Submission to the House of Commons’ Standing Committee on National Defence: Bill C-77, An Act to amend the National Defence Act and to make related and consequential amendments to other Acts

Contents

• CONTEXT

  
  The Victims Bill of Rights Act (federal VBR Act)ⁱ received Royal Assent on April 23, 2015, creating the Canadian Victims Bill of Rights (CVBR)ⁱⁱ . The legislation, which came into force on July 23, 2015, provided statutory rights at the federal level for victims of crime for the first time in Canada’s history – including the right to information, protection, participation, and to seek restitution. Under the CVBR, victims also have the right to make a complaint to a federal department or agency if they believe that their rights have not been respected.

  Victims’ rights provided for in the CVBR do not, however, apply to offences falling under the National Defence Act (“service offences”ⁱⁱⁱ ) and therefore do not apply to victims of crime in the Canadian military justice system.^iv While there are some victim-centred provisions within the National Defence Act^v and policy initiatives that have been put into place to support victims, they are limited.

  Bill C-77, An Act to amend the National Defence Act and to make related and consequential amendments to other Acts, proposes to fix that by enshrining victims’ rights in the military justice system. The bill seeks to add a new Division (Division 1.1, entitled “Declaration of Victims Rights”) to the Code of Service Discipline in Part III of the National Defence Act. Division 1.1 would create statutory rights for victims of service offences to information, protection, participation, and restitution. The biIl also proposes to provide victims of service offences the right to make a complaint should they feel that their rights under the new Declaration has been infringed or denied.

  Additionally, the bill proposes changes to court martial processes aimed at ensuring that victims of service offences can exercise their rights, such as by:

  • making testimonial aids more accessible to vulnerable witnesses;
  • allowing witnesses to testify using a pseudonym in appropriate cases;
  • authorizing military judges to make certain judicial orders such as publication bans and orders preventing an accused from personally cross-examining a victim;
  • in certain circumstances, requiring military judges to inquire of the prosecutor if reasonable steps have been taken to inform the victim of any plea agreement entered into by the accused and the prosecutor; and
  • broadening the ways in which a victim impact statement could be presented to a court martial.

  The proposed legislation also opens up space to give voice and recognition to the impacts that service offences have on others by allowing for the submission of:

  • community impact statements describing the harm done to, or loss suffered by, the community as a result of an offence; and
  • military impact statements, describing the harm done to discipline, efficiency, or morale within the Canadian Forces resulting from an offence.

• POSITION

  As Ombudsman, I firmly believe that all victims of crime, including those serving in the Canadian Armed Forces and other victims of service offences, should have access to legislated rights addressing their needs for information, participation, protection, and restitution. For nearly a decade, the OFOVC has been calling for changes that would bring those types of rights into the military justice system, and address the deep imbalances between the rights of victims and survivors in the military and civilian justice systems.

  
  

  For example, the OFOVC wrote to the former Minister of National Defence on June 4, 2015 in support of former Bill C-71^vi , An Act to amend the National Defence Act and the Criminal Code (Victims Rights in the Military Justice System Act). Similar to Bill C-77, former Bill C-71 had sought to add a Declaration of Victims Rights to the Code of Service Discipline of the National Defence Act, which would have granted victims of service offences within the military justice system statutory rights to information, protection, participation and restitution consistent with those afforded to all victims of criminal offences under the CVBR. Unfortunately, the bill, which was introduced on June 15, 2015, died on the order paper shortly thereafter when Parliament dissolved for a federal general election.

  
  

  Since that time, the OFOVC has continued to advocate for similar legislation to be tabled. On December 3, 2015, the OFOVC wrote to the Honourable Harjit Singh Sajjan, Minister of National Defence, concerning this issue. The Ombudsman received a response from Minister Sajjan on March 22, 2016, acknowledging the disparity between the rights afforded to victims of crime in the civilian criminal justice system and the military justice system. In his response, Minister Sajjan noted that this statutory gap would be a priority moving forward.

  
  

  In November 2016, the OFOVC continued to push for change in the written submission it provided to the Office of the Judge Advocate General (JAG) in the context of consultations it held with Canadians as part of its comprehensive review of the court martial system. The consultations included consideration of the special needs of particular groups who interact with the military justice system, including victims. The OFOVC’s submission, titled “Fairness for all victims: Addressing the gap in the rights of victims of crime within the Canadian military justice system”, made two recommendations. The first was to bring victims’ rights under the National Defence Act in line with those under the CVBR, and the second was that the Canadian Armed Forces ensure its internal policies, procedures and practices as they relate (or could relate) to victims of crime address victims’ needs and concerns.

