances permit. The CoC should direct any questions with respect to an alleged infringement or denial to the unit legal officer.

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