Support to victims and survivors is crucial to all of our efforts to modernize the military justice system.
We are committed to making progress in the timely and appropriate resolution of cases, while ensuring procedural fairness, transparency, and consistency, regardless of rank.
For example, we now require all Military Police to take trauma informed training to ensure those who come forward feel safe, heard, and protected.
We are also working with partners to expeditiously implement Justice Arbour’s interim recommendation to refer all cases of sexual assault and other criminal offences of a sexual nature under the Criminal Code to civilian authorities.
In addition, we are working to implement the 36 recommendations Justice Fish identified for action in the short term that will lay the groundwork to further modernize the military justice system, military policing, and grievance processes.
Work is also underway to analyze the full 107 recommendations in Mr. Fish’s report, and to develop a work plan for the implementation of these recommendations.
Furthermore, the Declaration of Victims’ Rights will come into force this year, and will provide victims with greater support as they navigate the military justice system.
This will include establishing a Victim’s Liaison Officer who will assist survivors in accessing their rights and will provide clarity on how offences are processed.
Key Facts
October 25, 2021: The CDS/DM signed a directive establishing the External Comprehensive Review Implementation Committee (ECRIC).
The Committee is responsible for developing and overseeing a plan to implement the recommendations from Mister Fish, Madame Arbour, and other external reviews.
The Committee is co-chaired by the Vice Chief of the Defence Staff and the Judge Advocate General.
Transfer of cases to civilian system: We are working closely with civilian police services to coordinate the transfer of cases to the civilian system.
Fish Report: 107 recommendations to support the ongoing modernization of the military justice system, military policing, and grievance process.
The current focus is toward the implementation of 36 of the 107 recommendations.
Analysis is ongoing to determine a path forward to respond to the remaining 71 recommendations.
36 recommendations identified for action in the short term call on National Defence to, among other things:
Establish working groups with other government departments and launch consultations with external stakeholders to discuss continuing the modernization of the military justice system;
Improve data collection and management related to military justice; and,
Improve member awareness of the military grievance process.
Arbour Review: Currently conducting a review of National Defence to identify the causes for the continued presence of harassment and sexual misconduct within the organization.
Madame Arbour’s final report is expected to be delivered to the Minister of National Defence in 2022.
Details
July 2021: The Military Justice Modernization Division was established within the Office of the Judge Advocate General (OJAG). Legal officers in this Division will provide dedicated legal services in support of the implementation of the military justice-related portions of the Fish and Arbour reports, as well as those of other external comprehensive reviews.
October 2021: The CDS/DM signed a directive establishing the External Comprehensive Review Implementation Committee (ECRIC), which will develop and oversee the execution of the Department’s plan to implement the recommendations from Mr. Fish and other external reviews.
Fall 2021: Standing up of the ECRIC Permanent Secretariat to support the prioritization and implementations of various external reviews recommendation, including recommendations made by Mr. Fish.
January 2022: First meeting of the ECRIC.
Mme Arbour’s Interim Recommendation:
October 20, 2021: Mme Arbour submitted an interim recommendation which built on recommendation 68 of Mister Fish’s report. This recommendation calls on National Defence to transfer sexual assault and other criminal offences of a sexual nature under the Criminal Code to civilian authorities. Madame Arbour noted these include allegations currently under investigation by the Canadian Forces National Investigations Service, unless such investigation is near completion.
November 5, 2021: The Canadian Forces Provost Marshal (CFPM) and Director of Military Prosecutions (DMP) issued a joint statement accepting Mme Arbour's interim recommendation. The CFPM has engaged with RCMP and OPP leadership.
November 24, 2021: The CFPM submitted a letter to Canadian Association of Chief of Police and delivered a brief to the Canadian Association of Chiefs of Police Executive Board.
November 2021: Military Police engaged with provincial officials and civilian police agencies within their areas of responsibility.
December 14, 2021: The CFPM issued policy direction to Military Police regarding the transfer and referral of investigations on ensuring conditions exist with civilian police of jurisdiction before transfer and referral of investigations.
The CFPM will support the Minister’s engagements with provincial/territorial authorities.
Military police continue to work toward developing protocols with civilian police to effect the transfer / referral of subject files.
January 24, 2022: The RCMP informed the CFPM that starting 31 January 2022, RCMP Divisions and Detachments that have primary jurisdiction can be contacted to initiate the transfer / referral of files (sexual assaults and other criminal offences of a sexual nature under the Criminal Code).
Military Police process regarding the transfer / referral of sexual assault and other criminal offences of a sexual nature under the Criminal Code: Ongoing investigations (transfer process)
For investigations that are currently with the Canadian Forces National Investigation Service (CFNIS), these are undergoing review and will be transferred to the civilian police of jurisdiction where concurrent jurisdiction exist and where protocols for transfer have been established.
Some files may be retained by the CFNIS if it is determined that its transfer is not appropriate, such as investigations near completion and for sexual assaults and sexual offences under the Criminal Code (CC) where there is no concurrent jurisdiction with a civilian police service.
