Sexual Misconduct Offences

Alternate Formats

DMP Policy Directive
Directive #: 004/00
Date: 1 March 2000
Updated:  17 May 2016
Cross Reference: Witness Interviews, Pre-Charge Screening, Responding to Victim’s Needs, Post-Charge Screening

Subject: Sexual Misconduct Offences

Application of Policy

1. This policy applies before or after charges have been laid by a person with the authority to lay a charge under the Code of Service Discipline (“CSD”) pursuant to Queen’s Regulations and Orders for the Canadian Forces (“QR&O”).

2. Any reference in this policy to "Prosecutor" or "Prosecutors" shall be deemed to refer to any officer or officers who have been authorized by the Director of Military Prosecutions (DMP) to assist or represent the DMP pursuant to section 165.15 of the National Defence Act (NDA) in preferring charges to court martial and in conducting prosecutions at courts martial.

3. Any reference in this policy to "sexual misconduct offence" shall be deemed to refer to any acts that are either sexual in nature or committed with the intent to commit an act that is sexual in nature and is an offence under the CSD.  This would include offences such as sexual assault, voyeurism and sexual harassment.1

4. Sexual assault is non-consensual touching of a sexual nature that violates the sexual integrity of the victim. It is a legal term that refers to any form of sexual contact without consent. This can include forced or unwanted kissing, touching, vaginal penetration, anal penetration, and/or oral sex.  In R v Chase,2 the Supreme Court of Canada held that sexual assault does not focus solely on the part of the body  touched. It also deals with the nature of the contact, the situation in which it occurred, the words and gestures accompanying the act, and all other circumstances surrounding the conduct, including threats, which may or may not be accompanied by force.3

5. Harassment is any improper conduct by an individual that is directed at and offensive to another person or persons in the workplace, and that the individual knew or ought reasonably to have known would cause offence or harm. It comprises any objectionable act, comment or display that demeans, belittles or causes personal humiliation or embarrassment, and any act of intimidation or threat. It includes harassment within the meaning of the Canadian Human Rights Act.4

Introduction

6. Instances of sexual misconduct strike at the heart of the most important component of the Canadian Armed Forces: its members. The personal and institutional damage that results from sexual misconduct can be acute.  Sexual misconduct almost invariably leaves both indelible traces and profound scars on victims and the institution alike—including by impairing organizational efficiency.5 Cases involving sexual offences require that particular attention be given to questions of jurisdiction and communication with victims.6  This policy addresses those issues.

Statement of Policy

7. When assigned a case that involves sexual misconduct offences, the Prosecutor shall take all necessary steps to ensure that the matter is dealt with in the most appropriate jurisdiction (military or civilian) and that the concerns of victims are solicited, considered and addressed.

8. To promote the flow of information between the Prosecutor and the victim, every effort will be made to have sexual misconduct offence cases handled by the same Prosecutor from beginning to end. As long as a positive rapport has developed with the victim, that Prosecutor should remain with the case until final disposition at trial.   Prosecutors should endeavour to ensure that sexual offences are dealt with expeditiously, mindful that delay may increase the emotional stress of vulnerable victims and may weaken their resolve or ability to effectively participate in the criminal justice process.7

Jurisdiction

9. In order to determine whether charges should proceed in the military or civilian justice system, the Prosecutor may communicate directly with civilian authorities having concurrent jurisdiction, either before or after a charge is laid. The Prosecutor shall consult with their Deputy Director of Military Prosecutions (DDMP) prior to any such communication.

10. Determining who should prosecute a sexual offence case will require careful consideration of all relevant factors including:

  1. the degree of military interest in the case, as reflected by factors such as the place where the offence was alleged to have occurred, or whether the accused was on duty at the time of the alleged offence;
  2. the degree of civilian community interest in the case;
  3. the views of the victim;
  4. whether the accused, the victim, or both are members of the CF;
  5. whether the matter was investigated by military or civilian personnel;
  6. the views of the investigative agency;
  7. geographic considerations such as the current location of necessary witnesses;
  8. jurisdictional considerations where, for example, the offence was allegedly committed outside Canada;
  9. post-conviction consequences; and
  10. the views of the Commanding Officer, as expressed through the unit legal advisor, with respect to unit disciplinary interests.

