Bill C-77 (Historical)

An Act to amend the National Defence Act and to make related and consequential amendments to other Acts

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 a right 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 hearings;
(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) on application, make publication bans for victims under the age of 18 mandatory;
(g) in certain circumstances, require a military judge 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;
(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, as a principle of sentencing, that particular attention should be given to the circumstances of Aboriginal offenders;
(l) provide for the creation, in regulations, of service infractions that can be dealt with by summary hearing;
(m) provide for a scale of sanctions in respect of service infractions and for the principles applicable to those sanctions;
(n) provide for a six-month limitation period in respect of summary hearings; and
(o) provide superior commanders, commanding officers and delegated officers with jurisdiction to conduct a summary hearing in respect of a person charged with having committed a service infraction if the person is at least one rank below the officer conducting the summary hearing.
Finally, the enactment makes related and consequential amendments to certain Acts. Most notably, it 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

[Leona Alleslev, Conservative, Aurora—Oak Ridges—Richmond Hill, ON]

Madam Speaker, the relevance is that we have a military to defend the very nature of our institutions, both at home and abroad, because we send them to save the world for democracy. If we do not understand what that democracy is and what they are defending, we risk undermining the nature and value of democracy. We certainly cannot be in a position to amend the National Defence Act if we do not uphold the values and the principles the National Defence Act was put in place to defend.

Let us go to the chief of the defence staff. We have also heard in papers that the chief of the defence staff went directly to unelected officials to discuss an ongoing court case when Vice-Admiral Norman was actually undergoing a trial. For those who do not know, the chief of the defence staff does not report to unelected officials. The chief of the defence staff reports to the Minister of National Defence, under the National Defence Act, and through the minister, to the Governor General and the Queen. That is how we ensure that our ability to use the military is only exercised within its sovereign ranks. Therefore, we need to understand exactly what the chief of the defence staff was doing, potentially breaching the chain of command, going to dinner with unelected officials to discuss things that are within the purview of his responsibilities as chief of the defence staff.

Furthermore, we need to look at whether there was political interference in Admiral Norman's ability to get a fair trial, because Admiral Norman was conducting military operations when he allegedly committed whatever offence he is being charged with, yet the Minister of National Defence has decided not to indemnify him. That means that he does not have the ability to have the military pay for his trial and his defence to ensure that he gets a fair trial. One could argue that this in itself is political interference, because trials can cost a significant amount of money, and this could potentially prevent him from getting that fair trial. Is that a good use of exercising the defence budget, and, under the National Defence Act, access to justice? Those are significant, serious concerns.

Now we are talking about amending the National Defence Act, yet these amendments do not remotely address the effectiveness of the act. We found, through evidence, that we have issues with timeliness. People cannot get charges, courts martial and summary hearings in a timely manner. Because we are finding that charges are not being laid, it is undermining the confidence of the military in the justice system.

We have judges in the military system who are not getting effective training or experience and who no longer have the extensive qualifications they need to execute on the National Defence Act.

We are talking about fairness. We actually have people within the military justice system who have been charged and found guilty and have been given a punishment. However, other people have been given a different punishment within the military justice system for that same crime. There is no balance and equity among members within the military justice system or compared to their civilian counterparts or even compared to our allies and their militaries.

All those things undermine the code of service discipline and the military justice system we are attempting to put in place, yet none of the amendments to the National Defence Act being put forward today address any of those things.

Even more disconcerting, we have a justice system that is not delivering and executing on that justice, as we have seen in the fact that we can have members of the military who are not being held accountable when they have perhaps breached the chain of command or have acted in a partisan and political way.

Defence is not a luxury. Defence is the foundation of our society. It allows us to have the principles of democracy, individual liberties and the rule of law. We cannot have anything that undermines any of those clear checks and balances and the structures of our democracy, as we heard from the former attorney general, who was also the former associate minister of national defence. Thank goodness she recognized that she had two hats: one as the attorney general and one as the minister of justice. She could understand the rules and responsibilities that came with each of those hats. She knew that she was the last line of defence, the check and balance, that upheld the very structure and nature of our system. She did what needed to be done. She stood up and was counted.

We need a military justice system that reinforces the ability to maintain our democracy and the principles for which it stands, and that is at risk right now.

Defence is not a luxury. Defence allows us to have the freedoms and liberties we have. The more the Liberal government undermines its commitment to defence by not funding it, by giving the military terrible equipment, by not ensuring that the CDS is accountable to the Minister of National Defence and by politically interfering in the trial of a senior admiral, possibly preventing him from getting a fair trial, the more it calls into question not only the individuals and their roles but the very nature of what we are asking people to put on a uniform, swear an oath, serve and defend and give their lives for.

