Bill C-71 (Historical)

Victims Rights in the Military Justice System Act

An Act to amend the National Defence Act and the Criminal Code

This enactment amends provisions of the National Defence Act governing the military justice system.
It adds a new Division entitled “Declaration of Victims Rights”, to the Code of Service Discipline, that specifies that victims of service offences have rights to information, protection, participation and restitution in respect of service offences. It adds or amends several definitions, including “victim” and “military justice system participant”, and specifies who may act on a victim’s behalf for the purposes of that Division.
It amends Part III of that Act to, among other things,
(a) specify the purpose of the Code of Service Discipline and the fundamental purpose of imposing sanctions at summary trials;
(b) protect the privacy and security of victims and witnesses in proceedings involving certain sexual offences;
(c) specify factors that a military judge is to take into consideration when determining whether to make an exclusion order;
(d) make testimonial aids more accessible to vulnerable witnesses;
(e) allow witnesses to testify using a pseudonym in appropriate cases;
(f) make publication bans for victims under the age of 18 mandatory on application;
(g) require courts martial to inquire of the prosecutor if reasonable steps have been taken to inform the victims of any plea agreement entered into by the accused and the prosecutor in certain circumstances;
(h) provide that the acknowledgment of the harm done to the victims and to the community is a sentencing objective;
(i) provide for different ways of presenting victim impact statements;
(j) allow for military impact statements and community impact statements to be considered for all service offences;
(k) provide for the creation, in regulations, of disciplinary infractions that can be tried by summary trial;
(l) provide for a scale of sanctions and principles applicable to sanctions in respect of disciplinary infractions;
(m) provide for a six-month limitation period in respect of summary trials; and
(n) provide superior commanders, commanding officers and delegated officers with jurisdiction to try a person charged with having committed a disciplinary infraction by summary trial if the person is at least one rank below the officer presiding at the summary trial.
The enactment also amends the Criminal Code to include military justice system participants in the class of persons against whom offences relating to intimidation of a justice system participant can be committed.

National Defence Act

[James Bezan, Conservative, Selkirk—Interlake—Eastman, MB]

Madam Speaker, it is a pleasure to stand to speak at third reading of Bill C-77, the amendments to the National Defence Act to add some new guidelines and strengths within the military justice system. The Conservatives have been calling for this for some time.

The Conservatives are committed to standing up for the rights of victims and ensuring that victims have a more effective voice in the criminal justice system. It was our previous Conservative government that enacted the Canadian Victims Bill of Rights. We support enshrining those rights for victims in our military justice system. That is why, in the last Parliament, we introduced Bill C-71. That really is the foundation that Bill C-77, which we are debating today, is based upon.

The Conservative Party will always stand up for the rights of victims, and that is why are supportive of seeing Bill C-77 passed and enacted.

We have to ensure we restore the rights of victims and ensure they are at the heart of our justice system. That is why the Victims Bill of Rights would now be mirrored in military law, once it is passed through Senate.

I hope that some of the questions I still have about the bill, as well some of the questions we just heard about self-harm, may be addressed when the bill goes for further study and debate over in the other place.

I am the vice-chair of the Standing Committee on National Defence. At committee we heard from numerous witnesses. Those who support victims were very loud in their support of the legislation. It would give the victims: enhanced access to information through the appointment of a victim liaison officer, which is welcomed by victims in the Canadian Armed Forces; enhanced protection for those victims through new safety, security and privacy provisions, so victims do not have to be concerned about their information being used inappropriately through a violation of their privacy; enhanced participation by allowing victims to read impact statements at the time of sentencing of those who committed a crime against them; and, when possible, enhanced restitution through the court martial process consideration to provide restitution for the order of the losses to those who were victimized.

Our previous Conservative government took significant steps to protect Canadians and to stand up for victims of crime. We understand that the highest priority for any government must be to ensure the safety of its citizens, including those who are serving in the Canadian Armed Forces. It is a responsibility of government. As a Conservative government, we took that seriously. I am glad to see the minister has taken it seriously with the amendments in Bill C-77.

Putting the rights of victims back at the heart of the justice system is important and it is crucial to ensure fairness, to ensure that our justice system is compassionate and that it provides a balance, both to the rights of the victims and the rights of those convicted. It is about courtesy, compassion and respect, and that has to be included at every stage of the justice process, whether it is in civilian courts or military courts.

Our previous Conservative government was committed to reversing that trend and keeping our streets and communities safe for Canadians and their families. We had taken concrete steps to see that offenders accounted for their actions.

All of us on this side of the House were proud of our previous government's record, a record that includes the Safe Streets and Communities Act, the reform of not criminally responsible legislation, laws against sexual exploitation and, of course, cyber intimidation and bullying.

We, as Conservatives, believe that for far too long the criminal justice system was about the rights of criminals. We believe the victims have to be placed at the very heart of the justice system. They deserve, and should have, the right to information, the right to protection, the right to participation and, where possible, the right to restitution. That is encompassed in the Canadian Victims Bill of Rights, which is landmark legislation that will be reflected now in the National Defence Act as it applies to our military.

Many people wonder why we have a dual system, one for civilians and one for our military members. I would like to use a quote that came from Maurice de Saxe, who used to be the marshal general of France in 1732. In writing about the science of warfare, he said:

...military discipline...is the soul of armies. If it is not established with wisdom and maintained with unshakeable resolution you will have no soldiers. Regiments and armies will only be contemptible, armed mobs, more dangerous to their own country than to the enemy...

We have witnessed that in modern times in other countries around the world. That is why in 1950 the National Defence Act was enacted to established a military justice system.

We already have what I consider the best of the best who serve in the Canadian Armed Forces. Because they are the best of the best and because they are given the order to use lethal force when necessary in defending Canada and Canadians and those who cannot defend themselves around the world, they have to be held to a higher standard. We need to have a military justice system in place that reflects the law of the land in Canada, but still hold to that same standard, values and principles when they are deployed abroad.

As the minister already pointed out, some of the changes in Bill C-77 build upon the code of service conduct and Operation Honour in particular. We want to ensure we have effective ways to stomp out sexual misconduct, to eliminate harassment within the Canadian Armed Forces and to deal with intolerance.

The Gladue decision of the Supreme Court a number of years ago has been put into the decision-making process through the court martial system as well as through the summary hearings that have been put in place. We want to ensure that the ongoing defence of parallel military justice systems that has been supported by the Supreme Court of Canada continues.

