Comprehensive Implementation Plan 2023-2028

The MND should immediately appoint an external monitor, mandated to oversee the implementation of the recommendations in this report and other external recommendations that she accepts.

The external monitor should be assisted by a small team of their choosing that is external to the Defence Team. They should have access to all documents, information, individuals, and entities that they deem relevant including ECRIC.

The external monitor should produce a "monitoring assessment and advice" report directly to the MND and publish bi-annual public reports.

The words “assigned to investigative duties with the Canadian Forces National Investigation Service” in section 107.02 of the Queen’s Regulations and Orders for the Canadian Forces should be repealed to allow all members of the military police to lay charges. (39A)

This recommendation should come into force once the Canadian Forces Provost Marshal has put in place the necessary resources, training, policy and procedures to allow all members of the military police to carry out this new function. (39B)

Members of the Canadian Armed Forces tried by summary trials and convicted of a service offence should be entitled to appeal their conviction and/or any punishment imposed to a military judge, with leave.

The punishments imposed at summary trial should be enforced notwithstanding the appeal, unless suspended by a military judge on the application of the appellant.

The appellant should be offered legal counsel from the Directorate of Defence Counsel Services for the purposes of:

1. the applications for leave and suspension of the punishments imposed at summary trial; and
2. the appeal, if leave is granted.

The working group established to identify the most effective framework for the creation of a permanent Military Court of Canada or a similarly constituted working group should identify the most effective framework for the creation of appeals from summary trials. The working group should report to the Minister of National Defence.

An exception to the duty to report incidents of sexual misconduct should be established for victims, their confidants and the health and support professionals consulted by them. Their duty to report should be retained, however, where a failure to report would pose a clear and serious risk to an overriding interest, which may include ongoing or imminent harm, harm to children and national security concerns.

A working group should be established to properly identify these exceptional cases. The working group should include an independent authority and representatives of the Sexual Misconduct Response Centre, military victims’ organizations and the military justice system. The working group should also consider

1. the removal of the duty of witnesses to report incidents of sexual misconduct; and
2. requiring witnesses to report incidents of sexual misconduct to the Sexual Misconduct Response Centre only.

The Sexual Misconduct Response Centre should be tasked with implementing a program that provides free independent legal advice to victims of sexual misconduct, including advice on whether, how and where to report, and guidance throughout judicial processes. (72A)

The civilian lawyers who will provide these services should receive adequate training in military law and the military justice system, in order to be capable of properly advising victims on all their options. (72B)

The Sexual Misconduct Response Centre should be given the mandate to monitor the adherence of the Canadian Armed Forces to sexual misconduct policies and to investigate systemic issues that have a negative impact on victims of sexual misconduct, including the Canadian Armed Forces’ accountability.

In fulfilling this mandate, the Sexual Misconduct Response Centre should have broad access to all the information it needs, including direct access to relevant databases such as the Operation HONOUR Tracking and Analysis System. The Sexual Misconduct Response Centre should report on impediments to this access in its annual report. If the Sexual Misconduct Response Centre continues to encounter difficulty accessing relevant information and data, Parliament should consider granting it the power to compel the production of evidence.

A combination of Defence Team members and external experts, led by an external education specialist, should conduct a detailed review of the benefits, disadvantages, and costs, both for the CAF and more broadly of continuing to educate ROTP cadets at the military colleges. The review should focus on the quality of education, socialization and military training in that environment. It should also consider and assess the different models for delivering university-level and military leadership training to naval/officer cadets, and determine whether the RMC Kingston and the RMC St-Jean should continue as undergraduate degree-granting institutions, or whether officer candidates should be required to attend civilian university undergraduate programs through ROTP.

In the interim, the CPCC should engage with the RMC Kingston and the RMC St-Jean authorities to address the long-standing culture concerns unique to the military college environment, including the continuing misogynistic and discriminatory environment and ongoing incidences of sexual misconduct. Progress should be measured by metrics other than the number of hours of training given to cadets. The Exit Survey of graduating cadets should be adapted to capture cadets' experiences with sexual misconduct or discrimination.