Members of Parliament, cabinet ministers and the Prime Minister are more than just individuals. As we say in the military, I was an officer first, I was air force logistics second, and I was an individual far after that. The same is true of the people who sit in this place.

There are partisan issues we are going to talk about. We are going to disagree on perhaps how and what and when we should prioritize, but at no time should any of us ever disagree or risk the actual structure and sanctity of the institutions and everything they stand for. If we do, we are no better than all those countries we are so quick to criticize that are not as fortunate as Canada in having democracy.

It is a slippery slope. We have seen over the last 20 or 30 years the lack of independence and separation between the legislative branch and the executive branch. Now we are seeing the slippery slope moving into the judicial branch. With the lack of material in the National Defence Act and the inability of the justice system to execute military justice, it is also slipping there.

It is very disconcerting. We have now come to a point when Canadians are giving up. They are looking at government, not only the individuals in government but government as an institution, and saying that we do not know what we are doing, that we cannot be trusted and that we are all the same. If we do not have our democracy, what do we have?

We owe a great deal to the former attorney general for having the courage and fortitude to stand and be counted and stand for democracy. She can recognize that she has a responsibility and has been entrusted with something that is bigger than she is, as the former attorney general and the former minister of justice. While they may be the same person, they are two separate roles and responsibilities.

Members of Parliament, cabinet ministers, the Prime Minister, the Clerk of the Privy Council and all of us also need to remember our roles and responsibilities and the separation of the executive branch, the judicial branch and the legislative branch. Our system does not work when those things are intermingled.

There is still much work to be done to amend the National Defence Act to ensure that we have a vibrant, modern military justice system that compares with our allies' justice systems. At the same time, we can never forget that defence provides the safeguards for our freedom, our individual liberty and the preservation of the rule of law. The minute we start to erode that, we have absolutely nothing left. It is very worrying, because we have arrived at a place in our history where I am concerned that our country is at stake.

[Kevin Lamoureux, Liberal, Parliamentary Secretary to the Leader of the Government in the House of Commons]

Madam Speaker, listening to the member, one of the conclusions one can draw is that she believes that this legislation is falling short and that many other aspects should have been incorporated that were not incorporated.

If we actually go through the bill, we see that this legislation has its founding in Stephen Harper's government. It was Stephen Harper who initiated the process. We have taken the process, have not deleted anything, and have added to it indigenous considerations and one or two other aspects after a series of consultations. We have enhanced the bill. When the member criticizes the government today for not doing enough, she is really criticizing her own party, the Conservative Party. She is criticizing Stephen Harper.

We have a good piece of legislation that would help modernize our military law and makes it more in line with civilian law. That is a good thing. Would the member not agree that, for example, the modernization is to the benefit and in the interest of forces members who are serving today and even those who are retiring?

[Leona Alleslev, Conservative, Aurora—Oak Ridges—Richmond Hill, ON]

Madam Speaker, it is a flawed argument to say that because people who came before us did not do it, we should not be held accountable for not doing it ourselves. That is like saying that we do not need stoplights for horses and buggies because we did not have cars. It does not make any sense.

The current government put this legislation forward. The government is trying to amend the NDA. The amendments to the NDA far fall short. The Liberals need to be held accountable for the things that are missing.

Would I say that modernizing the National Defence Act to make it more similar to civilian law is a good thing? Not necessarily, because as I said in my speech, there is a significant difference between the rights and privileges of someone in uniform and the rights and privileges of civilian society. That is why we have a National Defence Act, and that is why it—

[The Assistant Deputy Speaker, Carol Hughes]

We do have to allow for other questions, so I would ask members to keep their preambles and their responses and questions to a minimum, which would be about a minute, if possible.

Questions and comments, the hon. member for Oshawa.

[Colin Carrie, Conservative, Oshawa, ON]

Madam Speaker, I want to thank my colleague for her service. I know she is committed to the institutions we all hold so dear. Her comment that defence is not a luxury is important for people to realize.

The member brought up the importance of avoiding political interference. We have seen the current government make extremely bad decisions. She mentioned the Norman affair, which many people are interested in, and the debacle of the jets. With the testimony yesterday on the SNC-Lavalin affair, I think Canadians are rightly concerned.

What does the member think needs to be done to make sure that our military justice system is there for the people who are in the military and to attract the wonderful Canadians who will put on uniforms in the future?