  Of particular relevance to Bill C-77 is what the Office of the JAG stated in its January 2018 Draft Internal Report on the Review regarding what it had heard in relation to victims during its consultations, namely:

  “All of those who submitted on this topic felt that in a court martial system, victims should have rights at least equal to and access to resources at least as good as, those available in the civilian criminal justice system in Canada”.^vii

  Such comments reaffirm that Canadians are interested in seeing progress for victims in the military justice system, and speak to the need for Bill C-77 to be passed into law.

  I firmly support Bill C-77 as it will extend many victims’ rights that already exist in the criminal justice system into the military system and in so doing, help to address a deep imbalance. It will build on efforts taken to support victims of sexual misconduct in the Canadian Armed Forces, such as those being undertaken through Operation HONOUR, the Sexual Misconduct Response Centre as well as the Sexual Misconduct Action Response Team.

  The proposed legislation is a welcome and positive step forward, as it aims to strengthen victims’ rights within the military justice system. The rights proposed by Bill C-77 closely mirror those that exist within the CVBR, and some aspects of the proposed legislation go even further than what is in the CVBR.

  In that regard, I am pleased to see that it provides for the appointment of a Victim’s Liaison Officer, whose role would include to:

  • help the victim to understand how service offences are charged, tried, and dealt with under the Code of Service Discipline; and
  • assist the victim to obtain information that the victim requests and to which they have a right.

  We regularly hear – most recently during our 2017 national engagement on the criminal justice system review – that victims need help to navigate systems that are intimidating and too complex for people to understand on their own. Having someone there to help navigate the system can go a long way to enhancing victims’ ability to make informed choices, access their rights, and recover.

  I am also pleased to see that, in addition to changes brought under the Declaration of Victims Rights, the proposed legislation also includes provisions to address service offences motivated by prejudice or hate based on gender identity or expression. This will bring the National Defence Act in line with recent changes made to the Canadian Human Rights Act and the Criminal Code^viii and gives recognition to the serious harms and impacts of hate crimes on all of its victims.

• RECOMMENDATIONS

  While I support the bill, I also see opportunities to strengthen it to be more effective overall for victims and survivors in the military justice system. Below are some recommendations about the bill which I respectfully raise for the Committee’s consideration. These could be addressed in the bill itself in some cases, and/or where more appropriate, in the regulations that are to be developed in support of the bill.

  1. Include a preamble indicating that victims’ rights matter and how victims should expect to be treated.

  The Declaration of Rights sets out the statutory rights that victims of service offences will have in the military justice system. However, absent from the Declaration is any general preamble giving recognition to, example, the fact that service offences are harmful to victims and the broader military community, that it is important that victims’ rights be considered throughout the military justice system, and that victims deserve to – and should expect to – be treated with courtesy, compassion, respect and dignity.

  Such a preamble exists in the CVBR and with it, references the Canadian Statement of Basic Principles of Justice for Victims of Crime. The Statement, which was endorsed by Federal, Provincial and Territorial Ministers Responsible for Justice in 1988 and modernized in 2003, helps to guide the development of policies, programs, and legislation related to victims of crime.^ix It is intended to promote fair treatment of victims and states that:

  
  

  1. Victims of crime should be treated with courtesy, compassion, and respect.
  2. The privacy of victims should be considered and respected to the greatest extent possible.
  3. All reasonable measures should be taken to minimize inconvenience to victims.
  4. The safety and security of victims should be considered at all stages of the criminal justice process and appropriate measures should be taken when necessary to protect victims from intimidation and retaliation.
  5. Information should be provided to victims about the criminal justice system and the victim's role and opportunities to participate in criminal justice processes.
  6. Victims should be given information, in accordance with prevailing law, policies, and procedures, about the status of the investigation; the scheduling, progress and final outcome of the proceedings; and the status of the offender in the correctional system.
  7. Information should be provided to victims about available victim assistance services, other programs and assistance available to them, and means of obtaining financial reparation.
  8. The views, concerns and representations of victims are an important consideration in criminal justice processes and should be considered in accordance with prevailing law, policies and procedures.
  9. The needs, concerns and diversity of victims should be considered in the development and delivery of programs and services, and in related education and training.
  10. Information should be provided to victims about available options to raise their concerns when they believe that these principles have not been followed.

