Victims’ Views Matter

Accounting for the Victims’ Perspective in the Prosecutorial Process

Introduction

Instances of sexual misconduct strike at the heart of the most important component of the Canadian Armed Forces (CAF): its members. The personal and institutional damage that results from sexual misconduct can be acute. Sexual misconduct almost invariably leaves both indelible traces and profound scars on victims and the institution alike—including by impairing organizational efficiency. Cases involving sexual offences require that particular attention be given to questions of jurisdiction and communication with victims.

The Director of Military Prosecutions (DMP) is committed to ensuring that the perspective of victims is reflected in the prosecutorial decisions and, as such, has launched a comprehensive review of existing policy directives with a view to better account for victims of sexual misconduct’s needs and views throughout the prosecutorial and court martial process.

The result of this effort was twofold. First, there was a realization that this cannot be a one-time exercise. If our aim is truly to achieve the integration of the victims’ perspective into making prosecutorial decisions, a continuous and ongoing commitment is required. Second, a series of concrete changes were made to provide an immediate response to the needs of victims. The aim of this pamphlet is to better inform victims and those supporting them on these changes and what is to be expected during the court martial process.

Sexual Misconduct Offence

Any reference in the DMP Policy Directives to “sexual misconduct offence” shall be deemed to refer to any acts that are either sexual in nature or committed with the intent to commit an act that is sexual in nature and is an offence under the Code of Service Discipline (CSD) under Part III of the National Defence Act (NDA). This would include offences such as sexual assault, voyeurism and sexual harassment.

Sexual assault is non-consensual touching of a sexual nature that violates the sexual integrity of the victim. It is a legal term that refers to any form of sexual contact without consent. This can include forced or unwanted kissing, touching, vaginal penetration, anal penetration, and/or oral sex. In the decision of R v Chase, the Supreme Court of Canada held that sexual assault does not focus solely on the part of the body touched. It also deals with the nature of the contact, the situation in which it occurred, the words and gestures accompanying the act, and all other circumstances surrounding the conduct, including threats, which may or may not be accompanied by force.

Harassment is any improper conduct by an individual that is directed at and offensive to another person or persons in the workplace, and that the individual knew or ought reasonably to have known would cause offence or harm. It comprises any objectionable act, comment or display that demeans, belittles or causes personal humiliation or embarrassment, and any act of intimidation or threat. It includes harassment within the meaning of the Canadian Human Rights Act.

Statement of Policy

When assigned a case that involves sexual misconduct offences, the Prosecutor shall take all necessary steps to ensure that the matter is dealt with in the most appropriate jurisdiction (military or civilian) and that the concerns of victims are solicited, considered and addressed.

To promote the flow of information between the Prosecutor and the victim, every effort will be made to have sexual misconduct offence cases handled by the same Prosecutor from beginning to end. As long as a positive rapport has developed with the victim, that Prosecutor should remain with the case until final disposition at trial. Prosecutors should endeavour to ensure that sexual offences are dealt with expeditiously, mindful that delay may increase the emotional stress of vulnerable victims and may weaken their resolve or ability to effectively participate in the criminal justice process.

Amendments to DMP Policy Directives

The following is a list of the DMP Policy Directives that were amended as a result of the comprehensive review process. All DMP Policy Directives can be found online

• 002/99 – Pre-Charge Screening
• 003/00 – Post-Charge Review
• 004/00 – Sexual Misconduct Offences
• 007/99 – Responding to Victims’ Needs
• 008/99 – Plea, Trial and Sentence Resolution Discussions
• 012/00 – Witness Interviews