A section should be added to the PAR requiring the supervisor to certify that to their knowledge, the CAF member being apprised is not currently subject to any investigation or proceeding, whether criminal, disciplinary, administrative, or otherwise related to allegations of sexual misconduct.
If the supervisor is aware of such investigation or proceeding, they should not reveal its existence if doing so would compromise its integrity

Otherwise, the supervisor should provide all relevant details of the investigation or proceeding.

The Canadian Forces Military Police Group and Canadian Military Prosecution Service should collect, retain and centralize data on the civil offences committed by persons subject to the Code of Service Discipline charged in either the military or civilian justice systems.

The data should, at a minimum, include the number of civil offences allegedly committed by persons subject to the Code of Service Discipline which formed the basis of charges, the nature of such offences, the rationale for the determination of which system the charges were proceeded in, the time elapsed between the complaint and the completion of the trial and the outcomes of the charges, including the punishments imposed if any.

The Canadian Forces Provost Marshal and Director of Military Prosecutions should coordinate the approaches of military prosecutors and members of the military police to the exercise of military jurisdiction over civil offences committed by persons subject to the Code of Service Discipline. (18A)

The Canadian Forces Provost Marshal should also make the portions of the Military Police Group Orders on the exercise of military or civilian jurisdiction over such offences easily accessible to the public. (18B)

TI&L

44

The information prescribed by subsection 108.15(1) of the Queen’s Regulations and Orders for the Canadian Forces should be provided in electronic format in all but exceptional cases, having regard to the nature of the information and to the exigencies of the service. If the accused decides to consult military defence counsel, the Directorate of Defence Counsel Services should also be provided with a copy of, or given access to, this information. Subsection 108.17(2) of the Queen’s Regulations and Orders for the Canadian Forces should be amended to provide that the reasonable period of time given to the accused to make an election should in no case be less than 48 hours from the time the accused, the assisting officer and military defence counsel, if applicable, have been provided with a copy of, or given access to, this information.

TI&L

47

A formal Assisting Officer Certification Training should be developed and lead to a renewable certification, in much the same way as the Presiding Officer Certification Training.

The course should include practical exercises, such as moot summary trials. Each unit of the Canadian Armed Forces should establish a roster of assisting officers who have successfully completed the Assisting Officer Certification Training.

The accused should be invited to select their assisting officers from this roster. They should however maintain the right to request the appointment of other persons after having been informed of their lack of training and certification.

Efforts should nonetheless be made to offer the Assisting Officer Certification Training to non-roster appointees in all circumstances where doing so would not be inconsistent with the prompt restoration of discipline at the unit level.

The Canadian Armed Forces should ensure that assisting officers are provided with sufficient time, in light of their other duties, to adequately prepare the defence of the accused at summary trials.

TI&L

48

Presiding officers should be required to provide written reasons for their findings that a member of the Canadian Armed Forces has committed a service offence and for the punishments imposed at summary trials. Presiding officers should, as a general rule, be required to videotape or, at a minimum, to record the audio of summary trials. The recordings should be accessible to members of the Canadian Armed Forces who may request the review of summary trial proceedings and need to rely on the recordings or have them transcribed for this purpose.

TI&L

69

The regulations implementing the Declarations of Victims Rights, or their associated policies, should: (a) specify that victims are to be provided clear information about their rights under the Declaration of Victims Rights, including what information they are entitled to receive, who is responsible for providing it and when it should be provided; (b) develop a complaint mechanism that is simple, accessible, robust, and results in meaningful enforcement and accountability; and (c) include a requirement for role specific mandatory training for military justice actors on victims’ issues (including the impact of trauma and how best to interact with victims), victims’ rights and the actors’ obligations under the Declaration of Victims Rights.

TI&L

86

Members of the Canadian Armed Forces who intend to file a grievance should be required to submit a notice of intent to grieve. The notice of intent to grieve should be sent directly to the members’ commanding officers, with a copy to the local Conflict and Complaint Management Services centre. The submission of a notice of intent to grieve should suspend the time limit within which a grievance must be submitted. The modalities of the suspension and resumption of delays should be determined by the Canadian Armed Forces, in consultation with the Integrated Conflict and Complaint Management. The Queen’s Regulations and Orders for the Canadian Forces and DAOD 2017-1, Military Grievance Process should be amended accordingly.