  
  

  While acknowledging that these principles exist in relation to the criminal justice system, a general preamble similar to that contained in the CVBR and reflecting some of the basic language included in the Statement could be adopted in Bill C-77. Doing so would help to provide an overarching framework to keep in mind with a view to ensuring that victims are treated with the courtesy, compassion, and dignity. Some of the military’s policy documents already include language that seeks to do so. For example, a Director of Military Prosecutions Policy Directive entitled Responding to Victims’ Needs^x provides as a Statement of Policy that “victims must be afforded a meaningful role in military justice proceedings so that they are protected, considered, informed, respected and heard.” Similar language could be adopted within the bill itself, so that such principles are enshrined into law alongside victims’ rights.

  
  

  2. Strengthen and clarify the role of the Victim’s Liaison Officer (VLO) and ensure that victims are proactively made aware of their right to appoint one.

  
  

  The proposed creation of the VLO is a positive step in the context of the military justice system. Adopting such as a measure would help to circumvent an often-heard critique about the CVBR – namely, that it provides victims with rights to specific types of information, but yet no clear authorities or responsibilities have been assigned for who is to provide information to victims and at what point in the criminal justice continuum.

  
  

  That said, as with any provision relating to victims’ rights, the details will be extremely important. A key point to note is that the bill indicates that the VLO will be appointed “at the request of the victim”. This presupposes that a victim – someone who is coping with the physical, emotional, psychological and/or financial impacts of a service offence – would know to ask for a VLO in the first place. The VLO’s position would be greatly strengthened by including in the bill reference to a requirement for a specific person to proactively inform all victims at the outset about the role of the VLO, and about their right to request to have one appointed. Given that the federal government has jurisdiction over all of the officials who will be involved in the military justice system, there is ultimately nothing to prevent the Government from requiring certain officials to ensure that victims are aware of their right to have a VLO appointed.

  
  

  Additionally, the OFOVC would encourage consideration of broadening the role of the VLO. Currently, the role as defined in Bill C-77 seems quite narrow. For example, section 71.16(3)(a) suggests that the officer will be responsible for “explaining” the way offences are charged and dealt with and section 71.16(3)(b) sets out the role of “obtaining and transmitting to the victim” information relating to a service offence. While being clear that the role of the VLO will not include the provision of legal advice to the victim, this section could be fortified by, at the very least, explicitly stating a requirement that the VLO also explain to the victim the rights that are available to them in the military justice system, including the right to avail oneself of a complaints mechanism and how to access that mechanism. This section could be further strengthened by explicitly stating that the VLO is also responsible for providing information to the victim to address their other general rights to information, as set out in the legislation, which include the right to information, upon request, about the role of the victim in the military justice system and about the victim supports available to them.

  
  

  This section could also clarify issues about whether the VLO would be responsible for things like conveying to other officials in the system any concerns that victims have noted to them related to the victim’s safety and security concerns, which may come to light in their interactions with the victim.

  
  

  Bill C-77 specifies that there will be conditions regarding the appointment of the liaison officers that are to be established in regulations. The OFOVC is of the view that the regulations to be promulgated with respect to this issue should fully take into account ways to ensure that liaison officers are able to provide the most helpful possible assistance to victims. The regulations could address such issues as ensuring that all victims are informed of their right to have a liaison officer appointed, ensuring that there is proper training for individuals who are to play this role – including to ensure that they are not only well versed on victims’ rights in the system but also have adequate trauma informed and victim-centred training – and ensuring that expectations of this role are well understood by all officials involved in the military justice system.

  
  

  3. Clarify roles and responsibilities for enforcing victims’ rights along the military justice continuum to ensure that victims’ rights can be accessed and enforced in a coordinated, straightforward, transparent, and timely way.

  Although Bill C-77 provides victims with statutory rights, the Declaration of Victims Rights does not assign specific responsibilities or roles in many cases. Therefore, it is unclear who will be responsible for providing support with respect to particular rights, and at what point that support is to be provided. This ambiguity in roles and responsibility can lead to victims being unware of their rights, confusion about or duplication of services.