Investigation of Service Offences
The Military Police will maintain primary jurisdiction to investigate service offences. Procedures are in place to ensure criminal offences are investigated to conclusion by the civilian police of jurisdiction prior to investigating service offences to protect the integrity of the criminal investigations.
Refusal of transfer or referral
Should the civilian police of jurisdiction decline to investigate a matter referred or transferred to them by Military Police, the CFNIS will proceed with the investigation as per Military Police policy.
Implementation of External Reports (Deschamps, Fish, Arbour)
National Defence recognizes the important work of the former Supreme Court Justices Arbour, Fish, and Deschamps, as we continue our efforts to build a healthier, safer, and more inclusive work environment.
National Defence has made progress to implement recommendations from all reviews.
For example, we are working to implement the 36 recommendations Justice Fish identified for action in the short term that will lay the groundwork to further modernize the military justice system, military policing, and grievance processes.
We are also working with partners to expeditiously implement Justice Arbour’s interim recommendation to refer all cases of sexual assault and other criminal offences of a sexual nature under the Criminal Code to civilian authorities.
I am also meeting with Justice Arbour monthly to ensure National Defence is ready to implement any further recommendations she provides on a priority basis, including to institute external oversight.
A Management Action Plan is now in place for Justice Deschamps’ report.
An independent assessment on the status of the recommendations of the Deschamps report will also be shared with Justice Arbour to assist in her review and released in the coming weeks.
National Defence looks forward to providing regular updates to Parliament on our progress to implement the recommendations from these important external reviews.
Key Facts
October 25, 2021: The CDS/DM signed a directive establishing the External Comprehensive Review Implementation Committee (ECRIC).
The Committee is responsible for developing and overseeing a plan to implement the recommendations from Mister Fish, Madame Arbour, and other external reviews.
The Committee is co-chaired by the Vice Chief of the Defence Staff and the Judge Advocate General.
Fish Report:
June 1, 2021: Minister Sajjan accepted in principle all 107 recommendations.
National Defence agreed to begin to implement 36 recommendations immediately, which call on the Department and the Canadian Armed Forces to, among other things:
Stand-up working groups with other government departments and launch consultations with external stakeholders;
Improve data collection and management related to military justice; and,
Improve member awareness of the military grievance process.
National Defence is currently studying the remaining 71 recommendations to determine a path forward for implementation.
Arbour Review:
Justice Arbour provided interim recommendations to National Defence on October 20, 2021.
Building on recommendation 68 from the Fish report, Justice Arbour recommends that National Defence transfer all sexual assaults and other criminal offences of a sexual nature under the Criminal Code to civilian authorities.
Justice Arbour will also assess progress made on the Deschamps recommendations.
Details
Independent External Comprehensive Review of the Department of National Defence and the Canadian Armed Forces (2021-2022)
In April 2021, the Minister of National Defence launched an Independent External Comprehensive Review of the Department of National Defence and the Canadian Armed Forces led by former Supreme Court Justice Louise Arbour.
The aim of the review is to, among other things:
Identify the causes for the continued presence of harassment and sexual misconduct despite efforts to eradicate it;
Identify barriers to its reporting, and assess the adequacy of the policies, procedures, and practice to respond when reports are made;
Make recommendations to eradicate sexual harassment and sexual misconduct, drive change, improve prevention measures, and reduce or remove barriers to its reporting.
Madame Arbour’s final report is scheduled to be delivered to the Minister in 2022.
Justice Arbour’s Interim Recommendations:
October 20, 2021: Justice Arbour submitted an interim recommendation which built on recommendation 68 of Justice Fish’s report. This recommendation calls on National Defence to refer all sexual assaults and other criminal offences of a sexual nature under the Criminal Code to civilian authorities. Justice Arbour noted these include allegations currently under investigation by the Canadian Forces National Investigations Service, unless such investigation is near completion.
November 5, 2021: The Canadian Forces Provost Marshal (CFPM) and Director of Military Prosecutions (DMP) issued a joint statement accepting Mme Arbour's interim recommendations. The CFPM has engaged with RCMP and OPP leadership.
November 14, 2021: The Acting Judge Advocate General and the Deputy Judge Advocate General (Military Justice Modernization) delivered a brief to Federal, Provincial and Territorial Deputy Ministers responsible for Justice and Public Safety.
November 24, 2021: The CFPM submitted a letter to Canadian Association of Chief of Police and delivered a brief to the Canadian Association of Chiefs of Police Executive Board.
November 2021: Military Police engaged with provincial officials and civilian police agencies within their areas of responsibility.
December 14, 2021: The CFPM issued policy direction to Military Police regarding the transfer and referral of investigations on ensuring conditions exist with civilian police of jurisdiction before transfer and referral of investigations.
The CFPM will support the Minister’s engagements with provincial/territorial authorities.
Military Police continue to work toward developing protocols with civilian police to effect the transfer / referral of subject files.
January 24, 2022: The RCMP informed the CFPM that starting January 31, 2022, RCMP Divisions and Detachments that have primary jurisdiction can be contacted to initiate the transfer / referral of files (sexual assaults and other criminal offences of a sexual nature under the Criminal Code).