TI&L

87

The Initial Authority should be allowed to request an extension of its time limit from the grievor. The requests should state that the grievor is not obliged to consent and may not be the subject of reprisals of any kind for refusing to do so. They should be made in writing and sent directly to the grievor, with a copy to the local Conflict and Complaints Management Services centre. If an Initial Authority has not adjudicated a grievance or requested an extension from the grievor within the time limit to consider and determine the grievance, the grievance should be deemed to have been dismissed by the Initial Authority.

TI&L

88

If the Initial Authorities fail to meet the objective and timeline determined at paragraph 13(a) of the CDS Directive for CAF Grievance System Enhancement regarding their compliance rate with the time limits prescribed by subsection 7.15(2) of the Queen’s Regulations and Orders for the Canadian Forces and section 9.8 of DAOD 2017-1, Military Grievance Process, these provisions should be amended to prescribe that an Initial Authority must consider and determine a grievance within 90 days of its receipt.

TI&L

92

The Canadian Armed Forces should examine the respective roles of assisting members and Conflict and Complaint Management Services agents to determine whether the former still serve a useful purpose in the military grievance process. If they do, a formal Assisting Member Certification Training should be developed and lead to a renewable certification. The course should include practical exercises. Each unit of the Canadian Armed Forces should establish a roster of assisting members who have successfully completed the Assisting Member Certification Training. Grievors should be invited to select their assisting members from this roster. They should, however, maintain the right to request the appointment of other persons after having been informed of their lack of training and certification. Efforts should nonetheless be made to offer the Assisting Member Certification Training to non-roster appointees where the circumstances allow it. The Canadian Armed Forces should ensure that assisting members are provided with sufficient time, in light of their other duties, to adequately assist grievors in the preparation of their grievance and throughout the process.

TI&L

96

Section 29.21 of the National Defence Act should be amended to allow the Military Grievances External Review Committee to compel the production of documents or things without the requirement to hold a hearing.

TI&L

98

The independent review process under section 273.601 of the National Defence Act should provide at least nine months to conduct the review and draft the report. This period should run from the completion of all preliminary steps to the submission of the report to the Minister of National Defence.

TI&L

100

The Department of National Defence and the Canadian Armed Forces should carry out a series of evaluations on each of the training modules: their design, the type of participation included, and the frequency and application of acquired skills and knowledge. (100A)

The results of these evaluations should be made available to future independent review authorities. (100B)

TI&L

101

Future independent review authorities should, prior to the start of the review period, be briefed on all relevant data on the performance and operation of the military justice system, the military grievance process and the regime for complaints about or by military police.

TI&L

105

There should be a review of the adequacy of resources for military justice policy development.

TI&L

106

Senior officials of the Office of the Judge Advocate General should undertake discussions with senior officials of the Department of Justice Canada to improve information sharing and collaboration on policy initiatives.

TI&L

107

The Office of the Judge Advocate General should, in cooperation with the Department of Justice Canada and the Department of Public Safety and Emergency Preparedness, review its participation in federal-provincial-territorial working groups on the justice system.

TI&L

1.1

The Defence Team, in particular the CPCC, should continue the work of compiling recommendations from previous studies, inquiries and panels.

TI&L

1.3

Progress in the implementation of recommendations should be tracked down to the unit level and collated by the CPCC.

PC

3.1

Improve education and awareness at all levels.

TI&L

3.2

Initiate dialogue on land return or compensation with First Nations communities who were affected by the seizure of land for military bases and installations.

TI&L

3.3

Build alliances with Indigenous Nations.

Div E&I

3.4

Establish long-term culturally responsive initiatives for First Nations CAF and DND members.

DT Exp

4.2

Empower the Defence Visible Minority Advisory Group and Defence Team Black Employee Network.

Div E&I

4.3

Expand the use of Gender-Based Analysis Plus (GBA Plus).

PC

4.5

Create a safe and credible environment for Black people to bring forth their complaints of racism.

TI&L

5.1

Expand cross-functional and inter-departmental cooperation between military, policing, and intelligence organizations.

DT Exp

5.2

Leverage the insights of Defence Advisory Groups and Network(s).

