Ottawa overhauling military justice system to give victims a larger role

The Liberal government will overhaul the military justice system to give victims a greater say and a more active role in court proceedings.

Reforms will also effectively decriminalize some offences

Defence Minister Harjit Sajjan. His department is introducing a package of reforms to the military justice system. (Sean Kilpatrick/The Canadian Press)

The Liberal government will overhaul the military justice system to give victims a greater say and a more active role in court proceedings.

The proposed amendments to the National Defence Act and other pieces of legislation will also update the way military tribunals handle summary trials.

The CBC's Murray Brewster walks through the changes. 3:48

The changes, introduced late Thursday by Defence Minister Harjit Sajjan, will effectively decriminalize some offences.

The most notable change, however, involves a declaration of victims' rights for members of the military.

"This is the right thing to do," said Sajjan. "This will ensure victims have a voice and that their voice will be heard."

Under the existing military justice system, victims of crime have no automatic right to be kept informed by authorities about the progress of their case.

Unlike civilian courts, military trials do not permit victim impact statements.

The changes involving victims are particularly significant because the military has stepped up its prosecution of sexual offences and misconduct in recent years.

'Second-class citizens'

The changes include the establishment of victims' liaison officers and giving military judges the power to issue restraining orders.

The proposed amendments also instruct military tribunals to take into account the circumstances of Indigenous offenders when it comes to sentencing.

Some of the changes, including the right to submit a victim impact statement, will come into effect on Sept. 1.

The existing system, in the view of one military law expert, amounts to a gross violation of victims' constitutional rights.

"They've been penalized and ... treated as second-class citizens," said retired colonel Michel Drapeau.

Legislation passed a few years ago by the former Conservative government explicitly excluded courts martial from the Canadian Victims Bill of Rights.

Former justice minister Peter MacKay said at the time that the government "contemplated" making military justice subject to the bill of rights, but the idea was dropped.

It was considered "problematic," MacKay said, because the military's disciplinary tribunals are administered through the chain of command.

The Conservatives eventually changed their minds and introduced legislation to fix it in 2015, but it died when the last federal election was called.

In an interview last year with CBC News about court martial conviction rates, Col. Bruce MacGregor, the director of military prosecutions, said he wanted to see victim impact statements brought into the system. He said it would be a helpful tool in the sentencing of offenders in military courts.

Better late than never

Drapeau said he doesn't understand why it took the Liberal government so long to introduce changes, given the fact the Conservatives had a bill in the pipeline in 2015.

"It totally confuses me because there's no reason as far as I can see," he said.

There are other changes in the Trudeau government's package of reforms.

Some minor offences which, under military law, involve time in detention will be effectively decriminalized and will no longer leave the offender with a record.

There will be new sentencing rules that allow military judges to grant an absolute discharge.

The military conducts, on average, between 800 and 1,000 summary trials every year which effectively strip the accused of their constitutional rights.

During those most of those proceedings, the soldier has no right to a lawyer and there are no rules of evidence.

Depending on the charge, the accused may also be denied the right to elect impartial trial by court martial, rather than trial by commanding officer.

Retired lieutenant-colonel Rory Fowler, a former Canadian military lawyer, said changing that aspect of the military justice system will make it more fair.

"If the bill is going to introduce a right to elect court martial, regardless of offense, that's an improvement," he said.

About the Author

Murray Brewster

Defence and security

Murray Brewster is senior defence writer for CBC News, based in Ottawa. He has covered the Canadian military and foreign policy from Parliament Hill for over a decade. Among other assignments, he spent a total of 15 months on the ground covering the Afghan war for The Canadian Press. Prior to that, he covered defence issues and politics for CP in Nova Scotia for 11 years and was bureau chief for Standard Broadcast News in Ottawa.

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