In the Généreux case in 1992, the MacKay case and more recently in the Moriarity case of 2015, they have consistently held up that the National Defence Act and the criminal justice system is for the maintenance of discipline, efficiency and morale of the Canadian Armed Forces. It stands by section 11(f) of the Canadian Charter of Rights and Freedoms, which is that there is an exemption given to members of the Canadian Armed Forces and to the chain of command to carry out military justice on a parallel track.

I raised concerns at committee and when the bill was at second reading about the recent Court Martial Appeals Court decision in the Beaudry case, in which the judge advocate general requested to have that stand at this point in time so they could take that case to the Supreme Court and have it pass a decision on it. Again, we continue to see some people who do not believe the military should have its own justice system and that cases should be tried in civilian court except when they are deployed.

Overall, we need to continue to have that chain of command, the enforcement of the Queen's rules and orders and that those regulations are reflective of some of the concerns that were brought up at committee.

A number of very powerful witnesses appeared at committee. One person was Jean-Guy Perron, a retired colonel, He was a JAG officer and also sat as a justice on the court martial court. We also had compelling testimony given by the Barreau du Québec. It raised a number of concerns where there could be charter challenges down the road if we did not get this right.

One thing that was very evident was that the change of summary trial to summary hearing may reduce the burden of proof. Right now, the burden of proof is the same as it is in civil court, which is that it has to be beyond a reasonable doubt. That has been modified somewhat and the accused could fact even more difficulty going forward.

I will quote retired Lieutenant-Colonel Jean-Guy Perron. He said:

Although a summary infraction is not an offence under the NDA and a summary hearing is not a court martial or a service tribunal; the failure “without lawful excuse, the proof of which lies on the person, to appear” as ordered, or to remain in attendance before an officer conducting a summary hearing, as a person charged with having committed a service infraction can lead to an accusation under s. 118.1 (Failure to appear or to attend), a trial by court martial and possibly a criminal conviction.

This is all in relationship to the summary hearings process. He went on to say:

Would “minor sanctions” be identical or quite similar to “minor punishments”? Most probably and, if so, the punishments of confinement to ship or barracks and extra work and drill raise concerns....COs can confine to ship or barracks for up to 21 days....This deprivation of liberty can be very strict and would be similar to conditional sentence of imprisonment (“house arrest”).

Since that would now be considered imprisonment through a summary hearing without actually having a court martial process, would the rights of that individual be violated by not having the right to a fair trial because it has been dealt with through the chain of command at a summary hearing?

Essentially, he is saying that house arrest or confinement to barracks is full incarceration as put by the Supreme Court of Canada.

I mentioned burden of proof earlier. Bill C-77 keeps the same sentencing objectives and principles as found in a criminal proceeding, most probably the same procedure for summary hearings as presently exists for summary trials in chapter 108 of the Queen's Regulations and Orders, and increases the punishment power, such as higher finds, of an officer conducting the hearing, while reducing the threshold of conviction from beyond a reasonable doubt to a balance of probabilities.

We had a lot of debate on the difference between “beyond a reasonable doubt” and “a balance of probabilities”. I feel somewhat confident that the JAG officers who were present did a good job of explaining the difference and that through the regulations of Bill C-77, when we get to enacting those, coming through the gazetting process, we should be able to mitigate the charter challenge risk and ensure that the rights of those who have been charged will be considered appropriately.

Perron goes on to say:

Under C-77, the accused is liable to be sentenced to a more severe punishment...based on a lower threshold of conviction. The summary hearing under C-77 offers less protections to the accused than what was present in C-71 and what is actually present in the summary trial process.

Therefore, I stress for the minister that now that we heard a very similar concern raised by the Barreau du Québec along with Mr. Perron, we need to incorporate those concerns in the regulation process. We had assurances at committee that this would be done. We brought forward amendments that were not accepted at that stage on how we dealt with it. However, I was glad to see at least one of our amendments that would to clarify the rank structure on who could do a summary hearing and who would review which officers, or NCOs or other enlisted members.

The one thing, which we have already discussed, is that we never did get to fully debate paragraph 98(c), which deals with self-harm. It was ruled out of order by the chair, but I want to thank the member for Esquimalt—Saanich—Sooke for bringing it forward. We had Sheila Fynes and her family at committee. They lost their son Corporal Stuart Langridge to suicide in 2008. He served in Bosnia and in Afghanistan. They feel very passionate that paragraph 98(c) of the National Defence Act, which deals with self-harm, adds to the stigmatization, such that those who want to hurt themselves will not come forward for help because they could be charged under the National Defence Act and at the very least be put in front of a summary hearing or could get a full court martial.

We were assured by all the witnesses that this section of the National Defence Act is rarely ever used.

For those who are concerned about those who malign themselves, those who literally go out and shoot themselves in the foot so they do not have to be deployed or who purposely sprain an ankle so they do not have to go on an exercise and carry an 80-pound rucksack and march for 40 miles over the next day, those who try to avoid service, avoid exercises, who do not want to go into theatre, there are plenty of other avenues under the National Defence Act to hold those people to account and bring them to justice for not following orders.

However, when it comes down to the mental health of our servicemen and women who are suffering with PTSD, who are dealing with anxiety and have been in theatre and have witnessed some horrific abuses and atrocities and violations against humanity, those individuals need help, and the last thing we want to do is stigmatize it and send the message that they will be charged under paragraph 98(c) of the National Defence Act for self-harm.

I hope the minister will take this forward and consider it and find a way to bring it quickly back to the House in a different bill, if that is possible. I am sure he would get unanimous consent at all three stages to delete that section of the act. Since it was found to be outside the scope of Bill C-77, I would suggest that we find a different avenue to do it and that we do it as quickly as possible and as compassionately as possible and in a way that will more than help those who struggle with the thought of suicide to step forward.

We have an incredible Canadian Armed Forces. One thing that we recommended through the defence policy review a few years ago, which is reflected in the Liberal defence policy now, is that the number one source of pride within the Canadian Armed Forces is their personnel, and we want to ensure that we give them the tools to do their job. Whether they serve in the Canadian Army, the Royal Canadian Navy or the Royal Canadian Air Force, these brave men and women do incredible work to keep us safe here at home. They stand on guard 24/7. Written on the wall in NORAD, whether down in Colorado Springs or at its Canadian operations in Winnipeg, is a motto that says, “We Have The Watch”, and they are on the watch 24/7.