11. Where consensus is not achieved by consultation between the Prosecutor, civilian authorities and unit legal advisor, the Prosecutor shall engage the appropriate DDMP. The DDMP will continue the consultation process to resolve the matter.

The Views of the Victim Regarding Jurisdiction

12. In providing legal advice on whether or not a charge should be laid and the jurisdiction in which any charge should be heard, it is important for the Prosecutor to take into account the views of the victim of the alleged offence, particularly in cases where the alleged offence involves the violation of the victim’s personal integrity (e.g. physical, sexual, emotional).  Certain concerns expressed by the victim may be better addressed by proceeding in the military justice system but others may be better addressed by asking civilian authorities to exercise jurisdiction.

13. The Prosecutor must take into account the victim’s views on issues such as:

  1. urgency of resolution;
  2. safety concerns about possible reprisals from the suspect or others;
  3. concerns relating to conditions imposed on the suspect following release from custody;8
  4. access to victim support services;
  5. physical or mental trauma resulting from the alleged offence;
  6. physical or mental trauma resulting from participation in court proceedings; and
  7. the needs of any children or other dependants affected by the alleged offence.

14. If the Prosecutor determines that the information in the investigation report does not adequately indicate the views of the victim as described above, the Prosecutor shall follow up with the investigator and request additional information. 

15. The Prosecutor shall consult with the DDMP before a final decision is taken in any case.

16. Once jurisdiction is decided, the victim shall be informed of the decision and the associated reasoning.

17. Any determination with respect to jurisdiction shall be communicated by the Prosecutor to the affected Assistant Judge Advocate General or Deputy Judge Advocate as soon as practical.

Communication with Victims

18. The victim in a sexual misconduct offence case may well be concerned for her or his own emotional and physical safety and understandably, distrusting of others. Accordingly, sensitivity for the unique and perplexing dilemma of the victim is required throughout the investigation and court martial of these matters. Discretion requires a balanced and thoughtful approach.

19. In accordance with this policy, the Prosecutor shall:

  1. expect investigators to conduct thorough and timely investigations with sensitivity for the victim;
  2. ensure timely information is provided to the victim throughout the court martial process;
  3. maximize the safety and comfort of the victim throughout the court martial process (by keeping the victim informed and by taking any other measures appropriate in all of the circumstances);
  4. consider the views of the victim to a prosecution, and any evident impact a decision to prosecute (or not prosecute) may have on her or him; and
  5. seek sentences which reflect the prevalence, seriousness and repugnance of these service offences, among other relevant sentencing factors.

20. In cases where the alleged offence involves the violation of the victim’s personal integrity (e.g. physical, sexual, emotional), the reasons to explain a decision not to prosecute should be provided in order to maintain confidence in the administration of justice. A victim may feel aggrieved by decisions not to prosecute, or decisions to prosecute when they do not favour prosecution. Counsel should keep the victim appropriately informed of the decision.9

Witness Preparation

21. Witness preparation is a vital function of the Prosecutor with carriage of a sexual offence to be tried by court martial. The Prosecutor should attempt to provide support, encouragement and understanding; a non-judgmental attitude where the victim/witness is reluctant, but assurance that it is wise and prudent for a fearful victim to seek justice. Early in preparation for court martial, the Prosecutor should, where possible, meet with the victim in private and comfortable surroundings and:10

  1. explain the role of prosecution and defence counsel in court martial proceedings;
  2. explain the role of a witness in court;
  3. explain the disclosure process and lack of confidentiality;
  4. determine if they have reviewed their statement and if there are any inconsistencies they now identify;
  5. review inevitable lines of questioning under cross-examination;
  6. assess the victim's reliability as a witness;
  7. encourage the victim to testify truthfully to what occurred, telling the whole truth and being explicit;
  8. discuss any testimonial fears (such as tears, nausea or embarrassment);
  9. inform the victim of any release conditions imposed on the accused and determine if the victim has any concerns with the accused’s compliance with those conditions;
  10. confirm that the victim has been made aware of available community support services; and
  11. attempt to answer any questions the victim might have.11

