Canadian victims gain new rights in military courts, they just can’t use them yet

Click to play video: 'Auditor general says military takes too long on justice cases, 10 dropped due to delays'
Auditor general says military takes too long on justice cases, 10 dropped due to delays
May 29, 2018: Canada's auditor general Michael Ferguson said their audit found the Canadian Armed Forces has taken too long in trying military justice cases, and that 10 court martial cases had to be dropped due to delays – May 29, 2018

On the federal government’s final sitting day before politicians stood to seek re-election, Canada passed into law a package of legal changes designed to boost victims’ rights in the military justice system.

Bill C-77 updated the National Defence Act and other laws in an effort at systemic reform.

WATCH: Military sexual assault victims gain new rights

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Military sexual assault victims gain new rights

The bill enshrined a Declaration of Victims’ Rights in the Code of Service Discipline, a set of rules that govern how commanders “maintain discipline, efficiency and morale in the military.”

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The bill protected people against treatment motivated by prejudice against gender identity or expression, and changed how the system treated Indigenous offenders.

The changes came just under a month before the federal government would agree to a $900 million settlement with parties who alleged sexual misconduct in the military — which Global News first reported on Thursday.

That was a civil settlement, and these are changes to military law — but the development nevertheless puts front and centre how the Canadian Armed Forces disciplines members accused of wrongdoing.

READ MORE: Feds agree to $900M settlement over military sexual misconduct class action

Some of the bill’s provisions — like protection against gender-based bias — came into effect when it passed into law.

Others — like the Declaration of Victims’ Rights — did not, and there’s no timeline as to when that might happen.

As a result, victims in military settings will now find themselves waiting on the federal bureaucracy to exercise the rights that have just been granted them, and they have no idea for how long.

Victims’ rights

Military justice settings can be challenging for civilians, said Michel Drapeau, a retired colonel and now a lawyer in Ottawa.

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“If you walk in as a victim and you go into this court and you’ve never dealt with the military before, you’re lost,” he told Global News. “You don’t understand the ranking system, you don’t understand the jargon, the hierarchy that takes place.

Bill C-77 introduced a “victim’s liaison officer” in an effort to remedy situations like this, according to a backgrounder. This liaison’s role is to ensure victims are “properly informed and positioned to access their rights.” Liaisons explain to victims how people are charged with offences under the military system. They also provide victims with information relating to a particular offence when it’s requested.

WATCH: Woman leading class-action lawsuit over alleged sexual misconduct in Armed Forces satisfied with settlement

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Woman leading class-action lawsuit over alleged sexual misconduct in Armed Forces satisfied with settlement

The federal government itself admits the military system can be “intimidating” for civilian victims. The victim’s liaison officer is just one of a number of Bill C-77 provisions that hasn’t been implemented yet.

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As a result, “if victims were to surface tomorrow, they don’t have a liaison to go to,” Drapeau said.

READ MORE: With Canada’s military justice system in limbo, cases are being dropped or reduced

The same goes for the Declaration of Victims’ Rights.

That part of the bill ensures that victims have numerous rights, like obtaining information about military justice, or the protection of their privacy and security.

The bill may have passed, but Canada’s Department of National Defence (DND) still has to develop regulations to support it and put its provisions into force, a process that could take a couple of years Drapeau said.

And he’s “anything but impressed” at the slow pace of reform for Canada’s military justice system.

“We passed a law, but the law is not quite ready,” he said.

“Nobody can give us the assurances that the regulations will be ready, say, by the 1st of September or the 1st of December.”

Rory Fowler, a retired lieutenant-colonel and now a lawyer who works with military service members, said he’d be surprised if the Department of National Defence puts the bill’s provisions into effect before the federal election in October.

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“You can’t actually have most of those statutory provisions function” until the DND comes up with the regulations, he said.

“If those aren’t enacted sometime relatively soon, when that election writ is dropped, nothing is going to happen.”