We often forget that there are all sorts of threats coming at us, whether airborne, seaborne or even potentially on the ground, and because we have troops deployed across this country and around the world, we are safer here at home because they are standing on the wall in places like Latvia, Mali and Ukraine, along with many other locations. They are ensuring that we can continue on with our business, oblivious to what is going on in the world and to potential threats such as cyber-hacking, knocking down our financial systems or our energy sector and blocking off our naval routes to ship our goods back and forth over the sea. Our economy, our safety and our prosperity are built upon us as Canadians, but more importantly, they are defended by those who serve in the Canadian Armed Forces.

On behalf of all Conservative members and all members of the House, I thank them for serving, because they keep us, the true north, strong and free.

Criminal Code

[Erin O'Toole, Conservative, Durham, ON]

Mr. Speaker, I would like to thank my colleague from London who spoke earlier and all members for their comments on Bill C-51 today.

At the outset, because I have some time today to give a bit of a longer speech, I want to address the fact that I am troubled that in government, the Liberals are doing exactly what they said they would not do when they were in opposition. In fact, this is our second omnibus justice bill.

I know my friend from Winnipeg, the deputy House leader of the Liberal caucus, likes when I quote some of his outrage in the past Parliament about the use of omnibus bills. However, when it comes to justice omnibus bills in particular, I think the need for a lot of these provisions to be considered independently is the best way to go.

Although the bill is certainly not as long as the government's latest budget implementation act, at 850 pages or more, weaving together a variety of unrelated things in the form of one bill, here we have another substantive piece of justice legislation being presented in an omnibus bill.

Breaking it down, there are some good parts and some parts we certainly have some challenges with. I would like to use my opportunity, if I may, to highlight both the good and the bad.

The good is that as a Parliament, we need to show that we can speak with a united voice with respect to zero tolerance for sexual assault and not respecting the consent of an individual in the case of sexual relations of any kind. Therefore, I think it is good that we are having a fulsome discussion on this part of the bill today. In fact, several members have quoted from some of the case law that has led to the need for Parliament to weigh in and be very clear that people cannot provide the consent necessary to engage in sexual activities when they are unconscious. We need to send a clear signal from Parliament. I think the Senate amendments actually take away that clarity somewhat, and I am glad we are having the debate here on proposed section 273.1 in the bill.

The Supreme Court case that drove clarity in this area was very clear. It said that it was not possible for people to provide consent if they were not conscious, even if express consent had been provided ahead of time, when they were conscious. I think Parliament needs to be crystal clear that consent evolves and that there has to be the constant presence of consent and respect. That is what this bill is intended to do. In fact, some of the Senate amendments, which would almost create tests with respect to the standards, confuse the issue. There needs to be a clear signal sent that consent has to be constant. I think that is a signal that, as parliamentarians, we have to send.

I can say, as someone of my generation, that the debate on campuses about no means no and all these sorts of things was not taken seriously in the early 1990s. We are still having debates today about it. An accused will try to suggest that consent was provided sometime earlier. If consent was provided in the context of alcohol or substances, and if someone was unconscious, consent could not be provided.

The Supreme Court was clear. I think Bill C-51 and our updates to the Criminal Code send a very clear message. There is no test to be performed. It is a bright line. Everyone, all Canadians, need to show respect and a commitment to consent in the context of sexual assault cases. It is basic respect. We are in the era of the #MeToo movement and discussions about unsafe workplaces. All these things have been positive in making sure that one has a positive obligation, with respect to one's relations with someone else, to make sure that there is always consent present. I think that is clear.

I am also glad that a number of speakers from several parties have referenced Bill C-337, the bill of the former interim Conservative leader, Rona Ambrose, on judicial training in the context of sexual assault trials. The bench comprises a cross-section of society, and those attitudes need education to make sure that judicial standards adhere to the expectations we have as a society of respecting consent.

We know, in Ms. Ambrose's home province of Alberta, the case of Justice Camp, where attitudes toward a victim by the bench showed just how disconnected some may be. The vast majority of the bench would be explicitly mindful of the complainant in those cases, but we have seen cases in recent years that show that judicial training with respect to consent, in the context of sexual assault trials, is needed, as is education for all members of the bar.

As a member of the bar, I am glad that a few years ago, law societies across the country incorporated continuing legal education requirements for lawyers to make sure that they are aware of expectations with respect to consent and the law. The very fact that there would be some reluctance to have same continual legal education for judges in the context of sexual assault cases is troubling. I know that most justices demand that level of CLE, so I hope that the government, in the context of my starting off my speech by talking about some of the positive elements of Bill C-51, pushes Bill C-337 through. It should not matter that it came from a former Conservative member of Parliament, Rona Ambrose. It should not matter that it came from this side of the chamber if it addresses the same elements I am saying I support in Bill C-51 today. Let us hope there is some movement in the Senate so that in the spring, we can ensure that it is an expectation that all members of the bench have that training so they can guarantee an environment of respect for all complainants who come forward.

The provisions in proposed section 273.1 also show that Parliament is clear in its direction with respect to consent always being a requirement, and if there is any uncertainty, we err on the side of complainants. Everyone should know that if circumstances change, be they the context, consciousness, alcohol or these sort of things, prior consent is not sufficient. We have to be crystal clear on that.

This is also similar to Bill C-75, an omnibus justice bill, which I have spoken to in Parliament. I have also spoken to Bill C-77, on modernizing criminal justice within the context of the National Defence Act. I supported a number of measures in that bill. In fact, the previous government introduced Bill C-71 in the last Parliament to try to update the National Defence Act and the treatment of criminal conduct by members of the Canadian Armed Forces. That is still in a state of flux. All these bills, particularly because they deal with the rights of the accused and the rights of the victims or complainants in these cases, should be given specific attention and not be put into omnibus bills.

I would like to speak for a moment about the fact that this bill is part of the process of requiring a charter statement from the government with respect to legislation before the House of Commons. I have some concerns about that approach, in two ways. First, I am worried that it may send some sort of chill to suggest that the government is trying to innoculate itself by saying that it reviewed the bill ahead of time and has a charter opinion on it, meaning, therefore, that we cannot raise charter concerns or that there is no reasonable basis to have concerns about its validity under the charter by groups that may be impacted by the decision of this Parliament.