Third Independent Review of the National Defence Act – Justice Fish’s Report (2021)
Justice Fish’s report was tabled on June 1, 2021, and contains 107 wide-ranging recommendations. The majority of them deal with the military justice system, including how issues of sexual misconduct are addressed, military policing, and police oversight. There are also recommendations related to the grievance process.
Implementing Justice Fish’s recommendations requires a whole-of-Government approach. Many of the recommendations will require significant legislative and regulatory amendments, which will take time to complete.
Other Reports
There have been multiple Parliamentary reviews / studies and produced recommendations on sexual misconduct in the Canadian Armed Forces, including by:
The House Standing Committee on the Status of Women (2021 and 2019).
The House Standing Committee on National Defence (2019).
Liberal Party of Canada members of the Committee provided recommendations to Madame Arbour in 2021.
The Senate Standing Committee on National Security and Defence (2019).
The Office of the Auditor General (2018).
External Review into Sexual Misconduct and Sexual Harassment in the Canadian Armed Forces – Deschamps Report (2015)
The survivor support consultation group, which included Department of National Defence and Canadian Armed Forces officials as well as three representatives from the military sexual misconduct class action lawsuit, prepared a report that was released by National Defence in December 2021. The report put forward 45 recommendations for supporting survivors of sexual misconduct.
ADM(RS) was engaged to perform an independent assessment on the status of the management action plans of the two external assessments on sexual misconduct and sexual harassment (the Deschamps’ 2015 External Review into Sexual Misconduct and Sexual Harassment in the Canadian Armed Forces and the 2018 Office of the Auditor General (OAG) Report on Inappropriate Sexual Behaviour in the Canadian Armed Forces). The report provides an objective assessment of the level of implementation of the Management Action Plan as of May 2021, taking into consideration the current context and recent events.
The ADM(RS) assessment is planned for release in early 2022. The report has been shared with the Independent External Comprehensive Review of National Defence and the Canadian Armed Forces mandated by the Minister, and led by former Supreme Court Justice, Justice Louise Arbour.
Bill C-77 Implementation (Declaration of Victims Rights)
I believe that reform of the military justice system is essential to better protect and support survivors and victims of misconduct.
That is why National Defence has taken deliberate steps to achieve durable reforms aimed at providing greater support and protection for victims.
One of the ways that we are doing so is through the implementation of the remaining provisions of Bill C-77, including the Declaration of Victims Rights.
Implementing the Declaration of Victims Rights will better enable the chain of command to support victims, build trust amongst Canadian Armed Forces members, and strengthen the cohesion of the Defence Team.
The Declaration of Victims Rights will be implemented this year.
Core elements of this legislation will provide concrete rights to victims and survivors of service offences, including:
A victim’s liaison officer to help navigate the military justice process;
Greater participation throughout the investigative process; and,
Enhanced protection from intimidation and retaliation.
The Declaration of Victims Rights is part of several long-lasting reforms that will contribute to a healthier, safer, and more inclusive military.
Key Facts
2019: Parliament passed Bill C-77.
House of Commons: Passed without amendment.
Senate: Passed without amendment.
Key provisions already in force:
Considering the circumstances of Indigenous offenders in the determination of the appropriate sentence and punishments;
Ensuring sentencing takes into account whether service offences were motivated by bias, prejudice, or hate based on gender identity or expression; and,
Clarifying the circumstances where a person convicted of a service offence of a minor nature and sentenced to certain punishments will not result in a criminal record.
Details
Implementation
Bill C-77 will strengthen the military justice system and further align it with the civilian criminal justice system while respecting the unique requirements of the military justice system.
The Canadian Armed Forces conducted wide stakeholder consultations to build the regulatory, policy, and training framework necessary to fully implement Bill C-77. In addition to individual victims and survivors, National Defence consulted or engaged with over 16 external organisations. National Defence also consulted or engaged with more than seven internal organizations.
The proposed regulations that are required to support Bill C-77 have now been drafted, and the process for approving the proposed regulations has commenced.
The Bill C-77 Secretariat was established in April 2021, and is composed of a small permanent staff seconded from across the Canadian Armed Forces, as well as staff reporting to the Military Personnel Command, the Chief Professional Conduct and Culture and the Canadian Forces Provost Marshal.
The Secretariat has analyzed and assessed the non-regulatory effort required to develop policies and training necessary to support implementation and published a Master Implementation Directive in October 2021.
The Secretariat is now coordinating and synchronizing the effort across multiple organizations to complete the development of the supporting policies and training.
The Secretariat is also ensuring alignment between Bill C-77 implementation initiatives and other modernization initiatives such as those made in Justice Fish’s Third Independent Review of the National Defence Act.
The Victim’s Liaison Officer role is defined in legislation and draft regulation. It is intended to provide assistance and information about victims’ rights.
When Bill C-77 comes into force this year, a policy framework to provide guidance to military justice system actors on the selection, appointment and assistance role of Victim Liaison Officers will be in place. Further consultation and policy development work will continue in the 12-18 months following.
