Good morning.
It is an honour for me to be here today. I would like to thank the committee for the opportunity to share my thoughts and observations on such a complex and delicate issue.
My name is Marie-Claude Gagnon. I am a former Franco-Ontarian reservist with the Canadian Navy and a survivor of sexual trauma suffered during my military service. I am the founder of the group It's Just 700, which gives men and women suffering from military-related sexual trauma to reconnect with their peers, obtain support and get information on services available to them, whether or not those services are provided by the Canadian Armed Forces, or CAF, Veterans Affairs Canada or other related organizations.
Today, I will share with you my concerns on Bill C-77, one of whose goals is to establish a military victims bill of rights that reflects the protections already in place for civilians.
I think this bill is a commendable step for the CAF, as it contributes to creating a work, learning and living environment that is safer and free from sexual violence for all its members. However, I think the way the CAF operates and what sets it apart from civilian society are two factors that may prevent military victims from having the same rights and the same protection as those afforded to their civilian counterparts.
For example, the military justice system does not work the same as the civilian justice system. There are differences in terms of investigation methods, ways to access information, services available in victim assistance such as provincial services for victims of crime, oversight and external accountability mechanisms, and even expertise and training of individuals in the different justice system.
In addition, operational requirements, the duty to report, frequent changes of personnel, frequent deployments and assignments, CAF ethics, outdated policies still in effect, the imbalance caused by the ranks' ability to create proximity in terms of living and working conditions, gender imbalance, and the need for strict discipline have an impact on military victims that separates them from civilian victims.
Today, I will highlight some of the differences I feel have a unique effect on the rights and protection of military victims. I will suggest ways to ensure that those differences are reflected in this proposed legislation. It is not an exhaustive list of all the elements I think should be improved, but rather a list of elements that are most likely to be received and modified, and that will benefit most military victims.
I am presenting these recommendations on the assumption that the military justice system will keep its jurisdiction over sexual assault crimes. I will be ready to make additional recommendations if the Supreme Court Canada determines otherwise in the near future.
My participation today must not be considered as a statement that supports the maintenance or transfer of sexual violence crimes management by the military justice system.
In relation to this effect, I would like to point out a statement made by Colonel David Antonyshyn, deputy judge advocate general with military justice in the Department of National Defence and the Canadian Armed Forces on May 28, 2018, at the Standing Senate Committee on National Security and Defence:
The victims and survivors of sexual assault and other sexual crimes may choose where they want to file a complaint. There's no obligation to deal with civilian or military police forces. The choice is up to the victim. The investigation will often be determined by the entity to which the matter is assigned. Some sexual assault cases are investigated by the Canadian Forces National Investigation Service and transferred to civilian authorities where they are adjudicated in civilian trials.
Please let it be my first and top recommendation that military victims be made aware of this choice on the bill of rights Bill C-77 and moreover, the right to assistance to be guided on how to proceed with a request to transfer a case to the civilian authorities.
My second recommendation is to add a basic set of principles similar to the preamble found in the Canadian Victims Bill of Rights. I am particularly interested in the following statements:
[V]ictims of crime and their families deserve to be treated with courtesy, compassion and respect, including respect for their dignity; [V]ictims’ rights [must] be considered throughout the criminal justice system;
There's nothing like this in the bill right now.
My third, fourth and fifth recommendations are with regard to the victim liaison officer. To substantiate these recommendations, I would like to point out one of the findings of OAG Report 5—Inappropriate Sexual Behaviour—Canadian Armed Forces, that was released on Tuesday. It was found that the required procedure to help ensure victims' needs are met was not followed in 31 of the 46 military police cases the OAG sampled. This means that victims were not always contacted to provide statements. They were not provided with the required support information package or even offered support or referral services at the start of the investigation.
I believe this gap may have been one of the reasons that a decision was made to add an assistant victim liaison officer to victims wishing more information and guidance to the justice process. However, proposed subsections 71.16(1) of the bill specify that this victim liaison service shall be provided “at the request of the victim”, that the commanding officer shall accommodate this request “to the extent possible”, and:
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.
As stated by a member of my group, victims aren't likely to know to request a victim liaison officer; therefore, my third recommendation is to remove “at the request of the victim”, in proposed subsection 71.19(1).
This ties in with my fourth recommendation about not waiving the rights of the victim liaison officer in the event of absence or incapacity, or if it is not possible to do so for operational reasons.
As stated by retired Judge Deschamps in her report, “External Review into Sexual Misconduct and Sexual Harassment in the Canadian Forces”, released in 2015:
...the unique circumstances of training, operational deployment, and career courses, may create particular conditions of vulnerability. In particular, when a member is geographically relocated, a number of factors may make him or her more vulnerable and a target of inappropriate sexual conduct. These include the loss of family or social support networks, the communal setting, and a lack of knowledge of, or trust in, the temporary chain of command.
This may be even more relevant in CAF's current efforts to deploy as per the CNAP under UN Security Council Resolution 1325. This is why I strongly believe that operational reasons should not be an excuse not to appoint a victim liaison officer.
My fifth recommendation is about the role given to the victim liaison officer and training requirements.
Having the CO or the victim designate an officer implies that these liaison officers would have no training or even skills to perform any task at all.
