Government releases results for Third Independent Review of the National Defence Act

Above image: The last Canadians involved in the NATO training mission in Afghanistan (CCTM-A) board an American Chinook helicopter on March 12, 2014 as they leave the International Security Assistance Force (ISAF) headquarters in Kabul, Afghanistan. Photo: Cplc Patrick Blanchard. Image courtesy of Canadian Forces Combat Camera.

This week the Minister of National Defence, Harjit S. Sajjan, released the results of the Third Independent Review of the National Defence Act (NDA) and the operation.

Sajjan appointed Morris J. Fish, former Justice of the Supreme Court of Canada, as the Independent Review Authority (IRA) to conduct an Independent Review of specified provisions of the NDA in early November of 2020.

INDEPENDENT REVIEW AUTHORITY

In the report, the introduction written by Justice Fish reads, “Canada’s system of military justice is deeply rooted in the fertile medium of necessity, tradition and history.

“Of necessity, it differs in important respects from its civilian counterpart. By tradition, and as a matter of commitment, it has remained loyal to its distinct characteristics – and correspondingly resistant to external oversight, civilian influence, and proposed reforms that would impact the chain of command. As for its history, Canada’s military justice system has always been separate from our civilian system of justice and it embraces that historical fact.

“These deep roots are solidly embedded and, in some respects, stubbornly entrenched. But our military justice system must nonetheless conform with evolving social values and contemporary legal norms. It has partly for that reason been made subject by Parliament to external scrutiny, at fixed intervals, by an Independent Review Authority.1 As the Supreme Court of Canada noted in Stillman, these independent reviews facilitate the continuing evolution of our military justice system by ‘ensuring the system is rigorously scrutinized, analyzed, and refined at regular intervals.'”

REPORT RECOMMENDATIONS

The report provides recommendations on one of the largest overhauls of the National Defence Act and Canadian military justice system in recent memory, as stated in a press release.

Minister Sajjan thanked Justice Fish and his team for their hard work on behalf of the Department of National Defence (DND) and the Canadian Armed Forces (CAF). He said by implementing the recommendations, the government will have the ability to improve the justice system for CAF members.

Justice Fish set out three priority areas for his recommendations: remove the present duty of those affected by sexual misconduct to report their experience to the chain of command;
provide free and independent legal advice to those affected by sexual misconduct; and
implement immediately the Declaration of Victims Rights provided for in Bill C-77.

INSIGHTS & ADVICE VITAL

Anita Vandenbeld, parliamentary secretary to the minister of national defence, noted that these insights and advice that Fish has laid out will be vital at this time in the history of the CAF and the DND as they go through a transformational period.

“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,” she added.

This report was carried out shortly after 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 report will allow Justice Arbour to expand on the range and depth of the research that has been done related to sexual misconduct.

107 RECOMMENDATION ACCEPTED

DND and the CAF accepted the 107 recommendations made in Justice Fish’s review, though all the implementation details aren’t finalized at this particular time.

Implementation of 36 of Justice Fish’s recommendations will start in the near future. The press release informed that while this work is underway, DND and the CAF will speak with stakeholders and survivors to make sure the implementation of the recommendations are correct.

Through periodic independent reviews, Rear-Admiral Geneviève Bernatchez, Judge Advocate General of the CAF, said it ensures the military justice system remains relevant in accomplishing its purpose, and it’s a system people can trust.

“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,” he added.

Finalizing the analysis and implementation plan of all the remaining recommendations and updating the Standing Committee on National Defence should be completed by the fall. As stated in the press release, “driving the new era of reform implicit in these recommendations will demand continued and relentless efforts.”

Read more about the Third Independent Review of the National Defence Act here.

READ Independent Reviews of the National Defence Act.