An Act to amend the National Defence Act and to make related and consequential amendments to other Acts (S.C. 2019, c. 15)
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Assented to 2019-06-21
An Act to amend the National Defence Act and to make related and consequential amendments to other Acts
S.C. 2019, c. 15
Assented to 2019-06-21
An Act to amend the National Defence Act and to make related and consequential amendments to other Acts
SUMMARY
This enactment amends provisions of the National Defence Act governing the military justice system.
It adds a new Division, entitled “Declaration of Victims Rights”, to the Code of Service Discipline, that specifies that victims of service offences have a right to information, protection, participation and restitution in respect of service offences. It adds or amends several definitions, including “victim” and “military justice system participant”, and specifies who may act on a victim’s behalf for the purposes of that Division.
It amends Part III of that Act to, among other things,
(a) specify the purpose of the Code of Service Discipline and the fundamental purpose of imposing sanctions at summary hearings;
(b) protect the privacy and security of victims and witnesses in proceedings involving certain sexual offences;
(c) specify factors that a military judge is to take into consideration when determining whether to make an exclusion order;
(d) make testimonial aids more accessible to vulnerable witnesses;
(e) allow witnesses to testify using a pseudonym in appropriate cases;
(f) on application, make publication bans for victims under the age of 18 mandatory;
(g) in certain circumstances, require a military judge to inquire of the prosecutor if reasonable steps have been taken to inform the victims of any plea agreement entered into by the accused and the prosecutor;
(h) provide that the acknowledgment of the harm done to the victims and to the community is a sentencing objective;
(i) provide for different ways of presenting victim impact statements;
(j) allow for military impact statements and community impact statements to be considered for all service offences;
(k) provide, as a principle of sentencing, that particular attention should be given to the circumstances of Aboriginal offenders;
(l) provide for the creation, in regulations, of service infractions that can be dealt with by summary hearing;
(m) provide for a scale of sanctions in respect of service infractions and for the principles applicable to those sanctions;
(n) provide for a six-month limitation period in respect of summary hearings; and
(o) provide superior commanders, commanding officers and delegated officers with jurisdiction to conduct a summary hearing in respect of a person charged with having committed a service infraction if the person is at least one rank below the officer conducting the summary hearing.
Finally, the enactment makes related and consequential amendments to certain Acts. Most notably, it amends the Criminal Code to include military justice system participants in the class of persons against whom offences relating to intimidation of a justice system participant can be committed.
Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows:
R.S., c. N-5National Defence Act
1 The heading before section 2 of the French version of the National Defence Act is replaced by the following:
Définitions et interprétation
2 (1) The definitions service tribunal and summary trial in subsection 2(1) of the Act are repealed.
(2) The definition infraction d’ordre militaire in subsection 2(1) of the French version of the Act is replaced by the following:
- service offence
infraction d’ordre militaire Infraction — à la présente loi, au Code criminel ou à une autre loi fédérale — commise par un justiciable du code de discipline militaire. (service offence)
(3) Subsection 2(1) of the Act is amended by adding the following in alphabetical order:
- military justice
military justice means all aspects of the application of the Code of Service Discipline; (justice militaire)
- military justice system participant
military justice system participant means a person who plays a role in the administration of military justice, including
(a) the Minister,
(b) the Judge Advocate General,
(c) an officer and non-commissioned member who acts under the supervision of the Judge Advocate General,
(d) a prosecutor and counsel for an accused person,
(e) a military judge,
(f) a superior commander, a commanding officer and a delegated officer, as defined in section 162.3,
(g) a custody review officer, as defined in section 153,
(h) a member of a panel of a General Court Martial and an officer and non-commissioned member who has been appointed to be a member of a such a panel,
(i) an officer and non-commissioned member who is appointed by a commanding officer for the purpose of supporting a court martial,
(j) an officer and non-commissioned member who is authorized to lay or refer a charge,
(k) a prospective witness, a witness who has been summoned to appear and a witness who has testified,
(l) an officer and non-commissioned member referred to in paragraph (g) of the definition peace officer in section 2 of the Criminal Code,
(m) a commanding officer of a service prison or detention barrack and a person who acts under the supervision of such a commanding officer, and