  In its 2017-2018 annual report, the Sexual Misconduct Response Centre for the Canadian Armed Forces identified the lack of coordination and awareness across the entities providing services for victims as a challenge.^xi The Centre observed that overlapping roles and responsibilities between the victim service providers as inconsistent with their vision for “…seamless, accessible, and efficient services for affected members, due to potential for role confusion and duplication of services.”^xii

  In order to ensure that victims to be able to exercise the rights to which they will be entitled, it will first be necessary to ensure that there is clarity with regard to specific responsibilities throughout the military justice system. In the case of the CVBR, a frequently noted suggestion has been to provide for accompanying guidelines that will clearly set this out.

  4. Require implementation of a training strategy, to be established and elaborated in regulations, for officials involved in the administration of the military justice system (such as military police, prosecutors, counsel, judges, and others) who are likely to come into contact with victims.

  A key gap that is regularly raised in relation to the CVBR is that it does not explicitly include a training strategy to ensure that criminal justice system personnel likely to come into contact with victims – for example, police, Crown, corrections and court staff, as well as victim services personnel – are aware of their obligations under the CVBR and receive generalist and specialist training related to victims, including trauma- and violence-informed training.

  When it comes to the CVBR, there are complicated jurisdictional issues in the context of the administration of the criminal justice system in Canada. That is because the federal government has exclusive jurisdiction over criminal law and yet the provinces are responsible for the administration of justice in the provinces and regulate, for example, provincial court, correctional, and policing professionals. With the CVBR, the federal government could not seek to regulate matters that are under provincial authority. The federal government has instead provided support on CVBR-related training in other jurisdictions by doing things like providing funding under the Victims Fund for projects and activities that promote knowledge and support the implementation of the rights set out in the CVBR. For example, under the Victims Fund, funding has been made available to criminal justice professional organizations or associations to support the development and implementation of training for their criminal justice professional stakeholders on the Victims Bill of Rights.

  Relative to the CVBR, training could be more proactively addressed in Bill C-77. Military personnel are under the jurisdiction of the federal government and hence federally regulated. Therefore, there should not be the same issues that arise with respect to ensuring that officials are regularly trained on victims’ rights in the military justice system, and their roles and responsibilities in relation to them. It could in fact be argued that the federal administration of military justice could become a model for ensuring that professionals who come into contact with victims are trained on victims’ rights.

  This could be achieved, for example, by enshrining within the Declaration of Victims Rights a requirement for mandatory training for military justice personnel. In tandem, a training strategy would need to be developed to accompany the Declaration, in order to ensure that military justice system personnel are aware of their obligations and receive generalist and specialist training related to victims. Such training should be developed and provided in collaboration with community-based organizations, and take an intersectional approach to take into account the needs of marginalized and vulnerable groups.

  5. Designate specific officials as responsible for accepting and reviewing victim complaints, and require that an annual summary of complaints be provided.

  The OFOVC notes that Bill C-77 proposes that victims have the right to file a complaint for an infringement or denial of any of their rights and that the complaints mechanism is to provide for:

  • The review of complaints involving alleged infringements or denials of rights under Division 1.1;
  • The power to make recommendations to remedy such infringements and denials; and
  • The obligation to notify victims of the result of those reviews and of any recommendations that were made.

  While the OFOVC is encouraged that victims will have a formal process by which they are able to lodge complaints – in line with the complaints mechanisms that federal bodies must have pursuant to the CVBR – the OFOVC has heard firsthand the challenges that victims of crime face as they attempt to navigate the complaints review mechanism established in the post-CVBR context within the civilian criminal justice system. Specifically, victims have shared that they have had to repeat their lived experiences of victimization to more than one office and/or lodge multiple complaints. Such experiences can be taxing and re-traumatizing for victims and at the same time waste government resources.

  To ensure that the complaints process is as coordinated and as transparent as possible, that victims will have clear points of contact, and that any challenges with the system are noted as quickly as possible with a view to being able to resolve them, I recommend that greater clarity be provided at the outset with respect to the complaints mechanism and that there be a requirement for annual reporting.

  6. Introduce an appeal mechanism and identify an oversight body with statutory powers to review such appeals related to infringements or denials of victims’ rights to ensure the effective oversight and enforcement of victims’ rights. Additionally, the oversight body should have the power to compel bodies within the military justice system to produce information relevant to an appeal complaint as well as to recommend remedies on appeals complaints.