22. The Prosecutor should inform the victim that it is possible, under section 180 of the NDA, for the Prosecutor to request from the presiding military judge that the public be excluded from the courtroom while the victim is testifying.  The Prosecutor should add, however, that the military judge is not obliged to grant such a request.  Under Queen’s Regulations & Orders (QR&O) article 112.33, the military judge has the power, depending on the charges against the accused, to grant certain accommodations to victims, witnesses under the age of 18 years, and those who are able to communicate evidence but may have difficulty doing so by reason of a mental or physical disability.  The Prosecutor should determine at the earliest stage if accommodations will be necessary for any witness.

23. Where a charge relating to certain sexual misconduct offences is before the court, the Prosecutor should request a ban on the publication of information that could identify the complainant or witness in accordance with section 486.4 of the Criminal Code.

24. The Prosecutor shall make every reasonable effort to conduct the prosecution expeditiously.

25. The Prosecutor should ensure that victims are informed of court dates and matters that potentially affect their security, including changes to release conditions.  This information-sharing function may be performed by the military police.

26. The Prosecutor should inform victims of sexual misconduct offences of proposed resolutions wherever possible, and in advance of the matter being heard in court or reported in the media.12

27. In cases of sexual misconduct offences, the Prosecutor should ensure that submissions made at sentencing hearings include information regarding the impact of the offence on the victim, and that the court is made aware of all factors relevant to the protection and safety of the victim and the public.

Counsel for the Victim

28. The prosecutor represents the Crown, not individuals such as the victim, and is obliged to disclose what is learned from the victim. In cases where the victim’s personal interest is at stake (such as requests to produce personal records), the prosecutor cannot act as counsel for the victim, but will facilitate requests for legal assistance through available means.

Availability of this Policy Statement 

29. This policy statement is a public document and is available to members of the Canadian Forces and the public.


Footnotes

1 Defence Administrative Orders and Directives 5019-5, Sexual Misconduct and Sexual Disorders, 26 September 2008.

2 [1987] 2 RCS 293. 

3 Best Practices for Investigating and Prosecuting Sexual Assault, Alberta Justice and Solicitor General - Criminal Justice Division, April 2013.

4 Defence Administrative Orders and Directives 5012-0, Harassment Prevention and Resolution, 13 October 2015.

5 Canadian Armed Forces Progress Report on Addressing Inappropriate Sexual Behaviour, Prepared for the Chief of the Defence Staff by the Chief of Military Personnel, February 1, 2016.

6 Person directly affected by the alleged conduct giving rise to one or more offences. Prosecutors are reminded that in court martial proceedings, it is proper not to refer to the complainant as a victim until such time as the court martial has made a finding of guilt, leading to the logical conclusion that the complainant is a victim of the act(s) alleged.

7 Sexual Offences – Practice Note, Nova Scotia Public Prosecution Service, February 2008. See also Vulnerable Victims and Witnesses – Adults, British Columbia Crown Counsel Policy Manual, July 2015.

8 See sections 158.2 to 159.9 of the National Defence Act which addresses conditions of release following pre-trial custody.

9 Public Prosecution Service of Canada Deskbook, Part 2.3.

10 Sexual Offences – Practice Note, Nova Scotia Public Prosecution Service, February 2008, 14-16.

11 Remember, however, that a Prosecutor must not answer a victim’s questions so as to reveal the nature of another witness’s expected evidence, or to defeat an order of the court excluding witnesses during the court martial. See in this regard DMP Policy Directive 012-00 Witness Interviews.

12 See in this regard DMP Policy Directive 008-99 Plea, Trial and Sentence Resolution Discussions.

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