TI&L

5.3

Ensure reporting procedures and tools are made accessible and are well understood by all members of the Defence Team as they are the first line of defence.

DT Exp

7.2

Work with the Defence Advisory Group on Persons with Disabilities to better adapt the Defence Team's inclusive strategies, including checklists, coaching and mentoring, protocol definition, auditing guidelines, etc.

TI&L

7.3

Leaders must exercise discipline in ensuring that their communications are accessible to all.

Div E&I

7.4

Complete mobility audits for all defence infrastructure and accelerate efforts to ensure that every building is accessible.

DT Exp

9.1

The Defence Team Pride Advisory Organization should be given the opportunity to provide recommendations to address the systemic discrimination transgender members of the Defence Team suffer in their workplaces.

PC

10.1

Let CDAs be officers on their way up, not on their way out.

Div E&I

10.3

Continue a strict policy of ensuring that all Honorary positions go to members of underrepresented groups until all barriers to these appointments, unintentional or otherwise, no longer exist.

TI&L

12.1

The Defence Team must become a data-driven organization.

TI&L

12.2

Reviewing scorecards should be part of a strict protocol when visiting units and departments until representation is so evenly distributed that there is no need to give it any additional attention.

TI&L

12.3

The performance and progress of units, departments and teams should be charted so as to identify areas where additional resources may be needed.

Div E&I

8

That the apology is followed up with establishment of a Minister’s Advisory Committee on Anti- Black Racism to advise the Minister of National Defence and senior Canadian Armed Forces leadership on a concise path forward to embrace culture change.

The current definition of personal relationship should remain:

A personal relationship is an emotional, romantic, sexual, or family relationship including marriage or a common-law partnership or civil union, between two CAF members, or a CAF member and a DND employee or contractor, or member of an allied force.

The concept of "adverse personal relationship" should be abolished. All CAF members involved in a personal relationship with each other should inform their chain of command.

Commanders should be given appropriate guidance as to how to handle the situation presented to them. It could range from doing nothing, to accommodating the relationship through available measures, or, if need be, ensuring that the members have little professional interaction with each other. There are, of course, a whole range of intermediate measures that may be appropriate to address the best interests of the organization, the parties, and other stakeholders.

Should an undisclosed personal relationship come to light between members of different rank, or otherwise in a situation of power imbalance, there should be a rebuttable presumption that the relationship was not consensual. Any negative consequences should be primarily visited on the member senior in rank or otherwise in a position of power.

Criminal Code sexual offences should be removed from the jurisdiction of the CAF. They should be prosecuted exclusively in civilian criminal courts in all cases. Where the offence takes place in Canada, it should be investigated by civilian police forces at the earliest opportunity. Where the offence takes place outside of Canada, the MP may act in the first instance to safeguard evidence and commence an investigation, but should liaise with civilian law enforcement at the earliest possible opportunity. This should include:

• Sexual offences found in Part V of the Criminal Code;
• Sexual offences found in Party VII of the Criminal Code, including but not limited to sexual assaults; and
• Any "designated offence" as defined in subsections 490.011(1)(a), (c), (c.1), (d), (d.1) or (e) of the Criminal Code, to the extent not already captured above.

The CAF should equip all training schools with the best possible people and instructors. Specifically, the CAF should:

• prioritize postings to training units, especially training directed at new recruits and naval/officer cadets;
• incentivize and reward roles as CFLRS instructors, and other key instructor and training unit positions throughout the CAF, as well as the completion of instructor training, whether through pay incentives, accelerated promotions, agreement for future posting priority, or other effective means;
• address the current disincentives for these postings such as penalties, whether real or perceived, for out-of-regiment postings during promotion and posting decisions; and
• ensure appropriate screening of qualified instructors, both for competence and character.

