Wednesday, May 29, 2019

The Standing Senate Committee on National Security and Defence has the honour to present its

TWENTY-FOURTH REPORT

Your committee, to which was referred Bill C-77, An Act to amend the National Defence Act and to make related and consequential amendments to other Acts, has, in obedience to the order of reference of Tuesday, April 30, 2019, examined the said bill and now reports the same without amendment but with certain observations, which are appended to this report.

Respectfully submitted,

Observations to the twenty-fourth report of the Standing Senate Committee on National Security and Defence (Bill C-77)

In light of this committee’s recommendations in its report of May 2019 entitled Sexual Harassment and Violence in the Canadian Armed Forces and evidence heard during its study of Bill C-77, amending the National Defence Act and other Acts, the committee makes the following observations with emphasis on the importance of regulations for implementing the intent of the Bill.

Overall, the committee’s observations are guided by conviction that military justice proceedings must be accessible and fair to all parties, and to achieve this, victims must be afforded a meaningful role in military justice proceedings so that they are protected, considered, informed, respected and heard.

1.  The government must ensure that victim liaison officers: (a) receive appropriate training in providing support to victims, including crisis support and support after trauma and violence; and (b) are independent of the accused’s chain of command, not appointed from within the accused’s unit or the unit where the alleged service offence occurred.

2.  The government must ensure that the privacy rights of victims and offenders are respected in military justice proceedings, including only appropriate information about offenders is to be disclosed, according to the regulations under new section 71.04.

3.  The government must ensure that victims are proactively informed of the rights available to them, including the opportunity to have a victim liaison officer appointed to them by their commanding officer, and afforded meaningful opportunities to invoke those rights.

4.  The government should ensure that regulations related to Victim Liaison Officers provide sufficient resources and authority for this role and consider expanding the role to be consistent with Victim Advocates in the armed forces of the United States.

5.  The government must ensure that military justice officials including military judges, prosecutors, defence counsel, and military police (including the Canadian Forces National Investigation Service) are trained in victims rights, including issues related to crisis, trauma, and violence.

6.  The government should consider identifying an oversight body to review the implementation of victims rights within the military justice system.  The government should also consider establishing an appeal mechanism for alleged infringements of victims’ rights.

7.  In creating regulations for service infractions and summary hearings, the government must ensure that due process is afforded to complainants and accused persons throughout the process.  The government must uphold its stated commitment to establishing summary hearings as a non-penal mechanism, and ensure that it minimally resembles penal proceedings.

8.  The government must ensure that those who conduct summary hearings receive training in the legal requirements of procedural fairness applicable to administrative proceedings.

9.  In establishing minor sanctions, the government must avoid any deprivation of liberty in a manner that fails to respect the principles of fundamental justice.

10.  The government should strictly limit the availability of a reduction in rank, with its long-term effects, as a sanction at summary hearing.

11. The next independent review of the National Defence Act, as per Section 273.601(2), following the coming into force of Bill C-77, and its regulations, should assess the efficacy of the Declaration of Victim’s Rights, summary hearings, and the degree to which these observations have been applied.

12. The Declaration of Victims’ Rights should be interpreted to not only apply to members of the Canadian Armed Forces, but any civilian employee or contractor who is made victim of a service offence in the course of their work for the Canadian Armed Forces or the Department of National Defence, within Canada or abroad.

13. That in establishing the regulations necessary for the implementation of Bill C-77, due consideration should be given to the recommendations of this Committee’s report, Sexual Harassment and Violence in the Canadian Armed Forces.

14.  The Committee recommends that the Government study offering free legal advice to victims in the military justice system.

15. The Committee recommends that the Government instruct the Canadian Armed Forces to monitor how victims’ rights are being met and to report on these outcomes regularly.