The very nature of the charter itself was to give a back and forth test with respect to the will of Parliament, and the ability for the court to determine whether fundamental charter rights were breached directly or indirectly by legislation in the context of enumerated groups under section 15 of the charter, are expressly contained within the charter, or are analogous ground groups, provided by subsequent court decisions.

The balancing test under section 1 of the charter, the Oakes test, which I learned in law school and is some of the first charter jurisprudence, is that balancing of the charter. By issuing a charter statement, I am quite concerned the government is trying to suggest it is doing its own Oakes test, its own charter examination of issues at the time it is passing legislation. I am not suggesting it will cause chill, but I have not have heard an argument from a member of the government bench to suggest this is any different than any government since the mid-1980s, when the charter came into effect.

Suggesting that the seal of approval for the charter is granted by one of these statements is simply ridiculous. It is up to the court to provide that reasonableness and those limitation tests under the provision of section 1 of the charter, which allows a charter right to be violated by legislation, but applies a reasonableness and balancing test to it since the Oakes jurisprudence started.

I will give a couple of examples of why I have this concern. In this Parliament, we have seen many instances of the government acting in a way I firmly believe violates the charter rights of many Canadians. This is germane because just today, shortly before we rise for Christmas, the government is reversing its position on the so-called values screen for Canada summer jobs.

We all know the controversial values test was applied for the first time in the history of this summer employment plan for youth as a clear way the government intended to exclude faith-based organizations and other service organizations from funding related to students. There were concerns from a charter basis expressed from day one when it came to the values test. Is the government suggesting, with its charter statements, that its actions on a whole range of decisions are somehow inoculated because it is providing a charter assessment? That is political theatre. It cannot provide its own charter assessment. It tries to craft legislation that it feels strikes the right balance, but the actual charter determination is not made in this chamber, which writes the laws, but in other courts.

We bow to the Speaker. We have a bar. This is a court. We write the laws, but we do not adjudicate our own laws. This is a very big distinction I have not heard the government express any clear indication on yet.

I will use another example. There have been several violations, in my view, of indigenous peoples' rights with respect to the duty to consult. In fact, I believe Bill C-69 violates that duty. We can look at the approach the government has taken on the cancellation of the northern gateway pipeline, which is one-third owned by indigenous groups. The duty to consult is not frozen in time. It does not exist 10 years before one develops a pipeline or cuts trees in a forest. If one decides to change the circumstances of that consultation, or cancel something that indigenous peoples are a one-third owner of, one has a duty to consult them on the cancellation. This is an ongoing duty.

The fact that the government may have a piece of paper that says this is our charter statement, this is our validation that the bill conforms with the charter, is political and inappropriate, because the government is suggesting this legislation will withstand any judicial scrutiny before the judicial scrutiny is applied. The government is suggesting that this is A-okay. That is not the way it works.

I invite the Minister of Justice and Attorney General and the parliamentary secretary to walk a little past the Confederation Building on the Hill to a building called the Supreme Court of Canada. It is there that the Oakes test was born, the Oakes test where the section 1 charter clause was.

As I have said, the values test that the government did to politicize the Canada summer jobs program would not be inoculated because of a government-produced charter statement nor would some of its actions with respect to Bill C-69, Bill C-75, Bill C-77. These are court determinations.

I do not have any proof because the charter statement concept is part of the government's justice reforms, including in this legislation, but I do have serious concerns that it will send a chill to suggest that the government will not consider valid concerns people have with respect to their charter rights.

I would like subsequent members of the Liberal caucus, particularly the ministers or the parliamentary secretaries, to provide a substantive rationale for their approach with respect to the charter statements. Are they somehow suggesting that previous governments, both Conservative and Liberal, have somehow not conformed to the charter by doing exactly what we are supposed to do as a Parliament, which is to try and find the right balance between the will of the people and certain provisions within the charter? That is done by a court using the Oakes test, doing the balancing. Producing a charter statement does not protect the government from criticism.

As I said today, days before Christmas, the government suddenly admits that its approach on the values test for summer jobs is wrong. This is much like days before Christmas last year, when it broke its promise to veterans on the return to the Pension Act. The Liberals make very good use of the pre-Christmas period not just for parties, but for dumping out their dirty laundry.

I would like to thank the thousands of Canadians from across the country and many of my colleagues in this chamber for representing the charter rights of millions of Canadians with respect to the conduct of the Canada summer jobs program.

Why I am focusing on this part of the bill is because we have to make sure that Canadians, members of the media and members of both Houses of Parliament do not get fooled by the fact that the government validating its own legislation under the guise of charter approval is not actually charter approval.

I am hoping in the remaining debate we can actually hear a cogent argument from the Liberal caucus on this. Otherwise, it seems to be more of the sort of media spin that we hear from the government.

The Prime Minister just yesterday, while leaning on his desk acting like a professor, told the opposition what we should ask and what we should criticize. We know full well what we should ask and we know where our criticisms and critiques are warranted.

Quietly, when the House does not sit, the Liberals backtrack on things, like they did today on the summer jobs values test, like when we rose for Remembrance week, and Miss McClintic, another justice consideration, was quietly transferred to a prison as we had been demanding, and as the break week happened Statistics Canada suddenly pulled back its program.

Like the Chris Garnier criticism, the non-veteran murderer who is receiving treatment funds from Veterans Affairs Canada, on most of the criticisms we have been raising even though they make the Prime Minister uncomfortable, the Liberals have backtracked. We have been doing our job quite effectively.

In the remaining time for debate, I would like one of the Liberal members to stand up and provide a context and a rationale addressing my concerns in regard to charter statements with respect to the bill before us and others.

As I said at the outset, we support the amendments and update of our Criminal Code with respect to sexual assault.

[James Bezan, Conservative, Selkirk—Interlake—Eastman, MB]

Again, the majority of Bill C-77 reflects what we did in Bill C-71. Protecting victims' rights is something we support. I agree with Mr. Garrison. We had a chance to help with the destigmatization of mental health, especially around suicide and self-harm, by taking that out of the National Defence Act.

I do hope that the members from JAG here are listening to the concerns we've raised about the criminal records aspect and how these things can come back to bite our troops as they become veterans and want to participate in their communities as volunteers, as well as seek future employment. I hope that as you draft the new QR&O, that is well taken into consideration.