The rules of practice and procedure of the Chief Military Judge under section 165.3 of the National Defence Act should be enacted by the Governor in Council as soon as possible. The Canadian Armed Forces and the Department of National Defence should prioritize their enactment to meet this objective. (6A)

Pending the establishment of a permanent Military Court of Canada, the Court Martial Administrator and the Judge Advocate General should consider the reforms which may be desirable to mitigate the concerns raised by the ad hoc status of courts martial in so far as possible. They should recommend the implementation of these reforms to the appropriate authorities. (6B)

Specific provisions should be enacted in the Queen’s Regulations and Orders for the Canadian Forces in respect of military prosecutors and military defence counsel. These provisions should expressly state that:

1. military prosecutors are local ministers of justice and have broader responsibilities to the military justice system and to the accused;
2. military defence counsel are advocates to their clients and have a duty of loyalty which requires them to commit fully to their clients’ cause; and
3. military prosecutors and defence counsel may need to exercise their duties in a manner that may sometimes not accord with the views of the chain of command or of the Judge Advocate General.

The Queen’s Regulations and Orders for the Canadian Forces should expressly provide that:

1. the Director of Military Prosecutions and Director of Defence Counsel Services must be informed of legal officers’ interest in being posted to their respective divisions, and consulted by the Judge Advocate General about postings;
2. legal officers will normally be posted to the Canadian Military Prosecution Service or Directorate of Defence Counsel Services for a minimum term of five years;
3. legal officers posted to the Canadian Military Prosecution Service or Directorate of Defence Counsel Services are under the exclusive command of the Director of Military Prosecutions or Director of Defence Counsel Services, as the case may be, for all purposes, including the determination of their duties, disciplinary matters against them and performance assessments.

A working group should be established to consider further reforms aimed at enhancing the independence of military prosecutors and defence counsel. The working group should include an independent authority, as well as the Judge Advocate General, the Director of Military Prosecutions and the Director of Defence Counsel Services or their representatives.

The reforms considered should, at a minimum, include:

1. the full or partial civilianization of the positions of Director of Military Prosecutions and Director of Defence Counsel Services, or military prosecutors and defence counsel more generally;
2. increased reliance by the Directorate of Defence Counsel Services on members of the Reserve Force who are legal practitioners;
3. the establishment of an Office of the Director of Defence Counsel Services as an independent unit, separate from the Office of the Judge Advocate General and not subject to its general supervision; and
4. the establishment of a distinct career path for military prosecutors and military defence counsel, potentially including special mechanisms for their promotion.

Section 18.3 of the National Defence Act should be amended to provide that the Canadian Forces Provost Marshal be appointed by the Governor in Council and hold office during pleasure. The Chief of the Defence Staff should accordingly have no authority to remove the Canadian Forces Provost Marshal.

The Canadian Forces Provost Marshal should be responsible to the Minister of National Defence in the performance of his duties and functions. References to the Vice Chief of the Defence Staff in section 18.5 of the National Defence Act should consequently be replaced by references to the Minister of National Defence. Moreover, section 18.6 of the National Defence Act should be amended to provide that the Canadian Forces Provost Marshal report annually to the Minister of National Defence on the activities of the Canadian Forces Provost Marshal and the military police during the year.

The Director of Military Prosecutions and Canadian Forces Provost Marshal should commit the Canadian Military Prosecution Service and the Canadian Forces Military Police Group to clear principles and presumptions to determine whether civil offences committed by persons subject to the Code of Service Discipline will be investigated and prosecuted in the civilian justice system or in the military justice system.

Preferably, appropriate criteria would emerge from a multilateral understanding reached between the Director of Military Prosecutions, the Director of Public Prosecutions and the provincial and territorial heads of prosecutions, in consultation with the Canadian Forces Military Police Group and civilian police forces. However, the failure to attempt or to reach a multilateral understanding should not prevent the Director of Military Prosecutions and the Canadian Forces Provost Marshal from unilaterally refining the current criteria.

A working group should be established to conduct a review of the exercise of military jurisdiction over civil offences committed by young offenders and by civilians subject to the Code of Service Discipline and of the exercise of continuing military jurisdiction. The working group should consider the need for reform of the current jurisdictional rules and, if such need exists, make recommendations on the means of reform. The working group should include an independent authority, representatives from the Department of Justice Canada and representatives from the military justice system. (21A)

In the interim, clear principles and presumptions should be formulated for such exercises of military jurisdiction. (21B)

The National Defence Act should be amended to add distinct service offences for sexual misconduct and hateful conduct. (24A)

Paragraph 129(2)(a) of the National Defence Act should be amended by excluding provisions creating service offences from its operation. (24B)