Military vs. civilian justice

Canada’s military justice regime doesn’t work in precisely the same way that the civilian criminal system does.

Before Bill C-77, military members could face justice in two ways.

A member would either face a summary trial — designed to cover more minor offences like assault and drug possession — or courts martial, aimed at tackling more serious offences like sexual assault, according to a Canadian Forces document.

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Summary trials, which allowed commanders to mete out discipline “swiftly and effectively,” weren’t overseen by judges, but by presiding officers from within an accused party’s chain of command.

Defendants in such trials didn’t have the right to counsel, but were provided with “assisting officers” who helped them prepare for hearings.

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Sexual misconduct in military remains despite crackdown

Courts martial, meanwhile, are overseen by military judges.

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There are two kinds: a general court martial, which is overseen by a judge and a panel of five Canadian Forces members, who act like a jury does in a civilian trial. These hearings usually handle the most serious cases.

There’s also a standing court martial, which has a judge alone.

While parties in civilian criminal trials can take rulings to courts of appeal, in military justice, you take your case to the Court Martial Appeal Court of Canada, where civilian judges oversee hearings.

Decisions at this level can be appealed to the Supreme Court of Canada (SCC).

Summary trials v. summary hearings

One major change to come with the legislation is “summary trial reform.”

The federal government said it is “simplifying and enhancing” military discipline by changing summary trials to summary hearings, non-criminal processes that adjudicate “service infractions” — or lesser transgressions by service members, though this term has yet to be defined in regulations.

Summary trials required a burden of proof beyond a reasonable doubt — like a criminal trial, except they weren’t overseen by trained judges, and defendants couldn’t hire their own counsel.

Summary hearings will see decisions made on the balance of probabilities, which is the standard used in lawsuits, according to the Canadian Bar Association.

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READ MORE: Canadian Armed Forces reservists to receive more compensation following pay restructuring

The change limits, essentially, the matters that will be overseen in summary hearings, and ensures that trials on serious matters aren’t decided in such proceedings.

“Improving the chain of command’s ability to address minor breaches of military discipline fairly and more rapidly will enhance the responsiveness and efficiency of the military justice system, thereby contributing to the operational effectiveness of the Canadian Armed Forces,” said the backgrounder.

Fowler described summary hearings as a “drastic” change in military justice.

“You’ve got a situation where the burden of proof is going to be drastically lowered for the chain of command, so it will be much easier for them to convict people of these ‘infractions,'” he said.

Drapeau said the change is “humongous.”

In summary trials, he said, an accused can “go to trial, doesn’t have a right to counsel, there’s no right of appeal, there is no records being taken.”

“He or she could be sentenced to detention, and have a criminal record, and all of that is done by a commanding officer untrained in law,” Drapeau added.

Members sanctioned for service infractions will face consequences such as a reprimand or a severe reprimand.

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Service people who face these sanctions will not have criminal records, the backgrounder said.

R v. Beaudry

All of these changes are being awaited as the Supreme Court of Canada (SCC) prepares to rule in the case of R. v. Beaudry, in a decision that will determine whether Canada’s entire military-justice system is constitutional.

The case concerns Cpl. Beaudry, a Canadian Armed Forces member who was convicted of sexual assault causing bodily harm in a Standing Court Martial.

Under section 130 of the National Defence Act, Criminal Code offences can be tried under military justice.

Beaudry asked to have a judge and jury in his trial, but this wasn’t allowed.

He appealed his conviction, arguing that section 130 violates his Charter right to a jury trial.

The appeal was granted; the court said section 130(1)(a) of the National Defence Act had “no force or effect as it applied to any civil offences that had maximum sentences of five years or more.”

The Supreme Court heard arguments in the case in March, but it has yet to issue its decision.

As for the federal government — a spokesman for National Defence said staff is working “diligently” on the regulations that will grant victims new rights in military courts.

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There is, however, “no set date at this point in time on when the amended regulations will be finalized.”

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