  The OFOVC has noted that Bill C-77 does not allow for an appeal mechanism regarding any decision or order on the grounds that a right under the Division has been infringed or denied. Victims’ rights must be enforceable in order for the military justice system to be held accountable for the rights it will be mandated to provide under the Declaration of Victims Rights.

  7. Provide for a requirement, in cases where a service offender is transferred to the civilian system, that a designated official (VLO or other, as appropriate) be required to provide victims with the option to be connected, with their consent, with a point of contact in the civil criminal justice system.

  Bill C-77 amends the CVBR to reflect the fact that victims’ rights under the CVBR will be applicable to service offenders who are subsequently transferred to the civilian system.

  Over the years, victims have expressed concerns to the OFOVC regarding the unassisted transfer of victim services from one system to another, for example, from a federal justice system to a provincial/territorial system. Because the onus is on the victim to seek out services and re-register with the province/territory, there is often a gap in the provision of information and support. Even when victims are aware of the need to re-register with a different level of government, the task may be overwhelming, and they may not be able to attend to the application process in sufficient time to be properly notified of important developments. Victims have stated that they feel there should be a more proactive approach to managing the transfer of victim services and keeping them informed.

  Most people will have very little knowledge of either the military or the civilian justice systems, or a victim’s role within them, until they have been victimized. Victims who do navigate the military justice system will likely establish a key relationship with their Victim’s Liaison officer. If the offender who harmed them is then transferred to the civilian justice system, victims will have to learn to navigate a new system, rebuilding relationships and establishing new contacts. This transition could cause great levels of stress and anxiety, which could potentially be compounded if victims feel that little thought or consideration has been given to their needs during the transition. As with any service system, even when someone does find the right provider, having to retell their story and concerns, and once again explore available options to be able to reestablish the needed protections and services is frustrating, and can cause a victim to feel overlooked.

  For all of these reasons, attention should be brought to ensuring that there is a mechanism in place to help facilitate the transition from the military to the civilian system.

  
  

  8. Require a review of progress on implementation of the legislation.

  
  

  The CVBR specifies that five years after coming into force, a committee of Parliament is to be designated or established for the purpose of reviewing the CVBR. Bill C-77 does not include requirement for a Parliamentary review of the legislation after its coming into force, nor does it include roles and responsibilities for compliance reporting and evaluation. A framework for continuous monitoring, reporting and evaluation would allow Parliament to better assess the reach and impact of the bill, as well as identify how it could be strengthened to better meet the needs of victims of crime.

  It is suggested that such a framework form an integral part of the new case management system being implemented by the JAG in response to the Auditor General’s report on the administration of justice in the Canadian Armed Forces, which was released shortly after Bill C-77 was introduced. The intent is to make it possible for cases to be monitored in real time, as well as to bring in a new performance evaluation tool to help assess how well the military justice system is working. Measuring progress against implementation of victims’ rights under Bill C-77 should be meaningfully included within these overall changes.

• CONSIDERATIONS

  Following are a few considerations that, moving forward, the OFOVC would like to see given due consideration in order to give victims’ rights in the military justice system more impact, and to help ensure that victims will have the support that they need.

  a. Promote awareness of victims’ rights throughout the military justice system and infuse a victim-centred approach throughout culture, policy and practice.

  As important as enshrining victims’ rights into law is addressing the needs and concerns of victims through policy, culture and practice by infusing a victim-centred approach throughout the military justice system. A victim-centred approach includes:

  • Treating all victims of crime with the compassion, dignity and respect they deserve.
  • Creating supportive environments where victims feel comfortable to seek the help they need.
  • Ensuring that victims have information about their options, needs and rights.
  • Prioritizing victims’ safety, protection, well-being, privacy, empowerment and rehabilitation.
  • Taking a sensitive, non-judgmental and coordinated approach to delivery of services.
  • Ensuring that victims are heard and have an opportunity to participate in the military justice system.
  • Taking into consider each victim’s unique circumstances and needs.
  • In the context of the military justice system, which requires specific protections and gives rise to unique issues for victims, ensuring as well that the entire Chain of Command remains respectful of victims, and that those who are victimized do not have to live in fear of reprisals, intimidation, or other responses that have significant and damaging impacts.