Highlights

• Choice of Jurisdiction. The views of the victim and the victim’s Commanding Officer are now formally incorporated into the list of factors that the Prosecutor must consider to determine whether charges should proceed in the military or civilian justice system. Particularly, the following issues shall be considered:
  • the urgency of achieving a resolution for the victim;
  • safety concerns about possible reprisals;
  • concerns relating to conditions imposed on the suspect following release from custody;
  • access to victim support services;
  • physical or mental trauma resulting from the alleged offence;
  • physical or mental trauma resulting from the participation in court proceedings; and
  • the needs of any children or other dependants affected by the alleged offence.
• Keeping the Victim Informed. It has been recognized that victims have a right to know about prosecutorial decisions and court proceedings that affect resolution and closure from their perspective. The victim will be informed of all decisions regarding the choice of jurisdiction, whether or not to prefer charges and of the reasons supporting those decisions. Furthermore, victims will be kept informed of court dates and matters that potentially affect their security, such as changes to release conditions. Victims will also be informed of proposed resolutions.
• Victims and the Investigation Sexual Misconduct Offences. Prosecutors are to liaise with investigators to ascertain that any investigation into a sexual misconduct offence will account for the views of the victim and that this is reflected in the investigation report. Prosecutors will also encourage the investigator to promptly inform the victim of any jurisdiction or charging decision made.
• Consideration of the Public Interest Includes Consideration of the Views of the Victim. In making charging decisions, the public interest is an important factor to consider. The public interest includes consideration of the seriousness of the offence and the mitigating and aggravating circumstances among other things, but also of the victim’s views and of the impact a decision to lay a charge may have on her or him.
• Witness Preparation. Witness preparation is a vital function of the Prosecutor with carriage of a sexual offence to be tried by court martial. The Prosecutor will attempt to provide support, encouragement and understanding; a non-judgmental attitude where the victim/witness is reluctant, but assurance that it is wise and prudent for a fearful victim to seek justice. Early in preparation for court martial, the Prosecutor should, where possible, meet with the victim in private and comfortable surroundings and:
  • explain the role of prosecution and defence counsel in court martial proceedings;
  • explain the role of a witness in court;
  • explain the disclosure process and lack of confidentiality;
  • review inevitable lines of questioning under cross-examination;
  • encourage the victim to testify truthfully to what occurred, telling the whole truth and being explicit;
  • discuss any testimonial fears (such as tears, nausea or embarrassment);
  • inform the victim of any release conditions imposed on the accused and determine if the victim has any concerns with the accused’s compliance with those conditions;
  • confirm that the victim has been made aware of available community support services; and
  • attempt to answer any questions the victim might have.
• Victims’ Comfort and Security. Prosecutors will consider the appropriateness and availability, depending on the circumstances, of resorting to any of the following comfort measures provided under the NDA and the Queen’s Regulations and Orders (QR&O):
  • the use of a screen or closed circuit television;
  • the services of a support person;
  • the use of affidavit evidence;
  • in camera proceedings;
  • an order banning publication that might identify the victim;
  • a prohibition against production to the accused of the victim’s personal records;
  • a prohibition against evidence of the victim’s prior sexual conduct; and
  • any other measure available under section 179(1)(d) of the NDA, notably those available under the Criminal Code of Canada.
• Sentencing. The Prosecutor must ensure that any submissions made at sentencing hearings include information regarding the impact of the offence on the victim, and that the court is made aware of all factors relevant to the protection and safety of the victim and the public.
• Counsel for the Victim. The prosecutor represents the Crown, not individuals such as the victim, and as such is obliged to disclose what is learned from the victim. In cases where the victim’s personal interest is at stake (such as requests to produce personal records), the prosecutor cannot act as counsel for the victim, but will facilitate requests for legal assistance through available means.

Conclusion

Victims must be afforded a meaningful role in military justice proceedings so that they are protected, considered, informed, respected and heard. The Prosecutor plays a vital role in the delicate balance between the needs and interests of the victim and the proper administration of military justice.

In all court martial proceedings, the Prosecutor shall carry out his or her duties in a manner that gives victims the opportunity for meaningful participation in the process within the parameters of law and fundamental justice. The Prosecutor must ensure early in the process a clear understanding that he or she does not represent victims as their legal advisor or act as their representative in the proceedings. The Prosecutor must, however, take every reasonable opportunity to invoke the mechanisms and procedures provided by law to engage the interests of victims in the proceedings. No formula can prescribe the manner in which this delicate balance is achieved; the principles enunciated in the DMP Policy Directives are aimed at providing guidance for application in a wide variety of specific circumstances.

DMP Website