Lindsay Rodman is an international affairs fellow for Canada with the Council on Foreign Relations and a fellow with the Canadian Global Affairs Institute. In her article, “Does Canada's bill to protect military victims go far enough?”, she stated, “In the United States, having Victim Liaison Officers did not work; we had to give victims their own attorney.”
She even recommended similar remedies for the Canadian military court system:
The provision of lawyers to victims in the U.S. was resource-intensive, and therefore required commitment on the part of leadership. It was a gamble, and a controversial one, but it has paid dividends. C-77 is a good first step, but merely putting military victims on par with civilians may not be a strong enough signal to them that they will be protected and heard if they come forward. A bolder effort may be required if the CAF intends to truly take this problem head-on.
Regardless of the decision to provide attorneys to victims—which, in my opinion, would be ideal—or not, I don't believe the role of the victim liaison officer envisioned in this bill can, with its limited assistance capability, offset the service gap found in Tuesday's OAG report.
At the very least the victim liaison officer should be well trained in victims matters and trauma-informed service delivery. His or her role should be expanded to help victims work through the justice process; inform them about the documents that can be given on consent, stated in the bill; and help the victims obtain these documents so as not to put the whole burden on the victim; and provide information on how to access additional victim services and legal information.
Any substitution of this role should be done by someone with an agreed-upon basic knowledge, experience and training, and an absence of conflict of interest. The choice of the substitute and the reason that the VLO was not provided should be clearly documented.
My fifth recommendation is therefore to add the additional role, which I just highlighted, to the victim liaison officer section in proposed subsection 71.16(3) and ensure the training requirements are clearly stated either in the bill or in a subsequent regulation.
My sixth recommendation is to add a section on places where victims can find information on their rights.
The Office of the Federal Ombudsman for Victims of Crime provides victims with information on their rights, as well as on resources and services available to them. I don't see an equivalent option for military victims. I recommend that the bill clearly specify where a victim may find that type of information or that the information be provided in regulations.
Recommendation eight is to specify the victim-oriented training requirements for all military justice system participants.
I understand that this decision of extending the jurisdiction of summary hearings is made with the desire to ensure a swift turnaround, but military officers such as an artillery officer, a pilot or a naval officer responsible for conducting these hearings need proper guidance and training.
According to the OAG's “Report 5—lnappropriate Sexual Behaviour—Canadian Armed Forces”, training given to the chain of command was not sufficient to understand how to effectively respond to and support victims. The same report found that in 21 of the 53 cases, the file showed that the victim experienced fear, distress, discomfort, a lack of support, reprisal or blame, including from the victim's commanding officer, senior leaders, instructors, and colleagues.
I recommend adding in this bill training on victims' rights and trauma-informed response for all military justice system participants to reduce risks of aggravating a trauma, creating additional trauma or leaving a victim in an unsafe or unhealthy working and living conditions.
Extending summary hearings to less trained and less experienced personnel in a much more decentralized system covering a vast periphery comes with its own obstacles. My recommendation number nine is to define and clarify certain terms to help reduce the risks of misuse and misinterpretations of these terms.
The first is “impact statement”. ln the definition of the term “victim impact statement”, it should be specified that the statement is not to be influenced, redacted or edited by the COC, CAF or any others.
On the definition of “reasonable and necessary measures”, a further solid and clear explanation of the term “reasonable and necessary measures” should be given under the article.
A definition of “intimidation and retaliation” should be added about what constitutes intimidation and retaliation. This definition should also include a clause on adverse interference such as removal from trade, place of work, section, platoon, company, ship or unit, unless it is requested by the victim.
Out of consideration for the victim's safety and security, I would like to suggest one little change. If the court martial makes a decision that the carrying into effect of the punishment is suspended, it shall include in the decision statement how it has considered, instead of that it has considered the safety and security of every victim of the offence.
Before I conclude, I would like to raise two other points to consider.
First, a few words should be added on the support provided to military victims when their case is transferred to the civilian justice system. The transfer of cases to civilian authorities must be carefully planed to guarantee the protection of everyone's rights.
The lack of information on access to military documents and medical records, the timeline of access to military information and medical records, the differences in treatment from one province to another in terms of rape kits, the application of peace bonds, as well as the cost of transportation of key witnesses and victims from one province to another are only a few examples of obstacles military victims must overcome. Military victims should be able to count on a liaison officer who would help them navigate between the two systems, at least until they are provided with support by a provincial victim services organization.
Second, gender parity on military expert panels must be ensured. The accused generally have the right to choose between a standing court martial and a general court martial before a military judge and a panel of experts consisting of five military members. According to the CAF, court martial panels are selected at random by the court martial administrator. They serve a function akin to that of a jury in a civilian trial and must come to a unanimous decision in convictions.
As men outnumber women in the CAF, it is almost inevitable for a strong majority of men to be selected at random to make up the panel. The process could remain random, but be fine-tuned to ensure more balanced representation.
In conclusion, as explained by Lindsay Rodman, victims in military court need help to offset lack of standards to ensure they can access the same rights and protections as their civilian counterparts.
I believe my recommendations can help alleviate some of the additional burden put on military victims.
Thank you.