  
  

  A victim-centred approach offers significant benefits for victims and their loved ones. It allows them to feel heard, to participate in a meaningful way and promotes healing and resilience. It also reduces the potential for further harm, re-victimization and posttraumatic stress. Overall, victims feel safer and more secure and are more likely to be satisfied with the process.

  b. Provide victims with access to free legal advice during the reporting, investigation and prosecution of the service offence.

  The OFOVC believes that victims should have access to free legal representation in order to be fully informed of their participatory rights under this bill, and to be able to address the court to exercise or enforce them, should they wish to do so.

  In its Draft Internal Report on the Court Martial Comprehensive Review, the Office of the JAG noted that some contributors to its consultations “recommended that victims’ resources in the court martial system could be made even better than most civilian systems – for example, by providing victims with free legal representation in certain circumstances”.^xiii Recently, this position was also taken in an article in the Globe and Mail by Lindsay Rodman, a U.S. veteran and fellow with the Canadian Global Affairs Institute, who noted:

  “Merely mirroring what is available to civilians did not prove helpful in the United States – it was only when we went well beyond what was available to civilians in comparable situations that we started to see some progress. In the United States, having Victim Liaison Officers did not work; we had to give victims their own attorney.”^xiv

  In the United States, the Department of Defense, has created a legal support function for victims of sexual assault that provides legal advice and guidance, and maintains a victim's confidentiality. A victim can access this support whether they file a restricted report (i.e., option for adult victims of sexual assault who wish to confidentially disclose the crime to specifically identified individuals, such as sexual assault support staff or a healthcare provider, without triggering an official investigative process or notification to command) or unrestricted report (i.e., option for sexual assault victims who want an official investigation and command notification). The Army, Air Force, National Guard, and Coast Guard refer to these professionals as Special Victims’ Counsel (SVC), while the Navy and Marine Corps have labeled them Victims’ Legal Counsel (VLC).

  c. Implement a mechanism to facilitate the collection of unpaid restitution amounts owed to victims of service offences.

  
  

  The proposed legislation provides the right for victims to have the courts consider a restitution order against the offender in all cases. It also provides the right to have a restitution order entered as a civil court judgment that is enforceable against the offender if the amount owing is not paid. The onus is, however, on victims who do not receive their restitution in full to pursue the matter in civil court, which can be cost prohibitive, in addition to requiring victims to spend more time fighting to obtain money that has been ordered by a judge to be paid to them. It also means that victims continue to bear costs of the crimes committed against them. For victims of crime who have already experienced loss and trauma, the additional legal and financial burden of having to track down money owed to them as a result of a crime committed against them can simply be overwhelming and re-victimizing. This is a burden that should not fall to victims.

  Restitution is part of the offender’s sentence, and a program should be developed to support the bill providing for a collection mechanism that would alleviate the responsibility for the victim to pursue outstanding restitution payments. The OFOVC urges the Government to explore options such as a program through which the Canadian Armed Forces would pay the victim directly and bear responsibility for collecting the amounts from the offender, or a restitution recovery program through which the Canadian Armed Forces helps victims to collect court-ordered payments if the offender defaults on payment.

• CONCLUSION

  I support this bill, which would introduce a more victim-centred approach by putting in place victim-centred rights, processes and procedures and, in so doing, help to close significant and longstanding gaps in how Canada responds to and supports victims. The proposed legislation offers much-needed reforms and opportunities to improve victims’ overall experiences in the military justice system. It gives victims a greater voice, ensures that victims are protected and supported, and could increase the perceived fairness and transparency of the system for victims. I would, however, encourage the committee to consider my recommendations, which could be addressed through practical inclusions. For instance, this could include mandatory training and reporting which, if left outside of the scope of the bill, could result in a significant gap moving forward.

  
  
• ABOUT THE OFFICE OF THE FEDERAL OMBUDSMAN FOR VICTIMS OF CRIME

  
  The Office of the Federal Ombudsman for Victims of Crime helps victims to address their needs, promotes their interests and makes recommendations to the federal government on issues that affect victims. For more information visit: www.victimsfirst.gc.ca

  
  
• SUMMARY OF RECOMMENDATIONS AND CONSIDERATIONS

  RECOMMENDATIONS:

  1. Include a preamble indicating that victims’ rights matter and how victims should expect to be treated.
  
  
  2. Strengthen and clarify the role of the Victim’s Liaison Officer (VLO) and ensure that victims are proactively made aware of their right to appoint one.
  