(n) a person who acts under the supervision of the Chief Military Judge or the Court Martial Administrator; (personne associée au système de justice militaire)
- service infraction
service infraction means a service infraction created by regulations made by the Governor in Council; (manquement d’ordre militaire)
- summary hearing
summary hearing means a hearing conducted under section 163; (audience sommaire)
- victim
victim means an individual against whom a service offence has been committed, or is alleged to have been committed, who has suffered, or is alleged to have suffered, physical or emotional harm, property damage or economic loss as a result of the commission or alleged commission of the offence and includes, for the purposes of Division 1.1 of Part III, an individual who has suffered physical or emotional harm, property damage or economic loss as a result of the commission of a service offence against any person. (victime)
(4) Section 2 of the Act is amended by adding the following after subsection (1):
Marginal note:Acting on victim’s behalf
(1.1) Any of the following individuals may exercise a victim’s rights under Division 1.1 of Part III:
(a) if the victim is dead or is incapable, other than for operational reasons, of acting on their own behalf,
(i) the victim’s spouse or the individual who was at the time of the victim’s death their spouse,
(ii) the individual who is, or was at the time of the victim’s death, cohabiting with them in a conjugal relationship, having so cohabited for a period of at least one year,
(iii) a relative or dependant of the victim,
(iv) an individual who has in law or fact custody of, or is responsible for the care or support of, the victim, and
(v) an individual who has in law or fact custody of, or is responsible for the care or support of, a dependant of the victim; and
(b) if, for operational reasons, the victim is unable to act on their own behalf and has requested the appointment of a member of the Canadian Forces to act on their behalf, a member appointed by the Chief of the Defence Staff or any officer authorized by the Chief of Defence Staff.
Marginal note:Exception — not a victim
(1.2) An individual is not a victim in relation to a service offence, or entitled to exercise a victim’s rights under Division 1.1 of Part III, if the individual is charged with the offence, found guilty of the offence or found unfit to stand trial or not responsible on account of mental disorder in respect of the offence.
Marginal note:R.S., c. 31 (1st Supp.), s. 60 (Sch. I, s. 13)
3 Paragraph 30(4)(a) of the Act is replaced by the following:
(a) an officer or non-commissioned member has been released from the Canadian Forces or transferred from one component to another by reason of a sentence of dismissal or a finding of guilty by a court martial or any civil court, and
4 The Act is amended by adding the following after the heading of Part III:
Purpose
Marginal note:Purpose
55 (1) The purpose of the Code of Service Discipline is to maintain the discipline, efficiency and morale of the Canadian Forces.
Marginal note:Clarification
(2) For greater certainty, the behaviour of persons who are subject to the Code of Service Discipline relates to the discipline, efficiency and morale of the Canadian Forces even when those persons are not on duty, in uniform or on a defence establishment.
Marginal note:1998, c. 35, s. 20
5 (1) Paragraphs 66(1)(a) and (b) of the Act are replaced by the following:
(a) has been found not guilty by a court martial, civil court or court of a foreign state on a charge of having committed that offence; or
(b) has been found guilty by a court martial, civil court or court of a foreign state on a charge of having committed that offence.
Marginal note:R.S., c. 31 (1st Supp.), s. 45; 1998, c. 35, s. 20
(2) Subsections 66(2) and (3) of the Act are replaced by the following:
Marginal note:Exception
(2) Nothing in subsection (1) affects the validity of a new trial held under section 249 or a new trial directed by a court having jurisdiction to do so.
Marginal note:Effect of other offences admitted at previous trial
(3) A person who, under section 194, has been sentenced in respect of a service offence admitted by that person may not be tried by a court martial or civil court in respect of that offence.
6 The portion of section 70 of the Act before paragraph (a) is replaced by the following:
Marginal note:Offences not triable by courts martial
70 A court martial does not have jurisdiction to try any person charged with any of the following offences committed in Canada:
7 The Act is amended by adding the following after section 71:
DIVISION 1.1Declaration of Victims Rights
Interpretation
Marginal note:Definition of military justice system
71.01 For the purposes of this Division, military justice system means
(a) the investigation of service offences, the processes for the laying and referral of charges of service offences and their prosecution;
(b) the process for the carrying out of punishments in relation to service offences, except in respect of any service prisoners and service convicts who have been committed to a penitentiary or civil prison; and
(c) the proceedings of a court martial or a Review Board, as defined in section 197, in respect of an accused person who is found unfit to stand trial or not responsible on account of mental disorder.
