IN THE NEWS

FRONTLINE IN THE NEWS

Jun 01, 2021

Today, the Minister of National Defence, Harjit S. Sajjan, tabled in Parliament the report on the Third Independent Review of specified provisions of the National Defence Act (NDA) and their operation. This review began in November 2020 and provides recommendations on one of the largest overhauls of the National Defence Act and Canadian military justice system in recent memory.

The review, headed by former Supreme Court of Canada Justice Morris J. Fish set out three priority areas for his recommendations:

  1. remove the present duty of those affected by sexual misconduct to report their experience to the chain of command;
  2. provide free and independent legal advice to those affected by sexual misconduct; and
  3. implement immediately the Declaration of Victims Rights provided for in Bill C-77.

Saying this is a "critical time" for the report, Minister Sajjan thanked the team of Justice Fish, for their "dedicated work on behalf of the Department of National Defence and the Canadian Armed Forces."

The Minister went on to commit the department to "work to bolster confidence in the military justice system, and by implementing the recommendations provided by Justice Fish we will be able to improve our justice system for the members of the Canadian Armed Forces. This is one of the steps we will continue to take to bring about the culture change that is needed in the Canadian Armed Forces and the Department of National Defence.”

The specified provisions that were reviewed by the Independent Review Authority include those relating to military justice (including the Code of Service Discipline), military grievances and external review of grievances, the Canadian Forces Provost Marshal and the Military Police Complaints Commission.

The Department of National Defence (DND) and the Canadian Armed Forces (CAF) accept in principle the 107 recommendations made. In the short term, implementation will begin on 36 of Justice Fish’s recommendations.

Acting Chief of the Defence Staff, Lieutenant-General Wayne Eyre has expressed his support of the initiative. “In support of our Canadian Armed Forces members’ unlimited liability in the execution of their mission, Canada must ensure that the military justice system remains aligned with contemporary social values and legal norms. The justice system will continue to be what the Supreme Court of Canada has called a full partner of the civilian justice system.”

The Department of National Defence and the Canadian Armed Forces will finalize the analysis and implementation plan of all the remaining recommendations and will provide an update to the Standing Committee on National Defence by the fall. The Department also commits to providing twice yearly a report to the Standing Committee on National Defence on the progress on implementing recommendations.

DND and CAF have committed to begin the implementation of recommendations 5, 12, 17, 18, 19, 20, 21, 22, 26, 27, 29, 35, 46, 47, 50, 70, 72, 73, 75, 78, 79, 84, 85, 86, 87, 92, 93, 94, 98, 99, 100, 101, 104, 105, 106, and 107 in the short term as additional analysis is done.

The majority of the recommendations deal with the military justice system, including the independence of military justice actors and how issues of sexual misconduct are addressed, as well as military policing and police oversight. The remainder concern military grievances and the external review of grievances.

This is the most comprehensive independent review report since the late-1990s reviews led by former Chief Justice Brian Dickson. Driving the new era of reform implicit in these recommendations will demand continued and relentless efforts. Previous Independent Review Authorities have been the late Right Honourable Antonio Lamer, retired Chief Justice of Canada (report tabled in 2003), and the Honourable Patrick LeSage, retired Chief Justice of the Ontario Superior Court of Justice (report tabled in 2012).

Presumably the Fish review would have also considered the External Review into Sexual Misconduct and Sexual Harassment in the Canadian Armed Forces completed by former Supreme Court Puisne Justice Marie Deschamps in 2015.

This Third Independent Review Report not only builds upon the findings of the previous Independent Review Reports, but also provides many comprehensive recommendations that either stand on their own or align with other departmental efforts soon to be underway.

As part of the review, Justice Fish was provided access to CAF personnel and DND employees, as well as the members and staff of the Military Grievances External Review Committee, the Military Police Complaints Commission, and the DND/CAF Ombudsman.

The Fish report follows Minister Sajjan’s recent announcement that Justice Louise Arbour is leading an Independent External Comprehensive Review into harassment and sexual misconduct in the DND/CAF. Justice Fish’s Independent Review report will enable Justice Arbour to build on the breadth and depth of research done to date related to sexual misconduct. We are committed to working with Justice Arbour to implement these recommendations as well as any recommendations that she provides as they come in to ensure that CAF members and employees at DND have a safe workplace environment.

In a DND press release, Anita Vandenbeld, Parliamentary Secretary to the Minister of National Defence, said: “Justice Fish’s insights and advice will be invaluable at this transformational time in the history of the Canadian Armed Forces and the Department of National Defence. His report complements our own efforts to resolve issues around military justice and will help focus and guide the important work we’re doing to build a more inclusive work environment and support survivors.”

“These Independent Reviews are essential to assuring the relevance and accountability of the military justice system and associated policies, procedures and practices. We will take this advice and these perspectives into account as we continue the work to create a culture of dignity and respect for every member of the Defence Team,” said Jody Thomas, Deputy Minister of National Defence.

Rear-Admiral Geneviève Bernatchez, Judge Advocate General of the Canadian Armed Forces, said “Justice Fish’s Report is welcomed, and provides an important opportunity to ensure the military justice system continues to evolve as it is brought into a new era of modernization. The military justice system is an effective and integral part of the Canadian legal framework, which the Supreme Court of Canada has recognized as a full partner of the civilian justice system. As with the civilian justice system, it must continuously strive to reflect Canadian values and support the rule of law in a free and democratic society. Through periodic independent reviews such as this one, we ensure the military justice system remains relevant in accomplishing its purpose, and one in which Canadian Armed Forces members, as well as all Canadians, can have trust and confidence.”

The Supreme Court of Canada recognized that the military justice system benefits from periodic Independent Reviews that help ensure it is rigorously scrutinized, analyzed and refined at regular intervals.

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