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

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

Madam Speaker, the member across the way seemed to focus a great deal on removing subsection 98(c) or that aspect of the legislation. The member indicated before question period that he had been following the debate. Certain elements currently in the legislation were generated in the dying days of the Stephen Harper government.

We have added a couple of things to it. I note in particular the indigenous factor, which is so critically important to take into consideration when administering military justice, like our civilian courts do.

With respect to the subsection he has referred to, could the member tell the House why Stephen Harper would not have addressed that point in the Conservative legislation? We have made it very clear that this is of interest to us and we would like to explore it. At the time, when it was in committee, it was considered outside of our scope, yet now the Conservatives and the NDP are telling us we should be making changes. Stephen Harper did not do this.

We as a government are saying that we will take a look at it to see what can be done. That seems to be the responsible approach to deal with this.

[Todd Doherty, Conservative, Cariboo—Prince George, BC]

Madam Speaker, I took a very non-partisan approach to my intervention. My hon. colleagues across the way, as the Liberals do, always has to place blame. I was merely offering that when the committee was studying Bill C-77, our hon. colleague from Esquimalt—Saanich—Sooke, with the best intentions, put forward a motion for us to consider the removal of subsection 98(c). That would have been an opportune time to get Bill C-77 right.

I also have offered that Bill C-77 is being supported by all opposition members on this side of the House. It is almost a carbon copy of Bill C-71, which was put forward by our strong Conservative team in the previous Parliament.

It is unfortunate that our hon. colleague has taken the opportunity to turn things partisan when we are having a reasoned debate and discussion on the merits of Bill C-77 and the opportunities to amend it.

[Marjolaine Boutin-Sweet, NDP, Hochelaga, QC]

Madam Speaker, as my colleague knows, removing paragraph 98(c) is about removing self-harm as an offence. He talked about that himself.

When the amendment moved by my colleague from Esquimalt—Saanich—Sooke was rejected, he decided to introduce his own private member's bill, Bill C-426, to correct this issue.

Does my colleague plan to vote in favour of Bill C-426 to correct the problem he was talking about?

[Todd Doherty, Conservative, Cariboo—Prince George, BC]

Madam Speaker, I have not had the opportunity to see Bill C-426 in its entirety. I only just heard about it an hour ago from our colleague from Esquimalt—Saanich—Sooke. It seems well-intended. I imagine that our national defence critic will provide a reasoned approach to it.

I believe our colleague from Selkirk—Interlake—Eastman also referenced Bill C-426 in his intervention. While I have not seen the full text of the bill, I look forward to seeing it. I am sure it will have support from all sides of the House.

[Larry Miller, Conservative, Bruce—Grey—Owen Sound, ON]

Madam Speaker, it is a pleasure to have the opportunity to again speak to Bill C-77. This is important legislation that I believe has a good amount of support from all sides of the House.

Before I get into the heart of my remarks today, I want to take a few moments to applaud the hon. member for Vancouver Granville, the former attorney general, for the courage she showed yesterday at the justice committee. All Canadians have been watching this story very closely. The hon. member laid out a very clear picture of what has happened.

It is now crystal clear that the Prime Minister and his office carried out a coordinated effort to try to obstruct the prosecution of SNC-Lavalin. It is shameful, and it needs to be looked into further.

The Criminal Code defines the charge of obstructing justice as anyone who “wilfully attempts in any manner to obstruct, pervert or defeat the course of justice in a judicial proceeding.” Applying sustained pressure to the former attorney general once she had already made the decision to proceed to trial would 100% constitute a wilful attempt to obstruct, pervert or defeat the course of justice.

The RCMP needs to look into this and needs to hold all of those responsible accountable for their actions, including the Prime Minister. The buck stops with him. It was his office and people in his government who carried out this pressure, and he needs to own up to it, something he is not very good at.

Further, the Prime Minister has to agree to call for a public inquiry so all Canadians can once again have faith in an independent judiciary.

[Kevin Lamoureux, Liberal, Winnipeg North, MB]

Madam Speaker, I rise on a point of order. There is some onus on the member to be relevant to the legislation at hand. We are talking about Bill C-77. The member is reading, verbatim, a speech that he has prepared and it is completely irrelevant to the legislation. At least, if he is going to be off topic, he should try to make it a little more spontaneous.

I would suggest that the member is not being relevant to the bill at hand. Bill C-77 is a good bill that should be debated.

[The Assistant Deputy Speaker, Carol Hughes]

The hon. member knows full well that he should not be talking about spontaneity or anything like that. However, I do want to remind members, as the parliamentary mentioned a while ago, that there is some leeway when speeches are being given.

For the members who are delivering speeches, their speeches do have to be relevant. They may have some stuff that may not be as relevant to the legislation before us, however, they need to bring in that relevancy. Therefore, I would ask the member to ensure the relevancy is part of his speech.

[Larry Miller, Conservative, Bruce—Grey—Owen Sound, ON]

Madam Speaker, if my partisan colleague across the way had just given me another 10 seconds, that is where my next paragraph was going. The issue of carrying the course of justice is, in fact, not out of place within the context of the debate here today on Bill C-77, so there is relevancy.