Rights
Information
Marginal note:General information
71.02 Every victim has the right, on request, to information about
(a) the military justice system and the role of victims in it;
(b) the services and programs available to them as a victim; and
(c) their right to file a complaint for an infringement or denial of any of their rights under this Division.
Marginal note:Investigation and proceedings
71.03 Every victim has the right, on request, to information about
(a) the status and outcome of the investigation into the service offence; and
(b) the location of proceedings in relation to the offence, when they will take place and their progress and outcome.
Marginal note:Information about offender or accused
71.04 (1) Every victim has the right, on request, to information about
(a) the offender while they are in a service prison or detention barrack;
(b) the release of the offender from a service prison or detention barrack;
(c) hearings held for the purpose of making dispositions under any of sections 201, 202 and 202.16 and the dispositions made at those hearings; and
(d) hearings held by a Review Board under section 202.25 and the dispositions made at those hearings.
Marginal note:Disclosure of information
(2) Information may be disclosed for the purposes of paragraphs (1)(a) and (b) subject to and in accordance with regulations made by the Governor in Council.
Protection
Marginal note:Security
71.05 Every victim has the right to have their security considered by the appropriate authorities in the military justice system.
Marginal note:Protection from intimidation and retaliation
71.06 Every victim has the right to have reasonable and necessary measures taken by the appropriate authorities in the military justice system to protect the victim from intimidation and retaliation.
Marginal note:Privacy
71.07 Every victim has the right to have their privacy considered by the appropriate authorities in the military justice system.
Marginal note:Identity protection
71.08 Every victim has the right to request that their identity be protected if they are a complainant in respect of the service offence or a witness in proceedings relating to the service offence.
Marginal note:Testimonial aids
71.09 Every victim has the right to request testimonial aids when appearing as a witness in proceedings relating to the service offence.
Participation
Marginal note:Views to be considered
71.1 Every victim has the right to convey their views about decisions to be made by appropriate authorities in the military justice system that affect the victim’s rights under this Division and to have those views considered.
Marginal note:Victim impact statement
71.11 Every victim has the right to present a victim impact statement to the appropriate authorities in the military justice system and to have it considered.
Restitution
Marginal note:Restitution order
71.12 Every victim has the right to have the court martial consider making a restitution order against the offender.
Marginal note:Enforcement
71.13 Every victim in whose favour a restitution order is made has the right, if they are not paid, to have the order entered as a civil court judgment that is enforceable against the offender.
General Provisions
Marginal note:Application
71.14 (1) This Division applies in respect of a victim of a service offence in their interactions with the military justice system
(a) while the offence is being investigated or prosecuted or the charge is being referred;
(b) while the offender is serving a punishment in relation to the offence, unless the offender is a service prisoner or service convict who has been committed to a penitentiary or civil prison; and
(c) while the accused person is, in relation to the offence, under the jurisdiction of a court martial or a Review Board, as defined in section 197, if they are found unfit to stand trial or not responsible on account of mental disorder.
Marginal note:Reporting of offence
(2) For the purpose of subsection (1), if an offence is reported to the appropriate authorities in the military justice system, the investigation of the offence is deemed to begin at the time of the reporting.
Marginal note:Exercise of rights
71.15 (1) The rights of victims under this Division are to be exercised through the mechanisms provided by law.
Marginal note:Connection to Canada
(2) A victim is entitled to exercise their rights under this Division only if
(a) they are present in Canada; or
(b) they are a Canadian citizen or a permanent resident within the meaning of subsection 2(1) of the Immigration and Refugee Protection Act.
Marginal note:Victim’s liaison officer
71.16 (1) Unless he or she is of the opinion that it is not possible to do so for operational reasons, a commanding officer shall, at the request of the victim, appoint an officer or non-commissioned member, who satisfies the conditions established in regulations made by the Governor in Council, to be a liaison officer to assist the victim as provided for in subsection (3). The commanding officer shall, to the extent possible, appoint the officer or non-commissioned member who has been requested by the victim to be their liaison officer.
