Canadian military moves to reimburse sexual assault complainants for legal help

By Terry Davidson

Law360 Canada (May 11, 2023, 4:28 PM EDT) -- Taking its cues from a report by a former Supreme Court justice, Canada’s military is moving forward with a plan to provide free legal help to members who suffer sexual misconduct within the ranks and civilians who experience it at the hands of personnel.

The Department of National Defence (DND) and the Canadian Armed Forces (CAF) announced May 11 the launch of the Independent Legal Assistance (ILA) program — an initiative to facilitate “free independent legal information, advice and representation, in the context of the military and criminal justice systems.”

Run by the Sexual Misconduct Support and Resource Centre (SMSRC), an independent body providing support to current and former military personnel, the program, now in its first phase, will work by reimbursing complainants for what they pay out-of-pocket for legal help.

Linda Rizzo Michelin, COO of Sexual Misconduct Support and Resource Centre

Linda Rizzo Michelin, COO of Sexual Misconduct Support and Resource Centre

“This … program will help increase access to justice for survivors of sexual violence and remove some of the barriers they face by helping people understand their rights and options,” said SMSRC chief operating officer Linda Rizzo Michelin during a media briefing. “The initial phase of the program provides financial support in the form of reimbursement of eligible legal expenses incurred by individuals related to their experience of sexual misconduct.”

Eligible expenses, said Michelin, include legal information and advice, as well as legal representation in proceedings related to criminal offences.

“The program is currently available to all serving members of the [CAF], and any other individual who experienced sexual misconduct by someone who is a member of the [CAF] at the time of the incident.”

A spokesperson with National Defence confirmed the program is also open to civilians who suffer sexual misconduct at the hands of an acting member of the military.

According to a news release, the program will provide reimbursements of eligible legal expenses incurred by people on or after April 1, 2019. Complainants, it states, can apply for reimbursement for up to four hours of legal advice or information.

“Legal fees for representation during criminal proceedings where a victim has the right to be represented by a lawyer may also be eligible for reimbursement,” it states.

The call for free legal help for military complainants was one of 48 recommendations in a report released last May by former Supreme Court justice Louise Arbour, who conducted the study to address widespread issues of sexual misconduct within the  Canadian Forces.

In her report, Arbour addressed concerns around the military’s ability to handle cases of such improprieties within its ranks.

During the media briefing, Michelin was asked about the reimbursement aspect of the new program, with one reporter noting that there could be situations where a complainant would not be able to afford the initial, up-front cost of legal help.

When asked if she sees this as a concern, Michelin hinted that this aspect of the program could change in the future.

“This reimbursement right now is to provide support for those that have incurred those legal expenses, and we continue to work to meet the needs of those individuals that require the support. … The initial phase will help us learn what the needs are from this community and help us build toward a permanent model that may include initial fees that would be provided for free independent legal assistance up-front.”

Defence Minister Anita Anand

Defence Minister Anita Anand

Later that day, Minister of National Defence Anita Anand spoke briefly with reporters about the program, which she said fulfils recommendation number 14 of the Arbour report.

“Since becoming minister, I have said that my top priority is to ensure that we have a Canadian Armed Forces where everyone who puts on a uniform can do so with the protections and the respect that they deserve when they are [serving] our country,” said Anand.

The defence minister also said that her department is continuing to work on another Arbour recommendation in removing CAF jurisdiction over certain criminal sexual offences.

“We are committed to getting this done, and, today, I can share that a federal-provincial-territorial, deputy-minister level committee has been convening to consult with provinces and territories, and to inform our path forward.”

Anand said that while her department continues to work on “a permanent solution” for that particular recommendation, “we continue to implement Madame Arbour’s interim recommendation, to transfer the investigation and prosecution of these cases to the civilian system.”

To this, Anand said that the Canadian Forces provost marshal has recently been working with the Ontario Provincial Police to “implement a means for the referral of sexual criminal offences” in that province.  

(However, Arbour has reportedly acknowledged that some police forces and associations are opposed to this particular recommendation to transfer jurisdiction.)

It was also announced that the SMSRC will be doing a national “call-out” to invite members of the wider “defence community” impacted by sexual misconduct to joint a consultation group. There will also be an expansion of SMSRC services to cadets, the Junior Canadian Rangers and family members of the military community aged 16 and up.

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