  
  3. Clarify roles and responsibilities for enforcing victims’ rights along the military justice continuum to ensure that victims’ rights can be accessed and enforced in a coordinated, straightforward, transparent, and timely way.
  
  
  4. Require implementation of a training strategy, to be established and elaborated in regulations, for officials involved in the administration of the military justice system (such as military police, prosecutors, counsel, judges, and others) who are likely to come into contact with victims.
  
  
  5. Designate specific officials as responsible for accepting and reviewing victim complaints, and require that an annual summary of complaints be provided.
  
  
  6. Introduce an appeal mechanism and identify an oversight body with statutory powers to review such appeals related to infringements or denials of victims’ rights to ensure the effective oversight and enforcement of victims’ rights. Additionally, the oversight body should have the power to compel bodies within the military justice system to produce information relevant to an appeal complaint as well as to recommend remedies on appeals complaints.
  
  
  7. Provide for a requirement, in cases where a service offender is transferred to the civilian system, that a designated official (VLO or other, as appropriate) be required to provide victims with the option to be connected, with their consent, with a point of contact in the civil criminal justice system.
  
  
  8. Require a review of progress on implementation of the legislation.

  CONSIDERATIONS

  
  

  1. Promote awareness of victims’ rights throughout the military justice system and infuse a victim-centred approach throughout culture, policy and practice.
  
  
  2. Provide victims with access to free legal advice during the reporting, investigation and prosecution of the service offence.
  
  
  3. Implement a mechanism to facilitate the collection of unpaid restitution amounts owed to victims of service offences.

  
  
• ENDNOTES

  i Victims Bill of Rights Act (S.C. 2015, c. 13).

  ii Canadian Victims Bill of Rights (S.C. 2015, c. 13, s. 2).

  iii Service offences “can have diverse types of victims, including military members and their families, and members of the broader civilian community”; National Defence, May 10, 2018, Backgrounder: Enhancing Victims Rights in the Military Justice System.

  iv Section 18(3) of the CVBR states: “This Act does not apply in respect of offences that are service offences, as defined in subsection 2(1) of the National Defence Act that are investigated or proceeded with under that Act.”

  v These include, for example, provisions that came into effect on September 1, 2018, through the coming into force of sections of former Bill C-15, Strengthening Military Justice in the Defence of Canada Act, granting victims the right to provide an impact statement at court martial which shall be considered at sentencing, and providing a court martial the authority to impose restitution orders on offenders in cases involving damage or loss of property, or bodily or psychological harm; National Defence, May 10, 2018, Backgrounder – Sections of the Strengthening Military Justice in the Defence of Canada to come into force September 1, 2018; Government of Canada, May 2, 2018, Canada Gazette, Part II, Volume 152, No. 9: Order Fixing September 1, 20128 as the Day on which Certain Provisions of the Act Come into Force: SI/2018-36.

  vi Bill C-71, The Victims Rights in the Military Justice System Act, 2nd Sess, 41th Parl, 2015 (died on the order paper).

  vii Judge Advocate General, Draft Internal Report – Court Martial Comprehensive Review (dated July 21, 2017; publicly released January 17, 2018), Chapter 4 (section 4.3.1) Public Consultation – Summary of Results.

  viii In June 2017, the federal government enacted Bill C-16, An Act to Amend the Canadian Human Rights Act and the Criminal Code.

  ix Department of Justice Canada, Canadian Statement of Basic Principles of Justice for Victims of Crime, 2003.

  x Director of Military Prosecutions (DMP), Directive #007/99, Responding to Victims’ Needs, updated December 15, 2017.

  xi Sexual Misconduct Response Centre, Canadian Armed Forces. 2017-2018 Annual Report.

  xii Sexual Misconduct Response Centre, Canadian Armed Forces. 2017-2018 Annual Report.

  xiii Judge Advocate General, Draft Internal Report – Court Martial Comprehensive Review (dated July 21, 2017; publicly released January 17, 2018), Chapter 4 (section 4.3.1) Public Consultation – Summary of Results.

  xiv Rodman, Lindsay, “Does Canada’s bill to protect military victims go far enough” , contributed to the Globe and Mail, May 24, 2018.