Marginal note:Absence or incapacity
(2) In the event of the absence or incapacity of the victim’s liaison officer, a commanding officer shall appoint another officer or non-commissioned member to replace the liaison officer during that absence or incapacity, unless it is not possible to do so for operational reasons.
Marginal note:Role of victim’s liaison officer
(3) Assistance by a victim’s liaison officer consists of
(a) explaining to the victim the manner in which service offences are charged, dealt with and tried under the Code of Service Discipline; and
(b) obtaining and transmitting to the victim information relating to a service offence that the victim has requested and to which the victim has a right under this Division.
Marginal note:Interpretation of this Division
71.17 This Division is to be construed and applied in a manner that is reasonable in the circumstances and in a manner that is not likely to
(a) interfere with the proper administration of military justice, including
(i) by causing interference with investigative discretion or by causing excessive delay in, compromising or hindering the investigation of any service offence,
(ii) by causing interference with charge laying discretion in respect of any service offence, or by causing excessive delay in, compromising or hindering the laying or referral of a charge in respect of any service offence, and
(iii) by causing interference with prosecutorial discretion or by causing excessive delay in, compromising or hindering the prosecution of any service offence;
(b) interfere with ministerial discretion in respect of any service offence;
(c) interfere with the discretion that may be exercised by any person or body authorized to release an accused person or offender into the community;
(d) endanger the life or safety of any individual; or
(e) cause injury to international relations, national defence or national security.
Marginal note:Interpretation of other Acts, regulations, etc.
71.18 To the extent that it is possible to do so, every Act of Parliament enacted — and every order, rule or regulation made under such an Act — before, on or after the day on which this Division comes into force is to be construed and applied in a manner that is compatible with the rights provided for under this Division.
Marginal note:Primacy in event of inconsistency
71.19 (1) If, after the application of sections 71.17 and 71.18, there is any inconsistency between any provision of this Division and any provision of any Act, order, rule or regulation referred to in section 71.18, the provision of this Division prevails to the extent of the inconsistency.
Marginal note:Exception — Acts, regulations, etc.
(2) Subsection (1) does not apply in respect of the Canadian Bill of Rights, the Canadian Human Rights Act, the Official Languages Act, the Access to Information Act, the Privacy Act and the Canadian Victims Bill of Rights and in respect of any orders, rules and regulations made under any of those Acts.
Marginal note:No adverse inference
71.2 No adverse inference is to be drawn against a person who is charged with a service offence from the fact that an individual has been identified as a victim in relation to the service offence.
Marginal note:Entering or remaining in Canada
71.21 Nothing in this Division is to be construed so as to permit any individual to
(a) enter Canada or remain in Canada beyond the end of the period for which they are authorized to so remain;
(b) delay any removal proceedings or prevent the enforcement of any removal order; or
(c) delay any extradition proceedings or prevent the extradition of any person to or from Canada.
Remedies
Marginal note:Complaint
71.22 (1) Every victim who is of the opinion that any of their rights under this Division have been infringed or denied by an authority within the military justice system has the right to file a complaint in accordance with regulations made by the Governor in Council.
Marginal note:Complaints mechanism
(2) Regulations made by the Governor in Council may, among other things, provide for
(a) the review of complaints involving alleged infringements or denials of rights under this Division;
(b) the power to make recommendations to remedy such infringements and denials; and
(c) the obligation to notify victims of the result of those reviews and of any recommendations that were made.
Marginal note:Status
71.23 Nothing in this Division is to be construed as granting to, or removing from, any victim, any individual acting on behalf of a victim or any victim’s liaison officer the status of a party, intervenor or observer in any proceedings.
Marginal note:No cause of action
71.24 No cause of action or right to damages arises from an infringement or denial of a right under this Division. For greater certainty, nothing in this section is to be construed as affecting any other cause of action or right to damages.
Marginal note:No appeal
71.25 No appeal lies from any decision or order solely on the grounds that a right under this Division has been infringed or denied.
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