Sunday, September 14, 2014

Victims' rights in the Canadian Forces

Steve Sullivan, executive director of Ottawa Victim Services, has written this iPolitics op-ed on the need to include military personnel in the proposed Victims' Bill of Rights (Bill C-36). In part:
Over the summer, Justice Minister Peter MacKay held a number of roundtables across the country to discuss the government’s justice agenda. Bill C-36, the prostitution bill, was on the agenda; the minister seemed to have forgotten to invite sex workers … or at least those opposed to the bill.
MacKay also neglected to shop his Bill C-32, the Victims’ Bill of Rights, around any military bases. Who’s surprised? Our military has a little problem with sexual violence; StatsCanada reports that one in 13 female Forces members have been sexually assaulted in connection with their service. Critics say that number is actually much higher, since many victims — fearing career reprisals — don’t report sexual assaults.
In other words, nobody needs the protection of a Victims’ Bill of Rights more than soldiers. And they’re not getting it. As reported last week, the Bill of Rights doesn’t cover CF members.
Back in April, MacKay gave his excuse: “ … (the) Victims Bill of Rights will not in fact apply to offences investigated or proceeded with under the Canadian military justice system.” He said it was “contemplated” but turned out to be “problematic” because the military’s disciplinary tribunals “are administered by the chain of command. This system carries out the vast majority of proceedings within the Canadian military justice system.”

1 comment:

  1. As it appears the Justice Minister admitted that the military penal justice system is administered and controlled by the chain of command. The Canadian Charter of Rights and Freedoms requires that the prosecution and trial of ordinary criminal law offences be initiated, carried and conducted by independent prosecutors and judges.

    In the Canadian military penal justice system the Prosecution and Defence Services are not independent and free from command pressure and influence. Indeed they fall under the supervision of the Judge Advocate General who is not a judge and who is part of the chain of command. He is legal adviser to the Chief of the Defence Staff and the Minister fo National Defence. More importantly, he is also the head of the legal chain of command.

    The Justice Minister who, in his previous appointment, was the National Defence Minister should at least take the necessary steps to ensure the independence of the Prosecution and Defence Services when the crimes charged are ordinary criminal law offences. He is both Minister of Justice and Attorney General. As Justice Minister he is the promoter of the Charter rights which require justice and fairness in the prosecution and trial of ordinary criminal law offences. As Attorney General, he is invested with the duty to ensure and implement these two Charter requirements.

    In his present capacity as Justice Minister and Attorney General the incumbent can avoid the embarrassment of being told by the Supreme Court of Canada that the military system of Prosecution and Defence System is unconstitutional. The Moriarity case actually pending before the Supreme Court may sound the knell of that component of the system just like the decisions of the Supreme Court and the Court Martial Appeal Court did with respect to the lack of independence of military judges: see R. v. Genereux (1992) 1 S.C.R. 259, R. v. Lauzon (1998) 6 C.M.A.C. 19, R. v. Dunphy, 2007 CMAC1, Leblanc v. R., 2011 CMAC 2.


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