Bill C-77 is all about carrying out the course of justice within our military in a way that protects victims. The legislation would bring forward changes to our military justice system that would give some protection to victims. That is something the Conservative government was working on, and as we heard earlier today from my colleague for Cariboo—Prince George, the bill is almost a duplicate of what we had proposed in the last Parliament.

As I said, the legislation would bring forward changes to our military justice system that would give some protection to victims, which is vitally important. Our previous government recognized this. It is why we brought in the Canadian Victims Bill of Rights and worked to enshrine those rights within our military justice system.

Former Bill C-71, which did not pass before the last election, looked very much like the legislation before us today. Our proposed legislation would have given victims the following: first, enhanced access to information through the appointment of a victim liaison officer; second, enhanced protection through new safety, security and privacy provisions; third, enhanced participation through impact statements at sentencing; and four, enhanced restitution, meaning a court martial would be required to consider making a restitution order for losses.

Imitation is the greatest form of flattery and that is on full display here. The Liberal government knows that what the Conservative government tried to do in the previous Parliament was the right thing to do, and that is why it is copying it with this legislation. However, there are a few differences that I would like to highlight.

Perhaps the most glaring difference between the two bills would be the addition of the Gladue decision, in relation to paragraph 718.2(e) of the Criminal Code of Canada, into the National Defence Act. This addition would mean aboriginal members of the Canadian Armed Forces who face charges under the National Defence Act may face lighter punishment if convicted.

There is absolutely no place in the Canadian Armed Forces and in Canadian society, for that matter, for discrimination of any kind. No one should ever be discriminated against based upon race, gender, religion, culture or any other factor. That being said, the insertion of this principle has the potential to result in different consideration of offences committed by aboriginal forces members than for those committed by non-aboriginal forces members. This could lead to sentences that are less harsh, could undermine operational discipline and morale in the forces and could even undermine anti-racism policies.

I truly believe, and I think all of us in this place do, that judicial systems, military or otherwise, operate most effectively when the defining principle is equality before the law. By definition, equality applies to all. If we want true equality before the law, we cannot have separate levels of standards or sentences for some segments of the population. It must be applied uniformly.

Furthermore, while I am pleased the government is moving forward with legislation to help the men and women who are currently serving our country, it must be reminded that our veterans need our support as well.

A recent report from the Parliamentary Budget Officer confirmed our veterans are paying for the mistakes of the government. The PBO's report, titled “The cost differential between three regimes of Veterans Benefits”, is clear proof that the pensions for life scheme by the government is falling well short of the mark when it comes to supporting the men and women who have served our country. The report confirms veterans with severe and permanent injuries will be worse off by an average of $300,000 under this scheme. This is unacceptable and needs to be addressed.

That said, it is my hope that Bill C-77 moves on to consideration in the Senate and that those in the other place will conduct a fulsome review of the bill to ensure that military justice reform works for all those who serve our country.

We cannot ever do enough for our veterans. A lot of veterans from the Second World War and many from the Korean War have left us and there will be more as time moves on. It is times like this, in their later years, when they need veterans services more than ever. I remind the government to change its attitude, change its ways and change Veterans Affairs so that the main goal is to serve these veterans instead of keeping the strings on the bank book unreasonably.

When Conservatives were in government, the same type of thing happened and it is happening now.

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

Madam Speaker, I was a bit concerned when my friend talked about indigenous people. We want to get military law to more closely resemble what is taking place in our civil court system. My understanding is fairly clear in that what is being proposed in the legislation is no different from what is currently being applied in civil law.

If the member follows me on this, does that mean the Conservative Party's principles that he talked about today are the same principles he would apply to civil law, that we should not be giving any consideration to the indigenous conditions, the issue of reconciliation or things of that nature? I understand what he is saying about military law, but would he expand that to include civil law?

[Larry Miller, Conservative, Bruce—Grey—Owen Sound, ON]

Madam Speaker, the member is obviously trying to distort what I said. I simply pointed out that there is a difference. We should not start applying laws based on race, gender or whatever. In the military, if there are four soldiers, and two of them are aboriginal and two of them are not, and they make a mistake, two of them would have the potential of being treated differently than the other two. That is all I was trying to point out. I do not think that is right. I do not have a clear answer on it, but doing anything race-based is not acceptable, even less so in this day and age. That is all I was trying to point out.

[Robert Aubin, NDP, Trois-Rivières, QC]

Madam Speaker, I thank my colleague for his speech. It was also my impression that he thought it would be discriminatory to take into account the reality of an indigenous community or indigenous representative in a ruling.

I have to wonder whether, instead of talking about discrimination, we should not be talking about mitigating factors, the opposite of aggravating factors, that the judge must take into account before issuing a ruling, as is the case in all criminal and civil proceedings.

Could indigeneity, for example, be considered a mitigating factor in some cases and not a matter of discrimination?