Subsection 129(2) of the National Defence Act should then be re-enacted as a distinct, self-standing service offence. The new service offence should not describe a prohibited contravention as “an act, conduct, disorder or neglect to the prejudice of good order and discipline”. (24C)

In the performance of her superintendence of the administration of military justice in the Canadian Armed Forces, the Judge Advocate General should collaborate with the Canadian Military Prosecution Service and the Directorate of Defence Counsel Services to conduct regular reviews of the service offences contained in the National Defence Act. Such reviews should aim to

1. identify obsolete or duplicative service offences;
2. assess the desirability of enacting new service offences; and
3. consider the amendments which would be necessary or desirable. The results of these reviews should be used to request the enactment by Parliament of appropriate amendments to the National Defence Act.

There should be an early opportunity for discussion between the Military Police Complaints Commission and the Canadian Forces Provost Marshal to agree on problem definition and on solutions regarding the Military Police Complaints Commission’s contention that it is regularly obliged to carry out its own investigation to fill in gaps in the Canadian Forces Provost Marshal investigation.

The option of providing authority to the Military Police Complaints Commission to remit a matter back to the Canadian Forces Provost Marshal for further investigation should be considered.

There should be an independent review of oversight and redress mechanisms for the Canadian Armed Forces.

The review should examine the operation of the Office of the Ombudsman for the Department of National Defence and the Canadian Forces, and whether additional measures are needed to reinforce its independence and effectiveness. The review should examine the experience of other democracies and best practices elsewhere in government. It should consider the roles and responsibilities of a general oversight organization in relation to subject-specific oversight organizations within the Defence portfolio.

Military judges should cease to be members of the Canadian Armed Forces, and therefore become civilian. Members of the Canadian Armed Forces appointed by the Governor in Council as military judges should, at the time of their appointment, be released from the Canadian Armed Forces and renounce their military rank.

The National Defence Act should be amended to provide that military judges are never subject to the Code of Service Discipline, and may never be charged, dealt with and tried under the Code of Service Discipline for service offences allegedly committed by them while formerly subject to the Code of Service Discipline, if applicable. Military judges’ conditions of appointment should include a requirement to act anywhere in the world, including in a theatre of operations.

Unless the context indicates otherwise, references to military judges in this Report include civilianized military judges.

A permanent Military Court of Canada should be established as a superior court of record in accordance with section 101 of the Constitution Act, 1867. The Military Court of Canada should be enabled to sit at such times and at such places in Canada and abroad as it considers necessary or desirable for the proper conduct of its business. The Minister of Justice should have responsibility for the administrative and budgetary needs of the Military Court of Canada.

In this Report, unless the context indicates otherwise, references to military judges include the judges of the Military Court of Canada, and references to courts martial include the Military Court of Canada sitting as a court martial.

Sections 72 and 128 of the National Defence Act should be amended to mirror, as appropriate, sections 21 to 24 and 463 to 465 of the Criminal Code.

Subsection 129(3) and the reference to section 72 in subsection 129(2) of the National Defence Act should be repealed.

The rules of the National Defence Act on the identification of parties to offences as well as attempts and conspiracies to commit offences should not apply to service offences under subsections 130(1) or 132(1) of the National Defence Act.

Subsection 129(5) of the National Defence Act should be amended to provide that “[n]o person may be charged under this section with any offence for which special provision is made in sections 73 to 128, 130 or 132”, without further caveat.

Subsection 129(6) of the National Defence Act should accordingly be repealed.

A subsection should be added to section 137 of the National Defence Act. It should provide that a person charged with a service offence other than an offence under subsections 130(1) or 132(1) may, if neither the complete commission of the offence nor an attempt to commit the offence are proved, be found guilty of an offence under subsection 129(1) provided that the evidence establish an act, conduct, disorder or neglect to the prejudice of good order and discipline.

Subsection 155(3) of the National Defence Act should be replaced by a provision allowing officers or non-commissioned members of the Canadian Armed Forces, in the circumstances stated below, to arrest without warrant any person who is subject to the Code of Service Discipline, other than an officer or non-commissioned member, or any person who was subject to the Code of Service Discipline at the time of the alleged commission by that person of a service offence. This power to arrest without warrant should only exist where someone

1. is found committing a serious offence; or
2. is believed on reasonable grounds to have committed a service offence, and is escaping from and freshly pursued by anyone who has lawful authority to make an arrest.