[Leona Alleslev, Conservative, Aurora—Oak Ridges—Richmond Hill, ON]

Madam Speaker, ultimately, we in the House, cabinet ministers and the Chief of the Defence Staff set the example. If we do not lead by example by fulfilling our roles and responsibilities free from political interference and recognize the independence of the judiciary and the responsibilities of the military, then there is no way we will have a national defence act that does so.

The second thing for us to remember is the difference between the military and why it is subject to a National Defence Act and what their roles and responsibilities are. By ensuring that we have a military justice system that takes into account training, access to justice and all those kinds of things, we will ensure that members in uniform feel as though there is a code of service discipline and that it is fairly applied.

[Chris Bittle, Liberal, St. Catharines, ON]

Madam Speaker, I would like to thank the hon. member for her service. She brought up some concerns about an individual not receiving the right to counsel or perhaps having difficulty paying for it. What is her and her party's plan? I would like to hear more about universal legal aid and better access to justice principles.

I know the hon. member was elected as a progressive, but I wonder if she could discuss better access to justice issues which she or her party sees for the future.

[Leona Alleslev, Conservative, Aurora—Oak Ridges—Richmond Hill, ON]

Madam Speaker, that is a very simple question. The simple answer is that the military has a structure to indemnify members in uniform when they find themselves in legal difficulty. Mark Norman requested that, but was denied it by the government. Therefore, it is very easy. The government could indemnify him and could do it now. It could ensure that there is no political interference and that he has access to a fair trial.

[Robert Sopuck, Conservative, Dauphin—Swan River—Neepawa, MB]

Madam Speaker, I would like to ask my hon. friend a very simple question based on her experience in the military.

She talked about how poorly equipped the military had become under the present government. Could she provide her views on how the present government is treating the military?

[Leona Alleslev, Conservative, Aurora—Oak Ridges—Richmond Hill, ON]

Madam Speaker, I said that defence was not a luxury. The government said that it would invest, but it has not invested by over 50%. It has not even delivered the money it said it would. Of course, worse than that, the government is equipping our military with 40-year-old, used Australian F-18s.

The Australians are smart. They would not be getting rid of fighter aircraft if they were still operationally capable. They are older than the ones we currently own, because they bought them before us.

Therefore, it is not only embarrassing and not contributing to the security and safety of our nation, but it is humiliating. Our allies know we are not serious about defence, and that is because of the actions the government has taken.

[Kevin Lamoureux, Liberal, Winnipeg North, MB]

Madam Speaker, it is important to recognize that the functionality of an F-18 is not necessarily determined by years as much as it is hours flown.

The question just posed was interesting. The Conservative Party was absolutely abysmal. It totally failed on providing. The Conservatives make reference to the aircraft. Stephen Harper was an absolute, total disaster in getting a replacement for the F-18. That is the core of the problem. The attitude of the member's party in not providing the proper resources in the 10 years of Stephen Harper has put the Canadian Forces in the position it is in today. This obligated us to get a replacement aircraft in the short term so that in the long term our Canadian military would be better served by more modern equipment.

I wonder if she would agree that Stephen Harper should have done his job as prime minister and invested in our Canadian Forces when it was the right time to do it, which was 10 years ago.

[The Assistant Deputy Speaker, Carol Hughes]

I want to remind the member for Cariboo—Prince George that the Speaker will determine when the time is up.

The hon. member for Aurora—Oak Ridges—Richmond Hill.

[Leona Alleslev, Conservative, Aurora—Oak Ridges—Richmond Hill, ON]

Madam Speaker, there is that argument again. Because someone else did not do it, we do not need to do it and we do not need to be responsible or accountable for the actions we have taken, we can blame it on somebody else. When it comes to our military that is just highly unacceptable.

Ultimately, though, the Liberals said that they would spend some money on defence and they have not done that. They campaigned on advanced fighter jets. There is no way that 40-year old, used F-18s from Australia are advanced capability fighter jets. Yes, it is about flying hours. The Australians flew them a lot and over oceans, so they have corrosion charges as well.

[Chris Bittle, Liberal, St. Catharines, ON]

Madam Speaker, I am pleased this important bill has reached this advanced stage in the legislative process. I am equally pleased for the opportunity to say a few words in support of the adoption of Bill C-77 and to further illustrate the improvements it would bring to Canada's military justice system.