[Larry Miller, Conservative, Bruce—Grey—Owen Sound, ON]

Madam Speaker, my colleague talked about the conditions under which somebody would make a ruling. I would point out that the conditions in the military for all members, male, female, native, non-native, whatever one's race or background, are the same. They are treated the same way, except for what is coming in the bill. That is all I am pointing out.

Again, I do not have the complete answer, but when we start treating people differently because of the colour of their skin, it is unacceptable in today's society, no matter how good one's intentions are.

[Elizabeth May, Green, Saanich—Gulf Islands, BC]

Madam Speaker, there is a form of discrimination that continues in this country for veterans and other people who are within the superannuation acts of the government, which is, if they remarry after age 60, their spouses are denied survivor rights that they would otherwise have. What has been perpetually and continually asked for, going back to the late and wonderful Jim Flaherty, is to get this fixed. I have also asked the current Minister of Finance.

It really is unfair that veterans are treated differently and that spousal benefits are denied to surviving spouses if they happen to find love after 60, as just happened to me.

[Larry Miller, Conservative, Bruce—Grey—Owen Sound, ON]

Madam Speaker, I thank the member for Saanich—Gulf Islands for a great question. It is one I can relate to because that has happened to constituents in my riding.

Also, I want to officially, albeit belatedly, congratulate her on her new-found love later in life and wish her the best.

Coming back to the issue, I remember talking to my good friend Jim Flaherty, who was working on this at the time. Unfortunately, it did not get fixed, but it needs to be.

[Karen McCrimmon, Liberal, Parliamentary Secretary to the Minister of Public Safety and Emergency Preparedness]

Madam Speaker, I will be splitting my time with the hon. member for Fredericton.

My thanks for the opportunity to outline some of the many ways the Canadian Forces would strengthen the administration of military justice through Bill C-77.

“Strong, Secure, Engaged”, our new defence policy, unveiled in July of 2017, marks our first step in the priorities of everything we do in the Canadian Forces, now and for years to come.

We have a concrete vision, informed by diligent consultation with our fellow citizens from coast to coast to coast. The commitments we have made to our women and men in uniform will provide them with a more dynamic, prosperous and resolutely positive work environment that guarantees respect for the individual rights of all. The changes introduced in Bill C-77, coupled with the steps taken to respond to the Auditor General's report, will make it even stronger.

I want to start by reminding the House that Canada maintains a unique system of military justice. The Code of Service Discipline mandates that the military justice system deal expeditiously and fairly with service offences while respecting the Canadian Charter of Rights and Freedoms. That said, there are some fundamental differences between the two systems, and for very good reason.

The military justice system is vital to maintaining discipline, efficiency and morale in the Canadian Armed Forces. That is crucial, given the unique environment in which it operates. Military personnel often risk injury, or even death, as they perform their duties in Canada and abroad. Discipline and cohesion within military units can literally be a matter of life and death. Equally important, the military justice system enables Canada to comply with its obligation under international law to hold its military personnel accountable for their conduct during naval, land and air operations.

The military justice system is continually evolving to comply with Canadian law and Canadian values, and we will ensure that it remains responsive to both the accused and the victims. We are proud to continue in this direction and to promote the progress of justice in Canada and within our forces.

This legislation would ensure that the military justice system could satisfy both the expectations of Canadians and the unique needs of the Canadian Armed Forces. In addition, the legislation would improve victim support through information, protection, participation and restitution rights.

The bill would also introduce indigenous sentencing considerations to mirror similar provisions within the civilian criminal justice system, and it would provide sentencing and sanctions provisions for service offences and service infractions rooted in bias, prejudice or hate toward individuals based on their gender expression or identity.

Bill C-77 would also complement the positive actions resulting from the recommendations of the Auditor General's office on ways to strengthen the administration of military justice. The judge advocate general had already initiated a number of measures to improve the administration of the system prior to that report, and the department is implementing an action plan to ensure that all nine recommendations are addressed.

The Office of the Judge Advocate General and the director of military prosecutions have implemented or amended various policies to address the Auditor General's recommendations. For instance, the Office of the Judge Advocate General has begun to develop a new electronic case management tool and database to capture the relevant data on all military justice cases. This case management system directly responds to several recommendations to identify and address delays in military justice system processes.

However, our goal is not simply to speed up the system. We want to make sure that the system continues working, and working well. The case management system will assist the Canadian Armed Forces in maintaining the discipline, efficiency and morale of Canadian Armed Forces members as they work in the service of Canada, both at home and abroad.

The judge advocate general has also re-established the military justice round table to increase and improve communications among key actors in the military justice system. The round table brings together key stakeholders from across the military justice system to discuss best practices in its administration.

As “Strong, Secure, Engaged” makes clear, we are ensuring the long-term health and wellness of military members and civilian personnel. Bill C-77 is one of the many ways we are delivering on that pledge. That pledge also means that we work together to build a more inclusive and respectful environment in our military.

This is an important achievement for all our members in the military, and we hope to have the support of all parties to pass the bill. Our military justice system is vital to maintaining discipline, efficiency and morale in the military. This carefully balanced legislation would ensure that the Canadian Armed Forces could do exactly that.