I will be supporting Mr. Garrison as he brings forward his amendments at report stage. Hopefully, we'll have a better hearing with the Speaker than we received at committee.

[James Bezan, Conservative, Selkirk—Interlake—Eastman, MB]

I'll just say that I think this is an overstep. As Mr. Garrison said when you ruled out his amendment, NDP-1, these opportunities only come along once in a while.

To address your point on Bill C-71 and Bill C-77, this is why we have committee meetings. This is why we have expert witnesses. This is what we've heard from expert witnesses. It comes back again to Mr. Perron. He is the one who suggested that we go this route. We need to make sure these criminal records do not haunt the future of our veterans.

When we start talking about transition and wanting to support our military members as they move back to civilian life, really minor service infractions should not be on their criminal records. This is a way to address it. I think it is incredibly unfortunate that we aren't taking the opportunity to hear from expert witnesses and incorporate those changes into the bill, because, as was pointed out by Mr. Garrison, this won't happen again for the next....

We need to make sure that we address those issues. The summary of the bill, which is in the front of Bill C-77 is very clear that we are dealing with minor infractions. I can't see how you can rule this out of order. For that I challenge the chair.

[The Chair, Liberal, Stephen Fuhr]

Okay.

As it's consistent with an earlier ruling on NDP-1 and consistent with House of Commons Procedure and Practice, third edition, on page 771, which I used when we discussed NDP-1, it is out of order because it refers back to the parent document, which isn't before us right now.

In addition to that, with that logic, CPC-8 and CPC-9 also become inadmissible because they are consequential to CPC-7.

I agree with Mr. Spengemann. Unfortunately, CPC-7 is out of order.

Although we might have a discussion on our hands, which we could certainly take outside of what we're trying to do here today, I find it interesting that CPC-7 could have been introduced into a previous bill. Bill C-71 was very similar to the one we're doing now, which isn't just by coincidence, I guess.

I know you're going to want to respond to that, so it's over to you.

[James Bezan, Conservative, Selkirk—Interlake—Eastman, MB]

As it currently sits right now, if somebody has been found guilty and that's going to happen, first, it has to be beyond a reasonable doubt in terms of the burden of proof and how that's defined. It was defined in that way under the old Bill C-71 as well.

Plus, they had the whole concept that if they wished to, they had the option of going to a trial by their peers through court martial. Does that option still exist in Bill C-77?

[Darren Fisher, Liberal, Dartmouth—Cole Harbour, NS]

Okay.

As Mr. Bezan said, Bill C-71 and Bill C-77 are very similar, Bill C-71 being the bill that died on the Order Paper in 2015.

It seems like a minor change. Bill C-77 I think uses “summary hearing” and Bill C-71 uses “summary trial”. Is that accurate? If that's the case, on the surface it doesn't seem like a big change, but what is the rationale for making sure that all through the NDA, Bill C-77 would replace the term “summary trial” with “summary hearing”?

[LCol (Ret'd) Jean-Guy Perron]

No, because, on the issue of summary hearings, these changes to military justice, Bill C-71 and Bill C-77 are practically identical.

The major fundamental change, which is critical, changes the summary trial to a summary hearing, thus keeping basically what I consider, as I discuss in my submission, what is still a penal proceeding with penal consequences, but replaces the “beyond a reasonable doubt” standard with a “balance of probabilities”, which is, for me, very problematic.

[James Bezan, Conservative, Selkirk—Interlake—Eastman, MB]

Are you picking up any of the language that was used in Bill C-71 as a better way of interpreting military justice than Bill C-77?

[Lieutenant-Colonel, Retired) Jean-Guy Perron (As an Individual]

Good afternoon. My name is Jean-Guy Perron, and I am a retired lieutenant-colonel.

I enlisted in 1978 and graduated from the Collège militaire royal de Saint-Jean. From 1983 to 1990, at the start of my career, I was an infantry officer with the Royal 22^nd Regiment and the 1^st Battalion of the Canadian Airborne Regiment.

I studied law at the University of Ottawa. From 1995 to 2006, I was a military lawyer with the Office of the Judge Advocate General. I commanded the Canadian Forces National Counter-Intelligence Unit from 2004 to 2006, I was appointed as a military judge by the Governor in Council in 2006, and I was released from the Canadian Forces in 2014.

I was deployed to Bosnia, Rwanda and Uganda and travelled to Afghanistan on several occasions, in particular, to preside at the court martial of Captain Semrau.

I wish to focus my comments on summary hearings and the related provisions of Bill C-77. I will start with a comparison of Bill C-71 with Bill C-77.

Bill C-71 uses the term ”disciplinary infraction” instead of “service infraction”. Both are created by regulations and are not an offence under the NDA or the Criminal Records Act. Under Bill C-71, a disciplinary infraction can only be tried by a summary trial. Under Bill C-77, a service infraction may only be dealt with by a summary hearing. The sanctions found in Bill C-71 are identical to those found in Bill C-77.

As for the principles and objectives of sentencing found in Bill C-71, they too are practically identical to those in Bill C-77. A summary trial under Bill C-71 is a service tribunal that deals with disciplinary infractions and not service offences. It offers the accused practically all of the protections of criminal law. A summary hearing under Bill C-77 is, in effect, identical to the summary trial in Bill C-71, except for one critical element. Everything will be defined in regulations. A hearing under Bill C-77 is not described. If one follows what we now have in chapter 108 of the QR and O, which describes the procedure for a summary trial, one should expect that the future chapter 108 of the QR and O would be quite similar for a summary hearing. If that is the case, a finding in a summary hearing is made on a balance of probabilities, instead of beyond a reasonable doubt, as what is in Bill C-71 and presently for a summary trial.

The objectives and principles of sentencing in Bill C-77 are practically identical for the purposes and principles of sentencing presently used by service tribunals and the purposes and principles of sentencing found in the Criminal Code. However, Bill C-77 mentions minor sanctions that may be imposed at summary hearings but does not define them. Would minor sanctions be identical or quite similar to the minor punishments that exist today? It would be most probably so.

The punishments of confinement to barracks and extra work in drill would raise concerns. Commanding officers can confine a person to barracks for up to 21 days. The rules relating to confinement to barracks could constrain the liberty of movement and action of a defaulter. A defaulter cannot go beyond the geographic limits prescribed by the commanding officer in standing orders. This deprivation of liberty can be very strict and would be similar to a conditional sentence of imprisonment: house arrest.