The National Defence Act or the Queen’s Regulations and Orders for the Canadian Forces, as appropriate, should be amended to allow increased use of technology to facilitate remote attendance by any person in court martial proceedings, and to repeal provisions which unduly restrict its use, including subsections 112.64(1) and 112.65(1) of the Queen’s Regulations and Orders for the Canadian Forces.

In the performance of her superintendence of the administration of military justice in the Canadian Forces, the Judge Advocate General should collaborate with the Office of the Chief Military Judge, the Canadian Military Prosecution Service and the Directorate of Defence Counsel Services to identify the desirable amendments.

Subsections 167(4) and 167(5) of the National Defence Act should be amended to provide that, as a general rule, if the accused is of or above the rank of colonel, the members of the panel must be officers of or above the rank of the accused person.

If there is an insufficient number of eligible active officers, or if objections are allowed in respect of those who exist, the panel should be completed by retired officers of the Canadian Armed Forces having held the requisite ranks at the time of their retirement.

If there is also an insufficient number of eligible retired officers, or if objections are allowed in respect of those who exist, the panel should exceptionally be completed by active officers of the Canadian Armed Forces as little subordinate in rank to the accused as possible.

Section 167 of the National Defence Act should be amended to provide for the composition of the general court martial where joint accused are of different ranks.

The Judge Advocate General should identify the panel composition rules which will allow joint trials and assure due regard for the rights of each accused.

In addition to their current rights of appeal, accused persons in court martial proceedings should have the right to appeal, with leave of the Court Martial Appeal Court of Canada or a judge thereof, any finding of guilty on

1. any ground of appeal that involves a question of fact; or
2. any ground of appeal that appears to the Court Martial Appeal Court of Canada to be a sufficient ground of appeal. The National Defence Act should be amended accordingly.

The National Defence Act should be amended to provide that the Minister, or counsel instructed by him for that purpose, has the right to appeal to the Court Martial Appeal Court of Canada in respect of any finding of not guilty at a court martial

1. on any ground of appeal that involves a question of law alone; or
2. on any ground of appeal that involves a question of mixed law and fact, with leave of the Court Martial Appeal Court of Canada or a judge thereof.

The Declaration of Victims Rights should be brought into force as soon as possible, ensuring that victims investigated or prosecuted under the National Defence Act will be entitled to substantially the same protections as the Canadian Victims Bill of Rights affords. (68A)

Until the Declaration of Victims Rights comes into force, and unless the victim consents:

1. sexual assaults should not be investigated or prosecuted under the National Defence Act and should instead be referred to civilian authorities; and (68B)
2. there should also be a strong presumption against investigating and prosecuting under the National Defence Act other offences committed against a victim. (68C)

Moreover, the National Defence Act should be amended to expressly incorporate, in substance, the rights and protections afforded by the Criminal Code to victims and to persons accused of sexual offences. (68D)

There should be discussions between the Military Police Complaints Commission, the Canadian Forces Provost Marshal, the Judge Advocate General and the Director of Military Prosecutions with a view to reaching agreement on the circumstances when the Military Police Complaints Commission should be given access to solicitor-client privileged information, with appropriate limits and safeguards to avoid waiver of the privilege.

The discussions should examine options for consequential amendments to the National Defence Act. Due consideration should be given to other regimes that compel the disclosure of solicitor-client privileged information and to the safeguards they contain. Outside experts should be engaged in the discussions.

The National Defence Act should be amended to establish a 90- day time limit for the production of the notice of action, subject to extension by the Chairperson of the Military Police Complaints Commission. In the absence of a notice of action or application to extend within this time frame, the Military Police Complaints Commission should be authorized to proceed to issue its final report.

If Recommendation #13 is implemented and the Canadian Forces Provost Marshal becomes responsible to the Minister of National Defence in the performance of his duties and functions, the Minister and not the Chief of the Defence Staff should issue the notice of action where the Canadian Forces Provost Marshal is the subject of a complaint.