By now, members have heard a fair bit of detail about how the bill would further modernize the military justice system; how it would ensure our military justice system would continue to evolve in harmony with the civilian justice system, while continuing to respond to the unique needs of our military; how it would enshrine victims' rights within the military justice system and ensure they would be well supported at all stages; and how it would support our government's commitment to repairing our nation-to-nation relationship with indigenous and protecting LGBTQ2 individuals from discrimination and injustices based on their gender expression or identity.

Those are all much-needed steps to strengthen our military justice system to ensure it is responsive and reflective of our deeply held Canadian values and of our number one priority, to care for our people.

However, there are other important changes in the bill, changes that will help streamline our military justice process, changes that will make those processes more efficient and better suited to meet the demands of a modern military. Today I would like to re-examine some of those changes.

The legislation before us promises to reform the summary trial process in ways that will enhance the military's ability to maintain fast, fair and effective discipline. Canadians, military and civilian alike deserve a military justice system that is responsive to operational demands and that applies fair and proportionate disciplinary measures when dealing with minor breaches of military discipline.

Our proposed changes will simplify the process of dealing with minor breaches of military discipline by replacing the current summary trial process with a new system of summary hearings, while continuing to process more serious breaches of military discipline through the court martial system.

These summary hearings would make it much easier for the Canadian Armed Forces to address minor breaches in a fair and timely manner. Summary trials have generally tended to comprise approximately 90% of all service tribunals. Courts martial have made up just one-tenth.

By creating the new summary hearing process, Bill C-77 would enable simpler and faster handling of minor breaches of military discipline. As members have heard us say before, this new process would be non-penal and non-criminal.

It would focus exclusively on minor breaches of military discipline. These minor breaches, called service infractions, would be created in regulation and dealt with exclusively through summary hearings. They would not be considered criminal offences, so they would be dealt with swiftly and fairly at the unit level.

Sanctions may be imposed in respect of a service infraction, such as reduction in rank, reprimands, deprivation of pay or minor sanctions that are non-penal, non-criminal and that would be prescribed in the regulations.

Under the proposed changes, the new summary hearing will be conducted by officers who will have jurisdiction if the person charged is one rank below the officer conducting the hearing or if he or she is a non-commissioned member. That means military commanders will have more flexibility and thus be better able to maintain discipline, efficiency and morale. In this way, the summary hearing process will maintain the current responsiveness, while enhancing operational effectiveness.

At the same time, the proposed reforms show trust and confidence in our military leaders and their ability to address minor breaches of military discipline. Of course the more serious breaches of military discipline, known as service offences, would continue to be tried under our system of courts martial.

All of that means greater efficiency within the broader military justice system.

Our military justice system is unique and necessary to meet the needs of our armed forces. The Supreme Court has affirmed this on a number of occasions. It is the solemn duty and responsibility of everyone here in this room to ensure we are supporting a military justice system that is set up to preserve the highest standards of conduct and discipline. We owe that to our armed forces, which must remain ready at all times to act decisively and effectively in service to their country.

Just as the civilian criminal justice system has progressed to reflect our current times, so too must the military justice system continually evolve.

Bill C-77's proposed summary trial reform is about making that system simpler, more effective and more efficient. It is about making sure breaches of military discipline are dealt with appropriately and effectively, based on their severity. A new summary hearing process would help preserve discipline and morale at the unit level, with sanctions that are non-penal and non-criminal and would not trigger detention or criminal record.

It would improve the chain of command's ability to address minor breaches of military discipline swiftly and fairly, which would enhance the operational effectiveness of the Canadian Armed Forces. All told, the legislation would create a fairer, faster and more flexible process, one that reflects our Canadian values while staying responsive to the unique needs of our military.

Through our defence policy “Strong, Secure, Engaged”, our government is demonstrating its unwavering commitment to supporting the women and men of the Canadian Armed Forces. The bill offers more opportunity for all of us to reaffirm our people are our number one priority. The bill is essential to ensuring our military members have the support and systems they need to remain ready to defend and protect Canadians at home and abroad.

I am proud to be part of these efforts, and I thank my colleagues for their support in passing this important legislation.

[Kevin Lamoureux, Liberal, Parliamentary Secretary to the Leader of the Government in the House of Commons]

Madam Speaker, one of the things that are incorporated into the legislation is the issue of victim rights. This is something being welcomed universally and that is fairly significant. It takes into consideration a number of things that should be taken into consideration relating to victims. These are all very positive aspects of the legislation.

I am wondering if my colleague can provide his thoughts on the issue of having victim rights put into the legislation, which is really outside the law we have today. It is something completely new that is going to make a very positive change to the law itself.