A person subject to confinement to barracks could be ordered to stay within unit lines during the complete period of the punishment. This means a person with a spouse or a family could be forced to live apart from them for the punishment period. A person undergoing a sentence of house arrest still lives with his or her spouse and family. This is a significant difference. Strict confinement to ship or barracks conditions could be very restrictive on the person's liberty and could equate to detention.

Under Bill C-77, the accused is liable to be sentenced to have more severe punishment based on a lower threshold of conviction. A summary hearing under Bill C-77 offers less protections to the accused than what was present in Bill C-71 and what is actually present in the summary trial process.

I'll now turn to the role of the commanding officer. “The commanding officer is at the heart of the entire system of discipline”, so stated Justice Dickson in his 1997 report. Currently, the National Defence Act and the QR and O reflect this key role. A review of the JAG annual reports from fiscal years 2008-09 to 2017-18, 10 years, provides very useful information to help one understand the current military justice system. Data indicates that COs presided over 16% of summary trials, delegated officers over 80% and superior commanders over 4%. This distribution is probably similar today, but the JAG ceased providing these statistics after 2010. This is unfortunate, because it does offer a clear picture of how discipline is enforced within units. It does appear that the great majority of summary trials are presided over by the officer closest to the accused and who possesses the least severe powers of punishment.

Bill C-77, just as Bill C-71 did, radically transforms this concept. Bill C-77 gives more powers of punishment to the superior commander than it does to the CO. This brings into question whether the CO is still the most important actor in disciplinary matters within his or her unit.

Next, on the need to change the military justice system, why does the chain of command need new service infractions and a new disciplinary system to ensure the proper administration of discipline within a unit? Over the 10-year period, approximately 70% of the summary trials occurred without the accused being offered the election of a court martial. Over that same 10-year period, the five minor offences in disobedience of a lawful command represented 94% of the charges tried by summary trial.

The punishments, in order of those awarded the most often, are a fine, 59%; confinement to barracks, 24%; extra work and drills, 6%; a reprimand, 4%; and detention, approximately 2%. Based on these statistics, why is there a need to create new disciplinary infractions and a new disciplinary process to assist the CO in enforcing discipline within his or her unit?

With regard to decriminalizing disciplinary infractions, a person found guilty of any of the service offences listed at section 249.27 of the National Defence Act and sentenced to a punishment of imprisonment, dismissal from Her Majesty's service, detention, reduction in rank, forfeiture of seniority, or a fine exceeding one month of basic pay will have a criminal record. The service offences found at section 249.27 include the five minor offences—insubordinate behaviour, quarrels and disturbances, absence without leave, drunkenness, and conduct prejudicial to good order and discipline.

Section 83 of the National Defence Act, disobedience of a lawful command, is not included in section 249.27. A person found guilty of a purely military offence—for example, disobedience of a lawful command, insubordinate behaviour, absence without leave, drunkenness, or conduct prejudicial to good order and discipline—may have a criminal record.

The consequences of having a criminal record are significant. Applying for employment or attempting to cross the Canadian border are but two of the everyday consequences that can have an important impact on a veteran's life. Do we truly wish to burden a veteran with a criminal record, when he or she has committed a service offence, which may have no equivalent in our criminal justice system or in Canadian society? The answer to this question is not found in section 249.27 or the creation of service infractions.

One should examine the nature of the service offence to determine whether the offender should suffer the consequences of a criminal record. One should examine not only the punishment but the service tribunal that tried the offence.

A thorough and comprehensive review of the Canadian military justice system is definitely required. Any discussion on the subject of discipline and military justice must start with a basic understanding of the uniqueness of the Canadian Armed Forces and its specific role in Canadian society. Canada maintains a military force whose primary purpose is to ultimately use deadly force to execute the government's directives.

This armed force must be well led, well trained and disciplined. Military justice is but one facet of discipline. It is actually the means of last resort, when all other aspects of discipline have failed. The military justice system is not synonymous with military discipline.

Any major reform to the military justice system must be discussed in a public forum. A parliamentary committee could listen to Canadians, academics, lawyers and members of the Canadian Armed Forces. It would have the independence and necessary resources for the thorough review and creation of a modern system of military justice that will effectively balance the needs of discipline with the rights protected by the Canadian Charter of Rights and Freedoms.

Thank you.

[Col Stephen Strickey]

Certainly, as you are well aware, Bill C-71 was introduced into Parliament as a previous iteration.

National Defence Act

[Michael Cooper, Conservative, St. Albert—Edmonton, AB]

Madam Speaker, I rise to speak to Bill C-77, an act to amend the National Defence Act. It is a bill that would make a number of changes to Canada's military justice system, which applies to members of the Canadian Armed Forces.

Before I address the substance of the bill, let me put on the record my thanks to the brave men and women of the Canadian Armed Forces for their service, sacrifice and duty to country. The men and women of the Canadian Armed Forces collectively represent the highest standards of excellence.

CFB Edmonton is located minutes from my riding of St. Albert—Edmonton, and many Canadian Armed Forces personnel who are posted at CFB Edmonton live in my riding and are an integral part of the communities I am so fortunate to represent in the city of St. Albert and in northwest Edmonton. I am very proud to be their voice in the House of Commons.

Broadly speaking, Bill C-77 would seek to align the military justice system with modern day Criminal Code amendments. Without more, Bill C-77 is a good bill, and I am going to address why I think it is a step in the right direction. Before I do that, just for context, it would be somewhat helpful to discuss the fact that we have two parallel justice systems in Canada, a civilian justice system and a military justice system, and the rationale for that long-standing reality.

It was very succinctly put by Chief Justice Lamer in the R v. Généreux decision, wherein Chief Justice Lamer stated the purpose of a military justice system. He stated:

To maintain the Armed Forces in a state of readiness, the military must be in a position to enforce internal discipline effectively and efficiently. Breaches of military discipline must be dealt with speedily and, frequently, punished more severely than would be the case if a civilian engaged in such conduct. As a result, the military has its own Code of Service Discipline to allow it to meet its particular disciplinary needs.

I would further add that another aspect of the military justice system is the recognition that Canadian Armed Forces personnel can be situated anywhere around the world, and it extends that jurisdiction to Canadian Armed Forces personnel whether they are operating in Canada, Afghanistan, Mali or wherever they may be.

The military justice system has done a lot of things really well. Chief Justice Lamer spoke about the need for a speedy process for justice and about a higher level of discipline, having regard for the fact that members of the Canadian Armed Forces are not civilians and are held to a higher standard.

However, one area where our military justice system has not done as good a job is in protecting the rights of victims, and that is what Bill C-77 would seek to change. What Bill C-77 would do is establish a bill of rights. It would incorporate a victims bill of rights into the Code of Service Discipline. It would be similar to the Victims Bill of Rights that applies in the civilian context, which, of course, is an important achievement of the previous Conservative government.

What types of rights would Bill C-77 enshrine? It would enshrine four pillars of rights for victims. One would be the right to information. Quite often, those who are victims find themselves in a very difficult position in understanding all the court processes.

The right to information under Bill C-77 would mean that victims would have information at all stages, from the time the charges were laid, through the trial, through sentencing and through the post-sentencing phase, at all stages. That is really important. In order to help ensure that victims received information at all stages, Bill C-77 would establish a victims liaison officer.

A second pillar is that it would ensure that victims had the right to privacy and that the privacy of victims would be treated as paramount. That is important, particularly in cases, for example, involving sexual assault.

A third pillar of rights for victims is the right to be heard at all stages of the justice process. That includes being able to provide a victim impact statement at the time of sentencing. This is something that is routinely done in the civilian court context, and it seems to be quite logical that it should extend to the military justice system as well.

Finally, Bill C-77 would provide the right to restitution whereby it would require a court martial to consider the imposition of a restitution order where there was a loss involved.

All of those things are good. They are a step in the right direction. We support them. We strongly support protecting the rights of victims.

When we say that there is no problem with Bill C-77 and that, on the whole, it is a pretty good bill, it is perhaps because it is a carbon copy of Bill C-71, introduced by the previous Conservative government.

While the bill will pass, hopefully sooner rather than later, and it has taken three years for the government to finally get around to literally copying and pasting a bill from the previous Conservative government, after Bill C-77 is passed, there are going to be challenges from the standpoint of implementation. It is going to be up to the government to deliver. It is not necessarily going to be easy.

We have, for example, the need for a victims liaison officer to be appointed. As I noted when I asked a question to my colleague from Calgary Shepard in the context of the victims ombudsman, which is basically the same type of position in the civilian context, the government left that position vacant for a year. In other words, there was no one there to represent and be an advocate for victims in the civilian justice system for a year. Let us hope that the government does a better job when it comes to appointing a victims liaison officer.

As my colleague, the member for Selkirk—Interlake—Eastman, has noted, we have the very recent Court Martial Appeal Court decision on Beaudry, which could upend the real objective of this bill, inasmuch as the Beaudry decision provides that in the case of serious offences, those offences should be tried in the civilian court system rather than in the military justice system, notwithstanding the fact that we have three Supreme Court decisions that have provided that such cases should be tried before the military justice system.

That is another wrinkle, but overall, this is a good bill. We will try to work co-operatively with members of the government to put forward amendments where necessary and to hear from as many witnesses as possible to pass the best possible legislation to protect the rights of victims.

[James Bezan, Conservative, Selkirk—Interlake—Eastman, MB]

Madam Speaker, I think all of us at the defence committee are looking forward to having this bill get before us in relatively short order so that we can go through the bill clause by clause. This bill is a copy of Bill C-71 under the former Conservative government that was tabled just before the last election. It has taken three years to get it this far. I am glad we finally got it here but we have to move on it when we get it to committee.

I was wondering if my colleague would talk a little bit about this. She mentioned the victims bill of rights, which is in the Criminal Code now, and how we are incorporating that within the National Defence Act to ensure that victims of crime in the military system have the same rights and abilities. It also refers to the importance of rights to information for victims.

Unfortunately, correction services Canada broke the bill of rights when it transferred Terri-Lynne McClintic, the murderer of Tori Stafford, into a healing lodge. That information should have been shared with the family of Tori Stafford and in particular, Rodney Stafford, her father.

I wonder if my colleague would talk about how we remedy that within Corrections Canada since we are now bringing the rights for the victim into the National Defence Act in Bill C-77.

[Gérard Deltell, Conservative, Louis-Saint-Laurent, QC]

Madam Speaker, I am grateful for the opportunity to speak to Bill C-77 today. I am especially honoured to do so following my colleague from Chicoutimi—Le Fjord's first speech in the House. We are all very proud of him. He was just elected with 53% of the popular vote. Compare that to our party's fourth-place finish three years ago. These things are worth remembering.

Bill C-77 is about reforming the military justice system. During my brief remarks, I will remind the House that this bill is essentially the same as Bill C-71, which we introduced when we were in government. It speaks to an issue that arouses tremendous compassion in everyone on both sides of the House.

Thousands of Canadians serve their country as members of the Canadian Armed Forces' army, navy and air force. We are all very grateful to these men. Although CFB Valcartier is not in my riding—that is an honour belonging to my colleague from Portneuf—Jacques-Cartier, who represents the folks at Valcartier very well—several hundred of the base's 6,000 soldiers do live in my riding.

Fall is here and in six weeks, on November 11, we will be commemorating Remembrance Day. This year will be special as we mark the 100th anniversary of the armistice of 1918. As hon. members know, on the 11th day of the 11th month at the 11th hour, the First World War was to end. Unfortunately, other conflicts followed. Let us commemorate the thousands of Canadians who gave their lives so that we may live in freedom. Let us always remember the extraordinary sacrifices that these young men and women made during the different conflicts, especially during the First World War and the Second World War.

I have the extraordinary privilege of coming from a family that served its country. My father served during the campaign in Italy, among others, for the French Army under the command of Marshal Juin during the Second World War. My maternal grandfather, Paul Ponzelli, served in the First World War. He was in the French army and fought in the battle of Verdun, among others. I would also like to salute the people at the Consulate General of France in Quebec City, who are currently preparing a special commemoration for November 11. My mother will take part in this tribute being held six weeks from now.

Bill C-77 proposes reforms to the military justice system, which, naturally, is a delicate subject. Our men and women in uniform serve their country, but men being men and women being women, reprehensible behaviour can sometimes happen. This is why we have a military justice system. Canadians who put on the uniform accept that this uniform comes with responsibilities. Cases of reprehensible behaviour must be considered in the context of military action, because when these soldiers put on the uniform and carry a weapon, they can be sent to a combat theatre. The enemy will always be an enemy, which means that a solder may commit an act that would be considered criminal in the civilian world, but heroic in the military world. This is why the military justice system is different from the civilian system. Of course, this does not mean that soldiers should not have a dignified and honourable conduct in civilian life.

When we were in government, we introduced Bill C-71, which would have amended the military justice system. Some aspects of Bill C-71 are similar to our bill, such as enshrining victims' rights in the National Defence Act, imposing a six-month limitation period for summary trials and stipulating which cases should be handled in summary trial. These are the parts of the bill we agree with. I would like to point out that this bill was drafted with the assistance of our government's former justice ministers, namely the hon. Peter MacKay, the hon. Jason Kenney, and the hon. member for Niagara Falls, who is still serving his constituents in the House of Commons.

We also have some concerns about the fact that justice will likely be different for some people than for others. It is important to remember that there is a reason why justice is blind. Portrayals of Themis show what we want from a justice system. She is often portrayed with her eyes blindfolded, a sword in one hand and the scales of justice in the other. The sword is for punishing those who commit reprehensible acts and the scales are to ensure that everyone's rights are respected.

It is important to note that, in this allegorical personification of justice, Themis with her eyes covered, justice is blind. People must be judged based on their actions, not on who they are as a person. Some aspects of the legislation must be reviewed. For us, it is important to ensure that people are being judged based on their actions, and not on who they are, what they represent or embody, or their very nature even. We have to be careful about that. That is why the bill will be examined in committee by my colleague from Chicoutimi—Le Fjord and others. It is important to remember that, as parliamentarians, we do indeed have the right to debate bills here.

I participated in all of today's debates and I was surprised to hear some of my government colleagues criticize us for rising to speak to this bill. Need I remind the government that this bill, which is almost a carbon copy of what we produced three years ago, was only introduced after three years by the Liberals? It is not because there are seven, eight, ten or twelve members who want to speak and debate lasts for one, two or three days that members will take offence and start getting annoyed. We must remember that our first duty here, in the House of Commons, is to express ourselves, as we are doing, to the extent possible and, above all, within the allotted time frame.

[Richard Martel, Chicoutimi—Le Fjord, CPC]

Madam Speaker, after asking my first question in the House and giving my first member's statement, I will now be giving my first 10-minute or so speech in the House of Commons. It is important to me to quickly break the ice.

First, it is an honour to be able to represent my constituents in Chicoutimi—Le Fjord as we study Bill C-77, an act to amend the National Defence Act and to make related and consequential amendments to other acts. As we know, the Bagotville military base is in Chicoutimi—Le Fjord. As part of Air Command, it is one of two bases housing the CF-18s in Canada. For those like me who are interested in history, I will mention that the Bagotville military base was established in 1942 to protect Alcan's infrastructure in the Saguenay, the aluminum plants that were part of the war effort during World War II. I would also like to mention that, at present, we are still paying a 10% tax on aluminum. This base continues to be one of the largest employers in Saguenay and houses 3 Wing Bagotville. It is one of the major pillars of the Saguenay economy, along with aluminum, lumber and agriculture. It is even more important to remember this today because aluminum, lumber and supply management were sacrificed in part last night.

I always enjoy meeting our troops. They are people of honour and integrity. They are leaders. They stand by one another. They protect one another. They all want equal treatment. I also enjoy meeting our valiant veterans. They always have good stories to tell. Unfortunately, they often have trouble getting the government to respect their rights. I talk to a lot of veterans who tell me about their deployments and the problems they run into when they return. Every time they tell the government what they need, the government does not seem that interested.

One of my greatest hopes is for the base to keep getting better. I would like to see proper military aircraft there, not the old, broken-down Australian planes the Liberals want to replace our CF-18s with. Our people in uniform deserve better. I have talked to some of them. The Australian planes are even older than the CF-18s at the Bagotville base. People are wondering what plans the government has to get them up to snuff.

Let me get back to the matter at hand, Bill C-77. Make no mistake, this bill is very similar to Bill C-71 that the previous Conservative government wanted to bring in during the 41st Parliament. That bill was introduced in June 2015, but it did not get as far as second reading.

Much like Bill C-77, we wanted to make changes to the military justice system. Specifically, we wanted to bring Canada's military justice system in line with the Criminal Code. Some of the most important changes we were planning to make were as follows: adding victims' rights the National Defence Act, limiting summary trials to six months and clarifying which cases would be eligible for a summary trial. From what I understand, Bill C-77 seeks to achieve the same objectives.

One has to wonder why the Liberal government waited so long to introduce this bill. The Liberals keep saying that they care about our veterans, that they are sympathetic to our solders and so on. It is obvious that the Conservatives will always put the rights of victims of crime ahead of the the rights of criminals, and we will make sure that victims have a voice in our justice system.

Need I remind members of the House that it was us, the Conservatives, who brought in the victims bill of rights? In fact, it was the senator from Quebec who represents LaSalle who made the victims bill of rights possible. Of course we are in favour of incorporating the victims bill of rights into the military justice system. That is precisely why we introduced Bill C-71 three years earlier. It was such a long time ago—I was still a coach at the time—but that is fine, we cannot fault our colleagues across the way for copying our work because we know full well that adding the victims bill of rights to the military justice system is the right thing to do for our country.

The leader of the official opposition and member for Regina—Qu'Appelle and the Conservatives will always stand behind victims of crime. It is important to us that Bill C-77 pass this first important stage and get to committee so that we can go over it in greater detail. It will be a pleasure to discuss this bill clause by clause with my colleagues opposite to make it the best it can be for our armed forces and the military justice system.

We are definitely going to discuss equality. Discipline demands consistency and continuity. They are the very foundation of people's trust in others and in the system. Members of the Canadian Armed Forces should not be subjected to discrimination based on race, gender, creed or culture. It is crucial that no soldier lose trust in their superior officer. Trust is hard to win and easy to lose. Whether positive or negative, discrimination undermines the bond of trust.

This will also be my first time analyzing a bill in detail in committee, so I will be adding another string to my bow as a new MP. I may get a chance to submit amendments and seek my colleagues' co-operation in getting them approved.